Simon Harris (Wicklow, Fine Gael) | Oireachtas source

On the issue of the word “waiver”, I do not disagree with any of the Members. If there is a legal way of fixing it, I am more than happy to take a look at this when we come back with the miscellaneous Bill.

On the recurrence issue, I also do not wish to be argumentative, as it is not my general way of doing business. However, we need to work our way through the points I am making and on which I am being well advised from a legal perspective. I do not want to establish a tribunal which suggests it can do one thing only to find out that one party to it, namely, the laboratories, will not participate. I do not want to do anything that would significantly depart from the Meenan report. I do not want to set up a tribunal which goes on forever and a day because the women involved do not want that either. This is very different from the hepatitis C compensation tribunal. We all recognise and acknowledge that.

I am bringing forward a miscellaneous Bill on the scope. If there is time between now and the autumn, I am more than happy to meet with Opposition spokespeople on this, share the information I have and tease through the issues. I cannot give a commitment on the floor of the House other than to do that.

I am going to find a way of ensuring legal aid is available to people. It does not seem to have been a big issue to date. That is probably for a variety of reasons with which we are familiar in terms of lawyers, their own structures and how they take on clients. My colleague, the Minister for Justice and Equality, has the power by statutory instrument to grant access to legal aid on the same basis as if they were before the High Court. I will be engaging with him over the summer months on that.

The Legal Aid Board has recently established a new medical negligence unit, which goes to the core of Deputy Donnelly’s question. It has specialists who should be able to give that level of support to women, which Deputy Donnelly wants to ensure. If he is not satisfied, we will have another chance in the autumn on this. It can be dealt with by statutory instrument, however.

My intent is clear on the waiver. We can review the wording and I have no difficulty in doing that. All High Court awards are full and final and the tribunal should replicate that. That is merely what the wording was trying to suggest. Deputy Kelly and I will not agree on this. However, they can take in medical expert advice on the likelihood of recurrence. I take his point, however.

Instinctively, I kind of agree with amendment No. 14. I do not intend to fall out or divide the House on this. I asked the Attorney General specifically on this. The view of the Office of the Attorney General is that all determinations should be confirmed as they are a judgment by a body that is not a court. That relates to Articles 34 to 37, inclusive, of the Constitution. Due to the position our courts have within our Constitution, it is better to allow the courts to authorise what already happened. We see this, for example, with the Medical Council. It makes a decision on a doctor. That decision goes before the High Court. The High Court does not interfere with it but the case goes before it due to the position of the courts within the Constitution.

I do not have strong views on it but that is the legal advice available to me.

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