Stephen Donnelly (Wicklow, Fianna Fail) | Oireachtas source

I move amendment No. 12:

In page 12, between lines 26 and 27, to insert the following: “(3) The Tribunal shall be entitled to award aggravated damages in circumstances where—

(a) the Tribunal determines that a claimant has been cross-examined in an unnecessarily aggressive and/or adversarial manner by a respondent, or

(b) the Tribunal determines that the respondent advanced a defence that it knew or ought reasonably to have known was not justified by the evidence available to that respondent.”.

This is a separate issue to the one we just discussed. The purpose of this amendment is to provide protection to women as they are being cross-examined. Much of the genesis of this tribunal was a very real concern for the trauma which the women were going through in the High Court. The Taoiseach promised that no women would have to go to court again and there was a strong reaction among the public to how women were being treated in some cases. Maybe I am being unfair as I did not see the proceedings and am only going on reports, but I understand that women were being asked very personal questions about their past sex life, almost in a victim shaming line of questioning. By asking a woman who has cervical cancer about her sex life, presumably the implication is that it is partly her fault. The public reaction and the reaction in the Oireachtas to that was very strong. Women should not be subjected to this kind of questioning. One thing which the tribunal achieves is that it brings the matter into private session so that at least women who want to use the tribunal who do not wish to answer such questions in public may do so in private.

The second part is the process of questioning itself. In the High Court, a judge can make an award for aggravated damages based on how a witness is cross-examined. A judge might find in favour of the person being cross-examined on the basis that he or she believes there was negligence and the judge may award a certain sum. On top of that, the judge may make a second award based on how the witness was treated under cross-examination. It might be asked then why bother restating, to an extent, a power that is already there. It is to underscore one of the core principles of the tribunal. Negligence is being established and the labs and the State have the right to defend themselves, of course. By referencing aggravated damages for unnecessarily aggressive or adversarial cross-examination, however, as opposed to just saying that the rules of the High Court apply, a point is being made in the legislation that while parties may cross-examine and have the right to defend themselves in the case of negligence, they should be very aware that the treatment of these women is front and centre in the mind of the tribunal. That is why it is there rather than just accepting that it is part of the normal powers of a High Court judge. It is stated explicitly because while the tribunal, by definition, achieves one of the aims, which is to move from public to private session, another core aim is to provide a respectful way of making these cases, although it may still be robust. That is why it is there.