Chapter 1 — Establishment of the Commission

State evidence

He said that this view was informed by ‘a folk memory, if I could use that word, that industrial and reformatory schools were very harsh places’, and also by the report of the Kennedy Committee, the media and, in particular, the ‘Dear Daughter’ RTE television programme. Mr Boland’s view was further informed by meetings with former residents and, to a limited degree, the work done by Dr Gerry Cronin, a social historian appointed by Minister Martin to review the Department’s files.

On 11th May 1999, the Taoiseach, Mr Ahern, announced the Government measures relating to childhood abuse, as set out above. At the same time, he stated that ‘the starting point for this is simple, but fundamental. We must start by apologising’.

In his evidence to the Investigation Committee, the Taoiseach described the thinking behind the apology: Well, it was the State has let you down, the State should have done better. There were reasons why it didn’t, but they weren’t in our view justifiable. While times were different and it is never a good thing to try to put policy today to what policy would have been on another day, we still felt in this case that we had left a section of our community, who were vulnerable, exposed in a way that would affect their lives. While all of the other measures in the report were measures of guidance, help, assistance and therapeutic and all of the rest, that sympathy wasnt just the only thing we could do, we actually had to express it in a way that the State does not normally do. These were our people, these were issues that were perpetrated against them and while not giving a judgment on any of the institutions or what people in the institutions were trying or trying not to do, obviously there were circumstances, circumstances of staff and resources and God knows what, and mentality of people. The reality is we were dealing with a group of victims who were decent honourable people, who had suffered and deserved the States best apology the State could give. The best way of doing that, whether it is always accepted or not in life, is to do what you do in your own life, you would say sorry, and that is what we set out to do.

Mr Micheál Martin, the Minister for Education and Science at the time, said: Basically, I felt at the time that if we stopped short of issuing an apology from the perspective of the survivors it would have been a devastating blow. The package for a lot of them would have been meaningless if there wasn’t that State recognition that what was done to us was wrong and do you please believe us.

The Taoiseach, Mr Ahern, told the Investigation Committee that the apology was his and Minister Martin’s idea: Yes, in fairness to the Working Group, I dont think they ever discussed the issue of the apology. The apology, Chairman, I remember how the apology [came] around very clearly, because while all of the issues that we were talking about; professional help and caring and trying to assist these people back who had been badly dealt with by the State in our view, the hurt was not going to be removed unless you said sorry. It was my view and Minister Martins view, we made the decision.

This was borne out by the evidence of Mr Tim Dalton, former Secretary General to the Department of Justice, Equality and Law Reform. Mr Dalton said that the apology did not emanate from the Working Group, it was a political decision: It emanated at Cabinet level subsequently ... While the apology was very much in line with what the working group was saying the apology, as a matter of fact, arose later. Yes.

He continued: I mean the Committees working groups report emphasized the need for what was described as a proactive approach, a sympathetic approach, and an apology would have been very much in line with that. Although as a matter of fact the apology came up subsequently.

The Taoiseach and Minister Martin described meetings they had with former residents of reformatory and industrial schools at this time. The Taoiseach told the Investigation Committee: I had met a number of the individuals, individuals who lived in my own constituency and elsewhere as you travel around who made me aware of what they hoped and the concerns they had and, obviously, wanted to see us taking action, and I think were happy to see that we had set up a Cabinet Committee and that we had set up a Working Group that was representative of our most senior public servants ... They wanted to see a Government do something about it, they wanted a forum where they could express themselves if they wished to do, some of them did, some of them didnt, and where they would be able to put forward what had happened in their lives, what had happened in institutions that they were sent to, as they saw it, totally as a matter of State action. They wanted to see us do something about correcting the hurt that they suffered.

He continued: I met a number of these groups and met a number of individuals. I think I can say without exception, they struck me as being entirely genuine, entirely trustworthy and asking me for help, asking for assistance and wanting us to do it because many of them, it had been a long time since they left these institutions and their lives had been affected. Even those of them who had moved on and where their life was together, they believed that this was a hurt that had not been corrected and they were urging us to deal with it comprehensively.

Minister Martin said that he first became aware of the issue of institutional abuse in his ministerial capacity in early 1998. Prior to his appointment, he had watched the two television programmes ‘Dear Daughter’ and ‘States of Fear’, and these programmes, particularly ‘States of Fear’, had a profound impact on him. He told the Committee that, having viewed this programme, ‘... I was left with the view they can’t all be wrong, they can’t all be false stories’.

Mr Boland explained the factors that led to the establishment of the Commission to Inquire into Child Abuse in 1999: First of all, I think of primary concern for the sub committee would always have been the victims themselves. The objective of a Commission would be that it would provide a place where they could tell the account of their lives to a sympathetic panel. That element of having a sympathetic panel was always very important in the whole process of the Commission. The hope was that in this way victims of abuse could be reassured that the abuse they suffered was wrong and was utterly condemned by Irish society. There was a very strong demand for that kind of listening forum from the victims themselves. In addition then it was felt that a Commission could begin a process for victims of abuse whereby they would feel more able to approach the institutions that were there for professional help so that they could work through their pain and trauma. For Irish society the idea was – and this is rather like a truth Commission – that it would establish for Irish society precisely what happened and establish as complete a picture as possible of the causes, nature and extent of childhood abuse including why it happened and also who was responsible. It was very much an important factor that the Commission would establish at least at an institutional level what institutions were responsible for what happened. It was also felt that this kind of process would help Irish society to come to terms with a very negative, very black period in our history. And it would also give to those who were involved in running the institutions, primarily the religious congregations, an opportunity to put their side of the case and show that in some cases, and maybe even in many cases – that is a judgment for the Commission – that in fact they did good service for the State too. Perhaps this might have been a bit naive, but nevertheless it was an opportunity for perpetrators of abuse, particularly those who felt appalled by what they had done, to come forward and to give them an opportunity to relieve themselves of their burden. Very, very importantly then a Commission would make recommendations for the future as to how to prevent this happening again and what to do for victims of abuse going on into the future.

Later in his evidence, Mr Boland went on to discuss how the issue of compensation came into consideration. He said that ‘a compensation scheme was very much in policy minds from a very early time’, but the Government had taken the view that they would deal with it once the Commission had concluded its work. On 20th July 2000, the chairperson of the Commission informed the Department of Education and Science that a number of solicitors representing clients who alleged having suffered abuse as children had adopted a position, whereby they would advise their clients not to cooperate with the Commission until the issue of compensation was dealt with. The chairperson expressed the view that this would have serious implications for the Commission’s ability to carry out its task, and asked the Government to make a decision in principle in relation to the setting-up of a compensation scheme as quickly as possible. On 27th September 2000, the chairperson criticised the lack of action in relation to the issue of compensation at a public sitting of the Commission. On 3rd October 2000, the Government decided to agree in principle: to set up a compensation scheme, that the definition of abuse for the purposes of the scheme would be the same as in the Commission legislation, that compensation would be paid on an ex-gratia basis, without establishing liability on the part of State bodies, but subject to the claimant establishing to the satisfaction of the body that he or she had suffered abuse and resulting injury, and that the amount of compensation would be broadly similar to that which would be awarded to a claimant had he or she pursued successfully a claim for damages in the courts.

Mr Boland outlined the policy basis for the compensation scheme: I suppose there were a number of reasons ... Allowing cases to proceed to litigation from a survivors point of view and from a social point of view was simply the wrong thing to do in the view of Government. It would negate any real sense of meaning from the apology on behalf of the Irish Nation if then people who wanted to get compensation for the abuse they had suffered had to go through an extraordinarily lengthy process in the High Court. There was also of course the fact that many of those cases would fail not because they didnt suffer injury and not because they had not been injured, but because of what might be regarded as technical rules of evidence. And that was not acceptable to Government either. There was a pure operational issue for the courts. 800 cases at that stage, maybe a couple of thousand. Now we think maybe a few thousand. The effect it would have had on the administration of justice or from the court system would be enormous.

Mr Boland pointed out that, in developing a policy on the compensation scheme, the Government carried out a comprehensive review of the practice in other jurisdictions.

Following a consultation process, the Minister for Education and Science returned to Government with a set of proposals for legislation, which subsequently became the Residential Institutions Redress Act, 2002 (the Act of 2002).