Official Report: Minutes of Evidence

The Chairperson (Ms Bradshaw): I welcome, from the Executive Office, Martin Carey, truth recovery programme director; Francesca Murray, head of the inquiry team; and Stephanie Higbee from the truth recovery redress team. Thank you very much for attending. I welcome you back to the Committee.

Ms Ní Chuilín: Did you miss us, Martin? [Laughter.]

The Chairperson (Ms Bradshaw): There is a PowerPoint presentation. If members are content, we will hand over to Martin.

Mr Martin Carey (The Executive Office): Thanks, Chair. If it is OK, we will do five minutes on the inquiry rules and then do the same on the redress regulations.

The Chairperson (Ms Bradshaw): Thank you.

Mr Carey: I will give a quick recap. The primary legislation was passed on 30 June, which was a major achievement. Thanks to the Committee for its work and support to get the Bill through. The focus has now shifted to the two sets of secondary legislation, which are on the inquiry rules and the redress regulations. An eight-week consultation started on 23 September and will close on 17 November. We have had about 10 responses so far.

There are 33 inquiry rules. You will be glad to hear that I will not go through all 33. I will pick out four areas that are of particular interest in the process. First, I will cover participants; then I will go on to evidence and hearings; and I will finish with records. Rules 5 to 8 create provisions around core participants, participation in the inquiry and what legal supports are available for people. The chairperson has powers to consent to a person or organisation being granted core participant status. People apply for that status, and then the inquiry chair makes a determination on who is granted it. The chair will consider certain factors such as whether there was a "direct and significant role" and whether there will be "explicit" criticism. In most inquiries, you have institutional actors but also survivor groups. Those are decisions for the inquiry chair. The rules also provide certain powers and legal representation to individuals. The inquiry pays for survivors' legal representation, and institutions are expected to provide their own legal representation.

Rules 9 to 12 are about how evidence and hearings happen. Rule 9 is about a written request for information, documents or other things. An inquiry will write to organisations or individuals to ask for certain information. That is closely linked to the powers to compel. Rules 10, 11 and 12 are more procedural elements. There are provisions around live links and how evidence can be heard remotely. There is also mention of opening and closing statements. Core participants are granted the opportunity to provide an opening statement and a closing statement to the inquiry.

I will move on to rule 13. At the Committee, we had a lot of discussion about potentially restricted evidence. What is the protocol in the event that evidence has to be held by an inquiry chair and the panel? What is the process to disclose that, particularly to core participants? What safeguards are in place to allow that information to be shared, and how will that be done?

A key part of any inquiry is maintaining a good record of what has happened. Unlike some of the commission's work in the Republic of Ireland, the advantage of a public inquiry is that it provides an open record and all the evidence is generally heard in an open forum. It is important that the inquiry record is kept in a comprehensive and well-ordered form. There is then an inquiry record at the end of the inquiry that is vested in the Public Record Office of Northern Ireland (PRONI).

Chair, I will stop at that point. I am happy to take any questions.

The Chairperson (Ms Bradshaw): Thank you very much. I have a couple of quick questions. Will the core participants — I am probably talking about the "relevant persons", as such — all get their own individual solicitor or law firm, or is there the potential that a law firm could work with a group? I am just trying to think about — not the cost — the economies of scale.

Mr Carey: Rule 7 enables people with common interests to have group representation. I will use the example of the Muckamore inquiry, which had three groups. Some survivor groups were in group A and were represented by a single solicitor firm. Those in group B were represented by another solicitor firm. Those in group C were not affiliated, but it was important that there was legal support available to them. Three individual solicitor firms could represent the individuals in those three groups, and a counsel team could then support those solicitor teams. Some of those are decisions for the chair, but, for lots of different reasons including time and cost, a group model can work very well if we get common interest.

The Chairperson (Ms Bradshaw): How will the costs of that be monitored?

Mr Carey: Rules 21 to 32 set out cost protocols or, basically, how legal representation will be submitted to the inquiry and how that will be assessed. A key role for the solicitor to the inquiry is to examine the work and the representation. That could include clear protocols around what work has been completed and on what basis. There are some rates in one of the rules to specify that. There is a pretty clear protocol around cost provision and, if there is a dispute about cost provision, how that is managed. Is that fair, Francesca?

Ms Francesca Murray (The Executive Office): Clause 14 of the main Bill backs that up in stating:

There is a mechanism to safeguard against that, but there is also the independence aspect whereby the inquiry has a choice to look at that. There is a balance to strike there, but that is in the main Bill.

The Chairperson (Ms Bradshaw): Thank you. I have a question about the announcement last week that Rachel Langdale KC has been appointed as chairperson. What preparation is going on behind the scenes to get a location and all the architecture set up for the inquiry to meet?

Mr Carey: We are delighted that Rachel has been appointed. Rachel will be meeting survivors next week. She has events in Omagh and Derry/Londonderry on Monday and in Newry and Belfast on Tuesday, and there are also online events next week. Rachel is keen to hear views on the terms of reference, and she will outline some of the practical issues. I can provide reassurance that, although the inquiry chair has recently been appointed, a lot of work has been done on preparatory elements. I will not speak for Rachel, but I think that she is ready to hit the ground running.

The Chairperson (Ms Bradshaw): Is she getting a legal team around her?

Mr Carey: She is. As with the inquiry chair, some of the key roles are senior counsel roles. She has identified some senior counsel who will also be attending those meetings next week. There is a process around appointing a solicitor to the inquiry. Key roles are being filled.

The Chairperson (Ms Bradshaw): Do you have a base yet?

Mr Carey: We do have a base, but I would prefer —.

The Chairperson (Ms Bradshaw): Is that commercially sensitive?

Mr Carey: I would prefer Rachel to outline some of that to survivors. We are pretty close on that.

The Chairperson (Ms Bradshaw): That is fair enough. Thank you.

Ms Ní Chuilín: Francesca, you have covered some of the points that I was going to make on the Bill's clauses and on the rules that are out for consultation. Rule 22 is on determination. You will know better than us, probably, that there are several groups of victims and survivors of the mother-and-baby institutions, Magdalene laundries and workhouses. In fact, there are at least four groups and then a number of individuals who, like a lot of others, just do not work with anyone. I just want to be clear that they will not be impeded from getting proper legal —. While there is a responsibility to limit unnecessary costs, we all accept that those legal costs are very much necessary. I say that for anybody watching who may be a bit concerned. I was off towards the end of the Bill's passage. When it was at Final Stage, there was some commentary around costs and the potential to bring costs down, and I think that that raised a bit of concern.

Mr Carey: Yes.

Ms Ní Chuilín: That is clarified. That is helpful.

I have always had a concern about the ability to compel. Rule 13 is on disclosure of potentially restricted evidence. That, again, is very clear. I do not want to put words into Rachel's mouth, but I would hazard a guess that that will be made very clear, perhaps even in the opening remarks of the inquiry, particularly given that religious orders and institutions deliberately withheld information and have only recently decided to cooperate with PRONI and others. It is great that they are now cooperating, however the lived experience of a lot of the survivors is that they are still waiting on answers to very simple questions. They want reassurance that the inquiry has every available instrument to ensure that no one deliberately withholds information from it.

Mr Carey: I am happy to provide that reassurance. At least, that is my feeling from my discussions with Rachel. Rule 9, in particular, is about trying to provide a written instruction on the things that the inquiry wants to hear, see and look at. Carál, the independent panel report made 70 recommendations, 30 of which were for the inquiry. That includes elements of records that could not be accessed previously due to either the lawful basis or other issues. That is a very easy start for —.

Ms Ní Chuilín: As we know, there was a difference between "couldn't" and "wouldn't". Some records could not be accessed because of the state that they were in. Others were withheld.

Martin, we have spoken a lot about the religious orders' financial contributions and were told about Paul Sweeney's role as independent negotiator. Will that become null and void once the inquiry starts, or is there still time for the religious orders and other bodies to do the right thing?

Mr Carey: Paul's role was specific to the historical institutional abuse (HIA) inquiry. The Ministers have said that the principles of Paul's role were negotiation, mediation and arbitration, as set out in the HIA process. For the purposes of this inquiry, the institutions have provided a lot of information to PRONI — over 6,000 archival items and 60,000 digital pages have been vested through the independent panel process and the work with PRONI. I would like to think, Carál, that those numbers will only increase in terms of volume of records and engagement.

Ms Ní Chuilín: What about money, Martin? To your knowledge, have they provided any more money?

Mr Carey: From a truth recovery perspective, no contributions have been made. We examined a lot of those issues as part of the Bill, but the Ministers have made a commitment about the importance of contributions in all these processes. That is here and will remain here. The inquiry process will aid that contributions approach.

Ms Ní Chuilín: Thank you.

The Chairperson (Ms Bradshaw): Nobody else has questions on the inquiry rules. Go on to the redress regulations, please, Martin. Thank you.

Mr Carey: We have 13 redress regulations. Unlike the inquiry side, for which there is a legal text, there is no legal text for the redress regulations. That is, in part, because we were able to use the Inquiry Rules 2006 as a base. With these regulations, we need views on some policy. There are 13 regulations. I will cover just the five that are in bold text in the slide.

Regulation 1 is about trying to provide some clarity on how applications can be made and what supporting evidence will be required. Applications must be made in writing. Those will be made online, primarily, but there will provision of other facilities. The application process has two stages. Step 1 is proof of identity — "I am who I say I am" — and would require a person to provide photo ID or proof of address. Step 2 is about trying to provide information on eligibility for the scheme. Eligibility is tied primarily to admission to an institution. Slightly different evidence is required for posthumous claims. In the event that someone is making a posthumous claim, the evidence would be a death certificate or, if the applicant is a spouse or child of the deceased, proof of relationship. Regulation 1 will set out what information is required, from whom and for what purpose. The key thing with regulation 1 is that we do not want to have to go and get an enormous amount of information; we just need the basic information to make an application.

Regulation 2 applies after an application has been made. The key job that the redress service will do there is to take the information that is provided to it and verify that with the institution. That could be done via PRONI, which has digitised lots of the records. Again, it is done using only the key information. The redress service will not hold massive amounts of information about individual cases, but just the bare minimum information that is needed to make an application and for that application to be assessed for admission.

We have some procedures in the main Bill, but regulation 4 is about how applications can be moved through the system faster and quicker. Where an application is stuck for some reason, the service will have powers that can be used by the secretary, the president or the panel. Those will include pausing a case or passing it to a different person if there is a procedural issue.

We had quite a lot of discussion about regulation 7, which sets out what happens if an applicant dies. I could have nominated Francesca to take on my application in a scenario where I have applied on the first of the month but then pass away. When I submit my application, I could nominate Francesca to take it on and receive the £12,000. The redress service would invite Francesca to take over the application. If she chooses to take it forward, there is a process to complete the remaining steps, and the payment would be made to Francesca. That is the methodology. I should say that, if Francesca refused or did not want to take it on, and does not do so within 90 days, the application would be closed. Had I applied for the £12,000 payment originally, a posthumous claim can be made by a spouse or surviving children, in place of Francesca. You cannot get both payments. We would like to get views on regulation 7 as a safeguard.

Finally, I will say a bit more about appeals, which was an important issue for the Committee. The appeals period has been extended from 30 days to 90 days. That is just to provide a bit more structure: an appeals decision should be explained in writing, and, if it is successful, the next steps should be outlined.

The Chairperson (Ms Bradshaw): OK, thank you. I do not have any questions. The regulations start to bring it to life really.

Ms Ní Chuilín: Under regulation 7, when an applicant dies, is that the same process that is followed, for example, in victims' payments, which we were talking about earlier? Are these the sorts of regulations that guide all —?

Mr Carey: We are making specific regulations for this. The closest example is probably a pension nomination.

Ms Ní Chuilín: OK.

Mr Carey: That is probably the most comparable example. Is that a fair assessment, Stephanie?

Ms Stephanie Higbee (The Executive Office): In Scotland's redress scheme, there is the option to nominate beneficiaries, and our scheme mirrors that.

Ms Ní Chuilín: OK. The extension of the appeals period has been a big feature; even the junior Ministers recognised that. That is separate to a judicial review that someone might take. Has the appeals period been extended to 60 days or 90 days?

Mr Carey: The judicial review time period was extended, and that is primarily on the inquiry side. I think that it is 28 days.

Ms Murray: It is 21 days.

Mr Carey: Sorry: 21 days.

Ms Ní Chuilín: Sorry. You are right: it is 21 days. That is grand.

I have read the redress regulations and the consultation, and it has stayed faithful to the Bill. I did not get to say it when the Bill was passed as I was not here, but well done. The work that you have done has been exemplary.

Mr Carey: Thank you.

Mr Gaston: Can we look at regulation 1 again? I recognise that there is a fine line between making sure that this is a seamless process and that it is not open to abuse. Regulation 1 states that identity and relationship documents will "usually" be needed but that other proof may be accepted if a document is not available. What safeguards are built into that? What protections are there for people who have been in one of those homes? Can you talk me through what that looks like?

Mr Carey: I will bring in Stephanie to supplement what I am going to say. Let us say, for the sake of argument, that 10,000 people apply for the scheme. At step 1, Timothy, absolutely everybody will have to provide photo ID and proof of address. That will apply to everybody. The second element about proving eligibility depends on what basis you are applying. For example, a birth mother who was admitted to an institution will have to provide the name of the institution and a date range for or an estimate of when they were in the institution. The redress service will take that information and verify it with a third party. That is one class, if you like. Another class, particularly in posthumous claims, might be where you need to have more proof-of-relationship-type information, particularly if it is a cohabiting partner. What evidence is required for a cohabiting partner? If it was a spouse, it will be a marriage certificate. If it was a surviving child, it may be a birth certificate or an adoption certificate, depending on the class. That third bullet point could probably be a bit tighter, but it is just trying to show that slightly different information will be required —

Mr Gaston: Depending on the circumstances.

Mr Carey: — depending on the circumstances.

Ms Higbee: We also intend to mirror rule 4(3) of the Historical Institutional Abuse Redress Board (Applications and Appeals) Rules, which states:

that is asked for, it must —

Basically, it allows a bit of flexibility for the redress service if someone is having difficulty getting the right documents. It gives flexibility, but that would be at the discretion of the redress service.

Mr Gaston: That would be discretionary depending on the circumstances with which the person comes forward.

Mr Carey: That is right.

Mr Gaston: There has been an acknowledgement in the past of what, I think, were termed "hard" or "difficult" cases where, through no fault of the individual — it might have been the fault of the institution or even the trust — the records were not available.

Mr Carey: Yes. Timothy, there is that risk. In the hard cases, every effort will be made. Similar to other schemes, you want to make redress payments — that is the default — but the required information has to be there. It is public money, so there have to be protections in there. At this stage, we do not know how many hard cases there will be, but we would like to think that the judicial discretion will be used in a way that promotes people getting payments, rather than the alternative.

Mr Gaston: My only other question relates to regulation 7 and somebody passing on during the application process. Is there an opportunity for somebody else to be nominated and given the authority to act on their behalf throughout this process?

Mr Carey: Are you talking about advocacy or a power of attorney-type —?

Mr Gaston: I am talking, basically, about someone supporting a person through their journey. It might be a family member. That is important, and you have it in dealing with benefit claims. It is just to ensure that people are given that opportunity at an early age. It might not be a solicitor; it might be a family member or a close friend.

Mr Carey: We would like to think that the redress process would not need legal representation to support an individual. Individuals may choose to go to a solicitor. That is their decision. There are a couple of different elements to support for individuals. The first tier is that we want people to be able to access clear guidance, where it is self-service and they can go on to our website and watch a video to understand. The second tier is phone-line support, and the third is community partner support. Through WAVE and Adopt NI, if an individual needs support in respect of their eligibility or how to get information that they require, like some of the certificates, or if there are literacy or IT or technological issues, there will be a case worker there to support them. We looked at some other models, and there are lots of different methodologies. There will probably be quite a high percentage of people accessing that support, so we have looked at some other models. Even in very straightforward redress schemes, people want reassurance that they have filled the boxes in correctly, so we have tried to build that into the model as well.

The Chairperson (Ms Bradshaw): I have a couple of tidying-up questions. I will touch on what Timothy just talked about. Have WAVE and Adopt NI been engaged with you? Have you been consulting with them on preparation for the scheme going live?

Mr Carey: We have, particularly since the primary legislation was passed. The next stage is about how we have the redress service standing ready. We have had good engagement with the health trusts. Lots of the requests for information will come in to social workers in the trusts or voluntary agencies. We have been working with them, and with WAVE and Adopt NI, about how this will work in practice, including what the steps will be around the referral processes and, if there are information gaps, how they will be resolved. We are also working with the Department of Health. Some of the case studies are quite difficult — trying to figure out descendants, including adoptees, of deceased people is a known issue. We are trying to work through what things we need to have in place ahead of the scheme opening. There has been good engagement on that, but, ideally, we want people to get the information now. We do not want people in the first quarter having to request the information. If people are able to request the information and access it now, they will be able to make an application straight away.

The Chairperson (Ms Bradshaw): Great. Will you outline the timelines? You have indicated that the consultation is still running, but what is your anticipated date for the scheme opening?

Mr Carey: The consultation will close on 17 November. We will analyse as we go. Our intention is to try to get an SL1 into the Committee before Christmas recess. The Committee will then have an opportunity to consider that process. Our working assumption is that the scheme will open early in the new year. How early, we do not know.

The Chairperson (Ms Bradshaw): Lastly, we have seen Fiona Ryan leave her position as the commissioner. Are there any thoughts on a replacement for her or on a stand-alone advocate or commissioner for this cohort of victims and survivors, who will be going through these two processes?

Mr Carey: Our process has been aided by Marie Breen Smyth. She has played an important role in engagement and advocacy. There is a discussion with survivors around what services and advocacy they want. Our truth recovery victims and survivors have engaged on lots of complex issues in a sensitive way. You want to pay them the same compliment and make sure that what we provide matches their needs, be that in an advocacy role or a different role. It is important that we take time to discuss it with them.

The Chairperson (Ms Bradshaw): I agree that Marie Breen Smyth has been brilliant over the past year, since her appointment. As this ramps up, she will need administrative backroom staff and a proper office.

Mr Carey: Yes.

The Chairperson (Ms Bradshaw): There are no more questions. Thank you for your work. That has been very useful.