Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein) | Oireachtas source

I believe this is my first opportunity to address the Minister in the Dáil Chamber since he received his new portfolio. At the Oireachtas committee this morning, I wished the Minister success with his new responsibilities and I wish to do so again on the record of the House.

Last month, Sinn Féin tabled a Dáil Private Members' motion in response to the issues raised by the scandal of the Tuam mother and baby home. When the Government indicated that it would establish a commission of investigation with statutory powers, including the compellability of witnesses and over the release of all relevant documentation, we agreed to accept the Government's amending motion and we did not divide the Dáil. We were seeking, and still seek, a united all-party approach in order to achieve the best outcome for the survivors of these scandals and in memory of those who died.

An inter-departmental group was established and its report was published yesterday. To that extent, the process so far has been carried out in good time, although it would have been better had we been able to adopt acceptable terms of reference before the Dáil recess today, as committed to by the former Minister for Children and Youth Affairs. The commission of inquiry's terms of reference must be comprehensive and inclusive of all relevant places where mothers and babies were held and where the issues highlighted recently in relation to Tuam arise. I place great emphasis on the word "inclusive". The report of the inter-departmental group sets out a roadmap which, in our view, does not go far enough. The inquiry should not be confined to the nine institutions listed in the report. County homes and Magdalen laundries should definitely be included. The issues of adoptions, involving both Catholic and Protestant institutions, and of vaccination trials should also be included. There is no word of redress of any kind in this report. That too, and much more, must be addressed, as I will set out in a moment. There now needs to be full and immediate consultation with all survivor groups regarding the terms of reference following the publication of the cross-departmental report and the appointment of the remaining members of the commission of inquiry.

We have concerns relating to the appointment of Judge Yvonne Murphy by the Minister for Children and Youth Affairs, Deputy James Reilly, to chair the commission. Judge Murphy was also appointed by the Minister, Deputy James Reilly, when he was Minister for Health to report on symphysiotomy and produced what was, in my view and the view of many, a fundamentally flawed report. It would be remiss of me not to mention that fact, and I am not alone in my view as this point has also been made by the Coalition of Mother and Baby Home Survivors. I hope the judge takes note and I hope she takes the right approach this time. For this, of course, much will depend on the terms of reference that are presented to the House in the autumn. It is essential that the Government sets the proper and appropriate terms of reference for the commission of investigation. Its scope needs to be wide enough to cover all the key issues involved in the scandal of mother and baby homes. At the same time, the terms of reference need to be clear and comprehensive, while making possible a timely conclusion to the work of the investigation.

Yesterday, Sinn Féin published its own detailed submission on the terms of reference and composition of the commission based on what was presented to the former Minister. I have spoken to the former Minister and the Minister, Deputy James Reilly, on the matter this week. We will continue to advance these proposals prior to the final determination of the terms of reference by the Oireachtas in the autumn.

I will now set out the main points of our submission. The purpose of the investigation should be to recover and establish the truth, identify any violations of the rights of citizens and their causes, locate responsibility and propose effective remedy. In particular, it should identify whether there are persons, institutions, corporations and State agencies that were culpable in any violations and make recommendations to hold them to account, as appropriate. It must examine and establish how this interlocking institutional system developed and was maintained for so long. It must be in a position to establish whether institutional or State failings in this regard were systemic. However, the underlying purpose of this investigation must be to restore dignity to the victims and survivors and to acknowledge their existence, experiences, importance and place within the Irish national family.

The establishment order, under section 3 of the Commissions of Investigation Act 2004, must specify the terms of reference, under section 5, in order to permit sufficient democratic scrutiny. In other words, it must permit the Oireachtas to propose and debate amendments, if necessary, and to formally record endorsement if possible, or dissent otherwise. The order must also specify that any proposed amendment to the terms, as provided for under section 6 of the Act, must also be brought before the Oireachtas for prior approval. The establishment order must specify the proposed appointments to the commission or any replacements under section 7 for prior Oireachtas approval. It must specify that all appointments to advise or otherwise assist the commission under section 8 must be by way of open, competitive public tender. Appropriate qualifications must be central to these appointments. The establishment order should specify that the conduct of the investigation by the commission, as per section 11, should permit the option of public testimony in the case of survivors and should consider that the public interest test is met under section 11(1)(b) as to the testimony of any witness who is not a survivor electing to have his or her evidence heard in private. In this way, this commission must provide a structure for receiving and examining testimony that is analogous to that of the Commission to Inquire Into Child Abuse and the ongoing historical abuse inquiry in the North - that is to say, before an investigation committee, or investigation and inquiry panel in the case of contested evidence, unless a survivor opts to provide uncontested evidence in private before a confidential committee or in an acknowledgement forum.

The commission must have full compellability powers as to testimonial and documentary evidence. We acknowledge the strong compellability powers of the commission under section 16, reinforced by the offences in sections 18, 30 and 31 and the penalties in section 50. The commission must also have sufficient powers to make findings of fact, conclusions and recommendations, in particular, as to effective remedies both individual and systemic. It must have the power to recommend further public inquiry. It should have the additional power to recommend further criminal investigation and-or civil action. Only if the establishment order can specify the above within the terms of the 2004 Act should this legislation be used.

The cost to the State of adequate representation is an important factor but cannot be allowed to outweigh the right to effective representation to ensure justice and the restoration of dignity to victims and survivors. If properly resourced, an independent witness support and advocacy service to provide support and advice before, during and after the investigation could potentially be provided and managed in co-operation with the network of Free Legal Advice Centres. Any scheme adopted must meet Ireland's international obligations. The commission's terms of reference must capture the all-Ireland, cross-Border and international extent and scope of the matters under investigation. The terms of reference should include, but not be limited to, all mother and baby homes regardless of denomination, including Bethany Home and other Protestant-run institutions, the Magdalen laundries, and the county homes.

We note the position set out in the submission by Justice for Magdalenes and the Adoption Rights Alliance. They state that the commission "should focus on the issue of children born out of wedlock in Ireland since 1922 rather than institutionsper se". They also state that this should include, at a minimum, all institutions licensed by and operating under the Registration of Maternity Homes Act 1934, institutions operating under the terms of the Public Assistance Act 1939, Magdalen institutions, private institutions and adoption facilitators, "as well as other institutions and arrangements in the State that were involved in the birthing and infant care of children born outside wedlock".

We propose the modification "children born out of wedlock and their mothers" to ensure issues related to the women concerned are fully included. Ideally, the commission should be able to use its discretion to look at any and all relevant aspects of maternity and child welfare since the foundation of the State. The terms should also clearly direct the commission to investigate the responsibility and involvement of the State, including but not limited to local authorities; the Departments with responsibility for health, education, justice and external and foreign affairs; any other public bodies such as the Adoption Board and Adoption Authority of Ireland; religious orders; adoption agencies; academic institutions; and medical professional bodies, including any relevant financial transactions of these bodies and institutions.

We believe the terms of reference should specify in their scope matters including how these institutions were established and run; how the women and children came to reside or be born there, and the numbers involved; infant, child and adult mortality and morbidity rates; adoption practices; nursing, fostering and boarding out practices; vaccine and any other clinical or medical trials and medical experimentation; forced labour and incarceration of unmarried girls and women; general conditions in the institutions, including but not limited to whether treatment of babies and children amounted to neglect; whether there was denial of adequate nutrition and medical care to the women and children; whether age-appropriate education was provided; whether conditions amounted to cruel, inhuman and degrading treatment; burial practices and burial locations of the unmarried mothers and their children; and cross-Border and international movements of pregnant women, their babies and children.

Within this context, special attention should be paid to the State's regulation and inspection regimes and its statutory responsibilities towards citizens, including under the relevant employment law, adoption law, child protection law, criminal law and procedures and law regarding burials and exhumations. It must also consider the State's responsibilities towards its citizens under international law. Attention should be paid to whether concerns regarding any of the above were raised either during ordinary regulation and inspection duties, otherwise by internal whistleblowers, or by journalists releasing information into the public domain, and what actions were or were not taken by the State in response. Furthermore, any financial benefit flowing from associated institutional practices and their beneficiaries should be identified. Particular attention should be paid to the role of the State in funding or contracting for services from the institutions.

The terms of reference must take account of the cross-Border and international dimensions, including the cross-Border movement of pregnant women and children on the island of Ireland, and inter-state movement of the babies and children born to these women to Britain, the US and elsewhere, for the purposes of either adoption or labour. The terms should permit the commission to establish the numbers involved, what happened to these citizens, the responsible institutions and individuals, and the legislative basis on which they were moved. The terms of reference should also include a methodology for co-operation on these aspects of the investigation between the commission and the ongoing Six Counties historical abuse inquiry, and with the appropriate authorities in other jurisdictions.

I hope the new Minister and his officials, who are a continuum and the same officials I met in tandem with the former Minister, Deputy Charles Flanagan, will study carefully the Sinn Féin submission and the submissions of all other interested parties, particularly those of the various representative groups. Such study and careful consideration of the points contained therein are worthy not only of careful evaluation but also of inclusion in the main substance of the terms of reference which must present here on the resumption. We should aim to come back here in September with the right terms of reference and an inclusive project for the commission of investigation, which leaves none of the victim and survivor groups outside. It is very important, as I stated yesterday at our press conference, that we are speaking about people who were locked away, in some cases for years. What we must not do in 2014 is turn around and lock them out from this process.

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