Simon Harris (Wicklow, Fine Gael) | Oireachtas source

Senator Nash is correct. Deputy Kelly and I have had very long and intense discussions on this, for good reason. As the Cathaoirleach, and the Leas-Cheann Comhairle in the other House, made very clear, the Minister has no role in ruling amendments in or out of order, despite assertions to the contrary. There was a bizarre situation in the other House when an amendment was ruled to be in order on Committee Stage and out of order on Report Stage. I do not understand that. I have no difficulty with speaking on the amendment, whether it was ruled in or out of order. I am certainly happy to speak to the section and I very much appreciate and respect the bona fides of Senator Nash and others in putting this forward.

However, I also need to be truthful. This is a voluntary tribunal. It requires both parties to sign up to any case. It requires a woman to say that she is happy to have her case heard by the tribunal. It also requires a laboratory to say the same. What this amendment effectively suggests would accidentally make the tribunal redundant because no third party would ever sign up to participate. I do not want to accidentally set up a tribunal to which parties will not sign up in practice. We cannot do so because the amendment was ruled out of order anyway. I also do not want to set up a tribunal similar to the one following the hepatitis C scandal. In fairness to Deputy Kelly, he conceded the wording of one of the earlier iterations of this amendment was effectively lifted from the hepatitis C legislation. That legislation provided for a compensation tribunal. This is not a compensation tribunal, but rather something we have never done before in the history of our State. It is not a tribunal of investigation or a compensation tribunal but an adjudicative tribunal. We have never set one up before in the Oireachtas. The compensation tribunal pertaining to hepatitis C was very straightforward in many ways. People were effectively infected with contaminated blood by the State and therefore compensation was to be to be paid out. Claimants' illness and well-being were monitored. This is not a compensatory tribunal. It is an adjudicative tribunal. It is an alternative to the High Court but it operates on the same principles to establish negligence.

I must make a point which my colleague, Senator Colm Burke, made very well. He knows this from his own legal background. The High Court factors in the likelihood of recurrence every day of the week. This tribunal can do that as well. I do not need to tell Senator Burke, Senator Bacik or any legally minded Members that when a case goes before a court a judge looks at the impact of the situation to date as well as the future. It will be the same in the tribunal. In preparation for this debate I have read examples of how High Court judges have done this. Where a boy goes before the High Court and it is established that there is only a 50% chance that he may develop epilepsy in the future, the judge factors that in and makes an award on the basis of future medical impact. Deputy Kelly made some flippant comments to the effect that judges cannot predict the future. Of course they cannot - they are human. However, they can listen to expert medical advice on the likelihood of recurrence and further injury. Members do not have to take my word on it. We could fill the tables in this House with case law in that regard.

Senator Nash is entirely correct. This is a very sensitive matter which we have a duty to get right. I have consulted with the Attorney General, the State Claims Agency, relevant experts and the tribunal. I am satisfied that the manner in which the High Court deals with potential future harm is the appropriate way to deal with cases before the tribunal. We have to ensure this tribunal operates within our constitutional framework. In all cases where an award is made it is the full and final settlement of the claim. However, that has been misrepresented in recent days to suggest that people cannot pursue fresh causes of action. Of course a person can pursue a fresh cause of action. In the other House Deputy Donnelly very helpfully asked if going before the tribunal would prevent an applicant from pursuing a fresh cause of action should one arise. Of course such an applicant could pursue this action. An applicant is not waiving her right to take a future action if a fresh cause occurs. To be frank, it is factually incorrect to suggest that members of the Judiciary do not factor in the likelihood of recurrence on a daily basis.

However, in the interests of maintaining what has been really good bipartisan work on this legislation, I have already given a commitment to meet with all health spokespeople to make available to them the experts and officials that have been available to me over the summer and autumn period. I will do this in advance of coming back with the miscellaneous Bill to expand the scope. If the Labour Party and others feel strongly about it at that stage there will be another opportunity for debate. I try to accept and work with as many amendments as possible. I have very serious concerns about the unintended consequences of this amendment. They are not just my concerns but those of people whose judgment and discretion I value very much.