Simon Harris (Wicklow, Fine Gael) | Oireachtas source

I thank Deputy Donnelly for his constructive engagement on this. I know that not everyone will speak on every amendment. In fairness, we all share the view that Deputy Donnelly has articulated so well. All of us have found some of the questioning extraordinarily unedifying. I appreciate the Deputy differentiated between the State's legal team and the legal teams of the laboratories. It is important to say that regardless of the law of the land, the State has rightly and properly admitted liability in relation to non-disclosure. It is the least we could do. The Deputy is entirely correct: what we want to do is to set up a forum that is, to use Deputy Smith's words, more attractive than the High Court.

The Deputy is correct in that there is a need to prove negligence because this is not a compensation tribunal. It is an adjucative one, which we have never had before, so there is a need to prove that but there are ways of doing this that are more humane than some of what we have seen. I have spoken with the Deputy about this. Without getting into the technical difficulties with the wording of his amendment because it is not easy to word these amendments and I could not have done better, I have checked whether this tribunal has the ability to award aggravated damages on the same basis as they could be awarded in the High Court and the answer is "Yes". I have consulted with the Office of the Attorney General and the tribunal itself and have asked the tribunal whether it is satisfied that it has adequate powers in this regard and it has said "Yes". I think the tribunal would welcome me saying something about one of the key differences between the tribunal and the High Court. The tribunal will provide for what it refers to as non-expert witnesses, i.e., those of us who are not medics or lawyers - the women, who are the most important people in this tribunal. The tribunal will provide for them to make statements in writing, as Mr. Justice Meenan suggested in his report. This means that a woman will not necessarily have to recount her experience at any great length unless she wants to and if she wants to, she has every right to do so.

The final difference between the tribunal and the court is that unlike the court, the tribunal will have received the arguments from both sides in writing in advance. This means that the chairperson of the tribunal can intervene much earlier than she could in court if it is clear that in her view, a woman is being questioned on subjects that are not relevant or the questioning is inappropriate. I do not wish in any way to drag a member of the Judiciary into this because that would not be appropriate but it is fair to say that Ms Justice Mary Irvine's record as a judge is pretty exceptional. She is an excellent and accomplished judge. I know this is something of which she will be conscious and that the tribunal is satisfied that it has the powers in terms of awarding aggravated damages, which goes to the heart of the Deputy's amendment, and that from a format point of view, it can receive the written statements in advance so a situation does not arise whereby a judge is left wondering whether to give a bit of latitude to a lawyer to see where he or she is going with a line of questioning because written arguments will have been submitted in advance. This gives a judge a much clearer picture and provides greater protection for the woman.

The Deputy understands that it is not for me to say on the floor of the Dáil that this will be expressly stated in the rules and procedures because I am not allowed to do that. It is independent. However, let me say on the record of the Dáil that I would like to see it in the rules and procedures and it is fair to say that without this House wishing to interfere with the independence, we speak with one voice in saying that it would be helpful for the lawyers and women for it to be listed in the rules and procedures of the tribunal. I thank Deputy Donnelly for his very helpful and constructive engagement on this, which has allowed us to tease this out, but based on my engagement with the tribunal I am satisfied that it is satisfied it has adequate powers in this regard.

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