Alice-Mary Higgins (Independent)
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I move amendment No. 38:

In page 14, between lines 13 and 14, to insert the following: “Report on extension of eligibility for work-related payments under Scheme

19. (1) The Minister shall, within 6 months of the passing of this Act, lay a report before both Houses of the Oireachtas on the potential to extend eligibility under section 18(3)for

a work-related payment to all relevant persons who were resident in a relevant institution for any period of time, including those who were resident in institutions for less than 90 days.

(2) A report under this section shall include a breakdown of the number of persons who applied to the Scheme and were deemed ineligible as a result of the 90 day residency requirement, and the cost to the Exchequer of extending eligibility for the Scheme to include those persons.”.

Eugene Murphy (Fianna Fail)
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Amendments Nos. 39 and 40 are related and may be discussed together, by agreement.

Alice-Mary Higgins (Independent)
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I move amendment No. 39:

In page 14, between lines 13 and 14, to insert the following:

“Report on extension of eligibility for provision without charge of health services under Scheme

19.(1) The Minister shall, within 6 months of the passing of this Act, lay a report before both Houses of the Oireachtas on the potential to extend eligibility under section 18(4)for provision without charge of health services specified in paragraphs (a)to (h)of section 34(3)to all relevant persons who were resident in a relevant institution for any period of time, including those who were resident for less than 180 days.

(2) A report under this section shall include a breakdown of the number of persons who applied to the Scheme and were deemed ineligible as a result of the 180 day residency requirement, and the cost to the Exchequer of extending eligibility for the Scheme to include those persons.”.

Amendment No. 27 called for the direct removal and deletion of the minimum 180-day residency requirement for survivors to qualify for an enhanced medical card under the scheme. As a compromise, amendment No. 39 calls for a report after six months on the options and potential to remove that 180-day residency requirement. It also calls on the Minister to examine how many people applied to the scheme within the six-month period and were deemed ineligible specifically because of the 180-day residency requirement.

This exclusion is one I have particularly focused on as indefensible. I have highlighted it in terms of some of the collective amendments we discussed earlier. Some of the worst effects psychologically and physically, in terms of trauma sustained by persons in mother and baby homes, often happened within a short space of time. In particular, the extremely harsh conditions of childbirth and, in some cases, the actively cruel practices in the homes regarding childbirth, meant that enormous lifelong psychological and physical trauma could be sustained by mothers within a few hours of entering a home. The idea that only those resident for longer than six months would be in need of ongoing enhanced health supports is deeply wrong and dishonest when we look to the nature of what happened in these institutions.

I can raise the examples which I have given and other examples from the confidential committee. I refer to the deliberate denial of pain relief to mothers giving birth in these institutions. The report was that in some cases, the deliberate denial of pain relief was explicitly identified as part of the punishment women were being subjected to due to the simple fact of being pregnant. Separate to the confidential committee report having raised these issues, I have been contacted by people who spoke about the significant and traumatic effects that giving birth in these institutions had on their lives. They also spoke about their subsequent experiences of giving birth and the lifelong physical and psychological traumas and fears it created for those who went on and may have left institutions before six months to try to start a life or family but, nonetheless, were deeply affected by the damage done during a short time.

Objectively, this is one of the most intense physical and psychological things anyone can ever do. When people undergo it in a hostile institution and when we look to what kind of care women did or did not receive, the decision to simply say that the enhanced medical card will only apply to those who spent six months or longer in an institution is not simply creating a two-tier system and an exclusion, but rather is an exclusion which fails to recognise some of the core realities and particular difficulties people face.

This is a small amendment compared with the wider question of the scheme. The enhanced medical card and what comes with it in terms of lifelong access to support, counselling and physical therapy is significant. That should be available to all women who spent time and gave birth in institutions, regardless of whether they continued to reside in those institutions for 180 days. Amendment No. 40 relates to amendment No. 10. Amendment No. 10 was a direct attempt to ensure that mixed-race children who were placed in other institutions outside the Schedule to the Bill would be included in the Bill. Since amendment No. 10 was not ruled in order, this amendment instead calls for at least a report on the potential to extend the general payments and enhanced medical cards to all persons who, as mixed-race children, were placed in other institutions in respect of which a public body had a regulatory or inspection function, either directly or from another relevant institution in the Schedule.

The experiences of mixed-race children are currently not acknowledged by the scheme. Many may be excluded because they were removed to other institutions not covered by the scheme well before six months and in some cases this happened precisely as a result of racial discrimination. I commend Mr. Conrad Bryan and others in the Association of Mixed Race Irish for highlighting the very particular experiences and the layered discrimination and harm which were experienced by many of those who were mixed race in such institutions, and those subjected to abuse as part of the State's systemic treatment of those born out of marriage or those who were mixed race. They have highlighted that many members of their group will be excluded because they were removed from institutions before six months and were often treated differently as a result of racial discrimination. This is a gap which needs to be addressed.

Again, I will continue to highlight the issue of the waiver, which is not recognised in the scheme. It is an issue in respect of which persons, whether or not they benefit from the very limited time-based payments in the scheme, should be able to seek individual redress and legal action, and I hope they will. Crucially, there is a danger of a gap. These mother and baby institutions played a role in disappearing the reality of women who were giving birth outside the narrow confines of what society considered acceptable. They called it a problem and disappeared it from society by removing all of these families and then separating them from society. However, for those who are mixed race, there was an extra level of removal. In some cases, they were not just put through the mother and baby institutions and in that sense removed from society, but they were also being removed from those institutions and placed in further institutions. That is why we want to ensure that the double level of erasure of experience, and the double layer of harm, are recognised in the Bill. Perhaps there may be provisions under certain parts of the Bill, in terms of adding to the Schedule, where this could be addressed. There are wider issues regarding those who were boarded out and nursed out, which we may need to address on Report Stage.

Victor Boyhan (Independent)
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I will not repeat everything Senator Higgins said. I support both of these amendments, and I am the co-signatory to amendment No. 39. I want to push on that point about mixed-race children and their experience, and return to this particular group which represents mixed-race children who are now adults. I am thinking of Mr. Bryan in particular, who has come to see me and others in Leinster House, and shared his personal journey and experience. We know that many of these children were moved in and out of care. Sometimes, to the best ability of the mother usually, but not always, they were taken back of out of care for short periods of stay. I can think of one who I grew up with, who is particularly famous in Irish society today. I refer to that constant moving in and out of care because of certain situations and their family community which could not accept the circumstances around their case and their family's history. It breaks the cycle. I think of children who were moved, and families who were forced again by institutions to take their children of mixed race out of the Irish jurisdiction. Some of them went to Liverpool. That was not a choice. I have seen correspondence to this effect, where organs of the State encouraged, paid for and facilitated the transfer of mixed-race children in the 1960s and 1970s outside the State. Where is the redress for them? It is a very real concern. We talk about diversity, tolerance and respect for difference, and somehow many of these children had to grow up in very difficult circumstances where they were constantly moved in and out of care and in and out of contact with their parents. On top of all that, as they got older, they had the experience of racism and bullying, which were prevalent particularly in the 1960s with regard to mixed-race children and which added to the complexities of their life experience.

Somehow we have to address that. I do not know where we can address it. I know the Minister for Children, Equality, Disability, Integration and Youth, Deputy Roderic O'Gorman, is familiar with the issues around all of this and is supportive of doing something with regard to assisting them. However, for those people listening in today, of which I know there are some, what can the Minister say to them? What is the plan and how can we genuinely, in terms of our parliamentary democracy, send a clear message that we are including them, have considered them and recognise there was a hurt, an injustice and a need?

Again, it goes back to the Joint Oireachtas Committee on Children, Equality, Disability, Integration and Youth. It was one thing to read the report from the Library and Research Service but then another to read the transcripts. I have read every word of all the transcripts from that committee and I do not doubt for one minute the absolute commitment of the committee, collectively and individually. Somehow, that is not coming through, or has not come through, including many of these issues which were touched on as part of the deliberations and the work of that committee. That is something which we are all going to have to square up to at some point. We are all going to have to explain why, somehow, the disconnect with the empathy and commitment to rectify the injustices and to put in place legislation was all great down in the committee rooms in the cellars of Leinster House but has not filtered through the parliamentary process and, ultimately, up through Government to form part of this Bill. That is a recurring theme throughout all of this legislation.

I would be interested in a response from the Minister with regard to amendment No. 40. I fully support both amendments Nos. 39 and 40.

Paul Gavan (Sinn Fein)
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I put on record Sinn Féin's support for both amendments Nos. 39 and 40. As amendment No. 39 deals with the issue of the 180 days, it allows me to again ask the Minister, Deputy O'Gorman, the question which he has, so far, refused to answer. I will ask it again, and I also ask the Minister for the courtesy of a straight response. How does he justify excluding the 24,000 residents who spent less than six months in one of these awful institutions?

Eugene Murphy (Fianna Fail)
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I thank Senator Gavin. As no other Senator wishes to make a contribution, I will hand over to the Minister, Deputy O'Gorman.

Roderic O'Gorman (Dublin West, Green Party)
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I thank the Chair and Senators. I will respond to both amendments Nos. 39 and 40. I am not in a position to accept these amendments, the first of which requires the preparation of reports on the potential to extend eligibility for payments and the enhanced medical card to persons who, as children of mixed race, were removed from an institution covered by this scheme and were placed in another institution.

With respect to amendment No. 39, as we know, the eligibility criteria for the enhanced medical card was approved by Government at the time of the publication of the Commission's final report. This qualifying time of 180 days or more largely encompasses those residents who were in institutions for longer periods of time. We know that residents who were in the institutions for longer periods of time were generally in those institutions prior to the 1970s. The further back one goes, the longer the time spent in the institutions. We also know from the Commission's report that it was those residents who were likely to experience the harsher conditions. We know from looking at the chronological development of each of these institutions that in the 1940s, 1950s and 1960s the conditions were much harder. It is fair to say that those who spent six months or more in an institution would have had further exposure to the very harsh conditions in these institutions, and a consequent impact on their health and well-being.As we know, medical card provision is linked to medical need. I am referring to the linking of access to medical services to need.

It is important to note, as I did yesterday, that there is a very important service available to all former residents. There is access to the National Counselling Service, NCS, free of charge, and access for former residents of mother and baby and county home institutions as a prioritised group. It is always important to make this point because I am not sure whether all survivors know about the service. Many will say it is not something they particularly need but it is important that we remind survivors that it exists.

In response to some of the Senator's amendments that we dealt with yesterday, I referred to the inclusion of data and the idea of recording who has been refused access to the enhanced medical card on grounds of ineligibility. That, too, will be reflected in the annual report that will be compiled by the chief deciding officer under section 12 of the Bill. It is not just a matter of a once-off report but of an annual response, which is useful.

It is important that any reports that we require in this legislation be required on the basis of what is in the scheme. As the Senator knows, what she is proposing goes beyond the scheme. Not only is she referring to the investigation of the presence of children of mixed race in institutions but also to their movements to other institutions. That goes well beyond the scope of the Bill. It would be very difficult, within a six-month period, to produce a detailed report on movement to other institutions – institutions about which this Bill does not necessarily give a legal right to information. This Bill provides legal access to the mother and baby homes and county homes database, the database we discussed in October 2020, but it does not give immediate access to data on the other institutions covered by the amendment.

The argument of Senator Higgins and others on special payments to reflect racism that was experienced relates to amendment No. 41. We can touch on the matter in more detail in our discussion on that amendment.

Alice-Mary Higgins (Independent)
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I appreciate that the Minister is giving rationales in respect of the enhanced medical card. I do not believe they stand up. If we are talking about what occurs on the basis of need, experience and the commission's report, we must note there are major problems with that report. One of these is that the direct testimony of those who experienced harm in the institutions was not properly reflected in the findings of the commission or, indeed, its recommendations. So much of it was confined to the confidential committee section, which is just part of the report. It was dismissed and marginalised in the approach taken by the commission, as has been largely recognised. It is from the confidential committee report that we learn of some of the instances of physical and psychological harm. The lines I have quoted, including on the denial of pain relief and intentionally aggressive and violent approaches to managing childbirth, are from the confidential committee section of the report.

On the view that there was more harm if the period of residency was six months or longer, it is of course the case that six months or longer of malnutrition, abuse and further work have knock-on effects, but so too does undergoing a major life event in traumatic and hostile circumstances. So too does the failure to offer adequate supports. From speaking to persons who were adopted at eight months or nine months and who had siblings who were adopted at four months or six months, I learned that the condition they were in on arriving at their new homes was very damning. There are reports of foster children who arrived at their new homes with sores on their bodies and in incredible distress. We are aware that there were very significant health impacts on children. Evidence in this regard is available from those who were adopted and from the mortality rates in the institutions, which I have mentioned before.

Many women who spoke to the confidential committee, which was not easy and which in some cases occurred 30 or 40 years after institutionalisation, referred to the distress and pain associated with childbirth in the institutions. In their testimonies, they chose to highlight what occurred as something they wanted to be recorded and recognised as wrong. In that context, I do not agree we are capturing most of the harm by giving the enhanced medical card only to those who were institutionalised for six months or more. I fundamentally do not agree with that. I am aware the decision is not based solely on the Minister's assessment, and I do not want to attribute it to him personally, but I do not believe the logic stands up.

On amendment No. 40, I have an additional question for the Minister. It concerns a matter that has been raised with me. Others in my group may introduce amendments in respect of it on Report Stage. It relates to the powers of the Minister regarding additional institutions under section 50 of the Bill. While the Bill does not provide for or recognise the specific issues faced by those subjected to racial discrimination, a second issue arises under amendment No. 40, namely that of the institutions that get captured. I am referring to where persons were boarded out or subjected to other arrangements and to institutions where the State had a regulatory or inspection function. In this regard, it is worth noting the comments of one of the groups that has been very keen to make sure it is recognised in the Bill. In some cases, the State is not solely responsible for the abuse that happened within the scheduled institutions, but I am referring to where people were inappropriately boarded out or placed in other public institutions or under other care arrangements. People have contacted me to talk about their having been placed in circumstances in which they were subject to abuse, including very targeted sexual abuse. Again, the State had a responsibility regarding some of the locations in which children were placed.

On the regulatory or inspection function, I welcome the fact that there is the capacity to add institutions under section 50. The provision is slightly wider than one that would solely cover those of mixed race, whom the amendment addresses. Could the Minister clarify his intentions regarding the powers under section 50? When does he envisage them being used? Does he envisage them being used after or prior to the first annual report? What measures will he be employing under section 50 to address some of these issues? The proposal does not address the layered discrimination but may address some of the gaps where people disappeared from institutions listed in the Schedule, such that we can ensure the harm done has been captured.

Roderic O'Gorman (Dublin West, Green Party)
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This question is a difficult one. It depends. The key objective and reason we included section 50 was to recognise that evidence could come forth concerning an institution. We know a great deal about the operations of the mother and baby homes and the county home institutions because of the commission's report. There are other institutions that we may not know so much about. We spent a great deal of time in the context of the Birth Information and Tracing Act 2022 discussing the protection of records.

As the Senator will be aware, the Government is working on the creation of a new national records and memorial centre. This will be a physical location but work will also be done on a legal infrastructure to better protect records across a range of institutions beyond mother and baby homes and county home institutions. In the context then, hopefully, of finding more records and providing more legal protection for such records, it may very well emerge there were other institutions we were unaware of that were involved in the provision of maternity and infant care services. In that context then, we have the opportunity to include them in a scheme of this nature. The work we are doing in this legislation is not stand-alone. It is part of this wider Government response in legislation, in services such as the national counselling services and in physical infrastructure such as the records and memorials centre. Academic researchers will have the ability to explore and perhaps identify other institutions that were doing something similar in this regard. I know this is a somewhat vague answer but it is the best I can do now. It is important to state, however, that the provision is there and is available for use.

Regarding the points the Senator made about the confidential committee and the treatment of its report, and I think reference was made to it being discounted, the Government has certainly not discounted it. She will also recall that in terms of the suggestions the commission put forward and the outline of what a redress-type scheme would be, where the Government went was far greater and broader. This was influenced by the report of the confidential committee and, indeed, by all our engagement with survivors and hearing their stories. The Senator spoke about the lack of pain relief that mothers experienced. This is why the Government went broader, and not just broader in the context of what the commission suggested but broader even than the interdepartmental group in recognising the experience of mothers.

Fundamentally, however, this comes back to the individualised approach versus the approach adopted here. We do not believe that undertaking an individualised examination of anyone's circumstances is the best way forward. We believe in the broader approach adopted in this legislation because of the difficulties inherent in the individualised approach. Additionally, in many areas in this regard, particularly in the area of racism, to create an individualised approach would create a legitimate expectation. It would be extremely difficult to secure the evidence necessary in this regard because if we were to have a broad and an individualised approach as well, there would be some greater evidential threshold. This would particularly be the case in the experience of racism by a child in one of these institutions. From a practical perspective, I am not sure how someone would be able to prove that. Creating a system where we would have to say we were providing an approach for people that it would be virtually impossible for them to access because a degree of proof that simply does not exist at this stage would be required is something we must also bear in mind and this is one of the reasons mitigating against an individualised tier.

Eugene Murphy (Fianna Fail)
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I thank the Minister.

Alice-Mary Higgins (Independent)
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I just-----

Eugene Murphy (Fianna Fail)
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I want to let in Senator Gavan in first.

Paul Gavan (Sinn Fein)
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Perhaps the Minister will now answer the question I asked him. How does he justify the exclusion of the 24,000 people who spent less than six months in one of these institutions?

Alice-Mary Higgins (Independent)
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We might come back to section 50 on Report Stage. My concern in respect of when this aspect will be utilised is founded in the context where I believe other institutions and other care arrangements need to be covered. In that event, it must be ensured that if other institutions are recognised, it is not simply an historical recognition solely but also provides that those who were in those institutions will be able to access the scheme. I refer to an intersection potentially in the addition of more institutions and ensuring people have this right of access to redress. Again, this is where I am seeking some clarity. We may perhaps look to this point further and I am happy to communicate with the Minister in ensuring that as institutions are added persons are given full rights to apply under the scheme.

I reiterate it is not solely a choice between the individualised and general approaches. There would also be a choice to have a general granting of enhanced medical cards to all women who give birth in these institutions. This option exists and would not require an evidentiary basis in each case, which it would, of course, be very hard to provide in many cases. I suggest, therefore, that this is still an option. It is not an option I can introduce because the amendment would be ruled out of order. It is an option, though, that the Minister can and should bring forward on Report Stage.

Eugene Murphy (Fianna Fail)
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I ask the Minister to address those two queries, starting with Senator Gavan's.

Roderic O'Gorman (Dublin West, Green Party)
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I disagree with Senator Gavan. I believe I have answered the question both yesterday and last week in respect of the distinction we have made concerning the multifaceted nature of the Government's response to those who were in mother and baby institutions. We recognise that different survivors have different priorities in the context of access to information, the treatment of remains, financial payments, the provision of medical cards, a wider commemoration and memorialisation of what happened in these institutions and the many other provisions contained in the Government's action plan recognising the diverse needs of survivors.

Specifically, regarding my engagement with survivors, particularly those who spend shorter periods in institutions and those survivors who would have been former residents and adoptees who were in these institutions in the 1980s and 1990s, the prime desire and need for many of them was access to information. They wanted to gain access to their birth certificates and to the maiden names of their mothers and the names of their fathers. This access was denied to them until last year when we brought forward the Birth Information and Tracing Act. We have been able to provide information to 4,600 people in this situation and we are processing a further 3,500 applications now. We have, therefore, brought forward a multifaceted response, recognising that not every survivor and not every former resident is pleased with the scope of this endeavour. It must be understood, however, as a range of responses rather than just one response in one Bill.

Eugene Murphy (Fianna Fail)
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I do want to move on, but I will let the Senator back in. He has the right to do so.

Paul Gavan (Sinn Fein)
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It is all very well for the Minister to say there is a range of responses in the Bill. I acknowledge this. However, he still has not explained the exclusion of these 24,000 people. He did refer to the fact that in his experience of meeting these people, they were much more interested in birth information. I do not know if that gives the Minister the right to decide that he knows what is best for those people. Certainly, the thousands of people who have written to the public representatives of all parties objecting to this arbitrary 180-day rule deserve an answer. Again, then, I pose a very straightforward question to the Minister: how does he justify the exclusion of 24,000 people who spent less than six months in these institutions from any redress scheme? Again, I would appreciate it if he gave me a straight answer.

Eugene Murphy (Fianna Fail)
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The Minister has said he has answered this question, but I will allow him to respond if he wishes to.

Roderic O'Gorman (Dublin West, Green Party)
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No, I feel that I have answered the question.

Eugene Murphy (Fianna Fail)
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That is 100% fine.

Paul Gavan (Sinn Fein)
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For the record, the Minister is not going to answer the question.

Eugene Murphy (Fianna Fail)
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In fairness, the Minister did say to the Senator-----

Roderic O'Gorman (Dublin West, Green Party)
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I did give an answer.

Paul Gavan (Sinn Fein)
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I am sure the people watching at home can make up their own minds.

Alice-Mary Higgins (Independent)
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I move amendment No. 40:

In page 14, between lines 13 and 14, to insert the following: “Report on extension of eligibility for payments and provision without charge of health services under Scheme to mixed-race children placed in other institutions

19.The Minister shall, within 6 months of the passing of this Act, lay a report before both Houses of the Oireachtas on the potential to extend eligibility for both payments and provision without charge of health services under this Act to persons who, as mixed-race children, were segregated from a mother and baby institution in Schedule 1,and placed in any other institution in respect of which a public body had a regulatory or inspection function, either directly or from another relevant institution inSchedule 1, for any period of time.”

Alice-Mary Higgins (Independent)
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I move amendment No. 41:

In page 14, between lines 13 and 14, to insert the following: “Report on provision of additional payments to those who experienced racial abuse or discrimination

19.The Minister shall, within 6 months of the passing of this Act, lay a report before both Houses of the Oireachtas on the potential to make provision for supplementary payments, in addition to any entitlement under this section to a general payment or work-related payment under this Act, to relevant persons who were subjected to historic racial discrimination or abuse, either while resident in a relevant institution, or while placed in any other institution in respect of which a public body had a regulatory or inspection function, either directly or from another relevant institution.”.

This amendment calls for a report specifically on the potential to include and provide additional payments to mixed-race survivors specifically for the racial abuse and the discrimination they suffered. The amendment speaks to the two-track approach proposed by the Irish Human Rights and Equality Commission, IHREC. This proposes that there would be a basic level, such as proposed by the Government, and a second track with additional payments recognising lived experiences including, in particular with regard to this amendment, the lived experience of racial abuse and discrimination.

At present there is no way for survivors in Ireland to be awarded justice or recognition for historic racial discrimination in institutions. The Statute of Limitations means they are limited in terms of their legal rights in other areas. The redress scheme was an opportunity to provide an avenue to justice but it offers nothing in terms of specific redress for this issue. In September 2022 UN experts called for adequate redress for systemic racism and racial discrimination in Irish childcare institutions between the 1940s and 1990s. This is a little reminder that these are not far distant abuses in many cases but very much to the fore and were still occurring even in the 1990s.

The Irish Racial Justice Forum has made a complaint against Ireland to the UN Committee on the Elimination of Racial Discrimination. I thank Conrad Bryan for his work in particular on this issue. It is my understanding that the UN Committee on the Elimination of Racial Discrimination may already have communicated with the Irish Government on this issue and asked it to outline what exact actions it is planning to take to address the historic systemic racism and racial discrimination in Irish childcare institutions between the 1940s and 1990s. Perhaps the Minister will confirm what his engagement with the committee has been. I recall having presented to the committee in a previous role. I know it takes its recommendations very seriously and it takes such complaints very seriously. It will certainly be looking to the UN experts' opinions of September 2022.

It is imperative that the Minister outlines exactly how, if not through this scheme, the Government intends to provide redress and recognition to mixed-race survivors of the institutions. If he does not do so today, he or his colleagues in government will nonetheless need to outline it to the UN Committee on the Elimination of Racial Discrimination. We have other amendments that relate to this complaint and I may make further points when debating them.

Mixed-race survivors of the institutions have in many cases exhausted all possible domestic avenues in terms of redress. They have engaged with the commission of investigation. The commission's report was deeply disappointing to them in its failure to recognise their experience. The commission of investigation concluded there was no direct evidence of different treatment or institutionalised racism in the records. Again it focused on a very narrow interpretation of the records and not on the testimony of those who lived through and survived the experience of racism. The opinion of the commission of investigation that it does not have the evidence of systemic discrimination directly contradicts survivor testimony.

The Statute of Limitations and the absence of historic laws against racial discrimination mean there is a lack of avenues for justice in the domestic courts for mixed-race survivors. They have engaged in good faith throughout the very long and gruelling process of the commission and the development of the scheme. Once again they will be disappointed if we do not act now to amend the scheme and include them.

I note that several members of the Irish Racial Justice Forum are now elderly. The need for justice is becoming urgent and pressing and is running out of time. I urge the Minister to outline today what action the Government intends to take on racial discrimination and abuse. In amendment No. 41 we offer one option for action that could be taken. Perhaps Ireland could then point to it as a way of showing that we have taken action when we have to account for ourselves to the UN Committee on the Elimination of Racial Discrimination. I urge the Minister to indicate his intentions for action. Will he take on board the proposal made in this amendment? Will he commit to tabling on Report Stage something that will specifically recognise and address this additional layer of redress that has been spoken about by IHREC and the idea of a second tier? It is not an option I have because it would be ruled out of order. What other actions does the Minister plan to take in recognising that Ireland faces a direct complaint at UN level in respect of this discrimination between the 1940s and 1990s?

Paul Gavan (Sinn Fein)
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I want to put on record Sinn Féin's support for the amendment. This is a very important issue. I look forward to the Minister's response.

Roderic O'Gorman (Dublin West, Green Party)
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I thank the Senator. Like Senator Higgins, I have met the Association of Mixed Race Irish and I have heard from them their experiences as former residents of mother and baby and county homes and other institutions, and the impact of the racism they have experienced in their lives. It is important to recognise that, following the publication of the commission of investigation's report, in his State apology the Taoiseach specifically recognised the additional impact that a lack of knowledge and understanding had on the treatment and outcomes of mothers and children with different racial and cultural heritage. He further acknowledged that such discriminatory attitudes exacerbated the shame and stigma felt by some of our most vulnerable citizens, especially where opportunities for non-institutional placements of children were restricted by an unjust belief that they were unsuitable for placement with families. The explicit experiences of persons of mixed-race heritage in these institutions has been recognised in the State apology made by An Taoiseach.

The proposal in the amendment raises the question of whether this legislation is the place where a response to this can be provided. The primary means through which Senator Higgins indicates a response could be made is the provision of a tiered system. We have discussed the idea of a tiered system and I am happy to discuss it further. When the interdepartmental group that was tasked with setting out the ambit of the redress scheme undertook its work, it looked at the issue of a tiered system because it came up in some of the discussions. The core focus that we have sought to achieve is a non-adversarial system. This is something on which we all agree. When the interdepartmental group published its report, it acknowledged that the approach being adopted is not without shortcomings or criticism. It does not recognise the individual experience. It does not recognise that some people had a worse time in the institutions than others. It recognises that some people who made submissions to OAK Consulting's report called for an individualised approach, whether those who experienced racism, those who were exposed to vaccine trials or those who experienced forced family separation.

The interdepartmental group considered the alternative tiered approach, with a common experience general payment and specific payments for abuse and trauma that would be recognised on the basis of some additional evidence provided. When it looked at the detail of how this additional evidence would be provided, it came to the conclusion, with which I agree, that it would be problematic approach, in particular with regard to the burden of proof to avail of a higher level of payment. As Senators know, under the scheme as provided the sole element of proof that has to be adduced is the period of residency in a particular institution. We could design a scheme that has a higher tier but it would need to have some element of a burden of proof.Perhaps that burden of proof might not be set at the full civil standard, but there is undoubtedly a need to go beyond documentary evidence because, in the majority of situations, there will be no documentary evidence for racism. There would have to be a situation whereby there is an evidential threshold and people would have to be brought forward to provide documentary evidence. In many circumstances, as I said, the evidence will not be there. That leaves the situation I alluded to earlier in which the State would be saying it has created a system designed to recognise specific additional impacts, but it cannot now be accessed. That is deeply problematic.

Instead, the State is providing a generalised payment, recognising that people suffered across these institutions and that what is being offered is not a panacea or flawless but it does offer an approach that can be implemented reasonably efficiently. That is not an irrelevant consideration when having to provide payments at a rapid pace to 34,000 former residents and provide them in a way that does not force people to provide testamentary evidence that may not meet a standard of proof. I recognise there are different views on this issue and some people disagree with our approach. The concerns raised by the interdepartmental group in recommending the non-individualised approach and advising to go with the common experience payment are not illogical. I find them quite convincing and, for that reason, we have proceeded as such.

That is a long answer but it is relevant to the issue we are discussing, the question of the vaccine trials and other areas as well. I hope it gives some indication to the Senator of why we have chosen the option we did. I do not like coming in here and repeatedly saying "No" to amendments. However, it is my view that the common experience payment is ultimately the preferable approach.

Eugene Murphy (Fianna Fail)
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Before we continue, I extend an especially warm welcome to Mr. Tzu- Pao Yang - I hope I have pronounced that right - from Dubai, and his London colleague, Captain Harry Ho. Tá céad míle fáilte romhaibh beirt. In our traditional language, that means "100,000 welcomes". I assure them that the hospitality of Senator Craughwell is second to none and they will want to come back next week. I hope they enjoy their stay.

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

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

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

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

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

Roderic O'Gorman (Dublin West, Green Party)
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I am not in a position to engage on those points. The issues will have to be addressed and will be addressed. However, I am not in a position to go into the matter in detail today. I hope the Senator understands.

Jerry Buttimer (Fine Gael)
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Before proceeding further, on behalf of the Members of the House, I welcome US Senator Lisa Murkowski of Alaska and a great friend of mine, Fr. Joseph McGilloway, who are visiting us from Alaska. Senator Murkowski, as the Members will know, is a five-time Senator; the daughter of former Senator and Governor, Frank Murkowski, and the first Alaskan-born Member of Congress from the state of Alaska. She is here as part of a pilgrimage with Fr. McGilloway, who has been a friend of mine for more than 30 years and ministers in the state of Alaska. They are both very welcome. Tá céad míle fáilte rompu. I thank Senator Higgins for allowing that.

Alice-Mary Higgins (Independent)
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I move amendment No. 42:

In page 14, between lines 13 and 14, to insert the following:

“Report on provision of additional payments to those who experienced medical experimentation

19. The Minister shall, within 6 months of the passing of this Act, lay a report before both Houses of the Oireachtas on the potential to make provision for supplementary payments, in addition to any entitlement under this section to a general payment or work-related payment under this Act, to relevant persons who were subjected to non-consensual or illegal vaccine trials or any other medical experimentation while resident in a relevant institution, which shall include analysis of legal options to require pharmaceutical companies involved in such medical experimentation to contribute to the cost of such payments.”.

Amendment No. 42 calls for a report on the potential to provide additional payments to those who experienced "illegal" or "non-consensual" medical or vaccine trials in the mother and baby homes and the other institutions covered by this Act. This amendment points to the potential for a two-tier approach, which would-----

Alice-Mary Higgins (Independent)
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I note that the pharmaceutical giant, GlaxoSmithKline, which still operates in Ireland, has declined to apologise for its vaccine trials in mother and baby homes between the 1930s and 1970s, despite the company's own documents showing it conducted seven trials at homes during these four decades. It is unacceptable that the scheme does not provide redress for the medical abuse of persons subject to illegal vaccine trials. It is baffling. We have discussed this. I acknowledge Senator Boyhan, who has personal experience of these issues and who has spoken extensively around the impact of the illegal vaccine trials. We have yet to see meaningful action and steps to compel GlaxoSmithKline or other pharmaceutical companies to contribute to the scheme or, as the Minister will recall from an amendment we discussed yesterday, to set up an additional fund which would allow for further payments. It is important to remember, when we talk about institutional abuse, that this institutional abuse is not an anomaly or an exception. The abuse and the institutionalisation of whole categories of members of Irish society - women and children - was systemic and an act of choice. Such abuse was a decision we still see echoed down the line today, to ensure women who were having children out of wedlock were treated differently and discriminated against and their children were less valued, less well-treated and protected and were subject to lesser outcomes.

Tomorrow, I will launch a report for One Family to look at some of the systemic inequalities and the fact the deprivation levels of one-parent families in the State are still far higher than those within other families. We have seen this even in something as simple as the jobseeker transitional payment, which ends when the child reaches the age of 14. Children in this State have less care and are less entitled after that period. Their parents are placed under harsher conditions with regard to social protection. There has been a long litany, right through the years, of failing mothers and babies in Ireland who are not within marriage, and it has been very profitable. It is not simply systemic and due to anomalies or a bad health practice but has been systemic and profitable. In fact, women and babies have been treated as a resource for commercial companies. We saw that in the mother and baby homes, commercial companies were able to use these children without proper consent for vaccine trials to develop products for commercial gain. Again, those who ran these institutions were, in some cases, able to directly profit from facilitating such abusive practices. So money is right there in the mix of how these institutions were run and what the relationships were between the State, the congregations, the orders and commercial actors such as large pharma companies. It is really important that measures taken reflect not just regret or generalised apologies but show proper redress through this scheme, or an additional scheme. Also, we must ensure that all those who engaged in a process of profiteering and exploitation, based on vulnerable children, are required to make contributions and reparations in respect of this.

The Minister knows we discussed the idea of an additional scheme because yesterday, we discussed the idea of having a top-up scheme if he does not want this scheme. This particular report would look to the idea of the potential for additional payments. Again, this is one where there are quite good records on these trials. I do not believe that this would have to be an adversarial approach. I think that the Minister could literally look at the records that exist on who we know were subjected to these trials and have an automatic increased or additional payment in respect of that. Indeed, we should have harder measures in terms of a requirement or a levy on the relevant companies and require them to contribute.

Again, we have heard about the appointment of new negotiators to engage with the congregations and the religious orders. It would be good to have clarity on what the State, taking a harder line in respect of the pharma companies, is going to look like and when we are going to see it. I hope that the Minister might consider and accept the amendment.

Paul Gavan (Sinn Fein)
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Sinn Féin fully supports the amendment. With the greatest of respect, I am not at all satisfied with what the Minister has said to date about these illegal vaccines and the responsibility or culpability of the huge pharma giant, GlaxoSmithKline. He seems to be saying something along the lines of, "Well, we are going to do something but we do not know what." We do know the facts. We do know that this giant company, alongside the institutions, is guilty. We know that. As there is no dispute around what happened at this point in time, the idea that the Minister is going to do something, at some later point, frankly is not good enough. Perhaps he will give us some detail about how exactly the Government will extract significant compensation from these drug companies.

Roderic O'Gorman (Dublin West, Green Party)
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The discussion here is similar to the one we have had on previous amendments in terms of proposed reports on the possibility of additional payments, and the concern at Government that the approach that has been adopted - the non-adversarial nature of the scheme, and a general payment covering the time spent, the harsh conditions, the emotional abuse and the stigma and mistreatment - is the manner in which we believe is the best way to progress.

I absolutely hear what Senator Higgins is saying in terms of the vaccine trials that took place in mother and baby institutions but, as we know they took place in the much wider ambit of institutions as well, such as in industrial schools and other institutions and which took place in the general community as well. These vaccine trials took place without consent in a wide variety of areas. We know an attempt was made to investigate this matter and went as far as a tribunal of inquiry, which is probably the most serious attempt at an investigation that the State can make. However, we also know that the tribunal was undermined and annulled for being ultra vires.

On the specific element of mother and baby institutions, and county home institutions, I have met representatives of GlaxoSmithKline. I wrote to GlaxoSmithKline after the commission's report was published and subsequently met its representatives and put to them that they had a moral obligation, in the same way the State had a moral obligation, to bring forward a response. Their response does not go as far as I would like to see it go. Their response is a response based on the provision of information. That information is, undoubtedly of value to people who seek or who wish to have information on whether they were subjected to these trials but I have always believed that we can go further.

In terms of an event instead of actions that go far beyond what happened in mother and baby institutions and county home institutions, I do not believe that the amendment proposed by the Senators is the vehicle to address that in its totality.

Alice-Mary Higgins (Independent)
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Again, we need to do better than regretting that a very large company with a legacy of systemic abuse of the vulnerable does not want to do more. We need to know what we can make them do. I will press my amendment because it refers to one approach. Again, the amendment my colleagues and I tabled yesterday sought the State to examine its legal options. I think that the State does need to examine its legal options and simply requesting information is not enough. As I stated yesterday in respect of the congregations, we need to be very clear that these are not historical abuses. If the choice is today, in 2023, to not address, and not provide justice, redress or contribution and in no way compensate those who were mistreated as a policy, and I mean who were, as a policy, exploited by the company or congregation, and the decision is to simply provide information and not provide any meaningful contribution or compensation, then that is an abusive decision which is targeted at vulnerable persons that is being made in 2023. Therefore, it is no longer historical abuse but contemporary abuse and it is in that regard I hear that the Minister will not press forward. However, I will press the amendment as the Minister does not intend to accept it. We need to see more than meetings with or requests from, or moral appeals. We know these companies, whose bottom line is clearly their focus, respond to what they are required to do. If that needs to be a levy or some other such measure in respect of medical justice, then so be it. I think that we need to look to other harder mechanisms. Although the Minister did not accept our amendment yesterday, I urge the State to review its legal options in terms of compelling these companies to make contributions.

Jerry Buttimer (Fine Gael)
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Before the Minister comments, I welcome the staff from the Department of Public Expenditure, National Development Plan Delivery and Reform, as well as guests of Deputy Réada Cronin. They are very welcome to the House and I thank them for their work, on behalf of all of us. Did Senator Gavan indicate a wish to speak?

Paul Gavan (Sinn Fein)
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No, not really but I will. Sorry, did Senator Seery Kearney indicate?

Mary Seery Kearney (Fine Gael)
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No, but if we have departmental staff in the Gallery then now is our chance to lobby them.

Paul Gavan (Sinn Fein)
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The Senator has made a good point and perhaps we can all take a five-minute break to lobby them.

I back what Senator Higgins has said. Last year, GlaxoSmithKline had £29.3 billion of sales yet, from what the Minister has said, it clearly does not intend to pay a single cent to the victims of the illegal vaccine abuse. That is absolutely scandalous and surely the State has to respond.

Mary Seery Kearney (Fine Gael)
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I will not comment on the amendment but want to say that GlaxoSmithKline is culpable, should be held culpable and we should do everything that we can to hold it as such. It is a disgrace that it is not coming forward with money.

Jerry Buttimer (Fine Gael)
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Amendments Nos. 43, 44, 46, 48, 50, 52, 53, 71 to 74, inclusive, 81, 82, 88 to 90, inclusive, 93 to 101, inclusive, 104 to 107, inclusive, and 109 are related and may be discussed together.

Roderic O'Gorman (Dublin West, Green Party)
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These are a set of technical amendments. These amendments all relate to the use of the term "relevant person" and the word "applicant" across a number of sections in the Bill. They are technical in nature and they are being made for clarity and for accuracy. Any person can make an application to the scheme if they believe themselves to be a relevant person, as per the definition provided in section of the Bill. However, it is only the foot of an examination of a person's application and the making of a determination on it that it is established if they are a relevant person, and, therefore, in some sections of the Bill as passed by Dáil Éireann, where the term "relevant person" was used, it is more accurate to use the word "applicant" or "person".

Similarly, in the case of section 37, which deals with applications on behalf of someone who has died, the reference to "deceased relevant person" has been replaced by "person", as again, it is only through the examination and making a determination on the application that it can be established if an applicant is a relevant person. In addition, in some instances where the word "applicant" is used, amendments are proposed to also insert "and persons to whom section 39(3)applies". This is so that particular sections take account of both the applicant and the person who is making the application on their behalf, where relevant. For example, section 48 prohibits the disclosure of information that may lead to the identification of the applicant.

Amendment No. 106 extends that provision to include an applicant or someone making an application on their behalf. In section 49, which deals with the review of the operation of the scheme, amendment No. 109 seeks to ensure that both the experience of the applicant and the person applying on behalf of another applicant are captured in the review.

Finally, it is proposed that section 46, which provides for an amendment to section 53C of the Health Act 1970 to include enhanced medical card holders under the mother and baby institutions payment scheme, should be deleted. Section 53C of the Health Act 1970 exempted people from public inpatient charges in public hospitals. The Health (Amendment) Act 2023 removed the public inpatient charge for people accessing care as a public patient in public hospitals with effect from 17 April 2023 and, therefore, this section of the Mother and Baby Institutions Payment Scheme Bill is no longer required.

Jerry Buttimer (Fine Gael)
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Amendment No. 45 in the names of Senator Warfield, Boylan, Ó Donnghaile and Gavan has been ruled out of order due to a potential charge to the Revenue.

Jerry Buttimer (Fine Gael)
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Amendment No. 47 in the names of Senator Warfield, Boylan, Ó Donnghaile and Gavan has been ruled out of order due to a potential charge to the Revenue.

Jerry Buttimer (Fine Gael)
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Amendment No. 49 in the names of Senator Warfield, Boylan, Ó Donnghaile and Gavan has been ruled out of order due to a potential charge to the Revenue.

Jerry Buttimer (Fine Gael)
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Amendment No. 51 in the names of Senator Warfield, Boylan, Ó Donnghaile and Gavan has been ruled out of order due to a potential charge to the Revenue.

Paul Gavan (Sinn Fein)
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I would like to speak to this section.

Jerry Buttimer (Fine Gael)
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We are not there yet, but I will come back to the Deputy.

Paul Gavan (Sinn Fein)
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That is no problem.

Jerry Buttimer (Fine Gael)
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Question proposed: "That section 20 stand part of the Bill."

Paul Gavan (Sinn Fein)
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We cannot agree to any section that supports the idea of the requirement for a six-month residency and, therefore, we oppose this section. I have made my position and our party's position very clear on that.

Jerry Buttimer (Fine Gael)
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Before we proceed, I welcome to the Chamber members of the Irish Naval Service from Haulbowline. The NCOs are joined by Superintendent Dermot Mann. I thank them on behalf of all Members of the House for their work and their dedication to keeping us all well. Patrolling the Irish Sea is not easy at times. There are some Members they could take home and not bring back. We would be happy with that.

Paul Gavan (Sinn Fein)
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Does the Cathaoirleach want to name names?

Jerry Buttimer (Fine Gael)
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I will not. I thank our guests sincerely for their work on behalf of us all.

As it is past 5 p.m., the debate must now be adjourned in accordance with the order of the Seanad today.