Dáil debates

Wednesday, 10 July 2019

CervicalCheck Tribunal Bill 2019: Report Stage (Resumed) and Final Stage

 

5:05 pm

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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Before the adjournment there was a question about amendment No. 8, which has been ruled out of order. It deserves an explanation. Amendment No. 8 has exactly the same wording as the amendment which was accepted on Committee Stage and which was not ruled out of order. However, during discussions on Committee Stage, it emerged that it would involve a charge on public funds because it would effectively result in the ongoing maintenance of a tribunal. In the circumstances I had no choice but to rule it out of order for Committee Stage, having regard to Standing Order 179(3). That is the reason for ruling it out of order. This may be unprecedented. If the amendment was ruled out on Committee Stage or was not moved on Committee Stage we would not be addressing it now. Does Deputy Kelly have a comment to make?

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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I have more than a comment to make.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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It will not be much more than that.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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I am sorry but either I can speak on this or I cannot. I will not be able to do this in a comment.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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I ask the Deputy to be as brief as possible.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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There are two parts to this. First, I would like to thank the Leas-Cheann Comhairle for trying to be fair to me. This is unprecedented. I have been hanging around this place for 13 years and I have never seen this before. Deputy Brendan Howlin, who is one of the longest-serving Members and who served as Leas-Cheann Comhairle for five years, has never seen this before. I tabled an amendment intended to help the women represented by the 221+ Patient Support Group who have been affected by cervical cancer. It aims to ensure that if their cancer returns they will be able to apply for compensation again. That amendment was accepted on Committee Stage and I spoke to it. It has now been ruled out of order on Report Stage, which is unprecedented. I ask the Leas-Cheann Comhairle to look into how this happened.

I appeal to everyone to please listen to this. I was effectively told by officials today that if I did not speak on this amendment on Committee Stage, I would be unable to move it on Report Stage. That is nuts. This Parliament has failed. It is bananas. It is crazy. Let us think about it logically. I put down an amendment, which was accepted. I spoke on it, and according to the letter that has been given to me, the amendment has now been ruled out of order because I spoke on it. I have spoken to Deputies Willie Penrose and Brendan Howlin, who have more than 50 years of experience here - longer than I have. They have never seen this before. It must never be seen again. We are dealing with one of the most sensitive issues this Dáil has had to face in its lifetime. This issue is affecting those women. I put down the amendment to help them. I must acknowledge that it is very similar, if not, identical to an amendment put down by Deputy Bríd Smith, which was also ruled out of order. Due to the fact that we spoke on the amendment, it has now been ruled out. It is ludicrous.

Moving on to the amendment, I need the Minister for Health to listen to what I am about to say. I cannot call a vote on amendment No. 8 now because it is out of order. As such, after speaking to the women representing the 221+ Patient Support Group, I will ask Fianna Fáil, Sinn Féin, all the other parties and Independents to vote with me against this section.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Fianna Fail)
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I do not think Deputy Kelly can do that.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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We cannot vote on the sections of the Bill?

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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The House does vote on sections on Report Stage.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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The Leas-Cheann Comhairle might provide clarity. At some point we need to make the right decision. With all due respect to the Minister, I feel very let down by him.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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Deputy Kelly has not even heard me speak.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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Let me tell him why. I do not need to hear him because he has not done anything in the meantime.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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The Deputy should hear me.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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That is not fair.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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The Deputy should hear me.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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That is not fair. The Minister has had since last week to communicate.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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Deputy Kelly has not heard what I have to say.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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With due respect, the Minister has had since last week. He was able to counterattack against me in the meantime.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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Does Deputy Kelly not want-----

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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I ask the Minister to allow me to finish. He should not shake his head.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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That is rude.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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I brought this up and asked for a solution. The Minister made some comments with which I had no issue, but he never ever addressed the matter. He did not bring forward an amendment or any other measure relating to this Bill. The reason this amendment should have been allowed is that women who have been affected should have the right to pursue compensation if cancer returns.

Unfortunately, the statistics show that cancer does return, as I do not need to explain to the House. As such, it provides for a provisional award. The biggest fear women have when they have been diagnosed and treated is that there will be a recurrence. The risk of a recurrence is greatest in the first five years. While a recurrence can happen later than that, it is more unusual. If a woman takes her case to court, she knows that she faces finality in the decision made. However, with a tribunal which sets its own rules, we should be able to do something different. That is why I tabled the amendment, similar to Deputy Bríd Smith's which was taken from the example of the hepatitis C tribunal. The purpose was to provide that if the cancers returned, women would be able to go back and look for further compensation. It would be wrong if they were unable to do so, in particular where they had been diagnosed with a severe and possibly terminal condition.

As the Minister knows, I speak to the representative bodies a great deal. One looks at what Ruth Morrissey went through. I admire her greatly and wish her the best. She fought for 36 days in the High Court and was treated disgracefully by the State. The judgment in her case is being appealed and I have stood alone in the House in saying it is wrong. However, let that be. Now that the decision has been appealed, the tribunal will not be up and running until well into the autumn. Therefore, the Minister has an opportunity to do what is right. As there is a timeframe, we do not even have to pass the legislation tonight. I do not want the Minister to let the women down. When I spoke earlier this evening to Lorraine Walsh about this exact issue, she asked me to read the following to the House. I have her permission to do and she is watching the debate. Obviously, all women will take legal advice. Lorraine Walsh states:

I am thankfully cancer-free right now but I, or anyone else, cannot know if it will come back in the future. So, it would seem crazy for me to sign away my rights to something I cannot know will happen or not. I get checked regularly for the very reason of a possible recurrence. The rest of the women who are thankfully alive or are not terminally ill are in the same boat. Why would we sign away that right when we do not know what the future holds?

With others, I am trying to ensure, given what has happened to the women and their families, that they will have all avenues open to the tribunal in an unfortunate situation where a small number of them see the cancer recur. Statistically, there is a possibility that will happen. In conscience, I cannot allow this Bill to move forward without seeing that issue dealt with satisfactorily tonight. I hope the Minister respects my sincerity in that regard.

5:15 pm

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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I respect the Deputy's bona fides, as I am sure he respects mine, albeit one might not have thought so listening to some of his comments, but I hope he does. The transcript will show that he told the House that I did not bring anything forward in the Bill. I might not have agreed with him on every aspect of it, but it is okay in a democracy not to agree with him on every single thing. It does not mean that I am wrong. However, I took on board three very important points raised on Committee Stage, all of which the Deputy and others made constructively.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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I meant on this one.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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The Minister to continue, without interruption.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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That is fine, but, as the Deputy stated, there are people watching this debate and he has put forward a viewpoint that I wish to correct. He made a suggestion in relation to scope, as did Deputy Donnelly. I dealt with that issue in the Chamber before Deputy Kelly arrived. I said I would come back to it in the autumn because the Deputies were right on it. Deputy Kelly made a valid point about the six-month period and responded graciously on it. I brought forward an amendment which was very similar to the Deputy's.

Deputy Donnelly, supported by Deputies Kelly, O'Reilly, Bríd Smith and others, made a suggestion about free legal aid. We will get to it in a moment. We are going to do that also. We have all endeavoured to work on the Bill on a cross-party, bipartisan basis because this issue is above politics.

I know what Deputies Kelly and Bríd Smith are trying to do and even understand why they are trying to do it. However, I also have to take legal advice and look at some of the questions raised on Committee Stage such as Deputy Donnelly's about whether there would be recourse to the High Court. I will say a couple of things about that matter. Deputy Kelly does not agree with me, but members of the Judiciary do. Recurrence is an issue with which the Judiciary deals on a daily basis. Judges are already allowed and will be allowed under this law to award damages based on severity and the likelihood that something may happen in the future. The Deputy can wave his hand, but I will give him a good example of a case which was provided for me by the Judiciary. An example is the likelihood that a plaintiff will develop epilepsy following a neurological injury. In these circumstances, the medical expert for the plaintiff may contend that he or she has a 50:50 chance of developing epilepsy, although he or she may not even have it at the time of the trial. We all know from watching the "Six One" news that judges can make awards with reference to what may happen in the future based on medical evidence. I do not want any woman watching the debate to believe Ms Justice Irvine, as chairperson of the tribunal, will not be able to make awards on the basis of the likelihood of a recurrence because she will be able to. She is satisfied that she will be able to do so, as is the tribunal iand the Attorney General.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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That is totally different.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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The Deputy asked about a recurrence.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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But that is not the answer.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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The Minister to continue, without interruption.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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He is answering something else.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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As the Deputy is not going to agree with my answer, I am not speaking to him. I am speaking to the women watching this debate and giving them their answer as Minister for Health as to why I believe the issue of a recurrence can be dealt with. They are entitled to hear it.

The second point is that we must be honest with people that this is a voluntary process, not one which is about the State and the women. Unfortunately, we have the complication, as discussed at length on Committee Stage when Deputy Bríd Smith made constructive points about it, that this involves laboratories. We need a woman and a laboratory to sign up. Deputy Kelly has read the Meenan report many times and been helpful during that process. The report states we need both parties to agree to go to the tribunal. Why would anybody go through a process that has a different set of rules from the High Court whereby one could continue to make multiple claims? This is not like the hepatitis C compensation tribunal. It is an adjudicative tribunal of a type for which we have never provided before. It is unprecedented. In this tribunal a judgment will be reached outside a court and it is a process to which we will need both the laboratory and the woman to sign up.

My third point is in direct answer to Deputy Donnelly's constructive points on Committee Stage. He asked what would happen if a woman got a judgment in the court or a tribunal and the cancer came back in five, ten, 15 or 20 years. Cancer can come back over a very long period. There is nothing to stop a woman who wishes to do from taking a new cause of action to the court. I say sincerely to the House - Deputy Kelly knows my record of engaging on this issue - that we have a period of time. Deputy Kelly is right in that regard. I have already given the House a commitment to come back to it in the autumn to expand the scope. I commit to sitting down with all of the Deputies present with the best officials and best minds I can find to see if there is a way to provide reassurance or achieve what Deputies Kelly and Bríd Smith want to achieve. I am happy to engage on that issue. However - this is definitely not Deputy Kelly's suggestion - I am not happy to set up a tribunal that I know will not work. I am not happy to do something in the House that I know will be inoperable.

There are many benefits to this process. I have heard Deputy Kelly and others ask why a woman would go through the tribunal if his amendment has not been made. After he met the women, the State Claims Agency, the laboratory representatives and Dr. Scally, Mr. Justice Meenan outlined on page 20 of his report the advantages of this process over going to the High Court. They include hearings in private, the adoption of pre-hearing protocols, written statements, less formal hearings, a specific forum to hear and determine claims, less costly hearings, fast-tracked hearings where liability cannot be contested and the maintenance of wider recourse. I point out that there are many benefits in the eyes of Mr. Justice Meehan - I agree - in going through this process, but it is an issue on which Deputy Kelly and I will not agree.

I do not understand why the amendment was ruled out of order and share Deputy Kelly's frustration in that regard. I would be more than happy to debate it now just as I did on Committee Stage. Not to put words in his mouth, but the Leas-Cheann Comhairle has honestly said it is bizarre that the amendment was before the select committee but has not been allowed on Report Stage. That is not a matter on which we will agree tonight, but I assure Deputy Kelly that I will engage with the Opposition in a bipartisan manner to address some of these concerns. I will be back in early autumn, in September or October, to expand on the scope. If there is a need to do more, we will do it.

The importance of setting up the tribunal now is real. It allows the tribunal to do much of its preparatory work now, thereby enabling it to hit the ground running in the autumn.

5:25 pm

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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Let us hope that the Minister's intervention is helpful in relation to the scope and coming back at a later stage.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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Gabh mo leithscéal-----

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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We are dealing with Deputy Kelly's amendment, which I have ruled out of order. I have to move on.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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It has been acknowledged that my amendment is very similar.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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It is identical.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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May I speak on it now?

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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I want to move on from these amendments. I will allow the Deputy to make a short intervention. I ask her not to repeat what has already been said.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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I have no intention of repeating what has been said. I want to make a few observations. As I said during this morning's statements on the State ex gratiascheme for survivors of child abuse, it seems that the State is taking the risk of putting its two feet in it again by discriminating against a vulnerable cohort of people. I suggest this is being done on the basis of trying to save a few bob here and there. In the long run, it may well end up being more costly to the State than might be imagined. That is not really what this is about. This should not be about whether we save money.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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It is not about saving money.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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It should be about how we treat these vulnerable women. It is about whether we should exclude them from returning to the scheme if their cancer returns. I know from family experience that it is absolutely worse when a cancer returns than when it is first diagnosed. Under this proposal, people will have to deal with that without access to the tribunal. It is clear that regardless of all the rigmarole about legal advice, the Minister's legal team is pretty weak. I make that observation on the basis that the amendments which were tabled on Committee Stage were not ruled out of order beforehand.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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That is not their job.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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They have been ruled out of order since then because the Minister's legal team found something wrong with them.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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He did not say that.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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On a point of order, I ask the Deputy to withdraw her slur against officials from my Department who had no hand, act or part in the ruling in or out of any amendments.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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We dealt with this yesterday.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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I will not continue this debate until the Deputy's remark is withdrawn.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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Deputies cannot make accusations of this nature.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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My goodness.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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Deputy Smith has been around here long enough to know that the officials in my Department have no role in ruling amendments in or out.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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I apologise to the sensitivities-----

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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Tell the truth.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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I was a Minister of State for years and I accept the Minister's point that there should be no slur on any official.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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I apologise to the sensitivity of the-----

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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The Deputy should apologise for her inaccuracy and for not knowing her facts.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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Deputy Smith has to learn to listen.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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I am listening.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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She comes in here and engages in stunts.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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Deputy Smith is not listening.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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I am sorry.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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You are not listening.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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Come on, a Leas-Cheann Comhairle.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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You are not listening.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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Do not do this again.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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Sorry, we will not have slurs.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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I want to make a serious point here.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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The Deputy should apologise to the officials.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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I have not finished.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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Deputies must use diplomatic language. There will be no slurs. I made the decision to rule the amendment out of order on the basis that it entailed an additional charge on the Exchequer. I will give Deputy Smith another half a minute and then we will move on.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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I want to make a very simple point to the Minister and everyone else. The whole purpose of this tribunal was to be attractive to the women.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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Yes.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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We want them to be able to take their cases without going through the suffering, exposure and dilemmas associated with public High Court appearances. This is not attractive. This legislation makes it very unattractive. Amendment No. 10, which proposes the deletion of the words "and shall be accompanied by a waiver", has been ruled out of order. Many women will be put off by this approach. The Minister is not helping the case for the tribunal by not dealing with it.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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Okay. The Deputy has made her case.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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That is a very different point from the points that have been made. I have a right to make this point.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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I am out of order by allowing the Minister and Deputies Kelly and Smith to intervene in such an unprecedented manner. However, their interventions have been helpful. The Minister has made an offer. As amendment No. 8 is out of order, we will move on to amendment No. 9.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 9:

In page 12, between lines 35 and 36, to insert the following:"(3) The Tribunal shall be entitled to award aggravated damages in circumstances where the Tribunal determines—
(a) that a claimant has been cross-examined in an unnecessarily aggressive and/or adversarial manner by a respondent, or

(b) that the respondent advanced a defence that it knew or ought reasonably to have known was not justified by the evidence available to that respondent.".

While I hope I will be in a position to withdraw this amendment, I will make the case for it for the benefit of the House and those involved who are watching this evening's proceedings. As I said on Committee Stage, there were several hoped for advantages of the tribunal. One is that the women would have the option of having their cases heard in private as some of the cross-examination is on the most sensitive of issues. That is now an option. Some women may want to have their cases heard in public. A concern expressed to me was one of the things keeping the lawyers for some of the parties honest - "honest" is not the right word - but keeping some form of control on the level of cross-examination was that it would be in public and that the public and the media could be present. We all heard reports in the media about some cross-examination. I am not a lawyer, but to my mind it definitely crossed a line. As I said on Committee Stage, if a woman is on the stand and is being cross-examined in a cervical cancer case, and lawyers from the laboratories start bringing up her sex life and previous sexual activity, it seems to me that the implication they are trying to put forward is that somehow through having an active sex life it is really the woman's fault that she has cervical cancer. Maybe I am wrong and I hope I am wrong, but it seems like a reasonable jump in terms of what the labs were trying to establish. It is victim blaming at its worst. I think it is outrageous. Some of those involved in such cases have said they are concerned that because the media will no longer be in the room, the cross-examination could be worse. Therefore, as well as providing the option for women to have their cases heard in private, I want to make sure that sort of despicable and low cross-examination is not tolerated in private session. Obviously, the laboratories have a right to defend themselves because the women and their legal teams will be trying to establish negligence: that is the point. However, I do not believe they have the right to pursue women in that way. I think it was very low.

The amendment tabled is a mechanism which would allow the judge or judges in the tribunal to award additional damages to the woman if the judge believes the labs have crossed the line through a mechanism of aggravated damages. The Minister took that on and made various points as to why that already exists in the powers. I hope to be able to withdraw the amendment. I certainly do not want to force a vote on it. On Committee Stage, the Minister undertook to examine the principle of aggravated damages and if a reasonable level of cross-examination and reasonable and dignified strategies of cross-examination could be wired into the rules and the conduct. I take in good faith the point made by the Minister on Committee Stage that the legal powers to award aggravated damages in these cases remains with the tribunal. I asked a few lawyers about that point afterwards and while they agreed with the Minister that this power is open to a High Court judge it is used very rarely. The sense I got - this is not my area of expertise and I am not a lawyer - was that quite a serious cross-examination, which may cross the line to which I have referred, would be allowed in the High Court without aggravated damages being awarded. How does the Minister believe the legislation before the House or the additional rules of conduct etc can be set up to ensure the lawyers representing the laboratories, and certainly any lawyers representing the State if it is involved in defending any of these cases, are not allowed to engage in this level of victim blaming and that if it starts it can be shut down very quickly?

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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As no other Deputies are offering to contribute, I call the Minister. Deputies are not debarred from coming in later.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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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.

5:35 pm

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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How stands the amendment?

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Fianna Fail)
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I will withdraw it.

Amendment, by leave withdrawn.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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We will move on to amendment No. 10.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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Can I ask a question about it?

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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On amendment No. 9, of course.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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It is about amendment No. 10.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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On amendment No. 9.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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This is to ask-----

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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Is it on amendment No. 9?

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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No, amendment No. 10.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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We have dealt with the amendments that are out of order-----

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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But not amendment No. 10. I want to ask-----

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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They are all charges on the Exchequer so that is the debate we had.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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Amendment No. 10 is not necessarily a charge on the Exchequer. I want to put a simple question to the Minister. Why does he feel a need to put that in there and at the same time not require a reciprocal commitment to remain with it from the laboratories if they enter into a tribunal? It is my understanding that they can withdraw from a tribunal. We are asking women to make a commitment by signing a waiver but we are not asking the laboratories to make any commitment. I understand that they would not sign a waiver but we could ask them to reciprocate by signing something that says that once they engage, they will remain and cannot pull out. The Minister might tell me that this would be illegal but if they were to sign it willingly before they enter, it strikes me as a quid pro quoinstead of the onus being solely on the women.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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The Minister does not have to reply as the amendment has been ruled out of order but he can reply if it is helpful.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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Deputy Bríd Smith is right about this and she is right to raise it. I have looked at the word "waiver", which, instinctively, is not a word that sits comfortably with me. I took legal advice between Committee Stage and Report Stage because we discussed this on Committee Stage and my understanding is that it is basically legal clarification that if someone goes through the tribunal and receives an award, she cannot then go through the High Court and seek an award there. In that sense, it would not apply to the laboratories. The idea is that it is basically clarifying that if a woman gets an award in the tribunal, she cannot then get the same award for the same issue in the High Court so it-----

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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Even if it is a recurrence.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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In fairness, I cannot debate every out of order amendment multiple times. I have made matters very clear regarding the issue of recurrence.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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The Minister has proved my point.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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I have been misrepresented again. Regarding the issue of recurrence, as I have already said, the judge and tribunal have the ability and legal-----

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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That is a totally different thing.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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If Deputy Kelly asks questions, I presume he does so because he would like them answered. If he asks a question and then answers it, he should not ask the question.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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That is not the-----

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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In respect of recurrence, as the record of the House will show from my previous comments, under current law and this law, both the tribunal and the High Court have the ability to make awards based on the likelihood of recurrence and future medical damage.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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They cannot play God.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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They do it on a daily basis in terms of recurrence.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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They cannot.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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The tribunal is satisfied it can and I have given a commitment to further-----

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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How would they know when a cancer is going to come back?

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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I am commenting on out of order amendments on which I do not have to comment in order to be helpful to the House. I am happy to engage further between now and the autumn when I return on the miscellaneous Bill.

Amendments Nos. 10 to 13, inclusive, not moved.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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I move amendment No. 14:

In page 17, to delete lines 36 to 38, and in page 18, to delete lines 1 and 2 and substitute the following:

28. (1) Where—(a) a claimant in respect of whom an award has been made accepts the award, and

(b) no other party to that claim, within the period specified in section 27(2)(a), appeals to the High Court from the determination of the Tribunal,the Tribunal shall, as soon as practicable after the expiration of that period, by motion on notice to the parties to the claim, make an application in a summary manner to the High Court for confirmation of the determination.".

This is the final amendment, if I am correct. Are all the other amendments out of order?

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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Yes.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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We are trying to get through it anyway. I raise this on Committee Stage and, again, the Minister was to revert to me. It seems to me that something very strange is happening here. It is not for me to correct errors in something that is being drafted but the way the paragraph stands, it means that even a rejection of a tribunal award has to go to the High Court. To me, that does not read right and does not work. The language being used here is not correct. I asked the Minister to look at it during the debate on Committee Stage. The Minister was to revert to me.

Photo of Louise O'ReillyLouise O'Reilly (Dublin Fingal, Sinn Fein)
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I share the concerns expressed by Deputy Kelly. In addition, it does not make any sense to me that if an award was rejected, that would also have to go to the High Court. It seems unnecessary. This is supposed to be about access and making it easy and transparent. If I am misunderstanding it, the Minister might explain it and if not, obviously, we should be able to fix it.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Fianna Fail)
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I will beg the brief indulgence of the Chair on this amendment. The word "waiver" is problematic and is causing women real fear. I know we cannot vote on anything but I would certainly support either rock solid confirmation when we come back or us looking at taking it out in the miscellaneous Bill because it is causing real fear. I know my amendment on legal aid was ruled out of order and I know the Minister has provided assurances that it will be there but if he does have the opportunity to sum up at the end, could he speak to it, particularly around the point I raised on Committee Stage? While it is great that the Minister is finding a way via statutory instrument via justice, could he talk about the appropriateness of the legal aid? The point I made on Committee Stage was that many of us will have seen these poor defendants in lower courts being represented by legal aid counsel who have never even met them. It is not an appropriate level of defence, regardless of whether or not it is free. Whatever free legal aid the women involved may get, and the fact that the statutory instrument will hopefully be moved is very welcome, it must be at the requisite level of experience, depth and specialisation.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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I will comment on the waiver since it has already been mentioned. Could the Minister clarify whether there will be a reciprocal requirement on the laboratories to make some gesture? I know it cannot be a waiver but it could be some commitment that they sign on the dotted line that once they engage in the process, they will not pull out because that could happen.

It could conceivably happen that a woman signs a waiver and engages in the process. While a laboratory could engage in the process too, it could then decide it is too hot and pull out. We do not want to see that happen. The Minister has not answered that and I do not see it fitted into the Bill in any concrete way.

On the proceedings in general, I was not even allowed say the word “four” this morning because an amendment of mine, which was amendment No. 4, had been ruled out of order. I was constantly shouted down by the Acting Chairman that I could not speak to it because it was ruled out of order. We end up then dealing with other amendments which are ruled out of order. I am all in favour of that. However, my particular amendment did not have a necessary cost to the State because it would have allowed the chairperson of the tribunal to make the decision. There was no automatic cost to the State, yet it was ruled out of order. I wanted to say that about it, seeing as how I was totally censored this morning.

5:45 pm

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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The word “waiver” needs to go. It is the wrong word. It has different implications than what the Minister intends. I say that genuinely. It has been raised with me, as it has with Deputy Donnelly and other Members. It is a deep concern. I have read this provision numerous times and I get different interpretations. On several occasions, the Minister stated that the High Court and the tribunal can make judgments based on the likelihood of a recurrence happening. I am not trying to be argumentative but that is totally different to a woman being told a year later that she, unfortunately, has terminal cancer. The judge in any tribunal or in any High Court cannot predict or play God. I know why the Minister keeps repeating it. I know the way the High Court works and it will be prescribed with this Bill. I know how it elevates and estimates for the future as to what can happen. In this scenario, that does not work, however. It cannot apply because, once a woman gets an award, that is it. If a woman gets terminal cancer subsequently, she will not be able to seek compensation. That is it.

The Minister has repeated about being able to prescribe for the future and estimate. It does not take into account the fact that the judge - I would not expect him or her to - would be in a position to be able to make an award for something he or she can never know will happen. That is why I am so passionate about changing this measure.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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The commitment was made that women would not have to go through the courts. This is a pretty onerous process anyway. We all appreciate that this is not a walk in the park. It is about trying to make it less stressful in an environment which is highly charged for the individual who is under significant physical and emotional pressure. I can foresee a situation where somebody who gets a second diagnosis could not face this again. I appreciate the Minister said he will come back in the autumn. It is welcome but it must happen. This is about taking as much stress out of the process as possible.

Will the Minister explain if the capacity of the legal aid service will be augmented to provide services to women in such cases?

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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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.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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I am not legally qualified no more than the Minister is. My legal advice is that the provision does not make sense. On the basis of what the Minister just said, I presume he is accepting my amendment. To be honest, I believe our drafter has made it clearer. The measure just seems to be another string in the bow which is not required. I think the Minister has justified accepting my amendment.

5:55 pm

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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In the spirit of continuing my bipartisan record in this House, I am happy to accept Deputy Kelly's amendment. I do listen to him sometimes.

Amendment agreed to.

Bill, as amended, received for final consideration.

Question proposed: "That the Bill do now pass."

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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Is the question agreed to?

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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Níl sé aontaithe.

Question put.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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Vótáil.

6:00 pm

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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7 o’clock

Will the Deputies claiming a division please rise?

Deputies Thomas P. Broughan and Bríd Smith rose.

Photo of Pat GallagherPat Gallagher (Donegal, Fianna Fail)
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As fewer than ten Members have risen I declare the question carried. In accordance with Standing Order 72 the names of the Deputies dissenting will be recorded in the Journal of the Proceedings of the Dáil.

Question declared carried.