Tuesday, 30 May 2023
Mother and Baby Institutions Payment Scheme Bill 2022: Committee Stage (Resumed)
I welcome the Minister for Children, Equality, Disability, Integration and Youth, Deputy O'Gorman. Amendment No. 54 inserts a requirement that if an applicant to the scheme accidentally fails to provide all necessary information in the application, the chief deciding officer must notify the applicant of that fact within 60 days. This amendment is very reasonable. It would be very unfair to see a situation whereby applicants are waiting in limbo to hear back about their applications only to find out later that it was because they had not submitted all of their documentation. We can reasonably assume that in most cases if an applicant fails to submit all of the necessary supporting documentation with his or her application, it is due to a genuine oversight or error, namely, something would likely try to rectify as soon as he or she is notified. The problem is, however, that the legislation as currently drafted puts no upper time limit on the deciding officer to notify an applicant of his or her error. We could see potentially very undesirable situations whereby an application could be in limbo because there is a delay in informing the applicant of an omission. Meanwhile, the applicant does not realise, unfortunately, that he or she has failed to include something. The chief deciding officer should be compelled to inform the applicant of that fact in a timely manner to make sure this does not lead to undue delays. Our amendment proposes 60 days in this regard, but even 30 days might be more reasonable. I look forward to hearing if the Minister has suggestions on this, but it is crucial that we have a strict time limit, be it 30 days, 60 days or some other period.
Amendment No. 56 seeks to clarify that once an application is submitted with all of the necessary material attached, the chief deciding officer must issue a decision as soon as practicable but within 90 days. It is crucial that we add in that hard ceiling of 90 days, which is a very reasonable timeframe. It may even be too reasonable given there is such a sense of urgency for so many elderly survivors. I welcome insight from the Minister on how long it is envisioned to process an average application, or what a reasonable upper time limit might be in the Minister's view. It is crucial there are no further delays in justice for survivors and especially for the urgent cases of elderly or ill survivors.
Amendment No. 56 is sensible in that it clarifies that once all material has been received, the chief deciding officer has a hard limit of 90 days in which to respond. Again, this is reasonable in that it accounts for the fact that an application may have to be followed up if not all the necessary supporting material is attached. This is not a blanket time limit, which would be impossible to enforce in the event of delays, for example if someone forgot to attach a piece of supporting evidence. This amendment clearly proposes a time limit only if and when all supporting documentation has been received. From that day of receipt of a thoroughly completed application, then the countdown of 90 days will begin for a decision on the application. I really believe this to be a very reasonable provision. It accounts for possible delays and would ensure prompt justice for survivors, which we know is urgent in many cases. If the Minister disagrees with the proposal of a 90-day limit, can he please outline why he might disagree and how he can propose a reasonable alternative? It is crucial that we have some hard deadlines around the processing of applications.
Amendment No. 57 is similar to amendment No. 56 but it applies a 120-day time limit instead of a 90-day limit. This is a compromise amendment if the Minister believes a 90 day window is not reasonable in terms of processing.The 90-day limit would be vastly preferred, given the urgency of redress for elderly survivors.
Amendment No. 80 is reasonable in that it specifies that the chief deciding officer would have to cause the payment to be made to the applicant "within 40 days" of the acceptance of an offer of payment. Again this is a reasonable amendment because the processing of the application would have already occurred. To be clear for people who are listening and who may not have read the legislation directly, this amendment seeks that after an application has been processed, after the chief deciding officer has made an offer of payment and after the payment has been accepted, only then would the 40-day countdown begin for the officer to instruct a payment to be made to a survivor. This is purely an amendment to make sure that the time taken for the State to instruct that a payment be made to the survivor is not longer than 40 days. This could be shortened to 28 days or less, and maybe even to 14 days. I am proposing 40 days to signal my belief that there must be a hard time limit set to ensure no bureaucratic delays occur in executing the payments. There should be no reason at all the chief deciding officer would take more than 40 days to instruct a payment to be made after an offer is accepted. I would welcome the Minister coming back on Report Stage to propose his own deadlines in this respect and a deadline of less than 40 days would be extremely welcome. I remind the Minister of the urgency of justice for elderly survivors.
Amendment No. 92 is similar to No. 80 and it is perhaps too reasonable. It specifies that the chief deciding officer would have to notify the HSE of an applicant's eligibility for an enhanced medical card "within 40 days" of the acceptance of an offer. After the applicant accepts an offer of an advanced medical card, the chief deciding officer would have a hard deadline of 40 days to communicate this to the HSE. This is reasonable because the processing of the application would have already occurred. The hard and time-consuming work would be done by the time the offer is accepted and there should be no reason at all the chief deciding officer would take more than 40 days to simply communicate with the HSE about an applicant's acceptance of an offer. Again I urge the Minister to come back on Report Stage with strong proposals in this respect, ideally with a shorter deadline. Surely even a 14-day window would be enough for the officer to send an email or whatever other communication to the HSE? I am eager to hear the Minister's proposals on this and perhaps he could offer some insight on why the legislation is so vague in deadlines and time limits for the processing of applications. I again remind the Minister of the urgency of justice for elderly survivors.
I welcome the Minister to the House. I will address amendments Nos. 55, 58 and 91. On No. 55, the wording "as soon as practicable" gives too much discretion to the chief deciding officer. There is no reason a decision could not be reached within 28 days as specified in section 21(1)(a) or within an additional 28 days, as specified here in our amendment, given the resources afforded to the chief deciding officer as set out in head 9 of the general scheme and that a potential workforce of up to 60 people could be required at the height of this scheme. This amendment should be accepted and it is reasonable. I hope the Minister can give consideration to it.
On amendment No. 58, which Senator Black has touched on, given that many survivors have passed away since the Taoiseach's apology on 13 January 2021 and that many survivors are elderly and given the personnel resources of the office of the chief deciding officer that are set out in section 8 and in the general scheme, we believe those who have reached the age of 75 or older should be prioritised. In addition, the turnaround time of an application must be not more than 28 days, initially for acknowledgement, and a further 15 days to process and notify the decision of the deciding officer with regard to the application. On amendment No. 91, many survivors, as I said, are elderly, and with the well-flagged issues with regard to tracing, the portal and so on, we believe that "as soon as practicable" is too vague. The office must have very strict deadlines, and be resourced to move quickly to process applications.
I thank the Chair. I wish Senators a good afternoon. I thank Senator Black for her amendments. As a starting point, I absolutely agree on the urgency, and the urgency for many of the survivors and former residents. Without labouring the point, we also have an urgency to pass this legislation. If we do not get it passed by the end of this term, and if we do not get it completed in this House and through the Dáil again for its Final Stage there, we risk not being able to open it in the autumn. I would like to make that point. The urgency point is correct, but there is an urgency to pass the legislation itself.
The legislation already recognises the need for the ability of the chief deciding officer to be able to prioritise, and Senator Warfield spoke to an age of 75. Under section 21(3)(b) the chief deciding officer "may accord priority to the examination of an application where he or she considers that it is in the interest of fairness and efficiency to do so, having regard in particular to the personal circumstances, including the age and state of health of the applicant". It is probably better not to put it in, because one could have a very fit and healthy 76-year-old, and one can have a 74-year-old who has a terminal illness or something like that. The legislation, as it is currently stated, recognises there will be a need to prioritise, but gives the chief deciding officer some degree of flexibility in how they do this.
Before I speak to the individual amendments, I might speak to the broader point, which is that we are creating a scheme that we believe around 34,000 survivors and former residents will be entitled to apply to. There will be very significant numbers of applications coming in once this scheme is set up, and that is entirely appropriate. We know in the context of the birth information and tracing legislation that we had a very significant number of applications at the start. Just slightly short of 9,000 applications have come in under birth information and tracing legislation. We have to be honest about the fact that, particularly in the first year of the scheme, which will be open for five years, there will be a lot of applications coming in. That is why the use of that phrase "as soon as practicable", which is used there and which is expressed in section 21 and other sections, is the appropriate way to go. We will be initiating a scheme. We will be putting in place an information technology, IT, system to facilitate this scheme and the rapid processing of applications. We will be putting in place relevant staffing resources to facilitate the efficient operationalisation of the system. We spoke in previous debates about the training to ensure the relevant staff, particularly those who will be front-facing and engaging with applicants, will have received trauma-informed training.
We have to recognise there will be a lot of pressure at the start, and I am concerned about putting in place deadlines which I cannot guarantee we will be able to meet, particularly at the start. Regarding some of the deadlines suggested here, particularly those around 14 days and 28 days, my Department and I are not in a position to guarantee that they will be met at the start. That is my reluctance there. I brought in the deadlines on the birth information and tracing legislation. They were not actually there originally. They were not even asked for in the pre-legislative scrutiny, PLS. We brought them in, and it was the right thing to do, but the two agencies were caught initially by the scale of demand. Recognising how sensitive an issue this is and how many people will be applying early on, I do not want to raise unfounded expectations about how quickly it can be delivered at the start. That is why I have a nervousness about putting in some very ambitious timelines which have been set out here.
I will go through the Senators' points in general. Regarding amendment No. 54, which is about coming back for further information if there is incorrect information, with a lot of this, there will be an ability to submit one's application online.In that situation, if people do not fill in the relevant fields on the application form, they will not be able to submit it. The application form will be designed in a way that is simple and that prompts applicants to give the relevant amount of information. As we know, not everyone is online, and this may be the case, because of their age, for a good number of this cohort. As a result, there will also be a mechanism to apply via writing. It is built into the process that the chief deciding officer and his or her team can get back to a person as soon as they see there is a gap in the information provided.
Regarding the various timelines set out, everything has been done to ensure we can have the scheme operating as quickly as possible. It will be complex and it will require the team operating the scheme to deal with tens of thousands of records, most of which, but not all, are digitalised. We recognise there is a certain cohort for whom the records are not there, which will require people to make an affidavit. We may not be able to guarantee the exact same process and timeline for someone whose records are clearly accessible as that applying to someone who has to make an affidavit to avail of the scheme.
Notwithstanding all the work that is happening, both on the legislation and on the administrative side, there are hurdles and difficulties relating to how the scheme will operate. We will get through those difficulties. As we experience them, we will work around them. I have a concern about putting in place quite demanding timelines in certain areas, as I have outlined.
I am not in a position to accept amendment No. 58, which proposes the prioritisation of older applicants. I have referred to section 21(3)(b), which, in effect, achieves the goal of taking applicants' circumstances into consideration. It provides that the chief deciding officer may accord priority on the basis of health and age, but it is open to taking account of broader issues as well.
I signal to the Seanad that I may bring forward amendments to this section on Report Stage to ensure that where it would assist the administration of the scheme, the chief deciding officer will have a lawful basis to enter into data-sharing arrangements with information sources. My officials are examining all the data protection provisions in the Bill in the context of ongoing work in collaboration with information sources in preparation for the opening of the scheme.
I will speak on the section. It is important people outside understand this. I put down 12 amendments relating to section 24. They all related to the insertion of the words "maternity hospital". I want to thank the people who engaged externally for me. They were professional people who are very involved in advocacy and the legal advocacy around this Bill. They will be very well known to the Minister. They asked that this be put in and we teased it out at great length. I saw the advice that came with them. The decision was taken but it is important we note that as a result of these amendments being ruled out of order, I have received a lot of correspondence about the role of the Minister versus the role of the Cathaoirleach. I ask the Acting Chairperson to read the reason for this decision to be read into the record. There is provision for that in Standing Orders and I will ask him to do that in a moment.
I want to make it very clear this is not a decision of the Minister. The Minister does not advocate or decide on any amendment before the Seanad. That is a matter for the Cathaoirleach. The Cathaoirleach takes advice, no doubt, and he would be wise to do so but ultimately he took that decision to rule many amendments out of order.
There is much disquiet and misunderstanding outside these Houses as people look in and wonder what is really going on in terms of the political process. However, the political process is the political process. I respect parliamentary democracy and ultimately these decisions are teased out here, and the great thing is that they are teased out in an open and transparent way in this Chamber. There will be other opportunities and days to engage in advocacy for children and people in institutional care outside the parameters of this Bill, and that is right and appropriate.
The basis for much hope and expectation came from Members of the Oireachtas. Members of both Houses raised the expectation among the public that there would be substantial amendments but that did not happen. That is the nature of politics. People make many promises and commitments but they are constrained by many factors. It is for them to explain.
I want to take this opportunity to be clear that the Minister, Deputy O'Gorman, did not rule any amendments out of order in this House and that they were ruled out of order by the Cathaoirleach and, that we will have another opportunity to discuss them.
Finally, I thank the people who engaged on these amendments. I know they are disappointed and upset but that is the reality. I have always said there are many opportunities outside these Houses, and there will be in here in the future, to advocate strongly for these children and to discuss our welfare state and how we account for the way we manage our affairs. Nevertheless, I am conscious of the Minister's point about not wanting to delay the Bill. I do not want to delay it either. There is a hell of a lot of good in it. It is very important legislation and it is only right and proper that the people who are entitled to redress and fit the criteria as set out so far in this legislation will see that delivered for them. I am glad to have had the opportunity to set the record straight on that but, for the benefit of people listening to the debate, I would like clarity as to why the amendments were ruled out of order.
Further to the Senator's request, as Acting Chair, I wish to put on record that amendment No. 3 in his name would create a new definition of "maternity hospital" in the Bill, which has the potential to expand the scope of eligibility for payment under the scheme. Amendments Nos. 11, 19, 21, 23, 25, 29 to 32, inclusive, and 59 to 70, inclusive, are consequential on that amendment. They must be ruled out of order, in accordance with Standing Order 41, because they have the potential to impose a charge on the Exchequer.
I appreciate the Senator's clarification regarding who makes the call on whether amendments are in or out of order. As the amendments in this grouping have been ruled out of order, I do not want to get into a debate on their provisions, but I draw the Senator's attention to the existing definition under section 2(2), which provides that a person who "was born in, or admitted as a resident to" an institution, he or she will be included within the definition of "resident in". Persons who were born in the maternity hospital but were subsequently admitted to one of the institutions in the Schedule will be deemed as having been "resident in" that institution. Perhaps the Senator was trying to copper-fasten that provision or bring clarity to it, but the circumstances he was seeking to address in this group of amendments have been addressed. While they might not have been addressed with the absolute clarity that he and those who advised him would like, they are covered. I thank him for his comments.
I move amendment No. 75:
In page 20, between lines 17 and 18, to insert the following:“(3) (a) Where the determination includes a determination that the applicant is a relevant person, and where an applicant has provided testimony, or any oral, written, or documentary evidence of, their lived experiences of their time spent in a relevant institution, a notification undersubsection (1)shall further include a statement of recognition of those lived experiences.
(b) A statement of recognition under this subsection may include, but not be limited to, recognition of lived experiences of —(i) forced family separation,
(ii) racial discrimination and abuse, and
(iii) non-consensual or illegal medical experimentation.”.
This amendment will create a mechanism whereby the Government will have to provide a statement of recognition of survivors' lived experiences when they apply to the scheme. It is about providing for a more holistic form of redress. Our amendments have called for additional payments in recognition of those who experienced specific harms in the institutions, including for racial discrimination and forced family separation. In addition to the financial aspect of recognition, however, we need a more holistic, multifaceted and rounded form of recognition that involves the State saying it acknowledges and accepts that this happened to the person and that that was profoundly wrong.
The amendment is broad in that it will allow the Government discretion to decide the exact form of the statement. I ask the Minister to consider introducing an amendment to this effect before the Bill leaves the Seanad, if not by accepting our proposals than through his own amendment on Report Stage. This is building on the sentiments expressed repeatedly by Senator Higgins during the earlier Committee Stage sessions regarding the total absence of recognition of specific harms done in the institutions.The general payments in this scheme recognise only time spent in the institution - literally the number of days and nothing else. We proposed many amendments to recognise specific harms, such as forced family separation or racial abuse, through the making of additional payments for these specific harms. The Minister declined to accept these proposals. In the absence of actual financial recognition of the additional harms experienced by people in the institutions - not just the length of time they stayed – we need, at the very least, a formal, verbal recognition of some kind.
While the Minister has spoken at length about a non-adversarial approach and not requiring survivors to supply evidence of additional harms experienced, many survivors will share their testimonies of those harms regardless. It is reasonable to expect that survivors will try to supply or attach testimony of various experiences they had when applying for redress. It is horrible to think that under the scheme, their testimony will simply be ignored and possibly not responded to. Imagine telling an official about your worst experience of abuse at the hands of the State and then receiving no response. It is quite traumatic. Our amendments attempt to ensure that some kind of response will be made. While it might be inadequate and might not involve financial redress, it will at least be better than silence.
I am not in a position to accept the amendment as presented but that is not to say that I do not understand the intention behind it. That intention of acknowledgement lies behind the wider Government approach to mother and baby and county home institutions, as outlined in the steps we set out in the action plan. Central to that was the apology the Taoiseach made on behalf of the State. It also aligns with work my Department is looking at in terms of how an apology could be provided in a meaningful way to people who wish to receive one.
We are creating a significant scheme that is designed to provide a payment for those who spent certain periods of time in these institutions to recognise what they experienced while there. It is designed in a way that people do not need to bring forward testimony and evidence. The vast majority of people who use the scheme will not do so. They will point to the fact they were in the institution for a certain period of time and, after that, they will receive the payment. A small number for whom the scheme does not have records will provide testimony, probably an affidavit, stating that they were in the institution for a certain period of time. Again, they will not be asked for detailed testimony about their experiences, just an affidavit about being in that institution. They may choose to provide some testimony. What is provided for in this amendment would give them an acknowledgement of their testimony but not perhaps the much larger percentage, many of whom who may have had terrible experiences, whose records are there and did not need to swear an affidavit. I absolutely recognise what the Senator is trying to do, but it is only designed for what could be quite a small proportion of the overall number of people who will use the scheme. Our Department is looking at how we can do something meaningful in terms of individualised apologies for those who wish it. There may be those who do not want to hear from the State or Government and just want to make their application and that is that. There may be and probably are those who, as well as seeing the national apology, would like something more individualised as well.
As the Senator knows, we are working on the survivor stories initiative, which allows survivors to give their account, letting it be recorded and reflected in the national records and memorial centre that we are looking to bring forward as part of the overall approach.
I recognise what the Senator is seeking to do but I do not think the payments legislation is the place to do it. Even if we were doing it here, what is being proposed would only apply to a sub-category of those who use the payments legislation. If something like this was to be done, it should be done in a consistent way that every former resident could be able to avail of if it was something they wanted to do.
I want to speak to section 31, because our amendments to this section have been ruled out of order on the basis of a charge on the Revenue. It is frankly an astonishing interpretation of Standing Orders that an amendment would be judged to constitute a charge to the Revenue because it may at some point lead to a private individual taking legal action against the State. On those grounds, you could argue that any amendment we propose would be out of order and that any wording inserted in any Bill might one day be subject to judicial review against the State.
Does this therefore mean every amendment tabled in the Seanad should be ruled out of order on the basis of a potential charge that may be caused by a potential future court case? These rulings are inappropriate and frankly wrong, but I will leave that issue for the moment.
This section stipulates that an applicant to the scheme "agrees to waive any right of action which the applicant may otherwise have had against a public body and to discontinue any other proceedings instituted by the applicant, against such public body, that arise out of the circumstances to which his or her application related."
This is an unacceptable provision. It goes directly against the judgments of the UN Committee against Torture. The UN Committee against Torture agreed in the case ofElizabeth Coppin v.Ireland holding in its admissibility decision that collective reparation and administrative reparation programmes may not render ineffective the individual right to a remedy and to obtain redress. The UN Committee against Torture supported the right of victims to bring actions whether or not they signed a legal waiver in the interests of justice.
This legislation, as drafted, is in direct contravention of rulings by the UN Committee against Torture. I want to put that clearly on the record of the House today. The fact that this scheme provides no redress for specific experiences of forced family separation, medical experimentation or racial abuse means that it is grossly unjust to ask any applicant to waive their right to sue for these other and distinct abuses. My colleague, Senator Higgins, made this point very clearly and repeatedly and we await the Minister’s response, which should be delivered to this House so all Members can hear it today.
If the scheme is only going to compensate applicants for the number of days spent in an institution and not for any other distinct abuses that occurred there, then it is unacceptable that the Minister would force them to waive their right to sue in respect of these other experiences. It is concerning to hear the attempt to hedge around this issue, using language like "all-encompassing payment" to try to gloss over this issue. That language is not in the Bill and no all-encompassing payment is being offered to survivors. That is the concern here.
The Bill requires survivors to waive the entitlement to initiate litigation in order to access the redress scheme. As Senator Black pointed out, and as Sinn Féin pointed out in previous amendments, the position that has been taken by Government here can be contrasted to the symphysiotomy payment scheme, which did not require or compel any woman to forgo her right to initiate legal proceedings.Therefore, the introduction of a waiver to this scheme is inconsistent with previous schemes and, as discussed by Senator Black, risks violating the right to accessing justice. The UN Committee Against Torture found that waivers imposed in the context of the residential institutions redress board, an ex gratia Magdalen laundries redress scheme, were unenforceable. It also stated that judicial remedies must always be available to victims, irrespective of what other remedies are available. Waivers in this context are not justifiable and should not bar victims from seeking to further vindicate their human rights.
I hear Senator Black’s frustration about the ruling of these amendments out of order. That decision was not made by me. The issue of the waiver has been raised by the Senator, her colleague and colleagues from Sinn Féin and across the House. I am to come back to the House in writing on it. I had a meeting with officials in the Office of the Attorney General today to discuss and make final preparations for the response. It is an important issue for the Senator and everyone, and I want to be clear and get back to her with the correct information. I made a commitment to Senator Gavan to come back before Report Stage and will do so. We are putting the final touches to this, and I wanted to have a discussion with officials in the Attorney General's office before bringing forward anything in writing.
Speaking to the section, the legal waiver under the proposed scheme will only be signed at a point where an offer is accepted by an applicant. Applicants will know exactly what is being offered under the scheme prior to signing a waiver. They will be entitled to financial support for independent legal advice on whether they should sign the waiver or not. Up to the point where they sign the waiver, they will have a right to pursue a legal case through the court. It is important to distinguish this from other schemes. Signing a waiver does not in any way gag or restrict an applicant from discussing the amount offered. That was built into a previous scheme but is not the situation here. Somebody has a right up to the time he or she accepts the agreement and signs the waiver to decide if it would be best to pursue a legal case against the State and can get legal advice on that.
I will stop the Minister one second. My apologies, but the students have been waiting a while. I welcome the students from St. Finbarr’s Boys' National school in Bantry, County Cork, who are here with Deputy Cairns. It is good to see west Cork people here. On behalf of the House, I thank the teachers for their work and as Cathaoirleach it is my privilege to give the students no homework tonight. There you go.
Minister, the floor is yours again. Go raibh maith agat. Sorry for interrupting you.
Shameless vote-buying by the Cathaoirleach there.
I will make a point on what we are providing payments for. The Long Title of the legislation refers to “An Act to provide, in recognition of the circumstances experienced by certain persons while resident in certain institutions in the State ...” I respectfully disagree with Senator Higgins, who said the scheme was solely based on time. The availability of the scheme to a person is based on time spent in the institution but it is for the circumstances experienced while in the institution. That is set out clearly in the Long Title.
It is to enable me to provide as comprehensive an answer as I can to the points Senator Higgins raised on the waiver and what it covers. I wanted to explore that with the Office of the Attorney General.
To be honest, I do not want to repeat myself too much but the same issues apply to section 32 as to section 31. Our amendments were wrongly ruled out of order on the same basis but I will leave that issue for now.
The wording in section 32 similarly imposes a waiver on an applicant to the scheme and says that:
A person who receives payment ... shall not institute civil proceedings, and shall discontinue any other proceedings instituted, by or on behalf of the applicant against a public body, that arises out of the same, or substantially the same circumstances as the circumstances to which the application concerned related.
The wording in section 32 is particularly alarming. This wording, which refers to substantially the same circumstances, is very concerning. In a way, it seems to be trying to cheat applicants out of rightful redress. It seems to be trying to ensure that a person who receives a payment under the scheme for time spent in an institution is blocked form taking proceedings for additional harms they suffered, for example, forced family separation. The term "substantially similar circumstances" seems to be trying to say that all of the things which happened to a survivor in the homes can simply be lumped together in legal terms. I do not think that this is not how the law works in any other area. If a person physically assaults another person and steals from them, for example, we do not just blur all of those things together. Those things are treated distinctly under the law, stacked on top of each other, and justice is sought cumulatively in respect of the assault and the theft.
A second crime does not cause the first to disappear or to be reduced in the eyes of the law. This section of the Bill feels like a piece of trickery and it is a very alarming provision which we have to oppose. Again, it goes directly against the rulings of the UN Committee against Torture. It does not seem to be in keeping with the principles of law and justice generally. It is becoming urgent, and I know I am asking again for the Minister to clarify his interpretation of this section for the House. I look forward to hearing that when all the work is done.
Senator Black, could I say, as the Chair, that any of the amendments that were ruled out of order were actually out of order? I would be very happy to have a meeting to discuss any of the amendments ruled out of order, which I have offered other Members of the House, so that she understands the rationale for ruling them out of order. There was no bias on the part of the Chair. I would be happy to sit down with Senator Black and go through the wider reasons outlined, if she is happy to do that.
I thank the Senator. Speaking to section 32, again the approach that is being adopted with the payment scheme is one of a single payment recognising the circumstances experienced by former residents of these institutions.The decision - it is one we went through in some detail during our hearings last week - was based on the fact that to start to individualise the experiences of applicants and ask people to come forward and speak about their particular experiences risked: a retraumatisation; an issue to do with proof in terms of could survivor A prove they were discriminated against on a racial basis or could survivor B prove that they received physical abuse in an institution; and the difficulties at this remove, particularly for the 1940s, 1950s and 1960s, of securing prove, where proof was perhaps available, the risk of retraumatisation where that proof was brought forward, and the risk, if someone tried to bring forward proof, of it being adjudicated not to reach the standard required in order to be accepted. All of this was not just the interdepartmental group operating on its own; it was looking at the experiences here in Ireland with other redress schemes that have operated here, but also looking at schemes that have operated in other countries as well.
I made reference to the stolen generation scheme in Australia. Senator Higgins made the point that that is a different scheme. The Senator is right. Nevertheless, a significant decision was made in the context of that scheme to move from the individualised approach that they began with to the more generalised approach recognising the sum of trauma or sum of impact that time spent in these institutions had. Whereas it is not perfect - and the Department, the Government and I do not suggest that it is - the scheme will allow for the rapid provision of substantial levels of payments to a large number of people without requiring them to give evidence and run the risk of being retraumatised.
This is reflective of the fact the Government has this year abolished statutory inpatient charges in hospitals. These were one of the categories covered by the enhanced medical card. As those charges do not exist anymore, there is no point in listing them as one of the benefits of the enhanced medical card.
I move amendment No. 108:
In page 34, between lines 28 and 29, to insert the following: “(2) Should any opinion, decision or recommendation be made by either a domestic Judicial Review or international human rights treaty body, concerning the Act, the Minister shall cause a review of the operation of the Scheme to be commenced as soon as possible after this determination but not later than 6 months after the date of the determination.”.
Amendments Nos. 108 and 113 relate to justice for mixed-race survivors. As I highlighted earlier, there is currently no way for survivors to get justice in Ireland for historical racial discrimination in institutions given the Statute of Limitations and other issues. This redress scheme should have an avenue for justice for those survivors but it offers nothing in the way of specific redress for racial discrimination.
In September 2022, UN experts called for adequate redress for systemic racism and racial discrimination in Irish childcare institutions between the 1940s and the 1990s. The Irish Racial Justice Forum has now made a complaint against Ireland to the UN Committee on the Elimination of Racial Discrimination, CERD, and I specifically thank Conrad Bryan for all his work on this issue. Ireland will have the power to contest the admissibility of this case. I urge the Government not to contest the admissibility of the case and to allow it to be heard by the UN Committee on the Elimination of Racial Discrimination on its merits, and this is the approach the Irish Racial Justice Forum wants the Government to take.
As I have already outlined, mixed-race survivors of the institutions have exhausted all possible domestic avenues of redress. They engaged with the commission of investigation and the commission report was deeply disappointing for them. The commission of investigation concluded there was no direct evidence of different treatment or institutionalised racism in the records and that there does not appear to have been systemic discrimination. This directly contradicts the survivors' testimonies but the Statute of Limitations and the absence of historic laws against racial discrimination mean they cannot pursue justice in the domestic courts. They engaged in good faith with this scheme and are once again going to be disappointed with its current form.
In this context, the UN Committee on the Elimination of Racial Discrimination is the last forum for them to have their rights vindicated. Ireland signed the International Convention on the Elimination of All Forms of Racism and Racial Discrimination, ICERD, in 1968 and it was ratified in 2000.Upon ratification, Ireland made the declaration under Article 14 of the ICERD, recognising the competence of CERD to consider communications from individuals or groups of individuals within Ireland claiming to be victims of a violation by Ireland of any of the rights set forth in the convention. We as a nation have ratified this convention and given CERD the right to adjudicate on these matters. It is now imperative the State does not block that process by contesting the admissibility of IRJF’s complaint. Amendment 108 would require the Government to have regard to any opinion, decision or recommendation being made by either a domestic judicial review or an international human rights treaty body and to review the scheme in light of that recommendation. This could include a ruling or opinion from CERD.
Similarly, amendment No. 113 specifies that the review of the scheme undertaken would have to examine the extent to which the scheme is in compliance with any determination by a judicial review or an international human rights treaty body relating to remedies for any mixed-race survivors. This could include a determination by CERD. Amendments Nos. 108 and 113 both attempt to insert obligations in the Bill to acknowledge and respond to rulings or decisions by the UN Committee on the Elimination of Racial Discrimination. The amendments would ensure that the scheme must be reviewed in light of any such rulings or decisions.
I will be brief because I believe Senator Black articulated that very well. This is a particularly important amendment. It comes from a great deal of engagement. I also thank Senator Higgins, who cannot be with us today. We have talked so much about racial discrimination in recent years. Historically, we know that many children in care suffered racial discrimination. When we have engaged with such people, we have found that they were deeply hurt and damaged by their experiences, but this was an added layer. There was a feeling that somehow it was not being acknowledged. They acknowledged that things moved on in the 1980s, 1990s and 2000s but, historically, they were vulnerable.
These people were different anyway. They felt different. They were vulnerable. They were clearly different in regard to colour. Many of them were segregated from education. We must remember that, in the 1960s, many of these children were educated internally, behind the walls of institutions. Others got out and in many ways had to navigate the streets of the villages and towns of Ireland and be subject to racial abuse. They were also treated differently. Historically, we are told, and having met and actually lived with people who came from Africa and other parts of the world, they felt very different. They felt marginalised. For example, a woman recently spoke to me who said she arrived here with her mother in a tribal dress and within minutes it was ripped off her and disregarded. This was a girl of six or seven years of age, not a baby, who came into institutional care. They were alienated from their past, their culture, their tradition, beliefs and background. That was damaging to them. Many of those people have struggled to get on in many ways. Added to the other complexities of life that challenge each and every one of us, the prejudice was too much for many of them.
Somehow this particular group will be vindicated, outside of this legislation. I am confident, standing here in Seanad Éireann today, that if we do not do anything for them, the higher courts will do it, and we will be back in this Chamber asking why was it we did not respond. Why did we not in some way address this issue? It is an important issue. Racial discrimination is an important issue, particularly for minors in our State whom we took in.We accepted them into our institutional care structures and systems, but we did not do them a lot of good in there. It is a particular issue. I would be interested in hearing the Minister's view on this amendment and in general. The Minister and the Department of Justice will be aware that this is an ongoing issue with advocates. I am not able to discuss all of it here because it would not be right to do so. However, I can tell the Minister these people are already in the early stages of forming litigation against the State.
I thank the Senators for their contributions. I have put it on the record previously, but it is worth reiterating, that when the Taoiseach made his State apology, he recognised how the suffering of people in mother and baby homes and county home institutions was often compounded by racial discrimination. That is recognised.
I turn to the specific amendments brought forward by Senator Black. Amendment No. 108 proposes the inclusion of a new subsection in section 49 that would require a review to be commenced "should any opinion, decision or recommendation be made by either a domestic Judicial Review or international human rights treaty body, concerning the Act." That is a broad provision. Even if there were a judicial review or a review where the State was successful and adjudicated not to be at fault, a review would still be required under this provision. I am not sure if it be useful to undertake another review considering how many are provided for already. It could happen that a domestic court or international tribunal would make a finding against the scheme. Senator Boyhan alluded to the fact that there may well be litigation. In such a situation, the Government of the day would obviously take that seriously. In order for us either to meet our domestic or international legal obligations, the scheme would have to be looked at. We have always attempted to meet our international obligations. When decisions are made, be it by the international courts or international committees of the United Nations, the State responds to them. I do not believe that making a change to the review already provided for under section 49 is the right way to go. That section provides for review of the operation of the scheme at two set points. More importantly, it relates to how the scheme is operating in terms of what it is supposed to provide to applicants and how it is achieving the stated purpose.
I have a concern that amendment No. 113 goes way beyond what is provided for in section 49. It also goes beyond the scope of the scheme. Children were placed in many different types of institutions, as we know, not just mother and baby homes or county home institutions. The amendment as it is drafted proposes a review, which would consider the extent to which the scheme is in compliance with any determination by a judicial review of an international human rights treaty body. This would relate to remedies for any person who resided in an institution in which children were placed. That is a wide category that could prompt litigation from a wide category of potential institutions. It could also prompt a review of the scheme.
The amendment is also too broad. The reviews built into section 49 are about how the scheme operates. I have already flagged the issue of concerns about ineligibility. I have flagged that we will make sure, particularly in terms of the annual report, that those statistics will be highlighted. What is being attempted here is much broader than the review proposed under section 49.
I thank the Minister for that response. To avoid misunderstanding, am I to take it that he is receptive to the idea that if there were to be litigation the Government and the Department are open to looking at that if there are ramifications? I am conscious of the separation of powers and all that. We cannot anticipate what is going to happen. If we have no indication yet, we can take it there is going to be a bit of a lead-in time. What people are saying is they need that assurance. They feel they have not got the appropriate hearing, support or redress.They may be forced to go to other agencies to seek redress. Part of that could be a finding from an international body or from judicial proceedings. Either way, it could go on to be further judicial proceedings. However, the view is that there will not be a door locked tightly shut that they cannot open. As politicians, we are always receptive to directions from the courts or international bodies with which we have understandings or agreements and in circumstances where we are signatories to conventions. The Minister is not ruling out the potential, under very exceptional circumstances, that the matter might be looked at. Am I correct in saying that?
If a negative decision is made by an Irish court in the context of a judicial review about this scheme, the Government has to respond. I am talking entirely hypothetically, but if something was found to be ultra viresor unconstitutional, of course the Government has to respond. We do not have a choice in that situation.
If an international treaty body makes a finding about something that Ireland does, then in order to meet its treaty obligations, Ireland will seek to comply in the same way it complied with the Norris decision of the European Court of Human Rights, which had implications here. Ireland will meet its domestic legal obligations and its obligations under international law if decisions are made about the scheme and the legislation we are discussing today.
I move amendment No. 110:
In page 35, between lines 4 and 5, to insert the following:"(g) the extent to which relevant persons have applied but been deemed ineligible for general payments, work-related payments, and the provision of health services without charge, particularly as a result of residency requirements of a minimum number of days spent in a relevant institution;"
Amendment No. 110 specifies that a review of the scheme would have to examine the extent to which relevant persons applied to the scheme but were denied payments as a result of the minimum residency requirements. Once again, this goes back to the points made by my colleague, Senator Higgins, who cannot be with us today, at previous sessions. What we are seeking here is for any review of the scheme to document clearly how many relevant persons, for example, survivors of the homes, applied to the scheme and were denied specifically because of the six-month rule and the three-month rule. It is crucial that this data is collected and that it is considered in future reviews of the scheme. Any reasonable future review of the scheme would remove these residency requirements and include all survivors.
On amendment No. 114, the exclusion of several relevant institutions was highlighted by the Mother and Baby Homes Commission of Investigation and the OAK report. On Committee Stage, Sinn Féin tried to introduce an amendment to include the four other institutions that we believe were identified by survivors as operating, by and large, as mother and baby homes but are excluded from Schedule 1. The Mother and Baby Homes Commission of Investigation report also found some 400,000 potential victims who were subjected to non-consensual or illegal medical trials or experimentation.
The report also indicated that consent was not sought and definitely not given. It is believed that a number of these trials were carried out and we can assume that the religious orders were paid for them. It is abundantly clear that there was no compliance with the regulations, even for the time. Many children were discriminated against on a racial basis, not only in mother and baby homes but in nurseries, orphanages and industrial schools. This is what we now call racial segregation. It prevented children from being seen by prospective adoptive parents and adoption societies, resulting in prolonged years of institutionalisation. Racial segregation is a breach of international human rights law.The manner in which this Bill is structured means that in order to account for racial discrimination and systemic racism, the term "particular institution" must be added to the schedule of relevant institutions. Approximately 4,800 children were either nursed out or boarded out. These children experienced some of the worst abuses of any of the children in these institutions. It is disappointing that the subsequent interdepartmental group, IDG, was not given appropriate terms of reference to be able to further investigate this cohort of children. This amendment removes the arbitrary, inappropriate and unfair restriction. The six month residency requirement does not permit any consideration of context and completely lacks an acknowledgement of the realities and conditions in these institutions. A child who was resident for 180 days receives €12,500. A child who was resident for 179 days receives €0. The Government has effectively excluded approximately 24,000 survivors. This restriction is purely based on monetary concerns and should be removed so that all survivors are included without exemption.
Before I call the Minister, I welcome the residents' association representatives from Cyprus Downs to Leinster House. I thank them for their volunteerism and dedication to their local community. Unfortunately I cannot let them off their homework but I hope they will be able to avail of the courtesy of Leinster House and perhaps Senator Boyhan will look after them.
I welcome all the guests to the House. I know some of them.
This amendment is especially important. I will speak to amendment No. 114 which was tabled by Sinn Féin. Themes have recurred throughout this Bill. This is an especially important aspect of it. Given the nature of the Bill, particular issues are in focus. The amendment suggests that "within six months of the passing of this Act, [the Minister shall] prepare and lay before Dáil Eireann a report on the operation of the Mother and Baby Institution Payments Scheme. A report under this section shall consider the following". Six months is tight and the Minister has made that point. The essence of this comes down to five or six key requests. They are important and they are recurring themes. The scope of inclusion in additional schedules is clear. The Minister has covered it off pretty well. Regarding "b) whether there is scope in the scheme for the inclusion of children and women who were subjected to non-consensual or illegal medical trials or experimentation", I have said this before because I have a lot of experience in this area. We know. There is no dispute anymore about the fact that pharmaceutical companies carried out drug trials in the 1940s, 1950s, 1960s and into the 1970s. They denied them all and eventually through investigations by Prime Time, RTÉ and good journalists, who I acknowledge today, we got to the bottom of the truth. There was loads of evidence. These trials were published in reports and ultimately we now know that no consent was given. There is no evidence of consent being given. The adverse reaction has not been altogether documented but we know there have been some cases. Some brave doctors gave evidence about this matter. Deputy Micheál Martin was the Minister for Health when he set up three pilot investigations with Dr. Kiely . All of them indicated there were drug trials. We are beyond the area of knowing, knowledge or denial. We know they happened. Somehow the State does not want to acknowledge or deal with it in this Bill, but surely to God we will have to deal with it somewhere. It will not go away.
On the scope of the inclusion of mixed African race children, we know these children had to walk the streets and get out and about, and were bullied and intimidated. I do not want to say here again what was said to them, but it was painful, hurtful and damaging and somehow we do not seem to be able to cope with that. Then there is the issue of children who were nursed out or boarded out to homes. I have had many of those people as guests in Leinster House. I teased out some of the issues and their concerns. From the people who shared their experiences in my office, there is no doubt they were subject to mental, physical, emotional and sexual abuse; not all of them, but many. They have had to get on with their lives as best they can. They have been emotionally thwarted.They felt they could not develop emotionally therefore they could not develop educationally. What are we going to do for them? Then we finish up by talking about the children who were resident for fewer than 180 days. I do not want to keep repeating myself but at the end of the day, the Minister and all of us as Senators will have to step outside this House and somewhere we will have to explain to people why we have let them down. These are a few key asks. If they cannot be dealt with in this legislation, we need to say how we are going to deal with them. I have listened to many Deputies and Senators on the radio and in interviews talking about the shock and horror; they are Members of these Houses. We cannot sit idly by. This is our moment now. This is our opportunity and our chance to put something in the legislation. I accept we are running late and I am happy enough - as an advocate and someone who has lived in institutional care and who has experienced many of the issues that I have just touched on - that we have other vehicles, legislation, and redress schemes that run parallel to this. Let this get on with its work. Too many people are now too old. They want their redress. However, let us commit to addressing those issues in some other way. To say that they cannot be addressed here and have no alternative proposal is really not sustainable or fair. On the litigation, the only option left for these people is to go to the courts. They cannot afford to go to the courts. Many of these people are broken, tired and weary campaigning. They are weary of standing outside the gates of Leinster House and they had great expectation, because of the conversation by politicians, that something was going to happen.
I will finish by saying that there is a lot of good in this legislation. That is absolutely the case but there is so much more to include. Subsections (a) to (e), inclusive, of amendment No. 114, as set out by Sinn Féin Senators Warfield, Boylan, Ó Donnghaile and Gavan, could be worked in or included in this legislation, or alternatively could be run parallel to this legislation.
I have spoken at some length about the purpose of the Act and, in particular, the purpose of the reporting, both in the initial report and the final report. In light of that, I am not in a position to accept these amendments. While it is not explicitly stated in the Bill, the information that is referred to in amendment No. 110 will be gathered by the scheme as a matter of course as applications to the scheme will result in the notice of determination and the data will be captured on applications that were unsuccessful. It is likely that this information will be referenced in the annual report from the scheme, which is required under section 12, and also in the review of the operation of the scheme under section 49. Therefore, I will ask my officials in consultation with the Office of the Parliamentary Counsel to review this section and also section 12 which relates to the annual report, and to explore what is feasible to make them more explicit in relation to such data and it being made available in both reports. If necessary, and if we can find a way to do so, we will look to bring in an amendment on Report Stage to reflect the availability of the information in amendment No. 110.
While I cannot accept amendments Nos. 112 and 114, I would like to speak to some of the matters raised within them. In respect of amendment No. 112, the payment rates for the scheme were modelled on the approach taken in the Magdalen restorative justice ex-gratiascheme and, prior to the introduction of the Bill to the Houses, I secured Government agreement to improve the overall approach to payments in the Bill by introducing a more refined set of bands. These more refined bands, which are defined by reference to days and are supplemented by additional quarterly rate bands, will serve to benefit applicants particularly where they would have been at the upper end of a given annual band under the original proposal. I also introduced into the Bill periods of temporary absence of up to 180 days which can be included when calculated the total duration of a person's time in the relevant institution and their corresponding financial payment. Again, this recognises that many mothers and children, spent time outside the institutions, for example as a result of a hospital stay. The inclusion of such periods of temporary absence will also have the effect of increasing the payment amounts to which some applicants will be entitled.In respect of the payment approach, and we have discussed this matter at some length, the scheme does not provide for individualised assessments which will be necessary to provide a response to most of the matters that are listed in amendment No. 114. The approach taken was to eliminate the need for applicants to bring forward evidence of abuse and to demonstrate an entitlement or undergo cross-examination of this evidence, which, by its nature, can be adversarial and re-traumatising.
As mentioned in response to previous amendments, section 50 of the Bill provides for the insertion of additional institutions into Schedule 1 by regulation and with the agreement of the Minister for Public Expenditure, National Development Plan Delivery and Reform in accordance with certain criteria.
During our most recent session, we discussed the matter of training for staff of the executive office and I have asked my officials to consider that in respect of this report on the operation of the scheme and the annual report under section 12. In consultation with the Office of the Parliamentary Council, we are looking to examine the feasibility of including a reference in the Act that reports under sections 12 and 49 should include a section to cover the training delivered to staff and identify further training and development improvements as appropriate.
I move amendment No. 112:
In page 35, between lines 6 and 7, to insert the following: “(h) whether the level of payments under the Scheme are adequate, and if they should be increased;
(i) whether eligibility for a general payment should be extended 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;”.
I move amendment No. 113:
In page 35, between lines 6 and 7, to insert the following: “(h) the extent to which the Scheme is in compliance with any determination by a judicial review or an international human rights treaty body relating to remedies for any person who resided in an institution in which children were placed, either directly or from a relevant institution under Schedule 1, and in respect of which a public body had a regulatory or inspection function;”.
I move amendment No. 114:
In page 35, between lines 10 and 11, to insert the following:
“(4) The Minister shall, within six months of the passing of this Act, prepare and lay before Dáil Eireann a report on the operation of the Mother and Baby Institution Payments Scheme. A report under this section shall consider the following matters: (a) the scope for inclusion of additional institutions in Schedule 1;
(b) whether there is scope in the scheme for the inclusion of children and women who were subjected to non-consensual or illegal medical trials or experimentation;
(c) whether there is scope in the scheme for the inclusion of children that were of mixed African race or descent that were placed in an institution and subjected to institutional racism;
(d) whether there is scope in the scheme for the inclusion of children that were nursed out or boarded out;
(e) the continual exclusion of children that were resident for less than 180 days as specified in section 18(1) and (4) and if this should be amended.”.
I will speak to the section. The Cathaoirleach ruled one particular amendment out of order. I will not reopen that issue because it would not be appropriate for me to do so. I fully respect parliamentary democracy.
I am happy. I just want to talk about amendment No. 111, which was ruled out of order. The Cathaoirleach is the chairperson and I have no difficulty with that. Before today, the Cathaoirleach invited me to come and discuss the issue with him and tease out the issues. I acknowledge that, to be fair to the Cathaoirleach. He has a job to do. We operate under standing orders, which I fully accept. The Cathaoirleach was not here earlier when I made a point of clarification that it was not the Minister who ruled any amendment out of order. That is not the role or prerogative of the Minister. It is the prerogative of the Cathaoirleach of the Seanad, subject to all the relevant conditions and standing orders. I acknowledge that. However, I thought it was best to outline the situation for the benefit of the people listening to the debate who are not politicians and do not quite understand the system.
I know amendment No. 111 has been ruled out of order. I am not asking the Cathaoirleach to respond because I do not want to get into a two-way engagement. That would not be right, given the ruling of the Cathaoirleach. However, I could not ascertain how the amendment could in any way give rise to an expense to the Exchequer. My point does not refer to this section but it is worth noting that section 4(1) states, "Regulations made under this Act may contain such incidental, supplementary and consequential provisions as appear to the person making the regulations to be necessary or expedient for the purposes of the regulations." My amendment was about regulation. However, I am not opening up that to discussion because a decision has been determined in that regard.
I subsequently got independent parliamentary and legal advice. That advice drew my attention to the fact that the Minister makes the regulations. Under section 4(1), "Regulations made under this Act may contain such incidental, supplementary and consequential provisions as appear to the person making the regulations [who is, in this case, the Minister] to be necessary or expedient for the purposes of the regulations."I will leave all that, however, and I will not go back over the very important section we just discussed. I am not asking the Minister to respond, although it is clearly his prerogative to do so, but I would like to think we could have some engagement within a matter of weeks.
I might as well tell the Minister that I am committed to pursuing litigation with a group of people with regard to the drug trials. The State will clearly have to be involved in this. I believe in mediation, consultation, engagement and collaborative approaches. As a result of this business, my personal experience and the experience of other people in the institutions, and having noted the Minister's commitment and concerns in this regard, I firmly believe that we should endeavour to sit down as responsible politicians and see how we can address this particular aspect through some other mechanism.
I note the Minister told the House that he has engaged with GlaxoSmithKline and its successors, and maybe others. I do not believe that engagement was very successful, not on the Minister's part but in terms of the willingness or openness of these companies to engage. By having these discussions, more information has come to light. I call on the Minister and his team in Government to seriously examine their engagement with GlaxoSmithKline and others in terms of the very lucrative contracts the State has with pharmaceutical companies that have been involved in illegal drug trials on minors in this State. The time has come for us to say that whatever happened in the past, these companies are trading very profitably. They know and accept that they carried out unethical drug trials on children in our State. I would like to think that is no longer happening. I believe, however, that we now need to look at using political and financial leverage on these pharmaceutical companies. I do not believe this case will go away. The matter is of huge concern. I ask that we collaborate and work together across these Houses to determine if there is any mechanism by which we can address these issues in the committees and through debates in the Houses. I will certainly commit to using the limited Private Members' time available to me in the rest of my time in the Seanad, however long as that may be, to get some sort of justice for the people who were subjected like guinea pigs to drug trials by pharmaceutical companies in this State.
The Senator knows at this stage that I am always happy to engage. I cannot make any commitment in terms of outcome but I am certainly happy to engage. It is an important matter. As the Senator recognised, it is something on which I have engaged already. He is right that this was not with any great success. However, I am happy to engage further with him and others.
I move amendment No. 115:
In page 35, between lines 14 and 15, to insert the following: “Report on contribution of relevant parties to Scheme
50.(1) Under this section, “relevant parties” means persons, organisations, the estates of persons, or other entities involved at any time in the operation, management, administration or ownership of relevant institutions, or in the carrying out of illegal vaccine trials or any other medical experimentation on relevant persons.
(2) The Minister shall, within 6 months of the passing of this Act, lay a report before both Houses of the Oireachtas on the potential for relevant parties to be required to contribute to the cost of the Scheme.
(3) A report under this section shall include consideration of the following matters:(a) means of identifying and contacting relevant parties, including those resident or incorporated outside the State, and including organisations or corporations that may have been dissolved or are now incorporated under a different name;
(b) options for creating a statutory obligation on relevant parties to contribute to the costs of the Scheme, or any future expansion of the Scheme, including the creation of offences for relevant parties who do not meet their contribution requirements;
(c) the establishment of criteria for determining the size of the contribution due by relevant parties, including but not limited to:(i) the length of time a relevant party was involved in the operation, management, or administration of a relevant institution, or medical trial in a relevant institution;(d) analysis of the potential revenue to be collected from contributions under this section, and the potential increases that could be made to payments under this Act as a result of such contributions.”.
(ii) the volume and severity of human rights abuses perpetrated by a relevant party;
(iii) the severity of psychological, physical, medical, or emotional harm perpetrated by a relevant party; and (iv) the financial gain made by a relevant party as a result of their involvement in a relevant institution or medical experimentation in a relevant institution;
Many of the provisions of the scheme as outlined, if we are being frank, must be motivated by cost reduction. The purpose of the 180-day residency requirement for the general payment must be to exclude a huge subset of survivors who would otherwise be able to claim payments. In the absence of another justification offered by the Government, we must assume that is the real reason.
As has been said many times during Committee Stage, this is a shameful way to treat survivors. This entire scheme is estimated to cost €800 million, although it is likely to be less than that as not all eligible survivors will apply. We received news that the combined budget surplus from 2023 and 2024 alone will be €26 billion. That figure may have been revised upwards since. How can the Government possibly justify spending a tiny fraction of a single year's budget surplus on redress for decades upon decades of State abuse which impacted thousands of people? Financial compensation is only one tiny part of true redress. At the very least, we would expect the amounts of compensation to be meaningful or even transformative to the lives of survivors.
We heard some terrible rhetoric from the Government when it was queried about the reason the amounts some survivors will be entitled to are so low.We heard it would be better to spend the money meeting the needs of today or building a better future. Given how concerned the Government is about saving money, it is curious it has failed with this redress scheme to meaningfully pursue the religious orders who profited hugely from the mother and baby homes, and all of the pharmaceutical companies who profited from illegal medical trials such as those referred to by Senator Boyhan just now. Of course, it would be ideal if the burden on present-day taxpayers was minimised and if the scheme was partly funded by the religious orders who perpetrated the horrific abuses of the mother and baby homes. Why is the Government taking no meaningful steps to demand and ensure contributions from these perpetrators? We have heard the Minister's response around this but, frankly, I am just not sure the reasons offered are really acceptable. The State has the power to compel the perpetrators to pay. Some of the religious orders responsible still own significant land and assets in Ireland that could be seized. Some of the pharmaceutical companies responsible for the trials still operate in Ireland and would have no choice but to co-operate with the legal requirements to contribute to the scheme to continue their very profitable operations here.
I note that the pharma giant, GlaxoSmithKline, GSK, which still operates here, declined to apologise for its vaccine trials in mother and baby homes between the 1930s and the 1970s. This is despite the company's own documents showing it conducted seven trials at homes over those four decades. GSK has reported a global operating profit of £8.8 billion in 2021. Amendment No. 115 calls for a detailed report on potential options to compel religious orders, pharmaceutical companies, and all of those involved in the operation of the homes and in the carrying out of illegal medical trials, to contribute financially to the scheme. In particular it calls for detailed analysis of legal options for identifying and contacting all relevant parties, including those entities that have been dissolved or reincorporated under a different identity. More specifically, the amendment also calls for the development of a detailed scheme that would determine how much would be owed towards the scheme by each relevant party, and set out criteria of how the amount owed would be determined. The amendment suggests that some of the criteria might include the severity or volume of abuses perpetrated by a relevant party, and the financial gains made by a relevant party as a result of that party's abuses in the homes. These are some of the factors we should be considering when determining what these guilty parties owe to survivors. Crucially, the amendment also calls for the Government to possibly review and increase the amount of payments to all survivors on the basis of contributions made by guilty parties.
I am not in a position to support this amendment. As the Senator will be aware, the purpose of the Bill is to provide for the establishment of the payment scheme, the making of payments, and the provision of health benefits under the scheme. As stated in response to previous amendments, the Bill provides for reports to be made, but these are appropriately related to performance of the functions under the Act and the operation of the scheme.
There are a number of points in the amendment that would be exceptionally challenging or potentially simply not possible to implement from a legal perspective, particularly the creation of statutory obligations in offences for non-compliance. With regard to the criteria for establishing the size of the contributions due by a relevant party, which includes a private individual or an organisation, again it would be very difficult to establish and verify information in respect of each of the points proposed and especially given the timeframe involved, which spans almost 80 years.
I again reassure Senators that I am committed to a process of negotiations with religious congregations around them making a meaningful contribution. As I outlined last week, I secured Government approval to engage a negotiator to undertake and conclude negotiations with religious bodies. While these negotiations are ongoing, I am not in a position to discuss them. Most people will understand that if I were to give an ongoing commentary on them, it would undermine the negotiations. When they are concluded, a full report will be provided to Government on the process and the outcomes of those negotiations.
While hearing the Senator's criticism that these negotiations are not as yet concluded, I have always said I was prioritising the delivery of this scheme. The delivery of the scheme and the financing of the scheme was not, and never was, contingent on the outcome of those negotiations. That is important. The most important thing is to get this scheme up and running so that survivors and former residents can make applications to it.