Gerry Horkan (Fianna Fail)
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Amendments Nos. 22 and 23 have been ruled out of order.

Gerry Horkan (Fianna Fail)
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Amendments Nos. 24 and 51 are related and may be discussed together by agreement.

Roderic O'Gorman (Dublin West, Green Party)
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I indicated during Committee Stage proceedings that I might bring an amendment on Report Stage with regard to data sharing by information sources. Amendment No. 51 creates a new section that will allow the chief deciding officer, where necessary and proportionate in respect of his or her functions under the Act, to access and process personal data and special categories of personal data held by information sources.

Institutional records are of key importance to this scheme. Their importance cannot be overestimated. Records will be the means of establishing eligibility and it is this approach that will eliminate the requirement for any applicant to bring forward evidence of abuse or harm. The vast majority of institutional records of the potential applicants to the scheme are held in the commission of investigation's archive and database. Section 54 gives the chief deciding officer a lawful basis to access the copy of this database currently held by my Department. At present, very valuable work is being undertaken in my Department, in collaboration with information sources, with regard to remaining institutional records that are not held in the commission of investigation's archive and database. These primarily relate to some of the county homes that were not examined by the commission of investigation. It is a fairly small percentage of the overall number of records but it is nonetheless important. If these records could be shared with the office of the chief deciding officer under a data-sharing agreement, that could reduce applicant wait times as the office of the chief deciding officer could undertake its own searches without needing to approach information sources on a case-by-case basis, as is currently provided for under section 22. It is important that section 22 remains in the Bill to allow for data-sharing on a case-by-case basis but this amendment will provide information sources with a lawful basis to enter into such a data-sharing agreement with the office of the chief deciding officer to allow for data sharing on a broader basis.

Amendment No. 24 is a technical amendment to section 22 to ensure consistency of language across the two sections. It strengthens this section by providing that the chief deciding officer may, to the extent necessary for and proportionate to the performance of his or her functions under the Act, request information from an information source for the purpose of establishing an applicant's eligibility under the scheme.

Eileen Flynn (Independent)
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I move amendment No. 27:

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 any testimony or evidence of their lived experiences, including by means other than an affidavit, of their time spent in a relevant institution, a notification under subsection (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.”.

Eileen Flynn (Independent)
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The amendment calls on the State to provide a statement recognising survivors who are applicants to the scheme and who have provided testimony about their life experiences in the institutions. Survivors have been silent for far too long. We urge that, under the scheme, their stories be shared. They are very powerful and need to be shared and, most importantly, to be recognised. The redress scheme is supposed to be the main avenue for their experiences to be recognised. Of course, survivors will submit testimonies about their experiences during the application process. I am horrified at the thought of survivors detailing their experiences and these simply being ignored or not responded to by the Government. The amendment is even more urgent given the total lack of financial recognition under the scheme for any specific experience of harm within the institutions. The only things recognised by this scheme are days spent in the institution and the work done. No other experiences, such as forced family separation, vaccine trials or racial abuse, are recognised. At the very least, these survivors deserve a formal reply and acknowledgement of what they submit during the application process. This is the absolute bare minimum. It is a very small form of recognition and I genuinely cannot understand why it is being refused by the Government. Putting political views aside, from a human perspective, it is genuinely beyond me why we cannot do the bare minimum and recognise what people went through in the institutions. I know the Minister's heart is in the right place in respect of the mother and baby homes. I suggest that he does the right thing and recognises people's experiences.

Gerry Horkan (Fianna Fail)
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I remind the Senator that we are dealing with amendment No. 27.

Gerry Horkan (Fianna Fail)
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It is not about what I would like.

Gerry Horkan (Fianna Fail)
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I am not making an apology. I ask the Senator not to be smart about it. I told him we are dealing with an amendment on Report Stage.

Gerry Horkan (Fianna Fail)
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I have been in the Chair at least three times in the course of the debate on this Bill and I have heard the Senator making the same speech previously. His views are very clear and very well articulated. He has articulated them a number of times. We are dealing with Report Stage.

Gerry Horkan (Fianna Fail)
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I did not ask the Senator to do so.

Eileen Flynn (Independent)
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May I come back in on this amendment?

Gerry Horkan (Fianna Fail)
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No, not at this point.

Gerry Horkan (Fianna Fail)
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As the mover of the amendment, Senator Flynn may speak again after the Minister has replied but she cannot come in again before then. That is the rule for Report Stage. It is not my rule.

Eileen Flynn (Independent)
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That is fine.

Gerry Horkan (Fianna Fail)
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I ask the Minister to respond.

Roderic O'Gorman (Dublin West, Green Party)
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I have addressed this point on numerous occasions, both during the earlier part of the Report Stage debate and on Committee Stage. I accept that Senator Gavan does not agree with my position but it is wrong of him to say I have not addressed the question, which I have done on many occasions before now.

Gerry Horkan (Fianna Fail)
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The Minister should be allowed to speak without interruption.

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

Roderic O'Gorman (Dublin West, Green Party)
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On the amendment put forward by Senator Flynn-----

Roderic O'Gorman (Dublin West, Green Party)
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I completely understand where Senator Flynn and the Civil Engagement Group are coming from in putting forward this amendment, which we had the opportunity to discuss on Committee Stage. However, I am not able to accept it. It would only apply to people who submitted an affidavit. The ability to receive an apology would apply only to a certain category of those making an application under the scheme. As we discussed previously, the vast majority of people applying to the scheme will not need to make an affidavit. By way of the chief deciding officer looking at the records and seeing they were in one of the institutions for a certain period, they will automatically qualify for the particular payment. They will not be making any written submission. An apology scheme that is designed in such a way that only certain survivors, whose records are not in the database, can make an affidavit and, therefore, only they can use this particular approach to an apology, is not the best way to address the central issue Senator Flynn and the Civil Engagement Group are focusing on, which is the idea of a meaningful, individualised apology.

We are looking at that issue as part of the work we are doing on the records and by way of the memorial centre that will be opened on Seán McDermott Street and the survivor story scheme we are looking to bring forward. Within that, we are looking for a meaningful way by which survivors can have their experience in these institutions reflected on the historical record and obtain some sort of meaningful apology on behalf of the State. We have had the apology from the Taoiseach on a national basis but we are looking to see how something more individualised can be brought forward. This amendment would only apply to those who have provided any testimony or evidence. I know where the Senator is coming from in what is proposed but it does not meet the requirement to a sufficient extent. Therefore, I am not in a position to accept the amendment.

Eileen Flynn (Independent)
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I thank the Minister for his reply but we do not accept it. We are looking for recognition for the people who are sharing their experience. Seven months ago, I was contacted by a Traveller man who had been in a mother and baby home. He poured his heart out in completing the application form and sent it to the Minister's Department. He was in the institution for fewer than six months, however, and he said to me he has never felt more unworthy as he did as a result of being excluded from the scheme. He went through his whole life feeling different from others because of his experience in a mother and baby home and because he is a member of the Traveller community. We must recognise the racial abuse experienced by people of colour, members of the Traveller community and members of other ethnic minority groups who were in these institutions for under six months. Our amendment is more an empathy amendment than anything else. It would give the bare minimum of recognition that people were in these institutions and what they went through from a health perspective, in terms of racial abuse experienced and the vaccination trials to which these children were subjected.

In all fairness, will the Minister not recognise these people's experiences? His answer is not good enough. He is talking in a roundabout way and out of both sides of his mouth. The amendment is asking that we recognise people's experience. It is the bare minimum required. The Minister will either do it or he will not. I hope he will come back to us later and we can find a way for the Government to recognise people's experience of vaccine trials and racial abuse.

Gerry Horkan (Fianna Fail)
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How does Senator Flynn wish to proceed on amendment No. 27?

Eileen Flynn (Independent)
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I want to withdraw it for Committee Stage.

Gerry Horkan (Fianna Fail)
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That is not possible at this point. She can withdraw it if she so wishes.

Eileen Flynn (Independent)
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I am referring to Report Stage.

Gerry Horkan (Fianna Fail)
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This is Report Stage.

Eileen Flynn (Independent)
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I will press the amendment.

Gerry Horkan (Fianna Fail)
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Amendment No. 28 is a Government amendment and has already been discussed.

Eileen Flynn (Independent)
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I wanted a vote on amendment No. 27. I said I was pressing it.

Gerry Horkan (Fianna Fail)
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The Senator did not say "vótáil". She pressed the amendment but she did not call for a vote on it.

Eileen Flynn (Independent)
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I pressed it to a vote.

Gerry Horkan (Fianna Fail)
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We have moved on. We have dealt with the amendment and I cannot go backwards.

Eileen Flynn (Independent)
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I appeal to the Acting Chairperson. We cannot stand by while people are not getting the bare minimum of recognition. Is there any other way around it?

Gerry Horkan (Fianna Fail)
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There is no way around it on this amendment. We have moved on and are dealing with amendment No. 28. The Senator needed to say "vótáil" when we were dealing with amendment No. 27. Nobody said "vótáil".

Eileen Flynn (Independent)
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I said I was pressing the amendment.

Gerry Horkan (Fianna Fail)
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Yes, the Senator pressed the amendment, I put it to a voice vote and it was defeated. The Senator did not say "vótáil". That is how it works.

Eileen Flynn (Independent)
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My intention will be set down on the record. How bitter could one possibly be to refuse to accommodate me in this way?

Gerry Horkan (Fianna Fail)
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Amendment No. 30 in the names of Senators Ruane, Higgins, Black and Flynn is out of order as it involves a potential charge on the Revenue.

Gerry Horkan (Fianna Fail)
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Amendment No. 31 has been ruled out of order.

Gerry Horkan (Fianna Fail)
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Amendments Nos. 32, 34, 35 and 37 are related and may be discussed together by agreement. Is that agreed? Agreed.

Eileen Flynn (Independent)
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I move amendment No. 32:

In page 25, between lines 28 and 29, to insert the following: “(4) Nothing in this section shall prejudice a person’s rights under the United Nations Convention against Torture.”.

Eileen Flynn (Independent)
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As the Minister knows from the Committee Stage debate with Senator Higgins, we proposed to delete the part of the Bill that would force survivors to give up their rights to take legal action against the State when they accepted a payment under the scheme. These amendments were ruled out of order. As a compromise, amendments Nos. 32 and 35 would insert paragraphs providing for the prevention of anything in the scheme from damaging applicants' rights to justice and legal recourse or their rights under the UN convention against torture. We hope these amendments will make the waiver provision ineffective. We believe the provisions in their current forms are an attempt to harm such rights.

In its response to my colleague, Senator Higgins, the Government claimed that the waiver provisions extend to all circumstances which occur in institutions. We want to be very clear. We do not believe this is true. It is very clear that the applicant will retain the right to take legal action in respect of other circumstances, in terms of time spent in these institutions, which are not recognised by the scheme. This would include forced separation, racial abuse or discrimination and being used for medical experiments.

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

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

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

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

Eileen Flynn (Independent)
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The Civil Engagement Group was very disappointed with the reply from the Department on amendment No. 34. To make a general point, to claim that emotional abuse is recognised in the Bill when it is not is a total insult, not to us as legislators who are trying to bring about a better Bill, one where people will get justice, but to the survivors. It is an absolute insult. I am not being smart, far from it, but the Minister is lying through his teeth saying it recognises emotional abuse when clearly it does not.

Erin McGreehan (Fianna Fail)
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The Senator cannot accuse the Minister of lying.

Mary Seery Kearney (Fine Gael)
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That is a bit rich. This is the Parliament; it is not a street corner.

Eileen Flynn (Independent)
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That is what it is. I have read it and so has the Civil Engagement Group. We have been here week after week and very few of our amendments have been accepted.

Mary Seery Kearney (Fine Gael)
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This is a mature Parliament.

Eileen Flynn (Independent)
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I am sorry; I cannot polish it up. It is what it is.

Gerry Horkan (Fianna Fail)
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Senator Flynn has resumed her seat. She had her opportunity and made her speech. Would the Minister like to come back in?

Roderic O'Gorman (Dublin West, Green Party)
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The amendments we are bringing forward do not in any way limit or seek to reduce the number of people who can avail of this scheme. What they do is clarify the applicability of the waiver. I think they work to clarify and make it more specific in terms of what the waiver actually covers. It is done in a way that is to the benefit of those making applications under the scheme.

Gerry Horkan (Fianna Fail)
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What would Senator Flynn like to do with amendment No. 32?

Eileen Flynn (Independent)
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I am pressing it. I will call a vote on it.

Gerry Horkan (Fianna Fail)
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We will come to that.

Jerry Buttimer (Fine Gael)
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Amendment No. 33 has been ruled out of order.

Eileen Flynn (Independent)
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I move amendment No. 35:

In page 26, between lines 20 and 21, to insert the following: “(4) Nothing in this section shall prejudice a person’s rights under the United Nations Convention against Torture.” .

Jerry Buttimer (Fine Gael)
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Amendment No. 36 has been ruled out of order.

Jerry Buttimer (Fine Gael)
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I welcome to the Public Gallery Ms Cathy Reynolds, daughter of an tiar-Thaoiseach, Albert Reynolds, her husband Mr. Niall Maloney and their family who are guests of Deputy Robert Troy. You are very welcome to Leinster House tonight. I also welcome Shane Martin, brother of our esteemed colleague and friend, Senator Vincent P. Martin, his good wife Deirdre, and a classmate of mine from Maynooth, Milo Murray and his wife Patricia. They are all very welcome. Shane was also in Maynooth. Our visitors are very welcome. I thank them for being here. Milo is looking better than he did nearly 40 years ago. He is very welcome.

Amendment No. 38 has been ruled out of order.

Eileen Flynn (Independent)
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I move amendment No. 39:

In page 27, line 22, after “practicable” to insert “and within 30 days”.

Frances Black (Independent)
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I second the amendment.

Eileen Flynn (Independent)
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First, I am sorry for a comment I made earlier to the Minister. I would like to withdraw it. I am genuinely sorry.

This is one of only two time-related amendments that we introduced. This amendment is very moderate. It simply asks that decision-making officers should not take any longer than 30 days to notify the HSE that a person is entitled to an enhanced medical card under the scheme. It is hard to think of a reason it would take more than 30 days to simply send a communication to the HSE. We must take all the steps we can to prevent undue delay. I urge the Minister to consider this amendment. I have heard the concerns he raised on Committee Stage but we must think of the urgency for elderly survivors.

Roderic O'Gorman (Dublin West, Green Party)
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It is absolutely the intention behind the scheme to provide a response and to process and provide the determination on an application for a payment as quickly as possible. That is set out clearly in section 26(1) where it states that it must be done "as soon as practicable", and in particular for people who have perhaps an illness or are of advanced years. We know that would be a significant number of the body of 34,000 people who will be making applications to this scheme. It gives the chief deciding officer the right to prioritise applications from that group.

It is important to remember that there is a very substantial number of people who will be applying to this scheme. We estimate that 34,000 people are eligible to apply. We know in particular when we look at the experience from the birth information and tracing legislation that a very significant number of those applications will come at the start. We have to be upfront with applicants in terms of how quickly we can process applications, in particular in those initial months. We know that not all applications will be the same in terms of complexity. The records of some people will be in the database, and it will be simple to process their applications, but for others, who will not have a record in the database, in that case, as we know, an affidavit will be required, and that is going to take a longer period of time. Every effort will be made, and there is an obligation on the chief deciding office to act as quickly as practicable. In particular at the start, I do not think that we will be able to make the 30-day deadline for every single applicant. It would be wrong to put in law an obligation that we genuinely do not think that we can meet, in particular at the initial stage. For this reason, I am not able to accept the amendment.

Jerry Buttimer (Fine Gael)
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Does Senator Flynn wish to reply?

Eileen Flynn (Independent)
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No.

Eileen Flynn (Independent)
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I move amendment No. 41:

In page 34, between lines 22 and 23, to insert the following: “Review of Scheme following ruling of international human rights bodies

49. (1) Should any opinion, decision or recommendation be made by an international human rights treaty body relating to remedies for mixed-race persons who resided in relevant institutions, the Minister shall cause a review of the operation of the Scheme to be commenced as soon as is practicable but not later than 6 months after the date of the determination.

(2) A review under this section shall consider how the Scheme may be amended or expanded to achieve compliance with any determination by an international human rights treaty body relating to remedies for mixed-race persons who resided in a relevant institution, or any other institution in which children were placed, either directly or from a relevant institution, and in respect of which a public body had a regulatory or inspection function.”.

Frances Black (Independent)
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I second the amendment.

Frances Black (Independent)
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I second the amendment.

Eileen Flynn (Independent)
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I move amendment No. 45:

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 12 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;

(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;

(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.”.

Frances Black (Independent)
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I second the amendment.

I am concerned that we are not using the full extent of State power to force guilty parties such as religious orders and pharmaceutical companies to contribute to the scheme. We have retabled amendment No. 45, which would require the Government to explore legal options to require relevant parties, including religious orders, pharmaceutical companies that ran illegal medical trials in the homes and all other guilty parties, to contribute to the scheme. It would also require the Government to explore options for increasing the payments to survivors under the scheme. Guilty parties should be forced to pay reparations to survivors for the immense hurt and pain they have caused. The entire scheme is estimated to cost €800 million. At the same time, we have recently been told that the combined budget surplus from 2023 and 2024 will be €26 billion. How can we justify spending a tiny fraction of a single year’s budget surplus on redress for many decades of State abuse that impacted thousands of people?

The pharmaceutical giant, GlaxoSmithKline, GSK, which still operates here, 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 that it conducted seven trials at homes over those four decades. GSK reported a global operating profit of £8.8 billion in 2021. Our amendment calls for a detailed report from the Minister on potential options to compel religious orders, pharmaceutical companies and all others 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 a detailed analysis of legal options for identifying and contacting all relevant parties including those entities which have since been dissolved or reincorporated under a different identity. More specifically, it calls for the development of a detailed scheme which would determine how much is owed towards the scheme by each relevant party and set out criteria for how the amount owed will be determined. The amendment suggests that some of the criteria might include the severity and volume of abuses perpetrated by a relevant party and the financial gain made by a relevant party as a result of the abuses in the homes. These are only some of the factors that we should consider when determining what these guilty parties owe to survivors.

Roderic O'Gorman (Dublin West, Green Party)
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As outlined on Committee Stage, the purpose of this Bill is to provide for the establishment of the payments scheme, the making of payments and the provision of health benefits under the scheme. What is being proposed in this amendment is extremely challenging. Some of the requirements coming in from this amendment might not be legally possible, in particular the creation of statutory obligations and offences for non-compliance, which is part of what is being proposed here. It would be extremely difficult to set out the criteria for establishing the size of the contribution due by a relevant party, which includes a private individual or an organisation, and to verify information in respect of each of those points, particularly given the very wide timeframe involved here, spanning 80 years.To recall the work that has been done in this space in respect of vaccine trials, following the publication of the final report, I wrote to GlaxoSmithKline and subsequently met its representatives. I have made this point to the House previously, in particular in response to Senator Boyhan. I conveyed my view that all parties, including GlaxoSmithKline, had moral and ethical obligations to take actions under the report. I asked its representatives to look at the fact that the report outlined a very clear history of vaccine trials taking place without consent in mother and baby, and county home institutions and in a range of other institutions and community settings. It is important to recall that these trials also took place in others settings. I expressed my view that the response from GlaxoSmithKline, which was to offer access to information, while welcome, was inadequate. More must be done in terms of an apology and contribution.

On engagement with religious orders, I recently appointed a negotiator to lead this process and engage on a detailed basis to try find a basis upon which a meaningful contribution can be made. I recognise that a number of these orders have made apologies but I said, and the message that the negotiator will continue to convey to these orders on my behalf, is that an apology on its own needs more. It needs something behind it and that needs to be a meaningful contribution to the State in respect of the State's response. That process is under way. It is a negotiating process; there is no point in negotiating in public or over the airwaves. The outcome of that process, whatever it may be, will be reported to both Houses of the Oireachtas.

Jerry Buttimer (Fine Gael)
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Amendment No. 46 has been ruled out of order.

Jerry Buttimer (Fine Gael)
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Amendment No. 53 has been ruled out of order due to a potential charge on Revenue.

Jerry Buttimer (Fine Gael)
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When is it proposed to take Fifth Stage?

Maria Byrne (Fine Gael)
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Now.

Jerry Buttimer (Fine Gael)
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Is that agreed? Agreed.

Jerry Buttimer (Fine Gael)
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When is it proposed to sit again?

Robbie Gallagher (Fianna Fail)
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At 9.30 a.m. tomorrow.