Frances Black (Independent) | Oireachtas source

I want to speak to section 31, because our amendments to this section have been ruled out of order on the basis of a charge on the Revenue. It is frankly an astonishing interpretation of Standing Orders that an amendment would be judged to constitute a charge to the Revenue because it may at some point lead to a private individual taking legal action against the State. On those grounds, you could argue that any amendment we propose would be out of order and that any wording inserted in any Bill might one day be subject to judicial review against the State.

Does this therefore mean every amendment tabled in the Seanad should be ruled out of order on the basis of a potential charge that may be caused by a potential future court case? These rulings are inappropriate and frankly wrong, but I will leave that issue for the moment.

This section stipulates that an applicant to the scheme "agrees to waive any right of action which the applicant may otherwise have had against a public body and to discontinue any other proceedings instituted by the applicant, against such public body, that arise out of the circumstances to which his or her application related."

This is an unacceptable provision. It goes directly against the judgments of the UN Committee against Torture. The UN Committee against Torture agreed in the case ofElizabeth Coppin v.Ireland holding in its admissibility decision that collective reparation and administrative reparation programmes may not render ineffective the individual right to a remedy and to obtain redress. The UN Committee against Torture supported the right of victims to bring actions whether or not they signed a legal waiver in the interests of justice.

This legislation, as drafted, is in direct contravention of rulings by the UN Committee against Torture. I want to put that clearly on the record of the House today. The fact that this scheme provides no redress for specific experiences of forced family separation, medical experimentation or racial abuse means that it is grossly unjust to ask any applicant to waive their right to sue for these other and distinct abuses. My colleague, Senator Higgins, made this point very clearly and repeatedly and we await the Minister’s response, which should be delivered to this House so all Members can hear it today.

If the scheme is only going to compensate applicants for the number of days spent in an institution and not for any other distinct abuses that occurred there, then it is unacceptable that the Minister would force them to waive their right to sue in respect of these other experiences. It is concerning to hear the attempt to hedge around this issue, using language like "all-encompassing payment" to try to gloss over this issue. That language is not in the Bill and no all-encompassing payment is being offered to survivors. That is the concern here.