On a point of clarification, arising from yesterday's proceedings, I received a number of telephone calls and emails. I wish to inform people, predominantly those listening from outside the House, that as I adjudicate on amendments to all Bills, I am governed, as Members here know, by Standing Orders. That is why amendments are ruled out of order. It is not a personal decision by me, as Chair. I wish to inform people outside the House who are watching and listening that the amendments are ruled out of order as per Standing Orders. I thank those who are watching and listening for their communication with me.
Mother and Baby Institutions Payment Scheme Bill 2022: Committee Stage (Resumed)
SECTION 50
Debate resumed on 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;
(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.”.
Senator Boyhan been given the task of moving amendments in the absence of Members. How stands the amendment?
The amendment will be withdrawn.
Is that agreed by the House? Agreed.
Amendment, by leave, withdrawn.
I move amendment No. 116:
In page 35, lines 16 to 20, to delete all words from and including “(1) The” in line 16 down to and including line 20 and substitute the following:
“(1) The Chief Deciding Officer, in consultation with the Minister may, by regulation, provide for the insertion in Schedule 1 of any institution which was established for the purpose of providing maternity and infant care services and the placement of children for the purposes of adoption or care arrangements, and in respect of which a public body had a regulatory or inspection function.”.
I will speak briefly to the amendment. I am sure the Minister will not be surprised by my remarks because they are consistent with the approach that I and my Sinn Féin and other colleagues in the House have taken. The amendment speaks for itself in terms of what it tries to do regarding the placement of children in respect of which public body had a regulatory or inspection function in terms of an institution. The amendment seeks to try to address the broader issues of concern that have been relayed to us and the Minister around the Bill creating a tier of victimhood, which should be a concern for everyone. The six-month period is entirely arbitrary. It is also not consistent with other similar schemes, something which was alluded to by other colleagues in the other stages of this debate. The eggshell skull rule means that we take a victim as we find them. There is nothing that says that someone is less traumatised because of the particular institution they were in or, indeed, a particular period they happened to spend in an institution, regardless of how short or long that period was.
The amendment seeks to amend the Bill to the effect that the chief deciding officer, in consultation with the Minister, may, by regulation, provide for the insertion in Schedule 1 of any institution that was established for the purpose of providing maternity and infant care services and the placement of children for the purposes of adoption or care arrangements and in respect of which a public body had a regulatory or inspection function. This seeks to ensure that all victims, no matter what institution they found themselves in or how long they were in one, are supported and their needs met as the Bill progresses through the House.
I concur with Senator Ó Donnghaile. I support what he said. He set out the case very clearly. What he and his colleagues are trying to achieve is self-evident. I rise to speak in support of the amendment.
I thank the Senator for putting forward the amendment. I want to take a step back. The amendment proposes the deletion an existing part of section 50 and its replacement with new text proposed by Sinn Féin Senators. When the Bill was first brought before the Dáil, it referred solely to the institutions listed in the Schedule and they were the only available institutions. Subsequently, following pre-legislative scrutiny and engagement, we added section 50 to the Bill which includes giving power to the Minister to add additional institutions. The Sinn Féin Senators are not proposing new text; rather it is an amendment to the existing text.
Section 51 states:
The Minister, with the consent of the Minister for Public Expenditure and Reform, may, by regulation, provide for the insertion in Schedule 1 of any institution which was established for the purpose of providing maternity and infant care services and the placement of children for the purposes of adoption or care arrangements, and in respect of which a public body had a regulatory or inspection function.
That is in the Bill right now. The change proposed by Sinn Féin colleagues is that, rather than the Minister making the decision as to the addition of new institutions it would be the chief deciding officer. With respect, that would be inappropriate. The chief deciding officer is a civil servant who is independent in terms of the performing of a function regarding whether someone qualifies for a payment under the scheme. The decision as to whether a new institution is added to the Schedule is a policy decision and one which would have to be backed by legislation and regulation. I do not think it would be appropriate for the chief deciding officer to make that decision. It is appropriate that it is a decision made by a Minister.
To be very clear, the power the section talks about already exists. It is just a question of who exercises that power. I believe it is correctly exercised by the Minister and not the chief deciding officer who, as I said, is a civil servant and should not be making a policy decision like that. If we were delegating that decision to a civil servant in other areas, people would not agree with that.
I thank the Minister for his response. I do not necessarily agree with him that the amendment allows a civil servant, as he described it, to make a policy decision. The policy decision is set by the text as laid out in our amendment. The policy is clear. The individual, whoever he or she may be, is not deciding the policy. That is outlined in the rest of the amendment and, indeed, the existing text the Minister referenced. The amendment allows the chief deciding officer to, in effect, do his or her job swiftly and ensure that institutions are included. I do not see a great divergence. It would allow for a smoother operation and ensure any institutions which need to be included could be included swiftly and effectively, in line with the broader policy set out in the amendment and the broader text of the Bill.
Again, respectfully, this is a policy decision. The role of the chief deciding officer is to oversee the implementation of the scheme and oversee, in an independent way, the adjudication of each individual application and make sure that is done in an appropriate way. A decision on the addition of a new institution could have the consequence of significantly broadening the scheme. If the proposed institution met the criteria set out in section 50, then that is what should be done but that is a policy decision.
What would be wrong with broadening the scheme?
We have included this section to recognise that there may be circumstances where our understanding of other institutions changes as we find out more about them. They may have replicated the functions of the institutions that are contained within this legislation and if so, the legislation makes space for them to be included, if they meet the requirements set out here.
I disagree with the Minister, but the amendment is there so we will move accordingly.
Amendment put and declared lost.
Amendments Nos. 117 and 118 are out of order because they involve a potential charge on revenue.
Amendments Nos. 117 and 118 not moved.
Section 50 agreed to.
Sections 51 to 55, inclusive, agreed to.
SCHEDULE 1
Amendments Nos. 119 to 121, inclusive, are out of order because they involve a potential charge on revenue.
Amendments Nos. 119 to 121, inclusive, not moved.
Question proposed: "That Schedule 1 be a Schedule to the Bill."
I wish to signal to Seanad Éireann that I may bring amendments to the Bill on Report Stage to address an issue relating to institutions covered in the scheme and their continued operation in other capacities. This issue is complex in nature and particularly relates to county home institutions. It is currently being considered by my officials in consultation with the Attorney General's office.
Question put and agreed to.
SCHEDULE 2
Amendments Nos. 122 and 123 are out of order because they involve a potential charge on revenue.
Amendments Nos 122 and 123 not moved.
Schedule 2 agreed to.
Schedule 3 agreed to.
TITLE
I move amendment No. 124:
In page 5, line 6, after “circumstances” to insert “and historical actions”.
I acknowledge the clarification and the setting out of the reasons various amendments were ruled out of order. I have no difficulty with that. It is ironic that after all of the amendments I tabled, only two were accepted, namely, the first and the last. That is interesting. This amendment seeks to add the words "historical actions" to the Title of the Bill. When I sat down earlier with a pen and paper, I thought that this would give me lots of scope to think back. I am glad to have the opportunity to move the last amendment on Committee Stage and will outline my thoughts on it.
My proposal is that the new Title would read:
Bill entitled an Act to provide, in recognition of the circumstances and historical actions [this is the piece I am proposing to add] experienced by certain persons while resident in certain institutions in the State, for the establishment of a scheme to be known as the Mother and Baby Institutions Payment Scheme for the purpose of the making of payments and the making available without charge of health services to such persons; to provide for the making by such persons of applications for such payments and services; and to provide for related matters.
While the purpose of this Bill is to recognise the circumstances experienced by certain residents in certain institutions, another important aspect of the Bill is that it recognises historical actions and that is what I want to touch on. I do not know what the Minister's decision on this amendment will be but I want to touch briefly on a few key words. I tabled many amendments but almost all of them were ruled out of order. That said, I had an opportunity to articulate some of my concerns with and views on the legislation. In the context of the term "historical actions", I am referring to the vaccine trials, boarded out children, the abuse of children, child labour, forced adoptions, the denial of parental access in certain circumstances, the denial of educational opportunities, trauma, forced separation of family members against their own interests, the denial of family records, although that is being addressed, unjust detention of children in certain circumstances and the lack of access to those children by their legal parents and those legally in loco parentis, and the failure of ongoing engagement. That is a summary. If we look back and are honest with ourselves, these are the key recurring themes - not forgetting children below six months - that we have not been able to get over the line at this juncture.
I am not going to go on at any great length. The legislation will go to Report Stage. I understand the debate in that regard has been agreed and scheduled for 14 June. On that date, we will be back in here for four hours to debate the Bill, which is important. I do not know where we will go from there. We operate in a parliamentary democracy. That is the system and we just have to beaver ahead. As I said last night, there are other opportunities outside this House to pursue the agenda of justice for those affected.
The amendment proposes the simple inclusion of the words "historical actions" in the Title of the Bill.
I thank the Senator. He is right that the Report Stage debate is scheduled for four hours at the moment. As the Senator knows, Committee Stage was originally scheduled for three hours and we have been dealing with it for a lot longer. That is absolutely fine because it is important legislation. It is important that we give the amendments that were in order and, in certain circumstances, those that were not in order, good consideration. We will continue to do that on Report Stage.
I thank the Senator for setting out the reasoning behind his proposal to add these words, but I am not in a position to accept the amendment. What Senator Boyhan is proposing would require careful consideration and advice. While I know the Senator understands this, the Long Title of an Act is an important aid to the interpretation of the overall legislation. While it is possible to have some freedom in its construction to describe in a general way the purpose of the Act, when there is a doubt as to the meaning of a particular provision in the Act itself when that is read in its wider context within the enactment in which it appears, in some circumstances the legislator will use the Long Title to guide the meaning of one of the sections or subsections.
As we know, the approach being adopted to this scheme is simple and non-adversarial. Eligibility will be established by reference to institutional records and time spent so a person does not have to demonstrate evidence of his or her experience in an institution in order to qualify for the scheme. For this reason, there was some deliberation, again in consultation with the drafters and the Attorney General's office, on the wording of the Long Title to ensure that it remained consistent with the provisions of the Bill.
The current Long Title includes the words "in recognition of the circumstances experienced". That is the reasoning behind this Bill. The payments are being provided in recognition of the circumstances experienced and this was agreed as being permissible as it is with reference to the agreed purpose of the scheme, which is to recognise time spent in the institutions, the harsh conditions, the emotional abuse and the other forms of trauma, stigma and mistreatment experienced by residents while residing in mother and baby home and county home institutions. Any change to that would require very detailed engagement with the Attorney General's office and an understanding of what is proposed to be meant by the term "historical actions". Senator Boyhan set out some of his understanding of what that means but what we have in there already, which is "in recognition of the circumstances experienced", captures the intent of the scheme as currently designed.
We would need a very clear reason to broaden that. We would also need to receive legal advice on it.
The Minister has set out his reasoning clearly. That is his position and that is all fine. He spoke of recognising experiences. I think we need to say "some" experiences. We have not covered all the experiences. The Minister has listened so often to the victims. This is not comprehensive legislation, as he accepts. There are shortcomings; one cannot capture everything. I understand that.
I have talked all along about parallel processes to this Bill and we can look at those in the future. It is important to send out a message to people listening. There are many people who do not feel this legislation acknowledges and recognises their unique experiences. They are not unique experiences in that while they are unique to some people, many people have had the same experience. It is not a unique, sole experience, it is a unique experience and therefore to suggest that the Bill recognises all the experiences is not correct. It does not recognise all the experiences. We have to accept that.
The Minister has set out his position and has not accepted any amendments from Senators on this Stage. That is a discussion for another day. I hope we can have some meaningful engagement on the next Stage.
I thank the Minister for his time. As I said, I do not doubt his personal commitment to this legislation. He has brought it further on perhaps from where it was a year ago and I want to acknowledge that.
Amendment put and declared lost.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
Next Tuesday.
Report Stage ordered for Tuesday, 6 June 2023.
When is it proposed to sit again?
Tomorrow at 9.30 a.m.
Cuireadh an Seanad ar athló ar 6.23 p.m. go dtí 9.30 a.m., Déardaoin, an 1 Meitheamh 2023.
The Seanad adjourned at 6.23 p.m. until 9.30 a.m. on Thursday, 1 June 2023.