| Mr.
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 trying 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.
Minister for
Justice, Equality and Law Reform (Mr. 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; expansion
nation-wide 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 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.ont>
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 outcome 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 difficult 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: 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.
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:
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:
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" 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.
Mr. 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 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: 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.
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:
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: We are dealing in the context of a
limitations Bill.
Mr. 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: 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.
An
Cathaoirleach: Is the amendment being pressed?
Mr. O'Toole:
The Minister has introduced new matter ----
An
Cathaoirleach: We have debated the amendments in
great detail.
Mr. 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: Senator Taylor-Quinn, briefly, please.
We must try to avoid repetition.
Mrs.
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 "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.
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