Thursday, 15 June 2000
Dáil Eireann Debate
“(3) An action referred to in subsection (1), that but for this subsection could not, by virtue of this Act, be brought, may be brought not later than one year after the passing of the Statute of Limitations (Amendment) Act, 2000, provided that, after the expiration of the period within which such action could by virtue of this Act have been brought, but prior to 30 March, 2000–
Mr. Higgins: (Mayo): On a point of order, a Cheann Comhairle, procedurally we understood the Minister would move the amendments. I know they are from the Seanad but we would like a brief discussion on the amendments.
An Ceann Comhairle: No, he cannot do so under the Constitution. These are amendments made by the Seanad and not by the Minister. Because of the misunderstanding we will discuss amendments Nos. 1 to 4, inclusive. Does the Minister wish to commence the discussion?
Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): Deputies will recall the concerns expressed in this House on Report Stage, and in the select committee, on the position of victims of child sexual abuse who had been unable to institute civil proceedings within the normal limitation period because of the psychological disability caused by that abuse, and who have since emerged from that disability. The concern was that even though some of those victims had, by coming forward, brought about the successful criminal prosecution of their abusers, the Bill as framed would not avail them because by the time it became law those people would once again be out of time by reference to the new rule in the Bill covering that psychological disability.
When we discussed this question I pointed to serious concerns on issues of legal principle arising out of the approach taken in Opposition amendments in seeking to address this point. I gave a commitment to the House on Report Stage that I would examine these issues with a view to bringing forward proposals to address the concerns of Deputies, if possible, consistent with legal principle.
Following careful consideration of the matter in consultation with the office of the Attorney General, I was in a position to bring forward proposals on Report Stage in the Seanad. Those amendments were accepted by that House with support from all sides and I hope Deputies on all sides of this House will also be able to support my proposals.
The concept of limitation periods in civil cases is a feature of legal systems generally. It enables persons to assert their rights while providing for some certainty of the legal position of both parties. It can be argued that it is a breach of normal legal principle not to apply such a concept if by so doing it would lead to a provision which would treat people differently by effectively removing the disability rule in some cases while others would have to prove the abuse was of such significance that their will or ability to make a reasoned decision to bring an action was substantially impaired. This could lead to a situation where abuse which arose before the passing of the Bill would be treated on a different basis from abuse arising after the passing of the legislation. It could thus be argued that the legislation would discriminate between certain classes of person and abuse on a basis that is open to challenge.
When analogous changes were made to the limitation law in 1991 by way of the introduction of the rule of discoverability, persons were not treated differently by reference to different rules. A significant departure from the norm, however, was that the 1991 legislation applied to all causes  of action accruing before the commencement of that legislation. This was on the basis that to apply the normal rule disallowing retrospection would frustrate the objective of the reform. That approach to retrospection has been followed in the Bill following my amendment as agreed by the select committee of this House.
The amendments before the House treat those cases of past sexual abuse which do not benefit from the provisions in the Bill in a way that targets them specifically so the limitation period could be reviewed in respect of them and begin to run again. This approach avoids the serious difficulty that could be created if the amendments tabled at earlier Stages in this House were to be successfully challenged. That risk would exist if we were to adopt those amendments and could produce a result which no one on any side of the House would want – that of undermining the Bill as a whole.
Seanad amendments Nos. 1 to 4, inclusive, are of a piece. The aim of the amendments, taken together, is to address the cases of sex abuse in childhood where the victim had suffered from the psychological disability which inhibits many victims from being able to take the steps necessary to pursue litigation within the normal limitation period, but had emerged from that disability at a time before the commencement of the present Bill. Such persons are out of time under the statute as it stands. Without these amendments the Bill would not alter that fact, except for the relatively small number of victims whose disability had ended within three years before the passing of this Bill.
Amendment No. 1 represents the kernel of the Government's proposals. It is directed at people who have demonstrably emerged from the psychological effects of the sex abuse in childhood which prevented them from taking the necessary steps to commence civil proceedings. It gives them an opportunity to commence such proceedings within 12 months after the passing of the present Bill, even though they would have been out of time under the present limitation rules or under the new disability rule in the Bill.
The amendment will ensure that victims of past child sex abuse who had made a criminal complaint about that abuse at a Garda station will have an opportunity to take civil proceedings against those responsible for the abuse, even though they were outside the normal limitation period for civil proceedings when they made the complaint. The amendment will also apply to victims who in the past decided not to go ahead with civil proceedings because they had been given professional legal advice that they were out of time; this applies irrespective of whether civil proceedings were commenced.
Where a person has already taken civil proceedings, which were pursued to a final judgment, this new provision will not operate to reopen such a case; this would be a serious breach of the legal principle that there should be finality in litigation.
 Amendment No. 2 sets out what is to be treated as a final judgment, a judgment where the time for bringing an appeal is past and an appeal was not made; a judgment where an appeal cannot be brought, for instance, a judgment of the Supreme Court on appeal from the High Court; and a case where judgment was delivered and a subsequent appeal was withdrawn.
Amendments Nos. 3 and 4, taken together, insert into the new section 48A of the Statute of Limitations an additional definition of “professional legal advice”. This makes it clear that the new provision applies irrespective of whether civil proceedings were commenced.
On the basis that these amendments in large measure go towards meeting the concerns expressed in this House as well as in the Seanad on the difficult issue of this aspect of retrospective operation of the Bill, I ask Deputies to support the Government proposals.
Ms O'Sullivan: I welcome the progress made on this issue. I thank the Minister, his officials and advisers for addressing the question of victims who reported child abuse to the Garda or had sought legal advice on it. I acknowledge that the Minister has found a wording that is acceptable legally to him. It provides that people who might otherwise have been excluded from the scope of the Bill can take an action within a year.
That shows the importance of the procedure of debating a Bill from when it is initiated until it is passed. Our attention was brought to this matter by people who were directly involved in taking actions on behalf of people who had suffered abuse as children. That the information was in the public domain and we were able to discuss this matter with victims and their legal representatives and we were able to debate it with the Minister in this House and in the Seanad has resulted in our finding, what I think will be, an acceptable solution. It does not go as far as we would like, but it provides an opportunity for those victims to take an action.
I am not sure whether the procedures of the House allow the Minister to respond to a point I wish to put to him. The wording of the amendment is “that an action may be brought”. The term “may be brought” is fairly generalised and queues for court listings and so on will have to be contended with. Therefore, I want to be sure that people will have to take only the very initial procedures involved in taking an action in the year to be covered by this provision.
An Ceann Comhairle: I point out to the House that this debate takes the form of Committee Stage of the Bill. Therefore, the Minister and any other Member are entitled to speak, bearing in mind that under an Order of the House of today the debate must conclude at 11.25 a.m.
Mr. Higgins: (Mayo): I join Deputy O'Sullivan in welcoming the Minister's amendments. He will  recall that on Committee Stage we argued strongly for something of this nature. I moved an amendment which states, for one year following the coming into force of this section, any person who heretofore was statute barred from bringing an action for an offence to which this Act refers, shall be able to process such action, notwithstanding the fact that he or she ceased to be under a disability for more than six years prior to the coming into effect of this Act. The Minister did not see his way to accepting that amendment.
Like Deputy O'Sullivan I, too, welcome that the Minister and his officials have addressed the issue and have managed to come up with a constitutionally and legally sound formula. As Deputy O'Sullivan said, it largely meets our concerns. Inevitably as happens in such circumstances, certain people will still be excluded, but lines must be drawn somewhere in all legislation. By and large we welcome that the Minister tabled these amendments in the Seanad, that they are before the House and we hope they will pass into law almost immediately.
It would be manifestly wrong to enact this Bill and exclude from its terms those people who had come to the realisation they were sexually abused, went through that mental, psychological and physical torment and still bear those scars, had the initiative to do something about it, reported it to the Garda and went to a solicitor and were legally advised that under the Statute of Limitations it was not possible for them to take a civil action. This is an extremely good Bill. I compliment Deputy O'Sullivan on her initiative in introducing her Private Members' Bill.
The Minister will recall that on Committee and Report Stages Deputy O'Sullivan and I advocated strongly and tabled amendments to the effect that physical as well as sexual abuse should be included within the terms of reference of the Bill. We cogently put the point that in the majority of cases the abuse was physical rather than sexual, although sometimes it was a combination of both. We made the point that given that sexual abuse makes the headlines, a large group of people, whose emotional, psychological and physical scars and suffering are just as real as those who suffered sexual abuse, feel excluded from the terms of the Bill. We have been contacted by droves of people, many of whom were brought up in institutions, who feel that given that this legislation is being enacted, now is the time to include in law a provision dealing with the physical as well as the sexual abuse suffered by those people during their deprived and miserable childhood.
The Minister was unable to accept the amendment we tabled on the basis that the issue was before the Law Reform Commission. It had been before it for a considerable period at that stage. It was before it when Report Stage was taken and when the Bill was taken in the Seanad. Will the Minister indicate to the House if any definitive advice has come from the Law Reform Com mission on the need to include physical as well as sexual abuse within the terms of the Bill?
Mr. O'Donoghue: To deal with Deputy O'Sullivan's question first, amendment No. 1 provides that the writ must be issued. In other words, the proceedings must commence within 12 months of the passage of the legislation. Once the writ is issued, the person is protected under limitation law. We are not talking about the case being concluded. That would not be practicable, as I do not believe any case of this nature would be finalised within a year. In those circumstances, that should reassure Deputy O'Sullivan and others who would be concerned about the precise wording of the legislation.
With regard to Deputy Higgins's question relating to physical abuse, I outlined the Government's position on that. The matter has been referred to the Law Reform Commission and I am awaiting its report. I understand a consultative paper will be published on this matter in the not too distant future. In terms of explaining the complexity of what is involved, it is significant that a consultative paper will be the first step in the process. That indicates to me that the Law Reform Commission regards this matter as extremely complex. Otherwise it would have simply issued a report. The matter is extremely complex because it is not merely a question of defining what is or is not physical abuse but of deciding what level of physical abuse there has been which would lead to the victim having a psychological disability in pursuing his or her claim. That is entirely different from the concept about which Deputy Higgins has been speaking. Deputy Higgins speaks about the subject as if we were dealing only with a definition of “physical abuse”. That is manifestly not the case.
We are dealing with an extremely complex area. I have explained on numerous occasions that this matter was referred to the Law Reform Commission only because it was so complex. It may be that I will be proven wrong but my considered view is that the approach which will be taken to the whole issue of physical abuse will not be similar to the approach taken in the legislation dealing with sexual abuse.
It is my intention to legislate when I have the Law Reform Commission Report. However, to legislate in a vacuum, without consideration of a report of that nature, would be extremely foolish. It would be negligence. I say that because certainty in the law is of paramount importance and it is of considerable importance that people who take an action in relation to physical abuse know precisely where they stand. It is also of considerable importance that their advisers and the courts know precisely what the position is. It is not a question of defining “physical abuse” for the purposes of the legislation, but of defining the level of physical abuse which would lead the individual to have a psychological disability. I have challenged many people in the Oireachtas in recent months to produce an amendment which would  satisfy the criterion which has been laid down. Nobody has done so.
Mr. O'Donoghue: There has been a considerable amount of criticism in regard to the exclusion of physical abuse from the legislation but not one Member of this House or the other House has brought forward one single amendment which would deal with the matter.
Mr. O'Donoghue: They have not done so is because the matter is so complex. What was in the Bill originally would not deal with the complexity of the matter. In that respect the Government has had to bring forward numerous amendments to ensure it would be effective. That is not to say I am taking away from Deputy O'Sullivan's initiative in bringing forward the legislation. I merely point out as a matter of justice to the officials in the Department of Justice, Equality and Law Reform, to the parliamentary draftsman and to the Attorney General their enormous contribution to this legislation. If it were the case that the physical abuse provision in the original Bill could have been utilised in such a way that it would satisfy the criterion laid down which is necessary, it would have been taken on board but the truth is, it was not. I accept this is an emotive subject but that does not mean I should allow my heart to rule my head on the matter. That would not satisfy anybody.
The Law Reform Commission which has done some sterling work on behalf of the State is independent in the exercise of its functions. It is an expert body and I am not in a position to force it to act in one way or another. I am satisfied that when it brings forward a consultative paper it will be based on the best legal knowledge available. I am also satisfied that following on the consultative process the Law Reform Commission will bring forward a proposal which will be solid and will stand the test of time.
Ms O'Sullivan: I thank the Minister for his response to my original question. On the second matter the Minister said that because the matter of physical abuse is so complex it could not be included in the legislation. I put it to the Minister that the same problem arises whether a person suffers from a psychological disability because of physical or sexual abuse. He still has to decide whether the abuse resulted in the psychological disability and if the person can avail of this legislation to take an action.
It has been strongly argued to us by the SOCA organisation, the survivors of childhood abuse, that victims of abuse believe we should not differentiate between the different kinds of abuse. Everybody who has been abused feels the same pain and should have the same access to the law.  They are of the view that there would not be a distinction between the two kinds of abuse.
I understand the Minister for Education and Science, during the debate to set up the commission on child abuse, suggested that commission might have the power to recommend changes in regard to physical abuse. I would have thought the advice of the Law Reform Commission, which has already commenced its work, would be significant. Is it expected the commission on child abuse will also make recommendations in regard to this issue?
Mr. O'Donoghue: The difficulty is that the correlation between sexual abuse and the psychological disability which would have prevented an individual from pursuing his or her action is relatively clear-cut in cases of sexual abuse. However, the same correlation is not as easily defined in terms of physical abuse, in other words, it is far more difficult in dealing with a definition of “physical abuse” which would lead to a psychological disability than in the case of sexual abuse. That does not mean we will not try to solve the problem. We have already taken substantial steps to do that. We are awaiting the consultative paper and then the Law Reform Commission will report. It is an indicator of the complexity of what is involved that the Law Reform Commission has decided to publish a consultative paper. In other words, the Law Reform Commission finds this a difficult problem. In the circumstances it must be clear that it is wise to wait for the consultative paper and the report.
Mr. Higgins: (Mayo): I am glad we can welcome a consultative report and that the matter will be clarified. I welcome the fact that the Law Reform Commission's work is ongoing. It is a pity the Minister had to revert to the bunker again and become his own bristly heckling self because we asked a civilised question in relation to what progress had been made and the reason a huge number of people felt excluded from the Bill. He was asked in a constructive fashion when the debate was proceeding at a civilised pace and then he decided to become his old self.
We accept this is a difficult area fraught with legal definitions of every description. It opens up the definition of corporal punishment in terms of its use in primary, secondary and vocational schools and in the home. We have in no way underestimated the degree of difficulty or complexity. However, between the Minister, his advisers and the Law Reform Commission, it should be possible to come up with a definition. The Minister will acknowledge he did not get right the definition of what constitutes sexual abuse and that as the debate evolved he encompassed additional areas, for example, causing the  victim to participate in or observe sexual activity and sexual activity carried out in the presence of the person. He gave sexual abuse a broader definition than intended originally. That is good and is what the democratic process in which we participate in this House by drafting legislation is all about, to improve legislation and ensure the finished product is as perfect and final as possible.
It is reasonable to ask the Minister to come up with a definition of physical abuse and to ensure that it is included in legislation as early as possible. We are making that request on behalf of the huge number of people affected. I am sure the Department advised the Minister that when this Bill was introduced by Deputy O'Sullivan, it precipitated a huge volume of requests from people, through the media, to be included in the terms of reference of the Bill. We accept this is difficult but it is an issue which must be addressed as soon as possible.
Mr. O'Donoghue: I find it difficult to understand where Deputy Higgins is coming from in relation to sexual abuse. He alleged that I did not know where I was going when I included additional areas in the Bill. There was no definition of sexual abuse when Deputy O'Sullivan presented the Bill, which is why I had to introduce a precise definition of sexual abuse. If I have to fill vacuums of information for Deputy Higgins and he accuses me of hectoring, perhaps I would be better off keeping my views to myself.
Mr. O'Donoghue: However, unlike Deputy Higgins, Deputy O'Sullivan understands what has been going on in relation to this legislation from the beginning so I have decided to let her know the precise position.
“‘professional legal advice' means advice given by a practising barrister or solicitor in circumstances where the person to whom the advice was given sought such advice for the purpose of bringing or prosecuting an action to which subsection (1) applies, whether such an action was brought or not.”.
Ms O'Sullivan: I thank the Minister, his staff and legal advisers, the Opposition Deputies and Senators and those outside the House who contributed to this debate. It is important that this legislation is enacted and I hope it will help the large number of victims in our society.
Mr. Higgins: (Mayo): I thank the Minister for being his usual magnanimous self and I thank his officials. Deputy Shatter introduced an excellent Bill parallel to that of Deputy O'Sullivan. The two Bills complemented each other, which was useful and assisted the process. We have done a good day's work by putting in place legislation which is long overdue and seeks to redress a huge anomaly in people's entitlement to bring civil proceedings, which up to now had been barred by statute.
Mr. O'Donoghue: I acknowledge the approach taken by the promoter of the Bill to the debate on the difficult and sensitive issues which surround it. I have endeavoured to address these issues in a measured way. That has also been the approach of the promoters of the Bill in this House and the Seanad. I acknowledge the co-operative way in which the promoters dealt with the extensive drafting changes brought about by Government amendments. There is acceptance on all sides of the House that the Bill in its present form is greatly improved in comparison with the text as introduced. I pay tribute to those working in the parliamentary draftsman's office whose work does not always attract the credit it deserves. That is not to denigrate the promoters of the Bill who do not have available to them the repository of expertise available officially and who face a difficult task, as I know from my experience in bringing forward Private Members' legislation.
 I repeat my assurance that I will respond promptly and proactively to the recommendations of the Law Reform Commission on the issue of limitation periods in non-sexual abuse cases, whenever those are made. I thank the officials in my Department for the tremendous expertise which they brought to bear on this difficult and complex legislation. This is a tremendous tribute to their unquestioned abilities. It is important that I acknowledge that publicly.
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