Mark Daly (Fianna Fail)
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I welcome the Minister to the House.

Mark Daly (Fianna Fail)
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Amendments Nos. 1 to 15, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

Amendment No. 1 is in the name of Senator Boyhan.

Alice-Mary Higgins (Independent)
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I move amendment No. 1:

In page 5, between lines 24 and 25, to insert the following: “Report on operation of Scheme

2.(1) The Minister shall produce a report which will be laid before both Houses of the Oireachtas 12 months after the Scheme has commenced.

(2) A report under this section shall consider the following matters:

(a) whether and to what extent persons engaged in the management, administration or operation of relevant institutions should be permitted or required to contribute to the cost of making payments under this Act;

(b) whether the 180 days residence requirement provided for in section 18(1)and (4)should be amended or repealed;

(c) whether the Scheme should be extended so as to make provision for recognising persons who were boarded out as children as relevant persons;

(d) whether there is a need to provide for additional institutions in Schedule 1;

(e) whether the requirement imposed on applicants by section 32(3)should be removed;

(f) whether the duration of the Scheme should be extended;

(g) whether payment rates under the Scheme should be increased;

(h) whether assistance or support such as reparations could be offered to those who were subject to drug trials;

(i) whether funds from the Department of Children, Equality, Disability, Integration and Youth in Ireland, could be allocated or reallocated to provide assistance, support or reparations to persons mentioned in this Act.”.

I move the amendment on behalf of Senator Boyhan. As people will be aware, Senator Boyhan has taken a very deep personal interest in this scheme and the question of the institutions in our State and the abuse that has taken place in them. He would like to be here himself but he is attending the British-Irish Parliamentary Assembly in the UK so he cannot. He has asked me to move the amendment. It is a comprehensive amendment that looks for a report on the operation of the scheme, a report which would engage with a number of crucial matters: first, the question as to "whether and to what extent persons engaged in the management, administration or operation of relevant institutions should be permitted or required to contribute to the cost of making payments under this Act"; the question about the 180-day residence requirement, as provided for in subsections 18(1) and 18(4), and the question as to whether that should be amended or repealed; the question as to "whether the Scheme should be extended so as to make provision for recognising persons who were boarded out as children as relevant persons"; and the question - we will come to this in later amendments too - about the need to recognise that there may be additional institutions that need to be recognised under Schedule 1. Although I believe the amendment in question may have been ruled out of order, we will come to the question as to whether some of our maternity institutions and maternity hospitals might need to be recognised in that regard. There is also the question as to "whether the requirement imposed on applicants by section 32(3)... [needs to] be removed" and the questions about the duration of the scheme and whether it needs to be extended. That is particularly relevant, given that we have seen the delays in access to records that will affect some people in their applications under the scheme. There are the questions as to "whether payment rates under the Scheme should be increased" and "whether assistance or [specific] support such as reparations could [or should] be offered to those who were subject to drug trials". That is another issue Senator Boyhan has highlighted in particular as something that is currently not scrutinised properly under this Bill and should be. There is also the question as to "whether funds from the Department of Children, Equality, Disability, Integration and Youth in Ireland ... [should] be allocated ... [in order] to provide assistance, support or reparations to persons mentioned in this Act".

Again, this is a comprehensive amendment from Senator Boyhan.A number of these individual issues, as the Minister will be aware, will be coming through in individual reports, which we are individually looking for. I have similar composite amendments. I will be looking further in my amendments at reports on the operation of the scheme. However, the fact one is seeing these themes coming through from Senator Boyhan, myself and many other Members of the House is that these are the gaps. They are the gaps with regard to knowledge, and who the scheme is serving, and I urge the Minister to consider favourably this request for a report from Senator Boyhan.

I will speak to amendment No. 15, which is an amendment from myself and my colleagues in the Civil Engagement Group calling for a full and comprehensive review of the operation of the scheme. It is a far more substantive review than the review proposed under section 49 of the Bill, which has a very limited scope. The review of the scheme currently proposed is largely a mathematical exercise. It asks for a review mainly of the extent to which people availed of various aspects of the scheme. It asks how many people required or received payments. It does not allow for any substantive qualitative review of how the scheme was devised, how it operated with respect to those included or excluded, and whether those exclusions were justified or not justified. It does not look to the question of the injustices which may have arisen, and which we are strongly signalling to the Minister may arise as a result of the operation of the scheme as it is currently designed.

Amendment No. 15 would insert a different kind of review provision, one which calls for a review of all of the key gaps, exclusions, shortcomings, choices made and not made in respect of the Bill, which have been highlighted by survivors since the beginning of this process, and in all of the reports and consultations with survivors. It calls for a review of the exclusionary minimum residency requirements for both general and work-related payments. It asks the Minister to consider whether there may be scope for people to get additional payments in recognition of the impact of forced family separation, which again was signalled by survivors to be one of the great traumas and impacts which the institutions have had on their lives. It talks about additional recognition regarding the medical trials and involuntary participation in vaccination trials. It talks about additional recognition and scope for racial discrimination, which many experienced in these institutions as a layered form of discrimination. It asks the Minister to look at the potential for religious orders and pharmaceutical companies involved in the operation of these homes and the medical trials to be required or forced to contribute to the scheme.

This review would be far more substantive than the one currently proposed by the Bill, and would demand a serious examination of the fairness of the scheme, whether it has achieved its primary goal, which is redress for those who have suffered in these institutions, and whether it has gaps. Later I will look to the fact that even in the quantitative piece, we need to look to those who apply to the scheme and who are not successful under it, and look to the issues around that.

Our amendment would look to the question of the time and duration of the scheme, which is crucial in the context of ensuring that all those who are entitled have the opportunity to avail of it, and the question of the adequacy of the payment levels. One of the issues I wanted to highlight relates to the boarded-out and nursed-out persons within the scheme, and the question of adequacy around the medical supports. Again, the Minister will be aware that I have highlighted before that anyone who had to give birth within these institutions deserves the enhanced medical card.These are questions we have. It would be wonderful if the Bill actually solved them and if it closed all the gaps that have been collectively identified across this House. However, at the very minimum, we need a review or a report which allows for the future closing of those gaps because, sadly, this Bill, if it passes in its current format, will leave us with unfinished business.

Annie Hoey (Labour)
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I wish to speak in support of this amendment. I know a number of amendments have been ruled out of order, which is obviously extremely disappointing, particularly when they refer to a cost on the State. I do not know that we could ever really calculate the full cost of the impact that mother and baby homes had on people's lives. If we are not even going to be able to discuss the amendments because they have been ruled out of order and require money messages, we should at least be open to the amendments seeking a report on the operation of the scheme.

We in the Labour Party have an issue with the six-month exclusion. As many people have said repeatedly, a child who was resident for 179 days will receive nothing compared with a child who was resident for 180 days. I understand it has been calculated that 40% of survivors would not be eligible for any scheme because they do not meet the six-month requirement. On the basis of fairness and equity, we think that the requirement is arbitrary and permits no consideration of the context of a person's life. Even the Leader, when questioned about this, said that she did not understand where the six-month provision had come from or why it was there. Therefore, I am not just speaking on my own behalf or on behalf of the Opposition in raising concerns about that.

The report would look at those who were used for vaccine trials. While I am open to correction on the number, I think 1,148 children were involved in clinical trials which included vaccines against diphtheria, measles and other serious conditions. My understanding is that none of the mothers involved, some of whom were as young as 15, appears to have given consent for their children to be involved in those trials. We know that some of those mothers have health issues, psychiatric disorders and other things. It is believed that at least four different vaccine trials were conducted at St. Patrick's, Navan Road - Pelletstown - and three at Bessborough. If those amendments are going to be ruled out of order, I would support the motion for a report after this so that we can consider whether these children should be included. GSK, the successor to the company that administered the vaccines, has not taken any corporate responsibility for this and continues to operate.

The report also mentions racial discrimination. We are still not recognising the double discrimination that mixed-race children faced. The report also looked at boarding out. We firmly believe that those who were boarded out should be included in the scheme and entitled to redress. They did not go through the proper procedures of fostering or any sort of basic decency of child protection measures. Many of those children had horrific experiences. It is not correct that they would be disregarded in this legislation.

The amendment on the inclusion of maternity hospitals of certain institutions has been ruled out of order again owing to the requirement for a money message. At least if one of the amendments seeking a report were accepted, it would provide an opportunity to assess whether those people should have been included in it even though I feel like we have been talking about this endlessly. Many people have put forward ideas and suggestions as to how this Bill could be improved. At a minimum, however, we should include a report to look at all these issues.

Paul Gavan (Sinn Fein)
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The Minister is very welcome. If I am mistaken on this, I stand to be corrected. As I came into the Chamber, my party had received no email outlining which of our amendments, if any, have been ruled out of order, which is not satisfactory or fair. For those watching at home as well as our guests in the Chamber, it is important for the public to understand that very many substantive amendments have been ruled out of order, which means we cannot actually discuss them.This is even though they relate to very important issues about which we have received hundreds, if not thousands, of communications. I am very frustrated by that. At the very least, we should know, in a timely fashion, whether our amendments have been ruled out of order and which ones. It is entirely unsatisfactory in respect of this debate.

Mark Daly (Fianna Fail)
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On the amendments the Senator tabled that were ruled out of order, the relevant section can be discussed when we put the question. Those issues can then be raised under the section.

Paul Gavan (Sinn Fein)
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That is an important point. I appreciate the Leas-Chathaoirleach making it.

Mark Daly (Fianna Fail)
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We are checking whether that letter-----

Paul Gavan (Sinn Fein)
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If I am in the wrong, I will hold my hands up. It does not normally happen. I acknowledge it is quite unlike the Seanad.

Mark Daly (Fianna Fail)
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I am sure the letter was sent but we will find out.

Paul Gavan (Sinn Fein)
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I thank the Leas-Chathaoirleach. We are in the challenging situation of there being very few amendments we can specifically speak to. The amendments tabled by Senators Boyhan and Higgins pull together a number of our key concerns, albeit in asking for a report on them because that is what we are apparently restricted to, for the most part, today.

I will cut to the chase. I hope the Minister knows he is someone I absolutely respect. He has taken courageous stances on occasion. I have recognised that on more than one occasion. None of what I will say is personal. However, as the Minister ultimately responsible for this Bill, I do not understand how someone with a track record of human rights advocacy can stand over a Bill that arbitrarily excludes 24,000 survivors on the basis of this six-month date. I do not understand how he can stand over the issue of 4,800 people who were boarded out or, as a person who is qualified in law, how he can stand over a Bill that, effectively, classes victims or survivors and puts them into different tiers. That is not right. It is fundamentally wrong that some people will get compensation and others will not because of an arbitrary date of six months, or that they will be excluded simply because they were boarded out. I do not how the Minister justifies that.

Given that so many amendments have apparently been ruled out of order, I would like to have a meaningful exchange with the Minister on this. I want to give him the opportunity to explain the rationale behind it and ask him directly whether, as Senator Doherty said previously, it was a decision based on finance. Is that what we are talking about here? The Bill will cost approximately €800 million. Sinn Féin has costed it to include those other 24,000 people, which would add a further €400 million to that total. We urge the Minister to still do this. We urge him to be inclusive. If he is ruling it out on financial grounds, he should at least have the courage to stand up and say that. I have to be honest. The Minister seems to have sidestepped the rationale behind putting people into different tiers and classes and I do not see how that can be justified. I honestly do not.

Equally, on the timeframes, this six-month period means if people are above the line, they get some compensation but if they are below it, they do not. How can that possibly be justified? That is what people who are writing to us and contacting us each day have been asking for months. I am genuinely at a loss as to why the Minister has not held ground on this and ensured that this Bill is truly inclusive. I am genuinely puzzled by that. Other parties on the right have a very poor track record on issues around this. We know that but this is a Green Party Minister agreeing to a Bill that excludes people. I will be very direct with him. If this Bill passes, I do not think people in years to come will talk about him as the Minister who resolved these issues. They will talk about him as the Minister who excluded tens of thousands of survivors from getting compensation and justice. I have to ask the Minister why he would want that.

Let us face it: most of us will get pegged out of the Houses at some stage. All we then have is to look back to see what we did when the pressure was really on. Did we do the right thing? Did we stand up in the right way? One of the key differences between the Minister and me is that, as the Minister, he has power.He is the Minister. As I said before, he is someone who has shown courage in the past. I am completely bewildered as to how he will not do the right thing here. This is the last chance for us to make important changes to this Bill to make it inclusive and to do the right thing, and I cannot help but believe that inside the Minister must know there is something fundamentally wrong with the Bill as it stands. He must know that. I want to hear in his response a clear rationale for this arbitrary six months and why there was this decision to exclude so many survivors. It cannot be justified. It does not stand up.

There are other points on Senator Boyhan’s amendments which are all very important. The five years is another arbitrary figure. Why do that? It does not have to have that five years in it. Then there are those who were victims of drug trials by GlaxoSmithKline and Pfizer. Again, I do not understand why the Minister would not take on board reasonable amendments on that and the very reasonable suggestion that we might look at funds from the Department of Children, Equality, Disability, Integration and Youth in Ireland being allocated, if necessary, to provide assistance. There are a whole host of issues here.

I looked at the Minister’s speech on Second Stage in detail and again this morning, and I put it to him that he has not directly answered the very serious charges about why the Government has decided to exclude these people, the tens of thousands of survivors. It is another failure for these people. It is not right and it leaves a really bad taste in the mouths of all these people. They are watching today and I think the Minister owes them a direct explanation. Even better, it is three weeks since Second Stage, so the Minister has had three weeks since we appealed to him to give this further consideration and to look again and be inclusive. He could see how we can really make a difference for these people yet, unless I am mistaken, he has decided to make no changes and to do nothing further and I do not think that is acceptable. I look forward to the Minister’s response. It is to be hoped we can tease out his stance on all this.

Alice-Mary Higgins (Independent)
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I have some specific questions that need answering. I have been informed that amendments Nos. 8 to 10, inclusive, which were on the definition of "relevant person", have been ruled out of order. That makes these amendments, Nos. 1 and 15, which try to address who is included as a relevant person, all the more important in reviewing it. I have some questions for the Minister because these are the choices that are being made around what comes in. We have been told the relevant person in the legislation is meant to be as wide as possible but it could be broader. For example, Senator Boyhan proposes, and this was also in No. 8, that those who were born in maternity hospitals and later transferred into the institution be included. This is the question of why it is not specified that a relevant person may include an adult who spent time in the institutions for any reasons. I think it is a child who spent time in the institutions and then it is an adult who spent time relating to pregnancy or child birth. I am conscious of those who may have been giving birth in a maternity hospital or institution and may have been transferred subsequently to a mother and baby home. I would like to know the thinking on that. Is it envisaged they will or could be included?Senator Boyhan has put forward amendments specifically to accommodate that by ensuring there is reference to the maternity hospitals and that the intersection between those hospitals and the mother and baby homes is recognised in the Bill.

Amendment No. 9 looked at another aspect of the definition of "relevant person" by seeking to recognise that the harm and abuse caused by these institutions did not always end at their gates. Children who were boarded out or nursed out from a relevant institution often ended up in situations in which the abuse to which they were subjected continued. This was directly due to the negligence of the institution in its decisions on arrangements in respect of those children. It is very dishonest to have a scheme that simply defines the harm done to children as beginning and ending at the gates of the institutions. We know that was not the case. I will speak about this again when we get to later amendments.

I have spoken before about how excluding residents in their first six months of life is wild. We know how important those first six months are and the significant impact of what was done to these children. I will speak presently on amendments I have tabled that relate to this. The issue with this provision is not just the vast number excluded by it but also the lack of recognition of the impact of harms experienced in that first six months of life. That is shocking, given everything we know about the importance of those six months. It is why we have maternity leave and all the other structures of State that are built around the crucial first few months.

I have also sought that the definition of "relevant person" would include and recognise mixed-race children who may have been segregated from a relevant institution under the Bill at an early stage and placed into another institution in respect of which a public body had a regulatory or inspection function. Mixed-race children in the institutions faced different treatment from that given to others, and additional prejudice. That should be acknowledged in the legislation and the system of payments. It is crucial to recognise that some of these children were removed from relevant institutions as a result of racial discrimination and placed elsewhere. Where relevant institutions were making unsatisfactory arrangements in regard to the care of vulnerable children, it is really important that these particular children be included in any scheme. Indeed, some of them spent longer than other children in relevant institutions because they were considered unsuitable for placement. The opposite was also true in some cases, with some mixed-race children spending less time in institutions because they were more quickly transferred into the industrial schools or other institutions not covered by the Bill. The Association of Mixed Race Irish has been very clear in its view that the length of stay criterion assumes mixed-race children stayed longer but does not take account of the range of discriminatory practices they may have experienced. The industrial schools and other institutions fall outside the remit of the scheme, which means there are children who are not properly or adequately recognised within its provisions.

All of this comes back to the length of stay criterion, which has never been justified on any scientific, moral or health basis. There is no justification for the criterion. A clear signal we got from the OAK report, whose authors spoke to the survivors of institutions, was that applying length of stay as a criterion for qualification for the scheme was not the right approach to take.

Each of the issues I have raised is touched on in amendment No. 15, but I had hoped to speak about them separately in addressing amendments Nos. 8 to 10, inclusive. However, those amendments were ruled out of order. I hope the Minister, in responding to amendments Nos. 1 and 15, will address the choices that were made in respect of the definition of "relevant person". He might also address the question of the decisions around medical payments, not just in respect of the medical trials but also by way of the limiting of access to certain health services to persons who spent fewer than 180 days in a relevant institution.

Roderic O'Gorman (Dublin West, Green Party)
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I thank Senator Higgins for tabling the amendment on behalf of Senator Boyhan who texted me earlier to explain why he would not be present today.

The decision as to whether an amendment is in order is not made by me or the Department; it is made by the Office of the Cathaoirleach. We will debate whatever amendments we have been told are in order, as will the Senators, and we will not be in a position to debate those that we were told are not in order. We received the notification about what amendments are in order and not in order at the same time as Senators. Senator Higgins made point on the record, which is absolutely fine, but it is important to note the decision is made not by me or my Department but through the relevant mechanisms.

Paul Gavan (Sinn Fein)
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We did not get the decisions at the same time as the Minister. Sinn Féin received no notice of amendments being ruled out of order.

Gerry Horkan (Fianna Fail)
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The Minister without interruption, please.

Paul Gavan (Sinn Fein)
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I am just correcting a statement.

Roderic O'Gorman (Dublin West, Green Party)
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I do not know when the Senator received notice. We received the final listings last night. I am sure the Senator will be able to take the matter up with the Office of the Cathaoirleach. I am subject to correction on when we received the list.

Gerry Horkan (Fianna Fail)
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To clarify, my understanding is that it was sent to Senator Warfield whose name was the leading name on the amendments.

Paul Gavan (Sinn Fein)
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When was it sent?

Gerry Horkan (Fianna Fail)
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Around lunchtime today, apparently.

Paul Gavan (Sinn Fein)
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Okay.

Gerry Horkan (Fianna Fail)
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That is what I have been informed.

Roderic O'Gorman (Dublin West, Green Party)
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Amendments Nos. 1 and 15 are proposed to be taken together as they both seek to include a section in the Bill providing for a report on the operation of the scheme. Unfortunately, I am not in a position to be able to accept these amendments as the Bill already provides for a review of the operation of the scheme under section 49. It sets out two separate reviews that will be conducted on the operation of the scheme. One is an interim review that will take place within two years after the second anniversary of the establishment day and one will take place after the completion of the scheme. Section 49 sets out a list of matters that should be considered as part of these reviews and allows for the Minister to specify any additional matter. In addition, section 12 of the Bill provides that the chief deciding officer shall prepare an annual report on the performance of their function and that each annual report will be laid before the Houses of the Oireachtas. On an annual basis, there will be a reporting and an accounting mechanism before the Houses. There will be the two-year report, which allows for a review of the operation, including whatever the Minister at that stage decides to add in. In addition, there is a report at the end of the five-year period of the scheme.

The development of proposals for this scheme, as we know from going through pre-legislative scrutiny, is a complex task. It has taken us time to get to this point and further time will be needed to bring us to the point of opening of the scheme for applicants. The reviews of the operation of the scheme, which are provided for in section 49, need to be very much anchored in and designed to reflect the operation and current scope of the scheme. That is set out in the Act.

Paragraph (a) in both amendments seem to pertain to the religious congregations. It should be noted in that regard that while negotiations with the congregations are taking place, these are taking place as part of a separate process. I always wanted to be very clear that I did not want the outcome of those negotiations in any way delaying the passing of this legislation. As I outlined when this Bill was introduced in the House, I will be seeking a meaningful contribution from the congregations. However, the payment scheme should not be delayed pending the outcome of that process. For this reason, I do not agree that it is appropriate to incorporate that matter into the review of the scheme. However, as I said, there will be a full process for explaining the outcome of engagements with the religious congregations to the Houses of the Oireachtas once that process has come to an end. Providing updates before that process has ended is not a good way to conduct a negotiation process.

Paragraph (e) in amendment No. 1 and paragraph (k) in amendment No. 15 seek to remove the legal waiver as part of the scheme. I reassure Senators that the legal waiver would only be signed at the point where an applicant accepts an offer of a financial payment under the scheme. Therefore, applicants will know precisely what they are being offered under the scheme prior to signing a waiver.Applicants will be also entitled to financial support to avail of independent legal advice prior to making that decision as provided for under section 43. Until the point where the offer is accepted, an applicant will have the right to pursue a case through the courts. Furthermore, signing a waiver will not mean that survivors cannot discuss their experience of engaging with the scheme, nor will it prevent them from discussing the payment they have received.

Both amendments seek a report on the need to provide for additional institutions. However, it is important to note that section 50 already contains a provision for the insertion of additional institutions in accordance with certain criteria. The amendment also seeks that the report should consider that the scheme be extended to categories of persons, including those who were boarded out, subjected to vaccine trials or experienced racial discrimination.

It is important to understand the overall approach of the scheme to providing redress, and that is one that provides an all-encompassing general payment to eligible applicants in recognition of the time spent and the harsh conditions, emotional abuse and all the other forms of mistreatment, stigma and trauma experienced by residents of mother and baby or county home institutions. This approach was taken in order to facilitate a non-adversarial scheme where applicants would not be required to bring forth evidence of abuse in order to qualify for the scheme. Taking this decision, so that we can deliver a straightforward scheme to survivors, means the scheme does not rely on a process that would provide dedicated payments for particular matters because that would require an individualised assessment. Many of the issues raised in the amendments go beyond the mere circumstances of the mother and baby and county home institutions.

Both amendments place very challenging timeframes on the Minister in terms of the delivery of these detailed reports. I do not believe that is proportionate. In one instance, the report must be laid before both Houses of the Oireachtas within six months of the scheme's establishment day. That would be extremely challenging, particularly at that time. Once the scheme is up and running, the key focus should be on making sure it is operating as effectively as possible, we are receiving and processing applications and we are getting both payments and medical cards out to survivors as quickly as possible. That should be the absolute focus of the executive office once the scheme is established. To put a tight requirement on the executive office to write reports about matters that are not within the ambit of the scheme would be counterproductive in many ways.

Senator Higgins spoke about delays in access to records. To be clear, since the Birth Information and Tracing Act was enacted and applications opened in October last year, 8,200 applications have been received, of which 4,400 have been answered with relevant information provided to adoptees, survivors who were residents of mother and baby homes, county homes and other institutions. As I have recognised previously in this House, there have been some delays in regard to delivery of this information, notwithstanding that 4,400 people have received it at this point. The executive office that will be established under this legislation will have its own direct access to the database of the mother and baby home commission. This is the database we voted to save in 2020 when it was at risk of being deleted. The executive will have direct access to that. There will not therefore be delays in processing applications under this particular scheme.

In the context of the wider response and the design of this scheme, which I have spoken about in the Dáil, this scheme is one part of the Government’s response. All of us know from our engagements with survivors and former residents that the concept of redress means different things to different survivors or former residents. For some, the measures we are discussing in this particular scheme, namely, a financial payment and access to health services, are the key priority. For others, the issue is about access to counselling, which will now be provided free of charge for former residents of mother and baby homes and county home institutions through the national counselling service.For others, it is the respectful treatment of the remains of loved ones. For that reason we passed the Institutional Burials Act. This year, we will see the establishment of the agency for Tuam, with work beginning to exhume the remains on that site. For others still, it is the identity information they have been denied for so long. That is why we passed the Birth Information and Tracing Act.

For yet others, it is recognition where what happened in these institutions is understood in our history. That is why we have agreed to proceed with the creation of a records and memorial centre in Sean McDermott Street to act as a site of conscience and a site where what happened in mother and baby and county home institutions and, indeed, in Magdalen laundries and other institutions can be understood. We will also have a dedicated archive. This is run by the National Archives of Ireland and the National Museum of Ireland, where the information will be available. That is where the scheme lies, which is in that overall response.

That is a response that is directed and where the State is attempting across a range of measures to bring forward various types of redress to meet the needs that have been indicated by survivors. We were always very clear and recognised that there is nothing the Government can do can make up for the hurt and for the impact of time spent in mother and baby homes and county home institutions. This scheme is as part of that overall range of measures.

Alice-Mary Higgins (Independent)
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I thank the Minister. I wish to speak on a number of matters and indicate areas whereby if the Minister is sincere in what he is discussing, there is scope for him to bring changes. We had hoped that perhaps the concerns that had been raised right across the House - I acknowledge the members of Government parties who raised their concerns - would mean that something different would be done in respect of the three-week gap. We are deeply disappointed in that regard.

I had expected that the issues we have raised in the context of the review would be contemplated in the Bill. The Minister does not have a say regarding what is ruled out of order in the House, but he does have a say in the context of the amendments that the Government brings forward. I urge him, between now and Report Stage, to reflect on the issues again and bring forward proposals.

I want to identify some of the key areas to which the Minister referred and in respect of which he could and should be bringing forward amendments on Report Stage. He mentioned the review. That review is very narrow and technical in nature. It literally just gives the numbers of those who are - and this is key - eligible for a scheme. We will not have the figures for those who apply for the schemes and are refused or found to be ineligible because of one of the many potential pitfalls that have been signalled. There is no scope for the State to learn if issues arise. There is also the question of whether some of the figures we have heard regarding the potential costs may have been somewhat exaggerated. I refer here to what the costs might have been if, for example, we had a wider scheme. In the context of the sad and embarrassing litany of institutional abuse schemes the State has had to put in place, we know that all of the money allocated has not been spent because so much work has gone into making them difficult to access and apply for. These schemes have tended to underpay people, which is not a badge of honour but one of disgrace.

The Minister has the scope to take on board the points and the qualitative questions raised in Senator Boyhan's amendment and that in my name include them in the review. That is entirely within his gift. It is a change he can make.

I want to pick up on something that is very important in the context of the waiver. This is a core contradiction. When we tried to include issues such as the additional prejudice experienced by those of mixed race - these people were subjected to racial discrimination - and when we talked about those who experienced other forms of abuse, particularly in the context of medical trials, the Minister stated that his goal is to ensure that people will not have to raise or testify to each of these issues and that the scheme will simply apply.The Minister has said his goal is to make the scheme such that people will not have to testify regarding each such issue; however, it is not the case that the State is taking a neutral position on these issues. The State is limiting the rights of persons affected by additional issues through how the waiver section is designed. Under the waiver sections, namely sections 31 and 32, people will not be able to institute civil proceedings and will have to discontinue any other proceedings instituted against a public body that arise out of circumstances the same as, or substantially the same as, the circumstances to which the application concerned relates. The Minister is not just saying the scheme is part of the wider picture; he is, in fact, limiting the rights of persons to take action against public bodies regarding the specific abuses to which I refer. I hope that is not the intent.

I had amendments that I was going to introduce to clarify specifically whether, in circumstances where you are getting a payment that is based only on time spent in an institution and does not recognise the abuse received - your having been boarded out, racial discrimination, forced separation or the fact that you were used as a guinea pig in trials by a huge, successful corporation that is still very wealthy - you are waiving your right to take action on any of these issues, because they are not the subject of the application. It is ambiguous at the moment. It is really important to be very clear. We should be compensating people regarding this range of issues rather than not doing so and rather than asking them to waive their right to take other civil proceedings on issues and abuses. What I am saying points to an ambiguity in sections 31 and 32. I hope the Minister will be able to clarify the position. Senator Boyhan and I were clear that we are very concerned about how the sections and the waiver will operate and the knock-on effects of the waiver. I would really appreciate it if the Minister gave a detailed response on how it will pan out and operate.

The Minister mentioned the wider picture and, indeed, the burials Bill that passed through the House recently. I am aware of the great distress among many who still do not know the whereabouts of their family members but I want to signal another connection between that Bill and the one before us. Again, it goes back to the decision to exclude those who spent less than six months in an institution. When we consider the child, infant and baby mortality rates in the institutions, the 80% child mortality rate that I believe obtained in Bessborough in the 1940s and the very large number of infants who died in the institutions in their first six months, should we not be very vigilant and assume a high likelihood that those who spent two, three or four months in an institution may have experienced significant health impacts? While they may have survived and will not have contributed to the high rate of mortality, it seems logical to assume – and it is implied that – they experienced health impacts because of how they were treated or, as is evident from reports about Bessborough, absolutely brutal intentional malnourishment and so forth. Again, this suggests not only that we should not have a two-tier system and exclude those who were in an institution for less than six months but also that we should recognise that there may have been very specific abuses within the first six months.Again, that points to the fact we should not have a two-tier system and we should not exclude people from the first six months. We should recognise there may have been very specific abuses within the first six months. In fact, it is extremely important to include those who were there for that six-month period and who, unlike their peers, may have been lucky enough to survive that six months.

Roderic O'Gorman (Dublin West, Green Party)
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I feel I have set out the key elements for the reasoning behind the waiver. We are creating a scheme whereby proof of residence within one of these institutions equates with an award. The person applying to the scheme does not need to pay out legal fees, to bring forward proof, or undergo the trauma of having to provide evidence of the specific abuses they underwent in that institution. That is the design of the scheme we brought forward. The requirement of a waiver is only one that applies at the end when an offer is made. The individual is entitled to refuse the offer of the payment. However, they may still receive the medical card even if they decide to refuse the payment. The key element is that the waiver comes in at that period, recognising the comparative ease of an application under this process, versus the alternative. That means taking a civil action, which involves the various elements in terms of legal fees, the bringing forth of evidence and the chance all of that may not convince a judge that the civil standard has been reached. The applicant may lose the case. That is why the waiver is applied on foot of the easier process established here.

Alice-Mary Higgins (Independent)
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Is the Minister suggesting that the waiver will apply to issues that are not reflected in the redress scheme?

Roderic O'Gorman (Dublin West, Green Party)
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The waiver applies to an award provided for under the redress scheme.

Alice-Mary Higgins (Independent)
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Yes, but as I said the scheme does not recognise or engage in circumstances such as, for example, racial abuse or forced family separation. Is the Minister saying the waiver applies to those issues? In that context, this does not look like a non-adversarial approach. If this were a blanket piece of a redress scheme being put forward, which the Minister was trying to slim down, surely the waiver should only apply to those matters covered by the scheme, and not to other matters explicitly not covered by the scheme.

Roderic O'Gorman (Dublin West, Green Party)
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I will have to come back to the Senator in writing on that one.

Alice-Mary Higgins (Independent)
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If that is the case, I hope that something can be clarified, changed and amended on Report Stage.

Paul Gavan (Sinn Fein)
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I have two points. My first relates to notification of amendments being ruled out of order. I am awaiting confirmation, but I am happy to accept our colleague's word that we must have received an email at 2.10 p.m. today.

Gerry Horkan (Fianna Fail)
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I did not specify 2.10 p.m.

Paul Gavan (Sinn Fein)
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I apologise. My colleague from the Labour Party mentioned that it came at 2.10 p.m. today. That leaves me puzzled in terms of the Minister stating he received that information yesterday evening. If that is the case I am again genuinely perplexed. I do not think it is acceptable to receive a list of our amendments ruled out of order one hour before the debate is due to begin.

Gerry Horkan (Fianna Fail)
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I am not the person who made these rulings.

Paul Gavan (Sinn Fein)
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That is true.

Gerry Horkan (Fianna Fail)
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My understanding is that the Cathaoirleach only ruled on them this morning.

Paul Gavan (Sinn Fein)
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I am just quoting what the Minister said. That is fine.

Gerry Horkan (Fianna Fail)
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What the Minister said is that he may have been made aware that they were likely to be ruled out of order, but that ultimately the Cathaoirleach would have to do it. He would not tell you in advance they had been ruled out of order if they had not.

Roderic O'Gorman (Dublin West, Green Party)
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The finalised groupings were confirmed to us at lunchtime as well.

Paul Gavan (Sinn Fein)
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I appreciate that clarity. I will move on to the key thing I want to say. This is important because I put a set of questions to the Minister in my previous contribution. With the greatest respect, he ignored them. I do not mind him ignoring me, but I suspect there are quite a number of people watching in this afternoon. They still have key questions which to date have not been answered. I ask him, please, for the courtesy of an answer - not for me, but for them. I have one key question. Why has the Minister decided to exclude 24,000 people on the arbitrary ruling of a six-month date? I need to understand that, but they need to understand that. They need to hear that. They are entitled to an answer on that and this is our last opportunity to get those answers.

Second, and these are referenced in the amendments, so that is why I am entitled to ask these questions, why has the Minister excluded the 4,800 people who were boarded out? What is the rationale? Is it based on finance, as has been suggested? How does the Minister justify setting up different tiers or different classes of victims or survivors? Out of pure courtesy, but also because it is central to everything we have been debating, I ask the Minister to please give us a direct answer to these questions.

Mary Seery Kearney (Fine Gael)
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First, with regard to the extent of the waiver, we would all like to hear that rather than a letter to Senator Higgins. That would be very important in a context where this House has condemned non-disclosure agreements, NDAs, and other arrangements that seek to limit and prohibit people. It is really important we all know the extent of the waiver. To be honest, I am a bit surprised an answer is not available given the extent of the debates on this and that, at this late stage, we do not know its confines or lack of confines.

Regarding the six months, I again put in a plea on this that there is still room. I had great hopes when this Bill was delayed coming to this House that there were changes that had been proposed and that proposals that had been put forward were being considered. I have spoken to many mothers who, if they come within getting a payout under the scheme, which is modest by any means given the extent of suffering endured, where their now adult child with whom they have any relationship does not come within the scheme, they are going to share that modest payout with that child. This six-month exclusion rule is going to cause additional reductions in the payout to mothers who choose to do that.

The exclusion is arbitrary and goes against every piece of psychological trauma we understand. It is arbitrary, it is based on money and it is heartless. I know that in his heart the Minister is not behind it. I know that for sure and I promised him that I would always acknowledge that. I do, and where there are others, I have had lots to say about it there as well. There is still time for all of us to have a lot to say in our parliamentary parties and otherwise about the matter.

Roderic O'Gorman (Dublin West, Green Party)
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With respect to the ambit of the scheme, I believe I did answer the Senator's question in terms of setting out where the scheme lies in terms of the wider response, but if I can try to be more specific for the Senator, as we know, when the commission reported, it set out certain criteria that it regarded would qualify former residents for a form of redress. The commission was not asked specifically to advise on that point but it brought forward certain proposals. These set out a range of potential criteria. It made distinctions between whether a child was accompanied or unaccompanied within a particular institution. It made a broad statement that persons who entered an institution after 1974 probably should not receive a payment in light of the fact of the existence of the separated or single mother's payment that was brought in in that particular year.

When the Government approved the publication of the commission's report and approved the forming of an interdepartmental group to look at the issue of redress, the Government said it would be not be bound by those particular recommendations. The interdepartmental group undertook a detailed process and brought forward a set of proposals that stated that for persons who had spent more than six months within an institution, there would be a series of payments and those persons would be also entitled to avail of an enhanced medical card.After negotiations that took place in the Government, a decision was made that all mothers, irrespective of time spent in an institution, would receive access to a payment which significantly increased the ambit of the scheme from what the interdepartmental group recommended, which was between approximately 19,000 and 34,000 recipients. That is to recognise the impact of the time spent by mothers in these institutions at the time and the significant stigma they experienced. On that basis, we are bringing forward this set of proposals.

Paul Gavan (Sinn Fein)
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I thank the Minister for the explanation but it is not an explanation. He has set out when a series of decisions were made. I am asking him to justify them. What is the rationale for excluding the 24,000 people who spent less than six months in an institution? It is a simple question. The people watching proceedings today want to hear an answer. I ask him to please give me that answer.

Alice-Mary Higgins (Independent)
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I have the same question. We still have not received any justification. The justification has simply been that we can look back and see a worse proposal made by someone else and a worse decision before that as regards the failure of the commission to properly acknowledge the damage and abuse. We can look at worse decisions. We can go back to all the original decisions about the mother and baby homes. There was a cascade of bad decisions. None of the decisions previously made are a justification. In fairness, in certain areas, such as access to records, I recognise that some of the Minister's decisions have taken us a leap forward. However, incrementalism is not a justification. The fact we wanted to arbitrarily exclude women who had spent less than six months - with respect to the medical piece we still do not adequately recognise the experience of all women who gave birth in the institutions - or that it was on the table does not justify a bad idea. I heard one reference to other institutions having six months and that period being common. Abuse was commonplace. That is why other countries in Europe are struggling with the kinds of processes we are struggling with, facing up to institutional abuse. That is one of the only arguments I have heard and it is a bad one because it means that if we set out a bad parameter and say, not in the 1970s, 1980s or 1990s but in this modern legislation in 2023, we think it is okay for children to have experienced these kinds of abusive, bad and traumatic situations in the first six months of their lives in the mother and baby homes, we are sending a bad signal to other countries across the world that are dealing with institutional abuse. We have a responsibility to make good decisions and move out of the narrow tunnel of small ambition gains from a diminishing frame. We have not heard from a child psychology, paediatric, trauma expert or scientific perspective any rationale for the exclusion of those who spent less than six months in an institution. As I stated, we know there is a raft of rationales, including what survivors told us they wanted, what we know about the importance of the first six months of a child's life and what we know about the first six months of these children's lives. There are a lot of reasons for them to be included. We have not heard any reason for their exclusion. With respect to the Minister, the fact that someone wanted to exclude even more people is not a reason. The fact that other countries may also have done a bad thing is not a reason.

Paul Gavan (Sinn Fein)
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Well said.

Alice-Mary Higgins (Independent)
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I appeal to the Minister to go back and fight again. I hope and believe he probably has pushed on this, but I appeal to him to fight harder on the inclusion of all of those within that six-month period. If there is no rationale, it is good and useful to put that on the record today so that there is pressure collectively on all of the parties, including the parties of Government, to come back on Report Stage with a scheme that is somewhat closer to fit for purpose. We need details of the waiver scheme. We need to have them publicly and we need to have real clarity on that because it would be an incredible injustice if the waiver related to matters not covered. It was mentioned in terms of non-disclosure agreements, NDAs, and it is also worth mentioning that the UN Committee Against Torture has been extremely clear that collective reparation and administrative reparation programmes should not render ineffective the individual's right to remedy and to redress. Let us be in line with the UN committee on torture. There should not be a waiver at all but if there is a waiver, it certainly should not be extended in the potentially ambiguous way it is at the moment.

Marie Sherlock (Labour)
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The Minister has sat through many hours of debates in the Dáil and the Seanad at this stage and, of course, countless other hours in internal meetings. Therefore, he knows the strongly-held views of many of us in this House, those of many of his colleagues in Government, the survivor groups, and even the Irish Human Rights and Equality Commission. We have to ask how we are still in this place after many months now of the Bill going through its various stages where we are still debating the exclusion of children and mothers who were forced into mother and baby homes. I have to keep on going back to the starting point. Why are we here to start with? Why do we have this Bill? We are here because of the hurt, the trauma, the abandonment of women who found themselves pregnant. We are here because the State failed by outsourcing its responsibility to the church and to these church-run homes. We are here because society turned its back on these women. We are reinforcing that hurt and that trauma and giving a new message now that effectively we have deserving and undeserving survivors depending on the length of time a woman and child spent in these homes. As Senator Higgins has listed, there have been many organisations that have come out against this six months limit. The Irish Human Rights and Equality Commission has said that:

the six month length of stay is not per se an indicator of whether or not survivors suffered harm...

[...]

Moreover, even where a length of stay requirement could be [properly] linked to the relevant harms, the proposed six month requirement is based on the estimated length of stay in Homes in other countries. This time-frame has no rational, or reasonable link to the harm suffered by survivors in the Irish context.

Time and again, we have asked and queried the scientific basis for the six months and there has not been a reply. Today, in the Public Gallery, we have a lady called Ann Smith who gave birth in St Patrick's mother and baby home in 1983. She was left with no choice but to go into St. Patrick's because she was effectively abandoned by her family and by society because she had the audacity to become pregnant. For her and for the thousands of others, this is not about money. This is about recognition. It is about the recognition of what society did to her at that time, and to her daughter. This Bill is effectively saying to her now that what she had was some sort of minor experience; that there was no hurt or trauma associated with that experience. That is wrong, it is unfair, and it leaves a very bitter taste in her mouth and indeed in the mouths of many others who were abandoned by our State when they found themselves pregnant.

As I said at the start, the Minister has been present for the many hours of debate. He knows all our views here.It is sad because overall, we want to support this Bill, as I said on Second Stage. There are women, such as Margaret McKinney's mother Rose, who are moving on in years and who want to live to see that recognition from this scheme. There is a gaping hole in this Bill because it excludes so many. That is a great source of frustration. It is a sad day when we are excluding so many people when this Bill could get it right from day one, as opposed to waiting for a review down the tracks. We have made our points to the Minister.

Gerry Horkan (Fianna Fail)
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Does the Minister want to come in?

Roderic O'Gorman (Dublin West, Green Party)
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I do not.

Alice-Mary Higgins (Independent)
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We have asked direct questions about the rationale for the six months and still have not heard a reply on that point.

Roderic O'Gorman (Dublin West, Green Party)
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I have answered on a number of occasions. I accept that Senators do not agree with my answers but I have answered their questions in quite considerable detail at this point.

Paul Gavan (Sinn Fein)
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The Minister has not answered.

Roderic O'Gorman (Dublin West, Green Party)
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The Senator is entitled to his view.

Paul Gavan (Sinn Fein)
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At no point in his answer did he give an explanation for the justification for excluding people who spent less than six months in the institutions. He has not answered that question. I plead with him to do so. It is not for me but for the people watching proceedings. It is for the survivors, who have written to us in their thousands to tell us there is something fundamentally unjust about this part of the Bill. Simply to read out that it was a decision made by an interdepartmental group is not an answer. The Minister and I both know that is not an answer. I ask him to please tell me he is not just going to sit here in silence and sit this out. That is enormously disrespectful to all of those people who deserve better than that from the Minister. My colleague, Senator Higgins, has been complimentary to the Minister but I must point out that the buck stops with him and nobody else. He cannot later say he was not allowed to do X, Y or Z. He is the Minister. He has the power to make a decision here and yet, to date, he has not given us an explanation as to the justification for excluding these people. That is what everyone here wants to know. I ask him to please tell me he is not just going to sit there in silence.

Gerry Horkan (Fianna Fail)
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If the Minister wishes to say anything further, he can. Otherwise I will put the question.

Paul Gavan (Sinn Fein)
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Oh my God.

Gerry Horkan (Fianna Fail)
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Amendments Nos. 2 to 11, inclusive, have been ruled out as they involve a potential charge to the Revenue.

Alice-Mary Higgins (Independent)
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I will speak briefly to the section. It is regrettable that these amendments, which are around definitions, have not been allowed to be discussed. I will signal some of the key questions involved because this is a crucial part of the Bill. Section 2 is where the definitions are set out. It is where the definitions for the phrases used later in the Bill are set. The Opposition has made some constructive proposals about how those definitions could be improved. I ask that thought and consideration are given to strengthening and improving those definitions between now and Report Stage.

I do not think we got a response about the scope for looking for wider definitions. This is not about additional payments. It is about the question of relevant persons and relates to questions around persons who were boarded out or nursed out, and whether they might be included as relevant persons. It is important for that question to be addressed.

There is also a question about mixed race children who were placed in other institutions in respect of which a public body had a regulatory or inspection function, either directly or through another relevant institution referred to in Schedule 1, for a period of time.I would like to get clarity around the scope to potentially include these persons in the definition of "relevant person". This is separate from the later points which are on additional payments for specific and additional traumas. This is about the general question of the dangers of some of the groups. We have spoken the major exclusion of the 180-day piece, but that comes later on payments.

The other question, which is something Senator Boyhan had highlighted, relates to persons who may have given birth in a maternity hospital but may have been subsequently transferred to a mother and baby home. The way the relevant person is set out in the Bill at the moment is that it talks about them as children who were there for any length of time and then other persons who were there to do with labour, birth and so forth. Is there a danger that persons who gave birth in a different institution such as a maternity hospital, but who were then subsequently transferred and may have spent many years in a mother and baby home institution, could fall out of the scheme?

Those were three very specific questions. Senator Boyhan's amendment No. 11 that was ruled out of order slightly tweaked that to include "born in, or admitted as resident to the relevant institution,". It does not restrict that to a child but it recognises an adult who may have been admitted as a resident to the relevant institution. These are ways in which the definition could have been more widely framed.

There was also the question of the additional institutions. There are also institutions where children of mixed African and Irish parents or descent were placed, where a public body had a regulatory or inspection function. The Minister will be aware that Senator Boyhan sought to include a definition of relevant maternity hospitals. I ask him to comment in respect of this section, in terms of the definitions of the institutions and of relevant persons. I wish to know what his thinking is in regard to those potential exclusions. This is separate from the question of the scheme, how much people may be paid, and so forth. This is the question of the potential gaps, nursing out, and placement in another institution and an adult who is moved to a mother and baby institution having given birth in a maternity hospital.

Roderic O'Gorman (Dublin West, Green Party)
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The amendments are out of order so I am not allowed to respond.

Maria Byrne (Fine Gael)
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Does the Minister want to reply?

Roderic O'Gorman (Dublin West, Green Party)
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No.

Alice-Mary Higgins (Independent)
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To clarify, on Committee Stage it is not just about the amendments, it is about the sections. What happens on Committee Stage is that the Minister is bringing each section of the Bill to be discussed by the House. With absolute respect, it is not solely about the amendments, it is about each section. That is why we ask if each section is agreed. It would be appropriate that there are responses where there are questions on the section, whether or not amendments are proposed.

Paul Gavan (Sinn Fein)
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Could the Minister please show us some collective respect? We are not asking rude questions. We are not being unpleasant to him. We are asking legitimate questions on behalf of the thousands of people who have contacted us. It is not acceptable to sit there in silence. It is a huge insult to the very people that this Bill purportedly sets out to protect but, as I pointed out already, in many cases excludes. The Minister has still not given us any justification for that exclusion and now his initial indication is that he will not even speak on the section. That is not acceptable. It is entirely unacceptable. I urge the Minister to please respond.

Jerry Buttimer (Fine Gael)
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I welcome members of the Young Presidents' Organization, YPO, Panama group, who are here today with Audrey Kearney and are guests of Senator Ahearn. I wish them well on their visit to Ireland and to Leinster House, our Parliament. I hope they have a very positive visit to Ireland.

Maria Byrne (Fine Gael)
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Amendment No. 12 in the name of Senator Boyhan has been ruled out of order due to a potential charge to the Revenue. Amendment No. 13 in the name of Senator Boyhan has also been ruled out of order.

Maria Byrne (Fine Gael)
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Amendment No. 14 in the name of Senator Boyhan has been ruled out of order.

Alice-Mary Higgins (Independent)
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I want to indicate that while an amendment by Senator Boyhan was ruled out of order we may bring back more amendments on Report Stage in terms of allowing for subject matters contained within section 4.2 to be subject to further consideration beyond the cessation date of the Act. That relates to section 4. While we are not opposing section 4 at this point, I do want to indicate that Senator Boyhan had wanted to give the Minister powers to amend Schedules 1, 2 and 3 by regulation and had looked to certain areas that might be amended by regulation under section 4. I want to signal that we may bring amendments in terms of section 4 and the kinds of regulations the Minister may make under that section, including specifically the kinds of relevant institutions that might be included within Schedule 1, the kinds of persons who might be referenced as having spent a length of time within the relevant institution and the other categories. I indicate our intentions to engage with many of the same subjects we spoke about and indeed other subjects that could be addressed by the Minister through regulation under section 4 and that we may bring amendments in respect of that.

Alice-Mary Higgins (Independent)
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I move amendment No. 15:

In page 8, between lines 29 and 30, to insert the following:

“Report on operation of Scheme

7. (1) The Minister shall, within six months of establishment day, cause a report on the operation of the Scheme to be laid before both Houses of the Oireachtas.

(2) A report under this section shall consider the following matters: (a) options to require persons engaged in the management, administration or operation of relevant institutions should be required to contribute to the cost of making payments under this Act;

(b) options to extend the Scheme to make a general payment available to relevant persons who spent any period of time, including less than 180 days, in a relevant institution;

(c) options to extend the Scheme to make a work-related payment available to a relevant person who, in circumstances referred to in paragraph (b) of the definition of a “relevant person” in section 2(1), was resident for any period of time, including less than 90 days, in any relevant institution;

(d) options to extend the Scheme to make the provision without charge of certain health services available to relevant persons who spent less than 180 days in a relevant institution;

(e) options to extend the Scheme to make provision for including persons who were boarded-out or nursed-out from a relevant institution as children within the definition of relevant person;

(f) options to extend the Scheme by making additional payments available to relevant persons who were subjected to non-consensual or illegal vaccine trials or other medical experimentation;

(g) options to extend the Scheme by making additional payments available to relevant persons who experienced forced family separation;

(h) options to extend the Scheme by making additional payments available to

relevant persons who experienced racial discrimination or abuse;

(i) options to extend the Scheme to make payments and provision without charge of health services available to children of mixed race, such as children of mixed African and Irish parents or descent, who were placed in additional institutions in respect of which a public body had a regulatory or inspection function;

(j) whether there is a need to provide for additional institutions in Schedule 1;

(k) whether the requirement imposed on applicants by section 32(3) should be removed;

(l) whether the duration of the Scheme should be extended;

(m) whether levels of payment under the Scheme should be increased.”.

Maria Byrne (Fine Gael)
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Amendments Nos. 16 and 17 in the names of Senators Warfield, Boylan, Ó Donnghaile and Gavan have been ruled out of order.

Paul Gavan (Sinn Fein)
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We are very disappointed that amendments Nos. 16 and 17 are ruled out of order. We hoped at least amendment No. 17 would be allowed. However, we must accept the decision of the Chair. The purpose of the amendments was to ensure the chief deciding officer is sufficiently impartial and independent. This is an important point that survivors would want us to defend. The office of the chief deciding officer must be independent and, in particular, the recruitment of staff to the office must be done independently. Our amendment to ensure the chief deciding officer and his or her staff are sufficiently independent in their role is not allowed. This is an important point that should be addressed. I hope the Minister's vow of silence ends and he will give us a response on this section.

Alice-Mary Higgins (Independent)
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I am particularly concerned about this because the chief deciding officer will have a hugely important role. I acknowledge the Minister has no say in deciding whether amendments are in order. It is very surprising and presumptive that amendment No. 16, put forward by the Sinn Féin Senators, has been ruled out of order. It proposed that the Minister, from among all his or her officers, should select somebody who is a suitably qualified, trauma-informed professional. The really important aspect, which absolutely is within the power of the Minister, is ensuring the chief deciding officer is subject to ongoing international human rights training and is experienced in managing and operating a restorative justice payment scheme.

As these amendments are not accepted, there is not really anything in this section that tells us what kinds of qualities and the type of experience and expertise, whether expertise on trauma, international human rights or restorative justice payment schemes, will be the key requirements for appointing the chief deciding officer. Candidates will be excluded if they have been sentenced for an offence of fraud and dishonesty. We have the basic exclusions as to who cannot be chief deciding officer but we do not have much information on what qualities he or she should have. I reserve the right to bring forward amendments on Report Stage in this regard. We may introduce a slightly different version of the provision whereby employees of the Minister must meet certain requirements as to the type of expertise that is essential to the performance of this incredibly crucial task.

Roderic O'Gorman (Dublin West, Green Party)
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First, it is important to note that section 9(3) clearly states the independence of the executive office. That is clearly stated within the legislation. Second, I said very clearly in the Dáil - I may not have stated it on Second Stage in this House - that the staff within the executive office, who are independent in making their determinations, will receive trauma-informed training in recognition that they will be dealing with people who may have had terrible experiences within these institutions. Work is ongoing to ensure staff have had that training when the scheme is established. I hope that provides reassurance to Senators.

On the wider point, I remind Senators that the Government announced the creation of a post of special advocate for survivors of institutional abuse. Again, that role will be operationally independent of my Department. The appointment process for the role is under way and we hope to be in a position in the next month or two to announce who will take it.

Paul Gavan (Sinn Fein)
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One of the key points we are concerned about is that the office of the chief deciding officer should be independent, particularly in the recruitment of staff. That is dealt with it in one of the amendments that was not allowed. The intention was to ensure the chief deciding officer would have control in regard to the recruitment of staff. Can the Minister offer any reassurance in that regard?

Roderic O'Gorman (Dublin West, Green Party)
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Having a recruitment process that is entirely specialised for this office would create an amount of administration that would severely hamper the effective delivery of the scheme. The key element is the ability of the office to make determinations in an independent manner on the thousands of applications that will come into it.That is the key element. The appointment of staff will be done through the normal Civil Service appointing process, which will enable us to deliver staff swiftly. As I have said before, staff operating in this executive office will be receiving that specific training.

Paul Gavan (Sinn Fein)
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One of the concerns we would have - I am sure the Minister can understand why we have it - is that the office may not be sufficiently resourced. It strikes me that we need the chief deciding officer to have the power to actually indicate that he or she needs additional resources and the power to appoint those resources. We know what happens generally otherwise. I am not hearing any reassurance but, again, I want to give the Minister an opportunity to give me that reassurance if it is there.

Jerry Buttimer (Fine Gael)
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Amendment No. 18 has been ruled out of order.

Alice-Mary Higgins (Independent)
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The vote we had was on the establishment of the chief deciding officer, which is a crucial role. I note there is also a deputy chief deciding officer. We discussed some of the issues in connection with section 10. We may well bring amendments, as the capacity and competencies are going to be key for both of those roles. Section 11 allows certain persons to be given some of the functions that are given to the chief deciding officer, and it allows "the performance by a person of a specified function of the Chief Deciding Officer". This where there is perhaps scope to address some of the concerns that we raised on sections 9 and 10. Are there going to be those capacities in terms of them being trauma informed? The Minister indicated there would be training but we do not have it in the Bill. I want to indicate the intention that we might bring forward amendments to section 11 to specify and clarify the kind of functions or specialties that might be brought in under the section, which will always be subject to the general superintendence and control of the chief deciding officer. These are ancillary supports that are allowed for in the Bill that may be given to the chief deciding officer. Where that is done, there are certain competencies and skills that may be specifically sought. I say that in the context of an amendment Senator Boyhan tabled to this section wherein he set out an external representative role that might work alongside the chief deciding officer and assist the person in that role and the deputy chief deciding officer in their functions. His amendment was ruled out of order, perhaps because of the use of the phrase "external representatives", but section 11 does allow for additional persons. Perhaps that is a way in which we might be able to address the issues.

I welcome the fact that the Minister has indicated that he recognises the importance of training in certain areas such as restorative justice and trauma, but perhaps there is an opportunity in section 11 to take on board some of the points that have been made about independence and expertise. I hope that if we bring forward amendments on Report Stage or if the Minister tables his own amendments, section 11 might be an opportunity to signal a willingness to have the particular expertise and skills brought into play in order to support the chief deciding officer, especially given the context whereby, as the Bill sets out at the moment, the chief deciding officer has to be drawn from the Minister's officers. That is something I regret, but it is what the Bill says at the moment. In that context, if those necessary skills are not there within the Minister's own officers perhaps section 11 is an opportunity to indicate that those skills will be sought elsewhere. Perhaps the Minister might indicate his thoughts in respect of that idea.

Roderic O'Gorman (Dublin West, Green Party)
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I indicated in my previous reply our position and that the work on this has started already. As stated, we will be providing for specific trauma-informed training for officials working in the executive office. I am not sure that legislation is the best place in terms of identifying a specific skill set, but I hear what Senator Higgins says about she or Senator Boyhan bringing forward an amendment. I will reflect on the core point she has made with my officials. That is as much as I can do at this stage. The political commitment is there to ensure that the training is provided. I respect what Senator Higgins says about it not being in the legislation. We will consider the matter further.

Jerry Buttimer (Fine Gael)
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Amendments Nos. 19 to 32, inclusive, have been ruled out of order because of a potential charge on the Exchequer.

Paul Gavan (Sinn Fein)
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As we have just heard, several of our amendments have been ruled out of order in this particularly important section. I want to speak again about an issue on which, regrettably, the Minister decided to take a vow of silence around 25 minutes ago. It comes up again in this section and, of course, I have every right to raise it. It is the issue of the arbitrary, inappropriate and unfair restriction of people who spent just less than six months in a residency. To be clear for those watching at home, a child resident for 180 days under the Minister's Bill will receive €12,500 whereas a child resident for 179 days will receive zero. The Government – including the Minister, indeed – has effectively excluded approximately 24,000 survivors. This restriction is based purely on monetary concerns and must be removed so all survivors will be included without exception. Again, I have to pose the following question because I am still waiting for an answer: how does the Minister justify this arbitrary exclusion of people who spent less than six months in one of the institutions? Could he answer not only for me but also for those watching at home anxiously? It is a reasonable question. How does the Minister justify this arbitrary, inappropriate and unfair restriction? I would appreciate an answer.

Sharon Keogan (Independent)
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Having looked after children who had been in care over the years, I know of the trauma that even one night in care can cause for a child. That the Minister has disregarded the children under discussion from the remit and payment is absolutely scandalous. He is not acknowledging the trauma they face and have faced over the years. I am very disappointed that he has not agreed to acknowledge in any way the pain and suffering they went through during their time in the mother and baby homes.

Roderic O'Gorman (Dublin West, Green Party)
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I will speak to the section. A substantial number of amendments in this section have been ruled out of order. I did not make that ruling; it was a decision of the Cathaoirleach. I dispute what Senator Gavan said. I spoke at length on section 2 and its various elements and set out the rationale behind the parameters, including the rationale for the period of six months. He may disagree with me but I addressed the matter in some detail. The parameters of the Bill are set out under the Government's decision. Those parameters are reflected in this section, and those are the parameters with which we are advancing.

Paul Gavan (Sinn Fein)
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The Minister referred to the rationale behind the ruling on six months. Could he explain it to us?

Alice-Mary Higgins (Independent)
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I am sorry we have to press the Minister so on this. I have been paying attention and we have been listening closely to his responses on other sections. What he did was outline in some detail the process whereby the decision on the six months was reached, including the facts that the Mother and Baby Homes Commission of Investigation made even worse recommendations and would have excluded more people, that the high-level departmental group wanted to exclude both women and children institutionalised for under six months and that the Government decided it would include all the women but that the six-month rule would apply only in respect of children. He described the process whereby the decision was arrived at but has not yet described the rationale. He did not do so on Second Stage or since then, and we did not see the rationale in the public domain.

I assure the Minister that there are thousands of people listening really closely to hear the rationale. We have not been told why the decision was made. There have been hints that it may have been because of the cost and hints almost to the effect that we could get away with the decision because other places have had cut-off points; however, there has been no rationale for the cut-off point of six months that was presented. Specifically, there has been no rationale from scientific, moral, child health expert or international redress practice perspectives. Therefore, I have to disagree with the Minister that he has provided reasoning for the six-month cut-off point. An explanation of the process whereby he made the decision, or a timeline, has been given but there has been no substantive rationale.

I do not want to reiterate the arguments because they are distressing. What we have presented is a really strong rationale as to why the affected people should be included. I do not want to go through all the arguments in detail but suffice it to say they include the content of the OAK report, the fact that what we are calling for is what the survivors looked for, the fact that the first six months of children's lives are incredibly important and have a huge impact, the fact that there may have been forced family separation in the first six months, and issues I mentioned concerning the child mortality rate and, by implication, the child health impacts of spending one's first two, three or four months in an institution. We have given many reasons as well as the general principle behind not having a two-tier scheme. I have given in summary some of the reasons those subject to the six-month rule should be included, but we have not heard the rationale as to why they are not included. It does not have to be the Minister's rationale but we need to hear the justification. It is legitimate that we keep asking for it because it needs to be put on the record.

On that note, I am going to point to the other issue, which I have also raised. Again, I would like to know the rationale because it is important. This is an important section because it concerns eligibility. While the mothers who were resident for less than six months might be relevant persons under the scheme, they are excluded from access to the enhanced medical card. This relates to some of the health services specified. I would like to know the rationale for excluding women who may have spent a shorter period in an institution from access to the enhanced medical card. I seek this information particularly as we know that the riskiest time for women in terms of medical and health consequences might have been over the one or two days they spent in a mother and baby home giving birth.We know from the commission’s reports and the testimonies given to the confidential committee that, in some cases, pain relief was deliberately denied to those who were giving birth because it was a punishment for their circumstance. When we have that kind of situation, how can we deny enhanced medical supports to people who may have experienced such a significant medical trauma? We have raised those two specific issues as areas we want to have included. We also raised them on Second Stage. Has there been any consideration of the points raised on Second Stage on the need to review and perhaps think again about excluding women from the enhanced medical card when they have had a difficult experience in a hostile institution in giving birth? Indeed, maybe given the points that were raised across the House on Second Stage, the rationale for the 180-day requirement might need to be weighed up a little bit again. I think we deserve responses on those issues, and responses that reflect and acknowledge the strong points that have been made across the House.

Roderic O'Gorman (Dublin West, Green Party)
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I am speaking to the section, recognising the fact that the amendments the Senator put down on this point were ruled out of order. Nevertheless, regarding the significance of these issues, I try to speak to them out of respect for them while recognising the same issues are coming up in amendments later on that have been held to be in order. The eligibility criteria for the enhanced medical card was approved by Government at the time of the publication of the commission's final report. The qualifying timeframe of 180 days or more largely encompasses those who were residents in the institutions prior to 1974, who likely experienced harsher conditions and, indeed, many of whom would be on the older end of the broad spectrum of survivors. I think it is fair to say that those who spent six months or more in an institution are more likely to have endured the negative impacts on their health and well-being from exposure to the types of harsh conditions we know, from the commission's report, existed in them. This ties in with the concept on which the medical card is ultimately based, namely, linking access to health services with the needs of the individuals.

Paul Gavan (Sinn Fein)
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I have listened carefully to what the Minister has just said, and I heard that the Minister is now saying that those who spent more than six months in an institution are more likely to have suffered. I think that is effectively what he said. I also know, and I referred to it earlier, that the Minister is a man of law. I know he is familiar with the eggshell skull rule, which means that some people can suffer as much in one day in an institution as someone who has suffered over six months. Again, I put it to the Minister that the Government has created tiers of victimhood here. Those who spent less than 180 days in an institution get nothing, and those who spent 180 days or more there get some compensation. I have seen no justification from the Minister in terms of how that can be fair and just and how the Government has managed to exclude 24,000 survivors. I do not see how that is justified. I am waiting to hear a justification from the Minister and I would welcome clarification on it.

Jerry Buttimer (Fine Gael)
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Aon duine eile? An tAire? No.

Paul Gavan (Sinn Fein)
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In that case, I want to come back in, because someone has to call this out. There is a horrific and unacceptable silence from the Minister here. It is completely unacceptable. I also want to speak to our colleagues in Government. I commend what Senator Seery Kearney said earlier today. She spoke out very clearly against the six-month rule. We have heard nothing from Fianna Fáil at all today. That is just not good enough. Ultimately, if you vote in favour of this Bill, you are voting to let down those survivors. That has to be called out. The responsibility right now rests with the Minister. For the second time today, he is effectively sitting in his chair in silence. I know he has the right to do that, but is it the right thing to do? Is it acceptable? Does the Minister think the people sitting at home today watching this debate will feel this is acceptable and that it shows any respect to them? It is not good enough. I also note that three weeks have passed between Second Stage and Committee Stage. What consideration did the Minister give to any of the arguments we made on Second Stage? It appears he has given zero consideration to them. There were voices from across the Chamber asking for changes and the Minister has ignored all of them. We need an explanation for that.

Mary Seery Kearney (Fine Gael)
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I was clear on Second Stage that I very much support the views of psychologists like Dr. Gabor Maté on trauma that can be experienced in the womb. I have been very clear on that and I maintain that position. However, I will not be called out for lack of compassion for survivors from a party member of an organisation that is very selective in the survivors around this country for whom it has actual compassion. I reject that contention.

Sharon Keogan (Independent)
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I find the last comment by Senator Seery Kearney very insulting.

Mary Seery Kearney (Fine Gael)
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It was intended for Sinn Féin.

Jerry Buttimer (Fine Gael)
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Senator Keogan has the floor.

Sharon Keogan (Independent)
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I am well aware who it was intended for. It is really not about the money here. It is about acknowledging the wrong that was done to the mothers and babies in those homes. The Government has chosen to put a two-tier system in place. I am sure the people who are getting money would not mind even sharing that money with those who were in the mother and baby homes for less than six months. For the Government to totally dismiss their presence and trauma is really unforgivable.

Mary Seery Kearney (Fine Gael)
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I reject the very pointed version of that when actually I have been consistent. Had the Senator been here present earlier on, she would have actually heard me be very supportive of survivors on this. I have been consistent on that throughout recent years. I reject the very pointed nature of that comment.

Jerry Buttimer (Fine Gael)
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Does the Minister wish to reply? No.