Seanad Éireann - Volume 169 - 22 March, 2002

Residential Institutions Redress Bill, 2001: Committee and Remaining Stages.

SECTION 1.

  Government amendment No. 1:

    In page 4, subsection (1), line 19, to delete “a Minister of State,”.

  Minister for Education and Science (Dr. Woods): This is a technical correction. The reference to a Minister of State is not necessary. A Minister of State holds his or her authority in the first instance through his or her Minister. Accordingly, the inclusion of the word “Minister” in the category of public body, by extension, covers a Minister of State. The amendment has no substantive effect on the Bill and is included in the interests of precision. It is purely technical.

  Amendment agreed to.

  An Cathaoirleach: Amendments Nos. 2 and 3 are related and may be discussed together.

  Government amendment No. 2:

    In page 4, subsection (1), line 33, to delete “14.” and substitute “14;”.

  Dr. Woods: These amendments are simply technical, solely to correct very minor errors in drafting. For instance, in the case of amendment [1027] No. 3, there is a semi-colon where there should be a full stop.

  Amendment agreed to.

  Government amendment No. 3:

    In page 4, subsection (1), line 35, to delete “cohabiting;” and substitute “cohabiting.”.

  Amendment agreed to.

  Section 1, as amended, agreed to.

  Sections 2 and 3 agreed to.

  SECTION 4.

  Mr. Costello: I move amendment No. 4:

    In page 5, line 45, to delete “a hospital” and substitute “an institution”.

The word “hospital” gives the impression of a caring service. In the context of this legislation, there were institutions which did not provide a caring service. The broader category of “institution” would cover all of them. It would be in keeping with the legislation that it be referred to as an institution. The psychiatric hospitals and institutions dealt with services which very often were not in keeping with what one would expect from a caring hospital. They very often did what one would expect the most crude institutional establishments to do.

  Dr. Woods: The section states:

    The Minister may, by order, provide for the insertion in the Schedule of any industrial school, reformatory school, orphanage, children's home, special school which was established for the purpose of providing education services to children with a physical or intellectual disability or a hospital providing medical or psychiatric services to people with a physical or mental disability in which children were placed and resident and in respect of which a public body had a regulatory or inspection function.

The reference to hospital relates only to the provision of medical or psychiatric services and I believe the change is not necessary. By definition, a residential institution which provides such services is a hospital irrespective of whether it bears the name. I am satisfied that the broadest range of facilities is now available for inclusion by order if they have not appeared in the Schedule, including orthopaedic hospitals, sanatoria and psychiatric care facilities. The Bill is adequate as it stands and the amendment is not necessary.

  Amendment, by leave, withdrawn.

[1028]

  Dr. Henry: I move amendment No. 5:

    In page 5, subsection (1), line 46, after “disability”, to insert “or mental illness”.

I welcome the Minister to the House. I also welcome the Bill which has been greatly improved since it was first drafted. The Minister has made considerable efforts to accommodate all the people who have been damaged by the residential institutions. I would be very glad if he would accept my amendment. I am sure it was accidental that mental illness was not included. While hospitals providing psychiatric services may provide them for people with mental disability, they are much more likely to provide them for people with mental illness. Mental illness is not as common in children as it is in adults but it exists. One of the problems we have had is very poor facilities for giving residential care to children with mental illnesses. They frequently have had to be placed in adult units. Unfortunately, this is where some of the people who have spoken to me were subjected to abuse.

  This continues even today. I am in correspondence with the Minister for Health and Children about a 12 year old child who has had serious mental illness for the past four years. Despite receiving good out-patient care the consultant psychiatrist involved feels she needs in-patient care. There are only six beds available for children in this region. The consultant psychiatrist is loath to place such a child in an adult psychiatric institution. Unfortunately, that had to happen. I would be glad if the Minister would accept this amendment which includes the people who are most likely to go to psychiatric hospitals, namely, those with mental illness.

  Dr. Woods: I take the Senator's point regarding children who suffered from mental illness as opposed to those with a mental disability. In this instance, disability is to be understood in its legal sense. To be under a disability includes suffering from a mental illness as well as being under an intellectual disability. I am satisfied that the Bill as it stands provides redress for victims of abuse in a wide variety of residential institutions, including hospitals for people suffering from mental illness. I do not have an objection to adding the words “or mental illness”, but from a legal and drafting perspective, it is not necessary. I do not think it will do any damage to the Bill and I am prepared to accept the amendment if the Senator presses it.

  Dr. Henry: I would be most grateful if the Minister accepted it. Whatever may be said about legal terms, in common parlance there is a difference between mental disability and mental illness. It will make a big difference to those who feel they suffered from a mental illness and were put in such an institution. Those who were put in such institutions are of greater importance than how the section may read legally.

[1029]   Dr. Woods: I am assured it will do no damage to the Bill. We are really dealing with legalities. I am satisfied this is covered legally. However, I understand it will make people happier to see this in the Bill and I will accept the amendment.

  Dr. Henry: I am extremely grateful to the Minister, as will be the small number of people it affects.

  Amendment agreed to.

  Section 4, as amended, agreed to.

  Sections 5 and 6 agreed to.

SECTION 7.

  An Cathaoirleach: Amendments Nos. 6 to 8, inclusive, are out of order.

  Amendments Nos. 6 to 8, inclusive, not moved.

  Mr. Costello: I move amendment No. 9:

    In page 7, lines 29 to 33, to delete subsection (3).

I understand that amendments Nos. 6 and 7 have been ruled out of order because they may lead to a cost on the Exchequer. However, amendment No. 8 seeks to have the Minister report to the Houses of the Oireachtas. That does not seem to be a cost on the Exchequer. May I have some clarification on that matter?

  An Cathaoirleach: I was advised that amendment No. 8 is out of order as it involves a potential charge on the Exchequer. It is something I can discuss further with Senator Costello.

  Mr. Costello: Perhaps we could deal with it on Report Stage. A report to the House by a Minister on any matter is not a potential charge on the Exchequer.

  An Cathaoirleach: I request that Senator Costello accept my ruling on amendment No. 8.

  Mr. Costello: It is very hard to go against the Cathaoirleach's ruling.

  An Cathaoirleach: I will explain the matter further.

  Mr. Coogan: I was not informed that amendment No. 6 was to be ruled out of order.

  An Cathaoirleach: The amendment was in Senator Burke's name and the notification was sent to him.

  Mr. Coogan: My understanding was that it was included and I have just been told that it has been excluded. Can we deal with it on Report Stage?

  An Cathaoirleach: It cannot be dealt with on Report Stage. If it is out of order on Committee Stage, it is out of order on Report Stage. I am [1030] sure the Senator will find an opportunity to make the point on the section.

  Mr. Costello: I am referring to someone who has already received an award from a court or a settlement of an application relating to abuse which occurred in an institution listed in the Schedule. There is concern that the matter may have been dealt with earlier without full information being available or that a person might have accepted an award from a court out of keeping with what the proposed board might grant. Much information, such as files which were not available, has come into the public domain and a new attitude is abroad, all of which colours the manner in which decisions are made and awards granted in compensation by the board. It is inappropriate that anyone, who appeared before a court or accepted a settlement in different circumstances, should be excluded from access to the board.

  I want to see the section which prevents people, who have been before a court or accepted a settlement, from appearing before the board deleted. All of the 30,000 young people in institutional care from the 1930s to 1970 should be entitled to appear before the board if they have grounds for doing so. We should be open and generous because we want to put this matter to rest, give people the opportunity to make their case and not leave anyone outside with a grievance. Certain people will feel aggrieved if this section stands as they will not have the opportunity to access the board.

  Dr. Woods: The Senator proposes that section 7(3) be removed which would permit people to make an application to the redress board when the case had already been the subject of a determination preceded by a hearing in the courts. To allow this would provide that a case, which was not established in court, could receive compensation from the redress board. This would greatly discredit the compensation scheme and encourage unmeritorious claims. It would also be undesirable that the redress board should second guess the judicial process. It is a fundamental principle of our democracy that courts provide the ultimate route to redress. The purpose of the Bill is to provide an intermediate route which will meet the needs of the vast majority in order that they are not put to the expense and worry of litigation.

  I am conscious, however, that this process is subordinate to the courts, not the other way round. Potential litigants have nothing to fear in turning to the redress board as a first route and nothing in the Bill could remove his or her right to redress through the courts.

  Mr. Costello: The Minister has not addressed the point. He said the court is the ultimate process through which to deal with matters, but, if that were so, that would be the way forward rather than passing this legislation. I thought the [1031] whole purpose of the legislation was to get away from the adversarial nature of the court because, very often, a court is not about justice but about arguments, put-downs and money, and access is enabled because of financial means rather than open access. It is not accurate to say that the legal process is the ideal or ultimate one.

  If the Bill is to work, it must be concerned with getting to the truth, not involve an adversarial contest. That is what occurred in previous cases that went through the courts when people presenting their cases may not have had the necessary but expensive legal expertise at their disposal. We are presenting a forum in which a person has a level playing field to get to the truth about what happened to him or her. Therefore, if someone has already gone to the courts, whether the case was upheld, it is irrelevant. The point is that someone may believe that he or she has a case to bring to the board. The amendment proposes that, irrespective of what may have happened before, such a person should be able to access the board. The Minister should not put a barrier, for whatever reason, in front of such people or talk about the ultimate legal process as a way of addressing matters. He should agree that subsections (2) and (3) should be deleted, although the former is not specifically mentioned in the amendment.

  Ms Ormonde: I do not understand where Senator Costello is coming from. He stated courts can be argumentative, are concerned with money and put-downs. No one wants that as we want everyone to get fair play, which is what the court system guarantees. To suggest that the courts put anyone down is a disgrace.

  Mr. Costello: I was referring to the lawyers. It is an adversarial system that concentrates on putting people down.

  Ms Ormonde: The Senator stated the courts are concerned with put-downs. I took down the points that he made. I am very disappointed to hear such thoughts expressed.

  The amendment would give certain people a double bite of the cherry. Is that the right way forward? This is a fairer method of dealing with the issue and I welcome the Minister's proposals. This new forum will give people a chance to express their views and have their cases heard with empathy, which I welcome. If the courts have already turned down a particular case, it cannot be brought back again to be argued in another forum.

  Mr. Costello: The Senator is missing the point of the amendment.

  Ms Ormonde: I am not. I am good at picking things up and for the Senator to suggest that I am missing the point is outrageous.

[1032]   Mr. Costello: The Senator is inaccurate. The Minister can defend himself.

  An Cathaoirleach: Senator Ormonde should address the Chair.

  Dr. Woods: This section refers to a case which has been argued fully in court. It deals with the instance of a case which might not have been fully argued in court and states in subsection (7) that a determination referred to in subsection (3) shall not include a determination concerning the Statute of Limitations or an interlocutory matter, that is, where a case was not fully argued. The Senator's concerns, therefore, are covered in part. The danger is that we would create a situation where a person could go to court in the first instance and then go to the redress board if he or she was unhappy with the court. There is also the matter of second guessing the courts.

  We are trying, however, to establish circumstances in which the cases in question would be dealt with in an effective, speedy way. Any change in circumstances would be considered and people would be open to make a case should that emerge. As it stands, the section meets the principal requirements.

  Mr. Costello: I will not labour the point but I am disappointed with the Minister's response. I know what he is referring to in section 7(7) of the Statute of Limitations, which allows much leeway in respect of people going to the courts, but I am referring to cases on which a court has already made a determination. An entirely different atmosphere and set of circumstances pertained in the past, as well as a major denial of responsibility. Until recently, there was a view abroad that this type of criminal behaviour did not take place in these institutions. Few people believed it did because everything was swept under the carpet. They did not believe that politicians could be corrupt, that banks could steal money from their own customers or that there could be corruption within the church. They did not believe that Christian Brothers, priests or other people charged with the care of children could perpetrate terrible cruelty on them. A number of cases would have been taken in that atmosphere when a court of law and the whole adversarial system would not have been sympathetic in any circumstances.

  The amendment does not compel anybody who has been before a court to go before the board, but it leaves the way open for them to do so if they still have a grievance or believe they did not get adequate compensation. A small number of people have already done that because they have written to me. I tabled this amendment because a small number of people believe they got a raw deal when they went through the legal process.

  The Minister has made a number of amendments to date in the spirit of the legislation. He was kind enough to accept Senator Henry's amendment, which I agree has improved the [1033] legislation, and I ask him now to allow anybody who wishes to come before this tribunal to put a case to the board on the manner in which they were treated to do so. I am not saying many people will take up the offer but the people who have written to me would be anxious to do that.

  Dr. Woods: This subsection only applies where a full case has been argued in court and on which a determination has been made by the court. Subsection (7) covers situations where there was partial discovery or some other measure in court, as well as the question of the Statute of Limitations. The amendment would create more difficulties than it would resolve. Therefore, I cannot accept it.

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

  Amendment declared lost.

  Question proposed: “That section 7 stand part of the Bill.”

  Mr. Coogan: While I realise the earlier amendments were ruled out of order because the House cannot impose a charge on the Exchequer, this issue is pivotal in terms of the legislation. Everyone here is in agreement with the thrust of the legislation but I hope the Minister will be as open to my proposals as he was to Senator's Henry's earlier.

  I remind the Minister that on 11 May 1999, the Taoiseach, Deputy Bertie Ahern, apologised on behalf of the State for the non-intervention in cases of childhood abuse. He did not apologise only to those who were abused between 7 p.m. and 7 a.m. but to everybody who suffered such abuse. That is the principle underlying my amendment. On 8 March this year the Minister stated: “A way must be found to deal with day school cases.” A great deal of time has passed since then but there has been no move forward in that respect.

  I want to outline the reasons behind the thrust of the amendments that were ruled out of order. The victims were abused by persons whose position in the school had been sanctioned by the State which has given the apology. The abusers were paid by the State and the teachers and principals in the day schools operated under national school rules established by the Department of Education and Science. School attendance is mandatory and during the hours a child is required to remain at school the principals and teachers act in loco parentis and are, therefore, an extension of the State, be they day or residential pupils.

  The argument the Minister puts forward against including day school victims in the Bill is based on the fact that a child at school has the opportunity to complain about the abuse when they get home, but the majority of children who were abused would have felt they had done some[1034] thing wrong and, in the majority of cases, would not have raised the issue at home. Many cases went unreported, yet the Minister wants to exclude these victims from the legislation. Having regard to the respect with which authority figures were held at the time, a child making an allegation against a teacher would not have been believed and, in all probability, would have been punished.

  Pursuant to the new comprehensive approach announced by the Taoiseach on 11 May 1999, the Commission to Inquire into Child Abuse Act, 2000, established a commission to investigate child abuse in institutions and to enable persons who suffered such abuse to give evidence to the committees of the commission. Included in the definition of “institution” in that Act is “a school”. In the context of the apology made by the Taoiseach, the new comprehensive approach to the victims of sexual abuse and the presentation of the 2001 Bill, it is irrational, unjust and discriminatory to exclude victims of sex abuse in any day schools from provisions and benefits that would accrue to residential pupils in the Bill. At all times the conduct was criminal and the victims of crime should not be discriminated against in the manner envisaged by the provisions of the Bill. If one was attacked on the street and sought redress, would that redress be based on the income one earned, one's occupation, the school one attended or whether one was a day or residential pupil? Surely the law is intended to be equitable to everybody in the State, irrespective of those factors. The State is vicariously liable for the tortuous acts of the teachers and is liable to victims of such abuse.

  I want to quote from a debate on Lister & Others v. Hesley Hall in the House of Lords on 3 May 2001 which states that the argument that the state is not vicariously liable for the acts of the teacher is rejected. It further states that the state paid for the salary of the teacher, created and monitored the rules and regulations under which the teacher performed his duties and exercised a fundamental control over the school and teachers, the manager of the school being placed in the position of a trustee of an educational trust. In another case, McEneaney v. Minister for Education 1941, the Department of Education was the de facto employer. The perpetrators of abuse in day schools were, as in the case of children in residential care, subject to inspection and regulations by a public body. Due to its negligence and a breach of duty, the State failed the victims while they were in school and now the State is failing the victims again.

  The only avenue open to day pupils who are excluded from this Bill will be to seek redress in the civil courts. This is not the route they should have to take. They are equal in the eyes of the State to everybody else and should be treated equally. However, the lack of provision in this Bill for those day pupils indicates there is one law for some people and another law for others.

[1035]   Mr. Costello: Senator Coogan put the case very well for including day pupils in this legislation. The Minister agreed to sympathetically examine this matter. I cannot understand why he has not agreed to include day pupils in the final legislation. Ironically, the last point made by Senator Coogan – the Minister also made a point about the civil courts – is that the civil courts will be the only form of redress for the people in this category. They will have to go through the full gamut of the legislation and the time and expense involved in going through the adversarial system, if they are to get redress. This is discriminatory. The Minister is treating one category of victim differently from another, although they were in the same institutions under the same administration and management and abused by the same people. How can he put through legislation of this nature? It is a disgrace.

  Day pupils would perhaps have known the residential pupils, but the day pupils will have no access to this board. The Minister has gone through this legislation in the Dáil and it is now in the Seanad, but he is not prepared to accept an amendment on this matter. It is my firm belief that the legislation is unconstitutional unless the Minister accepts an amendment to this effect. The Minister cannot discriminate in this fashion. The day pupils were victims in exactly the same way as the residential pupils. The Minister, in saying he will deal with the residential pupils but not the day pupils, is drawing a line on the paper and not doing anything in a legal context. What advice did the Minister get from his legal draftsmen and the Attorney General on this matter? Did the Attorney General say he believed that it was constitutional to do something of this nature? How could the Minister justify leaving out the day pupils from the legislation? It is a disgrace to do this and to consign them to the existing process of having to go through the civil courts to get redress.

  I will oppose this section unless the Minister introduces an amendment. Ruling out our amendment – to which I added an amendment that was in the name of Senator Burke – to this section on the grounds that it would impose a charge on the Exchequer is against the principle of what we are seeking to do. That is to ensure this legislation will do the job the Minister stated on Second Stage was its purpose, to air grievances, deal with the abuse that took place and provide a forum which would be different from the court forum which was the only one that existed hitherto. I hope the Minister will accept his principles and the thrust of his argument and include the day pupils in the legislation, which would improve it no end.

  Dr. Woods: Senator Coogan raised an issue relating to the UK and quoted at length from cases there. There is a difference between the situation here and the UK situation. In the UK, schools are publicly owned and teachers are employed by the State. We did not own the [1036] schools or employ the teachers. We provided them with money for the employment of teachers.

  Mr. Coogan: Indirectly.

  Dr. Woods: We did not employ the teachers. We determined their qualifications, but there is a difference. From a legal point of view, that issue is highly relevant to what was said in the first instance.

  Mr. Costello: That is a sham.

  Mr. Coogan: The State provided the money.

  Dr. Woods: We listened to Senator Coogan's quotations from learned legal people who made a big story about this, but they missed one basic point. There is a substantial difference between the position in Britain and the position in Ireland as regards day schools. The Taoiseach spoke of the residential institutions controlled by the State. That is to what he was referring. He made those quotes on that occasion in relation to those reports that were brought to him.

  In preparing a compensation scheme for victims of abuse in childhood, the Government considered a range of issues such as the legal liability of the institutions, their owners and public bodies, society's wider moral responsibilities, the nature of the institutions where children were cared for, the circumstances of the children and their vulnerability.

  In the case of residential institutions, publicly funded authorities had formal and, in most cases, statutory responsibility for placing the children and for regulating the institutions. These public bodies, in a sense, jointly with the owners of the institutions replaced parents as the natural protector and the care giver of the children concerned. This conferred on the State a special legal and moral responsibility of a kind which did not apply in the case of children who continued to live in their homes and in the community.

  The residential institutions, in their ethos and purpose, were also very different from ordinary schools. Unlike ordinary schools, they controlled every aspect of the life of the children living in them from waking up in the morning to going to sleep at night. This included food, clothes, education, play, health and moral development. Many of the children had no parents or were removed from their parents. Therefore, the parents and the children had no say whatsoever in the children's lives. The situation could not be more different for children in day schools who spent only a few hours each day in school and who had the care and protection of their parents before each school day began and when it ended.

  It is now well known that residential institutions require careful regulation by independent outside agencies. For much of the period up to the 1960s this fact was not realised by those with authority or their powers were poorly exercised. Given the weakness and vulnerability of the child [1037] who has been deprived of parental care in such a situation, failure on the part of the authorities has very serious consequences for the children who were otherwise alone in the world. In these circumstances, there is a moral duty on the State to provide redress and support where injury consistent with abuse is established.

  In the case of ordinary schools, public authorities did not have this level of responsibility and did not have the powers to intervene which they had in the case of residential institutions. The schools, to a very significant degree, were highly autonomous institutions for which the State had functions in respect of academic standards and professional teacher qualifications.

  There are also practical reasons day schools are not included in this particular kind of compensation scheme. The scheme deliberately has a very low validation threshold for claims of abuse – this was discussed in both Houses – precisely because of the general condemnation of conditions in the residential institutions concerned.

  The Kennedy report into reformatories and industrial schools, published in 1970, confirmed that the institutions were often harsh beyond acceptable standards, as many people knew or suspected. We have heard since then many accounts of abuse in institutions, with particular public attention paid to them in the last four years. All accounts paint a picture of almost universally bleak conditions in the institutions, leaving people injured and in pain. The Government took account of this when drawing up a scheme of compensation and decided not to put claimants through the stress and pain of having to prove abuse took place. This has been criticised by some as a charter for cheats.

  A great deal remains to be uncovered by the commission inquiring into child abuse, but enough is known about the conditions in the institutions for us to accept that there were serious shortcomings. It is appropriate that without further delay we should provide reasonable compensation to those who can show they suffered injury consistent with institutional abuse in childhood. Although corporal punishment was the daily experience of many in day schools, it was not comparable to the regime which appears to have applied in residential schools. If issues about responsibility for abuse in day schools did not exist, there would be concerns about validation of claims. If a scheme of compensation is developed for victims of abuse in day schools, there will have to be a much more searching inquiry into abuse before compensation is paid from public funds. Such an inquiry and the determination of responsibility can be more effectively carried out by the courts.

  The Government has facilitated this by amending the Statute of Limitations following meetings with legal representatives of those allegedly abused in day schools. Although those who suf[1038] fered abuse as children in day schools are not included in this compensation scheme, the Government fully accepts that they have needs which society is obliged to meet and, for that reason, other measures put in place by the Government to address past abuse are available to them. They may avail of counselling services which have been established by the health boards for victims of abuse in childhood and the services of the commission inquiring into child abuse. One of the commission's functions is to recommend how issues of past abuse can be addressed in the interests of victims. I set out to deal with a specific and clear-cut issue, which we have broadened and which has been debated in both Houses, and a scheme to deal with it has been established.

  I will look to the commission to recommend how further issues should be addressed. I have said on several occasions in both Houses that the logical thing to do is to wait until the commission's work is complete and recommendations are made, which is what happens with all commissions, before deciding what is to be done. That is still the case, except in relation to former pupils of residential institutions controlled by the State. I jumped the gun in that instance by saying we should try to address those specific cases as soon as possible, as I believed a clear-cut case could be made. As Senators will know from our debates on the matter, it was not easy to make such a case, but it has been done extensively. The commission's interim or final report may make recommendations about how other cases can be dealt with. We have facilitated former day school pupils' attendance at the commission, which will consider the relevant points before making recommendations to the Government. We set out to deal, in a tight timescale, with the direct issues arising from extensive abuse in residential institutions for which the State had a high level of responsibility, in a moral sense and in the sense of its regulatory control and its involvement in placing children in the institutions.

  Ms Ormonde: I expressed concern on Second Stage about provisions for day students who were abused. Having listened to the Minister for Education and Science today, however, I am happy that counselling services have been established and that the matter can be reconsidered following the report of the commission dealing with issues relating to child abuse.

  The Minister has made a clear distinction between the State's total responsibility for children's social, emotional and physical well-being in the 1930s and 1940s and the autonomous institutions owned by religious orders. Having thought this distinction through, I accept what the Minister says and I believe the House should do likewise. We should look at this issue again in the light of the Minister's swift acceptance of the State's responsibility for those who were abused [1039] in institutions. The commission inquiring into child abuse can address the concerns of day students. It is important that we make a distinction in the case of the latter group, as parents had control of students who attended between 9 a.m. and 4 p.m. While I accept that this group suffered abuse, it was primarily physical. I accept the Minister's point of view.

  Mr. Coogan: I can distinguish between public and private schools, but more importantly I can see that the Minister is trying to dilute the State's responsibility. The Department of Education and Science pays teachers' salaries and sets qualification guidelines which include moral standards. As there is a strong relationship between the Department and teachers, the State is closely linked to what happens in day schools. The Department is often quick to interfere in day school matters, thereby stressing its role. The Minister is attempting to minimise the role, however, because of difficulties faced in this Bill. Neither the Minister nor I know what the commission will say as regards day pupils, nor indeed do I know what the Minister is likely to do. I can only deal with the Bill as it stands and I will do so.

  Unfortunately, the Minister's comments today suggest that he is abjuring his responsibility, a little like Pontius Pilate. He has said the matter is out of his hands and there is nothing he can do, which suggests that he wants to wash his hands of the issue. I regret deeply that the Minister has not found a means of resolving this problem instead of splitting hairs. Former day students will not enjoy legal equality under this Bill. The Minister should review his position and take this opportunity to include day pupils in the Bill.

  Mr. Costello: I am not convinced by the Minister's argument, as he seems to be consigning day pupils who were abused while attending school as day students to counselling services and the courts. He has nothing else to offer and is prepared to relinquish responsibility to the commission rather than dealing with the issue. It is untrue to suggest that the Minister has responded adequately to this problem, as he has put it on the long finger.

  The Minister said he is dealing with the straightforward aspects of this issue and making the distinction between day and residential pupils. The distinction exists only in terms of time and living in an institution. However, in reality the abuse which occurred was the same. Those who perpetrated it were in loco parentis – they had control of, and were responsible for, day pupils as well as residential pupils for the period of time in which they attended the institutions. It is unacceptable for the Minister to suggest that there is a significant difference. He cannot wash his hands in this [1040] fashion. The principle, the victimisation, the people, the institutions, the role of the State and the role of the religious orders are all the same. How can the Minister suggest they are not comparable? They are. There is no substantial distinction.

  The Minister is doing a major injustice to this legislation and young, innocent children who suffered the cruellest of crimes and did not know what was happening. The Minister is suggesting that we will provide them with counselling, tell them to go to the courts and send the matter to the commission, but that is it. That is not good enough and I am not accepting it. Any argument which the Minister makes is unacceptable given the seriousness of the matter.

  Dr. Woods: I reject the comments of Senators Coogan and Costello and the language they have used. This has been a genuine debate up to now. We discussed this issue earlier in a logical manner.

  With regard to primary and day schools, we have something which we can define and on which we can act. The Senators wish to go back 40 years or more, as we are doing in the other cases, and include day schools. There were a minimum of 500,000 pupils per year in day schools over which the State did not have any direct control and did not employ those about whom we are speaking.

  Mr. Costello: The State made a contribution.

  An Leas-Chathaoirleach: I will allow the Senator to respond.

  Dr. Woods: The Senator should let me finish. If we limit the period to 40 years, that would involve 20 million children and 20 million potential cases which the Senator wishes to include. The figure may only be ten million, but we have to be realistic. The Senator suggested that we are just providing counselling and consigning the matters to the courts. We established the commission to deal with these issues, including matters involving residential institutions. It is anxious to carry out that work and has done a fine job.

  I stated, however, that the people concerned need to be looked after immediately and asked whether we could define the group and move ahead with the matter. The State had control over this group. Senator Coogan is incorrect in his comments about the degree of control which the State had in other schools. It is obvious it did not have that control.

  Mr. Costello: That is a technicality.

  Dr. Woods: It is not. We are talking about legal matters.

  Mr. Costello: The State paid most of the money.

[1041]

  Dr. Woods: What we are proposing is good and we have managed to develop legislation. We are in the last days of this Administration. If the Senator starts introducing something else at this stage, those depending on the Bill will have to be told that we will come back after the general election and see if we can look at the matter again. That is what the Senator is talking about. He cannot propose adding measures regarding day pupils. The consequences of such a course of action would have to be included throughout the legislation.

  Mr. Costello: The Minister has seen our amendment.

  Dr. Woods: Yes, but it would not deal with this situation.

  Mr. Costello: The Minister is missing the point. These matters are set out in the Schedule.

  An Leas-Chathaoirleach: I ask Senator Costello to allow the Minister to conclude. I will then allow him to speak.

  Dr. Woods: One would have to change the entire Bill to deal with the degrees of responsibility, authority, involvement and compensation. For this specific purpose we have changed the thresholds on which compensation will operate in order that they are very low. I have explained all this, but I am then told that I am talking rubbish. I am not – I know what I am talking about. We have provided for a low level of validation specifically because of the circumstances and the residential nature of the institutions and because, in conjunction with the groups which ran them, the State had control over the pupils 24 hours every day during which time the parents had no involvement. We have introduced a low level of validation. We would have to change the levels of validation in order that the entire legislation would have to change. We must make up our minds whether we wish the Bill to go through or to put the issue back until after the general election and see if the next Minister – it could be [1042] me – can start work on a new Bill and start the entire process again. In the Dáil we decided that we were not going to do that as we believed that what was being proposed was valuable and helpful to those who were seriously abused.

  I stated I considered cases involving young people at school which had gone to, and been proved in, court. However, the point raised in that regard was that it was unfair and inequitable to those who did not have evidence and could not make a case in court. This issue needs to be further examined to extend the provisions to that group in total. One cannot just extend it to one or two cases. That matter will require further and deeper consideration.

  The commission is examining all aspects of the matter and has been given all the evidence and information. It is open to it to come up with proposals as to how the matter should be dealt with in an interim or full report. However, if we open up the Bill and go back into this issue, it would put the legislation back by quite some time.

  Mr. Coogan: The Minister is apparently trying to distinguish the relationship between the Department of Education and Science and, therefore, the State, and national and secondary schools. We have repeatedly pointed out that the Department is not an ATM machine from which principals take money without having to decide how it will be spent. The relationship between schools and the Department is much stronger. The Minister is washing out that relationship and suggesting that his responsibility is nil or very minor. There is an implied morality in the relationship between the State, the standards of teachers and what goes on in schools.

  Dr. Woods: We are talking about the comparison between the controls in place and what happened in residential institutions as distinct from day schools. That is the difference. The matter can be dealt with. The commission can, and is, looking at it. It would require a major change throughout the legislation.

  Question put.

    Bohan, Eddie.

    Bonner, Enda.

    Cassidy, Donie.

    Dardis, John.

    Farrell, Willie.

    Fitzgerald, Liam.

    Gibbons, Jim.

    Kiely, Rory.

    Lanigan, Mick.

    Leonard, Ann.

    Moylan, Pat.

    Ormonde, Ann.

    Walsh, Jim.

Níl

    Coogan, Fintan.

    Cosgrave, Liam T.

    Costello, Joe.

    Doyle, Avril.

    Ross, Shane.

    Taylor-Quinn, Madeleine.

Tellers: Tá, Senators Farrell and Gibbons; Níl, Senators Coogan and Costello.

  Question declared carried.

  Sections 8 and 9 agreed to.

SECTION 10.

  Mr. Costello: I move amendment No. 10:

    In page 8, between lines 34 and 35, to insert the following new subsection:

      “(3) Notwithstanding subsection (2), an applicant may apply to have his or her application heard in public and shall for that purpose waive all privilege attaching to his or her utterances to the Board under this Act or otherwise and in such circumstances no privilege shall attach under this Act or otherwise to the reporting of the utterances of the applicant in so far as they relate to an identified or identifiable person or institution.”.

Section 10(2) states that the board “shall conduct its hearings otherwise than in public”. The amendment provides for hearings to be held either in public or in private. I understand the Minister's concern about holding hearings in public in so far as false allegations may be made, with the result that a person's character could be called into question. As absolute privilege is granted under the legislation, no redress would be possible. The amendment provides that if people opt for a hearing in public they would waive all privilege, which means they would be subject to the sanction of the criminal law if their allegations are false or libellous. A number of people who have been abused have expressed concern that the provision requiring all hearings to be held in private amounts to a cover up.

  The legislation is drafted to allow people state their case, express their grievance, deal with the matter openly and put it behind them. However, allowing proceedings to be conducted only behind closed doors and for cross examination by legal teams of the church and the State creates the perception that the exercise will become one sided in favour of the perpetrator and against the victim getting a full, fair, frank and open hearing. The current provision on the conduct of hearings only in private is not in keeping with the spirit of the legislation and it does not satisfy the victims.

  This amendment allows people to exercise the option of having their cases heard in public provided they forgo privilege. It means they would have to tell the truth, otherwise they would be subject to the full rigours of the law. In that context false allegations could not be made. This would satisfy the needs of many who have been abused to ensure there is no cover up behind closed doors, preventing full disclosure of their case.

  Dr. Woods: It would not be possible to provide that some victims could elect to have their cases heard in public while others could elect for [1043] [1044] private hearings. This compensation scheme is not concerned with the administration of justice. It is not the function of the redress board to establish any fault or blame and this is specifically stated in the Bill.

  The Bill focuses on establishing injury consistent with abuse as alleged as a basis for an award. It does not seek to establish the facts of the alleged abuse. This allows the board to avoid making the kind of detailed inquiries which would remove the benefits of the legislation from a very large number of applicants. It also ensures that the board does not have to adhere to the very strict rules of natural justice mandated by the Constitution. In these circumstances it is essential, in the interests of fairness, that proceedings are held in private so that allegations which, to a considerable extent, will not be tested do not damage the reputation of people.

  I appreciate there are requirements of accountability to be met regarding past abuse and that many victims wish to confront their abusers. There are other fora for that, including the commission of inquiry into child abuse, criminal prosecution and civil litigation. It is not appropriate that this Bill should seek to create a forum where accusation, which would be impossible to prove to the requisite high degree of proof, would be made in public and where both applicant and alleged abuser could be gravely damaged and compromised.

  Mr. Costello: The Minister has not addressed my point. He stated that the redress board is not a court of law, that there are other fora where allegations can be made. He has said that the purpose of this board will be to establish the facts regarding allegations. However, if this board is to be as sympathetic to the victims as the Minister suggests, why does section 11 give the board the authority to cross-examine the applicant? He has stated that the purpose of cross-examination is to correct any error of fact or misstatement on the part of the applicant. However, the Minister cannot have it both ways – the board is either a court of law or it is not. The board should be a forum to allow for the issue of compensation to be dealt with. Why then is the Minister introducing court of law procedures for the board?

  Such circumspect limitations will curtail the ability of victims to have access to a fair hearing. In this Bill, there is an over-compensation in favour of protecting the abuser and that is what concerns me most. The Minister should allow for the option of a public or private hearing and grant privilege only in the case of the latter. This would solve the problem. No abuse of privilege could take place in those circumstances.

  Dr. Woods: I have tried to explain the reasoning behind this legislation, which I think is valid. Public hearings of abuse cases can be held in the courts if that is what the victims choose. Such a [1045] course of action is open to anybody. No one is trying to hide anything. The only intention of this legislation is to help people.

  My Department has attempted to address the various concerns that have been raised at all Stages of this Bill. I am legislating for the option of cross-examination in order to combat any questions regarding the constitutionality of the Bill. The board is not a court of law. It will exist purely to facilitate the granting of compensation to victims of abuse and there will be a very low level of proof. All the administrative arrangements that we have put in place are sensitive ones.

  When Senator Costello has had more time to consider what I have said about the functions of the board, I am sure he will agree that his concerns have been adequately addressed by the legislation.

  Amendment put and declared lost.

  Section 10 agreed to.

SECTION 11.

  Government amendment No. 11:

    In page 11, subsection (11), lines 35 and 36, to delete “Where, having considered a report made pursuant to subsection (10), the Board” and substitute “The Board, having considered a report made pursuant to subsection (10), ”.

  Dr. Woods: The changes proposed in this amendment are to correct an error in the drafting process. This amendment is purely technical.

  Amendment agreed to.

  Question proposed: “That section 11, as amended, stand part of the Bill.”

  Mr. Costello: This section raises issues that are closely connected with my concerns regarding section 10. Section 11, subsection (c) states:

  the relevant person may, in person or through a legal or other representative, and, with the consent of the Board, cross-examine the applicant

The words “cross-examine” are legal jargon. Either we are going to have a court of law in the board hearings, or we are not. Surely the Minister could amend this section to delete “cross-examine” and replace it with a word such as “query”. Is the Minister prepared to do this?

  Dr. Woods: I referred to this section earlier. It was brought in to guard against the possibility of false allegations. It is important that such protective measures are in place. This section also protects the constitutionality of the Bill.

[1046]

  Mr. Costello: The point I am making is that section 11 is framed in legal jargon. It appears that the legal right to cross-examine will be available only to the defendant. A person who stands accused of abuse will have the right to cross-examine a victim and both the church and the State will be able to use legal teams at these hearings, if they so wish. All of the wording in this section is geared towards the protection of the person who stands accused of abuse. One simple amendment to this section would remove the adversarial legal aspects of it – the insertion of the word “query” to replace “cross-examine”.

  Dr. Woods: I draw Senator Costello's attention to subsection (d):

  an applicant may, in person or through a legal or other representative, and, with the consent of the Board, cross-examine the relevant person and any person giving evidence on behalf of the relevant person,

The Senator is concerned by the legal terminology—

  Mr. Costello: It compounds the situation.

  Dr. Woods: No, it balances it.

  Mr. Costello: Only in terms of court procedures, not in terms of a forum or a board.

  Dr. Woods: I have explained to the Senator why my Department felt it was necessary to have this clause so that we would not run into difficulty with any constitutional provisions. Anyone who wants go to the courts can do so. That is the basic position.

  This is a special, highly administrative method we are using. We have tried to maintain balance and address queries. For every item that comes up here some legal person indicates afterwards that they are going to do this or that, object to this or that. So we gave the right to the relevant person, if such a relevant person exists or wishes to come forward, to say, “I did not do that, I was not involved at the time”. On the other hand, the clause gives the right to the applicant to assert the case.

  This will be the exception. By covering the exception, we prevent difficulty arising for the whole redress mechanism. It is not a case of anybody trying to cover up anything, and the Senator should stop saying that. It is out of the context of the debates and discussions we have had.

  Mr. Costello: I will say it if I want to.

  Dr. Woods: This has not been my intention at any stage. The Senator knows we are under tight time constrictions.

  Mr. Costello: The Minister's remark is disgraceful. We have plenty of time for dealing with [1047] the legislation, and we have been doing so in a helpful and progressive fashion.

  There is not much more to be dealt with on this section. There are concerns however, and they are not just my concerns. They have been communicated by people who have written to me, people who have suffered. If I do not articulate those concerns I am not fulfilling my responsibility. There are people in the audience today who have articulated these concerns.

  Acting Chairman (Mr. Dardis): The Senator should not refer to the Gallery.

  Mr. Costello: I did not refer to anybody in person. If people are concerned about being cross-examined when we are supposed to be moving away from a court of law, then I propose that the concept of cross-examination be replaced by the concept of querying. I would not be surprised to see major legal teams becoming involved on either side and costs subsequently escalating. I am making a modest proposal to the Minister.

  Question put and declared carried.

SECTION 12.

  Question proposed: “That section 12 stand part of the Bill.”

  Mrs. A. Doyle: Section 12 is a very short, two-line section. In the vagueness of the wording I wonder if the devil is in the detail. I ask the Minister to elaborate on what “arrangements” are in mind and what the phrase “may make arrangements” would actually add up to if this section was invoked. I would like a little clarity and substance added to the two lines of this section. There could be a lot behind it, and this section could create a hostage to fortune in the future.

  Dr. Woods: The section merely refers to the consultations involved in reaching a settlement. It allows for consultation between the respective legal teams so that they may make suitable arrangements for a settlement of applications without having to go through the board. If the two legal teams agree they are happy, this section enables them to make arrangements, go to the board and submit their agreement, which will then be approved by the board.

  Mrs. A. Doyle: So it is the equivalent of an out of court settlement.

  Dr. Woods: It makes arrangements for the equivalent of an out of court settlement. It is expected there will be a lot of these.

  Question put and agreed to.

[1048] SECTION 13.

  Government amendment No. 12:

    In page 13, subsection (13), line 47, after “Committee” to insert “within one month from the date of making the award”.

  Dr. Woods: This provides that the Minister must decide whether to submit an award for review in accordance with section 13 within a month of the making of the award. The amendment introduces a time limit.

  Mrs. A. Doyle: I understand the need for the amendment. The wording prior to this amendment meant the Minister could in theory act 12 months later, or whenever. Why one month, however? Surely seven days would be sufficient. Given the agony these people have gone through before they could summon the strength to bring their cases under this Bill, why make them wait even for another month? It is far more reasonable than what might have been interpreted, but I suggest a period of seven days. The procedure will have been followed meticulously right through. Surely, if the claim is settled and people feel it has gone some small way towards redressing their pain and hurt, a seven-day period would be more reasonable.

  The Minister will know exactly what has taken place, and there will no need for a lot of deliberation. I do not want Members of this House to be seen to be prolonging people's pain or the uncertainty of the outcome any longer than necessary.

  Dr. Woods: One month is the maximum period. It can be done within a week, and the intention would be to do it the right way. Where the circumstances permit it, this will be dealt with in the manner the Senator suggests. That would be my wish and is obviously the wish of the House. There may be some cases where more time is required. The maximum period of a month is provided for.

  Amendment agreed to.

  Section 13, as amended, agreed to.

  Section 14 agreed to.

SECTION 15.

  Acting Chairman: Government amendments Nos. 13 and 15 are related and may be discussed together.

  Government amendment No. 13:

    In page 14, subsection (1)(a), line 48, after “section 13(4)(b)”, to insert “or 13(13)”.

[1049]

  Dr. Woods: This permits the Minister to submit the amount of an award to review. It is a technical matter.

  Amendment agreed to.

  Section 15, as amended, agreed to.

  Sections 16 to 24, inclusive, agreed to.

SECTION 25.

  Government amendment No. 14:

    In page 19, to delete lines 16 and 17 and substitute the following:

      “In satisfaction of a claim, where an applicant is deemed to have rejected an award in accordance with this Act”.

  Dr. Woods: This amendment corrects an error in the drafting process.

  Amendment agreed to.

  Section 25, as amended, agreed to.

  Sections 26 and 27 agreed to.

SECTION 28.

  Government amendment No. 15:

    In page 20, subsection (4) line 32, after “available”, to insert “to the Minister for the purposes of section 13(13) and”.

  Amendment agreed to.

  Section 28, as amended, agreed to.

  Sections 29 to 39, inclusive, agreed to.

SCHEDULE.

  Amendment No. 16 not moved.

  Dr. Woods: The reason amendment No. 16 is not being moved is that a list of institutions is already contained in the Bill.

  Mrs. A. Doyle: Some of it.

  Dr. Woods: No, most of it. There are a number of extra institutions, the difficulty is that some of them have been closed for some time. We will include them by order as they must be specified correctly. We have a system for including by order any institution not included at present. That is how they can be added.

  Mrs. A. Doyle: Interestingly, as I came in, I had a note to question the Minister as to the reason Mary Immaculate School for Deaf Boys, Beechpark, had not been included in the Schedule while St. Joseph's school for boys and St. Mary's school for girls had been. When I picked up the list of [1050] amendments I found that the one about which I was concerned had been included, with many others not in the Bill as published. The Minister should explain what the procedure will be for any institution that is discovered subsequently not to have been included. I understand he is withdrawing the amendment because others need to be added which have been closed for some time and he will do so by order. If there are others which are not closed and need to be added subsequently—

  Dr. Woods: That can be done by order also. They are coming in day by day.

  Mrs. A. Doyle: That is my point. We need to clarify the procedure for adding institutions to the list, about which the Minister should be quite explicit, and also about whether institutions are closed or extant. That is very important.

  Acting Chairman: Senator Costello's amendment No. 17 is in substitution for amendment No. 16, which has not been moved. Perhaps we can deal with the matter before coming to his amendment.

  Mr. Costello: I want to deal with the Minister's amendment anyway.

  Dr. Woods: Perhaps I should explain the matter fully first. Amendment No. 17 would add an additional institution to the Schedule while I proposed to amend the Schedule generally by way of amendment No. 16.

  Mr. Costello: We are not on amendment No. 17 yet.

  Dr. Woods: I am referring to amendment No. 16 which I am not moving. The purpose of the Schedule is to ensure certainty as to which institutions are covered by the compensation scheme. This has presented a difficulty in view of the length of time which has passed since some of the institutions were closed down. In the case of reformatories and industrial schools, records might be substantially complete, but in the case of hospitals and special schools, the same cannot be said. Many were small institutions and their history is now obscure.

  Section 4 of the Bill provides that the Minister may add other institutions to the scheme where they were regulated by public bodies. Even in recent days my Department has been informed of institutions which potentially come within the remit of the Bill. As I do not want to do an injustice to any potential claimant by appearing to exclude a qualifying institution, I intend, after careful research of the history of the institutions in question, to make an order listing those which should be included. In the circumstances, rather than making a further piecemeal amendment to the Schedule now, I am not moving amendment [1051] No. 16 and will deal with the issue comprehensively by order. In that way I can also deal with Senator Costello's amendment. As the Bill provides for affirmation of any order by both Houses, the Seanad will have an opportunity to debate any proposed revisions.

  Mr. Costello: I move amendment No. 17:

    In page 25, between lines 5 and 6, to insert “Bethany House, Dublin”.

I was pleased to see what the Minister had presented to us in the Bill, a list running to two and a half pages of reformatories and various institutions, which had grown to seven pages when it came to the final series of amendments. It indicated that he was trawling much wider than he had done initially. The implication was that other institutions needed to be added to the list.

  My concern is that we can add institutions to the list under section 6(4), which allows the Minister to make additions at any time. I would still have thought it would be better to keep the present Schedule, as I am sure it contains a substantial number of the institutions involved. We will be adding some more, which the Minister can do from time to time, but surely it would facilitate the operation of the legislation if we had the main body of institutions with which we will be dealing listed in it. We could then get on with the job in hand rather than leave the list out entirely. We have no idea when the Minister will make an order and he may not be Minister in a month's time; another Minister may not be impressed by what we have dealt with and may decide to do something different.

  We cannot wait. We have a very impressive list of reformatories, industrial schools, Magdalen homes, orphanages and various homes with which we should go now. I have an amendment relating to Bethany House, which is closed at present, but should be in the list as serious allegations of abuse have been made. While the Minister or a future Minister can add to it, please let us have the existing list in writing in order that we have something in black and white to be going on with in relation to the Bill.

  Mrs. A. Doyle: Senator Costello asked the Minister to move his amendment rather than withdraw it, in order that we can at least start with a list. If that is so, I ask the Minister to consider Senator Costello's request.

  Does the fact that an institution, whether extant or extinct, is included in the list mean there has been an allegation of abuse against it or is it just an effort to have a complete list of every institution which may at some stage face an allegation of abuse? I need to know whether it is an indication that an institution has already had an allegation of abuse made against it. Being named on the list in the Bill – a redress Bill – means there is an [1052] assumption there is a case to be addressed. There is a status associated with naming an institution. We need to be clear about including institutions on the list.

  Dr. Woods: The answer is “No” – it does not mean there is any allegation of abuse. It means that these are the institutions which come under the terms of the Bill.

  Mrs. A. Doyle: Unless there has already been an allegation of abuse, is it not dangerous to include them in a redress Bill as there is an implication there is something to be addressed?

  Dr. Woods: It is not a total list. Those who may want to make a claim have to know what bodies are included under the ambit of the legislation. The list has been included for that reason. Amendment No. 16 was an addition, adding to some of the ones—

  Mrs. A. Doyle: Should we name any of them?

  Dr. Woods: The difficulty was that it did not prove possible to get all the detail on some of the ones mentioned in time. One of the dangers is that there could be a challenge to the legislation if everything is not right. For instance, Marlborough House Remand Centre, Washer Woman's Hill, Glasnevin, Dublin 11, has been closed for a long time. If one went out to look for it, one would have difficulty finding where it was located. It is question of the health boards getting all the detail on what actually happened at the time in relation to the controls in place given the fact that it was a residential centre with a degree of State control. We are not moving amendment No. 16 now. Most of the institutions mentioned will be included by order. We can do this virtually straightaway, but there are a few in respect of which all the detail has still not been clarified entirely. It can all be done very quickly. There is no question of a delay in relation to it.

  Mr. Costello: We have hit on an important point. I appreciate what Senator Doyle has said in that if an institution is included in the list, is there not a presumption that an allegation has been made that abuse took place there? The Minister is going about it in this way to have a total list of institutions, but an allegation could be made against an institution at any time in the future not already included. I am concerned that the list is as comprehensive as possible. Presumably, the original list contained in the Bill has been checked and is valid. We should include the rest of those the Minister has been able to check. This legislation has to be referred back to the Dáil because we have made amendments to it. Between now and its passage through the Dáil, the Minister should check as many of the others as possible.

[1053]   Dr. Woods: Unfortunately, it is not possible to check them within that timescale.

  Mr. Costello: The details on some of the ones included in the list are valid and I am sure have been checked already. For example, the details on the institution I have named in my amendment are valid. It should, therefore, be included in the list. There have been allegations of abuse, even though it has closed down. The Minister should include as many institutions as he can in the Schedule and the rest by order in as short a time as possible. Is it his intention to put together the final Schedule before the Government dissolves? At least, we have the Easter recess.

  Mrs. A. Doyle: I have major concerns. I fully support what the Minister is trying to do. We are all ad idem in terms of what we are trying to get at. I have serious concerns, however, about a finite list of institutions, whether included now or added to by order in the coming weeks, months or whenever the Minister has in mind, being a definitive one. Will the Minister explain to me – I genuinely ask this question – the reason we cannot include in the Bill a statement referring to all residential premises and list them, that is, schools, hospitals and religious institutions? Why should we include a comprehensive list of the institutions which come within the ambit of the Bill if there is a claim or an allegation of abuse against any one of them? Why do we have to specifically name all of them? Can it not be taken that any residential institution which allowed a regime of abuse against minors in its care automatically comes within the ambit of the Bill? Why name all of the institutions? I hope the majority of institutions conducted their regimes in such a way that youngsters could flourish and grow, albeit with the handicap of having to start their lives in such institutions. Why tar them all because of the few at which we want to get?

  I have certain ethical problems about the approach being adopted. I know the reason the Minister is doing this – he wants to be sure that if there is a claim or allegation of sexual abuse, no institution can get out of defending its case. The rules of natural justice will apply and there will be records and so on. Would it not have been much simpler and avoided the point my colleague, Senator Costello, made in regard to the trouble to which the Minister has to go in not moving his amendment and coming back with an order, to name the generic type of institution covered and stipulate that any residential institution charged with the care of minors will come under the remit of the Bill if there is an allegation which stands up in terms of the abuse of a child in the care of the said institution? Would this not be more balanced, more all encompassing, less open to people escaping, if they happen to avoid being named, and fairer to those institutions which did their best to ensure the children they [1054] were charged to raise got the best possible start in difficult circumstances? A list like this is fraught with dangers. Will it ever be comprehensive?

  Dr. Woods: It will have to be done at some stage and must be transparent and open in order that those who might have been residents will know it will apply to them. The major institutions concerned are already covered. There is no difficulty with them. There is a generic term within the terms of the Bill. Somebody has to include a list which has to be transparent. The rest of the institutions concerned will be included by order which will be available.

  Mrs. A. Doyle: Why does the Minister need to name them?

  Dr. Woods: It is not a question of naming them but of asking to which the Bill could apply.

  Mrs. A. Doyle: Any institution in the past or present charged with the care of children.

  Dr. Woods: They must come within the conditions laid down and must have been sufficiently controlled by the State. This is where one comes back to getting the necessary information from the health boards. This will have to be done anyway to facilitate the operation of the Bill.

  Mrs. A. Doyle: Is there a back door?

  Dr. Woods: I accept the point made by Senator Costello. The institution mentioned by him is probably one which should be included. This can be fully considered in the first order that will be made. There may be subsequent orders. We are talking about something which happened 40 or 50 years ago, which is the problem. There were many small operations which were used in the same way to which the Bill will also apply. I ask Senators to let us proceed on this basis. We will try to have the list, by order, well in advance of the general election, never mind the departure of the Minister which will happen at least three weeks after the election.

  Acting Chairman: Is Senator Costello pressing amendment No. 17?

  Mr. Costello: In the light of what the Minister has said, that is, that he will take the matter on board in the context of the first order, I will not press it.

  Amendment, by leave, withdrawn.

  Schedule agreed to.

  Title agreed to.

  Bill reported with amendments and received for final consideration.

[1055]   Question proposed: “That the Bill do now pass.”

  Minister for Education and Science (Dr. Woods): I thank Senators for the way in which they discussed the Bill. We had an exceptionally good debate on Second Stage. I appreciate there are many difficulties, but we have tried to find a balance. I thank the officials, the Cathaoirleach and the Senators for their assistance. I thank them on behalf of those who have been abused. This means we can quickly move ahead with the redress board.

  Mrs. A. Doyle: I thank the Minister, his officials and the staff of the House for their contribution to this most important Bill. In one sense the Bill has been a long time coming. Important as it is, it is only the tip of the iceberg in terms of the enormous amount of work that needs to be done to try to heal the hurt and damage that adults in different guises, be they clerical or lay, in institutions or otherwise perpetrated on young people. A frightening reminder of the extent of that damage was portrayed on a BBC television programme this week which outlined cases in County Wexford. We can never turn the clock back and completely heal the hurt or redress the damage.

  Some attempt must be made to help those damaged by adults in authority and charged with their care. This might be part of a public apology, on behalf of us as legislators, for the damage that was done over the years. Everyone who had authority or who was directly responsible either for those who perpetrated such crimes or perpetrated the crimes themselves must not be afraid to apologise. It should never have happened. This is a small but important step on the road to making good some of the damage that was done. Let us establish what else needs to be done. Of all types of abuse, clerical abuse is one of the greatest betrayals of trust. Let nobody be afraid to apologise.

  Mr. Costello: I too compliment the Minister and his staff on bringing this legislation forward. Any arguments that might have been seen as robust were put forward with the intention of improving the legislation and not as a criticism of what the Minister is doing. We have found one mechanism to deal with the awful damage that was done to so many innocent young people. It has taken us a very long time to do it. The State and society have been negligent in facing up to their responsibilities in this respect. I hope this goes some way towards redressing the damage that has been done. The State should be vigilant when it has a duty of care and responsibility. We must learn our lesson so that nothing of this nature ever happens again in this society.

  My only disappointment is that we could not address the issue of day pupils. We all recognise that it is a running sore which needs to be [1056] addressed. Perhaps we can return to that on another day.

  Mr. Cassidy: I thank the Minister and his staff for bringing the Bill before the House. On behalf of Senator Ormonde, who is our spokesperson on education, I thank all concerned. This has been one of the most important pieces of legislation to come before the House during the lifetime of the Government. I am very pleased that this issue has been addressed. This Minister, Deputy Woods, is a very caring Minister and he has a safe pair of hands. We are very fortunate to have had him in this portfolio to guide the passage of the Bill through the Houses. As has been said by previous speakers, we are pleased that this very genuine effort to address the issue is being made in the Bill. There are further matters that need to be considered and Seanad Éireann will not be found wanting. If the Minister wishes to come to the House at any further stage, or to initiate legislation here, he and his Department officials will be most welcome.

  Acting Chairman: I too extend my thanks to the Minister and his officials.

  Question put and agreed to.