Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I thank the Senator. Like Senator Higgins, I have met the Association of Mixed Race Irish and I have heard from them their experiences as former residents of mother and baby and county homes and other institutions, and the impact of the racism they have experienced in their lives. It is important to recognise that, following the publication of the commission of investigation's report, in his State apology the Taoiseach specifically recognised the additional impact that a lack of knowledge and understanding had on the treatment and outcomes of mothers and children with different racial and cultural heritage. He further acknowledged that such discriminatory attitudes exacerbated the shame and stigma felt by some of our most vulnerable citizens, especially where opportunities for non-institutional placements of children were restricted by an unjust belief that they were unsuitable for placement with families. The explicit experiences of persons of mixed-race heritage in these institutions has been recognised in the State apology made by An Taoiseach.

The proposal in the amendment raises the question of whether this legislation is the place where a response to this can be provided. The primary means through which Senator Higgins indicates a response could be made is the provision of a tiered system. We have discussed the idea of a tiered system and I am happy to discuss it further. When the interdepartmental group that was tasked with setting out the ambit of the redress scheme undertook its work, it looked at the issue of a tiered system because it came up in some of the discussions. The core focus that we have sought to achieve is a non-adversarial system. This is something on which we all agree. When the interdepartmental group published its report, it acknowledged that the approach being adopted is not without shortcomings or criticism. It does not recognise the individual experience. It does not recognise that some people had a worse time in the institutions than others. It recognises that some people who made submissions to OAK Consulting's report called for an individualised approach, whether those who experienced racism, those who were exposed to vaccine trials or those who experienced forced family separation.

The interdepartmental group considered the alternative tiered approach, with a common experience general payment and specific payments for abuse and trauma that would be recognised on the basis of some additional evidence provided. When it looked at the detail of how this additional evidence would be provided, it came to the conclusion, with which I agree, that it would be problematic approach, in particular with regard to the burden of proof to avail of a higher level of payment. As Senators know, under the scheme as provided the sole element of proof that has to be adduced is the period of residency in a particular institution. We could design a scheme that has a higher tier but it would need to have some element of a burden of proof.Perhaps that burden of proof might not be set at the full civil standard, but there is undoubtedly a need to go beyond documentary evidence because, in the majority of situations, there will be no documentary evidence for racism. There would have to be a situation whereby there is an evidential threshold and people would have to be brought forward to provide documentary evidence. In many circumstances, as I said, the evidence will not be there. That leaves the situation I alluded to earlier in which the State would be saying it has created a system designed to recognise specific additional impacts, but it cannot now be accessed. That is deeply problematic.

Instead, the State is providing a generalised payment, recognising that people suffered across these institutions and that what is being offered is not a panacea or flawless but it does offer an approach that can be implemented reasonably efficiently. That is not an irrelevant consideration when having to provide payments at a rapid pace to 34,000 former residents and provide them in a way that does not force people to provide testamentary evidence that may not meet a standard of proof. I recognise there are different views on this issue and some people disagree with our approach. The concerns raised by the interdepartmental group in recommending the non-individualised approach and advising to go with the common experience payment are not illogical. I find them quite convincing and, for that reason, we have proceeded as such.

That is a long answer but it is relevant to the issue we are discussing, the question of the vaccine trials and other areas as well. I hope it gives some indication to the Senator of why we have chosen the option we did. I do not like coming in here and repeatedly saying "No" to amendments. However, it is my view that the common experience payment is ultimately the preferable approach.