Statute of Limitations (Amendment) Bill, 1998: Committee Stage.

Wednesday, 1 March 2000

Seanad Eireann Debate
Vol. 162 No. 11

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Section 1 agreed to.

An Cathaoirleach: Information on Brian Mullooly  Zoom on Brian Mullooly  Amendment No. 1. Amendments Nos. 2 to 4, inclusive, and amendment No. 8 are related and may be discussed together.

Ms O'Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  I move amendment No. 1:

In page 3, line 23, before “sexual” to insert “physical or”.

These amendments which have been grouped together refer to one of the fundamental and essential elements of this legislation. The legislation initiated by the Labour Party and accepted in principle by the Government is designed to start the process of redressing the balance to give rights of redress to those in our community who have been the subject of abuse in the past. The legislation has been debated in the Dáil. What we are trying to do in this small way and as part of the overall framework of legislation is to start the process of dealing with issues which are only now coming to light from the past, in particular the abuse of children at the hands of State institutions.

Many individual stories have emerged. There are many hundreds of examples of abuse, both physical and sexual, from a broad range of institutions, religious or formerly religious. We know we have to put together a framework of legislation to redress the balance and ensure the voices of those victims are heard. In regard to the commission being established, it is the Government's intention, judging from statements made, to ensure victims are properly heard and to introduce a measure of accountability and redress into this whole sorry saga. To a large extent the Government is approaching this in the correct manner. I ask the Government to listen carefully to victims and their representatives who are seeking meetings with the Government to discuss a number of their concerns about the terms of reference of the commission, their representation as victims prior to enduring commission sittings and [706] support for victims attending the commission and for the group which supports survivors on a wide range of issues, including this legislation. I have listened to the comments of this group and these individuals and I hope I can reflect some of their concerns.

These amendments seek to re-insert the issue of physical abuse into the Bill. During its passage through the Dáil the issue of physical abuse was removed from the Bill by way of an amendment, in order to allow the Law Reform Commission to study the question of the definition of physical abuse before giving legislative effect to it. When my colleague, Deputy O'Sullivan, and I published this Bill, it was our intention that sexual and physical abuse would be covered by the legislation and this is still our desire. The question has been discussed at length in the Dáil and in this House on Second Stage. I appeal to the Minister, even at this late stage, to reconsider his position. I hope he will say that, on consideration and having listened to the arguments, he will accept our point of view.

In many cases it is impossible to make a distinction between the physical and sexual element of a recurring act of abuse. An instance of what might be considered to be physical abuse, such as a beating, might have a strong sexual element. How does one define such abuse? By removing the element of physical abuse from the Bill, we appear to downgrade it, to say it is less important or less traumatic than sexual abuse, although we know from those who have suffered this trauma that this is not so. It cannot be beyond the ability of the Department of Justice, Equality and Law Reform to come up with a definition of physical abuse which would comply with the spirit of the legislation.

Last week I was party to a conversation which turned to reminiscences of an Irish Christian Brothers' school attended, at a particular time, by most of the participants. Some of the stories they told were, in today's terms, quite hair raising. They told of fingers being broken, of various assaults being made for absolutely no reason and of individuals who exercised their authority in very physical ways. Many who attended school before the imposition of the ban on corporal punishment are familiar with teachers, particularly with male teachers, who were very handy with their fists. I thought of this Bill as I listened to that conversation.

We must accept the fact that at a period of our history vulnerable children were subjected to very serious physical abuse. It is not acceptable to say that it was normal at the time. This abuse resulted in serious trauma. We cannot distinguish one person's experiences from another or judge who suffered trauma and who did not. It is too easy to stand back and maintain that everyone suffered the same treatment and that it did no one any harm. By omitting the issue of physical abuse from this legislation we might lend credence to such an attitude or lessen the import[707] ance of the trauma suffered and the injustice done to victims of serious abuse.

I acknowledge that the Minister accepts the spirit of the legislation and that he and his officials have done sterling work on it. However, I appeal to him to ensure that the legislation as enacted lives up to the spirit in which it was introduced. It will be a lesser Bill if this amendment is not agreed to.

Mr. Manning: Information on Maurice Manning  Zoom on Maurice Manning  I support everything Senator O'Meara has said and I will not delay the House by repeating arguments already made. On reading the Official Report of the discussion of the Bill in the Dáil, I was struck by the confrontational tone of the debate. I do not blame anyone for this and I suspect that there were two sides to the story. However, there seemed to be no meeting of minds with regard to seeking a resolution of the problem outlined by Senator O'Meara. Given the fact that the Government has ordered Committee Stage but not Report Stage today, I wonder if the Minister has changed his mind since the Bill was debated in the Dáil. Is there a possibility that the case made by Senator O'Meara might be accepted? It would provide a guideline for the remainder of the debate if the Minister gave an indication that this is so, at this stage. The Minister has referred this question to the Law Reform Commission and, given the voting numbers, this is probably how it will be resolved. However, a strong case has been made for the inclusion of the term “physical” in this section.

Senator O'Meara has made the point that physical abuse, particularly over as sustained period, can be as traumatic as sexual abuse. We have all come across evidence – some first hand, some hearsay and some well documented – of people who were traumatised by physical abuse. These people were incessantly beaten, they lived in a state of terror and at a very fragile and impressionable stage lived lives of utter horror. Their personalities were changed hugely in the process. They have carried the burden of this experience and, perhaps, will carry it for the rest of their lives. Who is to say that the result of such physical abuse is less than sustained sexual abuse? Abuse is abuse. There are too many stories in our recent history of gross physical abuse over a sustained period. The question arises whether the reluctance on the part of the State is financial. It may well be, but I hope not. I know the Minister and his track record, and I do not think he or his officials would be motivated by something which was imposed or at the sanction of the Department of Finance. That question has been raised and I will not repeat the arguments.

Over the course of debate in the other House, on Second Stage here, and from what Senator O'Meara said a few moments ago, the Minister has heard a very strong case for the inclusion of physical abuse in the Bill. If he cannot give us an [708] answer today, perhaps he will consider the matter further between now and Report Stage in light of what has been said.

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  I, too, was pleased when the Minister accepted the spirit of Deputy Jan O'Sullivan's Bill in the other House, but I was disappointed when the words “physical abuse” were removed and it was put forward on the basis of sexual abuse only. Even if we had not seen and been horrified at various reports from institutions, I am sure the Minister is aware of the report from Welsh institutions which were revisited recently, and the close association between physical and sexual abuse given as evidence by so many people who had been inmates, indeed, by people who worked there and by those who were very courageous for many years in trying to bring the authorities' attention to the abuses. We must accept that physical and sexual abuse are frequent partners in any areas of children's lives where there was severe trauma perpetuated on them.

I was of the generation of young doctors instructed to look out for the battered babies syndrome in casualty departments in the 1960s. We were inclined to be of a mind and, perhaps, slower than other countries, that those who had charge of small children would not be driven to hitting them across the head, of breaking their bones, or shaking them until their retinas came off the back of their eyes and so forth. We were inclined to say that as a nation we were most unlikely to be involved in the physical abuse of small children. We now know that is not the case. Today there has been an appalling report of the murder of an 18 month old child. A rope was tied around his neck and a stone placed at the other end and he was thrown into a flooded quarry. We must recognise that there is a serious level of physical abuse which leads to mortality.

It is interesting that when the discussion of abortion arises, we point to our history and say that illegal abortion was not so common. We rarely include infanticide. There have been frequent cases in the past and, even now, the bodies of new born babies have been found but how frequently have they not been found? This is a serious problem. Excluding physical abuse in this Bill compares with returning to the days when we said such things would not happen. We know physical abuse has occurred and continues to occur and it must be addressed. We cannot just airbrush it out of the picture.

In the debate in the other House – as Senator Manning said, it was very confrontational – there appeared to be many problems about definition. Senator O'Meara referred to the report of the Commission of Inquiry into Child Abuse. If one examines the definitions in that report one can see that the Minister is prepared to bring forward definitions. Why can they not be included in this Bill?

[709] For example, the definitions in the terms of reference of that report states:

The definition of abuse should be sufficiently broad to encompass acts or omissions which include (a) physical abuse, meaning the wilful, reckless or negligent infliction on or failure to prevent injury to a child; (b) sexual abuse, meaning the use of a child by another person for the sexual gratification or sexual arousal of that person or another person or other persons; [this commission goes further than Senator O'Meara has asked in her amendment] (c) neglect, meaning persistent or severe failure to care for a child which results in serious impairment of health and/or development and/or failure to thrive; (d) emotional abuse, meaning on the part of a carer, persistent coldness, hostility or rejection towards or unrealistic expectations or severe over-protection of a child or exposure of a child to the abuse of others resulting in severe adverse effects upon behaviour and/or development.

If it is considered serious enough to have these sections of abuse within the commission's remit, surely it is not too much to ask that “physical abuse” should be included as well as sexual abuse. Many of the people in the Public Gallery today are most anxious that emotional and mental abuse should also be included.

Senator O'Meara probably feels she is pushing for this as far as she can by asking for the inclusion of physical abuse. I ask for it, not just because the commission will examine this area, but because we will be going down the same road when we airbrushed out of the picture a very serious situation which we were slow to recognise. Giving it recognition now will make some amends for what happened in the past.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I support what my colleagues said. I commend Senators Manning and O'Meara for tabling these amendments. Without them the Bill is disastrously flawed. In the literature of the 19th century there is a great deal about the abuse of children. If one looks at the works of Dickens and the Bronte's one will find that each confines itself exclusively to the physical abuse of children. There is nothing in these works, remarkable as they are, as evidence of the human imagination of any sexual abuse whatever. Yet, will anyone pretend that such did not exist? We are doing the reverse in this Bill. We are saying sexual abuse exists but not physical abuse or, at least, it is not important or significant enough. It does not count. These people have been insulted enough.

I read in the newspaper a couple of days ago the story of two men who were physically abused. It did not say anything about sexual abuse. These men have a grievance with this Bill. I was struck by the phrase one of them used. He said, “Fifty years ago no one listened and now, 50 years later, still no one is listening”. As Senator Henry said, some of the victims of this abuse are with us today. Can we honourably discharge our duty in [710] the presence of these victims without recognising the nature of their suffering? How can we separate physical and sexual abuse? It is an absurd, neurotic degree of categorisation. It is an attack on the vulnerable people. It is not just sporadic violence; it is systematic and deliberate sadism, sometimes with a probable sexual content.

Let nobody think this was confined to the Christian Brothers. The Christian Brothers, in some respects, did a fine job – when there were damn few others – in educating marginalised people in our society. This constituted the majority of the population because they were all marginalised as a result of the imperial administration. I attended an upmarket, Protestant boarding school. I witnessed the most appalling physical abuse at first hand and have yet to see people raising this issue in public. It seems to have become a sectarian issue. One can only accuse certain Roman Catholic orders. The snotty Protestant boarding schools are allowed to get away it but some of us have memories, I in particular. I was not a specific victim but I had a very talented older brother and he was a victim. His life was virtually destroyed by this. He was intended to follow family tradition and go to Trinity and become either a doctor or engineer. He is now doing very good work as a long distance lorry driver. He is married to a wonderful woman and has a good family but for many years his life was destroyed and a series of tragedies brought upon the family which ended in the premature death of my mother.

In the school that I attended many others were victims. Only a year or so ago I was speaking at a dinner in London with very successful members of the British industrial establishment after which I was taken to the luxurious farmhouse home of the person who chaired the meeting who said to me, “I think we went to same school.” I said, “Really, what was that?” When he told me I said, “What a dump, it should have been closed by the sewerage department of Dublin Corporation.” He pulled the car into the side of the road and started to weep. He told me that it was only in the previous three months that he had been able to tell his wife about the physical abuse he had suffered.

Last week I was in Portlaoise launching a book on the history of County Laois. A middle aged man came up to me and said the same thing –“I was at the same school as you”. I also said same thing –“What a dump”. He told me about the same teacher, a little Himmler from a minor British public school. He added in another detail about which the House might like to learn, that this man used to take a run at the children so that he could deliver with a cane on the backsides of the children such blows as would draw blood. Is that not abuse? Does it have to be sexual? If he had opened the child's flies on the other side and fiddled with him would it suddenly become worthy of the attention of the legislators? Is it not of any significance to us that he was simply beaten [711] to a pulp? I just do not understand this mind set, although I recognise that it exists.

I remember the film “Lamb” and the actual case which lay behind it. In extenuation of that case Queen's Counsel on behalf of the accused said, “Well, My Lord, I put it to the court that at least he did not interfere with him”, by which he meant that there had been no sexual abuse but the child had been drowned, he had been killed. Does this not constitute abuse? Is it only when there is a sexual element that there is ever to be any consideration and care?

We hear so often in cases such as this, “It is very sad but we don't want to get involved”. That was what I heard about the school in which I was involved. People knew about it but they did not want to get involved as it would cause a scandal. It was said that one should not put one's head over the parapet, rock the boat, make accusations, make people feel uncomfortable or get involved. This House should get involved. We have a duty to do so. It is not just the physical beatings, it is the psychological terror, it is the waiting and knowing that one is about to be brutalised. The period of waiting, knowing what is about to occur, is probably as cruel as the actual physical violence.

It is a well known psychological fact that there does not need to be any mutual sexual interchange. These situations can sometimes be sexually charged.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  Absolutely.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  We know all too well from the debates we have had in this House on pornography that some people are sexaully aroused by violence. There does not need to be any sexual element on the part of the victim, it can just be a beating. How therefore can we so easily make these distinctions? It is wrong. I have spoken with strong feeling but I hope not in the manner described by Senator Manning, as being contentious and so on. I speak with emotion. We really must address this issue. We owe it to all the victims of abuse. They are entitled to our concern as legislators at this late stage. We should introduce something along the lines of the amendments tabled by Senators O'Meara and Manning. If there is a technical problem the Minister should solve it. The advisers have given us so much benefit of their wisdom on so many Bills—

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  That is right.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  —and showed us where we were wrong. We are now in the Minister's hands. If it is only a technical problem he should solve it. This House requires a solution from the Department of Justice, Equality and Law Reform if it is to be maintained that there is a flaw in the amendments. I thank God for Seanad Éireann and the initiative of my colleagues in tabling these [712] amendments as without them this is shameful legislation.

Mrs. Taylor-Quinn: Information on Madeleine Taylor-Quinn  Zoom on Madeleine Taylor-Quinn  I fully support the inclusion of the word “physical” in the section before the word “sexual”. The case for this has been more than well made by previous speakers. If the Minister speaks to the officers of his Department and members of the Garda Síochána investigating cases of alleged physical and sexual violence he will find that in many cases it is very difficult to draw a line between physical and sexual abuse. Prior to the sexual abuse of children there was physical abuse. It is very unfair therefore to isolate sexual abuse from physical abuse.

Senator Manning and others said that there has been severe physical abuse inside and outside various institutions, not just the Christian Brothers and convents, but by people entrusted with the responsibility of caring for children in orphanages and homes. This has to be recognised. We have a responsibility to ensure that the right to take action of those who were physically abused by adults during their childhood is protected.

The Minister should have no difficulty accepting the amendments which are straightforward. I am certain that he is fully aware of stories where the hands of children were so swollen having been beaten so severely that they could not carry their schoolbags home from school. There are umpteen other examples. This is unacceptable and intolerable. Children who have been abused deserve to be protected by legislation introduced in the year 2000. The required evidence and information are available within the Department. I therefore urge the Minister to include the word “physical” in the Bill.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  I support previous speakers. It is not possible for us to allow this legislation through and to look in the face afterwards people who have been victims without being answerable in some way. I regret that I did not get a chance to speak on Second Stage. Ironically on that day I was in Government Buildings negotiating parts of the new agreement which deals with the socially excluded in society and the victims of society. This appears to me to be exactly along the same line.

I also speak as a member of the teaching profession, which has been diminished in many ways by sexual abuse over the years. Sexual and physical abuse have sullied the names of all people working in religious orders, many of whom were decent, honest and upright. For that reason this legislation needs to be focused to deal with issues.

I do not accept that the legislation cannot accommodate the amendment. I do not understand how anybody can distinguish between physical and sexual abuse in all cases. In some cases it can be done but it cannot be done in all cases. Senator Norris, in what I would consider one of his best contributions, made a clear case and I agree with every word he spoke. I would [713] appeal to the Minister to recognise that this is something at which we have looked previously.

This is about physical abuse. There are two stages before abuse. There is use, misuse and then abuse. The law of the land has always been able to make the distinction and decide what was physical abuse. Therefore, we have experience in dealing with it. We also recognise that there was a time, until 1982, when the use of corporal punishment was legal. I stress the word “use” because misuse and abuse were never allowed and were always illegal and unacceptable, but unfortunately it went on.

The legislation would be seriously damaged were it not to include this amendment to extend its scope to physical abuse. It would be seriously flawed in terms of addressing the worries, concerns, needs and demands of the victims. I defy anyone to tell me the difference between sexual abuse and physical abuse in a form of words which would apply to all cases.

There are people who get sexual gratification from physical punishment, from hurting other people. This is evident not only in folklore but in literature down through the ages. Some highly charged and emotive literature has been written about bullies, physical tyrants and people who effectively got their kicks from hurting other people. It is not possible to make a distinction between sexual abuse and physical abuse in all cases; therefore we cannot allow this legislation go through without amending it to include physical abuse.

The Minister should look back to the roots of this debate. What was the ambience which led to this legislation? It has come about because of the horror of the community which suddenly came face to face with what was being done in its name. The community now wants, if not to make amends because I do not know if that is ever possible, at least to respond and to show that it is prepared to do something which might compensate in some small way – it is not possible to compensate fully – for the hurt, wrong and abuse of the past, and that must include physical abuse.

I sense that the victims, with whom we have met and discussed these matters, are people who have shaped their lives to the point where they were able to articulate and carry forward the argument to try to make many of us understand to some small degree what it was like. I am also conscious of the thousands of others whose lives were wrecked irrevocably and irreparably and who became the flotsam and jetsam of society. These people were never able to piece their lives together and spent a lifetime attempting to understand how they could possibly have been treated like this. They see their lives destroyed and they have gone on to populate the prisons and other institutions. They were the unemployed, the dependent population who were the dropouts of society who in some cases could not even go into a building anymore. This is what we [714] are talking about and it is as much a consequence of physical abuse as of sexual abuse.

I would say without fear of contradiction that many of the people who were abused, both sexually and physically, could not make a distinction about when it was sexual abuse and when it was physical abuse. That is a fact and there is nobody who can say otherwise. The victims themselves cannot distinguish between when it was sexual abuse and when it was physical abuse but they knew it hurt mentally and physically all the time. There was never any difference and we cannot walk away from that fact.

We have a duty and a responsibility to the victims. We are answerable and accountable. To that extent, I would appeal to the Minister to look again at this amendment. He should take it on board. He should reflect on our responsibility to the people to whom we are trying to respond, reflect on what society must do to make amends and recognise that this is just one small first step. I appeal to him to accept the amendments and to amend the legislation. I commend the amendments to the House.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  I was not going to speak on this amendment. Senator O'Meara moved the amendment and she dealt adequately with it, but having listened to the debate I feel I would be negligent in not saying something on the matter. The nub of this is that the Minister is kicking to touch with the Law Reform Commission on the serious aspect of physical abuse.

It seems to me that, as other Senators said, one cannot state simply that it is sexual abuse and that physical abuse is in a totally different category. It is not. There is an intrinsic link between the two. We all know that. Scientific studies prove that there is an element of violence or physical assault when sexual abuse takes place. There are other physical abuses which are just as horrific, if not more horrific, than sexual abuses.

Last night a man who had been to Upton detention centre in Cork visited me at my clinic on Seán MacDermott Street and gave me a copy of the sworn statement which he had made to his solicitor and to the Garda. He was detained in that institution for a number of years because he had been mitching. He had been sexually assaulted by older boys and had been continually beaten by the religious order in that institution. While he was not sexually assaulted the religious, there was gross negligence on the part of the religious authorities in not ensuring his personal integrity was protected in terms of his being sexually assaulted by a group of other boys. The beatings which occurred were of such a nature that he could not go to bed at night without wetting the bed. For a long time he was beaten each morning because he had wet the bed.

How can we put forward legislation, and a definition of what will be covered by it, if we do not include horrific assaults of a physical nature which occurred in these institutions? We are try[715] ing to deal with the incredible incidence of torture of young people in the State's care. It is no good the Minister saying there are difficulties and complexities and sending this to the Law Reform Commission to deal with. That will not solve the problem; we must deal with it in this and the other House. That is why we are elected as legislators – to deal with such an issue and not to kick it to touch and ask another body to look at it for an indeterminate period. We would not know what, if anything, would happen after its deliberations.

Goldenbridge convent has closed down. There has been no mention, in any of the allegations made, of overt sexual abuse but it is uncontested that there was gross physical abuse of young boys and girls by the female religious order in charge there. One young girl died as a result of severe burns to her legs which resulted from a particular form of treatment she received. Gross physical assault took place in that convent. Are we saying this legislation cannot apply to what happened in that institution simply because we are limiting the definition to sexual abuse and will not extend it to physical abuse?

We will only deal with half the problem if we go down the road the Minister proposes. The victims have waited a long time for a substantial response to their misfortune in the State's care. There is no sense taking a half-hearted approach. Let us be generous and take a full and comprehensive approach in dealing with the matter. Let us try to make good the serious negligence and flaws in the system which we allowed to proliferate for many decades.

In 1979 I remember doing a survey of 200 prisoners in our institutions. While I do not have the exact figures now, the majority served time in either reformatories or industrial schools before they ended up in prison. Clearly, a huge proportion of the population who inhabit the prisons, and who have done so over the years, were brutalised and were brought into the system in such a hostile fashion that they reacted against the establishment and the society which did that to them. They were forever outsiders in that society, a position that led to a life of crime. We have a serious case to answer.

Like all speakers on this side, I am passionately convinced that we need to add the word “physical” if we are to deal with this amendment adequately. I have no doubt the Minister, whose speech I read, would like to resolve the matter adequately. I would have thought he would have taken an open and comprehensive approach to the matter rather than a limited one. Let us remove the obstacles if they arise. Let us not put forward legislation which we may never get around to redressing or amending. Like my colleagues, I plead with the Minister to accept these amendments. Let us get on with it and send the legislation back to the other House to incorporate these amendments in the legislation.

[716]Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): Information on John O'Donoghue  Zoom on John O'Donoghue  Let me assure the House that I have no wish to be confrontational on this matter. There was a certain amount of confrontation in the other House because, to be quite blunt, there were clear attempts to misrepresent the Government's position and I could not stand by and tolerate or accept that.

I have listened very carefully to the debate which, for the most part, has been calm and rational. I do not believe there is anything between us in terms of the end we are trying to achieve. The difficulty which presents itself is how precisely we are going to achieve the end we all require. As a first step, I accepted the legislation which was brought forward as a Private Members' Bill by Deputy O'Sullivan. I did that because I wanted to achieve the objectives set out in that legislation. In the same way, I want to achieve the objectives Senators have mentioned this afternoon. As I will outline in my contribution, the difficulty I am faced with is how best I can achieve the solution which everybody wants.

I already indicated in some detail in my Second Stage contribution in this House the Government's approach to the issue of limitation periods in cases of child abuse of a non-sexual nature. Sexual abuse of children has always been regarded with particular abhorrence by the community – all the more so when such abuse is perpetrated by the very people charged with the care and nurturing of children.

As I stated on Second Stage, the Government's view is that the case for changing the law of limitations, as it applies to child sexual abuse, is unanswerable. It is universally recognised that the abuse of a person of tender years in a sexual way can result in trauma which can prevent the victim from seeking help or redress for the abuse suffered, in some cases well into adult life. It is clear that special provisions regarding limitation periods to take account of that lasting effect should apply to civil actions where sex abuse is an element.

However, this is emphatically not to suggest that the issues surrounding physical abuse in childhood are regarded by me or the Government as being less serious or of less significance in our whole approach to childhood abuse. I am very aware from representations made, and from having heard at first hand the harrowing stories of some of those I have met, how such abuse has blighted many lives, leaving emotional as well as physical scars. I assure such people that neither I nor the Government seek to neglect their position or to exclude them in any manner. The Government's whole approach to the issue of childhood abuse has been open and proactive and that remains the approach.

I remind Senators that the Taoiseach in May of last year set out a package which represented the Government's position and still does. This included an apology on behalf of the State to the victims of child abuse; the setting up of a commission to inquire into childhood abuse; expan[717] sion nationwide of the counselling services available to assist the victims of child abuse; the preparation of a White Paper on the mandatory reporting of child abuse; priority advancement of legislation to include a register of sex offenders – the House will be aware I have published that legislation; amendment of the limitation laws as they relate to civil actions based on childhood sexual abuse – the House will also be aware I accepted Deputy O'Sullivan's Bill on that – and the referral of the question of limitation in other forms of childhood abuse to the Law Reform Commission.

The unreserved apology issued by the Taoiseach on behalf of the State was a very important starting point and the objective was to try to address the wrongs that unquestionably were done in the past. There was general agreement across the political spectrum and across society generally that it was an appropriate response for the State to make to those who have suffered in childhood and that it was a response with which most right thinking people wished to be associated. The Government has been actively progressing the measures announced by the Taoiseach and they represent a considered and proactive response by the Government.

Child abuse covers a wide range of activities. If one were to say that some of these would have been classed until relatively recently as reasonable corporal punishment, one would not be far off. Others could be described, by any standards, as unacceptable but which might nonetheless not affect the person's ability to bring proceedings in a given time. There are still others that will have the same lasting trauma that is known to arise frequently from sexually abusive acts.

In this context, Senator Henry referred to the definitions of abuse given in the commission to inquire into childhood abuse and suggested them as a model for this Bill. I am aware of the provisions of that Bill and my Department's comments have been taken into account in the framing of the definitions in that legislation. However, those definitions are specific to the context of that Bill. The question of the inclusion or otherwise of other forms of abuse in this Bill is not simply a case of defining the various types of abuses. I will return to that point later.

The issue of sexual abuse is clear cut. That is why the Government was in a position to support the Bill to the extent that it deals with such abuse. Unfortunately, the issue of physical abuse is not as clear cut. It is precisely because the issues are not clear cut that the Attorney General at the request of the Government referred the matter to the Law Reform Commission. The purpose of that referral is to have the benefit of the commission's research facilities, well established consultative processes and, most importantly, independent and considered advice as to the way forward in this area of the law. It is worth bearing in mind that the Law Reform Commission is a creature of statute, in other words, it is a creature of the Oireachtas. This is precisely the type of [718] issue on which it is ideally placed to offer recommendations, an issue with a considerable technical legal dimension and one which is firmly anchored in the day to day lives of very many people.

I understand from informal inquiries that the commission's researches are under way and its intention is to publish a consultation paper in the near future. The publication of that paper will give the interest groups who represent the victims of abuse in childhood a valuable opportunity to have an input into the formulation of the commission's recommendations. It does not make sense for the Oireachtas to pre-empt the advice sought by going ahead with legislation to deal with such cases. That is why the Government indicated from the outset its support for this Bill in so far as it deals with sexual cases and why it was necessary on the Dáil Committee Stage to confine the application of the Bill to actions arising out of sexual abuse in childhood.

I have heard the Government's position on this Bill represented as a refusal to legislate for physical abuse cases and an unwillingness to deal with the issues. Reports of a public meeting held as recently as last weekend were along similar lines. I state categorically that these comments utterly misrepresent the Government's position. I emphasise that these misrepresentations and attributions are entirely wrong. Before we can decide what changes should be made, and the Government is committed to change, the Government and the Oireachtas must know how best that change should be achieved. I want to state clearly again, as I stated on a number of occasions during the debate on this Bill in the Dáil and in my Second Stage contribution in the Seanad, that I will act on the commission's report in a prompt and proactive manner. That remains my position. That is the position I outlined from the outset. In all honesty, I cannot give a clearer or more definite response than that. I do not lightly make such commitments before the Houses of the Oireachtas. I see no reason the Government's intentions should be doubted.

Our record in the implementation of the measures that were announced last May is one of solid progress. Senators will recall the progress made from my Second Stage contribution to the House. It includes the establishment of Laffoy commission, the publication of the commission to inquire into child abuse Bill to which I referred, and the provision of funding to expand the counselling services available for victims of child abuse. It would be a pointless exercise to request the Law Reform Commission to carry out its work on the issue only to pre-empt effectively its findings by extending the scope of this Bill at this stage to include physical abuse. It may well be that the commission's recommendations will fall in line with proposals in the Bill, but it is equally possible the commission will recommend a different approach entirely.

I am aware also that some of the interest groups in this area have expressed the view that this Bill should be held up awaiting the final out[719] come of the Law Reform Commission's deliberations on this issue. That would be counter-productive and would cause unwarranted delay in the implementation of the valuable reform of the law provided in this Bill as it stands. I believe strongly that it is a sensible and responsible approach to await the outcome of the commission's work.

This is a highly technical and complex area of the law and it is only right that we should have available to us the advice of experts. Any change in the law in relation to other forms of abuse should be informed by the commission's work if we are to ensure that we achieve the best outcome in legislation. I repeat my strongest assurances that I will act in a prompt and proactive manner on the commission's report when it becomes available.

In reply to Senators' comments in this regard, the provisions of this Bill apply to proceedings arising out of an act of sexual abuse irrespective of whether there was physical abuse involved. Thus, where the sexually abusive acts were part of a pattern of abuse of both types, it is clear that the entire pattern of abuse would be encompassed by this Bill.

I completely reject what I regard as extraordinary remarks by Senator Norris to the effect that no one is listening. I would have thought, given all we have said and done, nothing could be further from the truth. We are listening, but there is not a shallow or simple solution. If a simple solution was apparent I would only be too pleased to take it on board. I cannot legislate by way of aspiration; as experienced Senators in this House will know, I have to legislate with certainty. If I cannot have certainty in the legislation, then the disadvantage lies with those for whom, in the first instance, the legislation is supposed to assist. I believe strongly that if I am to do justice by those who are affected by the issue of physical abuse, it is incumbent on me as a legislator to ensure that the provisions I put in place have not only the benefit of certainty but the benefit of the best expert advice that is available to the Government. I can assure Senators that it is not a question of kicking to touch, far from it. Because of the complexities that are involved I am trying my utmost to ensure that those people who were victims of physical abuse and who should rightly be covered by this Bill are covered by legislation which will evolve in the not too distant future following upon the report of the Law Reform Commission.

It has been clear for many years now that acts of sexual abuse can induce a misplaced guilt in the victim. Therefore, it was possible to define, for example, an act of sexual abuse in this legislation and also go on to deal with the whole issue of disability. I do not know at this point whether the question can be resolved by a definition provided by the Law Reform Commission. In the context of ascertaining the degree of trauma which would induce the disability, it is more diffi[720] cult for us to be definitive in regard to the physical abuse provision. For those reasons, which I hope I have clearly outlined, I am awaiting the report of the Law Reform Commission.

The Government is deeply anxious to resolve this matter at the earliest opportunity to everybody's satisfaction. It is not and never was a question of the Government trying to keep the purse closed. What we are trying to do is achieve the objective which was set out eloquently in the House this afternoon by so many Senators, and to do so in a certain way that will stand the test of time.

Mrs. Taylor-Quinn: Information on Madeleine Taylor-Quinn  Zoom on Madeleine Taylor-Quinn  I am very disappointed by the Minister's response. He should look to the old adage – Actions speak louder than words. In reiterating what the Taoiseach announced last May, in the form of an apology and referral of the matter to the Law Reform Commission, the Minister has given us much technical detail about how his Department is examining the issue. The fundamental fact remains, however, that physical abuse takes place. The Minister said it is not possible to define physical abuse and he referred to it as a complex area of the law, but it is not complex. It is a reality for many human beings, involving an imposition of abuse on a person's physical being by another. In many cases the physical and mental abuse is of children who place their trust in adults.

The suggestions made in the Minister's response are totally inadequate. He referred to the definitions of abuse and Senator Henry also referred to them in detail. She requested the Minister to include just one – that was the definition of physical abuse in subsection (b). That is all that is involved here. The Minister has a legal background and some Members of the House have legal experience also. To say that this is a huge and complex area of the law is avoiding the situation and not dealing with reality.

Senator O'Toole referred to physical use, misuse and abuse. We are talking about the fundamental abuse of a physical sanction. We have all received a slap at school and we survived it, but we are not talking about that. We are talking about physical abuse which is not that difficult to define. The Minister should include this definition in the Bill. Platitudes from the Minister and the Taoiseach are poor consolation to people who have been grossly physically abused. When it comes down to doing something definitive about physical abuse through legislation, however, the Minister cannot do so because of the lack of a definition. The Minister knows well what physical abuse is and everybody in the House has provided him with examples of it. Any legal person so requested would be capable of adjudicating on whether this is use, misuse or abuse. We are talking about abuse, an issue on which any fair minded judge could adjudicate. I invite the Minister to reconsider his position.

[721] The Law Reform Commission has a wide range of legal expertise. Senators who contributed to the debate have a wide knowledge of what is happening from having spoken to experts and others, including their constituents. They have far more knowledge than many of the legal eagles who will produce a recommendation for the Minister.

Ms O'Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  Logically I understand what the Minister is saying but I certainly do not agree with him. As a representative of the party that put forward the Bill in a more complete form than it now appears, I am disappointed in the Minister's response. He says that the Law Reform Commission will produce a consultation paper in the near future and interested parties can make submissions on it. Presumably we are talking about a period of at least six months, followed by another number of months before the commission produces its final report. Following that the Minister will act. I do not for a moment deny the Minister's commitment to act promptly. Let us face it, in the two and a half years since the formation of this Seanad, the Minister has been in the House more often than any of his colleagues. One cannot deny his ability to produce legislation, but unfortunately that creates a twin-track approach whereby those who have suffered trauma, arising from what the law would interpret as purely physical abuse, must continue to wait for a period which we cannot forecast. That is to be regretted and it was never the intention of the Labour Party when we published this legislation.

I accept the Minister's bona fides in this regard but I fundamentally disagree with him. On behalf of the victims of abuse, I must express severe disappointment with his approach. While I do not doubt his commitment to bring forward legislation, there is no doubt that this time next year we will only be at the stage of preparing the legislation.

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  I am also disappointed in the Minister's response, part of which I find quite curious. I read the definition of abuse from the reports on the terms of reference for the Commission to Inquire into Child Abuse. The Commission to Inquire into Child Abuse Bill has been published by the Department of Education and Science – a Department which is part of the same Government. I would have thought, therefore, that it would be wise for all Departments to try to use the same terms of reference. Otherwise one could have a tremendous amount of confusion with different Bills. Abuse is defined on page 1 of the Bill as (a) “the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child”, and (b) “the use of the child by a person for sexual arousal or sexual gratification of that person or another person”. Two other subsections concern mental and emotional abuse. On the first page of this Bill from the Department of Education and Science there is an interpretation of the word “abuse”[722] which apparently cannot be used in a Bill coming from the Minister's Department.

If one looks at the Equal Status Bill, which came from the Minister's Department, it seems that those who wrote it should include a section which is not explicitly sexual. Section 11(5) deals with sexual harassment and states that sexual harassment takes place where a person

subjects another person (“the victim”) to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material which, in respect of the victim is based on any discriminatory ground and which could reasonably be regarded as offensive, humiliating or intimidating to him or her.

This section is specifically about sexual harassment and whoever wrote the Bill felt it was worth putting in matters that were not specifically sexual. It has been well worthwhile pointing out the frequent coexistence of sexual excitement with physical punishment of another.

There are those who promote the legalisation of prostitution. I have always said that male prostitution should be legalised first to see how we get on with that, as the involvement of violence with prostitution is well known. Some prostitutes will tell one that their clients will climax with no sexual involvement at all. Do we have to wait for children reporting sexual abuse which is just watching an adult coming to sexual climax? Would that be counted as sexual abuse? From this definition it probably will, but part of the definition refers to any act committed against or in the presence of a person that any reasonable person would, in all circumstances, regard as misconduct of a sexual nature. However, another part of the definition refers to that being the case provided the doing or commission of the act concerned is recognised by law as giving rise to a course of action.

I do not know if that covers those who are physically abused to the extent where the pleasure gained from inflicting such pain on another gave the person inflicting the pain sexual satisfaction. I do not require the Minister to read The Story of O or other hard pornography to see how important the correlation can be between physical abuse and sexual enjoyment for extraordinary people, but we may lead ourselves into a situation where people, to try to get some justice from life, may make more of a correlation between the physical abuse they endured and the sexual pleasure it gave others. Senator O'Toole said that some people not getting sexual gratification out of this would be accused of getting sexual gratification and we would be better off leaving physical abuse in as part of the Bill.

I return to my confusion as to why a definition will do one Department with one Bill but will not do another Department with another Bill, although both Bills are going through the Oireachtas at the same time.

[723]Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  I am very disappointed with the Minister's response. I have heard the Minister defend his views and those of the Government, but he does not need to do that. Nobody is casting aspersions on his views. I know him well enough to know that he is as compassionate a man as I or any other Member. That is not the issue. Whatever comments were made, that is not my interest.

I cannot accept the Minister's explanation and, with the greatest respect, I think it is not correct. I am going to have a good look at it and I will get some legal people to look at it because I do not believe it holds up. I want the Minister to come back to this matter. I am going very close to what one is allowed to say in the House, but I want to make certain that I do not accept that explanation. I want the Minister to confirm for me that what he has said is a matter on which he is saying he has a legal position.

There is over 100 years of case law on physical abuse in Ireland. It was in my town, the Minister's town and everywhere else, and went from the lower courts to higher levels. The courts and Judiciary have been dealing with physical abuse cases for as long as I can remember – not that many, but they have been dealt with. I want a clear position from the Minister, as I am not clear on whether this has to be defined in order to have it in the legislation. I do not accept that is the case. Is it that this cannot be defined? I am not sure what the position is, but I want it on the record, because we will come back to it. This issue will not go away.

In terms of physical abuse, there is only one question we need to ask – are there people who suffered physical abuse of such significance that their will or their ability to make a reasoned decision to bring such action is “substantially impaired”, as the Bill puts it? Any of us would know that is the case, so how can we live with ourselves if we pass legislation that is clearly flawed before it is enacted? It is clear that those who have suffered physical abuse are or were in a situation where their ability to make a reasoned decision to bring such action is substantially impaired, or was before they came to terms with it or understood how to find redress. That is a fact.

Let us have the legal difficulties spelt out for us. That can be done in as legalistic a language as the Minister wishes, but I want it on the record and we can revisit it. I do not believe they will stand up to scrutiny. This has nothing to do with commissions or the view of Government. It is about how we respond to people with a problem through the legislative process. That process is flawed in this case because quite clearly people who suffered physical abuse are unable to make a reasoned decision or, if that is not now the case, it would have been the case at some time in the past. That is all that is required. Once we know that, we are taking a decision that although we know this abuse impaired their ability to make a decision on seeking redress, we will not include [724] them because of undefined or ill-defined legal difficulties.

How can we not have case law, possibly since the Offences Against the Person Act, on this? It did not require legislation for someone to go to court to prove they were physically abused and for judgment to be taken on that basis. It was done in courts at all levels – from District Judges to the upper levels of the Judiciary. I cannot accept that it could not be done in this day and age – someone could state he or she was physically abused and an informed Judiciary could adjudicate on it and come to a conclusion.

What are the legal difficulties? Has the law not dealt with cases of physical abuse for decades and why can it not deal with them now? Why does physical abuse have to be defined? There are many aspects of law that are not defined. When an Act refers to “any reasonable person” it means that we do not need a tightly written definition or interpretation. It is not needed when that phrase is in an Act, because it refers to what a reasonable person would conclude.

We are aware that there are people who have been abused to the extent that their ability to make a reasoned decision is substantially impaired. How can we possibly let this legislation through in a flawed condition? How many and what exactly are the legal difficulties?

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  It would be wonderful if the answers to the questions posed by Senator O'Toole were readily available and if the information which he says is available were available. The truth is that the negative is the position in both cases. Senator O'Toole asked questions to which I do not have answers. I put these questions to the Law Reform Commission because I did not have the answers to many of them. If I had the answers, I would not have had to ask the Law Reform Commission for answers. If Senator O'Toole had the answers, he would not have to ask me the questions.

I stated already that child abuse covers a wide range of activities, some of which would have been classed until relatively recently as reasonable corporal punishment. Others, by any standards, are unacceptable but might nonetheless not affect a person's ability to bring proceedings in a given time. Others may have the same lasting trauma which is known to arise frequently as a result of sexually abusive acts. The Law Reform Commission has been considering this matter since May and, if there were a simple answer, it would have come forward with it by now. Within the Law Reform Commission some of the finest brains in the land are dealing with this issue. It has not as yet come forward with a report but it is bringing forward a consultative report. As an educationalist, Senator O'Toole will know that if such eminent people took a considerable time to consider a consultative paper and deemed it necessary to produce a paper prior to publishing a report, this issue cannot be as easy as some back-of-the-lorry speeches might suggest.

[725] This is a difficult area and, in that context, I refer to the speech of Senator Taylor-Quinn which completely misses the point. She seems to think that what is at issue is solely the definition of physical abuse. That is not the point. If that were the point – other Senators also referred to it – perhaps I would have had no difficulty whatsoever. Senator O'Toole said there is 100 years of precedent; there is none. There is not a case in terms of limitation law.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  There is on physical abuse cases. I will not be talked down to. For the record, I did not refer to statute of limitation cases; I referred to cases of physical abuse.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  We are dealing in the context of a limitations Bill.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  We are dealing with an amendment to a section of a Bill. The Minister should get his act in order and focus on it.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  We are dealing with physical and sexual abuse in limitation law. Let us not try smokescreens; this is what we are dealing with here. The issue is quite straightforward. We are dealing with the question of a disability, the disability having been deduced or induced by or from the whole issue of physical abuse. There is no case law dealing with either sexual or physical abuse in the context of limitation law. That is why this extremely complex issue of physical abuse was referred to the Law Reform Commission. I have stated categorically in this House and in the other House that when that complex question is answered by the Law Reform Commission, I will be proactive in terms of bringing forward amendments to the law or any new legislation which is required. I wish it were otherwise.

I wish the solutions which have been proferred here were the answers to the questions. The unfortunate truth is that they are not and, if they were, I must take it that Senators would in good faith have put down amendments in order to assist me. The truth is that I would not have bothered under any circumstances with the Law Reform Commission if the answers were readily available to me. I repeat that I would be doing a grave injustice, though it may seem otherwise to some people in this House, to victims of physical abuse if I accepted a half-baked amendment which would ultimately not serve their causes. This would be irresponsible of me and I must not and will not do so.

When the Law Reform Commission's report is to hand, I will be proactive in bringing forward the legislation or any amendment thereto which is required. I stress again that we are talking about not just physical abuse but about the whole issue of physical abuse in the context of limitation law and the issue of disability. Let us not pretend this is a simplistic matter because that will do the argument no service whatsoever.

[726]An Cathaoirleach: Information on Brian Mullooly  Zoom on Brian Mullooly  Is the amendment being pressed?

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  The Minister has introduced new matter—

An Cathaoirleach: Information on Brian Mullooly  Zoom on Brian Mullooly  We have debated the amendments in great detail.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  —and I will not let that go on the record of the House. It is very easy for the Minister to give his version of back-of-the-lorry speeches by putting words in people's mouths. Let us be clear. Step one is that there are people looking for justice under the law. In order to be covered under the law, they must get through the Statute of Limitations Act. In order to be covered under the Statute of Limitations Act, they must comply with certain requirements under the Bill, and this is what we are debating. What we are now debating does not change the operation. The operation has been changed by the introduction of sexual abuse. Once it is recognised that it is as written down under the terms of sexual abuse, the person will get in under the cover of the Statute of Limitations Act and will be entitled to take the case. We are talking about step one and the argument I have put forward is not to do with the legal precedent of the statute of limitations, but with the courts understanding of, experience of and judgments under the heading of physical abuse. That is the case I am putting forward. The Minister is not correct and what he has said is not acceptable. That was not the argument which was well enough made.

We need to hear what the legal difficulties are, not that the lawyers are having trouble getting their act together. Experts will tell us anything. An expert yesterday might as well have told us that the sun shines in the middle of the night when he said that house prices have not increased. The greatest brains in the world told us that. I am not a bit impressed by people with letters after their name. The reality is that if the Minister took a decision that there were legal difficulties, he should tell us what the legal difficulties are and put them on the record.

An Cathaoirleach: Information on Brian Mullooly  Zoom on Brian Mullooly  Senator Taylor-Quinn, briefly, please. We must try to avoid repetition.

Mrs. Taylor-Quinn: Information on Madeleine Taylor-Quinn  Zoom on Madeleine Taylor-Quinn  I appreciate that but the Minister in his further response has done nothing to assist the situation. In fact, he got on his legal high horse and brought new legal matter into play. He referred to the definition when, in concluding his earlier contribution, he said he did not know whether the issue could be resolved by definition. Those are his words – I wrote them down as he spoke them. The Minister brought in the question of the definition and its lack of clarity. Now he has introduced the wider issue of the Statute of Limitations.

This Bill proposes to introduce a Statute of Limitations Bill. We want to insert the word [727]“physical” into this Bill. Suddenly the Minister has made a major legal issue out of this. As Senator Henry said, the definition can be accepted by another Department in one Bill currently going through the other House, but the definition cannot be accepted in this Bill. This does not make common sense.

While the Minister may have a legal background and may try to swamp us with further legal definitions, the realities are what we see. He spoke about the context of limitation. Law is about basic common sense, about justice being done and being seen to be done. Those in positions to administer justice use the information available to them in any particular case and adjudicate on that information, deciding for or against a certain decision. This does not have to involve complications relating to definitions and to highpowered legal jargon.

The Minister referred to those eminent people on the Law Reform Commission – we accept that and appreciate the wonderful work they did in the past and hope they do more in the future, but a simple matter is before us. The Minister may try to complicate it but he needs to forget his legal background and accept this amendment as based on common sense. It is a very simple matter. Leave it to the judges to decide. The Minister said there was not any prior case law definition relating to this – point accepted but somebody will have to decide. Let us accept this amendment and allow the situation to evolve.

Ms O'Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  We all have the one concern and in publishing this Bill the Labour Party was attempting to redress an injustice. We were trying to ensure that people who were the victims of terrible injustice in the past would be given redress and that their rights would be restored to them. That is the objective of everybody in both Houses. It is very frustrating to encounter a major block, which this appears to be, while handling a piece of legislation, particuarly when one's own party has promoted it.

The Minister said that this legal point, in other words, the testing under limitation law of the extent of physical abuse constituting sufficient trauma, has not been tested. He said that the legal issues attached to that are very complex and therefore must be referred to the Law Reform Commission and answers must be obtained before this issue can be properly resolved and inserted in the legislation. It is frustrating to encounter such a block at this point but I am not in the legal profession. I want to explore this issue further, with the result that I will not press the amendment on this stage but I will bring it back on Report Stage. Meanwhile I will consult legal advisers on a way to shift this blockage in the short term rather than the long term and give people the legal redress they deserve as soon as possible.

Amendment, by leave, withdrawn.

[728] Amendments Nos. 2 to 4, inclusive, not moved.

An Cathaoirleach: Information on Brian Mullooly  Zoom on Brian Mullooly  Amendments Nos. 5, 6 and 7 are related and may be discussed together by agreement.

Mrs. Taylor-Quinn: Information on Madeleine Taylor-Quinn  Zoom on Madeleine Taylor-Quinn  I move amendment No. 5:

In page 4, between lines 36 and 37, to insert the following new subsection:

“(5)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.”.

This amendment clearly states our intent. It is motivated primarily by the fact that there are many people who, because of the trauma and difficulties they experienced, were not in a position to take action. The intent of this amendment is to allow them to proceed to take action. I hope the Minister finds no difficulty with this.

Ms O'Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  At the end of the Dáil debate which ran out of time, the Minister indicated, as he had also indicated on Second Stage, that he would come back to the House with an amendment on this matter retrospectively. I would like to hear the Minister's response.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  When I spoke on Second Stage I indicated to Senators that I would examine further the question of whether the Bill should operate in a more retrospective fashion than that already catered for in the Bill as it stands. I stated that I would consider the question in more detail and in consultation with the Attorney General. I am still in discussion with the Attorney General and my Cabinet colleagues on the technical aspects of a possible amendment which would approach this issue in a positive manner. Senators appreciate that any proposal in this area, as well as requiring Government approval, is technically complex because of the need to ensure consistency with legal principle. The Senators know that this is a difficult legal issue as well as one of real significance to certain of the victims of childhood abuse.

The effect of the amendments before the House would be that abuse which arose before the passing of the legislation would be treated differently from abuse arising after the passing of the legislation. This is so because the disability rule provided for in the Bill would apply only to acts of abuse arising after the passing of the Act but would be disapplied by these amendments to abuse arising before that point. This raises an important issue of legal principle which must be examined very carefully. It might assist the House if I were to indicate briefly the kind of considerations which are being addressed with a view to [729] overcoming them in the amendment I am hoping I can bring forward at Report Stage.

The concept of limitation periods in civil cases is a feature of legal systems generally. It enables persons to assert their rights on the one hand, while on the other hand it provides for some certainty of the legal position of both parties. It can be argued that it is a breach of normal legal principle to disapply such a concept if by so doing it were to lead to a provision which would treat people differently by effectively removing the disability rule in some cases while others would have to prove that 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, as in the case of the amendments proposed by the Senators, 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.

The legislation would thus, it could be argued, discriminate between certain classes of persons and abuse on a basis that is open to challenge. The analagous changes were made to the limitation law in 1991 by way of 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 occuring before the commencement of that legislation. This was on the basis that to apply the normal rule of non-retrospectivity would frustrate the objective of the reform. The approach to retrospectivity has been followed in the Bill, following my amendment which was agreed in the other House.

The question I am now examining is whether the Bill should, notwithstanding normal legal principles, relax the limitation rule further by treating those cases of past sexual abuse, which do not benefit from the provisions of the Bill, in a way which would target them specifically so that the limitation period could be reviewed in respect of them and begin to run again. That approach, if feasible, would avoid the serious difficulty that could be created if the Senators amendments were successfully challenged. The result in that case would be that the Bill would be totally undermined.

There are real difficulties but I am hopeful that I will be in a position to bring forward proposals on Report Stage which will find acceptance among Senators and address the concerns of victims in a fair and reasoned manner. On that basis, I invite Senators to consider withdrawing their amendments until then.

I already indicated that the technical details of a possible amendment are being worked out. I also made it clear that the Government must approve any such proposal. It would be wrong of me to anticipate the outcome of either aspect and I hope Senators will respect my position in that regard. However, I gave the amendments deep and careful consideration. I am doing my best to [730] address the issues which were raised in the other House and in the amendments before this House. I must clarify precisely my position before Report Stage.

Mrs. Taylor-Quinn: Information on Madeleine Taylor-Quinn  Zoom on Madeleine Taylor-Quinn  In view of the Minister's comments, I will withdraw the amendment. We will await his amendment on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 6 not moved.

Section 2 agreed to.

An Cathaoirleach: Information on Brian Mullooly  Zoom on Brian Mullooly  As it is now 6 p.m. will the acting Leader report progress?

Mr. T. Fitzgerald: Information on Tom Fitzgerald  Zoom on Tom Fitzgerald  Only a short time may be needed to complete Committee Stage. I am at the mercy of the Opposition, but the order of the House could be changed to allow for the completion of Committee Stage.

Mr. Connor: Information on John Connor  Zoom on John Connor  Will extra time be provided for Private Members' business?

An Cathaoirleach: Information on Brian Mullooly  Zoom on Brian Mullooly  Yes.

Mr. Connor: Information on John Connor  Zoom on John Connor  In that case, we will agree to conclude Committee Stage.

An Cathaoirleach: Information on Brian Mullooly  Zoom on Brian Mullooly  Is that agreed? Agreed.

Amendment No. 7 not moved.

Section 3 agreed to.

Amendment No. 8 not moved.

Title agreed to.

Bill reported without amendment.

An Cathaoirleach: Information on Brian Mullooly  Zoom on Brian Mullooly  When is it proposed to take Report Stage?

Mr. J. Cregan: Information on John Cregan  Zoom on John Cregan  Next Wednesday, at 2.30 p.m. subject to the agreement of the Whips.

Report Stage ordered for Wednesday, 8 March 2000.


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