Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I will speak to the amendments put forward by Senator Flynn and also to some Government amendments. This grouping relates to the legal waiver for the scheme. As outlined in previous debate and in a written response provided to the Senators on the matter, the scheme will include a legal waiver. I have received consistent advice that this is acceptable for this scheme, similar to other ex gratia schemes. The legal waiver will only be signed at the point where an applicant accepts an offer of a financial payment under the scheme. Therefore, the applicant will know precisely what they are being offered under the scheme prior to signing a waiver. Until the point where an offer is accepted, an applicant will have the right to pursue a case through the courts. We regard the mother and baby institution payment scheme as part of a package of supports and measures in the Government's action plan to provide an inclusive and enduring response to the needs of survivors of these institutions.

On amendments Nos. 32 and 35, a person's right under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UNCAT, it is important to say that the right of a person to access the complaints process under the UN convention and all UNCAT rights are protected in Irish law. The waiver was subject to much debate on Committee Stage, as I mentioned, and I provided a written response to Senators' queries which they raised in the House.

On foot of that discussion, I am proposing amendments Nos. 34 and 37. Section 32(3) of the Bill currently requires that an applicant, on accepting an offer from the scheme, "shall discontinue any other proceedings instituted, by or on behalf of the applicant against a public body, that arise out of the same, or substantially the same, circumstances as the circumstances to which the application concerned related." On Committee Stage, some Senators raised questions about the meaning of the phrase "substantially the same circumstances." Following consultation with the Office of the Attorney General, it was agreed that, given the approach being taken to this scheme where applicants will not be required to provide evidence of the circumstances they experienced in order to make an application to the scheme, the words "same or substantially the same circumstances" could be deleted. To maintain consistency across the Bill, amendment No. 37 provides for this to be deleted from section 33(2) also. As a result, both sections will now purely refer to "the circumstances to which the application concerned related."

It is not possible for the waiver to be explicit in listing all of the harms that may have been experienced by people in these institutions. The scheme is not making individualised assessments or asking applicants to provide evidence of harm. Each person's experience will have been different. Therefore, applicants will have to take time to consider this offer in terms of their own experience and whether they decide to accept the offer. As we know, applicants have six months to make a decision as to whether they accept an offer under the scheme and thereby sign the legal waiver. They may take legal advice in order to do so. The scheme makes provision for some financial support to assist them obtain that legal advice.