Simon Harris (Wicklow, Fine Gael) | Oireachtas source

In fairness, I gave Deputy Kelly credit the last time. Deputy O'Connell often does so on these matters as she is well informed. In fairness to Deputies Kelly and Smith, they both said very openly the intent of the amendments is to replicate the hepatitis C compensation tribunal. My starting point on this, which I believe we would all acknowledge, is that this matter is very different from hepatitis C. For hepatitis C, no adjudication was required with regard to the medical facts. We, as a State, infected women. We bought contaminated blood.

As a State, we had a duty to mind and care for them throughout their lives and try to right the wrong done. As their needs, including their health needs, changed, the tribunal continued to be able to make various orders and payments. The proposed tribunal is of a kind we have never established before in the history of the State. It is an adjudicative tribunal. The hepatitis C compensation tribunal recognised that the actions of the State had made people ill. That is not the case in the current circumstances. In the current circumstances people were let down owing to non-disclosure in the first instance. In some instances there may be negligence but not in all. I have heard patient representatives and their solicitors publicly acknowledge that not every case will relate to negligence, that some will reflect the limitations of screening. In that sense, it is more complex. However, I accept fully the bona fidesof Deputies Kelly and Bríd Smith in what they are endeavouring to do. It is an important issue, on which I have taken advice and I am happy to take more.

Deputy Kelly hit on something important in referring to the rules and procedures of the tribunal, on which I might touch. The advice I have been given - the legal advice and the advice from the tribunal - is that the judge can and will take into consideration the medical evidence related to the risk of recurrence, future health and well-being. The tribunal will not be considering only the impact on the person today, it will also be able to take into account medical evidence and have its own experts. That is another difference by comparison with the High Court. The judge will have her own experts, not just the experts for both sides in considering the risk of recurrence. That is important.

Deputy Kelly has stated there are rules and procedures set out for every tribunal that point to the general principles to be applied. I have to be very careful and state I do not write the rules. The tribunal is obviously independent, but perhaps the rules and procedures can make it very clear that the risk of recurrence and future health will be considered and assessed by the tribunal when it makes an award.

Deputy Kelly qualified it in his last intervention in talking about a time limit. If we were to accept the amendments as read today, or versions thereof, we would effectively be committing, as the Oireachtas, to the ongoing maintenance of a tribunal. If the Oireachtas wants to do that, it is very different from what we started out to do. We started out, through the Meenan report, with a time-limited and scope-limited and an efficient way for women to obtain answers, justice and, where there was wrongdoing, payment. We would be moving into a very different space if we were talking about the ongoing maintenance of a tribunal in the way the hepatitis C tribunal has been maintained for many years.

My final point is a key one and members might not welcome my making it. This is a voluntary process. We need both women and the laboratories to participate. Either side can decide it does not wish to participate. It would be very different if we were asking laboratories to participate in a process that would be ongoing forevermore. I do not want to pass legislation that looks like I am providing an alternative to the court to find out that it will not work in reality. We did not have that complication with the hepatitis C tribunal which just involved the State and its citizens. In this instance we have different parties, including some external to the State. They have a choice as to whether to participate. It is voluntary and legally has to be so. Trying to get both parties to participate is important.

I am happy to engage with Deputies Bríd Smith and Kelly between now and Report Stage. I understand they may well resubmit their amendments. I would like to provide further information on how I believe the issue can be dealt with, possibly by rules and procedures, in the tribunal. I suggest we engage further between now and Report Stage. Obviously, the Deputies have the right to resubmit their amendments.