Ciarán Ahern (Dublin South West, Labour)

Before I begin, I acknowledge the presence of Mr. David Ryan in the Public Gallery. Mr. Ryan and his brother Mark participated in an RTÉ radio documentary, which precipitated all of what we are speaking about today.

The establishment of this commission of investigation is welcome. It is not before time. The scourge of child sexual violence in our schools and the abject failure of authority figures and institutions to protect defenceless young people from this life-changing abuse is something that Irish society needs to address. We need to do so in the open and with a determination to honour those who are speaking out and to prevent similar abuses in the future. I say this as the chairperson of a national school board. There will be no way of protecting children in the future if we cannot acknowledge and address the failings of the past.

I would like to record my utmost respect for all those who have brought us to this point. Their determination to see these horrific injustices acknowledged and redressed is a gift to Irish society. It is a huge service to us all and it comes at enormous personal cost. Openness and transparency are so important. I am aware that the Government and other institutions of power have excelled in the past at covering up the reality of child sexual abuse, a reality that they knew about and could have responded to but chose not to. We need only look to the Carrigan report affair in 1931 to see the DNA of denial that blighted child protection in Ireland from the State’s foundation. The Carrigan committee, appointed in 1930, held 17 sittings and one of its witnesses was the police commissioner of the time who highlighted an:

... alarming amount of sexual crime increasing yearly, a feature of which was the large number of cases of criminal interference with girls and children from 16 years downwards, including many cases of children under 10 years of age ...

The police commissioner said he believed less than 15% of sexual crime was being prosecuted for various reasons but the Government of the day chose not to publish neither the 1931 Carrigan committee's report nor the evidence given to the committee. This was on the advice of the Department of Justice, as we learned from archival files released in the 1990s. The Department of Justice decided that the obvious conclusion to be drawn from the report was that the ordinary feelings of decency and the influence of religion had failed in Ireland and that the only remedy was by way of police action. This attitude, that the problem of child sexual abuse was better left unsaid and unaddressed by the criminal justice system, seemingly for the sake of religious morality and in an attempt to maintain a outward sense of respectability for the State, had very real and awful consequences for the children affected.

In 2014, the European Court of Human Rights ruled in Louise O’Keeffe’s favour against Ireland because over the 20th century the Irish Government adopted an entirely hands-off approach to monitoring the behaviour of teachers in State-funded, religious-run schools, that is to say, in the vast majority of schools in Ireland. Louise O’Keeffe successfully established that it was a breach of Article 3 of the European Convention on Human Rights - that is, the right to be free from torture and other cruel treatment - for the State not to have any way of parents complaining to Government authorities over instances of abuse. Instead, parents were sent to the parish priest. As the European Court of Human Rights ruled, the State failed in its due diligence duties to protect children and young people from abuse in schools. This inquiry will delve into that issue in detail. Religious and other authorities also failed massively.

We cannot fail in our obligation to ensure a human-rights-respecting response through an effective investigation and adequate redress. The Government’s terms of reference for this inquiry need some amendment to avoid some of the grave injustices done in recent years to those affected by matters that commissions of investigation have already addressed. First, it is imperative to listen to what Inclusion Ireland is telling us about the needs of people with intellectual disabilities, who will represent a significant number of those affected by sexual abuse in schools. It is imperative that we learn from the Grace case. Inclusion Ireland’s CEO, Ms Derval McDonagh, wrote in the Irish Examiner yesterday that in the scoping inquiry, 17 special schools accounted for 590 allegations involving 190 alleged perpetrators. That is 25% of the total number of allegations of abuse. Inclusion Ireland has asked us to raise with the Minister the need to change No. 8(a) of the terms of reference in order that the survey intended to identify test cases will be accompanied by other methods that give due recognition to the particular communication needs of individual survivors.

No. 11(a) of the terms of reference needs to be amended in order that survivors will be explicitly guaranteed accessible information and communication, including, but not limited to, audio, visual, plain English and easy-to-read versions of all relevant documents and materials. We must also facilitate the inclusion of intermediaries and independent advocates to support every person’s participation.

No. 11(b) must explicitly guarantee survivors legal representation in order that their statutory rights under section 12 of the Commissions of Investigation Act mean something in practice. Section 12 of the Act gives every person who comes before the commission as a witness the right to access and comment on all evidence relevant to them.

On No. 12(a), Inclusion Ireland and I are very concerned about the use of the term "incapacitated". Every person has the right to make decisions, including through assisted decision-making, where necessary. This term of reference needs to be amended to comply with our obligations under the UN Convention on the Rights of Persons with Disabilities and the Assisted Decision-Making (Capacity) Act. I agree with Inclusion Ireland that there should be an advisory panel of people with disabilities who can provide inputs to the chair of the commission.

I also acknowledge what One In Four has said about the fact that this inquiry will not be a substitute for other forms of justice and accountability. I would argue – and my wife, the brilliant Dr. Maeve O’Rourke, has written extensively about this – that some previous State inquiries have, unfortunately, acted as a barrier to other forms of justice. They have sealed documents, thereby preventing survivors from accessing them. They have refused to give survivors a transcript of their evidence. They have denied survivors legal advice or assistance, while alleged wrongdoers have the resources to demand and comment on all evidence and draft findings. They have not shared evidence with the Garda. It is notable that the IICSA historical child sexual abuse inquiry in England and Wales stated explicitly in its terms of reference, "Any allegation of child abuse received by the Inquiry will be referred to the Police."

I would like to know more from the Minister about how, if at all, this inquiry will co-operate with the Garda. Many survivors would expect that if the commission of investigation is gathering information about alleged wrongdoers – particularly if it is gathering corroborating information from many different sources – that it will share this information. I would also like to know if the Minister has discussed this issue with survivors and what changes might need to be made to the underlying legislation or the terms of reference to ensure that survivors’ expectations of criminal justice are met.

The commission will cover a wide range of experiences and contexts. Some survivors and advocacy groups like Restore Together take a restorative approach to justice, whereas others will be more focused on accountability and redress, like those suing the Christian Brothers. The commission will need to be cognisant and accommodating of both of these approaches. There must also be greater efforts to mitigate the risk of retraumatisation in the in the inquiry proper. The scoping inquiry report notes that a key concern for survivors is the risk of retraumatisation arising out of cross-examination during testimony. There is a confidential element that has the potential to be more therapeutically informed, but the commission will have no regard to its work in its overall findings.

I refer the Government to the work of Dr. James Gallen in that regard. Dr. Gallen identified a failure in our approach to cross-examination in protecting the rights of survivors and found that our approach in public inquiries is unduly conservative. Dr. Gallen notes that it is by no means inevitable that cross-examination will remain traumatising and distressing for survivors. It is a choice that has been made. He has identified plausible alternatives, like ground hearings or the use of intermediaries, which, while by no means perfect, are a significant improvement on the status quo. Dr. Gallen goes on to state that there is no logical justification for denying victim-survivors accommodations and protections that they would be afforded as witnesses in a criminal trial. However, he notes that the provision of special protections is likely inadequate given that the system is adversarial.

Tribunals and commissions of investigations are not courts and should not be treated as such, particularly when vulnerable people are involved. Fundamentally, the point I am trying to make, and the point that Dr. Gallen makes, is that we need to adopt a non-confrontational approach that minimises the risk of retraumatisation to the greatest extent possible.

I mentioned previously that there are different approaches and perspectives on justice among survivors and advocacy groups, including those suing the Christian Brothers. I attended a fine Christian Brothers' school but it is utterly shameful how obstructionist and downright immoral the Christian Brothers and other religious orders have been in terms of redress to victims and survivors of abuse in the schools they operated. My party leader, Deputy Bacik, has published a Bill that would facilitate child sexual abuse proceedings against unincorporated associations, including religious orders, and provide a mechanism for recovering damages from the associated lay-run trusts which have been set up by these bodies and to which their assets have typically been transferred. I understand that when the Bill was published prior to the general election, Deputy Bacik received a commitment from the Tánaiste, Deputy Harris, the then Taoiseach, that he would work with her on it. The Bill has been sent to the current Taoiseach as well. As yet, there not been a response. I urge the Taoiseach and the Minister to work with Deputy Bacik on getting the Bill over the line. The bitter experience of so many survivors shows that any appeals to religious orders based on their moral duties will be ineffective. The State must have the necessary and robust powers to compel these orders to provide survivors with the justice and redress they deserve.

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