Professor Barry Goldson:

I will make a short statement on behalf of us both. We welcome the opportunity to address the committee. Members will appreciate that it is impractical for us to attempt to cover every aspect of the events that have unfolded in the past two years. Instead, we will aim to capture the key issues and will provide the committee with a more detailed written statement that we have entitled Synopsis of the Operational Review of Oberstown.

In September 2016 we were appointed to undertake an operational review of Oberstown, in recognition of our international expertise in the fields of youth justice and penal detention. The operational review took place against a backdrop of substantial change and during a period of acute instability at Oberstown. The terms of reference for the operational review are attached as an appendix to our written statement.

The core aims of the review were threefold. First was to evaluate practice and policy in line with international standards and best practice principles. Second was to identify obstacles or barriers to achieving greater implementation of international standards and best practice, and the third was to make recommendations to ensure greater and more successful implementation of these standards.

On 10 October 2016 we sent a detailed memorandum to the chair of the Oberstown board of management setting out our understanding of the operational review, indicating the design and methodology that we intended to adopt in order to undertake it and identifying the key data and information that we planned to examine. The design and methods of the operational review are elaborated at paragraphs 8 to 12 of the written statement and the memorandum is provided as an appendix to the same statement.

In the time available, the design, methods and data analysis were rigorous and robust. Throughout the entire process of designing, undertaking and reporting the operational review, we consulted consistently and closely with the chair of the Oberstown board of management and the director. Illustrative detail is set out at paragraphs 15 to 32 of our submission to this committee. At no time prior to the submission of our report did either the chair of the board of management or the director raise any concerns with us about any aspect of the review process. On 24 February 2017 we submitted to the chair of the Oberstown board of management what we considered to be the final version of our report, together with nine annexes and a summary report. In the same correspondence, we provided a document tabulating, in forensic detail, how we had responded to the written feedback on earlier drafts of the report offered by the chair of the Oberstown board of management and a further document offering similarly detailed explanation as to how we had responded to the director’s written feedback.

The body of the report comprises 285 substantive paragraphs, extending over 67 pages, and it includes 95 recommendations. The body of the report does not identify named individuals other than the chair of the Oberstown board of management and the director. We do not believe that there are any other individuals who can be personally identified in the report whose role is subject to direct or implied criticism.

On 13 March 2017 we received a written communication from the chair of the Oberstown board of management in which she stated, "I have formed the view that legal opinion may be necessary prior to publication". On 17 March 2017 we submitted our report to the Minister for Children and Youth Affairs as we were obliged to do in accordance with our terms of reference. On 29 May 2017 we were informed by the chair of the Oberstown board of management that the board had decided not to publish our report in light of unspecified legal opinion. The chair confirmed that the intention was to publish the report's recommendations as a standalone document.

On 11 June 2017 we wrote to the chair of the board of management expressing our concern and disappointment regarding the decision not to publish, pointing out that this was contrary to the explicit written undertaking to publish and disseminate the report that we had been working with from the outset, recalling the detailed processes of consultation and accuracy checking that we had engaged in throughout the process, restating our belief that the publication of the report would enable progress at Oberstown and serve the public interest, objecting to the publication of our recommendations abstracted from the underpinning context and rationale that is presented in the body of the report and pointing out that to do so would be misleading and, finally, stating that we would be willing to consider redactions to the report in light of legal advice, but that we would first prefer to see the advice that might be deemed to make redactions necessary. Notwithstanding this, the recommendations were published but, as members will be aware, the report is yet to be published.

On 19 March 2018, a year after we first submitted our report to the Minister, we wrote to the Minister asking to be informed of progress being made towards publishing the report. We were aware that the Minister had appeared before this committee on 24 January 2018 when she reported that she was about to "seek additional advice to ensure due process has been completed". The Minister assured the committee that "when that happens, I will ask for the report to be published".

On 12 July 2018 we received a letter from the Minister that included the statement "I consider that it would be misleading to publish the report now, having regard to progress that has been achieved in the interim" and the following statement:

I have sought assurance from the Board that it is satisfied that fair procedures were applied. The Board has not been in a position to provide such assurances to me to date. In the circumstances, I do not propose to publish the full report.

In the period between the time that we first submitted our report and the Minister's appearance before this committee on 18 December 2018, four quite different rationales for non-publication have been mooted and it is our submission to the committee that each is flawed.

First, there has been reference to legal opinion and risk. The precise nature of such risk has never been made clear to us, however, and we have never had sight of the legal opinion. At the point when we submitted our report, our reading was such that four of the 285 substantive paragraphs might need to be redacted in view of legal cases that were ongoing at that time. In fact, we suggested redacting the four paragraphs in correspondence with the chairperson of the Oberstown board of management as early as 25 February 2017.

The second reason for non-publication refers to due process and fair procedures. At various points the Minister has referred to concerns regarding due process and fairness, most recently during her appearance before this committee on 18 December 2018. Taking account of the fastidious attention that we applied to processes of consultation and factual accuracy in undertaking the operational review and in preparing the report, we find it difficult to understand the basis of such concern. Furthermore, we have not been provided with any specific instances or examples where we have allegedly compromised due process or fair procedures.

The third point relates to the passage of time and progress that has been made at Oberstown since we undertook the operational review. It almost goes without saying that we welcome the news that progress has been made at Oberstown. We note the Minister's submission to this committee on 18 December 2018 in which she reported that the recommendations that we made following the operational review have been at the kernel of such progress. Nonetheless, we strongly believe that our report should be published, whether or not the situation at Oberstown has improved. We do not believe the right lessons will be learnt by the many individuals and organisations who are involved in the campus unless there is a full understanding of what has happened in the past. Moreover, we note that alongside positive signifiers of progress contained within the HIQA report published in October 2018, following its unannounced inspection in March 2018, the same report provides that child protection requires some action and that care of children, planning for children, premises safety and security as well as staffing and management require priority action to mitigate the non-compliance and ensure the safety, health and welfare of the children using the service. Such observations resonate strongly with the serious concerns that we raise in our report of the operational review.

The fourth and final point relates to straying from the remit. In appearing before this committee on 18 December 2018, the Minister for Children and Youth Affairs claimed that our report strays from or overextends the specified remit of the operational review. She referred to the fact that we make recommendations that pertain to national policy and, as such, are beyond the immediate powers and responsibilities of the Oberstown board of management. Yet, it would have been impossible to undertake a robust operational review without situating Oberstown within the wider context of national youth justice legislation and policy. Moreover, from the outset we made it clear to the chairperson of the board of management and the director that we would be considering the wider national policy context as part of the operational review. This is explicitly specified in a detailed memorandum that we sent to the chairperson of the board of management on 10 October 2016. We have attached the memorandum as an appendix to our more detailed written submission to the committee. At no time was it ever suggested that taking account of national policy issues lay outside the terms of reference.

We strongly believe that the rationale for each of the four reasons for non-publication was seriously flawed and that our report of the operational review of Oberstown should be published for at least four principal reasons. The first is to honour the terms of contract issued to us before we undertook the review. The second is to provide transparency and accountability. The third is to serve the public interest and the common good. The fourth is to enable learning.

I wish to be absolutely clear. Our unwavering objective has always conformed to the conception of the operational review as a supportive developmental process framed within the context of international standards and principles of best practice. We can only reiterate our concern to the committee that the right lessons will not be learnt by the many individuals and organisations who are involved in Oberstown unless there is a full understanding of what happened in the past. We believe that such understanding can only be realised by publishing our report.

Article 9 of the terms of contract that we were issued with at the outset of the operational review provides that all disputes between the board and the consultant as regards the application of the contract shall be submitted to arbitration if a mutual agreement cannot be reached between the parties. If the decision not to publish our report continues to stand, we appear to have reached a point where mutual agreement cannot be reached. On 5 August 2018, we wrote both to the chairperson of the Oberstown board of management and the Minister for Children and Youth Affairs expressing our view on invoking Article 9 of the contract and moving to arbitration. On 12 October 2018, we received a reply from the chairperson of the Oberstown board of management declining that request. To date, the Minister has not responded to the same request. We have not had any further communications either to or from the chairperson of the Oberstown board of management or to or from the Minister for Children and Youth Affairs. Yet, we remain of the view that the report should be published and, if necessary, we remain open to the prospect of arbitration as a means of resolving a dispute that is not of our making as a mechanism for ensuring that the terms of the contract are honoured; the imperatives of transparency and accountability are upheld; the public interest is satisfied; and the lessons that might derive from the operational review are put to best effect.