Official Report: Minutes of Evidence

The Chairperson (Ms Bradshaw): I welcome Peter O'Brien, the deputy chief executive of the Law Society of Northern Ireland; Claire McKeegan, partner and head of the litigation, healthcare and abuse department at Phoenix Law; and Gary Duffy, an associate solicitor at KRW Law. I ask the members of the panel to keep their remarks brief so that we can get on to questions as soon as possible.

Mr Peter O'Brien (Law Society of Northern Ireland): Good afternoon, Chair and Committee members. The Law Society of Northern Ireland welcomes the opportunity to appear before the Committee to give evidence on the Inquiry (Mother and Baby Institutions, Magdalene Laundries and Workhouses) and Redress Scheme Bill. As the Committee is aware, we have submitted a detailed written paper that sets out our analysis of and recommendations on a number of issues that arise and also looks at the central role of solicitors throughout Part 1 and Part 2 of the Bill, which cover the public inquiry and the redress scheme.

As you noted, Chair, I am joined by Claire McKeegan from Phoenix Law and Gary Duffy from KRW Law, both of whom have much more experience in this field than I have. They are on the ground, and they have recent experience of advising victims and survivors. In their opening remarks, Claire and Gary will highlight, from their perspective as legal representatives and that of their clients, some concerns that they have with the Bill as drafted and its practical outworkings.

In no particular order, Claire will focus on a number of issues, including the proposed terms of reference, posthumous claims, the level of payment, cross-border issues, access to records and core participant status. Gary will cover issues that include the proposed level of compensation, the core role of legal representatives throughout the process, the role of the advisory panel, the proposed terms of reference, the need for greater involvement of victims and survivors, and the appeal period.

In our submission and in today's discussion, we hope to assist the Committee in considering how the legislation can best deliver an inquiry and a redress scheme that command confidence, meet the needs of victims and survivors and provide wrap-around assistance and support. I propose that Claire and Gary make introductory remarks, setting out their issues, so that we can get those out of the way. We will then be happy to open up the discussion, because there will be some crossover between the points that each will make. If you are content, Chair, it may be best if the Committee's questions come after they have both made their presentations.

The Chairperson (Ms Bradshaw): I am content, but I note that we will all have read the submissions. I therefore do not think that they need to go into them in great detail. I ask them instead to pick out some of the most salient points. That would be better, thus allowing us to get into the substance of our scrutiny.

Mr O'Brien: I am happy to proceed on that basis, Chair.

Ms Claire McKeegan (Phoenix Law): Thank you, Chair and Committee members, for the opportunity to have us here today to address you on this important Bill. In your work, you will have already heard from our survivor client groups: Birth Mothers and their Children for Justice; Birth Mothers and their Children Together; and Truth Recovery NI. We have been working with survivors of institutional abuse in Northern Ireland since 2009, when they first bravely spoke out about the wrongs that were perpetrated against them in state- and Church-run institutions.

When the historical institutional abuse (HIA) inquiry was established, those survivors were left behind, because they fell outside its terms of reference. Our clients feel very strongly that there should be no repeat of such mistakes in the legislation that you are considering.

We represent women and adoptees from Catholic and Protestant backgrounds and those without a faith. The issue touches one in five families in Northern Ireland, so many of us here today will have had a relative who was in one of those institutions. We represent over 200 survivors who were admitted to mother-and-baby homes across Northern Ireland.

The criminal acts that were perpetrated in mother-and-baby homes are recognised in international human rights reports from the UN Committee against Torture (CAT) as serious and grievous human rights violations. The crimes were committed in broad daylight on women and girls who were at their most vulnerable. They were denied the most basic antenatal advice and care, and they describe social workers, their families and the Church giving them no alternative to entering a mother-and-baby home.

Many of the babies were adopted and transferred out of Northern Ireland into the Republic and onwards. The level of infant death, in the institutions and beyond, was alarming. Mortality rates spiked to 50%. Mothers describe being verbally insulted and physically assaulted. In some cases, women had become pregnant as a result of rape, statutory rape or incest, but those crimes were not investigated. Women were not informed of their options for having those crimes investigated or for caring for their babies with assistance from society and the state, nor were they advised of what happened to their babies, whether they lived or died.

Many of the women whom we represent have been diagnosed with serious mental health conditions as a result of the trauma that they endured. The families put their faith in the truth recovery design panel and its findings, which echo what they want and need from the process. They are disappointed that the Bill does not reflect in full the panel's findings and recommendations, particularly on records and cross-border issues.

Our clients have engaged fully for many years, giving their time and effort to coordinating responses to consultations. With that in mind, we analysed the legislation's ability to deliver and facilitate a full and robust investigation that includes survivors' voices at every turn by keeping them at the heart of decisions, by adopting the guiding principles that the truth recovery design panel set out and by being appropriately capable of effectively compensating victims and survivors in a manner that is commensurate with the crimes and harms inflicted on them. Sadly, many of our clients have died while waiting for justice. At long last, survivors must be given the access to records that has been denied them for decades.

I will talk about the clauses that our clients take issue with, but I will do so in response to your questions. I will hand over to Gary.

The Chairperson (Ms Bradshaw): Sorry. Claire, as a Committee, we want to hear more about the clauses. Please pick out the points on the clauses that we particularly need to have read into the record. That would probably be useful.

Ms McKeegan: OK. The time limits are an obvious issue that you will have heard about. I know that the groups raised that with the Committee. The cut-off date for posthumous claims should not be 2011, as per the Bill. Those who died before then are cut out. We learned from the HIA inquiry that it is a futile exercise to cut out individuals and then have to redesign the process, thus delaying it. That that issue has been passed on to this legislation has caused huge hurt across the survivor groups. They are united on that. It is interpreted by them as being cruel, arbitrary and a cost-cutting measure. It will be subject to legal challenge. With the HIA inquiry, a time limit was set, and it was challenged by way of judicial review. If that issue can therefore be resolved now, it will avoid further cost and further delay for the survivors. Any legal challenge will delay the inquiry and their getting redress.

Panel members is another issue that comes up. Having a chair from a judicial background is the path that has been chosen. In many inquiries, and because this will be a body of statute, a judge sitting alone is the preferred route, but our clients would like the judge to be assisted by a panel of multidisciplinary experts. Our clients are abuse survivors who carry trauma, and any serious legal process, which this will be, will be daunting and complex for them. The panel should therefore be led by a multidisciplinary team (MDT) that is cognisant of their complex needs. For example, there should be an expert in trauma and health on it.

The truth recovery design panel identified adoption-related institutions to include baby homes, private nursing homes and other institutions than those mentioned in the list. We are of the view that all potential pathways should be included. An extensive list should be annexed to the Bill. To supplement that, the chair and panel should be given the flexibility that, if an affected person from another institution comes forward, they should have discretion to extend the terms of reference to ensure that no one is left out.

We must be cognisant of the fact that, with the delay and the time that it has taken, a whole body of survivors may be too ill to contribute. With the shame that they have had to carry for all these years, they may feel that they cannot come forward. The small group of people who will come forward should therefore be supported in the best way possible and should not face any barriers to coming forward to assist the process.

Compensation is an issue that all the survivors raised in their consultation responses. The first issue is that the truth recovery design panel recommended that compensation in the form of human rights redress be provided urgently. That recommendation was made four years ago, so the delay that there has been to date reinforces the need for urgent action now. We are of the view that the making of the standardised payment (SP) and individually assessed payments (IAPs) should run in parallel with the inquiry, not just the standardised payment. There is no benefit to survivors from having to apply twice. There is no benefit in administering a scheme twice. That would absolutely add to the scheme's cost.

Given the age of the survivors, any further delay in progressing to making individually assessed payments will result in those who are entitled to significant amounts of money as a result of state failings and Church failings having passed away without having received the benefit of the redress owed to them by the state, and by society as a whole.

Fifty-four per cent of those who responded to the public consultation disagreed with the £10,000 standardised payment. That was lifted from the HIA redress scheme and is long out of date. Those recommendations were made in 2017. When looking at harm done, the sum must recognise that those women were abused and had their children taken away from them. A minor assault claim would attract a much higher level of damages.

The deceased person cut-off date is another issue. The legislation stipulates that those who can apply on behalf of a deceased person is narrowed to being a partner or child of the deceased.

In circumstances in which there have been adoptions and in which families have been, as they will say, torn apart by the treatment endured, doing that therefore leaves a very narrow line of eligibility as to be unsuitable. As a result of the institutions, many of the survivors saw their families fractured, and they have suffered as a result of that. To avoid unfairness, we consider that there should be scope for an application to be made for a primary beneficiary in a deceased person's will, or where someone can demonstrate on the balance of probability that it is appropriate for them to make a claim. That issue came to light in the HIA inquiry also and was the subject of concern and dismay.

In order to take a human rights-based approach, with survivors included from the outset and throughout, our clients are of the view that they should be included even in the drafting of the terms of reference. They should not be presented with a fait accompli. That begins with core participant status at the very outset to ensure that survivors can shape the process for which they have waited so long.

Our clients desire and deserve to be given core participant status to allow them to prepare for and participate fully in this daunting legal process. It will be very distressing and re-traumatising for them to come forward and share their experiences to allow society to learn from what they endured. For them to be assisted, it is crucial that core participant status entitle them to be engaged and represented. The benefits of core participant status go beyond that, however. It includes an ability to receive inquiry material. As you know, for a long time, right from the outset, the blockage to getting their family history notes has been number one on the survivors' list of asks and needs. Getting that material to them expeditiously and providing them with assistance to go through it with their desired legal representative is critical to their participation in hearings. Through having core participant status, they can ask questions of the witnesses, make an opening and closing submission, be actively involved and have greater visibility of the inquiry's work.

Finally, another issue that comes up with the groups that we represent is that of getting the institutions to contribute. Our clients would prefer there to be the inclusion of a legal mechanism to compel, not to ask, the institutions and other agencies to contribute. There is a view that the scheme will, at least in part, indemnify against liability those organisations that committed great wrongs. They should contribute to any scheme. The HIA inquiry recommended that the Government could have recourse to alternative dispute resolution should there be an impasse. We are not aware of that having happened. It might have happened in the background, but that is one way of holding the institutions to account. We understand that some of the largest, to date, institutions have yet to pay, and that is a matter of concern for our clients.

Thank you very much. I can assist further, but that is what I had on my agenda to speak about.

The Chairperson (Ms Bradshaw): Thank you. Peter do you want to speak next, or will it be Gary?

Mr O'Brien: Gary will speak at this stage.

Mr Gary Duffy (KRW Law): I will try to avoid going over ground that Claire has already covered. I thank the Committee for the opportunity to address you today. We represent a wide range of clients, including mothers, children, families broken up by an enforced adoption and the families of victims who have passed away. For our clients, this is a moment of profound significance, as the inquiry represents the first real opportunity for them to have their voices heard and experiences acknowledged. Many had hoped that they would be included in the HIA inquiry and were devastated when they were excluded. They have since had to wait for over a decade.

It is now incumbent on the Assembly to ensure that there is real momentum in establishing a new inquiry and a redress scheme and to ensure that the process is victim-centred and caters to their needs. The best way in which to ensure that the inquiry is fit for purpose is to ensure that there is a central role for victims in it from the outset. There should be a statutory obligation to consult with victims on the terms of reference and to consult prior to any subsequent amendments to them. That relates to clause 2. The terms of reference will be vital for setting the inquiry's parameters, and victim input to them would ensure that the inquiry can meet their needs. Importantly, it would also lay down a marker by ensuring that victims will be heard.

There should be an obligation to establish the advisory panel immediately and for it to remain active throughout the inquiry. It must be empowered to speak for victims and allowed regular engagement with the inquiry chair and other key figures. The panel could be a key vehicle for victim engagement, ensuring an established voice within the inquiry to raise concerns effectively and to provide oversight and accountability. At the moment, clause 10 gives the power only to set up an advisory panel. Doing so is not an obligation.

Victims require independent legal representation at the inquiry. The institutions that ran those homes will undoubtedly be legally represented, and there should be an equality of arms between those who ran institutions and victims. Having legal representation can also properly prepare victims, including through preparing statements of experience, gathering potentially relevant documentation, preparing victims to give evidence, advising them on directions made by the inquiry, assessing material provided and acting as a conduit between victims and the inquiry to ensure that specific needs or adjustments are catered for.

We can be of practical benefit to the inquiry by helping victims to navigate and engage effectively with it. We can ensure that they feel comfortable providing evidence and assure them that their rights are protected. That will benefit victims and the inquiry. There is an important role for legal representation to play in assisting victims to apply for redress, including in preparing applications; accessing relevant records to establish residency, if required; completing appeals; and advising on the legal implications of any award.

I reiterate that my clients feel much the same as Claire described about the level of compensation for a standardised payment. That figure came out of the HIA inquiry and its redress scheme, which was now seven or eight years ago. They also take issue with the cut-off date for posthumous claims. To them, it feels unjust and unfair and, in essence, creates a hierarchy of victims, depending on when someone passed away. There is a failure in the redress scheme, in that it does not reflect the institutions that will be investigated by the inquiry. It leaves out workhouses and the like. That creates a disparity between victims, with some receiving redress and others not.

Finally, I echo what Claire said, which is that, at the conclusion of the inquiry, and based on any findings that are made, institutions found to be at fault must contribute financially to the cost of the redress scheme. That is a cornerstone of restorative justice and ensures that any institution found to be at fault is held accountable. That accountability is something about which our clients feel strongly. A statutory obligation should therefore be placed on the Executive to attempt to recover funds at the end of the process.

Hopefully, I can answer questions on anything that members are not sure about.

The Chairperson (Ms Bradshaw): Thank you. Go ahead, Peter.

Mr O'Brien: I am happy, Chair, for the conversation to be opened up at this stage. As I indicated at the start, Claire and Gary are on the ground, whilst I am in the ivory tower of the Law Society and not directly in contact with victims and survivors. They have the experience. The points that the Law Society makes have been covered by them, and I appreciate that there is a desire to keep the momentum going in the conversation.

The Chairperson (Ms Bradshaw): OK. Thank you again for your submissions. They were very helpful to us in preparing for today's session.

I think that it was the Law Society itself that indicated that there should be a definition in the Bill of "systemic failings". It indicated that, in the historical institutional abuse inquiry, there was a definition, although, obviously, it was slightly different. How do we get "systemic failings" defined in a way in which victims and survivors, including birth mothers, will find acceptable at this stage of the process?

Mr O'Brien: To some extent, Chair, that will depend on whether it becomes an obligation to consult those victims and survivors and whether, in the arrangements that emanate from such an obligation, that is teased out or elaborated on in the context of those discussions. As I say, we feel that it might assist the process if some clarification could be given on what "systemic failings" were.

The Chairperson (Ms Bradshaw): That is fair enough. I think that all of you are in agreement on the posthumous date for claims and the arbitrary way in which the date in the Bill was arrived at. You also mostly covered the issue of those mothers who gave birth in the infirmaries in workhouses, for example, and stated that they should be included. Should we try to amend the posthumous date and take it right back to 1922, even though we know that those people may not be alive, because it will allow for full acknowledgement of what all the women and children went through?

Mr Duffy: From my point of view, it should go back to 1922, mainly because the abuse, stigma or ostracism that someone suffered in 1930 may have been just as bad and just as impactful as what was experienced by someone in 1980 or 1990. If that person passed away when they were 30 rather than when they were 90, their family should not be excluded from the acknowledgement that they would receive through the redress scheme.

Ms McKeegan: I certainly agree about taking it right back to 1922, although there may not be very many people who will be able to participate. As I said, it is our clients' view that there is already a narrow group of people who are willing and able to engage. To get the broadest level of evidence and contribution from those affected, the inquiry's time period should not be limited. I agree that it should go right back. Indeed, some of the most serious infant mortality took place between the 1920s and 1950s, as per the Queen's University Belfast report, so it would be disappointing and a failing if sections of those periods were closed off and if the chair and panel were not able to hear that important evidence, if it became available.

The Chairperson (Ms Bradshaw): I was talking mostly about the redress scheme. Again, the numbers would be tiny, but I think that people would feel that their deceased relatives were included and acknowledged.

Mr Duffy: It is largely about the principle of the matter. It may be tiny, but for the people who could avail themselves of it, it seems manifestly unfair to say, "We are arbitrarily cutting you off, even though what happened to your mother", for instance, "would have attracted compensation if she was still alive".

The Chairperson (Ms Bradshaw): OK. This is the last one from me. Phoenix Law's submission refers to the way in which the £2,000 per eligible relevant person is prescribed. There is some concern that that excludes some people or that some people may not even know to apply, and that that might result in £2,000 per mother. Will you speak to how you think posthumous claims should be set up to ensure that the process is fair and that it does not possibly drag on over several years, with different family members coming forward at different times?

Ms McKeegan: First, the majority of the families whom we represent who lodged consultation responses said that the £10,000 standardised payment should be at least doubled. If you look at some of the less serious claims that come before the district judges, you will see damage levels of between £3,000 and £15,000. It really —.

The Chairperson (Ms Bradshaw): Sorry, Claire. This is for the £2,000 posthumous claims as opposed to the £10,000 standardised payment.

Ms McKeegan: Yes. Your question is about how it should be.

The Chairperson (Ms Bradshaw): Yes.

Ms McKeegan: We think that they should be fully entitled to the entire amount.

The Chairperson (Ms Bradshaw): OK. How could that be split across a family that is not in contact? I have grappled with it, and I am not trying to trip you up. Is there a better way to propose this where there are multiple applicants for a posthumous claim from the same mother?

Mr O'Brien: There is a point about scope, which Gary and Claire both agreed was a cross-jurisdictional issue when we had conversations to prepare for today. I understand that there are particular difficulties where children have been brought across the border. Gary might want to say something more about that.

Mr Duffy: Yes. The issue has already been flagged up to the Committee about Fahan in Donegal. There is obviously an issue of people outside the jurisdiction being aware of the redress scheme, especially if they were sent away or adopted. We have clients in that precise position. How do they engage with the scheme? If multiple family members want to avail themselves of the posthumous claim, it was a failing of the HIA redress scheme that only one person could apply on behalf of the deceased, and the obligation was on them, as the administrator of the estate, to hand out the money. It is particularly complicated in this situation where somebody could have had a child when they were very young who was forcibly adopted, and they then have a family subsequently. A system where individuals apply for their portion of the posthumous claim would avoid people potentially finding out that they have half-siblings or something like that when they were not expecting it.

The Chairperson (Ms Bradshaw): I do not think that there is a perfect solution. Claire, do you have anything to add?

Ms McKeegan: No. It is an extremely complicated one. I agree with Gary that they should all be entitled to apply. My initial point is that the individual and standardised processes should be dovetailed. Obviously, there would be a much more significant award for an estate to administer.

Mr Duffy: In a situation where multiple people applied for a posthumous award for the same mother, the applications would need to be paired up for any individual payment. Again, someone could have gone through a forced adoption, and they could apply on behalf of their mother's estate as well as themselves, but the person might not know their mother's experiences. When it comes to applying for the IAP, they have nothing to provide beyond, "I had a forced adoption". There would need to be some way of pairing up their application with those of other half-siblings who have also applied on behalf of their mother.

The Chairperson (Ms Bradshaw): That is a good point. Thank you.

Mr Gaston: Clause 26 is on the:

Clause 26 lists the time for a judicial review as 14 days, and page 6 of the Law Society paper describes that as:

What should it be?

Mr O'Brien: Three months is the accepted time limit under the rules of the Court of Judicature. If you apply for a judicial review after the three months, there is a possibility, but the courts take a view that three months is an appropriate period of time. That 14 days is a tremendously short period of time for someone to get notification, digest it, attempt to get advice and take instructions to make applications for further support. As I say, the accepted time frame in the rules of the Court of Judicature is three months.

Mr Duffy: That is right. If you get a decision from the chair that you are not happy with, but you cannot immediately avail yourself of legal representation, say, you have 14 days to think, "Is that decision wrong? Should I speak to a solicitor?", and then find a solicitor. The solicitor then needs to brief counsel, prepare papers and potentially apply for legal aid if it is required. Fourteen days is an extremely tight turnaround for that.

Mr Gaston: My concern is that, if it is 14 days from the day that a letter is dated, by the time that it is posted out and reaches you, that 14 days becomes —.

Mr O'Brien: Indeed.

Mr Duffy: If there is a weekend or something, you are talking —.

Mr O'Brien: You can cover that with some presumption about date of receipt. It is not necessarily the date that it is sent, but that there is some presumption that the time starts three days afterwards. That is against the very point that it is still a phenomenally short period of time, for the reasons that Gary set out.

Mr Gaston: I am doing some research. Three months is obviously the standard. I have seen instances of six weeks or 30 days. Your evidence today is that it should be three months.

I will move on. In your papers, you have acknowledged that many victims and survivors have left the jurisdiction and now live outside Northern Ireland. Are there any best practice tips from the private sector as to how we can get our message out and reach people?

Mr Duffy: That is a difficulty. The HIA redress scheme ran for five years, but we were still getting people ringing up right before the deadline, particularly from Scotland or England. They would say, "I only heard about this, and I am panicking because there is so little time left". You need to take their age into consideration. An online message would probably not reach the same level as it would with a younger cohort. In the case of the redress scheme, things such as ad campaigns were more effective. It is difficult, because unless there are victims' groups, for instance, that you can engage with, it is hard to get the message out effectively. Most of the victims' groups are based here.

Mr Gaston: From previous experience, when someone comes to you, do you capture any data on how they heard about HIA or other schemes?

Mr Duffy: Just through conversations with them.

Mr Gaston: You would not have any data, essentially, that you could share.

Mr Duffy: We do not keep track of it. It is just anecdotal.

Ms McKeegan: A lot of survivors who are affiliated, even loosely, with a group, access the group via Facebook groups and access information that way, even if that is through a daughter or a son or other relative who helps them with that. Contact with us tends to come about by word of mouth from another survivor. The HIA campaign had signs at bus stops and ads in newspapers. It is difficult to reach people who are far and wide, particularly when they may be unwilling —.

Mr O'Brien: I am aware that Commissioner Ryan faced the same challenges in relation to the redress board, particularly with regard to people outside the jurisdiction. From memory, we facilitated some contacts with the Law Society in England and Wales and the Law Society of Scotland. That information could, possibly, have been put out through those channels. Commissioner Ryan made contact with Irish organisations in London, Manchester and the larger urban centres to see about disseminating information through those channels.

Mr Gaston: A common theme has come out from schedule 2 to the Bill and the list of institutions. I was wrong at the start of the meeting: I acknowledge that it has been communicated to me that a couple of panels have provided a list of institutions. I put that on record.

One of my concerns is around the contributions from the institutions. In Scotland, there is a situation where there are two schemes that run in combination. You are applying either for an acknowledged payment — if you are applying in Northern Ireland terms — or you are going for the IAP for what you have experienced. However, once a victim applies, it becomes a waiver for the institution and, on that basis, the institutions have come forward and said, "We are going to voluntarily put money into this scheme". Your evidence leads us in a different direction, where it needs to be based on the harms that have been caused — where the institutions have facilitated, perpetrated or enabled abuse or systematic harm, to contribute financially to the redress scheme. Have you any suggestions? We have come up against this. We have been told that, in applying the acknowledgement payments in phase 1 of this, that would be difficult to do. Have you any suggestions? Claire, you mentioned that both should run together. We are at a stage where that is not going to happen, and it is going to be the acknowledgement payment that we have in front of us. Do you believe that, when we get through this and enter phase 2, we should look to recoup not only the money for the IAP but the money that has been paid out as an acknowledgement payment from the institutions?

Mr Duffy: From speaking to my clients, I know that they think that the institutions should pay towards the total cost for the redress scheme in its entirety. As for mechanisms, I am not aware of a situation where legislation has forced the issue. I am aware that, typically, the approach seems to be voluntary engagement or a carrot-and-stick approach where, if an institution pays into a voluntary scheme, it is protected from some amount of civil litigation, for instance. That has been utilised previously. If they pay in, they get protection from civil proceedings. I actually think that that was a failing of the HIA redress scheme. It gave every institution a shield against litigation and did not require anything in return.

Ms McKeegan: I agree. Whilst some religious orders will be cooperative, others remain reluctant. We are of the view that it is necessary for the Bill have some strong powers to compel engagement, whether providing evidence or a contribution to the bill at the end. Without any legal enforceability, we cannot be sure that they will engage at all. We are of the view that, at this stage, engagement should be taking place with the organisations to prompt that. Even when our clients try to hold them to account in the media, it does not seem to work.

Mr Gaston: I am certainly interested to hear your thoughts on that. It has come through time and again. It is not about the money; it is about the institutions being held to account and admitting some financial responsibility.

My last question is about the £10,000 acknowledgement payment. We hear time and again that it simply is not enough and does not reflect 2025. What should that payment be?

Ms McKeegan: Our clients have said that it should be at least £20,000.

Mr Gaston: Applying inflation on the £10,000 figure would get you just below £14,000 as of today. Would you welcome a figure in and around that?

Ms McKeegan: We would welcome what our clients have asked for. We do not believe that the figures in the HIA inquiry ever went far enough, and this has been lifted from there. Victims were incarcerated in an institution where all their rights were eroded, they were verbally and physically assaulted and then they suffered the further indignity of having their children removed. Redress is supposed to be something that acknowledges wrong and assists the affected person to move on with life. If it becomes derisory or insulting in any way, that just adds to the harm. We will not depart from what our clients have asked for.

Mr Duffy: You mentioned including inflation. Clients are concerned that, if the IAP scheme happens only after the inquiry, they might miss out on the opportunity ever to apply because of their age. They might, unfortunately, have passed away. For some, the standard payment is likely going to be the only payment that they receive. That should be a factor in what the compensation is: for some, that will be the extent of the compensation that they get.

Mr Gaston: Thank you.

The Chairperson (Ms Bradshaw): Clerk, did you want to read something into the record?

The Committee Clerk: Thank you, Chair. With regard to the judicial review and the timescale, the Bill says that it is when a person:

not when the decision was made. Just to clarify that.

The Chairperson (Ms Bradshaw): Thank you, Clerk.

Ms Ní Chuilín: It is still too short, just to put that on the record, because by the time that they are aware that a decision was made, they are still left with a scramble to try to get legal representation and opinion, so the point is well made.

I do not want to cover what Timothy or Paula covered. I want to go straight to the public records end of it and getting access to information. I have raised this issue from the start. I have a concern that this is a direct lift from the Inquiries Act 2005. It uses the instrument of public interest immunity (PII). That is a national security one, and it just does not belong in here. I am not saying that there is not a need for some sort of mechanism to be added to the Bill by way of an amendment. We have heard evidence from panel members that some religious orders were more productive in their evidence because they were screened. I actually have the other view: I do not think that they should be screened. What are your thoughts on that?

There is also the whole issue of access to records. I declare this interest, and I have done it every time that it has come up, so I will do it again for consistency. As part of being responsible for public records, there was an undertaking, which is a non-FOI route. I do not understand why that is not deployed as part of this. We are already hearing from health and social care trusts that they do not have the money to digitise records, and by the time they get the money, the inquiry could be over five years. Can you speak to that?

My last question is about core participant status. Did you have core participant status as part of the HIA?

Ms McKeegan: No. One of the major criticisms from our clients was that the institutions turned up with belt and braces and a full legal team, every single one of them, and they felt that they were left exposed and compromised —

Ms Ní Chuilín: Or traumatised.

Ms McKeegan: — yes, and that that should not happen here.

Mr Duffy: Also, the institutions were the core participants throughout the entire inquiry. They got to make opening and closing submissions. They were [Inaudible.]

Ms Ní Chuilín: You have prompted, sorry, my last question. If core participation or core participant status is awarded to anyone, it should be awarded to everyone. If the institutions are given core participant status, the only thing that I am concerned about is —. I agree with Timothy. I think that there needs to be a level of compulsion to make the institutions given evidence, to make them provide records, and to make them pay into redress. There is a voluntary arrangement at the minute, and I am not convinced. I have no idea how successful that has been. However, given that they have withheld this in the past, we need to have an aspect of compulsion. That is the only thing about core participant status. I do think that victims and survivors giving evidence need to have legal support, but what that looks like, I do not know.

The questions that I have asked are about public records, the use of the Inquiries Act 2005, and ensuring that people have access. It is up to yourselves where you want to go with those.

Ms McKeegan: I fully agree regarding the public interest immunity certificates. It would be particularly problematic for our clients who have campaigned for all these years to compromise in any way the openness and transparency of the investigation. Although we appreciate that there could be certain circumstances that would require it — if it raises a national security issue — this is to do with institutional abuse. It is not a legacy-related matter.

Mr Duffy: It should be about social services and welfare authorities and courts issuing adoption certificates, not legacy intelligence matters.

Ms McKeegan: It is hard to foresee where that would arise. Fundamentally, it is a public inquiry, so it would defeat the purpose of a public inquiry to have documents, witnesses or evidence screened or shielded in any way from our clients. The media should be encouraged to be there and to get the word out. The learning from the COVID-19 inquiry and the Post Office inquiry is how accessible and widely viewed online hearings have been. That should be encouraged here.

Clause 14 gives the chairperson the power to permit or not permit admission to the hearing room. I disagree with that. I think that that allows scrutiny to be limited. The public are paying for the inquiry, so they should be able to see everything that goes on in that chamber and be able to access it.

Ms Ní Chuilín: Unless the victim and survivor asks otherwise.

Ms McKeegan: Yes.

Mr Duffy: I have a point on the public interest immunity certificates. I was surprised to see that in the legislation, to be honest. This is about social services bringing people across the border or taking women into homes; it is not about intelligence matters. I noticed that, in some of the materials provided, there is a reference to that being normal or common in civil litigation. However, there are other methods of deploying closed or sensitive material in civil litigation, including closed material procedures, if there was really something in there.

Ms Ní Chuilín: Can you provide that? I am not asking you to provide legal advice to the Committee. However, we are in the process of looking at the Bill, and if the Committee or individuals are going to propose amendments, we will need to provide examples of where that already happens and is not reflected in the Bill. We are trying to give people protection, but not at the expense of the truth.

Mr Duffy: That was my point. There must be other methods. If some material — it would be a very small amount, I imagine — were to fall under the PII, there must be other avenues of deployment, such as hearings closed to the public, or the chair and the panel get to see it or something like that. There must be methods other than just that the inquiry does not get to consider material.

Mr Brett: I will go back to Carál's previous point that you do not want the chair to have the power to be able to move into closed session.

Mr Duffy: Generally, the position should be that it is as open as possible for oversight and accountability. I also appreciate that there will be times when it is appropriate, but it should be used sparingly when it needs to be.

Ms McKeegan: Following an application.

Mr Brett: Yes. Do you not think that the safeguards provided in clause 15 in relation to clause 14 are strong enough? They are the restrictions that would have to be followed if the chair of the panel were to move into closed session. It would be worth you getting a read of that at some point to get your thoughts on those restrictions.

I will pick up on the posthumous cut-off points. Your view, on behalf of your clients, is that that should go back to 1922. How many of your clients or how many people in Northern Ireland would be brought into that scope?

Mr Duffy: I do not have any clients who would go back that far. That is why I said that it is about the principle.

Mr Brett: Of course. That is 100%.

Ms McKeegan: We do not have any who would go back that far.

Mr Brett: Totally. That is OK. Would people with core participant status have their legal costs covered?

Mr Duffy: Yes. There is a clause already —

Mr Brett: This is not to articulate my view, but someone watching this online could say, "Of course representatives of the legal sector come along and say that everyone should have core participant status because legal firms will be the beneficiary of that through fees". How do you answer that?

Mr Duffy: Victims will be the main beneficiaries of it. It is very difficult for many of them to come forward to talk about their abuse. In the HIA redress process, victims showed up in what looked very like a court environment, and they were put on the stand. Many of them felt as though they were being cross-examined or put on trial. Legal representatives can play a role in ensuring that victims can give evidence to the best of their ability and assuring them that the processes work. An issue that came up a lot in HIA redress was victims feeling as though there was something wrong. Solicitors and other legal representatives can play a role in assuring them that that is not the case, provided that it is not, or in keeping them right and advising them on judicial reviews and such things if need be.

Mr Brett: You said that legal representatives would help people with core participant status to fill out application forms for the standardised payment. Is that right?

Mr Duffy: Yes. If you were representing somebody, you would assist them in that.

Mr Brett: Have you given any thought to what the financial implications would be of a provision for core legal participant status?

Ms McKeegan: In what way?

Mr Brett: How many people would become core participants? What would be the likely average bill submitted on behalf of clients with that status, and, ultimately, what impact would there be — the Committee needs to be cognisant of this if we are to decide that there should be such a provision — on the Northern Ireland Budget?

Mr Duffy: That would depend on the precise meaning of core participant status, which may differ for some people. It might be about simply providing a statement —.

Ms Ní Chuilín: The group could become a core participant.

Ms McKeegan: One of the ways in which other inquiries, such as the COVID-19 inquiry, have combated cost spiralling is to have legal representatives look after particular groups. It is not only about attendance and preparing a statement. Inquiries churn out a deluge of materials that, quite often, traumatised survivors and victims have to get through, respond to and use to prepare questions for witnesses. If they do not have legal advice and assistance to help them to do that, they will not be able to participate in line with a fast-running inquiry's timescales, and their voices will be lost in the process, so that support is critical. From a European human rights perspective, it is the minimum standard.

Mr Brett: Did you not say in your answer to Carál's question that they were not given that status during the previous inquiry?

Ms McKeegan: They were not, and that was challenged.

Mr Brett: What was the outcome of that challenge?

Ms McKeegan: The victims were successful in the High Court, but the Court of Appeal found that, because the inquiry had almost concluded its evidence at that stage, they should not have that status. The need for it is well acknowledged in the recent history of public inquiries, however. If you look at Omagh, if you look at COVID, if you look at the Post Office and if you look at Muckamore, you will see that the families involved in all those inquiries have been given core participant status, so there should be no departure from that for these families.

Mr Brett: My final question is about the widening of the scope of the scheme for posthumous claims. Maybe I picked up the wording wrongly, but is your view that anyone who can prove, on the balance of probabilities, a connection with the deceased person should be able to apply? In what context did you use the term "balance of probabilities"?

Ms McKeegan: For the posthumous claim?

Mr Brett: Do not worry. There is so much in the papers.

Mr Duffy: It became an issue with redress because it is similarly limited, and there could be situations where someone could have died at a young age, largely because of the impact. Our firm has been contacted in the past by siblings who have said, "They never had a life. I was the next of kin", but they were excluded.

Ms Ní Chuilín: Was it beneficiaries?

Mr Duffy: A family.

Ms McKeegan: Yes. The families have been separated, and it also came up in the HIA inquiry that where families have been separated and children adopted, and they do not have the records, the next of kin or a partner was left out. For example, if I have cohabited with a partner for x number of years, but I am not on the birth certificate or married, I cannot prove anything and am ineligible. That presents an unfairness because of the outworkings of what the state inflicted on those people. If they can establish and demonstrate to the panel assessing the claims that they had the relationship, they deserve to be given an award, and that should be appropriate.

Mr Brett: In your view, the panel would make the judgement, on the balance of probability.

Ms McKeegan: Yes.

Mr Brett: OK. Thank you.

Ms Murphy: Clause 14(2) states:

Philip and Claire have touched on the matter. Is that standard procedure? You mentioned that it was not standard procedure for the COVID-19 inquiry. I am drilling down into why it has been included in the Bill. Why do you think it has been included?

Mr Duffy: It is probably to provide some protection for the victims, but it should be paired with an attempt by the inquiry to make it available to watch online so that other people do not need to record it. If the inquiry controls the stream, it ensures that the balance is struck between making as much of it as possible available to the public but also ensuring that the victims feel that they can give evidence. Many of the victims may want to be ciphered and anonymised.

Ms Murphy: Claire's written submission mentioned a minor amendment to the wording to clause 14(2), which states:

My second point is for Gary, as he touched on this in his oral contribution. How will the statutory obligation to be placed on the Executive to recover finances from institutions work in practice? Will there be any legal issues? We will probably have to take legal advice. What will it tangibly look like if it is included in the draft legislation?

Mr Duffy: I kept it vague in my submission because the precise mechanism is not abundantly clear. I have never seen a case where legislation has forced payment. The idea is that an obligation placed on the Executive, or a particular Minister, will be a spur to create a mechanism, whether it be by forcing payment in some way, or through voluntary contribution or offering something in return for engagement with the scheme. The thinking behind creating an obligation is to ensure that secondary legislation or further legislation will be created to recoup the cost.

Ms Murphy: That sits in with the ability to compel element of it as well. I do not know if anybody else wants to feed into any of that.

Mr O'Brien: I think that it becomes an additional pressure point, but I do not know how you formulate that. I share Gary's concerns about how we might actually draft that or what it might look like, but it is all about sending a message and saying —

Ms Murphy: There is an intent.

Mr O'Brien: — that there is something here.

Mr Duffy: Victims can see that and know that there is a legal obligation and that it will not just go into the long grass, that it is never going be chased and that it is going to be 10 or 15 years down the line with no attempts to get accountability for them from the institutions.

Ms Murphy: Most likely, the challenge for us will be how we get that drafted.

The Chairperson (Ms Bradshaw): Panel, thanks so much. That was a really good session. I think that we got a lot of out of it. The papers that you submitted in advance were excellent.