Simon Harris (Wicklow, Fine Gael) | Oireachtas source

I understand absolutely what Senator Higgins is trying to do here. While I agree with what she is trying to do, I am not in a position to accept her amendment today. However, I would like to do more work on this whether through the legislation or through the tribunal setting out greater clarity on its own rules and procedures, which will not, of course, be a matter for me. One hopes the tribunal will reflect on how it might provide reassurance in a published document that women, lawyers and, indeed, all of us will be able to see. The Senator is correct that what we are trying to do here is provide an alternative to the High Court. We cannot remove people's right to go to court and we should never suggest that. Everyone has a constitutional right to go to court. We are trying to provide an alternative pathway. We asked Mr. Justice Meenan to look at this in his report and one of the major positives he outlined from this model versus the court is that a woman would not have to set out her intimate details in public. As we have seen, that has been deeply traumatic for people. The idea here is that the default position in court is that hearings are held in public and that justice must be seen to be done in public. What we are doing as an Oireachtas is saying the default position is to hold a hearing in private. However, we are also saying we cannot silence women and tell those who would like their hearings to be held in public that they cannot be. We are trying to get this balance right. The default position is a private hearing to protect the woman and not, by the way, anyone else. If the woman would like it to be in public, she should have that right. If the woman would like some of it to be in public, the woman should have that right too. The legislation discusses that being partial or full.

The tribunal is even making arrangements with OPW and so on to make facilities available for hearings to be held in public because it is likely that its regular set up will not have such facilities. However, it is at that advanced level of planning. The tribunal is also at an advanced level of planning in terms of working out how to indicate at an early stage whether a woman would like a hearing to be in private or in public and it is going to provide in its pre-claim protocols a mechanism for a claimant to indicate whether she wishes her hearing or any part of it to be in public. This will allow a hearing to take place in a different location if required. The tribunal has confirmed to me that it has no intention of rejecting a reasonable request for a public hearing. This is where we all get frustrated with the legal language of what is a reasonable request and what is appropriate to do.

My understanding from engaging on this matter in recent days is that there must be a fairness. If one decides to hold one's hearings in private, that is absolutely one's right. If one decides one wants part of one's hearing in public, that is also one's right. However, one must also then allow the right of response to be in public also. We cannot have a situation in which clinical negligence lawyers put forward a viewpoint about our screening programme in public to which the health service does not then have an ability to respond to in public also. There are public good issues here and a degree of judicial discretion that is probably appropriate, albeit I can see entirely what the Senator is worried about. None of us wants to think the tribunal will tell someone "No, you cannot have your story told in public." That is not the intention of the tribunal nor is it the intention of Ms Justice Mary Irvine.

While the Senator points out rightly that there are no caveats or expansionary clarifications in the legislation, which, with the benefit of hindsight, could be helpful and while I cannot wade into this space, my gut instinct is that the rules and procedures of the tribunal could provide a degree of reassurance. I am very happy, while respecting its independence, to reflect this discussion when liaising with the tribunal and to ask how it can provide that clarity. It is not its intention to stop people from telling their stories in public; quite the opposite. We expect that many women will go through this process because they would like to have their privacy protected and not to have the trauma of being photographed walking in and out of court every day. I can only imagine how difficult it must be for very ill people. That is the intention but I can see why the Senator is concerned.