Stephen Donnelly (Wicklow, Fianna Fail) | Oireachtas source

I think there is broad agreement on accepting the section. As to the point made by Deputy Cullinane, I agree that, ultimately, this is a choice for women. It is a choice for the women and families involved as to whether they want to go to the tribunal or to the courts. There is an onus on all of us, as Oireachtas Members, to make the tribunal as advantageous as possible. The tribunal that has been set up broadly reflects what the House agreed to in the 2019 Act. The recurrence issue was then as it is now, as was the statute issue.

That was the Act that was passed. As I stated earlier, we have pushed in a lot of areas in response to very reasonable requests from the women, the families and the 221+ group, as far as we can. As Deputy Cullinane stated, it is not for me or for him to say what choice people should make. It is their choice.

What I can say is that having spent a lot of time last year going through what it means to go to court versus what it means to go to the tribunal, I believe there are some very important advantages for women and families of using the tribunal. I could not find any advantages that the courts provide over the tribunal. Essentially, whatever you have access to in the court you have access to in the tribunal, but the tribunal has advantages over the courts. When you line up the choice of going to the tribunal or going to court, I have not been able to see a single advantage of going to court, but there are very clear advantages to the tribunal, some of which we have agreed on today, including timing. Timing is a real issue here. The tribunal is much quicker. The premises have been set up specifically for the process. There has been very good feedback in respect of the facilities and how they are appropriate. The tribunal is set up in cognisance of the fact that the process needs to be dealt with in as sensitive a way as possible.

One of the points that was raised by several colleagues on Second Stage concerned the adversarial nature of the proceedings. It is worth responding to the points raised. I wholeheartedly agree with all of the comments made about the tribunal not being adversarial in the way that we all talk about things being adversarial, some of the testimony we all heard from women who were taking their cases, and the lines of questioning, which sounded completely unacceptable, around their sex lives and all sorts of things to potentially try to discredit them as witnesses. I found some of the questions to be outrageous. Indeed, one of the amendments that is tabled - I do not know if it is in order or not - addresses exactly that issue. It provides that aggravated additional damages could be awarded in the case of the use of an unacceptable line of questioning or harassment. Actually, the good news on that is that I do not need to accept the amendment because it is already covered. When the Bill was being passed, I raised this matter, as I am sure other colleagues did. It is already allowable within the tribunal and indeed within the courts. To lawyers, the term "adversarial" just means they are allowed to cross-examine. The way we all use the term "adversarial" is different from that. We do not use it in the technical sense. We use it in the sense that none of us would accept these women and families being harassed under hostile cross-examination. The tribunal is very sensitive to that. It has been set up to try to deal with that as well as it can be dealt with. However, there is one important caveat, namely, cross-examination, which is what the lawyers refer to as adversarial. That is part of the process. Indeed, I know from my own meetings with the 221+ group that the members accept that negligence has to be established. It is accepted that for negligence to be established, questions have to be asked. Indeed, representatives from the laboratories have to be cross-examined.

Therefore, the tribunal is set up to be as unadversarial as possible in the sense of how we all use the term. I think that most people agree - and the 221+ group members in their meetings with me have agreed - that negligence needs to be established. It is not a redress scheme. It is about establishing negligence and then the State pays. The State has an indemnity agreement with the laboratories and it deals with that end of it. The State pays.

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