Dáil Éireann debate -
Tuesday, 11 Dec 2018

Vol. 976 No. 4

Statute of Limitations (Amendment) Bill 2018: Second Stage [Private Members]

Deputy Jack Chambers

I move: "That the Bill be now read a Second Time."

I thank the Leas-Cheann Comhairle for the opportunity to progress this Private Members' Bill. I thank colleagues for their co-operation in allowing me to advance this legislation, having introduced it earlier this autumn. I will first give a technical breakdown of the proposals by addressing the various sections. The Bill provides that people who suffered as a result of maternal ingestion of thalidomide are not excluded from pursuing their cases because of time limits in the Statue of Limitations 1957. The Bill amends the Statute of Limitations 1957, Statute of Limitations (Amendment) Act 1991 and Statute of Limitations (Amendment) Act 2000. It inserts into the Acts that a person shall "in respect of injuries suffered by that person as a result of the ingestion of Thalidomide by that person’s mother during the person’s gestation period" be deemed to be under a disability. This section would apply to actions referred to in subsection (1) where the action concerned accrued before or after the passing of this Act, including actions pending the passage of this Bill. The section is in addition to and is not a substitute for section 48 of the Statute of Limitations Act.

It is important to state clearly that the primary focus of this Bill is to give victims of thalidomide a right of action. Unfortunately, the statute is currently being used as the primary wall of defence by the co-defendants in this case. However, the Bill states in section 1(2):

Nothing in section 48B of the Statute of Limitations, 1957, (inserted by subsection (1)), shall be construed as affecting any power of a court to dismiss an action on the ground of there being such delay between the accrual of the cause of action and the bringing of the action as, in the interests of justice, would warrant its dismissal.

The lifetime of thalidomide survivors has been blighted by the consequences of a drug taken by their mothers when they were in utero. The survivors were born with injuries that have an exceptional level of effect. People have had to endure significant physical and psychological consequences of their injuries for nearly 50 years. I welcome many of the survivors in the Gallery. Hopefully, we can finally provide some hope and justice in their long struggle against the State and the company involved, Chemie Grünenthal.

The background to this case is important because it demonstrates a dark past, particularly in respect of the company, Chemie Grünenthal, which marketed and promoted the thalidomide drug after the Second World War. As people are aware, the thalidomide catastrophe is an example of a shameful cover-up by big pharma across the world. Chemie Grünenthal, which manufactured this drug, is still in existence and is the defendant in many of the cases currently before the High Court. It has been argued that the Chemie Grünenthal thalidomide catastrophe is one of the last remaining war secrets. The chemist in charge of research was Dr. Heinrich Mückter, who was also a medical officer in Poland during the Nazi occupation of the country. The founder of the company, Hermann Wirtz, came from a prosperous family which had been given two Jewish firms in the 1930s as part of the Aryanisation programme and emerged with the cash and contacts to establish this company, Chemie Grünenthal. In the 1950s, Chemie Grünenthal ignored German regulations about new drugs and appropriate testing, carrying out only limited clinical trials. A culture of profit superseded safety to the detriment of thousands of people born across the world who were left with disabilities.

In 1956, long before thalidomide was marketed in Ireland, concerns were raised about the drug when the baby of a Chemie Grünenthal worker who had been given the drug was born without ears. Chemie Grünenthal ignored this case, among others, to develop its blockbuster drug for profit. This reflected the prevailing culture after the Second World War. The company ignored warning signs for years as it pursued profits. A German judge described the company's actions as "negligent, misleading, inexcusable, unlawful" and "very inadequate by the standards of the day". Unfortunately, the State took a hands-off, laissez-faire approach in the 1960s and did not exercise its statutory functions under the Health Act to address concerns about thalidomide which had been flagged across Europe and beyond. The drug's recall was delayed as a result and carried out in a ham-fisted manner. Unlike other jurisdictions, the State took no action in 1961 to restrict the sale and distribution of the drug when other countries were doing so. The Whelehan Group, the distributor of the drug in Ireland, acted in a similar manner to the State by not proactively addressing a red flag that was spreading throughout Europe. The company took a hands-off approach to informing doctors and pharmacists, issuing a circular warning them of the emerging public evidence about the drug. The State and Whelehan delayed the drug's recall and a lack of information resulted in ongoing use of the drug which adversely affected many people.

There is documentary evidence in the Department of Health which demonstrates that flags were being raised in Tullamore, Ballinasloe and other parts of the country about the effects of the drug. The circular issued at the time did not warn people. The effects were being seen on the ground without any action by the Whelehan Group or the State. A confidential but questionable circular was issued to chief medical officers but there is no clarity about who was contacted and in what area, and whether the medication had been recalled and subsequently retrieved. The evidence suggests it was left on the shelves long after the official recall. There is evidence to suggest that the failure to properly recall thalidomide, even after the international withdrawal of the drug, demonstrated a shocking failure by the State and the distribution company, the Whelehan Group, to act quickly in citizens' best interests.

This is the backdrop to the ongoing struggle of thalidomide survivors. The State's failure to honour a promised healthcare package in 1975 meant there was no follow-through on the provision of care adaptations, special equipment, education, training opportunities and healthcare supports. The State, through the Irish Thalidomide Medical Assessment Board of the 1960s, failed to acknowledge many people who were injured through the ingestion of thalidomide by their mothers.

Some 50 years later, sufferers are still emerging owing to a degree of covering up of the existence of records. Sadly, my legislation will come too late for two of the litigants before the courts who have passed away since their action began four years ago. I hope the Government and Minister will take this on board. This Bill gives those who are taking actions the ability to take their cases forward. The quantification of damages in the 1970s bore no relationship to the injuries sustained or the losses incurred. The State also failed to take the so-called settlement in the 1970s to be approved by the High Court, which was contrary to SI 72 of 1962, order 22, rule 9(2). It is important to put that on record. Damages proposed at the time were an insult and were generic, without proper personal injury precedents being followed, for the purpose of quantifying the entitlements of thalidomide survivors. The effect of the absence of a court ruling meant that an Irish court has not considered why children in Ireland continue to be injured after the international date of the withdrawal of thalidomide, whether the State failed under the Health Act to regulate the distribution of thalidomide and whether the German and Irish settlements met the threshold and precedent for the quantification and extent of the personal injury and loss sustained. As a result of the failure to rule on the settlements, many survivors have not received the benefit of the lump sum or even the healthcare benefits. If it had been approved by the High Court as it was in the UK, it would have enforced the limited benefits that were provided for in the settlement but for many, this did not even occur.

The entire lifetime of thalidomide survivors has been blighted by the consequence of a drug taken by their mothers. The survivors were born with injuries which, as I mentioned, have had an exceptional effect over 50 years. They have shown great stoicism and bravery in overcoming their disabilities to achieve so much in their lives. They demonstrate such courage and success. I have met many of them in recent weeks and months. They are very courageous and positive and they want justice. That the Government has been trying to technically knock out thalidomide litigants with time limits in a case management action in the High Court is shameful and wrong. New thalidomide victims who emerged since the 1960s, as well as people not acknowledged as survivors then, remain unacknowledged by the HSE and Minister for Health. These people have never received any entitlements from the State associated with their injuries. They should have the right to make their case if they can and they should not be locked out by a technical timing issue. It is not right for them to be stopped from taking their cases by the Statute of Limitations. They deserve the right to pursue their action. Even with the proposed change, they will still have to prove their cases, which will not be easy, given the time that has elapsed since the 1960s.

Thalidomide survivors have been subjected to threats by way of court applications that their claims will be struck out on the grounds of timing and failure to provide medical records details. The State is being intransigent and difficult with thalidomide survivors, which is shameful, given what befell them. Furthermore, this House is being told that the reason the litigation is not resolved is that payments of compensation would become deductible from German or Irish state pension entitlements. That statement is inaccurate. These litigants have never received any compensation or pension entitlement, or any thalidomide related benefit, from the State. A 2010 State Claims Agency report on the thalidomide controversy was fundamentally flawed and the State has held on to an entrenched position because of this. The report did not acknowledge that thalidomide had remained on the Irish market for several years after the date of knowledge that it posed a risk. Like the cervical cancer cover-up of this century, in the previous century pregnant women who ingested thalidomide were never told that their unborn babies could have been injured in utero. Why Ireland neglected to withdraw and recall thalidomide in a timely manner back in the 1960s has never been explained.

In its 2010 report the State Claims Agency states it is inappropriate, in its view, to apply current principles of tort and quantum to an event which took place in the years from 1958 to 1962. The perspective of this agency of the State that because justice in terms of quantification of losses in regard to damages did not occur many years ago and since has been delayed, the survivors have no appropriate entitlement today to losses is an insult. It appears to the agency that justice delayed should be justice denied and, shamefully, it is defending on that basis. That undermines an important principle of justice and due process. When faced with the hepatitis C and HIV victims from the 1970s, the State acted in a different way.

On 31 July 2013 the State again made a generic offer without quantification of damages and liability and tried to bounce survivors into a deal which did not address the core issues in the ongoing dispute. This has been described by survivors as the night of the long knives. Unlike in the aftermath of the cervical cancer controversy, no funding has been delivered to the HSE by the Minister for Health or his Department to enable it to provide the necessary medical records for thalidomide litigants. The Minister has a conflict in this matter. One one side, he underfunds the HSE's facilities for the provision of medical records, with the consequent effect that thalidomide litigants are placed in a vulnerable position in that their cases could be struck out for a failure to provide medical records. On the other side, the Minister is a defendant in the very same court proceedings. It is, therefore, within his remit to cure the issue on which advantage is being sought in terms of litigation. The Minister and his Department need to end this regrettable and hurtful approach of sympathising with victims, on the one hand, and blocking their progress and right of action, on the other. Actions speak louder than words, particularly for victims of thalidomide. In this action by the thalidomide survivors, in excess of 1,100 court documents have had to be filed thus far. Thousands of medical records have been sought by the defendants and the Minister from the survivors. As the hospital system's ability to deliver them is very limited, the litigants are in a catch-22.

I have given a broad outline of the Bill and the history and struggle of the victims. They should not be left in a precarious scenario of case management and a technical knock out to prevent their cases from being heard. It is ironic that the State Claims Agency and Grünenthal, a company with dubious foundations in Nazi Germany, are relying on the same defence to block genuine victims who were all failed by the co-defendants. Justice delayed should not mean justice denied. It is time to remove the Statute of Limitations for these victims in order that their cases can proceed and justice can be aired in the courts system. I urge Members across the House to support the Bill.

Deputy Stephen S. Donnelly

I welcome the visitors to the Visitors Gallery and commend Deputy Jack Chambers on bringing forward this Bill which deals with an issue in which I know he passionately believes. He is a strong advocate for those who have suffered immense harm owing to the scandal of thalidomide. He has laid out in great detail a litany of State failures not only from the 1960s but up until now and which continue to be perpetrated by the State. The Bill seeks to rectify it and I am happy that Fianna Fáil is using its Private Members' time to bring forward the Bill.

The mothers and fathers affected by the thalidomide disaster wanted more than anything to protect their babies; love them, nurture them and, above all, keep them safe. One of the many cruelties of the thalidomide disaster was that the mothers were given a supposedly mild, safe morning sickness pill for pregnant women. The drug, as we know, was called thalidomide. We are familiar with the devastating effects it had on their children. When the truth finally emerged, that thalidomide had caused severe disabilities in children, one would think the State would have stepped in and done everything it could have to help the children and their parents, but, as laid out by Deputy Jack Chambers, it did not step in to help. Not only did it not step in to help, it quickly became part of the problem.

The drug was withdrawn from Irish pharmacies long after it had been withdrawn in other European countries. The Medical Assessment Board of the 1960s refused to acknowledge many of the victims. During the years it transpired that patient files had been hidden. The State has been fairly accused of being involved in a serious and sinister cover-up. For decades many of the thalidomide victims have been denied help and compensation. To this day, the State continues to work against the victims of thalidomide to frustrate their efforts to seek justice. The Bill before us fights back on their behalf.

To this day the State Claims Agency is a co-defendant with the drug company. The State is claiming that the victims cannot avail of justice through the courts because of the Statute of Limitations. Despite causing numerous pauses in the process, in which the State was complicit, the State and the drug company are claiming that for these victims it is too late. They are being told "tough luck" and "you are out of time." We say it is not too late. The Bill seeks to provide that it is not too late. We say it is not too late to make amends or show compassion. We say it is not too late for the State to say thalidomide survivors' legal cases can and will be heard and will not be thrown out on a legal technicality. It is my hope other Members of the Oireachtas in government and opposition will join us in that call and support the Bill.

We want the Government to amend the Statute of Limitations specifically and only in this case for the victims of thalidomide. We want it to include in the existing Act one sentence that could throw open the doors to these victims and indicate to them that the State is no longer going to get in their way and that they can avail of justice through the courts. The Bill seeks to insert the following: "A person shall, in respect of injuries suffered by that person as a result of the ingestion of thalidomide by that person’s mother during the person’s gestation period, be deemed to be under a disability". That is all it would take to grant access to justice for these men and women.

There are many aspects of our past for which we need to make amends and we are discovering more of them every year. It must never be too late to do the right thing or for victims to seek justice. Let us offer thalidomide victims the protection and compassion they have been cruelly denied for so long. Let us allow them to go to court and facilitate them in doing so by making sure the resources are in place in order that they can access their files or whatever else they need. At a minimum, they deserve to be heard in court and the courts will decide in whatever way they choose.

Rather than tell these men and women that regardless of what happened to them and what was done to them they will not have access to justice or their day in court simply because the case has exceeded the Statute of Limitations, let us remove it in this limited case and give these men and women access to the justice they deserve.

Minister of State at the Department of Justice and Equality (Deputy Finian McGrath)

I thank Deputy Jack Chambers for bringing forward this important legislation. I wish to emphasise the central role of the Statute of Limitations in ensuring a fair system of litigation. However, let us have truth and honesty in this debate and let us deal with the facts from both a legal point of view and a humanitarian point of view. That is important. Despite my personal view, the Government is opposing the proposed amendment for the reasons I will outline. This Bill would give rise to civil litigation that could not otherwise be prosecuted before the courts, resulting in the appropriation of public moneys to fund the costs of the courts and other costs associated with litigation. The Bill therefore requires a money message in accordance with Article 17 of the Constitution.

The Department of Justice and Equality is the sponsoring Department for the Statute of Limitations Act 1957. The Act provides for limitation periods within which litigation can be brought. The Act recognises that a balance must be drawn between allowing litigants to make their claims and at the same time serving the public good by setting definite timeframes within which litigation can be taken against any person in the State. Due to the great importance of serving the public good, the Act grants extensions of time to limited cohorts who are described in the Act as "under a disability". It would run against the principle of protecting the common good to grant extensions of time to a cohort which does not meet the criteria for being granted this extension. The Department of Health considers that the amendment proposed has the potential for significant negative repercussions for the State as a defendant in litigation, as it would set a clear precedent for diluting the criteria defining what it is to be under a disability to such a degree as to make these criteria meaningless.

This Private Members Bill seeks to amend the Statute of Limitations Act to deem thalidomide survivors to be "under a disability" for the purposes of the statute, with retrospective effect. All of those currently recognised within the statute as "under a disability" are greatly impaired in their ability to take proceedings. That is why extensions of the limitation period apply in their cases. However, those persons whose injuries are attributable to thalidomide are not generally under severe legal disability which has impeded them from taking proceedings. The overall operation of the law in respect of the Statute of Limitations is complex and any changes to it will have a wide impact in law. This key area of the law is, therefore, a matter of ongoing review at the Department of Justice and Equality. This process is taking account of the findings and recommendations of the 2011 Law Reform Commission report and intervening developments.

In the ongoing consideration of the overall operation of the law relating to the limitation of actions or where specific areas of policy action arise, the core objectives of the Law Reform Commission report of 2011 will continue to apply, namely, that, "A balance is struck between the competing rights of the plaintiff and the defendant, as well as having regard to the public interest; in particular the right of the plaintiff of access to the courts and the right to litigate, the right of the defendant to a speedy trial and to fair procedures, as well as the public interest in the avoidance of delayed claims and the timely administration of justice." Account will continue to be taken by the Department of Justice and Equality of the commission’s recommendations and other relevant developments in bringing forward any proposals for reforming legislation in this area including, possibly, as part of any new programme of legislation and with the careful consideration of the Attorney General.

With regard to some of the points made about the State not stepping forward, I will take this opportunity to outline briefly some of the background to the current provision of State supports to Irish survivors of thalidomide, which I have always supported. Thalidomide is a drug that was marketed in this country between 1958 and 1962. It was withdrawn from sale by the manufacturers because it was linked to disabilities in children born to mothers who had taken the drug during their pregnancy. In January 1975, the Irish Government announced its decision to grant an ex gratia sum equivalent to four times the German lump sum and an ex gratia monthly allowance for life equal to the German monthly allowance from the Contergan Foundation to each of the children found to have thalidomide related injuries. This decision reflected the deep sympathy with which the Government always considered the effects of this tragedy on the lives of the children and their families. This is something I have always supported.

There are a number of other measures for thalidomide survivors. The Irish survivors have a full medical card which does not take means into account and provides access to a full range of primary care, hospital and personal social care. A HSE national thalidomide liaison provides assistance with securing HSE-provided health and social care services and access to services and supports provided by other Government agencies, for example, housing adaptation grants from local authorities. It is open to anybody who believes that his or her injuries are attributable to thalidomide to be assessed by the Contergan Foundation to establish his or her status. Obviously the State would recognise the outcome of this process and extend them the same supports.

Finally, without prejudice, the Minister for Health intends to refer shortly to the Government with proposed draft heads of a Bill regarding health and personal social services for Irish survivors of thalidomide. I look forward to the House's support for these proposals. We listen and we will support in the future.

Deputy Caoimhghín Ó Caoláin

I welcome to the Public Gallery members of the Irish Thalidomide Association. I welcome victims, family members and litigants and hope that passing this Bill will help them address the great wrong that was visited upon them and upon those who have passed, without ever knowing justice, all the while with the full knowledge of the Irish State. More worrying, but not surprising, is the fact that yet again the Irish State tried to bury the scandal and deny these victims their voice. It is reprehensible that we are debating once again an issue concerning a medical scandal and a subsequent cover-up that has destroyed people's lives. To be frank, it sends shivers up my spine. What kind of State and society are we when we repeatedly find ourselves in these situations? When will we learn the lessons?

Thalidomide was given to pregnant mothers in this country in the late 1950s as a sedative and treatment for morning sickness. In November 1961, it was discovered by an Australian gynaecologist that thalidomide was responsible for causing profound deformities of body and mind in children born to mothers who had been taking the drug. Despite most countries ceasing the use of thalidomide at that point, it remained on the market in Ireland until as late as June 1962. This pattern is all too familiar, with similar scandals such as the anti-D product, haemophiliacs' contaminated blood products, transvaginal mesh and, most recently, the cervical cancer screening scandal. We react far too late when these scandals are discovered and then treat the victims disgracefully. We impose the weight of the State upon them to prevent them pursuing the justice they richly deserve. We see the result of this tonight.

These victims, numbering 26, who have cases outstanding are waiting more than 50 years to be compensated adequately. The case is at a standstill in the High Court, with Mr. Justice Seamus Noonan criticising the slow pace of proceedings with no prospect of progress in the medium term. The defendant company, Chemie Grünenthal, is sitting behind a 1970s settlement and the Statute of Limitations.

I commend Deputy Jack Chambers on attempting to address this blockage here tonight. It is a commendable piece of work that is a genuine attempt to deliver for these people. I assure Jack and I assure this Chamber that its passage will have my and my party's full and unconditional support. I want to record my horror at the Government's decision to oppose the Bill.

I wish to place on the record an unfolding similar scandal that concerns the drug valproate, which is used to treat epilepsy and bipolar disorders. It has, similarly, caused birth defects in newborns when their expectant mothers have taken the drug. A European-wide ban on the use of valproate during pregnancy is now in place since 31 May 2018, following a safety review carried out by the European Commission that resulted in a legally binding decision.

I welcome that there are now in place an awareness programme, pre-assessments and explicit warnings for women at risk. I further welcome that work is under way to review the diagnostic and support services required by people who may have been affected by foetal anti-convulsant syndrome, FACS. It scares me to recognise the similarities involved in the case of valproate and thalidomide. On 6 July 2017 France banned the use of valproate for expectant mothers. It is estimated that 4,100 births with defects arose from the use of this drug in France. Since late 2017 France has set up a compensation fund to begin addressing the needs of victims. I would appreciate it if the Minister of State, Deputy Finian McGrath, would update the House tonight or at some point in the very near future on where Ireland stands on this drug and the mark it has left on the lives of how many of our citizens.

I will conclude by once again assuring Deputy Chambers and this Chamber that we in Sinn Féin will assist in the passage of tonight's Bill through Second Stage.

Deputy Louise O'Reilly

I thank Deputy Chambers for bringing forward this Bill. As my colleague Teachta Ó Caoláin has outlined, Sinn Féin will be supporting the Bill wholeheartedly.

While the Bill is short and simple, it is an extremely important Bill. It addresses issues that many people will be familiar with. Although the group is small the thalidomide issue is very well known and the arguments very well rehearsed. Thalidomide was used in the late 1950s and early 1960s. It was withdrawn from the market in 1961 but it would be 2012 before the manufacturer, the Grünenthal Group, would issue a halfhearted and insincere apology. For 50 years they were silent. All the while people had to live with the consequences of what this drug had done to them. Families and friends had to live with it too. What was the role of the State during this whole process? It was to issue what at best could be called an ineffective recall of the drug once the devastating side effects became apparent. It was only a number of years ago that a "Prime Time" investigation exposed that the Government deliberately did not issue a public warning about the dangers of thalidomide because it believed such a move would be undesirable. The documents uncovered by that programme showed that the Government decided not to make a public announcement about the dangers of the drug and instead left it up to pharmacists and medical officers to withdraw it from the shelves. Given the roles they played in the creation and perpetuation of this scandal, one would have thought that the Grünenthal Group and the State would acknowledge in full the damage and the hurt they have caused and that they would do all they could to set things right. In 2018, however, with all that we know and all that we have found out, we have both the State and the Grünenthal Group trying to use the Statute of Limitations to deny the victims access to compensation.

I am rarely shocked in my job, but I am shocked that the Government is opposing this Bill. I urge the Minister of State to reflect on that and to perhaps come to a different conclusion. It is clear that with the State and the Grünenthal Group using the Statute of Limitations Act 1957 to deny these victims, the correct course of action for us as legislators is to amend the Statute of Limitations Act. I commend Deputy Chambers on giving us the opportunity to do that. The Statute of Limitations (Amendment) Bill 2018 seeks to amend the 1957 Act, specifically section 48 which relates to disability. The State should not be in league with big pharma and it should not allow the companies to dodge their responsibilities when it comes to payment of compensation. It is our job to fight for those affected and to hold power to account and that is what we must do in this instance.

Speaking on this Bill tonight I am reminded of those children also affected due to the use of Epilim during pregnancy. When the Minister of State looks back on the history of thalidomide he will see, as I did when preparing my remarks for this evening, that the parallels are shocking. This tells me that no lessons have been learned and that we are not capable of looking back and seeing a copy of what happened. There are so many similarities in the situations. I echo the call made by Deputy Ó Caoláin. I urge the Minister of State to examine the issue because of these parallels. Day after day we come in here and talk about scandals of the past. We all nod our heads and say: "We are absolutely certain that it will not happen again." We talk about the Magdalen laundries yet we have direct provision. Now we are talking about a historical injustice but actually the same injustice is being perpetuated. The regulators knew about the risk with sodium valproate when they were considering licensing the drug. The women were not warned that the epilepsy drug could cause birth defects and developmental problems in their babies. Sinn Féin is very proud to be active on this issue, which we have taken on. I look at the history and I see that history is about to repeat itself in a very shocking way. We should all be listening to those alarm bells.

The victims of thalidomide should, at the very least, have the right for their case to be heard before the court. I do not believe this is an unreasonable request. For a group of people who have the sympathy of the general public, and for whom we all want the very best, the very least they deserve is the opportunity to have their case heard in court. That is why we should ensure the Bill is passed.

The State, through the now defunct Irish Thalidomide Medical Board in the 1960s, failed outright to acknowledge many of those who were injured through the ingestion of thalidomide by their mothers. After 50 years victims are still emerging as a consequence of the cover-up of patient records. The role of the State over the past 50 years has been despicable. Successive Governments have failed to address this issue. Less than ten years ago, a previous Minister for Health, former Deputy Mary Harney offered a take it or leave it package of €2 million to be shared equally between the 32 survivors at the time, and a slight increase in the monthly payment. That was not good enough for the then Minister. It represented a continuation of the State's failure to do the right thing. As has been pointed out previously, this is not a growing number of people. Those affected do not have time on their side. This group is, regrettably, diminishing in numbers so this is a very time sensitive issue. It is wrong to use the Statute of Limitations against this group. I know the Minister of State was very genuine in his words and I urge him to reflect on whether it might be possible to support the Bill. Sinn Féin will support the Bill.

I commend Deputy Chambers on bringing this short, very simple, but very important and necessary legislation to the House this evening.

Deputy Catherine Connolly

I compliment Deputy Jack Chambers on bringing forward this very precise legislation which I have no difficulty in supporting. I know the Minister of State to be very personable, but I, too, am shocked by the content and delivery of his speech and the ferocity with which he has told us that the Government will not be supporting the Bill. If he is listening, I remind him that he spoke about a balance having to be struck between the competing rights of the plaintiff and the defendant. That is precisely what has been missing. There has been no balancing of rights. We have had the powerful against people with no power. The Minister of State's failure to grasp this and the content and manner of delivery of his speech are shocking. I might have misunderstood him at the end of it, but did he say he was bringing forward legislation to be of further assistance? That is what I heard, but perhaps I am wrong. Certainly, if that is the case, it should have been brought forward well before now, not 50 to 60 years after the event.

The apology given by Chemie Grünenthal was miserly, delayed until 2012 and only given to the survivors, those suffering from thalidomide injuries. It was never given to the mothers who had suffered on every level having given birth to children with serious defects, not to mention the guilt felt having taken the medication which was sold on the markets as being safe. Before coming into the House, I took the trouble of looking back to see how the drug had been advertised. It was advertised using images of the happy faces of children and mothers who were repeatedly told that it was a safe drug and encouraged to take it. I am a member of the Committee of Public Accounts and we received an update in the past few months, starting in July. We were told that there were 34 active thalidomide related cases. That figure is included in the State Claims Agency's annual report. All of the people in question were born between 1958 and 1962. It is difficult over 50 years later to convince the Government that it should do the right thing. Throughout his speech the Minister of State talked about the common good, but the Government utterly fails to realise what it is.

We are dealing with a very limited number of people and a very precise Bill that simply seeks to remove one of the obstacles for a group of people who should not have to go to court in the first place. In going to court they should not have to override this obstacle because of the passage of time. In his contribution the Minister of State did nothing to right the situation. There are very few grounds for opposing the legislation.

I will clarify a number of things that we sought to clarify at the Committee of Public Accounts. We were led to believe, perhaps inadvertently, that mediation was ongoing and it was clarified that there had been no mediation meetings for almost two solid years, since 20 December 2016. We know that some people who suffer from thalidomide have received absolutely no benefits; therefore, the argument by Chemie Grünenthal that benefits would be affected and the argument by the Government do not stand up. We know that thalidomide status is being challenged in a number of cases, which just beggars belief. We know that the 1975 agreement was never ruled on in court and it is a very serious issue. It seems that even the advice of the Attorney General at the time was ignored. We know that the agreement in 2012-13, following on from a report which had been commissioned, I think, by the former Minister Mary Harney, recommended the payment of a sum of €62,500. As I understand it, the report was carried out with absolutely no consultation with the families or those suffering from thalidomide.

We know that the State has not been innocent in all of this and that it will be for the courts to decide, but a wiser Government would make decisions in the common good, having learned from all of the debacles of the various health scandals. However, the Government seems to be failing singularly to learn from them. This is a golden opportunity to learn from people suffering from thalidomide because certainly they have an awful lot to teach me and the Dáil about surviving with dignity and going on to lead full lives. That their disability is not classified as a disability for the purposes of this legislation is difficult to accept. It is difficult to accept - this is the third time I have said it - or believe the Minister of State made the speech he has made. Some 50 years on we have learned absolutely nothing. We are forcing people into court. We were told initially at the Committee of Public Accounts, again, perhaps inadvertently, that it was the German company Chemie Grünenthal that was raising the issue of the Statute of Limitations. It was clarified that it was not doing so on it own, that the Government was also making the same argument in this case. I have no idea why mediation has not continued, but it is important to state it has not. I would like to think we have learned, but we have not. I have absolutely no hesitation in supporting this limited legislation and would much prefer to see us discussing a scheme for those who have led the way with dignity and shown us how things should be done.

Minister of State at the Department of Health (Deputy Finian McGrath)

I thank colleagues for their submissions and all of the valid points made, to which, of course, I listened. It should be reiterated that it is not within the remit of the Minister for Health to amend the Statute of Limitations. That is a matter for the Minister for Justice and Equality who would be advised by the Attorney General on any amendment that might be considered. The overall operation of the law as it affects the Statute of Limitations is complex and any change would have a wide impact in law.

As I outlined to the House earlier, the purpose of the Statute of Limitations is to allow all persons, including the State, the opportunity to order their affairs in order that after a reasonable period has passed, persons will potentially have no liability for events that occurred in the past. The Statute of Limitations recognises that a balance needs to be struck between allowing litigants to make their claims and protecting all defendants, including the State, from old claims. It is a very important point that the statute is properly not regarded as providing a technical defence, as reported in some media articles, but is, in fact, a central feature of a fair system of litigation.

While the Government genuinely has every sympathy for each person who has injuries attributable to thalidomide, it also must be cognisant of the constitutional rights of all parties in litigation. Operating the Statute of Limitations differently in different classes of litigation could offend the fundamental constitutional requirement that the State treat such classes equally in its handling of litigation.

There are a number of legal claims against the State and two other parties in respect of thalidomide. These claims were referred to the State Claims Agency which has delegated authority to manage litigation on behalf of the State. I emphasise that the Minister for Health has no role in these legal proceedings. The litigation is being case managed in the High Court.

There are different categories of thalidomide litigant. In 2012 the Department of Health received claims from solicitors acting on behalf of 22 of the 30 Irish recipients of the monthly ex gratia payments. Also in 2012, two of the 22 plaintiffs accepted the ex gratia payment offer of €62,500.

In 2013, following the introduction of a revised German law, the Contergan Foundation significantly increased the German allowances payable to thalidomide survivors worldwide, including Irish survivors. However, the German ministry confirmed that from 1 August 2013 onward, any financial payments made by other governments to thalidomide survivors will be offset against the new increased German payments.

Of the 22 Irish individuals who were in receipt of the monthly ex gratia payments from the Irish State and had initiated legal proceedings, six opted to take the individual sum of €62,500 previously offered prior to the 1 August 2013 deadline in full and final settlement of monetary compensation. As two of these 22 had already accepted an ex gratia offer of €62,500 in 2012, there are now 14 active litigation cases from this cohort. The remaining nine Irish thalidomide survivors in receipt of monthly ex gratia payments from the Irish State and who did not serve and-or issue legal proceedings, were offered and accepted ex gratia sums of €62,500.

Additional claims have been received from solicitors on behalf of 13 persons not in receipt of monthly ex gratia payments from the State. All of these claims have been referred to the State Claims Agency. Of these, ten have initiated personal injuries litigation. To the Department’s knowledge and to my knowledge, only one of these persons has been found to have injuries attributable to thalidomide. This person did not accept the State’s offer of supports. The House will appreciate that the Department cannot comment in detail on claims that are sub judice.

The Government is committed to ensuring that the particular needs of survivors continue to be met in a person-centred manner. The Government and its predecessors have sought to reflect the great sympathy of the Irish people for survivors of thalidomide by making special supports available through direct financial assistance, enhanced social supports and personal health services.

Today, 30 Irish survivors of thalidomide are in receipt of monthly payments from the Irish State for life, in addition to a wide range of health services, personal social care supports and other supports as required, for example housing adaptations and customised aids and appliances. The range of services and financial supports provided to survivors, as outlined in more detail earlier this evening, are specifically provided to people whose injuries are attributable to thalidomide.

The Irish Thalidomide Medical Board was set up in 1973 as an independent board to undertake the examination of Irish children who claimed to have disabilities attributable to thalidomide and to assist their parents who may have a claim against the German compensation fund. It also assessed their degree of permanent incapacity and necessary treatment.

A report of the board states that 112 children were examined by the board and the board determined that 34 Irish children had thalidomide-related injuries. Irish children who were found to have thalidomide-related injuries were eligible for compensation from the German compensation fund in the form of a lump-sum payment and an allowance for life. Of the original 34 persons found to have injury attributable to thalidomide, one person was accepted by the UK Thalidomide Trust, and sadly three persons are now deceased.

In 2008 the Contergan Foundation was not accepting applications from persons seeking to establish if their injuries were thalidomide related. The Irish State paid for five persons to be assessed in the EX-Center, Stockholm, Sweden. Three of these people had previously been assessed by the Irish Thalidomide Medical Board and again were deemed not to have injuries related to thalidomide. Of the remaining two, one was found to have thalidomide-related injuries.

The Contergan Foundation has confirmed that since 2013 it is accepting applications from individuals for compensation for thalidomide-related injuries. It is open, therefore, to any person who feels their injuries are attributable to thalidomide to contact the Contergan Foundation directly. The House can be assured that any person whose application has been assessed and accepted by the Contergan Foundation will be eligible for the full range of supports, services and payments currently provided to Irish survivors by this State.

The Government welcomes this opportunity to assure the House of its continuing commitment to survivors of thalidomide and to explain in detail the reasons for the decision of Government to oppose the amendments proposed in the Private Members' Statute of Limitations (Amendment) Bill 2018.

Deputy Jack Chambers

The remarks my colleagues made outline how shameful and inhumane the Minister of State's two speeches tonight have been. While he mentioned at the start he was not speaking personally, maybe he should speak personally. Maybe he should front up as the Minister of State with responsibility for disabilities, and leave a positive legacy on these people's lives. Maybe he should not have delivered that script because what we have seen from him was a continuity of the net defence, the brick wall, the reliance on the Statute of Limitations and a really shameful defence of the lack of action by the State.

He did not take into account what I said in my opening remarks about the quantification of damages by the failure of the State to remove the drug. While he mentioned that the State has an ongoing commitment to these survivors, what he outlined today is very worrying. It is an ongoing alliance between the State Claims Agency and a company with a very dark past. This is a multi-billion euro company that sought to cover up documented evidence. The State Claims Agency and the Minister for Health, mentioned in that court action, are rocking in and using the Statute of Limitations to block the people here from pursuing their court action.

While using the Statute of Limitations, the Minister of State has superseded that with the next defence - Deputy Caoimhghín Ó Caoláin can vouch for this as we have seen it at the Oireachtas Joint Committee on Justice and Equality - namely, the old money message. What he is bringing to a conclusion is what we have specifically referenced in the Bill, which is that we are not prejudicing a potential court action. I reject the Minister of State's claim that the Bill would give rise to civil litigation that could not otherwise be prosecuted before the courts, resulting in the appropriation of public moneys. We have been very clear about giving someone a right of action. The Minister of State is going directly to the conclusion because he knows damn well beyond the brick wall, beyond this defence, the State is exposed. However, by allowing this defence to remain he is also allowing the brick wall to remain for that company, Grünenthal, a company that has failed to deliver for victims of thalidomide.

The Minister of State mentioned very little of the company in his two statements. By opposing this Bill, the State is providing a defence for a company with a very dark past that was linked to Nazi Germany from the outset. While I did not go into the detail of it, it is one of the war secrets yet to be fully detailed and discussed in public. I will read out the text of a letter Grünenthal sent doctors.

Dear Doctors,

In pregnancy and during birth the female organism is under great stress. Sleeplessness, unrest and tension are constant complaints. The prescription of a sedative and hypnotic that will hurt neither the mother nor child is therefore often necessary.

That was the cold spin that company sent Irish doctors. That was the spin that T.P. Whelehan allowed to continue to roll around the Irish State for years after the withdrawal of the drug internationally. That was the line that allowed the drug to remain within Irish hospitals over an extensive period. That is what the Minister of State is defending. That is the legacy that began post the birth of many of these children who had grave difficulties.

The Government failed to take account of the advice of the Attorney General at the time which resulted in damages not being quantified in the 1970s. The Minister of State said this is a matter for the Minister for Justice and Equality rather than the Minister for Health. This is no more than Cabinet deflection and spin. Has the Minister of State heard of the constitutional principle of collective Cabinet responsibility? That principle was ignored in his address to the House this evening.

I welcome the support of Deputies Ó Caoláin, O'Reilly and Connolly, all of whom spoke of the difficulties faced by victims over many years. It is the case that previous Governments and Ministers failed victims and I am not afraid to say that. The Bill gives the House an opportunity to give victims support and a chance to pursue their claims in court. The Minister of State said that because of the importance of serving the public good, the principal Act grants extensions of time to limited cohorts who are described in the Act as being "under a disability". Does he not see the physical consequences for people who suffered as a result of thalidomide? To have a Minister of State with responsibility for disability putting the words "under a disability" in quotation marks in his speech is quite insensitive. Perhaps he did not write the speech but to even put that on paper and to question their entitlement, as people who have definite difficulties and disabilities as a result of what happened to them in utero 50 years ago, is shameful and a poor reflection on the Departments of Justice and Equality and Health.

The Minister of State also said that it would run against the principle of protecting the common good to grant extensions of time to a cohort which does not meet the criteria for being granted such an extension. Again, the Minister of State is questioning whether this should be granted on the basis of the disability criteria. This reinforces the apparent alliance between the State Claims Agency and Chemie Grünenthal before the High Court under case management. The Minister of State went on to say that extensions of the limitation period apply to those with disabilities who need to be greatly impaired in their ability to take proceedings. Is he aware that some of the people who took the ex gratia payment are now dead? Does he realise that? Some of the people who, on the night of the long knives in 2013, were forced to accept that payment have since died. They were put under enormous pressure at that time which is why some of them accepted that payment. For many of those involved, time is of the essence and resolving the ongoing case management is extremely important.

The language in the Minister of State's speech is terribly inhumane and it shows that the State has learned nothing in the past 50 years. Examples of what could occur were referenced but what we have here is the permanent government of today trying to defend permanent governments of the past. This does not only rock the political system, but also the departmental system. It rocks the Whitehall model we have in place here, which is based on mounting a defence, regardless of the consequences. The Minister of State is supporting that approach when he could help these people. I am confident that we will get this Bill passed and dispute the Government's contention in that regard. An independent assessment will be made as to whether it requires a money message. When the Government has to rely on the money message defence, it shows its inhumanity in dealing with people.

Despite all of the spin about the HSE, the effect of the non-provision of services, including aids and appliances, has resulted in the exacerbation of difficulties and the deterioration of the physical health of many victims. The Minister of State gave beautiful spin about all of the supports and wraparound services that these people enjoy. Has he spoken to any of the victims of thalidomide? Have they told him that they have the perfect system of supports, as outlined in his speech? The opposite is actually the case. Any independent assessment of the State's delivery of healthcare packages from the 1970s will find it lacking to a shameful degree, which continues to this day. That is why court actions are ongoing.

The State now has an opportunity to do the right thing by this cohort of its most vulnerable citizens. To date, the Government has procrastinated, stood on ceremony and relied upon technicalities. The Minister of State has promoted falsehoods and spin in his speech today. The Government should not be trying to allow a company such as Chemie Grünenthal to gain unfair advantage vis-à-vis thalidomide survivors. For this reason, it should reverse its decision, support this Bill and allow it to go through the Oireachtas so that the limited number of people involved can finally have their say and justice can prevail.

Question put.

An Leas-Cheann Comhairle

In accordance with Standing Order 70(2), the division is postponed until the weekly division time on Thursday, 13 December 2018.