Alice-Mary Higgins (Independent) | Oireachtas source

I am very proud to second this Bill introduced by my colleague, Senator Ruane. I commend her and her assistant, Sebastian McAteer, on the work they have done in introducing an important piece of legislation, one that is needed internationally. It has been really remarkable to note the level of distress caused by them and the concern around the abuse of NDAs internationally that has arisen in response to this legislation, based on what was an initial area of inquiry on NDAs within one realm. That shows how necessary the Bill is. The event to launch the Bill was very powerful because it showed us that this is something being sought internationally. Crucially, NDAs do not just compound the abuse of a victim, they also represent an abuse of the law and the spirit of the law and that is what is important. In my limited time I will highlight those two strands, which are equally important in underscoring why this legislation is needed.

Georgina Calvert-Lee, who is an equality and employment lawyer with great experience of NDAs in the United States, spoke about the fact that NDAs were a form of legal agreement originally designed to protect trade secrets which became weaponised as a tool to suppress human rights. She explained how far NDAs have strayed from their original purpose and the fact that there has been a conflation of issues. If a person gets a settlement, an NDA will be attached, but there is no necessary connection and they do very different things. They are at odds with each other. A settlement is a reparative recognition of damage that has been done, whereas an NDA is the disappearing of the evidence of the damage. It is the denial of that damage on the record. They are in fact very much at cross purposes in many cases in situations of abuse. One has a reparative role and the other compounds the trauma.

In terms of the silencing, we have heard from whistleblowers who spoke about NDAs which, for example, do not allow them to speak to a therapist. Zelda Perkins spoke about the real trauma beginning after signing an NDA, when she realised she could not speak to a therapist or her family. It is very different to have something that is a trade secret, intellectual property or something that belongs to an organisation or employment, and something which is effectively one's life and story. That is really important. Let me be clear: there is nothing in this Bill that requires people to share their story, but it empowers people to shape their own narrative going forward.

When we look at the debates we have had in this House on mother and baby homes and the impact of gagging orders and waivers in the past, we know that when people are silenced their desire to tell their story does not disappear after two years, five years, ten years or 15 years. They carry the damage of their story not being told all the way through their lives. That is why the Bill is important. It is important for individuals in terms of the damage caused but, crucially, it is necessary for society. So many sexual abuse cases very often end up in a scenario of "he said, she said", of two narratives placed against each other. What we have seen regarding NDAs is also "he said, she said" but with the same perpetrator. Each individual does not have to go and battle for justice with a huge raft of evidence of a pattern of abuse not being recognised by an institution. People are being put into a gladiatorial situation with somebody who has a pattern of abuse that is not recognised because of the use of NDAs. That means we do not get the systemic change that we need and that institutions do not address situations of serial concern and serial abuse. The extraordinarily impressive individuals who have aligned themselves with my colleague's Bill have done so because they have that record. I refer to people like Julie Macfarlane, who won the Order of Canada for her work on sexual abuse, who has championed this legislation.

In terms of society it is also important to recognise that NDAs are agreements specifically designed to pervert the course of justice. For example, many of them say that one should not speak to the police.That is why there are provisions in the Bill that specify authorities such as the Garda, mental health professionals, the Office of the Ombudsman and Revenue. It is to ensure that the obligation that individuals have, and the desire that people have to improve society on the basis of their experience, will not be thwarted and that best practice will not be perverted for society as a whole.

Finally, it is important that we do not just support these sentiments in principle and then just tell individuals not to sign NDAs or organisations to try to employ best practice and not use NDAs. We need to send a signal in legislation. We need to take NDAs off the table in sexual abuse cases in order that there will be no question of them being used and that their use will not be subjected to power dynamics within any individual institution. That is why we need to deal with this in legislation and not in any other way.

I commend the Bill to the House.