Seán Sherlock (Cork East, Labour) | Oireachtas source

Last night, as I was sitting in my office, I tried to crystallise my thoughts around this debate. There is so much information for us to analyse that it is hard to encapsulate it within a reasonably short debate such as this. Nonetheless, I am grateful for the opportunity to speak in the debate.

We are fortunate as Deputies that there are many people outside this Chamber who are willing to provide us with excellent research and resources. As I sat in my office last night, I received an email containing a briefing paper on the Bill from the Irish Council for Civil Liberties, ICCL. With the Leas-Cheann Comhairle's permission, I will read some of it into the record. For me, it crystallises all the issues and flaws that are inherent in this legislation. The ICCL paper states at the outset:

1. Survivors challenged the Final Report of the Mother and Baby Homes Commission of Investigation in the High Court by arguing that the Commission failed to adhere to the legislation that established it, and that their rights under the Constitution and the European Convention on Human Rights had been breached. A settlement was reached whereby the State consented to a declaration that the Commission acted in breach of statutory duty. A statement was also agreed which recognised that "survivors do not accept the accounts given in the Final Report... as a true and full reflection of the oral and documentary evidence they gave". This is followed by a list of 64 paragraphs which can no longer be relied on. The State has expressed that the Redress Scheme is a part of the measures being used in "responding to the report". ICCL is concerned that the Redress Scheme is therefore based on a report which the State itself agreed was flawed.

2. The Final Report omitted survivors' testimony and drew conclusions that do not align with survivors' testimony. For example: a) There was "no evidence" that the women who gave birth were denied pain relief (Executive Summary, para. 245) and that there was "no evidence" [these are the words of the commission report] that at the time of adoption women thought "their consent was not full, free and informed" (Executive Summary, para. 254).

b) Mothers "were not 'incarcerated' in the strict meaning of the word"

c) Certain evidence was "merely the product of a creative writing class".

This is the atmosphere in which we are seeking to promulgate this legislation. The ICCL's report is a damning one. On the proposed independent review, it states:

On 2 June 2021, it was reported that the vast majority of evidence given by survivors, those who gave evidence to the Confidential Committee, was effectively not considered for the Final Report. This led to the proposal from the Department of Children of a review of survivor testimony. However, [the Minister] recently announced [and this was quoted in the Irish Examiner, thanks to the work of Elaine Loughlin and Conall Ó Fátharta] that this would not proceed due to "significant legal complexities". These have not been adequately identified.

Problems with the Mother and Baby Institutions Payment Scheme Bill 2022

4. [The Bill] omits over 40% of survivors, including children who spent less than six months in an institution and those who were boarded out. The six-month requirement is arbitrary and permits no consideration of context: a child resident for 180 days receives €12,500. A child resident for 179 days receives ... [nothing at all].

5. The Bill makes it more difficult for survivors who resided in an institution at a young age to claim compensation. Whereas the General Scheme of the Bill [which the committee considered] allowed child survivors to claim a payment if they were, or had reasonable grounds for suspecting they were, residents ... the Bill only allows a child to claim who "was resident" [very specific language] ... For children who may have no documentary evidence of their residence, this sets the standard of proof too high.

6. The Bill provides no compensation for forced and illegal adoptions, forced labour, unlawful vaccine trials...

Deputy Funchion has referred to the vaccine trials that took place, an issue that has been raised by all Opposition Members. We want clarity in respect of GSK. We have been very adamant about that. It looks to me like GSK has been let off the hook. Respectfully, the Minister and the State have not adequately addressed the issue of the vaccine trials. It is a sword of Damocles hanging over us and it needs to be addressed.

6. The Bill provides no compensation for forced and illegal adoptions, forced labour, unlawful vaccine trials, abuse as an adopted child, and death. Nor does the Bill provide compensation for discrimination whether based on gender, disability or race. The latter issue of systemic racism in institutions was recently highlighted as a serious gap in this Bill by UN Special Rapporteurs.

7. The term "work-related payment" used by the Bill ... does not adequately describe lived experiences. It should properly be described as "forced labour".

8. The levels of payment provided by the Bill in respect of the "work-related payment" are inadequate. They must correspond to the wages that survivors should have earned at the time and be linked to the average industrial wage.

9. The Bill does not count a "temporary absence" of 180 days or more ... There is no room for context. A survivor may have excellent reasons for having left the institution and returning. For example, a survivor may have escaped for 181 days before being caught and returned. That period of 181 days could not reasonably be separated from their time in the institution.

This is the language we are dealing with. This is the context in which the Bill is being put before us. This is how serious it is.

10. The enhanced medical card proposed in the General Scheme has been replaced by health services without charge and is available for anyone resident for 180 days ... This residency requirement is arbitrary and should be removed.

We are all ad idemin the Opposition on that point. The timeframe of zero to six months is just too arbitrary.

11. Survivors resident outside of Ireland are entitled to a payment of €3000 instead of health services without charge ... This figure is far too low and is not reflective of the value of the services available to those receiving health services without charge.

12. Survivors have called specifically for trauma-informed counselling and therapies. This is not provided for in the Bill.

13. There is no requirement in the Bill that those charged to administer the Redress Scheme must be qualified for the position and be subject to ongoing training in international human rights law and trauma-informed responses to gross human rights violations.

The Minister says this legislation is grounded in human rights law. That is open to interpretation and critique. The idea of putting deciding officers within the Department itself is something we will deal with on Committee Stage because it requires further interrogation. We in the Labour Party are not convinced it is the right way to go.

17. Additionally, the Bill states that a survivor will be entitled to no compensation where they have "received an award from a court or settlement in respect of an action arising out of any circumstances relating to the same period of residence in the institution" ... This provision does not take into account the possibility of a Court awarding a survivor a lower amount of compensation than they would receive under the Bill. Moreover, court proceedings may not necessarily be directed towards the State, yet the Bill precludes such an individual from later claiming compensation from the State.

Again, this is a serious flaw in the Bill and we will seek to amend it. I anticipate, however, that our amendments will be ruled out of order because of the rules that apply in regard to such amendments.

We asked the Minister to reconsider that very provision in section 27 of the Bill, paragraph 3. I contend that will have to be dealt with. Payment rates under Head 11 should be amended to remedy the failure to offer payments to all survivors and to compensate adequately those who received payments in line with, inter alia, the current personal injuries guidelines and other comparable schemes. This includes PTSD payments. Under the guidelines moderate PTSD equates to compensation of between €10,000 and €35,000 whereas serious PTSD equates to €35,000 to €80,000. The Bill does not require that free legal aid be made available to all applicants in circumstances where legal aid is likely to be required in applying for compensation, reviewing or appealing a determination and in swearing an affidavit that could be required of them. This should be provided for. That is the position of the Irish Council of Civil Liberties on this Bill, all of which I agree with. It is a perfect crystallisation of the issues that we are dealing with here.

In regard to our attempts to amend the Bill to reflect the thoughts and aspirations of the many people who have been in contact with us we will now seek to put forward an amendment in regard to seeking a report on the operation of the scheme. In putting forward that amendment we will seek to highlight the flaws in this Bill on the basis that we will seek the report asking whether and to what extent persons engaged in the management, administration or operation of relevant institutions should be permitted or required to contribute to the cost of making payments under this Act because that highlights the flaw in regard to parties which were not party to the redress scheme, and again GSK looms large in our thinking there; whether the 180 days’ residence requirement provided for in section 13(1) and section 13(4) should be amended or repealed; whether the scheme should be extended to make provision for recognising persons who were boarded out as children, as relevant persons; whether there is a need to provide for additional institutions in Schedule 1 of the Bill, because we feel it is not an all-encompassing Bill in that regard; and whether the requirement imposed on applicants by section 27(3) should be removed.

Section 27(3) says: "An applicant who receives a payment under subsection 1(a) or the personal representative of a person in respect of whom a payment was made under subsection 1 shall not institute civil proceedings and shall discontinue any other proceedings instituted by or on behalf of the applicant against a public body that arise out of the same or substantially the same circumstances as the circumstances to which the application concerned related." That is basically saying that if you get money under this scheme you have no recourse to any other; that in order to sign the bottom line to get your money, redress and compensation you are disbarring yourself from any further action on the same issue. That is essentially what, as I understand it, the Minister is saying and has prescribed in this legislation. The Irish Council of Civil Liberties, as I have already said, is speaking to this point. A number of solicitors have been in touch with us who are concerned about the perception that this Bill creates, that people will not have access to the legal advice to which every citizen is entitled on any matter of law before them, particularly in circumstances such as this where people will need advocates. As Deputies we will act as advocates for people. However, I am not a lawyer. There will be times when people will want to interface and may seek to take further action, as I think should be their right, in civil proceedings. They should not be proscribed from doing that.

I will speak specifically to the human rights element of this in regard to the Irish Human Rights and Equality Commission, IHREC. The Minister speaks to the fact that he took on board, if I am interpreting him correctly, the paper that was published by the IHREC. I will quote again from the IHREC. Its advisory paper stated: "the Commission of Investigation report was limited in terms of the institutions" that it covered. I have said that already. In the past, the exclusion of certain institutions in Ireland has created a barrier to seeking recourse to any meaningful reparation for survivors, despite having been subjected to serious harm. The paper continues:

Recent research from Queen’s University identifies the difficulties of relying on previous investigations to inform the scope of reparation’s schemes and which resulted in excluding certain institutions:

“Refusing redress for these victims or basing redress on the same assumptions and availability of evidence already collected through investigations, creates a hierarchy of victims, silencing those at other institutions and compromising the efficacy... of the redress scheme overall.”

That is a glaring point that has not been addressed in this Bill. We cannot have that hierarchy. For too long on this island there has been a hierarchy of victims. We can have no more of that, I respectfully contend. Mr. Spicer, a solicitor who corresponded with us, stated that the Minister quite worryingly seems to indicate that it would be sufficient to have the staff in his own Department handle the many thousands of inquiries. This is not only impractical in terms of the logistical capabilities of having a handful of staff handling tens of thousands of calls. It lacks basic independence and it would be entirely inappropriate for the Minister’s own staff to be advising service users on their rights, commenting on whether they should apply to the scheme, helping our community to weigh up the pros and cons of the scheme or anything else that the community needs help with in terms of putting their applications together.

Given the experience of survivors in regard to the commission’s report, those people, who we represent, are now expected to interface with the Minister’s Department and to have confidence in that process. They do not have confidence. They want to be able to deal with somebody who is verifiably independent. Mr. Spicer continued to state that the community cannot be led with their hands held by the State to accept this redress without independent legal advice forming part of the decision-making process should the applicants so wish. This scheme has to operate with complete transparency and fairness. Part of that process is the right to consult with a chosen and trusted legal representative not only on the scheme itself but also in consideration of the individual’s own lived experiences and balancing that with the provisions in the scheme. Applicants therefore must feel that they can voice their concerns and be given feedback in a confidential setting with their trusted legal representative.

I understand the Minister’s genuine attempt to formulate a scheme here but the legislation before us as it is constituted does not deal adequately with a whole raft of issues that remain outstanding. I hope the Minister will be of a mind to introduce amendments to his own legislation on Committee Stage which would deal particularly with section 27 and section 3 in regard to the right to further civil proceedings if an applicant so wishes, where they are deemed to have already received compensation or redress. I also believe strongly that if the issue of the zero to six months is not dealt with then the legislation disregards so many people. Previously I asked of the Minister, on the record of the House, what analysis had the Minister and his Department officials done on the number of people in the zero and six months group who could potentially form part of this scheme and whether that was quantifiable.

If it was, what would the additional cost of that have been to the scheme? There has been a weight of evidence given to us on this already, which the Minister will be well aware of. It is too arbitrary to exclude from the scheme people who were resident for less than six months. Again, I am respectfully asking the Minister to please reconsider that. It seems that the reason for it is that perhaps some analysis has been done on the cost of this and it was such that the Government decided it would be too costly to add that onto the €800 million budget line that has already been assigned to this. Therefore, it has taken an arbitrary decision. We will revisit many of these issues on Committee Stage.

See this speech in context