Category: General

Tuesday, 2nd July 2013

Part 1:

I welcome the Minister back to the House on Report Stage of what has become a very comprehensive Bill. Last Wednesday on Committee Stage, I outlined in great detail the rationale and urgency behind my amendment, and I do not propose to do so again today because we are all here. I have conducted extensive legislative analysis on my proposal, which I believe strikes the appropriate balance between the right of the accused to procedural fairness and the right of the child witness to privacy and personal dignity. Without ready access to legislative drafters, it is difficult to translate a legitimate and necessary reform such as this into a legislative proposal, and I thank the Minister for his critique of my amendment on Committee Stage. It has given me this opportunity, albeit with an extremely short turnaround time, to revert with a more robust amendment that I urge him to accept today.

The Minister’s primary concern on core procedure is very valid. I have altered the wording to allow the matter to be considered pre-trial. I have also added a reference to the rule of court to allow for further regulation of the application process by way of an amendment to the rules of court, should the Minister or the court rules committee find it necessary to do so. For example, the rules could set out a prescribed form for such applications, time limits and so on.

I noted the Minister’s concerns in respect of the qualifications of a counsellor and clarity as to whom communication should be regarded as confidential. It is unwise to specify any particular credential for counsellors. This is partly due to the wide range of training and education approaches in the area. More important is the avoidance of a situation where communication made by a child in confidence is disclosed simply because the counsellor did not pass all the exams, or passed the wrong kind of exams. The regulation of the counselling profession is an important question, but there is a danger of allowing a preoccupation with credentials to distract from the purpose of this amendment. However, to address the Minister’s concern, I have added the following short provision which allows the Minister to refine, by way of statutory instrument, the definition of “counselling” and “counsellor”, while allowing the amendment to proceed.
The amendment I have proposed states that the Minister “may by order set out detailed criteria regarding the conduct of sexual assault counselling, and the training or qualifications of those who provide sexual assault counselling for the purposes of this Act.” I also noted the points the Minister made about the word “encouragement”. While I believe it is a remote concern, I have removed the word from the section.

I thank the Minister for his letter following the Committee Stage debate and I would like to address some of the points he raised therein. He said that any proposal should address the rights of an adult as well as child complainants, and that immediate action is required, and as such he has decided to deal with the issue in the forthcoming sexual offences Bill. In my Committee Stage intervention, I stressed the urgent to address the issue of third party disclosure of confidential records for adults complainants. I know that there is a considerable amount of work being done by interested members, including myself and Senator Bacik, and by advocacy groups, and I welcome the Minister’s commitment to act. However, I do not see any justification for not proceeding with a legislative solution for children immediately in this Bill, as opposed to the sexual offences Bill, for which the heads have not yet been approved by the Government. In February 2012 I brought forward a motion on child abuse material, and at that point I was promised it would be in the sexual offences Bill that would be published shortly. I hope the Minister can understand that this is a very real and pertinent issue that is being dealt with at the moment. Every child has the right to protection from harm, abuse and exploitation, including from criminal justice arrangements.

As an aside, I must raise the experience of child victims of sexual abuse and the criminal justice system about repeated interviewing by separate agencies, most commonly in the context of parallel Garda investigations alongside a child protection investigation. The attendant risk of further trauma and upset for a child in this context can be avoided by joint interviewing, which is done in other countries. From a legal perspective, limiting the number of times a child is interviewed will reduce the potential for the type of contamination of a child’s recollections of events which can lead to the failure to secure a conviction.

We need effective co-ordination and training of gardaí and social workers interviewing child victims of sexual abuse. I note the arrangements in place for this in our neighbouring jurisdictions, such as the UK, in achieving best evidence, video interviews and the detailed, recommended practice for interviewing child witnesses in the latest edition of “Achieving best evidence in criminal proceedings, Guidance on interviewing victims and witnesses, Guidance on using special measures” and “Guidance on joint interviewing of child witnesses in Scotland in 2011.”

I have already pointed out that there has been a notable increase in requests from the DPP’s office seeking access to therapists’ notes of children’s private and confidential therapy sessions over the last six to 12 months. That is a very real issue right now. As an independent office, I appreciate that the Minister cannot directly instruct the Office of the Director of Public Prosecutions to revise its practice in this area. There is no time to waste in introducing legislative guidelines. I also appreciate the need for a solution that is workable from both a prosecution and defence perspective, but the arrangements proposed do not affect in any way the disclosure of material evidence or evidence relevant to a criminal trial. The issue has been raised on a number of occasions, most recently in 2010 by Dr. Geoffrey Shannon, who is the Government appointed special rapporteur on child protection. He stressed the urgent need for legislation then. That was three years ago and no legislation has come forward.

I do not have the legislative drafters that the Minister has at his disposal and the advice that he receives. I do not need it for this amendment today in the Seanad, but it is not good enough that this will be promised in a Bill in the near future. This is about children at the moment whose records are being handed over. Parents have told me they are not sending their child to counselling because of this situation. We have an obligation to do something. I appreciate the Minister understands this issue as much as I do; probably more so from dealing with cases. I have put this amendment forward in good faith and I have tried to get the balancing right. I am willing to go back and work on this. If it has to be brought through in the Dáil, I have no difficulty with that. It is not about my name, but about the children in these cases. We have seen the increase in the DPP requests in the last six to 12 months. This issue is escalating rather than going away.

Part 2:

I thank the Minister. On the last point, the Cabinet Secretary on Justice at the Scottish Parliament has issued guidance notes on joint investigative interviewing of child witnesses. That could perhaps be done quite easily in co-operation.

With regard to the substantive amendment, perhaps in the consultations the Minister might, in addition to consulting the DPP, consult the NGOs and the victims’ units that deal with the cases at the moment, and discuss their relationship with the DPP. They are very conflicted over the role they play in counselling and how to ensure that people are brought to trial for the offences they have committed. They face an impossible dilemma. We need urgently to find a way to deal with it.

I am very happy to share the work I have done so far with officials to see if we can progress this issue. I take the Minister’s word on the sexual offences Bill. The only caveat I will enter is that if another miscellaneous provisions Bill comes along in the meantime I will back here and the Minister will remember that I said I would come back here.

If another miscellaneous provisions Bill comes along in the meantime, I will be back here and the Minister will remember that I said I would come back because we all know that we have good intentions to bring things forward. I know that the sexual offences Bill will be comprehensive and I would prefer it to be dealt with in a comprehensive manner, but for adults, there is a pressing urgency. Specifically for me, however, this involves the vulnerability of children and child witnesses; therefore, there is urgency with regard to child witnesses specifically.

Part 3:

Last but not least, I echo the thanks of the House to the Minister and his officials. The changes in family law and court proceedings are very important. I acknowledge not only the Minister’s engagement with us but also with NGOs. Perhaps in looking back later people might see that not only has he engaged in the House on his reforming agenda but he also has been willing to listen to views from all sides. I thank him for this engagement. I hope one day to succeed with an amendment I tabled. Therefore, I have set a challenge for myself. When the Minister comes to the House, it is very encouraging and worth the effort we put in as Senators knowing that he will engage robustly but also appropriately, as we should on all legislation. I thank him for this.

Wednesday, 26th June 2013

Part 1 of 2:

I tabled this amendment in the utmost good faith and I thank my colleagues in the Independent Group for their support for the amendment.

The issue of court ordered disclosure of complainants confidential records, be they medical, psychiatric or therapeutic and be the complainant an adult or a child, in the absence of any legislative guidelines is one of considerable and pressing concern. I have no intention of undermining the urgency and necessity relating to adult complainants but I see this Bill as an opportunity to introduce legislative provision and clear practice for the disclosure of sexual assault counselling communications regarding children who are witnesses in criminal trials.

I note the work in this regard and the calls to action by many children’s and human rights NGOs, civil society organisations and practitioners in the field of specialised assessment and therapeutic services for children who have been sexually abused. I am grateful, in particular, for the support and advice I have received from Rape Crisis Centre Ireland and Children at Risk Ireland in the context of assisting me in understanding the current lacuna in the protection of confidential therapy notes and records and developing the legislative solution proposed in the amendment.

I am acutely aware of the need to strike the proper and appropriate balance between the right of the accused to procedural fairness in child sexual abuse cases, the right of the child witness to privacy as well as his or her right not to be revictimised or unduly traumatised by the criminal justice system and the public interest. It is wholly compatible with Irish constitutional law, Ireland’s obligations under the European Convention on Human Rights and the best interest of the child to provide in law that the disclosure of sexual assault counselling communications will only be granted by the trial court where the evidence sought has substantive probative value, where there is no other evidence which could prove the disputed facts and where the public interest in disclosure outweighs the potential harm to the child.

I wish to provide an overview of the current law in Ireland, the jurisprudence of the European Court of Human Rights and arrangements in other common law jurisdictions. Such an overview is relevant to the arguments I am making in support of the amendment. However, I do not propose to document each area exhaustively because I am confident that the Minister, as a legal expert, is au fait with them and as a result of the fact that they have ably synopsised by the Government special rapporteur on child protection, Dr. Geoffrey Shannon, in a number of his annual reports and, most recently, his fourth such report which was published in 2010. It was via the latter that I first became aware of this issue. The report to which I refer contains Dr. Shannon’s finding that there was an urgent need for legislation governing the issue of disclosure of private records, such as medical records, and counselling notes.

The right of the accused to justice and procedural fairness is the cornerstone of the Irish criminal justice system and is principally guaranteed under Articles 43.1 and 43.2 of the Constitution. The European Convention on Human Rights provides further guidance via Article 6, which protects the right of the accused to the presumption of innocence and the right to a fair trial, and Article 8, which provides a right to respect for one’s private and family life and home and correspondence, subject to certain restrictions that are in accordance with law and necessary in a democratic society. The most relevant restriction in this context relates to the protection of the rights and freedoms of others. The issues at stake here clearly require the balance of what, in this context, are competing interests. There is a substantial body of jurisprudence from the European Court of Human Rights in Strasbourg which finds that a complainant’s Article 8 interests can be accommodated alongside the Article 6 rights of the accused.

The decisions from Strasbourg demonstrate that while the right to a fair trial is absolute, none of its contingent parts, of which disclosure is one, is itself absolute. A fine example of this can be found in the Doorson v. The Netherlands decision of 1996, in which the courts held that Article 8 interests:

…are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.

The court was confirming that while Article 6 is important, the concept of fairness that it embodies has many possible configurations.

The practice regarding disclosure orders for third parties has been considered in the past 15 years by many of our fellow common law jurisdictions. The disclosure process settled upon in these jurisdictions range from being governed by judicial rulings, as in Northern Ireland, to legislation, as in Australia, Canada and Scotland, to a combination of both, as in England and Wales. I have examined all of these. They vary in their application from being manifestly weighted in the interests of the right of the accused to a fair trial, as in Scotland, to a comprehensive codified system for the use and disclosure of confidential records in sexual offence cases, as in Canada, to models requiring judicial scrutiny on a case-by-case basis, as in Australia. Whatever the approach adopted, what is most important is that each jurisdiction has seen fit to debate the balance of rights and public interest considerations and to apply standards governing disclosure, non-disclosure and objection to disclosure.

In Ireland there is no legislative provision governing disclosure nor have these important issues been subjected to sustained analysis or consideration by the Irish superior courts. The matter is crucial with respect to child witnesses who have been the victims of sexual abuse. They are uniquely vulnerable by virtue of their age and the heinousness of the abuse perpetrated against them. My understanding is that under current practice, therapists in recent years, especially in the past six to 12 months, have been receiving increasing numbers of requests from the Office of the Director of Public Prosecutions seeking access to the notes of children’s private and confidential therapy sessions.

I have several serious concerns. One is re-victimisation, creating a sense of powerlessness, stigma and betrayal at having innermost thoughts and feelings examined by a third party and, potentially, the alleged abuser. Another is the perception of a breach of trust, a betrayal by the therapist following the therapy process which could undermine the healing potential of therapy. This could also create a conflict between seeking counselling and reporting or proceeding with a prosecution. One could argue that the disincentive effect of disclosure of personal records would be such a powerful disincentive to report sexual offences – this relates to the public interest in the pursuit of justice area – and seek counselling – this relates to the public interest in restoring the child’s well-being and ability to function in society area – that it seriously prejudices the public interest.

There is a strongly held view by many practitioners in specialised assessment and therapy services for children who have been sexually abused, that therapy notes should be privileged outright on the basis that they hold neither material evidence nor information relevant to the proceedings. When we reflect on the purpose of therapy for children who have been sexually abused, what the therapy involves and, moreover, the arrangements these services have in place to manage the process, the rationale for such privilege is strong. Therapy, as a whole, is not concerned with making judgments or assessing the veracity of what is shared in sessions. Rather, it is a particular type of human engagement whereby the exploration of the thoughts and feelings of the child at a particular point is facilitated. Therapy notes, in turn, are context specific. They derive from therapeutic encounters and, as such, are concerned with documenting feelings, thoughts, hopes, fears and dreams rather than actual facts or material evidence. Ultimately, the aim of therapy is to assist a child to get back to a life that is not dominated by the sexual abuse experience and to equip the child to build trusting relationships. In doing so, the therapist will address patterns of behaviour and responses that have become unhelpful, burdensome or troubling to the child’s living experience.

Therapy can also draw attention to healthy responses and coping strategies shown by the child in and out of session. This can involve the use of fantasy and therapeutic play scenarios, especially for younger children, in which the children can try out different roles to make sense of the abuse they experienced. However helpful to the children, therapists are becoming increasingly concerned about how notes describing such scenes might be interpreted in a legal arena and taken out of context. Trust in the therapeutic relationship and the creation of the a safe space is paramount to the effectiveness and success of the therapeutic process. It is difficult to envisage how this can be achieved where privacy and confidentiality of these therapy sessions are not sacrosanct.

I suggest that the effectiveness and success of the therapeutic process is an important part of the public interest consideration in restoring the child’s well-being and ability to function in society. I could offer several harrowing examples of the devastating effects the current practice is having on child victims of sexual abuse and their families, including the conflict that ensues between either seeking justice or striving for the healing and well-being of the child. However, to speak about these cases on the record would be inappropriate. There is one case I can refer to, however, which was given to me at the request of the subject. It is a case I find deeply disturbing. The case highlights the reaction of one teenager, currently engaged in sexual abuse counselling, at the thought of their therapy notes being disclosed to a third party. The person said if they had known starting the counselling process that their therapy notes might be disclosed, they would never have started the process. Having already started, but now knowing it is a possibility, they are afraid to explore certain thoughts and feelings, thus undermining the therapeutic value. Most upsetting, they said that the idea of their trauma being scrutinised by others was tantamount to their insides being poked at again. This is a classic example of the re-victimisation I referred to earlier. There is a sense of powerlessness instilled by the criminal justice system in the absence of disclosure guidelines and this must be addressed.

I note the language of the European Commission in respect of the EU directive establishing minimum standards on rights, supports and protection of victims of crime, which was adopted in October 2012. The Commission stated that one of the greatest tests of the quality of our justice system is how well we treat our victims and that appropriate treatment is a demonstration of the solidarity of our society for each individual victim and a recognition that such treatment is essential for the moral integrity of society. It is crucial, therefore, not only to combat and prevent crime but also to properly support and protect individuals who fall victim to crime.

It is important to this debate to understand the management systems that specialised assessment and therapy services employ and their relevance to disclosure. The first phase, which is distinct from therapy, is the compilation of an assessment report whereby the practitioner will take account of the abuse alleged by the child. This is the baseline account of what the child says has happened. It is passed on to social workers and the Garda, where appropriate. It is available to the DPP and, in the context of a criminal trial, is not difficult to see how its content is regarded as relevant information. However, then the process moves on into the next phase, away from the who, what, where and when. Instead, the focus is on therapeutic issues that arise for children in their recovery. If any information arises in the course of the therapy phase that substantively alters the picture in the assessment report, the practitioner will update the assessment report accordingly and pass it on to the relevant social worker and so on. In essence, any information or evidence relevant to a criminal trial for child sexual abuse is already disclosed as a matter of course. The information left contained in the counselling records and therapeutic notes have no material relevance but it represents the heart and soul of a damaged child. As the Minister noted earlier, the Bill is about addressing issues that have been long ignored. I put it to the Minister that we must bolster our protection of these child witnesses and I offer the amendment to the Minister in this regard as a legislative response.

Part 2 of 2:

I thank the Minister. I will not press this amendment. The Minister robustly engages in exchanges on the amendments tabled by Members. I know that, like me, the Minister understands the importance of this amendment. Having listened to his response, I know he appreciates the timeliness if we can find an appropriate and balanced wording. As I said, many practitioners wanted me to look for absolute privilege, which is probably what my heart would like to seek, but I realise we must achieve a balance which is what I strove to do. I take on board what the Minister has said. I looked at legislation for ways we previously defined counselling advice, so I am very happy to share that information with him.

In 2010, Dr. Geoffrey Shannon identified in his fourth annual report the urgent need for legislation governing the issue of disclosure of private records, such as medical records and counselling notes. It is now 2013. I would be very hesitant to go any other route, even though I have utmost trust and faith in the Law Reform Commission. The issue of adults must be looked at but for me there is a real and pressing concern in regard to children. I will engage in the process outlined by the Minister.

Wednesday, 26th June 2013

Part 1 of 2

I move:

”That Seanad Éireann:recognises that corporate and market forces can have a significant impact on people’s lives and public health outcomes and this provides strong justification for legislative and regulatory responses by government to reduce the influence of commercial and vested interests associated with tobacco, alcohol, gaming and other industries on public health and welfare policy;
recognises the need to provide decision makers with guidance to meet public expectations for transparency, accountability, integrity and efficacy when considering, developing, debating and implementing legislation or government regulations;
and calls on the Minister for Expenditure and Public Reform:
— to update the House on the General Scheme (Heads) of the Regulation of Lobbying Bill 2013;
— to debate with the Members of Seanad Éireann the need for transparent and accountable regulations governing Parliamentarians in relation to any engagement with representatives from tobacco, alcohol, gaming, or other commercial and vested interests.”.

The motion has been tabled by the Independent Group comprising myself and Senators O’Donnell, Mac Conghail, Mary Ann O’Brien and Zappone. We felt that it was important to table the motion as Private Members’ business because we wanted to focus on the lobbying of parliamentarians and to reflect on our role in that process.
When I saw the Government’s amendment, which I shall deal with in more detail later, I was surprised that the role of parliamentarians was not mentioned. The aim of the Independent Group’s motion is to shine a spotlight on parliamentarians, particularly the role of lobbying in the areas of tobacco, alcohol, gaming and other interests that have a public health and public welfare policy.

Everybody knows what role the tobacco industry plays in public health. The World Health Organization has prepared a report that identified a number of forms of tobacco industry interference which has been used to derail or weaken tobacco control. An example in the past few weeks has been the Minister for Health’s proposal on packaging. I would summarise the WHO’s list is as follows: manoeuvring to hijack the political and legislative process; exaggerating the economic importance of the industry; manipulating public opinion to gain the appearance of respectability; fabricating support through front groups; discrediting proven science; and intimidating governments with litigation or the threat of litigation. The WHO has clearly identified many forms of interference and I can see the hallmarks of it here in Ireland.

Let us examine alcohol-related harm. Too much focus has been placed on how alcohol affects industry. I have written two EU reports on the affect of alcohol-related harm. First, the issue must be adopted as a public health issue. All too often people have been sidetracked or derailed when they tried to deal with the matter. We have many reports on the issue and the figures are unacceptable. The latest report that I participated in was the one prepared by the Oireachtas Joint Committee on Health and Children. In early 2012 the committee had all-party agreement on the major recommendations in its report but no action has been taken. I surmise that the alcohol industry has influenced the debate. We have witnessed lobbying during the debate on the marketing of alcohol and alcohol sponsorship of sporting events. The industry has far too much say in these issues. My problem with such influence is that it does not happen in the open but at meetings or expensive dinners.

Let us examine the tobacco industry. Many factors hinder efforts to cut the unnecessary toll of death and disease. The Irish Heart Foundation and the Irish Cancer Society have identified that the tobacco industry has great determination and has successfully influenced vital areas of policy. The tobacco industry is one of the best funded and sophisticated corporate lobbying interests in the world that works to build relationships with legislators and policy makers. The tobacco industry has a fundamental conflict of interest with public health policy. For decades the industry has worked across the world to market its killer and addictive products to children, deceived the public about the harmful effects of tobacco use and fought any policies designed to reduce tobacco use and save lives. Like any other corporation the primary obligation of tobacco, drinks and gaming companies is to deliver profits to shareholders and they are not concerned about public health issues. That means selling more of their addictive products.

I wish to refer to public health policy. Article 5.3 of the WHO Framework Convention on Tobacco Control states that there is a “fundamental and irreconcilable conflict between the tobacco industry’s interests and public health policy interests.” Parliamentarians should declare when they are approached by these industries. We cannot leave it to the lobbying companies to list their consultations with politicians, perhaps using a PR agency. That is not good enough because they represent specific interests of the industry. I would prefer if companies declared their interest rather than list a collection of consultations with politicians. The latter is not accountability or transparency.

I wish to raise the concerns of organisations to whom we should listen, such as the Irish Heart Foundation and the Irish Cancer Society as they are at the coalface dealing with these issues. They have written to me stating they have been informed by a number of elected officials that tobacco industry representatives have been actively lobbying Members of the Oireachtas on the price of tobacco products in Ireland and the volume of illicit tobacco. They also point out that information gathered from parliamentary questions, media reports and freedom of information requests indicate that the tobacco industry representatives have considerable contact with Government officials.

From my reading of Article 5.3 of the World Health Organization framework that should not be happenings. We as parliamentarians should not accept this happening. We should not be meeting them. We need to ensure we have a clear regulatory system for lobbyists, but also for parliamentarians. What is needed is a code or pledge that parliamentarians sign stating that in the interest of public welfare, there are certain companies, sectors or vested interests that they will not meet or Members may be allowed to meet those organisations but must declare they have done so.

This brings me to the important work that Transparency International Ireland has done on a legislative footprint. When I came to the House I checked with the office of the Clerk of the Seanad about conflicts of interest I might have when I table amendments. I was advised quite clearly that I should make a declaration of interest. I have actively done that. I am involvedpro bono in an organisation for NGOs and I do not get an income from it. For clarity, I will always declare any interests I might have. When we deal with policy and legislation I do not hear people announce often they have met representative from any of these companies. However, the Irish Heart Foundation and the Irish Cancer Society report that Oireachtas Members are meeting representatives of the tobacco companies.

It is important to look at ensuring that if contacts are made with officials, Ministers or parliamentarians that the footprint is clearly noted when we are adopting legislation. Following scandals in the European Parliament involving parliamentarians ready to accept bribes in exchange for legislative favour, the Parliament recommended to the bureau to establish the requirement of a legislative footprint but it has not yet been implemented. This goes to the crux of the difficulty we have and to the crux of the motion we tabled and the amendment to it. We find it very comfortable to talk about the lobbyists and how we will regulate and control them. That is important and I do not underestimate that challenge but there is also a responsibility on ourselves as parliamentarians to state what is acceptable or not, which is the reason I was very disappointed in the amendment tabled by Government. We worded our motion in very open language. It states, “to debate with the Members of Seanad Éireann the need for transparent and accountable regulations governing Parliamentarians in relation to any engagement with representatives from tobacco, alcohol, gaming, or other commercial and vested interests.” What was the problem with that paragraph? I wanted to make provision for a pledge or a contract. We left it open to have a debate in the House, yet those on the Government side could not incorporate that into their amendment. In my view that raises serious questions.
My colleague, Senator Marie-Louise O’Donnell, will second the motion.

Part 2 of 2:

I thank colleagues for their participation in the debate. I particularly thank my Government colleagues for not seconding their amendment, which I assume has been withdrawn and that we will not have to be pushed to a vote on the issue.

I was disappointed at the selective citing of the OECD principles in the amendment. Several of the principles were cited but not principle No. 6. The comment on it calls for transparency and integrity in lobbying, and mentions the Government should also consider facilitating public scrutiny by indicating who has sought to influence legislative or policy-making processes, for example by disclosing a legislative footprint which indicates the lobbyists consulted in the development of legislative interests. This is the heart of what we are trying to bring forward in our motion.

We called for a debate and not for anybody’s hands to be tied. We wanted a debate on the role of parliamentarians, which is exactly what we have had today in the Seanad. This is a first step in the process. Many interesting points have been raised with regard to the role of lobbyists, and this is important, but we also need to focus on ourselves and our role as parliamentarians. Several weeks ago the Government launched the healthy Ireland initiative. What we propose supports this Government policy. We would like to see a legislative commitment to publish details of meetings on public health and welfare issues. The regulatory impact and legislative footprint should be examined. Why not have a code of conduct for all branches of Government? Why not give clear guidance to our parliamentarians? Senator Byrne disclosed his experience. Why are we not given clear guidance so we do not have to find out by accident? Senator Marie Louise O’Donnell, who seconded the motion, clearly showed the reality of what is happening in the gaming industry. I would like to see assurances that the Cabinet handbook will be updated to include Article 5.3 of the World Health Organization framework convention on tobacco control.

Senator Whelan asked the pertinent question as to why alcohol sponsorship was not dealt with as a public health issue. This is something we must ask ourselves as parliamentarians. As I have stated previously, I wrote two reports on alcohol-related harm for the European Economic and Social Committee. Most Senators have probably not heard of the committee, but the European spirits organisation lobbied intensively every one of the 344 members of the committee on my report. It tried to discredit me, the NGO for which I was working and the report itself. Thankfully it did not win and my colleagues in the committee supported me in the majority. The motion we have tabled was for the purpose of having this debate, and I thank the House for its support. It is a first step in starting the process and the public has an expectation of us that as parliamentarians we must have higher standards.

Wednesday, 27th March 2013

I welcome the Minister. I endorse everything my colleague, Senator Fiach Mac Conghail has said, and thank him for all his work in the lead-up to the debate. I am honoured to second the motion on behalf of the Independent Group because, given the experience of each one of us, we all have tales and testimonies we could share with the House. The Senator started by showing us the figures from the Irish Nonprofit Knowledge Exchange of the number of people employed and the number of volunteers involved in community and voluntary organisations. That made me think of jobs. We regularly hear from the Government that one cannot create jobs but one can create the environment to sustain jobs. In the same say, the Government cannot create philanthropy but it can create an environment to encourage and sustain a culture of planned giving to charities and NGOs. What we are about is trying to ensure that the Government creates that environment and sustains that culture of planned giving. The report on the Forum on Philanthropy and Fundraising is a good start but I look forward to hearing the Minister’s update on how the recommendations are being implemented and, therefore, I do not want to pre-empt that. I have a fear that after the report is published each Minister will go back to his or her own Department and look within their own Departments. The reality is that as cuts are increasing, organisations are going from Department to Department. I could list several organisations that are funded by a multiple of Departments and the Departments do not know that they are funding organisations to do the same thing.

I wholly endorse what Senator Fiach Mac Conghail has said about the need for proper and consistent data and evidence. Before I was appointed as a Senator I did not know too much about the arts. I was a spectator in the arts and that was about it. However, I was very involved in the community and voluntary organisation sector. What we have found striking in the past two years is that the challenges and the landscape are akin. The challenge for civil society organisations and for charities is to realise that while our missions may differ, the environment in which we are working is similar. I will not begin to mention the challenge if the Government introduces, which I hope it does, a ban on alcohol advertising for sports organisations. There is an increasingly challenging environment without the recession and we also see the exit of the philanthropists, mainly Atlantic Philanthropies and One Foundation.

The reality is that many of the non-profit organisations that I know from the children and youth sector are involved in delivering essential public services across the length and breath of the country. The advocacy initiative is developing a report. One of the issues it raised a few weeks ago was the chilling effect. It made me think because a few weeks ago I shared, thanks to The Irish Times and the Irish Daily Mirror, my critique on the development of the planned new child and family support agency. Following publication, I was surprised by the level of correspondence and telephone calls I received from organisations. They wholeheartedly agreed with me but they did not wish to speak about it publicly. The new agency has a budget of €545 million, more than €100 million of which will go to organisations and NGOs to provide services, but as it cannot yet define or outline what these services will be organisations are on tender hooks. These organisations have direct first hand experience of working with most vulnerable children and could be invaluable advocates. On the other hand, I have a very positive example from my own experience, before becoming a Senator, having been chief executive of the Children’s Rights Alliance. At the end of 2006 we managed to negotiate with the Minister’s Department for multi-annual funding and from that we were able to leverage funding from Atlantic Philanthropies and One Foundation. This comes back to my point about the Government creating a culture of planned and sustained giving. All too often organisations only find out in quarter one or quarter two of the year of expenditure what funding they will receive from the State.

No business could operate in this way. How does the Minister leverage funding from corporate organisations, philanthropists and others, when the Government is not creating that culture?

The Government needs to co-ordinate between the various Departments. We do not have information on how much funding the State gives in total to NGOs and charities. The Charities Act 2009 needs to be fully implemented. No doubt my colleague, Senator Mary Ann O’Brien will say more on this.

The Government should not limit how it can support the work of charities and NGOs in other works, obviously, through developing philanthropy and creating that culture but also through looking at the use of public buildings such as school buildings, which, in my experience of youth work organisations, are locked up every evening. In many cases, we cannot access school buildings and must hire commercial buildings. If one looks at the Valuation (Amendment) (No. 2) Bill 2012, the different rates being charged throughout the country to arts, sports and youth organisations do not create a even field. On a positive note, as I like to be positive as well, on the property tax I made the case in December last that charities that hold properties for hosting and accommodating activities for children and young people should be exempted from the property tax and I am happy that the Minister for Finance, Deputy Noonan, accepted my amendment and introduced the exemption to the property tax Bill.

The Government needs to create an environment to encourage and sustain a culture of planned giving to charities, and it does so by leading by example. It needs a co-ordinated approach to funding. Currently, there is a dearth of accurate and robust data on which to base public policy. This has been proven repeatedly and Senator Mac Conghail has really made the case for this. The State needs to be able to publicly and transparently account for how much it gives to each NGO and organisation. It needs to do that in a multiannual way, ensuring that outcomes are delivered on. It needs to invest in organisations to allow them to leverage and plan for their outcomes.

This debate today is a first step in looking at how we ensure that the challenges ahead can be faced together. I am concerned that everything happens within a Department, for example, one would assume that it is the Department of Children and Youth Affairs, under the youth service grant scheme, that gives most funding to youth work in Ireland but it is still the Garda youth diversion project. Do we wait for the problems to happen or do we invest early? By investing early the Government instills confidence, saying, “This is what it is about”. It means that when the Minister goes to organisations, he can ensure that the Government must have a way of having structured vehicles for major giving. It must have a social innovation fund so that we can have this transformative impact and change that we all want.

I read that we can decide governments through the ballot box but philanthropy is a way that the public can decide what it wishes to support and where it wishes to see social impact.

Wednesday, 6th March 2013

Last December I tabled an amendment to this Bill at a time when the House was debating the Social Welfare Bill. At that time I was particularly downhearted about the role of the Seanad Members as legislators. I was all the more encouraged when the Minister for Finance, Deputy Noonan, said that he would take the amendment and look to bring it back within the Finance Bill later in the year. It is not every day that I have an opportunity to thank the Minister for Finance, Deputy Noonan, and his officials, for bringing forward the amendment to exempt properties used by a charity for recreational activities. He cites in particular the guides and scouts. Youth work organisations have faced cumulative cuts of up to 30% already and they expect to face more cuts. Any relief, even smaller relief, is more than welcome. I realise that organisations will need to apply for the exemption in order to avail of it. I wish to put on the record of the House that the Irish Girl Guides, the Catholic Guides of Ireland and Scouting Ireland, have asked me to thank the Minister for this exemption which will, I have no doubt, be used by other charitable and youth organisations throughout the country. I thank the Minister most warmly for granting this exemption.