Matter under Standing Order 30 – Children’s Referendum

8th November 2012

I thank the Minister for coming to the House.

We are all aware the Supreme Court has today made a ruling against the Government by finding that its €1.1 million spend on the children’s referendum information campaign did not comply with the principles of the McKenna judgment. It should be noted that the Supreme Court did not make any order against the Government but rather rightly assumed that the Government would cease publishing and distributing the material, which the Government did with immediate effect.

The Supreme Court has reserved its judgment until 11 December. While I welcome the opportunity, and thank Senator Norris for putting forward the motion, in ways this debate is premature and we will need to revisit this debate post 11 December to discuss and answer questions on the handling of referendum information campaign, the role of the Attorney General and the McKenna principles themselves. We need to do it when we are dispassionately unconnected from a particular referendum because these issues are overdue for discussion.

In the immediate term with polling day less than 40 hours from now, we must not lose sight of the principles at the heart of the amendment or the fact that many other wholly non-State-funded parties have campaigned long and hard to secure the successful passage of this referendum, none of which has been impugned in any way by today’s judgment. I also note, because there is confusion among the public around this judgment, that the Referendum Commission has not been impugned in any way by it. I understand the commission has been given €2 million in funding and it has been informing the public.

There have been many vocal opponents of the amendment against whom I have had the pleasure to debate on the national airwaves and at public meetings up and down the country. We must find a better way to inform the public and have debates because all too often I found myself in yes-no debates in which the “No” side had nothing to do with the wording that was in front of us. Yesterday, for instance, when I was on RTE’s “Drivetime”, Ms Dana Rosemary Scallon asserted on several occasions a statement which I counteracted. She even asked if I was calling her a liar. RTE’s “Drivetime” announced only a few minutes ago that she has contacted the station acknowledging that she was in error and retracting all of her comments, but yet I was put in a position of having to counteract and not having an opportunity to inform the public of the debate at hand.

The Referendum Commission clarified in a statement that a referendum cannot be postponed. The law on the conduct of referenda is set out in the Referendum Act 1994. Once that order is made the only circumstance in which it may be changed, according to the Referendum Act, is if a general election is called, and there is no sign of that. There are no other circumstances and for good reason. The Houses of the Oireachtas passed this referendum Bill. We in this House had an excellent debate on it.

I agree with the Minister that we must maintain our focus on the substance of the referendum. I did my own research and I decided to vote “Yes”, not because the Minister, the Government or anybody else told me to do so. I did so based on the facts which can be summed up as follows.

This referendum will make children visible in the Constitution. It will provide a signpost to the courts, to policymakers and to decision makers that children are independent rights holders. It will shift the focus away from the failure of parents to the impact on the child and allow the State to intervene earlier and proportionately where necessary. By voting “Yes” in this referendum people will enable the 2,000 children who have been in foster care for over five years to become eligible for adoption. This referendum will give a voice to children and ensure that they are heard in judicial decisions that affect their lives. Finally, this referendum will ensure judicial decisions are made in the child’s best interests.

I recall in June, shortly after the child death review group report came out, expressing my profound sadness and the sense of responsibility and shame I bear as a member of a society that has systematically failed to protect the most vulnerable children. On rereading the report in preparation for this referendum, it was obvious that if the referendum was passed and in place, the outcomes for these children would be different. What is striking, and the most disturbing feature, was the invisibility of children in the social work case files. Children would have been required to have been heard. This referendum will change that. It will give children a voice. It is not a panacea but it is a first, albeit critical, step.

I have been campaigning for many years on this referendum. I should also note that some citizens have already started voting. Islanders have started voting. My own dad voted in hospital on Monday last. We cannot take this away. This referendum is now in place. It has a chance to culturally shift how we view children.

I heard the five Independent TDs state it should be postponed and I took the duty to contact each member in the Seanad Independent group. The six Independent Taoiseach’s nominees strongly believe that the poll should go ahead on Saturday.

There is a duty on all of us to vote on Saturday and I call on the public to come out in force to support a “Yes” vote, not because the Government has told it but based on the facts. The ruling today did not reflect in any way on the information and state it was misinformation. What it stated was that it was potentially promoting one side. It did not in any way question the facts put forward.

We all could list the campaigners for the “No” side, and it would be quite a short list. I am aware of so many organisations campaigning for a “Yes”. I merely want to put these on the record. This is the long list of “Yes” campaigners: the Bar Council of Ireland, the Disability Federation of Ireland, the Gaelic Players Association, IMPACT, INTO, the Irish Congress of Trade Unions, the Irish Countrywomen’s Association which never before stated how it would vote in a referendum and on this one, stated it is too important, the Irish Foster Care Association, the Law Society of Ireland, Macra na Feirme, Mandate, Fr. Peter McVerry, Dr. Dáire Keogh, president of St. Patrick’s College, Drumcondra, Dr. Geoffrey Shannon, Pól Ó Murchú, a solicitor who is working in the courts every day with such children,Arc Adoption, the Association for Criminal Justice Research and Development, Barnardos, BelongTo, Bessborough Centre, the Border Counties Childhood Network, the Campaign for Children, The Children at Risk in Ireland Foundation, Catholic Youth Care, Childminding Ireland, Children in Hospital Ireland, Children’s Rights Alliance, COPE Galway, Crosscare, Doras Luimní, Down Syndrome Ireland, Dublin Rape Crisis Center, Early Childhood Ireland, Educate Together, Enable Ireland, EPIC or Empowering People in Care, Family Resource Centre National Forum, Focus Ireland, Foróige, GLEN, Home-Start, the Immigrant Council of Ireland, Inclusion Ireland, Inspire Ireland Foundation, the International Adoption Association, the Irish Association of Community Training Organisations, Irish Council for Civil Liberties, Irish Penal Reform Trust, Irish Rural Link, Irish Second-Level Students’ Union, the Irish Society for the Prevention of Cruelty to Children or ISPCC, Irish Youth Foundation, Jack and Jill Children’s Foundation, Kits’ Own Publishing Partnership, Kilbarrack Youth Project, Lifestart Foundation, Marriage Equality, Miss Carr’s Children’s Services, Mothers’ Union of Ireland, MyMind, National Parents Council Primary, National Women’s Council of Ireland, National Youth Council of Ireland, No Name Club and Older and Bolder, One Family, One in Four, OPEN, Parentline, Parentstop Donegal, Pavee Point, Peter McVerry Trust, Rape Crisis Network Ireland, Saoirse Women’s Refuge, Saol Project, Scouting Ireland, Social Care Ireland, Sonas Housing Association, Spunout, Society of St. Vincent de Paul, St. Patrick’s University Hospital, Start Strong, Tennis Ireland, The Ark, Body Shop Ireland, the Integration Centre, the Irish Association of Social Workers, Treoir, UNESCO Child and Family Research Centre, UNICEF Ireland, Women’s Aid, Young Christian Workers, Young Irish Film Makers, youngballymun, Youth Advocate Programmes, Youth Aftercare Support Service, Youth Work Ireland and Youthreach.

That is an impressive list of “Yes” organisations that are campaigning. They have campaigned for years for the referendum, not just for the past few weeks. Let us put all of that in perspective. Many people are campaigning for a “Yes” vote. I call on the public to vote “Yes” because children need to be seen as independent rights holders. The referendum is a once in a lifetime opportunity and I urge people to vote “Yes.” It is the first step and the Minister knows that I shall tackle her on many more issues. I believe that strengthening children’s rights in the Constitution will make my hand stronger when challenging the Government’s policy on children’s rights.

Social Welfare Appeals System: Motion

7th November 2012

I welcome the Minister. I support the statements made by my Independent colleagues, Senators Mac Conghail and Zappone. Their interventions were spoken with great sincerity and were a call to ensure the independence of the social welfare appeals system. I welcome the report by FLAC which provides the evidence and underpins the motion. I thank my colleagues, in particular, Senator Zappone, who undertook considerable consultation and consideration of all the issues before tabling the motion. It is easy for me to endorse the motion as I know it is evidence based.

I will limit my contribution to stressing the importance of ensuring that the appeals system be underpinned by, and comply with, the due process and human rights principles enshrined in the Constitution and Ireland’s regional and international human rights treaty obligations. The requirements of independence are well established, namely, the tribunal should be independent of the Executive. This principle was laid down by the Supreme Court more than 60 years ago in McLoughlin v. the Minister for Social Welfare when it found that the appeals officers and deciding officers under the Social Welfare Act are required to be free and unrestricted by ministerial control in discharging their functions under the Act. Currently all the appeals officers, including the chief appeals officer, are nominated by the Minister for Social Protection, despite the system having its own premises and staff. It therefore cannot achieve perceived and actual independence or transparency, both of which are essential for public confidence in the system. There is no public appointment process for appeals officers and no publicly available terms of reference. Appeals officers are serving civil servants transferred from another part of the Department of Social Protection to the appeals office, which raises concern over the possibilities of external pressures, including removal at any time back to another part of the Department of Social Protection.

The selection criteria for appointments in the appeals office should be made public. In addition, appeals officers should be employed from a variety of backgrounds to allow for diversity and range of expertise. Regular training should be provided to all appointed appeals officers and should include welfare law, immigration law, EU law and human rights law, as well as cultural awareness and sensitivity in respect of ethnic minorities, sexual orientation and transgender issues and people with disabilities.

My colleague, Senator Zappone, outlined the importance of fair procedures. I support what she said but will not repeat it. A control audit of the decisions of the Department of Social Protection should be carried out to identify any trends or patterns of poor quality decisions.

The right to an effective remedy is well documented in the jurisprudence of the European Court of Human Rights in cases such as Kudla v. Poland and Conka v. Belgium, both decided in 2002 and in General Comment No. 19 of the UN Committee on Economic, Social and Cultural Rights in 2008.

In the context of social welfare appeals an effective remedy must be provided in the national framework. The current appeals process complies with Article 13 of the European Convention on Human Rights on the right to an effective remedy. However, the delays in the process itself as well as in the court system may counteract the value of the appeals as an effective remedy. The remedy may not be effective if the case is not heard or decided within a reasonable period. In such cases appellants may have to rely on charity, handouts, emergency payments or the help of friends and family to sustain them over a lengthy period to avoid hardship.

The Department of Social Protection accounts for 40% of overall Government expenditure and almost half of the country’s population benefit from social welfare payments. Clearly, the social welfare system affects a substantial section of the population, inevitably including the poorest and the most vulnerable.

We know about the increases in social welfare applications but the decisions at the heart of the appeals concerning people’s entitlements represent life-changing decisions for tens of thousands. The decisions often determine what, if anything, is put on the table for dinner, what goes into a child’s lunchbox or whether coats are worn to bed for warmth.

Senator Mulcahy argued we should get it right first time, with which I agree. However, we need to ensure we have an independent and transparent system of social welfare appeals. We do not believe the system in place is independent or transparent. Appellants are entitled to a fair, transparent, accountable and independent appeals system. It is the duty of the State to ensure its delivery, economic difficulties notwithstanding.