Official Report: Minutes of Evidence

The Chairperson (Ms Bradshaw): I welcome Professor Anne-Marie McAlinden from the School of Law at Queen's University Belfast; and Dr James Gallen, associate professor at the School of Law and Government in Dublin City University. Thank you, both, for coming to the Committee today and for sending the submission in advance. Go ahead and make your opening remarks.

Dr James Gallen (Dublin City University): Thank you very much, ladies and gentlemen and Chairperson, for the invitation to brief you this afternoon. My comments will reflect the joint written submission from Professor McAlinden and me to the Committee, the consultation process and our recent book of 90 stakeholder interviews. My remarks will first focus on some issues with the design of the Bill as a whole and then on redress. Professor McAlinden will address the inquiry and the redress processes as regards acknowledgement and official apologies.

In our view, justice measures such as the Bill are most effective when designed and implemented in an integrated manner that sets clear expectations for and builds trust with survivors. To date, the Bill and other legislation have been uneven in implementing the truth recovery design panel (TRDP) recommendations. The Bill does not meaningfully incorporate the guiding principles. We think that there should be mandatory language to ensure that the independent panel report, if published, is integrated into the inquiry's terms of reference.

A human rights approach has been recommended by the TRDP and by 79% of respondents to the January 2025 consultation. Naturally, an inquiry is not a court of law and does not fully determine legal liabilities, but inquiries can frame and have framed their terms of reference in human rights standards. The ongoing Afghanistan inquiry in England and Wales must determine whether there is credible information relating to serious human rights violations regarding arbitrary and unlawful killings. A similar credible information approach to human rights violations should be employed in the Bill, in addition to the systemic failures approach and the memorandum of understanding with the PSNI.

Clause 2, which is about the Bill's terms of reference, should be consistent with the TRDP report in including reference to the cross-border dimensions of the institutions in question. Immediate political engagement between Ministers and civil servants in both jurisdictions will be necessary to ensure the inquiry's meaningful and timely access to cross-border information.

Our book of responses from stakeholders across the island of Ireland affirms that limited access to records has a fundamental impact on whether survivors can meaningfully engage with inquiry and redress processes. The TRDP report recommended that the TEO establish statutory guidance for historical, institutional and adoption records and a dedicated, permanent, independent repository of such records. Prioritising and sequencing that measure is really important. You may be aware that, in the Hart inquiry, some survivors received disclosure of personal information on the day that they were due to give testimony. That experience cannot be repeated. Survivors should be equipped with their records and empowered by early disclosure of those records from all public and private sources, before they engage with the inquiry and redress.

Many of the TRDP recommendations on redress have been implemented in the Bill, which is welcome. However, we share the independent panel's concern regarding the exclusion of unmarried women and their now adult children in workhouses before 1948. We foresee that that will be a small and elderly cohort, but they are equally deserving of recognition and justice. A commitment to investigate, through the inquiry, a particular cohort of non-recent abuse raises a legitimate expectation on the part of survivors about their equal treatment for the purposes of redress. Redress for unmarried women and girls does not result in an arbitrary difference in treatment for the purposes of section 75 of the Northern Ireland Act 1998. Extensive research affirms that unmarried women were historically subjected to discrimination, exclusion and hardship across a range of institutions and outside of residential care. We see that in the O'Connell and McCormick report of 2021, which affirms that women and girls in workhouses were subject to stigma. Therefore, we respectfully disagree with the approach taken in the equality impact assessment (EIA): that explicitly gendered institutionalisation is required for redress.

We also disagree with the exclusion of posthumous awards to families of individuals who died prior to 2011. That date is arbitrary. There is no principled justification for restriction, and the date comes from a related inquiry process. Our comparative analysis shows that, once a division is made among survivors regarding redress, that creates new hierarchies among survivors that did not exist prior to that exclusion.

Naturally, however, both of those changes — expanding the temporal scope and including survivors from workhouses — will require revisiting the intended monetary figures for redress beyond the existing estimates. Revised figures for all posthumous awards and for including the workhouse cohort and their descendants should be published. The potential contributions of religious organisations, based on remedial responsibility, should be considered.

Finally, our research affirms that limited legal advice for survivors at inquiry or redress processes can impact their experience significantly. Therefore, mandatory provision of legal advice and a ring-fenced budget for that would be welcome. We foresee that access to those supports — legal aid, information and counselling — will be necessary for survivors to engage effectively with the inquiry and redress. Borrowing on the Australian model, a single wrap-around service and protocol for survivors would ease their experience and increase their engagement.

I will hand over to Professor McAlinden.

Professor Anne-Marie McAlinden (Queen's University Belfast): Thank you. Good afternoon, Chairperson, ladies and gentlemen. Thank you for the invitation to brief the Committee on key aspects of the Bill. In my opening remarks, I will make four broad points that speak mostly to the inquiry but also to the redress scheme.

My first point is about "prescribed institutions" and, related to that, the reports. We welcome the capacity in clause 3 to include "other institutions" by regulation. From survivor experiences, obvious examples for future inclusion, should that arise, are births and residencies in hospitals and private maternity homes. We also strongly advocate for a modular approach to the inquiry, with the potential to run parallel inquiry investigations. That would allow for interim reports that are relevant to survivors to be produced in discrete contexts. Basically, as soon as the hearing on that institution had finished, the report would be produced. That could then be subject to a final inquiry report of the thematic findings and overall recommendations.

My second point relates to the composition and appointment of the panel. Related to that is the advisory panel and the participation of victims therein. On the composition of the panel, clause 5 suggests the possibility of a single judge-led panel, with the potential to have a larger inquiry panel. Given the known complexities of addressing non-recent institutional abuses, a larger, interdisciplinary panel is needed. Furthermore, it is vital that survivors are among the people appointed directly to the panel. That has been done successfully in other jurisdictions, like Canada and Australia, without any issues of impartiality or bias. Survivors should also be consulted on the composition of and appointments to the panel as a key part of building their trust and the credibility of the process.

The proposed advisory panel in clause 10 is welcome. It builds on experiences elsewhere, such as the Victims and Survivors Consultative Panel (VSCP), which was part of the independent inquiry into child sexual abuse (IICSA) in England and Wales. The advisory panel is also an important means of incorporating the lived experiences of victims, and it can mitigate to some extent the known harsh and harmful effects of trauma that tend to dominate survivors' experiences of inquiries. However, we suggest that the language in clause 10 should make the panel mandatory — it should say that an advisory panel "shall" be appointed — and that explicit consideration be given to the terms of reference of such an advisory panel.

My third broad point relates to evidence and procedure. Global research evidence suggests that most survivors experience distress or re-traumatisation after participating in an inquiry, which largely stems from the adversarial culture and cross-examination. There are examples of international best practice that adopted a non-adversarial approach, such as the Australian royal commission, but we await empirical evidence to see how that has been experienced by survivors.

The Bill suggests some appetite for the centring of survivors. With that in mind, we make key suggestions to minimise the distress of survivors at inquiries. First, the early disclosure of documents is key. If survivors are to have access to their records, that should happen well in advance of the day of the inquiry hearing. Secondly, restricted cross-examination questioning could be agreed at the outset of the hearing, and trauma-informed intermediaries could be appointed to conduct cross-examination rather than barristers. Thirdly, all legal counsel should be trained in trauma-informed approaches and in dealing with vulnerable witnesses. Fourthly, survivors should be granted core participant status — i.e. they should be granted legal representation — as a protection of their rights and interests.

My fourth and final point is about apology and acknowledgement as part of redress. The Bill talks about redress, but the consultation talks about:

A key part of that is apology. For most survivors, redress is about acknowledgement; it is not about money or compensation. Indeed, in our research, acknowledgement of responsibility is the number-one thing that survivors want from justice processes. A personal apology to accompany financial redress has emerged as a key part of reparations, as it did, for example, in the Australian national redress scheme.

On the basis of a review of international best practice, a meaningful apology contains five essential elements. The elements stem from my previous research, and they formed the structural basis of the first state apology given by the Executive to survivors after the Hart inquiry in March 2022. The five principles are acknowledgement of wrongdoing; acceptance of responsibility; expression of remorse or regret; assurance of non-repetition; and offer of repair or corrective action. In sum, consideration should be given to an official written apology to accompany monetary redress, and other forms of redress should perhaps even be included in the terms of reference for inquiries.

The Chairperson (Ms Bradshaw): Thank you very much for your presentation and your written submission. Just before we opened the meeting, I said to my colleagues that your paper articulated some of my thoughts a lot more clearly than I had them in my head. I really appreciate that. I want to pick up on a few issues, then I will open up to other members and perhaps come back in myself, because I have quite a number of questions.

I will pick up on the issues around the advisory panel. Your paper refers to:

I have a little bit of concern. It is right to have the advisory panel, but there are people who will be traumatised. They may feel that they keep being consulted and that their pound of flesh has been taken for years as they have campaigned. How can we ensure that their lived experience is accessed through the work of the panel, while ensuring that we do not put too much of a burden on those people? Do you have any thoughts on that?

Professor McAlinden: First and foremost, it has to be said that not all victims and survivors are the same. Their journeys have been different. Some are more traumatised than others. Being on the advisory panel has to be voluntary. There needs to be support for the advisors as well. Some of the organisations, such as the Victims and Survivors Service (VSS) and WAVE Trauma Centre, which you have spoken to, can provide support. We can look at examples of what has happened elsewhere. For example, in IICSA in England and Wales, the members who formed the Victims and Survivors Consultative Panel had a range of experiences. They were not survivors who were further behind in their journey; they were experienced survivors who had leadership roles and had provided support in victims' support organisations and advocacy services. The people on the advisory panel would have to be volunteers, highly trained and supported, but we have examples.

The Chairperson (Ms Bradshaw): OK, thank you.

You suggest the inclusion of a subclause and the importance that:

The panel worked for years to take down the testimonies. There has been a flurry of activity in the past few months, and it is great that people have come forward. I am grappling with how we can copper-fasten that work, which has been going on for years, by putting it into the Bill. How will that sit alongside the inquiry's oral evidence? Otherwise, a lot of the material will be just be in paper format. Will you give some thoughts on how the testimonies that the independent panel has gathered can be fed into the inquiry?

Dr Gallen: The panel report will contain a range of elements, and it is important that the public inquiry can have regard to all of that report as well as the underlying evidence. There is a need to consider the thematic and structural components that come out of the independent panel but perhaps to give more legal detail about how it will have regard to the testimony given to the panel. A number of international inquiries have combined formally sworn evidence with unsworn evidence. If the independent panel is of a less formal nature, the underlying documentation and lived experience will go into the unsworn testimony component. Typically, that unsworn testimony can just sit there. It is better practice to place an obligation on the statutory body to say, "That testimony was given in an unsworn context, but it should guide our statutory investigations". That is why we recommend mandatory language whereby one has to have regard to the evidence, albeit that that evidence was gathered in a forum without the procedural safeguards that would be in place under the Inquiries Act 2005 or its equivalent.

The Chairperson (Ms Bradshaw): "Unsworn evidence" is a good phrase.

My final question is about the suggestion on apology. In some of our sessions, we have heard that a lot of the birth mothers are now very elderly and are concerned that, by the time the inquiry ends, they will not be around to access the individually assessed redress. There is the potential for that to also happen with the apology. Will you give some thoughts on the right timing of apology, in order to pre-empt the inquiry but also be cognisant of the demography?

Professor McAlinden: You are absolutely right. Sequencing is a key issue. Do you apologise at the outset now that you know that there are issues to be examined, or do you wait until the end of the inquiry when you know what you are apologising for? It is a key issue, and there is no hard-and-fast, 100% answer on that. Best practice is to apologise early. The state could give an apology, and that could be followed up with individualised apologies, perhaps, as I said, to accompany redress. The practice has usually been that you get the redress letter, which confirms that you are eligible for redress, but there is no other acknowledgement as such; the acknowledgement is implicit. An apology could accompany that letter. Best practice on apologies is the earlier the better, given that the population is elderly. However, that is not to say that there could not also be a more formal state apology and individualised apologies afterwards.

The Chairperson (Ms Bradshaw): OK. Thank you.

Mr Dickson: I very much appreciate your contribution and the work that you have done, which is of great assistance to us as we work our way through the process. Will you tease out the discussion point around the human rights-based approach, particularly the reference to the Afghanistan inquiry in England and Wales? I am surprised that there is no acknowledgement of the credible information that comes out of an inquiry and what is done with it. Will you expand on that and give us some guidance and advice on what we should do to make sure that that is incorporated into the Bill?

Dr Gallen: There is a difference between inquiries. The state can take the view that an inquiry discharges its obligations to investigate for the purposes of the Human Rights Act. This inquiry does not refer to human rights, but we think that it discharges that investigative obligation. What we have heard from survivors for the book and in advocacy is that, in this context, language matters. Framing issues as "abuse" is an important element of acknowledgement, but framing survivors as having human rights takes it a step further. An inquiry cannot do the job of determining whether the state breached an individual's human rights obligations — that is a function that we assign to our courts in a common law jurisdiction — but it can raise the possibility of further investigation or an acknowledgement that there has been a credible level of human rights assessment.

Human rights are assessed through courts, but we also have UN bodies that are non-judicial and make human rights assessments. Therefore, the inquiry can perform that preliminary function. Commissions of investigation at international level do not determine rights and wrongs of human rights violations, but they provide credible information about that. An inquiry at a national level could do that. It could say, "The inquiry can assess the systemic failings, the holistic assessment of these institutions, their governance and so on, but the inquiry will also receive testimony and assess documentation", and ask, "When that is looked at through a human rights standard, is there credible information regarding torture, involuntary confinement, coercive adoption, invasion of privacy and so on?". Framing it as a human rights violation adds a lot of value to survivors, and opens up the possibility, through memoranda of understanding with the PSNI or other bodies, for information to be exchanged in a criminal investigation, where a criminal standard has been reached.

Mr Dickson: That is extremely helpful. It is an area that we will want to further develop and perhaps consider incorporating into the Bill by way of amendment.

My second area of concern is this: while the proposed legislation includes the possibility of adding institutions, would that turn them into second-tier institutions? The proposed legislation has a list of, I think, 11 institutions, and they are the front line, if you like. Anything added to that might be perceived as not being quite the front line. I have a concern that some of the abuses that we have talked about under the human rights aspect will have occurred in lots of other places as well. If we can identify additional places, should we include them in the Bill, as it stands?

Dr Gallen: Yes. I base that on comparative experience. When institutions are not added initially, it creates an additional burden on survivors to advocate again, even if there is a statutory power to add institutions. Often, that has to be done through the lobbying of politicians and parliamentarians. Given the elderly cohort we are speaking about, that seems unfair. If we have information on additional institutions about which we foresee people lobbying, it seems that the responsible thing to do is to add them.

There is another dimension. We looked at the Republic's early 2000s inquiry into child abuse. An inquiry will not investigate every institutional context, but, if a sufficient number of people come forward regarding an additional institution, the inquiry should be enabled to investigate that institution. If you have double figures of survivors coming forward to say that a particular maternity home or private facility was atrocious for x, y and z reasons, it would seem harsh to require them to lobby at a national political level to have it looked at.

Mr Dickson: Finally, there is the aspect of cross-border cooperation in all of this. It has already been flagged to us that children were — I will use the word — trafficked across the border by institutions. How do we tackle that in the Bill?

Dr Gallen: The primary challenge is that there will need to be buy-in from both Civil Services. There will need to be sub-statutory and possibly statutory agreement on data sharing. We are all GDPR-compliant — reportedly — so we need to figure out a way to navigate that across two jurisdictions. A degree of technical work needs to be done to achieve that. I emphasise that, given the energy that is required to achieve that, it has to be led at a high political level. It will take work and money, and it will need to be done in good time so that an inquiry team can say, "Well, we now have access to information from the Republic in good order". The Republic digitised a lot of information after the Commission of Investigation into Mother and Baby Homes investigation there, so the information should be available in a timely manner. However, it would be really upsetting to survivors and a poor use of taxpayers' money to establish an inquiry and then go looking to figure out how to do the cross-border work, particularly if you are trying to stay on time and within a three- or five-year schedule for the inquiry.

Mr Dickson: Thank you.

Ms Ní Chuilín: Thank you, both, for your attendance and briefing. You have covered some of my concerns. What is your opinion on the potential use of public interest immunity certificates as part of the inquiry? My concern is that individuals from some of the religious and statutory bodies that were involved in the scandal will be given the ability to appear behind a screen. While I accept that that is there for a reason — it should certainly be there for anyone who, even at this late stage, is appearing almost as a whistle-blower — I have a real issue with the perpetrators of the alleged abuses potentially being given that luxury.

Professor McAlinden: Thank you, Carál. I agree with you: it is a real problem. In principle, it should not happen, but, in practical terms, it might be the only way to get institutions to engage. I know, for example, that the experience of the Ryan commission and others has been that anonymity of perpetrators in its various guises, through redaction or whatever, was a major issue for survivors. The use of public interest immunity or screens — things that are traditionally used for victims and survivors or vulnerable witnesses — is a real problem. The tension is in trying to get the balance between due process and the fact that it might be necessary — a necessary evil, if you like — to get the institutions to engage. I know from our research and having interviewed a lot of institutional representatives that current institutional leaders who come to inquiries have a real problem — real resentment in some cases — with being asked to stand up and account for what their predecessors did 50 years ago. I absolutely agree with you, but I think that we might need it.

Ms Ní Chuilín: OK. I agree with you on the mandatory language. There is the potential for more institutions to be added to the list, particularly private nursing homes. I have heard reports about one or two more that have not been added yet.

I am really keen to hear about the modular report. You will be aware — I declare an interest — that I had to go in front of the COVID inquiry as a former Minister. The modular approach provides the ability to produce reports and give people, particularly elderly people, who are waiting for updates the findings up to a certain point. We all agree about the posthumous date. Do you see a modular approach as the best way to get a report done and the information out to the victims and survivors and their families?

Professor McAlinden: One of the key recommendations of our research and the book is that a modular approach should be taken for that very reason, Carál: because of the elderly population. Examples of best practice are the Australian royal commission and the independent inquiry in England and Wales. They both used interim, modular reports where the findings relating to particular institutions were released after the hearings on those institutions had concluded. As I said in the briefing and opening remarks, that is then subject to the overarching final report, so you would not be taking anything away from your final inquiry report. The idea is that the findings are released earlier for the elderly survivor population, and you are gathering the learning on particular institutions and the systemic learning for your final report. We very much advocate that.

Ms Ní Chuilín: This is my last question, Chair. That would feed into the thematic parts. If it was modular, you could perhaps do it along themes. My question is about the mandatory language. Given the way that the system works here, we have asked whether we will see the regulations before the legislation passes. I do not think that we will. We should, but I do not think that we will. For me, it is important to have that mandatory language included. If we are to make this as strong as possible, would having more than one person — more than just the chair — ensure that they can stick to the legislation that initiated the inquiry and also try to almost give a steer on what needs to happen? Do you foresee any problems with that?

Professor McAlinden: Most inquiries are led by judges. There are pluses and minuses with that. Many survivors want that because they see that it lends an air of authority to it, but there needs to be more than the legal framework — we are lawyers, so we are criticising ourselves — because of the complexities of the issues surrounding abuses. You need to have a multidisciplinary panel like the independent panel so that you draw on expertise not just in the area of law but in areas relating to trauma, health and all of that.

Dr Gallen: I can add to that. We have seen some inquiries publish their interpretation of their terms of reference early on, and that gives the participants and the general public a sense of how they understand the mandate that they have been given. If you are adopting a modular approach, one further way to expedite the process might be to run parallel sessions. You could have all the investigations of religious order A and religious order B running in tandem. If there is written clarification of the terms of reference, combined with the special measures that Anne-Marie mentioned, such as pre-hearing hearings on questioning and so on, the chair will be playing a much more supervisory role of processes and a larger team can conduct those processes. It is possible that you might get interim reports in double time with that approach. The more that can be done to shape the conduct of the inquiry at the statutory stage to enable those efficiencies, the better, because that will set an expectation for all participants that there is a desire for the inquiry to be expeditious but also fair to all participants.

Ms Ní Chuilín: That is why, at the very top of your evidence document, you made it clear about making sure to get it right, because it is really important that the victims know exactly what to expect and that it will not be adversarial and that barristers can work out who is asking what questions to whom and people feel that there is inclusion. Thank you, both: that has been really helpful.

Ms McLaughlin: Thank you very much. You have answered practically all my questions. We do not want to go over old road. I was going to ask about that modular report and the cross-border aspect. Do you feel that buy-in from the two Civil Services on a cross-border basis will slow down the process, or will it make it more focused and lead to better outcomes?

Dr Gallen: Slowing it down is a foreseeable risk, which is why early pre-statutory planning is essential. As I said, there are, to my mind, three dimensions to it. The first dimension is this: who is leading the process and whose responsibility is it to ensure that the cross-border dimensions are addressed? In our research, we found that there is a variety of mechanisms in both jurisdictions. None has been tasked with that dimension yet. It needs to be given that explicit responsibility at an inquiry level but also at a political level.

The second dimension is the technical side and that, when it comes to data sharing and data protection, ensuring that the personal information of relevant parties is protected. Obviously, both jurisdictions are doing that, but this is a new context, and, if it is going to an inquiry, the inquiry must have those powers of compulsion that will give comfort to all parties involved. Legally, there is no impediment, but it will take time.

The third dimension is the cost. It is an additional cost that needs to be budgeted for. How will that be distributed across the jurisdictions? I think that there is recognition that this is a missing piece of the jigsaw. From speaking to high-level stakeholders in the Republic, I know that there is a recognition that this is an all-island issue and there is a desire to make sure that as many cohorts of survivors as possible are meaningfully engaged in justice processes. There will not be a lack of political will, but I imagine that there are some major details to be ironed out.

Ms McLaughlin: In your first response, you mentioned that it needs to be politically led, and that is important. In the past, we have seen inquiries that do not have that buy-in lead to more trauma and hurt, and it is important to get the terms right at the very beginning of the process.

On the posthumous date, you rightly said that there is no principled justification for restriction based on that date. What does it say to the survivors if the Department continues to proceed with that date?

Dr Gallen: Survivors across the island can be jaded by engagement with government bodies and have had to spend a huge amount of time and energy getting to the point where the issue is on the table at all. For that to be carved out in a manner that has not been there before destroys a lot of the goodwill and trust that people have tried to build up over many decades. From what I saw in the explanatory memorandum, the idea of a cut-off date is predicated on the idea that their expectations changed with the announcement of the Hart inquiry, and that is not meaningful. The practice on the island is that every individual cohort has had to advocate for its interests and efforts, and it creates an artificially receptive version of the past. To say that, if you were alive on 28 September, you suddenly reorganised your behaviour on the basis of what came out of the Executive is not true. People who have lived with long-term processes of shame and stigma have had a limited ability to engage with the legal system or to see, particularly in this instance, what happened as a wrong, because, if it was part of the state's welfare provision, it is a qualitatively worse position than that of someone who was subjected to a non-recent instance of child sexual abuse, which was a criminal offence at the time. We are asking people to challenge not merely what happened to them but the idea that it was legal or part of the welfare provision. To say that something fundamentally changed in 2011 is completely misguided and to communicate that message to people would cause fresh distress and hurt in 2025.

Professor McAlinden: The date that we advocated for in our response to the public consultation was 15 November 2021, which was the date on which the Executive accepted the recommendations of the truth recovery design panel. That seems a more reasonable date than, as James said, the 2011 date, which is tied to the Hart inquiry.

The Chairperson (Ms Bradshaw): I will move on, if that is OK. I have four more members to come in. Timothy, please.

Mr Gaston: Thanks, Chair. Thank you very much for coming this afternoon. I will pick up on clause 3, regarding "prescribed organisations". At the start of the meeting, I read into the record a response in the tabled pack from WAVE, which believes that the exclusion of private nursing homes is of major concern. Regarding clause 3, I note that you:

You mention:

That is a common theme that is coming through: the list that we have is short. It does not include everybody. We have put it to a number of groups here, inviting them to come forward if they think that an institution should be included. You have done extensive work on that. How many institutions do we need to look at here? We have 11 or 12 on the list. Where does it stop? Where do we get to when we believe that we have enough institutions? We have the right institutions. It is not the number; it is about the right institutions that the clause applies to.

Professor McAlinden: We did not probe the numbers on that, because our research was qualitative rather than quantitative. It involved asking stakeholders about their experiences of justice processes, what they wanted and how we could do things differently. From looking at it, my sense is that — I think that James has a similar view because we talked about it — the numbers are likely to be small. I do not have them to hand, but we are talking about a very elderly population in some of those other institutions. The numbers are likely to be small.

Dr Gallen: The other element is that one would perhaps expect a different degree of record-keeping in private institutions compared with state-operated institutions. You can see that when you look comparatively. When you start looking at smaller institutional contexts, the records will not be extant for the full period of examination. As a result, a lot of inquiry reports might have anecdotal or small references to private contexts, and the predominant focus is on the state institutions.

Opening up the categories is really important, because the evidence will enable the inquiry to proceed. As I said, if the number of survivors who come forward about a particular institution or category of institution gets into dozens or double figures, that seems to warrant inclusion. However, our view is that it would be reasonable to expect them to be the minority rather than the majority. One would anticipate that the large institutions, particularly the workhouses and maternity institutions, would be the lion's share of both the testimonies that are given and the records that will be examined.

Mr Gaston: You said that the number is small. Do you have a list of homes that, you think, should be included? Can you share that with us? I am not asking you to do that in public session, but can you feed that into our deliberations?

Dr Gallen: It is not something that we have to hand.

Professor McAlinden: No.

Dr Gallen: Other stakeholders would have access to some incomplete lists of private institutions. I am sure that you have met victims, survivors and so on. No, we do not have that to hand. You might have spoken to other groups directly about that.

Mr Gaston: I turn to the modular approach regarding parallel inquiry investigations. I noticed that you mentioned the Good Shepherd institutions. Adopt NI provided a paper, which is in our tabled packs, on a case study. It related to the recovery of information to do with a birth mother. Adopt NI struggled to get any information, but the records that it was able to get confirmed that the birth mother was believed to have spent 57 years in the care of a Good Shepherd institution after the client's birth. Is that a common theme? You mentioned the Good Shepherd institutions; is that a common theme in that institution?

Dr Gallen: There are instances of that in the Republic.

Professor McAlinden: Yes.

Dr Gallen: There are instances of women in the context of Magdalene laundries who remained in the care of organisations that originated as organisations of a religious order of female nuns. It is exceptional, but it is not unheard of on the island or comparatively when it comes to some of the institutions.

Mr Gaston: In all those cases, does the evidence point to that person being kept against their will?

Professor McAlinden: We would have to look into that in order to give you a definitive answer, but my experience and my read of it is that it is part of the institutionalisation process. While the individual circumstances that surrounded a person's committal have long since passed, they have become acclimatised to the institution. An 80-year-old who has been there since they were 14 or 15 probably could probably not have lived in the outside world. Working for the nuns became their life.

Dr Gallen: There are instances where there are questions around mental capacity and where wardship of the court or other forms of legal support for individuals passed to an order. That has proved to be quite difficult in enabling such individuals to access redress, because they are not legally able to instruct counsel to engage for them in that redress process. That complicates their access, which seems doubly punitive in that context. It was only after the Republic ratified and incorporated the Convention on the Rights of Persons with Disabilities that that position changed. That cohort is very small but very vulnerable and precarious. We are aware of it, and due regard should be had to ensuring that such people can have meaningful engagement with the inquiry and redress processes.

The Chairperson (Ms Bradshaw): Timothy, I will move on, because three more people want to come in.

Mrs Cameron: Thank you for giving your time to Committee. It is appreciated.

On the back of the question that you have just answered, survivor supports and legal advice are really important, especially given the scenario that we have just looked at. What wrap-around services should be guaranteed for survivors throughout the inquiry and redress process? How can access to trauma-informed legal advice be ensured as well? What role should intermediaries play in supporting survivor testimony?

Dr Gallen: If you look at the Australian Royal Commission into Institutional Responses to Child Sexual Abuse, you will see that it issued a practice direction early in the inquiry. It provided a map on possible engagement with the inquiry for participants and survivors. You called up. It could be the case that you needed access to records; wanted counselling; or needed access to legal advice on whether or how to proceed. It looked at recent and non-recent abuse, and it could be that there were active criminal concerns regarding child abuse. There was a single number that directed you to the range of state services. Survivors on this island attest to the fact that they are passed from Harry to Jack. When the Commission of Investigation into Mother and Baby Homes was operating, people who were affected by the issues in Tuam were told, "We can't do anything about this. Go to the guards", and the guards passed them to the Department of Justice, which passed them back to the commission and so on. We want to avoid any ambiguity about the appropriate support services.

Access to legal aid, information and counselling is essential. Someone's testimony will be qualitatively different if they have access to records before making their testimony. Someone's ability to receive redress or interest in receiving redress will be qualitatively different if they have access to what is provided in the records about them or their family member. A practice protocol is essential for the trauma-informed piece. If the inquiry commissions a particular legal firm or set of firms to provide legal support, it is essential that there is a protocol and that training is provided to ensure that that is done in an appropriate manner. Again, we have empirical evidence. Lazy or limited legal advice on accessing redress left people short. A lawyer simply phoning in what an individual was eligible for under the Hart scheme left the participants short. It makes a meaningful difference, and, again, it is foreseeably avoided.

Professor McAlinden: One of the practical things that survivors have told us as part of the research is that wrap-around services are all of the supports that we have outlined, not only those around the inquiry and redress. They are broader. For example, several survivors said to us, "If I give my evidence to the inquiry, what support is available for me at 3.00 am when I wake up in a cold sweat after a nightmare? Who do I ring at that time of night?". While great work has been done since 2022 with the Victims and Survivors Service, that will have to be scaled up as we go into redress and inquiry. There will be more people. We need to think about the more practical supports rather than just those around the inquiry and redress processes, because it is broader than those.

Mrs Cameron: Thank you. That is useful.

I go back to the power to compel the release of information. Is the current provision strong enough to ensure access to institutional records? What safeguards can be put in place to ensure that survivors and their families can access public and private sources of their records?

Dr Gallen: The 2022 Act showed great willingness and foresight from the Assembly to ensure that private records were maintained for the process. It has to be commended for that. It is only the start of the process. As I mentioned in the opening remarks, a commitment to a one-stop shop for records has been made. That needs to be expedited alongside this. We heard that the power to compel records from religious stakeholders provided a legal comfort, because they were often in a position where they said, "We now have data protection obligations to the people in our records, as we see fit, and we are getting restrictive advice on what we can share with people", and so on. However, being subject to a power of compulsion enabled them to have an attitude of, "That's that. It's a statutory power. We have to comply, so we will. We will give over what records we see fit".

The frustration comes when the inquiry receives records for which the survivors have been looking for years, and the inquiry team receives them ahead of the queue of survivors. The sequencing matters greatly. If that statutory repository of institutional records is created and if there is guidance for statutory and non-statutory agencies on providing access to records for survivors ahead of the inquiry, it will get a lot of buy-in, because you will get more survivors coming to the inquiry armed with what has been said about them or their family member in a way that has not happened in the past. We had instances in the Republic when people said, "Can I have that file you are reading from?", and they were refused. That should not happen. These are all foreseeable problems. If we have enough time to sequence how we address them, we can mitigate a lot of them. We have not come across an inquiry — subject to what they find in Australia — where people have gone away saying, "Jesus, that was brilliant. It gave us everything we wanted". Oftentimes, we will have something that gets over the line and leads to a final outcome but distresses people along the way. That has to be avoided.

The Chairperson (Ms Bradshaw): Pam, I will move on, because two more members want to ask questions.

Ms Murphy: I go back to the remarks about entitlement to payment and the exclusion of unmarried women and their children pre 1948. Could we write to TEO to see whether anything was flagged in its equality screening?

To carry on Pam's point about the compellability element when it comes to religious orders having to contribute financially, are there any comparative measures in other jurisdictions, such as Canada or Australia?

The Chairperson (Ms Bradshaw): Anne-Marie, do you want to start this time?

Professor McAlinden: Redress is James's bag.

The Chairperson (Ms Bradshaw): I am just conscious of trying to even it up.

Dr Gallen: The Australians changed civil procedure prior to establishing their national redress scheme, in which they wanted to have contributions from private actors. They made it easier to sue religious organisations, which had previously been difficult because of the charitable and weird status of religious organisations. That created an incentive for the organisations to enter into the redress scheme because they would receive immunity from civil action. We did the same in the Republic in the early 2000s. We changed the statute of limitations regime regarding sexual abuse only at a time when the religious orders received a lot of litigation, and they came into the state-run redress scheme. There is no example where private organisations just say, "Yes, we are a mark". The biggest payouts in Canada — up to billions of dollars — are a result of class action. It is a result of litigation and that litigation being settled. Whether it is actual litigation or creating conditions for a credible threat of litigation, that has to be an option on the menu.

Ms Murphy: We maybe need to drill down into that a wee bit more to see what we may have at our disposal. That is it from me. Thank you.

Mr Brett: I apologise for being late to your evidence session. My previous Committee meeting overran.

I will build on Áine's point about compellability or creating the circumstances that actively encourage religious orders and institutions. Is it your expert testimony that the Bill or other legal avenues should be explored when it comes to how we make the circumstances as right as possible to encourage or force those institutions to come forward?

Professor McAlinden: Ideally, they would do it voluntarily.

Mr Brett: Your research suggests that they never do.

Professor McAlinden: It is not that they never do. Some of them are very open and willing. We generally found good levels of engagement from the religious orders, but, to go back to what I said earlier, some of them are resentful about having to come to an inquiry years later to account for what their predecessors did. That is regrettable. The Bill is strong on that, and it needs to be there as a power to force them to either, under clause 16, give evidence or, under clause 35, provide documents.

Mr Brett: I will move on to the financial redress. Clauses 16 and 35 relate to the evidence. Do you have any advice for us on the circumstances that were created in Australia — you have referenced parts in the Republic of Ireland — and should we look at pursuing something on that front?

Dr Gallen: Yes, that should be explored, especially with the possibility of a second redress scheme. Anne-Marie talked about the capacity for redress to form part of acknowledgment, and our research has tried to broaden the sense of what that means, because, obviously, the resistance from private organisations comes from the sense that they believe that they were doing part of the state's job or were doing what was right at the time. We are trying to encourage participants to consider that, in addition to that question, they may also bear — we think that they do — a remedial responsibility. They might not have thought that they were doing the wrong thing at the time, but people have been hurt and have gone through a lifetime of difficult trauma or unanswered questions, and, unfortunately, as the leader of a congregation, it is on your head to figure out what to do. It is perhaps in that context that we see greater interest among those organisations in making voluntary contributions, because it frames their responsibility differently. It is not necessarily, "You are the only bad guy", or, "You breached the law", but, rather, that you recognise the suffering and the potential to address that through your institutional responsibility. In recent years, voluntary schemes from some of the orders in the Republic have been closer to that model.

Professor McAlinden: Absolutely. A key thing that I would emphasise is that our understanding of responsibility and accountability in the book is much broader than legal responsibility or liability, which is what the religious orders fear. There are the relational aspects of it — showing up as a human being rather than as an institutional leader — and ideological responsibility for the commitment that survivors also want for non-recurrence and doing things differently.

Mr Brett: The posthumous date in your response to the consultation was November 2021. Do you have any idea of how many individuals that would bring into the scope of the process?

Professor McAlinden: I do not have those numbers to hand.

Mr Brett: If you do not mind, could you share them with the Committee, if you get a chance?

Professor McAlinden: Yes. I do not know whether I will be able to, but I will certainly try.

Mr Brett: No problem. Thank you.

Mr Gaston: I have heard a lot of talk about access to records. A response from the trust today has triggered this thought in my head. The South Eastern Health and Social Care Trust said that it digitised its records because there was a vast amount of them and they were in poor condition. Do we have any idea of the state of some of the organisations' records? I am being upfront here and giving the trust credit for digitising its records and being proactive on that, but it has highlighted a potential flaw here: if a trust has kept records and they have got into poor condition, obviously because they are years old, when people go looking for the records from religious institutions, I fear that they will not be what they need to be to get them over the line. Do you have any idea of the condition of records?

Professor McAlinden: There are various experiences there. Some survivors will tell you that, when they went to the organisation, they were told that there were no records or, "We do not know where your son has gone", only to find out that, actually, their son was living 20 miles down the road. We have also had experience of heavily redacted records, as James mentioned. There are other instances where records were destroyed by fire or institutions — say, convents or priories — had moved and the records were incomplete because they were taken with them. You are right: there is a problem with religious institutions. There are multiple cases of anecdotal evidence of the varying state of evidence and records in different institutions.

Mr Gaston: Can we do anything through the Bill to quicken the process so that people can get their records or see whether there are records there, or is it a case of having to wait until they approach the institution or trust?

Professor McAlinden: What would you have thought? Cooperation?

Dr Gallen: Yes. The big picture with regard to records is that many are obviously still held by private institutions. The view in the Republic in developing a central repository is that those records are part of our national history and should all be public records. Under what conditions would the private organisations contribute copies or originals to National Archives or the equivalent? Again, it seems suboptimal that you would ask a survivor to piece together the life of a family member by accessing multiple public and private sources or spaces. Again, best practice is in Australia with the Find and Connect service that provides that as an advocacy function to survivors. You would contact the service, which would then contact all the different bits to it. There are models of expediting the process. However, part of it is cost, how much archival work the state is prepared to do and how much archival work the organisations have done.

The Chairperson (Ms Bradshaw): OK. I am conscious that, next week, the truth recovery independent panel is coming to the Committee. It has been doing a lot of work in that space. Maybe we can move it on.

Very quickly, Deputy Chairman.

Mr Dickson: I have two quick points. You made a comment about fires. Recently, I heard an academic say that he had never seen as many fires in religious institutions. Other than that, has your research thrown up any concerns about what might be described as "informal arrangements" inside families and with neighbours about confinements and adoptions? By that I mean informal arrangements that are not regulated in any shape or form.

Professor McAlinden: Do you mean when a family committed their unmarried daughter to an institution?

Mr Dickson: I mean when an unmarried daughter was committed to a family friend, neighbour or somebody who could afford to take her in and then, perhaps, use that child in service in the household or something like that.

Professor McAlinden: I have heard of that in other contexts, but it is not something that has come out through our research.

Dr Gallen: No.

The Chairperson (Ms Bradshaw): That might be way beyond the scope of the Bill.

OK. I will close it there. We have two more sessions this afternoon. Thank you so much. Again, your report was excellent. Thanks.