Alice-Mary Higgins (Independent) | Oireachtas source

Let us not refer to what is being offered as a "common experience payment". That is what was given in Australia and it had a different set of parameters. The offer under this scheme is not a payment based on experience; it is a general payment based on days of residency. That is what is in the Bill and what is being given. I spoke yesterday about references to an all-encompassing general payment. There are similar issues with talking about a common experience payment. Let us call it what it says it is, which is a general payment based on days of residency. It is important to have clarity in that regard.

I acknowledge that the Minister has been clear about the choice that was made. However, I must point to some of the other choices that are there. Within a non-adversarial approach, there is scope for a widening of recognition of particular experiences. It is not the case that the only method to recognise discrimination against those of mixed race would be a completely individualised approach. As we know, racism then, as now, was systemic and deeply embedded. There is no provision to recognise that persons A, B and C experienced racial discrimination. In the Taoiseach's speech, such experiences were recognised as a widespread phenomenon and part of what was a systemically abusive system. Those experiences were not solely due to lack of knowledge or understanding. They were also due to straight-up prejudice and racism. There were systemic patterns of negative outcomes. For example, mixed-race people were potentially less likely to be placed in homes and more likely to be considered not suitable for placement. As I tried to address in my amendment No. 40, they were, in some cases, more likely to find themselves boarded out or moved out of the mother and baby homes and into ancillary institutions and settings in which conditions could be even worse. Those experiences make up patterns; they were not individual bad experiences or children having the bad luck to hit a racist nun. They were systemic issues. There is always the option, even in a general scheme, to say that where a person is mixed-race, as is the issue in this instance, there will be a general recognition that they may have been subject to additional, systemic prejudices and to grant redress based on that, without the requirement for them to provide individual proof and evidence. That choice is there. It is not solely a choice between the individualised and the general. There was the choice to have a general scheme that is wider and more generous in the factors it considers and recognises. Such a scheme would not have to be adversarial but could recognise a wider set of factors. The two-tier approach suggested by IHREC would have facilitated that.

It is useful that the Minister has been very clear in setting out that the choice was made to have a general payment that does recognise individual experience. I note again that as the general payment does not recognise individual experience, it does not, cannot and should not be construed that the waiver persons may be asked to sign would preclude them from pursuing individual remedies around their individual experiences, which is a separate issue to the generalised payment based on days of residency. It is crucial to be clear that the payment people receive based on the number of days is not a recognition of individual experiences, including the experience of racial discrimination. Indeed, I hope people will be able to pursue further individual claims. In doing so, they are very likely to have the backing of the UN, which has recognised this as an issue that needs to be addressed. The statute of limitations has created difficulties for those seeking to take action against private parties. However, I hope and believe they will be able to take action against the State for its complicity in racial discrimination.

I appreciate that the Minister has given a complex response to what I acknowledge was a complex point. However, it is not correct to suggest the only measure is days or else we are straight into an individualised adversarial process. There was quite a wide spectrum of options in between that were available in designing the scheme. It is regrettable they were not taken up.

There are many other amendments to get though but the Minister might respond to the points I raised regarding, first, the direct known criticism from 2022 by UN experts regarding the pattern of racial discrimination between the 1940s and 1990s and, second, the complaint made to the UN's Committee on the Elimination of Racial Discrimination. I do not know whether he is at leave to respond on those points. If he is, it would be useful to know, if this amendment is not being accepted, what actions the Government plans to take in response to the concerns raised and the complaint made. He might be able to give us clarity on that. An apology will not be considered enough.