Dáil debates

Wednesday, 15 June 2005

Commission to Inquire into Child Abuse (Amendment) Bill 2005: Report Stage (Resumed) and Final Stage.

 

3:00 pm

Séamus Pattison (Carlow-Kilkenny, Labour)
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Amendment No. 3 is an alternative to amendment No. 2 and amendment No. 4 is related. Amendments Nos. 2 to 4, inclusive, will be discussed together.

Photo of Seán CroweSeán Crowe (Dublin South West, Sinn Fein)
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I move amendment No. 2:

In page 7, to delete lines 5 to 8 and substitute the following:

"'(ia) will investigate the role of the courts and the executive arm of Government which exercised statutory powers under the Children Acts and will inquire into the manner in which children were placed in, as day students or residents and the circumstances in which they continued to be students or residents in, institutions during the relevant period,',".

This series of amendments follows from the debate on the role of the Department of Education and Science as the sponsoring Department and the requirement to construe references to "the Minister" as a reference to the Taoiseach, as proposed in amendment No. 1. The amendment proposes to include in the investigation the role of the Government and courts in the cycle of events which led to children being systematically abused in homes and schools.

The former Minister for Education and Science, Deputy Woods, promised that all areas, apart from the courts, would be open to examination by the commission. The Bill as currently drafted backtracks on even those commitments. The point must be made that the State has a responsibility and its failure to look after children must not just be acknowledged but examined in detail. It is one thing to offer assurances here but the work of the Laffoy commission showed the Department of Education and Science stalling and delaying access to documentation. We have a chance to make it clear that the Government and its institutions will play a full role in the commission's work. The best way to achieve this is to state it clearly in the Bill. Anything less will leave the door open for backsliding and avoidance of responsibility.

I have talked to many people about this, including people I grew up with in Rathfarnham who wound up in institutions such as Daingean for petty reasons. All those people were hurt and had changed as a result of their experience. Those who are still alive carry their anger to this day.

After the Taoiseach's apology, people thought the can of worms that had been opened in this area of Irish life would be fully investigated, but unfortunately that has not been the case. People talk about their anger and frustration, and the delay with the Laffoy Commission has added to that. Many of them want to tell their story but have not had the opportunity.

I spoke to a man who was put in an institution after the death of his mother. After a year and a half, an uncle started to collect him for visits and he was seriously assaulted from the age of three and a half until he ran away to England at age 16. He used to return to the institution with cuts and bruises, having been beaten black and blue by his uncle, but the man was still allowed to take him on visits.

I passed one orphanage as a child where the orphans always looked very sad. A girl who was in that orphanage told me how a priest who had abused other children was sent to the institution and given a key to the dormitories. This girl's father was still alive but, for whatever reason, the State took the decision whereby she ended up in the institution. She lives with the resultant problems to this day. She is extremely angry at a system that allowed an abuser to move from one place to another and to abuse her, destroying her childhood. She is a young mother now and she told me that the most important thing to her was that neither her child nor any other child would go through a similar experience.

Other people who spoke to me ended up in prison. That was how they reacted to what had been done to them. They were angry with the system, the State and the officialdom that would allow this to happen. They want to open this can of worms and find out why judges sent people to institutions, in some cases for mitching school, robbing orchards or stealing a bike. These were petty crimes that would not have attracted such punishment in a more civilised society.

Some people told of how they spoke to the gardaí, to doctors who were called in to investigate bruising and to visitors to institutions, but no one listened. Society did not listen then and these people now want us to listen to their stories. They do not want to have to tell them behind closed doors. They also want the State and its institutions that were responsible for the theft of their childhood, the most grave crime outside of murder, to be held to account.

Many of these people buried their pain, turning to drink or drugs, and some committed suicide. Those whom I spoke to were conscious that many of their friends from the institutions have never had the opportunity to tell their story, making it even more important that they are allowed to do it now to bring closure. They want to understand why a civilised State could allow this to happen.

This amendment calls for the investigation of the role of the courts and the executive arm of Government which exercised statutory powers under the Children Acts and for the commission to inquire into the manner in which children were placed in institutions as day students or residents and the circumstances under which they continued to be students or residents in the institutions during the relevant period.

4:00 pm

Photo of Paul GogartyPaul Gogarty (Dublin Mid West, Green Party)
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In amending the functions of the commission in this legislation, the onus is on us to spell out exactly what they should be. It should inquire into the manner in which children were placed in institutions and the circumstances in which they continued to be resident in those institutions during the relevant period. That would cover a hell of a lot of dirt and pain.

The commission should also investigate any executive arm of Government that was responsible for the placement of children in institutions. I have heard stories of people escaping from institutions, telling the gardaí and the gardaí laughing at them before sending them back. That is no reflection on individual officers but on society at the time. Inspectors would come into the institutions, which would be immaculate, and they would send back glowing reports. The dirt, however, was hidden under the carpet and it re-emerged afterwards. That is what the survivors say.

We must specify in the functions of the commission the need to investigate the circumstances where day students and residential students were placed in institutions, sometimes against their will and the will of their parents or guardians and the role played by officials in the Department of Education, the Department of Justice, the Garda Síochána and judges who had anything to do with placing vulnerable children in places where they were subjected to abuse.

My amendment spells out clearly what we should investigate. In looking at this horrific period, which thankfully appears to be over now, we can sanitise matters, but the Bill should not do that, it should show exactly what happened and what we are investigating. That is why my amendment is as encompassing as possible in examining the roles of the various organs of the State.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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My amendment provides for the adequacy or otherwise of the manner in which responsibilities were discharged by persons in authority, including judges. The decision-making process that put so many of these young people into institutions must be part of the commission's work. The judicial process was a central part where decisions were made to incarcerate children for what were in some cases not even offences and in others minor offences. It is appropriate that this aspect, core to the decision to put the children away, in many cases for years, is incorporated into the examinations taking place under the auspices of the Commission to Inquire into Child Abuse. I hope the Minister for Education and Science will accept this amendment.

Photo of Olwyn EnrightOlwyn Enright (Laois-Offaly, Fine Gael)
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I support these three amendments. As we are discussing timescales and do not want to delay matters, it must be remembered that the number of people who can give evidence to the commission is limited as the commission is now closed to other people coming before it. In looking into these areas, the commission will only examine those cases already with it. We are not asking for a process that will inordinately extend the lifetime of the commission.

Sadly, we come back to the example of the day schools and the Donal Dunne case. There is strong evidence that different arms of State knew what was happening but failed to act. This is not just confined to the Department of Education and Science. There is evidence that other State bodies, including the Garda Síochána who did act in some cases, knew about the abuse. It is important these issues are fully examined at this stage.

If we wish to reach finality and closure on this issue, every aspect must be dealt with. If only half the story is told before the commission, we will come back to this legislation because some people will not have had the opportunity to tell their full stories. That would be the worst possible outcome. If we do that, we will never reach an end to this issue. It is important that the commission investigates every aspect that needs to be investigated.

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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I strongly support Deputy Crowe's important amendment that can add to the legislation. It is crucial to investigate the role of the courts and executive arm of the Government in this matter. We must accept that we have a dark past in how children were treated in institutions. It is a sad and painful past and a nightmare for many of the victims.

The issue of those victims with intellectual disabilities is not often raised in the House or in the broader debate. This was an extra nightmare for many of those people. With this type of scandal we must be vigilant at all times. There were many occasions when children with intellectual disabilities were vulnerable and had no voice. I have met many of them and their families. It is sad to listen to the stories of how a young person with Down's syndrome or another intellectual disability was destroyed and exploited by an adult in an institution. There is a message for us all.

When we are discussing developing services, to ensure this never happens again they must be child-based and not service provider-based. That was the mistake made in the past. People perceived to have problems or dysfunctional behaviour were immediately shipped off to an institution. This must never be a solution again.

I accept the Minister's point that matters have moved on. I recognise there are progressive programmes in our schools for dealing with staff and child care workers. However, we must remain vigilant as we have learned from this experience.

Nowadays, the high percentage of abuse is not in institutions but in dysfunctional families and among neighbours in communities. We must not be afraid to face up to this, as there is a huge silence on this issue. Like many Members, I have met many victims of abuse in institutions and seen their great hurt in that they were often ignored. Many victims told me that they felt they had to go through hoops in getting their stories heard. The constant denial from both the abuser and the authorities caused much hurt.

I support all the victims of abuse in institutions. It is important that we hear all their stories, that they are treated with respect and are compensated properly. When we refer to the State, we must remember it must not just look after its citizens but give justice to victims. Many of the victims have ended up with alcohol and drug abuse problems. Society must ensure they get the maximum support and back-up services they need.

Society must also examine itself. Massive greed and selfishness is rampant in society. People are too busy going on about the economy. We must never take our eye off the ball, forgetting that children must be nourished and developed in a caring way. Deputy Crowe's amendment is part of that strategy.

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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Not for the first time I find myself agreeing with Deputy Finian McGrath. However, I will not accept the amendments because the thrust of what they propose to achieve is already covered in the Bill. One of the commission's primary functions is to conduct an inquiry into the abuse of children in institutions, ascertain why it occurred and who was responsible. That mandate includes establishing as complete a picture as possible of the causes, the nature and the extent of physical and sexual abuse of children in institutions and other places from 1940 to the present day. The Executive and the courts had a role to play in the placement and detention of children in institutions. The commission already has the ability to report on this role. I do not propose to accept amendment No. 2.

The Bill provides for the commission to investigate the various roles of those in authority, including officials attached to various Departments, as outlined in amendment No. 3 in Deputy Gogarty's name. The commission already has a broad range of institutions within its remit, including day schools and hospitals. It is, therefore, not necessary to accept this amendment.

There is always a difficulty when attempts are made to include judges in legislation, as proposed in Deputy O'Sullivan's amendment. It is difficult to do and can be dangerous because of constitutional rights and the separation of powers. Quite apart from the length of time that has elapsed and the difficulties in establishing facts, obviously the independence of the Judiciary is the key issue. Anything said or done in a person's capacity as a judge would have been privileged. However, the commission can examine the general operation of the system and the workings of the courts, rather than examining a particular decision in a particular case. It already has power in the legislation to look at the circumstances of how the children were detained and the manner in which they continued to be detained, without specifying an individual case or judge. Hence, the legislation in the Bill already facilitates what the Deputies are trying to achieve through their amendments, without specifying the particular groups, authorities, executives, courts et cetera, as the Deputies wish.

Photo of Seán CroweSeán Crowe (Dublin South West, Sinn Fein)
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I accept the Minister's points in terms of the thrust of the Bill. However, I want to see it in black and white and there cannot be any confusion about it. There has been a conspiracy of silence in the past which I hope will be uncovered by this legislation. No stone should be left uncovered and I would have liked this to have been outlined clearly in the Bill. Some individuals, possibly for personal or religious reasons, might be uncomfortable with going down this path but there should be no leeway for anyone who does not wish to investigate these areas of Irish life. There is a major story to be told and although we have heard some of the stories, we have not heard it all yet. This amendment must be included in the legislation.

Photo of Olwyn EnrightOlwyn Enright (Laois-Offaly, Fine Gael)
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I support Deputy Crowe's amendment. The Minister has stated that much of it is already included, but in order to avoid doubt, it would be better to include the amendment. Consequently, if an issue should arise as to whether the commission has been mandated and is allowed to investigate this area under the terms of this legislation, it will be clear that it is empowered to do so. It is important that this should clearly form part of the legislation so it is not open to doubt and does not eventually depend on the opinion of a judge in court if the legislation is tested. It would be preferable to see it in the legislation.

Photo of Paul GogartyPaul Gogarty (Dublin Mid West, Green Party)
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I support this amendment and the following two amendments. The Minister mentioned that everything is already covered by the thrust of the Bill. Without wishing to play with words, we must have trust in the Bill. Unfortunately, survivors do not trust the Department of Education and Science, they do not trust the work of the commission to date and do not trust the legislation. It must be spelled out in black and white that, as far as possible, the State is taking action to redress the wrongs that occurred in a transparent manner. The Minister does not support a move from the Department of Education and Science to the Department of the Taoiseach in order to facilitate such transparency. However, the Minister must include the wording to engender trust in the Bill. This is why it must be spelled out and why I support amendments Nos. 2 to 4, inclusive.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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If none of these amendments is accepted, the existing wording will simply state "to inquire into the manner in which children were placed in, and the circumstances in which they continued to be resident in, institutions during the relevant period". This is vague and general language, whereas any of the three amendments — I concede the first two are more comprehensive than my own — are more specific about what actually happened and the process that was followed to incarcerate children. I am not satisfied with the looseness of the legislation's current wording and so I support my colleagues. I hope the Minister will take account of our points.

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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I wish to develop a point. Deputy Gogarty touched on the question of trust which is an important issue in the debate, particularly to the victims. Many victims lack confidence and these voices should be and are reflected in the debate today. However, there is also a further question of respect for the victims and survivors which is important and we must ensure it is addressed. Amendment No. 2 demonstrates that respect, deals with the issue of trust and strengthens the legislation because when we discuss the Commission to Inquire into Child Abuse, we must focus on the central issue of justice for the victims. That is the bottom line and we must continue to remind ourselves of this fact. We must do something that is practical and sensible and amendment No. 2 does this.

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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Having met the survivors' groups, there is no evidence that they do not trust the Department of Education and Science. Similarly, there is no evidence that they do not trust the current system or the way in which it is developing. Nor was there any demand from them to move this commission to the Department of the Taoiseach — the opposite was the case. The survivors' groups would prefer that the process was facilitated in order to be able to move forward quickly and efficiently. They want to get into a position to be able to move forward with the commission's work.

Equally, there is no confusion, despite Deputy Enright's suggestion, arising from the legislation's wording, because Judge Ryan has already come out publically and stated that he believes the court system and the executive should be examined. Hence, he recognises not only that this legislation, as it is currently drafted, allows him to do that but he also believes it should be done. Hence, the element of confusion is removed. I have no evidence that the survivors do not have trust in this system.

Question, "That the words proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Amendment No. 3 not moved.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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I move amendment No. 4:

In page 7, line 8, after "period" to insert the following:

"including in particular the adequacy or otherwise of the manner in which responsibilities were discharged by persons in authority, including judges".

Amendment put and declared lost.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Amendments Nos. 5 to 7, inclusive, 10, 11 and 13 are related and may, by agreement, be discussed together.

Photo of Olwyn EnrightOlwyn Enright (Laois-Offaly, Fine Gael)
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I move amendment No. 5:

In page 7, between lines 11 and 12, to insert the following:

"(iii) where cases do not proceed to full inquiry this shall be on the basis of clear and objective criteria, decided in consultation with representative groups,".

I do not wish to rehash the Committee Stage debate on this point, except to state that the points I made then still stand. However, it is important to point out the reasoning behind these amendments, which are broadly similar. When the Taoiseach apologised to victims in 1999, a strong expectation built up that people would have the opportunity to state their cases and get the opportunity to ask questions in some instances. It has been pointed out to me that the vast majority of people who will come before the commission have already stated their case, if one may use that phrase, to some body by now, be it to the Garda, the courts or in some cases, before the commission. However, such people want the opportunity to appear properly before the commission and not simply before a confidential committee for an hour long hearing. This forms an integral part of what the victims, who are what this is about, wanted. The 2000 Act is being amended to remove the obligation on the investigation committee to hear all complaints.

We seek to ensure selection will be made — I suppose people to not want to call it sampling and that "selection" is perhaps a slightly more polite way to put it — on the basis of clear and objective criteria. The Minister referred to Mr. Justice Ryan's statements. I have much faith in what Mr. Justice Ryan will do but I am also conscious that he is the second person in that job and, for one reason or another, somebody else could be in it before the commission completes its work. We must be mindful of that so we cannot rely on any individual no matter how good he or she may be at what he or she does because he or she may not be in the job in the future. It is important clear and objective criteria are laid down so people know why they will or will not get that opportunity which, until this legislation was published, they thought would be afforded to them. That is an important point.

Amendment No. 6 requires that the criteria for deciding which cases may not proceed to full inquiry are published and made available to the public. Again, there is a dual interest here. While the victims should know the reason, there is a broader public interest in this issue. While my focus is primarily on the victims, it is also on the fact that people want to know what happened and how this will proceed.

When we debated this on Committee Stage, different reasons were put forward as to why the criteria should or should not be published. I appreciate the Minister did not want to have this so rigid that we exclude people. That is important but I do not see exclusion occurring on this basis. The criteria do not have to be so tied down that people are excluded, but they should be laid out.

We have also looked for a clear definition of the term "reasonably practicable". That is not defined in the definition section. It leads to changes to what was expected and what was in the 2000 legislation. In the 2000 Act, the function of the commission was to provide for persons who had suffered abuse in institutions an opportunity to recount their abuse and make submissions to the commission. However, the changes here are quite broad and as far as is reasonably practicable, people will have the opportunity to recount the abuse and other relevant experiences undergone by them in institutions. We all have different definitions of "reasonably practicable" and it is important it is tied down so people know what is meant by it.

Photo of Paul GogartyPaul Gogarty (Dublin Mid West, Green Party)
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Amendment No. 7 is a carbon copy of that tabled by Deputies English and Enright. I support their amendment and the other amendments. Without going back to Ms Justice Laffoy, Mr. Justice Ryan may resign for whatever reason. Ms Justice Laffoy resigned because she did not get the necessary resources. As I said in previous debates, every survivor should be entitled to a full inquiry but that is not what is happening. If we are to move to the new cost-cutting regime, we must have proper, transparent and publicly available criteria to show why cases are not proceeding to full inquiry. That is why I support this amendment, without going into too much further detail.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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I also support these amendments. It is a fundamental aspect of this that, after the apology and the setting up of the commission, one of the fundamental points made to survivors was that they would be allowed to tell their story. What is happening in these proposals from Government and from Mr. Justice Ryan is that many of the survivors will not be allowed to tell their story, other than for one hour, which will not be enough. If we do not amend the legislation to some extent and at least provide criteria, we are fundamentally changing what the commission is doing. Ideally, if a person feels strongly enough that he or she wants to tell his or her full story, he or she should be able to do so.

I made the point previously when we debated this legislation that it is our responsibility as legislators, not that of the commission, to decide what should or should not be in this legislation. I respect Mr. Justice Ryan's position and that he is trying to speed up the process and I respect most of his proposals. However, we have a separate responsibility from the judge in this regard. We have a responsibility to the public, specifically to the people who have survived child abuse. They should not be told that because of the time constraints and resources, some can and some cannot tell their story. That is essentially what will happen and it is sampling by another name. Even if the Minister does not accept these amendments, there should be an appeals system whereby if somebody feels strongly enough that his or her story needs to be told to the commission, there should be some way for him or her to do so.

Photo of Damien EnglishDamien English (Meath, Fine Gael)
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It is fundamentally wrong that not everybody will get to tell his or her story. Different reasons have been put forward. The main reason is the timescale, yet the victims are willing to wait to get the chance to tell their story. They are now being told they will not all get the chance to tell their story, having been told they would. People will not know the reason they have not been picked to tell their story, and that is wrong. As I said on Committee Stage and as Deputy O'Sullivan said, it is up to us to set down the criteria. Once the legislation leaves this House, we will no longer have the chance to change it or to add to it. I see no reason we cannot set out criteria and lay down guidelines.

Personnel may change before the commission completes its work. As Deputy Enright said, there have been changes already and there could be more. It is important victims know why they are being given or not being given the chance to tell their story. That is only fair and it is wrong that doubt remains. People might never know why they have not been picked. I believe one has the chance to object, but as I said on Committee Stage, if everyone questions why he or she is not being given the opportunity to tell his or her story, we could be back to square one.

Photo of Seán CroweSeán Crowe (Dublin South West, Sinn Fein)
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I do not know any of the individuals involved in this process so I do not have a biased view. However, I support the amendments. This is all about people wanting to tell their story. The question is why are they not being given that opportunity. People talked about a selection process or sampling, but who will say to those people who have been through that trauma, who have been denied their childhood and who suffered abuse that their story of being badly beaten or of being sexually abused has already been heard from ten women or five men? It raises all sorts of questions about whether we are serious about this process if we do not give these people an opportunity to tell their story. Who will decide what is and is not relevant? Will it be the judge and the commission? That is a huge responsibility. I would not recommend going down that road.

These people who experienced abuse should be allowed to tell their story. I spoke to some people who went down the private route. One woman sat in a room with her husband and told her story while notes were taken. She came out of that room more frustrated and wanted to tell everyone her story. She is looking for an opportunity to go back and tell the world and its mother what happened to her when she was a child. She is wondering whether she is excluded from this process.

People want to tell their story but because of timescales, money or whatever reason, they will possibly not get that opportunity, and that is wrong. We set up this process, people were led to believe they would have the opportunity to tell their stories and that all that happened would be uncovered, but now the process is being closed down. I am not the only one saying that but that is how this appears to many people. The Minister may say that none of the survivor groups said this to her but I have talked to individuals involved. I have not talked to the larger groups. People have come to me for whatever reason and they have told me their stories. They want someone from officialdom to listen to what they went through during their childhood. With the way the system is designed, they will not get that opportunity.

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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We also discussed this matter fully on Committee Stage. While we are the legislators and determine what goes into law, that should be done from the point of view of ensuring the legislation is workable and will work well. For that reason we are guided by some of the views of Mr. Justice Ryan and of the members of his commission who are doing this work on a day to day basis. When he reviewed the workings of the commission he deliberately avoided imposing selection criteria for cases that would receive the full hearing before the investigation committee. He believed that not only would it be invidious but probably impossible to do so. I did not hear any Member ask what are the criteria one could use. The reality is that the absence of criteria gives the members of the commission great flexibility in who they can call. There is no such thing as having a quota whereby they would call only X number of people, but they have a requirement to be able to get a complete picture of life in a particular school over the 30 year period under investigation. Therefore, they have to cover the range of complaints, experiences etc., and establish who are the people who can give them the best picture of that.

Members of the commission have proposed that the investigation commission will interview each of the people who have decided to continue participating in the inquiry. That process had already commenced and is being conducted by members of the inquiry. The amendment to section 4(6) of the principal Act will allow the investigation committee to select so many people for the hearing to enable them to get a comprehensive picture of what happened.

Regarding amendments Nos. 10 and 11, the purpose of section 6 is to allow the investigation committee to hold meetings in public. It will also be able to hold joint hearings which can be attended by survivors and their representatives and respondents and their representatives. In both cases, the investigation committee will be entitled to work in this way whenever it considers it appropriate. To require it to agree the criteria for holding public or joint hearings with representative groups would undermine the independence of the committee and limit its discretion which it must still by law exercise in a reasonable manner. Only the commission can make a decision as to whether a hearing should be held in public based on the information it has on the content and the purpose of the hearing. For that reason I cannot accept these amendments.

The commission will act the same way as any other tribunal or inquiry. It will hear evidence on oath from witnesses who have relevant testimony to give and collect documentary material which it will analyse. When sufficient information has been obtained the inquiry members will assess the evidential material and come to conclusions. Only the commission can decide when it has enough evidence. It can only decide this as the hearing process progresses. Requirements will vary depending on the institution being investigated and the level of acceptance by the respondents on the results of the interview process.

Regarding amendment No. 13, section 7 is intended to allow the investigation committee to call before it people whose accounts it considers will provide it with the greatest possibility of arriving at the truth of what occurred. It is important that the commission has appropriate discretion in carrying out its functions. There are likely to be complainants whose allegations are incapable of leading to a finding of abuse. Requiring the investigating committee to agree in advance with representative groups the circumstances in which this will arise would be an impossible task and one which would hamper its work and independence. For that reason, I do not propose to accept this amendment.

As to what will happen in reality, the commission indicates it is its intention in respect of the great majority of the institutions it is investigating to call to give evidence everybody who wants to do so, but there are five homes which are simply too large to enable it to do that, namely Ferryhouse, Upton, Daingean, Letterfrack and Artane. The investigation committee proposes to hear every witness in every school it investigates with the exception of those five. Not only would it be impractical and difficult to do that in respect of those five homes but it would be unnecessary for it to get what it needs to establish the full picture of what occurred. That is what we are asking it to do. The investigation committee will call whoever its considers can give it the best picture of life as it was over that 30 year period. For example, it does not want to call 20 people from the 1930s and not call anybody from the 1940s or to call 20 people from the 1940s and not call anybody from the 1950s. It needs to have that kind of flexibility over the investigation. It needs to be able to establish the people who are willing to give evidence — that is the reason the first interview takes place — and how much of that will be necessary to hear fully. There is no quota system. The investigation committee can hear some evidence and then decide it wants to hear more, and the way we have dealt with this gives it the flexibility to do that. We are not being too specific on criteria because there might be a difference in how one would apply such to one school over another. The investigation committee aims to be as inclusive as possible to allow it to do its work properly. However, it must be pointed out that everybody concerned will be either heard by the investigation committee or interviewed by the legal team and many will undergo both processes. It is not a case that people will not be heard at all.

Photo of Olwyn EnrightOlwyn Enright (Laois-Offaly, Fine Gael)
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I am glad we have a little more information available on this Stage than was available on Committee Stage and we have learnt that the institutions this measure will apply to are Upton, Daingean, Letterfrack, Ferryhouse and Artane. The people who went to those institutions run the risk of being excluded. That is cold comfort to those who had the misfortune of going to one of those five institutions.

What the Minister said today in this respect is on the theme of what she said on the last occasion. She stated that Mr. Justice Ryan said it would be impossible to decide on criteria in this regard. This process involves Mr. Justice Ryan and the investigation committee comprising whatever number of people are involved. The members of the investigation committee will spend an hour with people to decide whether they will go through to a full hearing. What criteria will those members have in mind to decide on that? That is what should be outlined in the legislation. The members of the investigation committee, whether they number three, four, five or more, could all have a different notion of what they should be considering and what should form the criteria to allow a person to go forward to a full hearing. It is unacceptable such criteria is not specified.

The Minister said the absence of criteria allows flexibility within the system. That may be the case but it allows for uncertainty, unfairness, doubt and exclusion. That is what people are really concerned about in this regard. It is important to impress that point on the Minister. Flexibility is one aspect and I said that I do not consider there is a need to be so adamant about the criteria that it is inflexible but I want to provide for certainty, fairness and inclusion and ensure the greatest number of people will be included. To say it is impossible to decide on criteria to determine whether a person should go forward to a full hearing means that neither Mr. Justice Ryan nor the investigation committee will be able to do the job we are setting them to do. This is flawed legislation from that perspective. This is a point that I will have to press.

Photo of Paul GogartyPaul Gogarty (Dublin Mid West, Green Party)
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I return to what I said about Ms Justice Laffoy's resignation. I firmly believe that if the Department gave her the proper resources to carry out the work that we could have full hearings for everybody concerned within a reasonable period of time and we would not have this problem. If I was raped or assaulted or my school friend was thrown out a window — some of the accusations made in regard to Artane — I would like my story to be told. In such circumstances, no one should dare say to me that my story or my interpretation of one individual's role in an institution is not as important as that of somebody else. My experience and pain would be mine: I would have suffered it. Nobody could tell me that my pain was irrelevant. That will be the effect of this sort of selectivity. At the very least the Government should simply explain that because of a lack of resources and the time delay it cannot afford to go into the minutiae of every single experience and this is why we are doing it. One may not like it but at least it is a reason. At present, one does not know whether a person is prejudiced in terms of the role of the investigative committee, why it makes a decision and why person is excluded. Perhaps person is a little more aggressive. People may not be able to deal with their anger or their experiences. Maybe we do not want to have to deal with them in an inquiry. That is the reason criteria should be set out.

There is another reason, and this is the flip side of the coin, which is that individuals who have been affected by their experiences have accused people within the Minister's Department of being paedophiles. In a small number of cases people have been wrongfully accused of having committed acts on individuals who are making complaints. To find the absolute truth of what happened one needs to examine every story. There is always a case where one small chink of information sends the committee on a different route and gets additional information that may help to prove a person's innocence. The commission should be all-inclusive and all encompassing and, if not, proper criteria should be laid down so that one is seen to be fair and transparent and people can trust the process.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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This issue is essentially about power. People were put into institutions in positions of total powerlessness when things were done to them over which they had no control. Essentially we are trying leave as much power as possible with them in their dealings with the commission. In effect what is happening, if none of these amendments are accepted, is that they will not have the power and will not know why they are not being selected and will have no way of ensuring their story is told. If there are criteria as proposed in some of the amendments at least they will know the criteria and will be able to assess whether their story has a relevance to some of the criteria and they will be able to argue their case. At least this restores some of the power. Ideally, everybody should be able to tell his or her full story.

If we accept there has to be a certain amount of cutting back in the interests of allowing the process to go through in a reasonable timeframe, at least we should give as much power as possible to the survivors. In her response the Minister constantly speaks about what the commission is trying to achieve from the point of view of the commission and Mr. Justice Ryan whereas there is a need for a balance of power between the commission and those coming before it.

Photo of Seán CroweSeán Crowe (Dublin South West, Sinn Fein)
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It is important that there is openness and transparency in regard to how people are selected. The Minister mentioned Daingean, Letterfrack, Artane and so on and I presume the reason for that is the large numbers. However, there is still the problem of who will be selected. Will it be a person who cannot deal with his or her anger, a person who has a drink problem or a person who does not have a drink problem? How will the selection be made? Somebody mentioned survivors. Some people do not see themselves as survivors but rather as victims. That debate is also going on within the process. Some people see themselves as moving on while others are still caught in that trap in which they were left after coming out of these institutions. There will have to be transparency and some type of criteria but I do not know how one can arrive at that criteria. Certainly, there is a need for some mechanism where a person can tell his or her story or be told why he or she is not being given that opportunity. The mechanism as it is designed will not fulfil that need. There are many people out there who want to tell their story, but we are coming to the point where only some will be able to tell their story.

Some people who went through these institutions said they were fulfilled and that they did not see any of the problems going on around them. I presume they will be part of the sample selected. How will it rest with those who were abused when another person says it never happened?

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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Deputy O'Sullivan said I keep referring to the commission. This legislation is all about a commission. Were the commission to continue the way it was going, it would take another 11 years to finish its work. That is not just a cost factor from the point of view of the State. Many of the people who would need or want to be able to tell anything may not survive the 11 years. The longer the distance the worse the suffering becomes for people. Everybody in the House accepts that if the commission can get as complete a story as possible and as complete a picture as possible over that long period in a shorter timeframe of work that is what we should try to facilitate.

In his contribution Deputy Crowe put his finger on many issues by mentioning some people who would have different perspectives and may not be able to give evidence for different reasons. How could that possibly be stated in criteria? The reasons the Deputy has given may well be the reasons a person may or may not be able to tell a full story. Given that the commission has to get the complete picture it has to hear about the complaints and the experiences. It needs to hear about it for each institution over a number of different decades. It could happen that a group of people who were together at the same time in the same place with the same people are recounting the same experience. There may not be any benefit to the commission in hearing all those people tell their story. What it urgently needs is a person from a different timeframe within the same institution who has been dealing with different experiences to tell his or her story to enable the commission do its work. I have no doubt the commission will be sensitive to the people it is dealing with, recognising what they have been through, in selecting those to go forward.

The commission must have the flexibility to get the information it needs to produce the report it needs to find out the who, the what, the why the where because that is what we are asking it to do. I have not heard anybody say there should not be a process whereby some give the full story. The alternative is to let everybody continue to do it over a long period. That would be far too difficult for the victims and the survivors.

Photo of Olwyn EnrightOlwyn Enright (Laois-Offaly, Fine Gael)
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I have no difficulty with the commission finding out who, what, why and where. That is its function, but I want to know how it will decide, which is the most important aspect of this. For that reason I will press amendment No. 5.

Amendment put.

The Dail Divided:

For the motion: 56 (Dan Boyle, James Breen, Tommy Broughan, Richard Bruton, Joan Burton, Paul Connaughton, Paudge Connolly, Jerry Cowley, Seymour Crawford, Seán Crowe, Ciarán Cuffe, John Deasy, Jimmy Deenihan, Damien English, Olwyn Enright, Eamon Gilmore, Paul Gogarty, John Gormley, Tony Gregory, Séamus Healy, Joe Higgins, Michael D Higgins, Phil Hogan, Brendan Howlin, Paul Kehoe, Kathleen Lynch, Shane McEntee, Dinny McGinley, Finian McGrath, Paddy McHugh, Liz McManus, Olivia Mitchell, Arthur Morgan, Breeda Moynihan-Cronin, Catherine Murphy, Gerard Murphy, Denis Naughten, Dan Neville, Caoimhghín Ó Caoláin, Aengus Ó Snodaigh, Jim O'Keeffe, Brian O'Shea, Jan O'Sullivan, Séamus Pattison, Willie Penrose, John Perry, Pat Rabbitte, Eamon Ryan, Seán Ryan, Trevor Sargent, Joe Sherlock, Róisín Shortall, Emmet Stagg, Billy Timmins, Mary Upton, Jack Wall)

Against the motion: 65 (Noel Ahern, Barry Andrews, Seán Ardagh, Niall Blaney, Johnny Brady, Martin Brady, John Browne, Joe Callanan, Ivor Callely, Pat Carey, John Carty, Beverley Flynn, Mary Coughlan, John Cregan, Martin Cullen, John Curran, Noel Davern, Síle de Valera, Noel Dempsey, Tony Dempsey, John Dennehy, Jimmy Devins, John Ellis, Dermot Fitzpatrick, Seán Fleming, Mildred Fox, Pat Gallagher, Jim Glennon, Noel Grealish, Mary Hanafin, Seán Haughey, Jackie Healy-Rae, Máire Hoctor, Cecilia Keaveney, Billy Kelleher, Peter Kelly, Tony Killeen, Séamus Kirk, Tom Kitt, Conor Lenihan, Tom McEllistrim, John McGuinness, John Moloney, Donal Moynihan, Michael Moynihan, Michael Mulcahy, Charlie O'Connor, Willie O'Dea, Liz O'Donnell, Denis O'Donovan, Noel O'Flynn, Batt O'Keeffe, Fiona O'Malley, Tim O'Malley, Tom Parlon, Peter Power, Seán Power, Dick Roche, Mae Sexton, Brendan Smith, Michael Smith, Noel Treacy, Dan Wallace, Mary Wallace, Ollie Wilkinson)

Tellers: Tá, Deputies Kehoe and Stagg; Níl, Deputies Kitt and Kelleher.

Amendment declared lost.

Photo of Olwyn EnrightOlwyn Enright (Laois-Offaly, Fine Gael)
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I move amendment No. 6:

In page 7, between lines 11 and 12, to insert the following:

"(iv) in this matter, the criteria for deciding which cases may not proceed to full inquiry shall be published and made available to the public,".

Amendment put and declared lost.

Photo of Paul GogartyPaul Gogarty (Dublin Mid West, Green Party)
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I move amendment No. 7:

In page 7, between lines 11 and 12, to insert the following:

"(iii) where cases do not proceed to full inquiry this shall be on the basis of clear and publicly available criteria, decided in consultation with representative groups,".

Amendment put and declared lost.

Photo of Seán CroweSeán Crowe (Dublin South West, Sinn Fein)
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I move amendment No. 8:

In page 7, between lines 29 and 30, to insert the following:

"(c) and allow the day students of these institutions who also suffered abuse an opportunity to recount the abuse suffered.".

I tabled this amendment to allow other people, particularly day students, to recount the abuse suffered. I seem to remember from the Committee Stage discussion that the Minister said this provision is already contained in the Bill. Is that correct?

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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Yes.

Amendment, by leave, withdrawn.

5:00 pm

Photo of Olwyn EnrightOlwyn Enright (Laois-Offaly, Fine Gael)
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I move amendment No. 9:

In page 7, lines 41 to 43, to delete all words from and including "but" in line 41 down to and including "abuse" in line 43.

On Committee Stage I asked the Minister the purpose for the change that has been made in this section of the Bill. Now only somebody who has been convicted of an offence in respect of abuse will be named. This reflects a change which victims had not expected to encounter. The purpose of my amendment was to ascertain the reason for the change.

Photo of Paul GogartyPaul Gogarty (Dublin Mid West, Green Party)
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I support the amendment.

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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This issue goes to the heart of what the commission can and should be able to achieve. It was the view of the Government in establishing the commission that its inquiry should focus primarily on the wrong or malfunction in the system and not on individual wrongdoers. It should determine what happened at a general level rather than making findings of abuse in individual cases. It is not for the commission to assign blame or guilt for a specific case of abuse, which is for the criminal courts. Were the commission to do so, it could prejudice any criminal proceedings. It is important that we do not turn the work of the investigation committee into mini-trials given that approximately 1,300 cases are listed. This provision will allow the commission discretion in how it does it works by focusing not on individuals but on the general system to find out what went wrong in a system that allowed abuse to take place.

Photo of Olwyn EnrightOlwyn Enright (Laois-Offaly, Fine Gael)
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In light of the Minister's explanation, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Paul GogartyPaul Gogarty (Dublin Mid West, Green Party)
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I move amendment No. 10:

In page 8, line 28, after "public," to insert the following:

"following consultation with representative groups,".

Amendment put and declared lost.

Photo of Olwyn EnrightOlwyn Enright (Laois-Offaly, Fine Gael)
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I move amendment No. 11:

In page 8, line 28, after "public" where it secondly occurs to insert the following:

"and the criteria for deciding which meetings shall be held in public shall be agreed with representative groups and shall be published and made available to the public".

Amendment put and declared lost.

Séamus Pattison (Carlow-Kilkenny, Labour)
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Amendment No. 12 is out of order.

Amendment No. 12 not moved.

Photo of Olwyn EnrightOlwyn Enright (Laois-Offaly, Fine Gael)
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I move amendment No. 13:

In page 9, between lines 10 and 11, to insert the following:

"(b) a clear definition of what is meant by 'reasonably practicable' will be agreed in consultation with the representative groups and shall be published and made available to the public,".

Amendment put and declared lost.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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I move amendment No. 14:

In page 14, between lines 24 and 25, to insert the following:

"(3) The Commission or a Committee may invite a person who has given evidence or made a submission or statement to or before it before the passing of this Act to supplement that evidence, submission or statement having regard to changes made to the functions or procedure of the Commission or a Committee by this Act.".

This amendment would allow a person to be brought back before the commission or a committee of the commission. A person may have already given evidence and the commission may now decide to deal with all the people in a particular institution as a group. It may be relevant for such a person who was in that institution and has already given evidence to return to give evidence. I believe the amendment is self-explanatory.

Photo of Olwyn EnrightOlwyn Enright (Laois-Offaly, Fine Gael)
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I support the amendment, which, as Deputy O'Sullivan has said, is self-explanatory. It is important in light of the changeover in personnel in charge of the commission. I hope the Minister will be able to consider the amendment in this context.

Photo of Seán CroweSeán Crowe (Dublin South West, Sinn Fein)
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I support the amendment. The last discussion we had on the matter centred on the question of criteria etc. Since that discussion I spoke to a person who had already appeared before Mr. Justice Ryan. We have not been told the criteria he is using. It is clear that somebody with evidence should be given the opportunity to return and give that evidence.

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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The commission and each of the committees has the power to invite further evidence from a person who has already appeared before or made a submission to it. As they already have that power, the amendment does not add anything.

Amendment, by leave, withdrawn.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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I move amendment No. 15:

In page 14, between lines 33 and 34, to insert the following:

"'educational service' means a service provided by a recognised school or centre for education (within the meaning in each case of the Education Act 1998) or by a person or body specified by the Minister who provides a programme of education, training or instruction;".

This amendment inserts a definition of education services into the section that deals with the body that administers educational grants to people who have been abused. It seems we need some definition of the educational services to be covered. There is a level of dissatisfaction with the administration of the education fund. The Minister will probably tell me that is why she is setting this up on a statutory basis, and I support that, but there will be a level of subjectivity in decisions made by the board unless there is a definition. I would like the definition to facilitate the various kinds of educational experiences that people feel are appropriate to themselves. This all goes back to our original debate on the need for criteria. People need to know why they are being refused and that it is not due to some arbitrary decision by people on the board.

What will be a quorum on the board? Can decisions be made by a relatively small number of people? There is a certain need for an assurance that those making the decisions will be entirely objective and that every victim will have an equal chance of getting support under this fund. I am speaking in the context of those who have had such experiences. I appreciate that this is a new body, but people's experience needs to be taken into account. These are the people who are directly involved and who would have come to public representatives and given us their views. They need to know that decisions will be made in a proper fashion on the fund. It is a sizeable amount of public money but it is finite. A definition of what constitutes an educational service would, therefore, be appropriate.

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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I support this important amendment. The definition adds to the legislation and I think it should be broadened. When dealing with issues such as grants and funds, this definition is very important. When discussing these amendments, we must ensure that the voices of the victims are heard.

Photo of Seán CroweSeán Crowe (Dublin South West, Sinn Fein)
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I support the amendment. There is a need for a definition. I have received many e-mails on this subject. There is a concern about the money spent on some of the so-called educational projects. The close association of some people with projects means that a definition would make sense. People need to be comfortable about how public money is being spent. It is not infinite and it is important that it is used for the greatest good.

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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This education fund is worth €12.7 million. It is a substantial amount of money and it should go a long way to meeting the educational needs of the survivors and their families. The needs of each individual will be different so it would be wrong to specify in a narrow fashion which courses should be funded. The independent board will publish the criteria for the payment of grants and make information available on the range of educational services for which grants will be payable. However, if it is too prescriptive we may end up excluding people again. On Committee Stage, I gave the example of the person who got a grant to take driving lessons. That provided the person access to employment and so on. One might not think of driving lessons as an educational opportunity, but it may well have been the education that such a person needed to enable him or her to get a new opportunity in life.

The independent board will take on board each application and the needs of the individual. With that amount of money, the board should be able to meet a wide variety of needs. People have done traditional educational courses, but they have also done counselling courses, career training courses, pilot training and so on. The scheme should be flexible enough to allow for that kind of course to be taken.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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I can see the point the Minister is making. We do not want to be too prescriptive, and driving lessons may be the very thing that someone needs, but in some cases people may need other supports like child care, in conjunction with an educational course. Such flexibility should be granted. At the same time there is a danger in going too far in the other direction and leaving it too open. There should be a system of review to tackle dissatisfaction with the spending of the fund to rein in the board. I would still prefer a specific definition of educational services, even if it was broad. In the absence of that, there should be a way of ensuring that the Oireachtas has an influence if the money is being spent badly and rapidly. If the Minister is not accepting my amendment, will she address that possibility?

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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There is a review system within the board. Should someone not get satisfaction there, he or she can go to the Ombudsman. The board will have to compile an annual report, which must be laid before the Houses of the Oireachtas. That will give us an opportunity to point out if the fund is being spent too quickly. Laying the report before the Houses gives us an extra safeguard.

Amendment, by leave, withdrawn.

Amendments Nos. 16 to 18, inclusive, not moved.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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I move amendment No. 19:

In page 15, between lines 28 and 29, to insert the following:

"(7) The First Schedule to the Freedom of Information Act 1997 is amended at paragraph 1(2) by inserting 'the Education (Former Residents of Certain Institutions for Children) Finance Board' after 'the Defence Forces,'.".

This amendment seeks to ensure the education finance board is included in the Freedom of Information Act 1997. The Minister told me the appropriate way to make provision would be under the terms of the Act and I seek a commitment from her that it will be done. If I do not receive it, I will press the amendment as I wish to be sure when I leave the House that the board will be covered by the Freedom of Information Act.

Photo of Olwyn EnrightOlwyn Enright (Laois-Offaly, Fine Gael)
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I support amendment No. 19. I have received correspondence from members of Irish SOCA in relation to this. The amendment is also related to section 28(4) and the Minister's amendment No. 21. People are confused about whether the board will be included as well as about whether the Ombudsman will be able to intervene.

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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I understand the appropriate way to make freedom of information provision is for the Department of Finance to include it on its list. As soon as the board has been established, we will ask the Department to include the board in the list of bodies covered by the Freedom of Information Act.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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Is that a categorical assurance?

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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Yes.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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Can it be done immediately?

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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No. The appropriate mechanism to ensure the board is included is to request the Department of Finance to provide for its inclusion in the next list of additions to the Schedule to the Act. It will be done by statutory instrument rather than by primary legislation. A similar issue arose in the case of the Grangegorman Development Agency Bill. While individual Departments submit lists of bodies to be included, the Department of Finance makes the determination. As soon as the board is established, its name will be submitted to the Department of Finance for inclusion in the list.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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I will take the Minister's word on trust.

Amendment, by leave, withdrawn.

Amendment No. 20 not moved.

Bill recommitted in respect of amendment No. 21.

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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I move amendment No. 21:

In page 18, to delete line 10 and substitute the following:

"(b) that measures or specified measures be taken to remedy, mitigate or alter the adverse effect of the action, or

(c) that the reasons for taking the action be given".

Amendment No. 20 seeks to ensure the Ombudsman has sufficient powers to investigate any complaints made to her office. Following completion of Committee Stage, it was brought to my attention that the amendment as drafted could be seen to limit the scope of the Ombudsman's ability to make recommendations. As this was not my intention, I have brought forward amendment No. 20 following consultations with the Parliamentary Counsel and the Office of the Ombudsman to remedy any difficulties.

Photo of Olwyn EnrightOlwyn Enright (Laois-Offaly, Fine Gael)
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I only received the lengthy correspondence on the relevant provisions today. Can the Minister confirm that the effect of her amendment will be to ensure the education finance board will come under the remit and jurisdiction of the Ombudsman? It seems there has been correspondence among the Ombudsman's office, some victims groups and the Department over the last fortnight. I have received the correspondence from Irish SOCA and the ombudsman but not the Minister's. There appears to be confusion in some minds about what exactly will be achieved by the Minister's amendment. Irish SOCA wishes to ensure the education finance board will be part of the Ombudsman Act. Can the Minister confirm it will?

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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It will.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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I have received the same correspondence as Deputy Enright. I understand the Office of the Ombudsman wanted to add the education finance board to Part 1 of the First Schedule of the Ombudsman Act. That is not exactly what amendment No. 21 provides. The powers provided to the Ombudsman by the amendment would have been stronger if they were provided in Part 1 of the First Schedule to the Act which would give additional powers on maladministration etc. Can the Minister clarify if that is what the Office of the Ombudsman wanted? While the statutory instrument approach the Minister described in respect of the Freedom of Information Act may be envisaged, it would be preferable to provide powers under the Schedule to the Ombudsman Act to place the board fully under the Ombudsman's remit.

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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The Parliamentary Counsel advised the adoption of the approach set out in the amendment which means the Ombudsman will not have to carry out a preliminary inquiry before a direct or full inquiry. The answer to Deputy Enright's question is that the board will be covered by the Ombudsman Act.

Photo of Seán CroweSeán Crowe (Dublin South West, Sinn Fein)
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Will that happen immediately?

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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It will happen as soon as the board is established.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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We must tease out the issue further as it is very complicated and relates to the Ombudsman Act, the Bill and the Commission to Inquire into Child Abuse Act. I am not sure the amendment achieves fully our aim of ensuring the board is covered as fully by the Ombudsman Act as any other body over which her office has jurisdiction. While we cannot do more today, we may well have further correspondence on the matter by the time the Bill goes before the Seanad. It is up to us to get our Seanad spokespersons to pursue the matter at that point. Further clarification is required on the powers set out in amendment No. 21.

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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I am advised the approach in the amendment is best. The Ombudsman has already investigated a matter arising in the education board. The amendment will probably strengthen her hand and allow her office to go further. She has already been doing the work. If further information is available, I will provide it to Deputies.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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While I do not want to vote against the amendment, which is better than what was previously provided, it may well need to be re-examined in the Seanad.

Amendment agreed to.

Bill reported with amendment.

Amendments Nos. 22 to 25, inclusive, not moved.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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I move amendment No. 26:

In page 20, between lines 32 and 33, to insert the following:

"34.—Nothing in the Residential Institutions Redress Act 2002 prohibits an applicant from disclosing the fact that he or she made an application to the Board and the name of the institution, the category of abuse and injury and the amount of the award that are referable to that application.".

As everyone knows, very little information can be disclosed about a person's appearance before the board due to prohibitions set out in the Residential Institutions Redress Act 2002. Amendment No. 26 seeks to amend the Act to allow people to disclose the fact that they have made applications to the board and the name of the institution, category of abuse and injury and amount of award referable to such applications. I am not asking for people to be allowed to provide a great deal of information. Many would like to say more about their experiences with the redress board. Permission to disclose the information set out in the amendment would allow them to at least say something. Amendment No. 26 would also serve to provide the public with some information on the operation of the redress board.

Much dissatisfaction has been expressed by various sources about the experience of going before the board.

Some people consider — this has been indicated to me — that their experience was similar to being abused again. I do not say that lightly. Many people have had very bad experiences. They felt they were not given enough time and that the aim was simply to categorise them so as to determine how much money they would get. The overall impression was that the board did not want to hear much from people. People are frustrated that, when they appear before the board, they cannot talk about what happened.

While the amendment does not go very far in terms of what people would be allowed to talk about, it would at least allow them to provide some information. If the Minister does not accept the amendment, which is probable, I urge her to take on board some of the representations coming to us in terms of the experience of people who have appeared before the board. Perhaps she could reconsider the legislation and the operation of the board to see if she could make the experience of appearing before the latter more positive. Many people are disturbed at having to go before the board and, subsequently, by their experience of so doing. This is not something I dreamed up, it has been indicated to me directly by people who have undergone the experience.

Photo of Olwyn EnrightOlwyn Enright (Laois-Offaly, Fine Gael)
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This is a reasoned amendment. People have also spoken to me about the trauma they experienced in appearing before the redress board, which is the opposite to what was intended when the Residential Institutions Redress Board was established. What is being sought in the amendment is limited. It avoids calling for the naming of any abuser and, in that sense, it is still protecting the identity of any abuser or alleged abuser. However, it deals with the institution, which is important, because there may have been other people in that institution who were abused.

We must bear in mind that the redress board is not a court involving conviction. It is important that people should be allowed talk about the category of their abuse in broad terms and about the amount of the award. The difficulty people have in coming out to a wall of silence is that they do not know if their experience is limited to them or if it is part of a broader experience. Perhaps if they knew and they could talk to other people who had undergone the same experience, they might not feel as traumatised or victimised because they would realise that it was not just something which happened to them and that it was the way the board operated.

Due to the fact that we are operating under a cloak of secrecy in terms of the Residential Institutions Redress Board, people do not have any comparisons to make and this makes them feel isolated. It is difficult for them to decide if their award is appropriate. We have seen a few instances of people going to court after an award had been made. However, this was a shot in the dark to some extent. If people knew of the experiences of others, perhaps they would see that the decision made in regard to them was appropriate. The amendment does not go very far but it addresses in some way the issues I have raised.

Photo of Paul GogartyPaul Gogarty (Dublin Mid West, Green Party)
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Unfortunately, I cannot comment on amendment No. 23 because it has been ruled out of order. Will the Minister take cognisance of the fact that the various groups must have proper representation? There should be no conflict of interest. Concerns have been raised about payments to members, that there might be a little clique which would be seen to work with the Department of Education and Science as opposed to other groups such as Irish SOCA which has taken to opposing the Department in some instances. The operation of the board and the selection of its members should be examined carefully and with great scrutiny.

I support amendment No. 26. As stated on Committee Stage and previously in the House regarding payments made by the redress board, rumours have emanated that the highest figure is X amount but we do not necessarily know the position. People are not allowed to indicate exactly what they were paid and why. If, as Deputy Enright stated, they could do so in some instances, they would feel more at peace. People already feel that the State has done them a great injustice. For them to consider that the settlement they have been awarded is paltry and that other people in similar situations are getting more money perpetuates that sense of injustice.

If people were able to talk about the amount they received and the category of their abuse without naming abusers, it could enhance the legislation. This returns to my point about trust in the Bill rather than the thrust of the Bill. One must have trust in legislation. Anything that promotes transparency is good. I support the amendment purely in the interests of survivors being able to express to other survivors how the process worked for them.

Photo of Seán CroweSeán Crowe (Dublin South West, Sinn Fein)
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I support amendment No. 26. People are already telling their stories regardless of whether they are prohibited from doing so by the Act. Many stories have appeared in the media. A man was on hunger strike outside this building because he rightly felt that what was happening to him was unfair. There were also many other cases. We were told that the awards would be compatible with High Court awards but that is clearly not the case. There is a great disparity between what people are getting from the redress board and what they would get from the High Court. People are advised by lawyers to go down this route and then there is nothing they can do. They cannot appeal the amount awarded.

The amendment deals with the reality of what is happening. People are talking about their experiences of what they went through. It would be to the benefit of the process that they would be allowed to do so. It is part of the healing process. If people get a rough time appearing before the board or if they feel they were not listened to, they should be allowed to say that in public. Why should there be a veil of secrecy?

There does not appear to be any compatibility between the awards given by the board and what the High Court would award. A number of individuals have revealed to me the amounts they were offered. They were paltry when one considers what these people went through. I do not know what criteria the judge laid down for this. It would be important for people to be able to talk about the institution concerned.

The Minister referred to sampling from such places as Letterfrack, Artane and Daingean. People who were in those institutions are concerned that these are places where serious abuse took place. Allegations of serious institutional abuse in these places range from rape to possible murder. People were seriously damaged in these larger institutions. It is important that people would be allowed to speak about their experiences. The amendment is a positive one.

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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It is important to state that the confidentiality clause in the Residential Institutions Redress Act refers specifically to an application to that board, to any dealings with it, to the results thereof and to the awards made. It does not in any way preclude an individual from talking about their experiences within an institution or sharing that information with others. This privacy has suited a significant number of people.

We are conscious of the fact that some people have experienced difficulties. Officials at the Department of Education and Science are involved in discussions with the survivors' groups about this. We must bear in mind that the board is independent.

If we can help the survivors' groups, we will obviously try, bearing in mind the independence of the board, to do so.

The privacy clause protects not only those who appear before the commission, namely, the survivors, but also other persons who might be named. It protects them from being hounded by other sources, such as the media, that want to know what happened and how much was awarded. It affords such people privacy so that they can deal with the matter in their own way.

The board does not make any findings of fact, nor does it deal with culpability. It does not consider an individual case or apportion blame to any individual group. It is important, therefore, that cases are not dealt with in public. The board publishes an annual report so information can be made available in a general sense.

Contrary to what Deputy Crowe said, there appears to be no disparity between awards made by the board and those made by the High Court. The awards made by the board have ranged from nil to €300,000. This is quite a range. A person can refuse what is offered and go to the High Court. This protection still exists.

We understand that the vast majority of people prefer the privacy arrangement that is in place. If there is a way in which we can help these people even more while protecting their privacy and not revealing the amounts awarded, while bearing in mind that the board is independent, we will try to do so.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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I appreciate the Minister's statement that her Department is taking an interest and is involved in trying to address some of the issues that have arisen while respecting that the board is independent. These issues are serious for some and it is important that the Department have a role.

As other Deputies stated, my amendment is quite conservative. It is not seeking full disclosure but the disclosure of very limited information. It puts the onus for disclosure on the applicant so that he or she will not have to have information on himself or herself circulated if he or she does not want it to be circulated. If my amendment were accepted, it would be up to the applicants to disclose the fact that they made the application, the name of the relevant institution and the amount awarded.

At present, people are isolated. They do not know if their experience or award is comparable to that of others in their position. This makes it very difficult for them to establish solidarity with others who have had the same experience or to decide whether they have received a fair award.

My amendment is quite modest and I intend to press it because it is important to make this concession to people who have appeared and who will appear before the board in respect of what they can disclose. The current arrangement is causing considerable dissatisfaction and distress.

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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Allowing a survivor to do this would allow him or her to state that he or she was in a particular institution, made his or her claim and was awarded a stated amount of money. This would be apportioning blame to the institution, although the institution would not have had an opportunity to protect its good name before the board. We must remember that the institution is part of the process. Since the board is not in the blame game, both sides must be protected.

Photo of Paul GogartyPaul Gogarty (Dublin Mid West, Green Party)
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The board does not make a payment for nothing. It does not apportion blame in a specific sense but obviously blame in a general sense must be seen as being attributed.

Photo of Mary HanafinMary Hanafin (Minister, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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The board does not deal with individual people or particular incidents; it just takes on board what survivors have to say. If the amendment were accepted, each case would turn into a mini-trial because the findings would be public. Nobody wants this to happen.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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I do not accept that. Everybody knows that the board does not apportion blame or conduct a trial in any sense and that it assesses what is said and makes a decision on payment. I do not understand why naming an institution would automatically be considered as apportioning blame. We know payments are being made to people who resided at one of a list of institutions. I forget how many are on the list but it is a finite number. Therefore, every payment involves apportioning blame to an institution on the list. I do not understand how the naming of an institution implies that there would have to be a right to a full court hearing.

Amendment put and declared lost.

Amendments Nos. 27 and 28 not moved.

Bill reported with amendments, received for final consideration and passed.