Official Report: Minutes of Evidence

The Chairperson (Ms Bradshaw): We welcome Professor Leanne McCormick and Professor Sean O'Connell, the co-chairs of the truth recovery independent panel, and Mr Colin Smith SC, who is a human rights barrister. Thank you all for coming to the Committee today, and thanks for your submission in advance. I am not sure how you are going to do it. Do you want to speak to your submission or make some opening remarks?

Professor Leanne McCormick (Truth Recovery Independent Panel): Thank you very much, Chair, for the invitation to discuss the legislation. I will hand over to Colin, who will make our opening remarks.

Mr Colin Smith (Truth Recovery Independent Panel): Thank you very much, Chair. On behalf of the panel, I thank the Committee again for the opportunity to speak to you about the Bill, developing the ideas that are in our written submissions, which you have received.

For my part, as a senior counsel representing victims and survivors of institutional and human rights violations in the South, I first commend the Executive for having avoided so many of the mistakes made by successive Irish Governments. Broadly speaking, we think that this is a very good Bill, but there are, obviously, key aspects of it that require to be amended and improved so that the promise of the truth recovery programme can be realised for victims and survivors and their families and for all the people of Northern Ireland. In that context, we have three observations to make on Part 1 of the Bill, which relates to the public inquiry, and three to make on Part 2, which relates to the redress scheme.

On the public inquiry, first, the panel considers that clause 3, which is on the scope of the inquiry, is sufficiently broadly framed to allow regulations to be made that can encompass the range of institutions and experiences that should be the focus of the inquiry's investigation. The question will be, of course, how those regulations are framed, and putting the list into regulations rather than into the Act itself does avoid the risk of creating a hierarchy of institutions, with one group in the parent legislation and one in regulations, while, at the same time, it makes it easier to amend the scope of the inquiry if that should, ultimately, be determined to be necessary.

Our second observation relates to participation. The Committee has already heard the recommendation that establishment of an advisory panel, including victims and survivors, should be mandatory rather than discretionary. We certainly do not disagree with that submission. We note that the design panel recommended that victims and survivors participate in the inquiry panel itself. Given the participation of three victims and survivors on our panel, we feel that we need to raise that point again. In our view, the legislation is broad enough to permit that, but whether it happens is, of course, another matter. The composition of the inquiry panel will have a very significant impact on how the inquiry operates.

That brings me to the third observation, which does not relate specifically to the Bill but, rather, to the rules that will be made under either clause 13 or clause 27 on the conduct of the inquiry. It is desirable that the rules made under clause 27 contain special measures for vulnerable witnesses in order to ensure that the mistakes that were made at previous public inquiries with regard to the treatment of victim and survivor witnesses are not repeated. We understand that the special measures that have been adopted by the Muckamore Abbey Hospital inquiry are working very well, and it makes sense for them to be incorporated into the rules on the operation of this inquiry.

Part 2 deals with the redress scheme, about which we have three concerns. We will try to avoid repeating things that the Committee has already heard. The first concern is the exclusion of the workhouses. As we understand it, the workhouses were included in the scope of the truth recovery programme principally because women who were resident in them and who gave birth in them had similar experiences of discrimination to the women who were admitted to mother-and-baby homes, and that also applies, of course, to their children. That being so, we struggle to understand the exclusion of that comparatively small cohort from redress. With respect, we do not agree that any such inclusion would offend against the anti-discrimination measures of the Northern Ireland Act 1998. Any administrative difficulties that might be associated with their inclusion are not insuperable.

The second is the relevant date for posthumous claims. For us, as for so many people who have spoken to the Committee already, and, indeed, as I understand from comments that Committee members have already made, the current date simply does not make sense. At the moment, payments are the only form of acknowledgement of suffering that are contemplated by the Bill. When the issue of acknowledgement is so important for people, it is hard to see why, in principle, eligibility should not be backdated to the foundation of Northern Ireland.

The third and final point flows from the issue of acknowledgement and the potential for compounding historical harms by conflating financial payments, based on notional dates of expectation, with acknowledgement of the suffering of people who are no longer with us and the intergenerational effects of that suffering. Based on our engagement with victims and survivors, it seems that much of the distress caused by the suggested date of eligibility flows from the fact that payments are the only form of acknowledgement that the Bill contemplates. We suggest that it may be possible to confer on the redress service a power to offer acknowledgement apart from financial redress. That would be especially appropriate if, ultimately, a date other than 1922 is settled upon.

Those are the improvements that we, as the independent panel, suggest could be made to the Bill. They are based on our expertise and experience, including the expertise and lived experience of our victim and survivor colleagues, and we hope that they will be of assistance to the Committee in its important work. Thank you very much.

The Chairperson (Ms Bradshaw): Thank you very much. Sean or Leanne, do you want to make any comments at this stage?

Professor Sean O'Connell (Truth Recovery Independent Panel): No, we are both fine. Colin has spoken for us. We are happy to take questions.

The Chairperson (Ms Bradshaw): Thank you very much. Leading on from our last session, I want to pick up on the comment about putting birth mothers and adult adoptees, for example, on the stand and the potential adversarial nature of the public inquiry. I am very conscious that your panel has taken a lot of testimony and that you are working through that.

In your opinion, what needs to be included in the Bill, or even in the Committee report, to reflect the importance that the inquiry panel should or could place on the work that you have undertaken?

Professor O'Connell: A starting point would be for the public inquiry to go back and follow the truth recovery design process, which created the Truth Recovery Independent Panel. One of the major aims of that was to collect testimony in the non-adversarial fashion that we have done and for the public inquiry chair to include that testimony in the public inquiry. In an ideal world, by this point, we would have met the chair or the chair designate of the public inquiry to have discussions about exactly how that works.

Our understanding of this whole process, from start to finish, is that it is to be trauma-informed and non-adversarial. If the chair of the public inquiry wants to row back from that, it would be absolutely against the whole principle of how the process has worked so far. Clearly, with the testimonies that we have taken, we have asked for people's consent as to whether they are happy for their testimony to go to the public inquiry, and most people have consented to that. We have a large number of testimonies sitting there: those are ready to be looked at intensively by the public inquiry; or the public inquiry can accept our analysis of them, which we are currently engaged in making. We have a lot of detail about what the testimonies include and the major themes that come from them. We envisage that feeding very much into the heart of the public inquiry's work.

The Chairperson (Ms Bradshaw): Following on from that, Sean — I do not know whether you were watching — there was a suggestion from the academics that, similar to the COVID inquiry, the inquiry could be taken forward in modules, under different themes. Would that be a useful methodology for the inquiry?

Mr Smith: That certainly makes a lot of sense. It would be for the chair to determine how that would be done. Dr Gallen's suggestion was that it might be done by reference to particular organisations or groups, which makes sense. In particular, it would make sense to focus first on taking evidence from the institutions where the cohort of witnesses, victims and survivors is likely to be older. The modular approach has worked in other public inquiries, and it could work here too.

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

You have covered a lot of the issues, both in your report and verbally today. I want to highlight your suggestion about the inclusion of the birth mothers of deceased children who would, but for their deaths, be eligible for the posthumous redress claim. Could you speak to that, on the basis of the testimonies that you have taken from birth mothers in those circumstances?

Mr Smith: That relates to the fact that, at the moment, the eligibility to make posthumous claims essentially proceeds in a descending line — that is to say that it includes spouses and children. It seems to us that there should be no hierarchy of survivors and that, where a child who would have been eligible for redress dies, the birth mother of that person should also be eligible.

Part of that issue relates to acknowledgement and perhaps the conflation of financial redress and acknowledgement, and financial redress being essentially the only form of acknowledgement that the Bill contemplates. It is for that reason that we recommend that some other form of acknowledgement be included. Last week, Professor McAlinden and Dr Gallen suggested the possibility of letters. That possibility could be explored, so that the redress board would have more options than simply financial payments.

The Chairperson (Ms Bradshaw): I have a small supplementary on the potential for us to recommend that the Executive Office, for example, come forward with the apology beforehand. Usually, a recommendation in an inquiry would be that the state apology comes afterwards. However, given the age of a lot of the people whom you have engaged with, do you think that it would be better that the apology came at the start, as opposed to waiting to the end?

Mr Smith: The age of the participants certainly supports such an approach. Equally, acknowledgement and apologies can be staggered at levels to take account of what is already known, what will be known once the panel reports and what will be known once the public inquiry reports.

Ms Ní Chuilín: My first question is on the ability to compel institutions. I know that you listened to the Committee's previous evidence session, and you will know that we hear about this a lot, if you have been watching the Committee. There has been frustration with the process up to now, because, as you said, apologies have not been forthcoming from the institutions, and money, which is part of redress, has certainly not been forthcoming. What are your thoughts on the ability to compel institutions? Since the publication of the Bill, we have received the names of additional institutions, which include private nursing homes. What are your feelings on that?

Mr Smith: Ms Murphy mentioned the legal issues that arise with compelling institutions. Those issues are real. If you look at international experience, however, you will see that there are other ways to exert pressure on institutions to contribute to redress schemes. In the United States and Canada, it was done through a reform of the statute of limitations, essentially so that it was easier for people to sue the organisations. Those organisations therefore had an interest in contributing to a redress scheme that might prevent them from being sued. That was one way to do it. The other thing that they did was to adjust the rules on class actions so that it would be easier to take such actions.

The panel of legal representatives who spoke to the Committee in the previous evidence session may have some view on what amendments to a Northern Irish civil procedure might exert the same kind of pressure. I take the point, however, about the ability to compel institutions in circumstances in which an inquiry has not yet reported. There could be convention compatibility problems with that.

Ms Ní Chuilín: On the issue of access to records, you know, from personal testimonies, that, every time people attempt to access records, it is traumatising for them. We have heard from all the health trusts bar one. Many of the trusts have started the digitisation process. If the money was found for that tomorrow, it would still take them a clatter of years to get it done. In your opinion, does anything in the Bill need to be amended to ensure that access is granted?

Mr Smith: Access to records is a huge issue that has the capacity to negatively affect both the public inquiry and the redress scheme. There is not necessarily anything that can be done through the Bill to move that along, but there are certainly long delays in processing applications for records in the health and social care trusts and other private agencies, whether they are made under adoption legislation or UK GDPR. The rules are the same for both of those: even when the applications are complicated, they should be processed within 90 days. That does not happen. It is not the fault of any of the people who process those applications that it does not happen.

Based on our surveys and engagement with victims and survivors, I can say that, generally speaking, when people get the records, there is not the problem of lots of redactions that there used to be. That is because the Department of Health issued quite good guidance, which had been developed in consultation with victims and survivors. The difficulty is that people now wait a long time. Anecdotally, we have been told that people are told that they will potentially have to wait a year. Clearly, if a person is evaluating whether to participate in the public inquiry, that will be a problem.

Ms Ní Chuilín: Exactly.

Mr Smith: It will be a problem for the redress scheme, too, when people try to substantiate their claims. It will only get worse, because, when the redress board and the public inquiry start looking for records, there will be a huge logjam of applications for records.

We have raised that at the highest level. We met the Minister of Health, and he assures us that he is doing what he can to work with departmental colleagues to get resources for the trusts to process those. Having checked with the advocacy organisations last week, however, we know that they are not seeing a decrease in time that is taken to process those records. It is a massive issue that has the potential to be very problematic for Parts 1 and 2 of the Bill.

Ms Ní Chuilín: Thank you for that, because we, too, are not seeing any decrease in the time that it is taking people to get access. If anything — and you described it very well — the anxiety is growing as the prospect of the inquiry approaches.

Mr Smith: We conducted a survey of victims and survivors, and the results are stark. People's experience of looking for records is very negative. We sometimes think of access to records as a form of redress. That does not quite capture it, because it is actually an ongoing human rights violation.

Ms Ní Chuilín: Yes, it does not cut it.

Mr Smith: No.

Ms Ní Chuilín: My last question is about core participant status. How do you feel about that?

Mr Smith: The Muckamore Abbey Hospital inquiry has a lot to teach us about how this inquiry could be done. Maybe the Committee could explore that with the people who are running the Muckamore inquiry, whether it is the panel or the people who work for the panel. They have put in place systems whereby core participants are represented jointly by teams of lawyers, which obviously cuts down on cost. They also have remarkable rules in relation to participation by vulnerable witnesses: they take the view that all witnesses are potentially vulnerable. That goes back to the point that you made earlier. Yes, of course, the victim-and-survivor witnesses are vulnerable, but the institutional witnesses could be very elderly. In some cases, we are talking about institutions that closed 30 years ago, so there is also the potential for vulnerabilities there that you need to account for. The Muckamore inquiry could be very useful to get steers. It would make sense to incorporate that into the regulations or the rules that can be made by the Executive Office, rather than leaving it to the chair, particularly if it is going to be a single-panel inquiry.

Ms Ní Chuilín: So, we should put it in now rather than wait.

Mr Smith: You do not necessarily have to put it into the legislation. I think that you will also have supervisory authority over the regulations and the rules that will be made by the Executive Office to give effect to that. I think that it is in that situation that you would put those in.

Ms Ní Chuilín: We will not see the regulations until after the legislation is passed.

Mr Smith: No.

Ms Ní Chuilín: It is a question of trust.

Mr Smith: It is, yes. Another issue that relates to trust is participation. If you have victims and survivors on the panel, victims and survivors, the Assembly and the Committee can have more faith that it will always maintain a victim-centred focus.

Ms Ní Chuilín: Thank you very much.

Mr Brett: Thank you, and apologies for missing part of your representation. Did you say something about discrimination laws?

Mr Smith: I said that the reason that workhouses were included was because the women who were in them — women who gave birth in them and who were resident in them — were essentially subject to the same kind of discrimination that the people who were in the mother-and-baby homes were subjected to and that the people in the Magdalene laundries were subjected to, although that was obviously in a different way. That was the logic, as I understand it, of including workhouses in the truth recovery programme.

Mr Brett: Yes, perfect. The view of most witnesses who have come before the Committee since I have been on it is that 1922 should be the cut-off date.

Mr Smith: Yes.

Mr Brett: No one has been able to provide a figure for how many people that would bring into the scope of the Bill.

Mr Smith: We asked the Executive Office about that, and it gave us some numbers. I do not think that it gave us the actual number of people who would be involved, but it estimated that to backdate the existing redress scheme to 1922 would cost, I think, in excess of £20 million.

Mr Brett: OK.

Mr Smith: It did the calculations in relation to different dates, so the Committee will be able to get that information.

Mr Brett: My final point is on the Committee's desire to try to force the institutions to step up, as Carál articulated very well. Your view is that this Bill is probably not the right place for that.

Mr Smith: Yes.

Mr Brett: OK. That is 100%. Thank you so much.

Mr Gaston: Good afternoon. Thanks for coming. You refer to victim and survivor colleagues. How many people do you represent?

Mr Smith: We do not represent anyone. We just have three victims and survivors who are on the independent panel. They are not representatives as such, but they bring lived experience of contact with these institutions. That is absolutely invaluable. Every decision that the panel takes — everything that we do — is informed by that perspective. That is why I made the point about their participation in the public inquiry as well.

Mr Gaston: You talked about options beyond financial payments. We covered the issue of apology. The experience of attending the inquiry will put victims and survivors through trauma. Has there been any discussion regarding services and support that will need to be in place after the inquiry? Have you had any thoughts about that?

Mr Smith: People who participate in our processes and people who participate in the public inquiry are eligible for assistance, which is provided through the Victims and Survivors Service (VSS) by community partners. Our experience of those community partners is very positive, though they probably have resource and capacity issues.

Mr Gaston: Have you heard any concerns about services that currently exist?

Mr Smith: There are some concerns in relation to capacity and waiting times for contacts. However, it would probably be better to put that question to the survivor organisations, and maybe also to the advocacy organisations and VSS itself.

Mr Gaston: You met the Health Minister. Obviously he is very aware of the Committee's concerns, and no doubt you have articulated your concerns to him. Being aware of the concerns and doing something about them are two different things. How confident are you that we are being proactive and that the Minister is being proactive to ensure that, when people go to get their records, there will not be a problem? That is a massive red flag that has come up time and again.

Mr Smith: That is absolutely true, Mr Gaston. The Committee has been told time and again that language matters, which is true, but action matters as well. We are not seeing changes in the time frames within which people get their records. Unless that changes, there will be very significant problems for both the public inquiry and the redress scheme.

Mr Gaston: When you raised that with the Health Minister, what was his response?

Mr Smith: His response was that he would do what he could to increase the administrative support that is provided to the social work teams. Remember that it is social work teams that are doing this. Those teams have modern social working to do as well. We know from victims and survivors and from advocacy organisations that some of those social workers are coming in in the evenings and at weekends to try to get through the applications. Our concern is that there are issues in relation to the cataloguing of those applications. The Public Record Office of Northern Ireland (PRONI) is helping the trusts with that, but the point has been made at the Committee that it will still take a long time. As I said, we are not seeing improvements in the time frames within which people get records.

Mr Gaston: Is the problem resourcing, financial or a mixture of both?

Mr Smith: I think that it is a mixture of both.

Professor McCormick: There was particular concern about the storage of records in the Western Trust. The Public Record Office has surveyed all the adoption and welfare records that are held by trusts. The majority are held in out-storage that is commercially run. In all of its reports, PRONI has expressed concerns around that, because the environmental standards are not archival standards. Some of the records are very old and go back to the 1930s. Adoption records over 75 years old should have gone to PRONI, but many have not. PRONI has identified that those records are at risk, particularly of mould and pest damage. That is the case for the majority of records that are held in-out storage. In the Western Trust, the records were in an old asylum workhouse building where there was a lot of damp and mould. They are in the process of being moved, and funding is being applied for to make sure that they are better housed.

There is big concern about the way in which records are held and the conditions that they are held in. That is an issue of resourcing, finance and how the records are managed. The panel will recommend having an independent permanent archive that houses the records relating to all the institutions' processes and adoption records. That has been part of the panel's work. That would mean that the records would be looked after safely and properly, with restrictions and safeguards in place, because it is confidential information. That is an attempt to get past the huge issues with records and address the issue of re-traumatisation that is caused when people have to go back to an institution that they were in to ask for those records.

Mr Smith: There is also difficulty in identifying the institution. On our website, we have guidance on accessing records that tries to map that, but some people do not know exactly which institution they are looking for and, therefore, have to apply to multiple trusts and organisations. That is very difficult for people.

Mr Gaston: Whereas, if you had a central point —

Professor McCormick: Yes.

Mr Smith: Exactly. Everybody agrees that there needs to be a central point.

Professor McCormick: Some trusts may have a digitised list of all the records that they have, whereas other trusts do not have a list of all the records that they have, and there is no centralised list. If somebody thinks — I am talking specifically about adoption records — "I was adopted in the Western Trust," and that trust does not have a list, the trust staff will have to manually search through boxes to try to find out about that. They may come back and say, "Your records aren't here", so that person would have to move on to the next trust. We have heard about the lengths of time that it has taken for trusts to come back to people, and that extends the process even further and makes it hugely difficult for them.

Mr Gaston: Clerk, we were waiting to hear from one of the trusts. Is that still the case?

The Committee Clerk: Yes. Chair, we have not had anything from the Belfast Trust to date, and we will chase that up again.

Mr Gaston: On the back of some of the concerns that we have heard, can we agree an actions on prioritising hearing from the trust that is outstanding and on how beneficial having one central location would be?

The Committee Clerk: We can do that, Chair, if everyone agrees.

Professor McCormick: The survey reports of all the trusts are available from PRONI. It might be useful for you to see those as well.

The Chairperson (Ms Bradshaw): OK, thank you. Another issue that has run through most of the evidence sessions is that of people who gave birth in the North and whose child was trafficked or moved to the South for adoption, or vice versa. To what extent do the testimonies that you have taken relate to those scenarios? How widespread was that practice, and how could it be better reflected in either the inquiry or redress? Do any panel members have a view on that?

Professor O'Connell: We had a number of testimonies that involve children or adults being moved across the border in whatever fashion and circumstances that that happened. They were often moved to an institution in Fahan in County Donegal. Many of those children and adults came back across the border and were adopted by families in Derry. I am not sure of the percentage, but that features reasonably significantly in the testimonies. We have a lot of records that indicate who those children and babies were, particularly those who went to Fahan, and of whether they were adopted south of the border or north of the border. There will be quite a lot for us to say about that matter in the report. I do not know whether you have anything to add with regard to the records, Leanne.

Professor McCormick: We have access to the records for the Nazareth House home in Fahan, so we can see the extent of it there. We see that it was babies who were born in Northern Ireland and were moved to the South. They were then sometimes adopted back in Northern Ireland, and sometimes they were adopted in the South. Often, there does not seem to have been a pattern — whether or not the birth mother was from Northern Ireland did not seem to matter as regards what happened to the baby. It is in the thousands, and there are several other institutions, but Fahan was the largest. As it operated as the baby home for those Catholic dioceses, the border simply does not appear to have been a factor that was considered in those movements. Those movements were often also of mothers from western dioceses.

The Chairperson (Ms Bradshaw): Thank you all very much for coming today and for your submissions.