Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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We are joined this afternoon by the Minister for Children, Equality, Disability, Integration and Youth, Deputy Roderic O'Gorman, and the following officials from the Department: Ms Laura McGarrigle, assistant secretary; Mr. James Gibbs, principal officer; and Mr. David Noone, principal officer. The witnesses are all very welcome and we thank them, and the Minister in particular, for coming in today.

I ask members to only use the chat function on Microsoft Teams to make us aware of any technical issues or urgent matters. It should not be used to make general comments or statements during the meeting. I remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex in order to participate in public meetings. Members will not be permitted to participate where they are not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts will be asked to leave the meeting. I ask any member who is participating via Teams to confirm they are on the grounds of Leinster House before making their comments.

In advance of inviting the witnesses to deliver their opening statements, I remind those participating from the committee room of the longstanding parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. If their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.

Roderic O'Gorman (Dublin West, Green Party)
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I welcome the opportunity to speak with the committee today. After the publication of the final report of the commission of investigation in January of last year, many survivors were disappointed and angered by the treatment of testimony they provided to the confidential committee. Having gone to the effort of engaging with the confidential committee and reliving what happened to them in institutions, many felt they could not see their own words in the final report. For many, the commission’s report, grounded as it was in the legal approach of a statutory inquiry, felt removed from the profound grief, loss and trauma of their lived experiences. From my engagement with survivors, I know the hurt that has caused.

As we know, the confidential committee module was created alongside the inquisitorial process to allow those with lived experience of the institutions to provide their accounts as informally as possible. Although this was envisaged as a way to allow the truth as survivors wanted it told to emerge, I recognise that this has not happened for many. In June of 2021, following comments attributed to one member of the commission, I indicated the possibility of a review of the testimony offered to the confidential committee. I have always recognised the importance of these testimonies. That is why I went to some lengths to secure the audio recordings of these testimonies when originally they were believed to have been deleted. I believe that a process with the capacity to record, preserve and recognise survivors’ personal accounts presents the most meaningful opportunity to address the concerns expressed to me. Such a process can restore choice and agency to survivors. The accounts will be housed in the national centre for research and remembrance. This rightly places the lived experience of survivors at the heart of our national archives in a visible and powerful way.

A number of factors have influenced the proposed approach. First, the core concern expressed to me by survivors is that their lived experiences have not been adequately reflected thus far. They do not see their words in the commission’s report and they feel their voices were ignored. Second, we must recognise the continuing influence of the legal framework provided by the Oireachtas to facilitate and direct the independent commission’s work. Significant legal complexities would arise in seeking to facilitate an external review of accounts provided privately and in confidence within the robust legal framework of a commission of investigation. The Government cannot, via a non-statutory process, retrospectively alter or interrogate the independent commission’s findings or methodology. We must be upfront about such complexities. However, this does not prevent human rights experts or others from conducting further analysis of these matters. Notably, part 5 of the final report details the sources used by the commission for the express purpose of supporting such work. Finally, I believe that such a review could not fully respond to the concerns of those who were unhappy with the record of their testimony created by the commission. It would not change the commission’s report and it would completely exclude those who had not had the opportunity to engage with the commission.

The new initiative will focus on respectful recording and acknowledgement of the lived experiences of those who spent time in institutions. The process will be underpinned by statute and operate on a voluntary basis with the consent of participants. Those who recounted their experiences to the confidential committee will have the option of permitting the reuse of this testimony and-or offering new or additional oral or written testimony. If someone does not want to give their testimony again, they can use the existing testimony that has been recorded by the commission, which was recorded orally by the commission’s archives. No one will be asked to recount their experiences again if that is something they do not wish to do. This process will be overseen by a team with expertise in human rights, trauma and memory, communications and oral history.

In advancing our deliberations, we are consulting with relevant legal and technical experts to develop the initiative in the context of work on the national centre for research and remembrance.

Most importantly, we will also consult survivors on their views. The initiative demonstrates the State’s willingness to hear about and to formally acknowledge the deeply personal accounts of survivors and I will bring specific proposals to Government for its approval.

In my time as Minister, I have endeavoured to improve the manner in which we communicate the actions we are taking to respond to legacy issues, to survivors and former residents. As such, I regret the indirect and limited manner in which survivors heard about deliberations on this issue, via a response to a media query. My preference, and my clear intention, was to update survivors using existing channels, which we do on a regular basis, to ensure that survivors are the first to hear of developments. To that end, details of this initiative were included in our most recent quarterly update on the action plan, which recently issued to our mailing list.

I have always been clear that the report of the commission is not the end point in our engagement with the legacy of mother and baby institutions. Last November, I published the Government’s action plan, designed to address the needs and concerns of survivors and their families. Intensive work is under way to deliver on this.

Members of this committee are aware of the significant legislative developments which have taken place this year. The Birth Information and Tracing Act 2022 was enacted in June. The information provisions came into operation yesterday. To update the committee, already 1,898 queries have been received by the website birthinfo.ie, with people inquiring and looking for access to their information. Similarly, in July, the Institutional Burials Act 2022 was signed into law. This morning, the Cabinet agreed that the final order establishing the Tuam agency would be agreed. It has been determined that no environmental impact statement, EIS, is needed in respect of the Tuam site, and that eliminates any potential delay on that ground. The Department of Public Expenditure and Reform has given approval to the Public Appointments Service, PAS, to appoint a director and that process may begin shortly.

All elements of this work are hugely important, and they are a priority for me and for the Government. I thank the Chair and members for their attention, and I look forward to answering their questions.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I thank the Minister. I will run through the speaking order for members’ information and will go through who is joining online. Senator Seery Kearney will be first, and she will be followed by Deputy Cairns, Senator Clonan and Deputy Murnane-O’Connor.

Mary Seery Kearney (Fine Gael)
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I apologise to the Chair for being late, as I had to dip out to another meeting for a quorum. I thank the Minister for his statement.

As the Minsiter can appreciate, much disappointment arose over what was an apparent U-turn. The fact is that people went in and gave their testimonies to the confidential session within the commission. The Minister cannot change the content of that report nor would we want him to have the ability to do that, naturally. However, there is a necessity for a mechanism, because there were individuals who felt they had been reflected in the report, but that it was incorrect and that there were errors in their testimony. There were also those who felt they misunderstood the process or that it was not clearly outlined to them exactly how the confidential evidence would be treated. It would appear, with due respect to everybody involved, that the treatment was very legalistic in how it was dealt with, rather than engaging with just how sensitive this was. People went in and relived the trauma of their youth and their time in these institutions over a considerable period, and they shared that.

For many, an archive is not sufficient. It is not an official enough recognition of a process they believe was committed to. They believe that the Minister gave a commitment to have their independent testimonies reviewed and for a report to be compiled from that. I would like to hear the Minister to elaborate on that beyond what he said in his opening statement.

Roderic O'Gorman (Dublin West, Green Party)
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What we are seeking to achieve in these proposals is to have the actual words of both those who gave testimony before the confidential committee and other survivors of these institutions on the record and for that to form part of the historical record. It is not just an archive that we are looking to create here. This is going to be part of the wider Government response in the centre for research and remembrance, which we hope to base in Seán McDermott Street. It will be designed by experts who have the most knowledgeable approach to oral history and to the communication of sensitive issues such as these, as well as about how the actual words of survivors can be conveyed to the public and how they can stand as part of the historical record and as part of the history of what happened in these institutions.

Senator Seery Kearney rightly says that one of the issues that impacted on survivors was the legalistic approach to the testimony that they gave. What I want to avoid and what I am seeking to avoid in this proposal is going down that strictly legalistic route again. I am trying to provide a forum where the literal words of survivors form part of our record. As the Senator says, 550 people went before the confidential committee and for some of them it was a very traumatic experience. They set out what happened to them in these institutions. The only evidence of that on the record are these condensed paragraphs that are in the report. Sometimes, it is one person’s story that has been condensed and sometimes a number of stories have been condensed into one. I know from survivors who have written to me and who have spoken to me that that is a source of anger and that their own experience is not being expressed here.

We have an opportunity here to get their written transcript or the taped transcript of their testimony through a subject access request. Then we can allow that to form part of the lived experience initiative; we can do that and allow them to add extra material, or we can let them re-record their own lived experience. It is also important that this is open to others as well. Again, we do not want to just narrow this down to the individuals who gave testimony. There are other people who have come forward following the huge publicity the issue of mother and baby institutions has received over the past two years and who now wish their history to be recorded as part of this as well. That is why we are taking this approach to not go a legalistic route, as was adopted in the end regarding the testimony given before the confidential committee. Instead, we are going for this broader route that is informed by oral communications and that is trauma-informed to allow for their words to stand as part of the history.

Mary Seery Kearney (Fine Gael)
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I thank the Minister for that. I would appreciate a slight explanation. I have had experience in training people for counselling post-genocide in Rwanda and have visited the genocide memorial in Kigali. It is powerful to hear the lived testimony of people in their own voices as one goes through it. It is an incredibly moving experience and it brings one into the experience of all that happened. There is no doubt that if something similar to that will be our outcome here, that we would be a valid memorial and a lesson to future generations in Ireland as well as to our own. That would be valuable.

I understand we would want to avoid a legal route, because the legalistic approach removes the person-centred testimony that was shared. However, is that the only reason? Once the State allows for matters to go on the public record, how is that protected?

If we are not going to a review because there are legal complexities, why are the same legal complexities not arising in the context of a memorial? I just want to understand that.

Roderic O'Gorman (Dublin West, Green Party)
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I absolutely take the point the Senator is making. On the initial point, the Senator has described what I would like to see in terms of the final outcome. Obviously, as I have made clear, it will be people who have much greater expertise and knowledge in these areas, both in the collection of this material and its subsequent portrayal in the records of a memorial centre, who will make the determinations about how that is best done.

On the Senator's second point, were the Government to take a position to undertake that more legalistic approach that would be seen as a reviewing and a contradicting or rewriting of certain elements, and the confidential committee is just one element of the workings of the commission of investigation, that does become problematic. It becomes legally difficult in the context of the commission of investigation legislation, which very clearly establishes an independent commission of investigation. For one part of its workings to be reanalysed or re-critiqued does pose a difficulty.

Following the appearance in Oxford, I am aware that the chair of the commission wrote to this committee and outlined the approach it took to the testimony. I know the survivors subsequently may have taken issue with the chair's description of how that testimony was treated. I recognise that. This is why in the proposal we are looking to bring forward, we are looking to move away from that purely legalistic approach, which has caused very significant upset, and particularly in the terms. We all recall the phrasing and the design of the executive summary of the commission's report, which again is highly legalistic and was insulting to survivors and may also have obscured some of the more important legal findings that the body of the commission's work actually did reach.

Holly Cairns (Cork South West, Social Democrats)
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We are all here today because of the continued refusal of the Minister, this Government and the State to respect basic principles of justice and laws, as the will and preference of survivors in relation to the mother and baby institutions. At all stages, survivors have been met with paternalism, disregard, disrespect and attempts to undermine their position.

In June 2021 the Minister announced a plan for an independent expert to examine, through a human rights lens, the testimonies given to the commission. Why? It is because the Minister knows, I know, and we all know that the findings of the commission's report were incorrect. The Minister's decision to do this only came after months of sustained criticism from survivors, human rights experts and researchers, concerning the commission's methodology, treatment of witnesses, inconsistencies, and overall poor quality of the final report and its findings, down to the most basic things such as no evidence of illegal adoptions, things we all know happened.

There was an overwhelming consensus that the review was necessary to correct the major issues with the final report as the definitive document on the long history of the State and church abuse of children, girls and women in these horrific institutions. The review remains essential to respect the wishes of survivors, to meet our international human rights obligations, and to inform redress. It was also around the time of the refusal of the commission members to provide any form of accountability at this committee and the Government's inability to act. The Government would not extend the commission and would not do anything even though we warned the Minister that this would fall back on the Government as a result, and here we are.

Despite the fact that in June 2021 the Minister had proposals ready for Cabinet, 14 months later in August this year survivors discovered, via Elaine Loughlin in the Irish Examiner, that the Minister had abandoned the plan. In the words of the Tuam Mother and Baby Home Alliance, the Minister has denied members and those who provided testimony to the confidential committee the opportunity to have those testimonies reviewed by an independent expert with a human rights background, as previously promised.

The Minister's opening statement says it all. The Minister has said: "I believe that a process with the capacity to record, preserve and recognise survivors’ personal accounts presents the most meaningful opportunity to address the concerns expressed to me." The Minister has satisfied himself but nobody else in the process: not survivors, not campaigners, and not human rights experts. Unilaterally, the Minister has decided what is best, has betrayed another commitment, and now is trying to tell the people directly affected that this is the best thing. The Minister knows that he knows better than them. I wonder if the Minister understands the arrogance and paternalism of his words today to those people.

In June 2021 the Minister had a proposal ready for consideration at Cabinet. More than one year later the Minister decided that "Significant legal complexities would arise in seeking to facilitate an external review of accounts provided privately and in confidence within the robust legal framework of a commission of investigation." Why were these legal complexities not discovered before the Minister announced the independent review ? From his own accounts the Minister had an ill-prepared proposal that gave false hope to a highly vulnerable group of people

On the Minister's third point he said: "I believe that such a review could not fully respond to the concerns of those who were unhappy with the record of their testimony created by the commission." There are two issues here. In June 2021 a review was an appropriate mechanism to respond to survivors' concerns. Then in August 2022 it was not. The Minister is contradicting himself. Then there is the issue of deciding how to address survivors' concerns and not asking them. Again, without input from those affected, the Minister is deciding for them. This is more paternalism. Does the Minister not see those contradictions and the paternalistic attitude? I actually do not understand how there is not any kind of shame about these kinds of inconsistencies and the misleading of people.

Another excuse that the Minister mentions is "The Government cannot, via a non-statutory process, retrospectively alter or interrogate the independent commission’s findings or methodology." The Minister can interrogate the report via a statutory process so why is he not looking into that? Is the Department looking into that?

Reading over all of the documents, the Minister's statements, and the initial announcement in June 2021, I can only come to one of two conclusions. Either the plan for an independent review was poorly prepared, did not stand up to any form of scrutiny and had to be abandoned, or the plan was opposed by the Minister's Department or another State actor and the Minister was shut down. Both are plausible from the evidence available to us: the disgraceful treatment of survivors with this "make it up as you go along" approach, or the prevalent ingrained structural forces in Government Departments and State bodies not to provide survivors with justice. Which is it?

Roderic O'Gorman (Dublin West, Green Party)
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I will address a specific point. There was no proposal coming to Cabinet in June 2021. I am not sure, but I am aware there was some newspaper coverage of that. There was, however, no specific proposal. Indeed, in July 2021 when we debated the issue in the Houses I spoke about trying to ensure that the testimonies of persons who appeared before the confidential committee were on the public record. I said explicitly then that I did not know how this was going to be done because we had nothing prepared at that stage. From my point of view there was not a proposal in June 2021.

On the wider issue, and Deputy Cairns's statement about me ignoring the will and preference of the survivors and acting unilaterally, over the course of my time in this Department I have met a significant number of survivors, through groups and individuals, either online or in the Department here. A significant number of survivors have also come up to me on the street and at events to identify themselves to me. They told me that they had been in such and such an institution and had been subject to an illegal birth registration. They discussed their views on where they see the actions of the Department and my actions as the Minister over the past two years.

Some were undoubtedly critical. Others recognised the steps that have been taken. At the time that the issue came up and the time following the appearance of Professor Daly at the seminar in Oxford, the key issue for survivors who wrote to me was that their words were not being reflected in the historical record. That is not something I thought; it is what survivors were saying to me in their communications. They did not feel their experiences were being reflected. They had gone to the trouble, and through the trauma and upset, of going before the confidential committee and all their input had been boiled down to a short paragraph that, in certain cases, was not just their own story. It is on that basis I am bringing forward this proposal.

The steps involved with this proposal are that we will first seek Government approval before a consultation, after which we will come back and provide a legislative basis. There will be an opportunity for survivors to give their views on what we are trying to achieve. A memorial centre in the national records is one element of our response. It is a response to what I heard from survivors.

Holly Cairns (Cork South West, Social Democrats)
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I apologise if the Minister did not say he brought a proposal to Cabinet. I heard him talking about the issue on the radio so he certainly brought the proposal to the national airwaves. I spoke on the radio after the Minister and asked what he will do if we have two reports, one of which states there is no evidence of illegal adoption or incarceration, all of the things we know happened, and another report from an independent person who examined the report through a human rights lens, which would likely find there is evidence that all those illegalities and crimes occurred in those institutions. Everybody knows those things happened anyway. I believe the Minister went on the radio that day in good faith because he thought there should be an independent review because, like all of us, he recognises that need. The Minister said that key to changing his mind was his engagement with survivors who told him their main issue is that their experiences are not recognised enough, which can be addressed through the national archives, or another means. This is the committee for the Department and the members of this committee can tell the Minister that is not the only concern people have. They also want justice. The findings of those reports being so fundamentally flawed has a profound impact outside of experiences not being documented. That is important but there are also issues in respect of redress. It is not fair to just pick one issue that was important to people and scrap the plan to provide them with justice and acknowledge that what they went through was horrific. That is what is missing. The Minister is unilaterally deciding what is best because of some engagements he had. What about what the committee has to say about the issue? We have spent a lot of time engaging with people about this particular issue. It is not fair.

I do not mean to trivialise the situation by explaining this but if the situations that occurred in mother and baby homes now happened in a home or another State-run institution, the normal processes of justice and laws would pertain. There would be accountability, justice and all of those things that have always been denied to people who were in those institutions. This whole process, which has gone on for the past two years, has been a longwinded way of doing that again. People, including the Minister, wanted an independent review. He knows it was for reasons other than just recognising the experiences of survivors. Of course, that is an important part of justice. Will the Minister at least acknowledge that he understood it was about more than that? Perhaps his mind has changed because other State actors have shut down his proposals. We need to know what is happening because this is just another chapter in a very long tale of denying people basic and fundamental principles of justice in this democratic country.

Roderic O'Gorman (Dublin West, Green Party)
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We have sought to address the specific issues that survivors have raised with me and the committee. We have sought to address the specific things they want to see done. I have spoken already about information and tracing, which has been delivered by the Government. I have also spoken about the Institutional Burials Act, which has been delivered by the Government. The final draft of the redress scheme will be brought to the Cabinet shortly. Speaking superficially to redress and the point the Deputy made in that regard, the Government has been clear that its redress proposals are not fixed on the commission's suggestions. The Government's response to redress was much broader and encapsulated a greater number of survivors and former residents than anything the commission put forward. It is important to recognise that. I have always said that the commission's report is one piece of this, but only one piece.

Turning to what can happen now, we have already seen independent analysis by a group of academics of elements of the commission's report and the executive summary that was redrafted by the Special Rapporteur for Child Protection and the human rights analysis of the report. The commission's report is just one piece of the State's response. My focus and that of my Department has been on meeting the explicit needs of survivors and the range of issues they have set out.

Holly Cairns (Cork South West, Social Democrats)
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In his opening speech, the Minister said the Government cannot by a non-statutory process retrospectively alter or interrogate an independent commission's findings. That means it can be done in a statutory way. Will the Department consider that?

Roderic O'Gorman (Dublin West, Green Party)
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We are proceeding in a statutory way with this proposal, which will need to be based in statute. The Deputy has made a suggestion and has on a number of occasions raised a point about a general repudiation of the commission's report. That raises fundamental questions. If this Government takes a decision to repudiate a report that is disagreed with, what will happen when a commission of investigation report is undertaken, criticises a future Government and that Government decides to repudiate that report? The Deputy may disagree with me on this point but a decision by a Government to repudiate an independent commission of investigation report has serious consequences that may be unforeseen.

There are undoubtedly legitimate criticisms of elements of the commission's report. There is also material of considerable value in that report. It is clearly documented and evidenced in the report that the State knew what was happening in these institutions and failed to act. Inspectors from the Department with responsibility for local government were writing reports stating that children in these institutions were not being properly fed and that children and mothers were dying. That was ignored by officialdom. I do not want those findings repudiated. That is an important element of the findings. That is on the specific issue of this report. There is also a broader issue about a Government making a determination to repudiate an independent report and the precedent that would set.

Holly Cairns (Cork South West, Social Democrats)
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There are consequences-----

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I must move on. We have time so we will probably be able to come back to the Deputy. I call Senator Clonan, who will be followed by Deputy Murnane O'Connor. We should have time to come back to Deputy Cairns.

Tom Clonan (Independent)
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I hope we can come back to the issues raised by Deputy Cairns because they fit with my own experience of recording the testimonies of women who were targeted in our Defence Forces for bullying, harassment, sexual assault and rape. In the process that flowed from my PhD, the subsequent Government inquiry, led by Dr. Eileen Doyle, and the revelations of September 2021 from "Women of Honour", it seems to be a recurring pattern that the concerns of those who are targeted by others, or who find themselves in a vulnerable position in institutions such as our Defence Forces or in mother and baby homes, seem to be subordinated to either the moral and legal concerns of adversarial approaches, or other procedural or administrative purposes.

We have to remember that people who make these disclosures relive the experiences. They are retraumatised. It is extremely important that their very powerful and compelling testimony can been seen explicitly to facilitate acknowledgement and healing, as opposed to further traumatising and adding further injury.

I am coming late to this issue, given the circumstances of my arrival in the Seanad but it occurs to me that we already have very powerful instruments and methods for getting to the heart of these very sensitive issues. We have experts of international renown in all of our universities. We have some amazing women and some men who are very well placed to carry out incisive and qualitative phenomenological research into the testimonies and experiences of these survivors. A huge body of international literature already exists on how best to go about doing this. The Minister, Deputy O'Gorman, knows this from our shared background as academics. I am always really puzzled as to why such inquiries are led by senior council or judges when we have an embarrassment of riches in the country. We can put together these very compelling disclosures from survivors, weave them through with all of the secondary sources available to, and with the resources of, the State, to arrive at extremely compelling findings that can contribute significantly to knowledge and assist us to move forward. When findings are constrained and confined within this quasi-legal frame, it really limits through very positivistic and deterministic thought processes. It narrows and undermines. I hope that the survivors' personal accounts housed in the national centre for research and remembrance would be amenable to this type of research. I agree with everything said by Deputy Cairns and it chimes with my own experience in this regard. We find, 20 years after the original research, that women in our armed forces are still targeted in this way. There is a judge-led inquiry under way at the moment to investigate that. Can we not learn from this? I ask the Minister whether it is possible for him to suggest to Cabinet that in the future, rather than appointing senior counsel, judges and so on, we look at the resources we already actually have to assist in truth and reconciliation. There is a lot more to follow. There are other areas of Irish life that require this type of inquiry.

Roderic O'Gorman (Dublin West, Green Party)
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I thank the Senator. I might give my reflection on what he has said because it is really valuable. In the 18 months following the publication of the commission of investigation report, we can see the huge problems with dealing with issues as sensitive as those the commission had to address in the context of the commission of investigation legislation. Deputy Cairns spoke about the importance of justice. Finding justice, without going that quasi-legal route, is extremely difficult because as soon as we talk of issues of justice, we talk of issues of accountability, responsibility and culpability. We then bring in a requirement for people to be able to defend their legal name and their actions, as well as the need for cross-examination and fair procedures and that is a consequence of the common law legal system we exist in. That system does not work well with a process seeking to understand the lived experiences of individuals. While I was not in the Oireachtas when the specific terms of reference for the commission of investigation into the mother and baby institutions were drafted, I think the confidential committee, as a sub-committee of the actual commission itself, was created as an effort to try to bridge that. It was to be a separate source where people could give, perhaps not sworn testimony in the same way that testimony before the commission was sworn, but another place where testimony could be given. We know now, in terms of the overall outcome, how unsatisfactory, to put it mildly, that was for those 550 survivors who gave testimony before it. To come back to the Senator's first point, the approach being adopted under the lived experience initiative, which will be adopted with the records and memorial centre, will be one that is trauma-informed and one based and undertaken by people who have an understanding of oral history, human rights and how people coming to give their personal stories need and should be treated. That is why we wanted to provide the flexibility. Should an individual who has already relived his or her story before the confidential committee not wish to do that again, that person could use the recording testimony that is already preserved in the archive and need only give permission for it to flow into the lived experience initiative. That is all such people would need to do, as well as giving the option to add to that or start afresh and allowing new people beyond this 550 to be able to do the same thing as well, albeit all in a trauma-informed manner.

Tom Clonan (Independent)
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I will respond briefly. Within our libraries and academic research, we have tens of thousands of research projects that look in great detail at extremely sensitive issues such as this. They do not require legal examination. In the processes, oversight and the governance which the Minister and I are so familiar with in the university sector, from time to time, research on the public record, in a permanently digitably-searchable archive and open to everybody, can occasionally be referred for legal advice. It happened with my own research back in 1998. It was referred to Arthur Cox and certain observations were made but all of that sensitive information was still published and is on the public record. It has led to a greater understanding. I am concerned that we do not put the cart before the horse. The legal filter, if you like, is not the one that should be applied first. We should take tried and tested, centuries-old, methodological approaches to these very sensitive issues and let in the light. Let the findings speak for themselves. If there is a concern, let legal counsel have a quick look at it.

We are in danger of making the same mistakes over and over again and letting down survivors if we impose this kind of overly legalistic, adversarial, and almost confrontational, approach to people who make disclosures. First of all, they need to be believed. There is so much in the literature on how to deal with the most sensitive matters and there are no impediments to proceeding on that basis. However, if we keep doing it the way we have been doing it thus far, we are doomed to repeat the same mistakes over and over again. We are going to let down survivors and that it is going to have a chilling effect on the willingness of people to come forward to help us to understand our Republic and how we got to where we are and the measures we need to take to ensure we do not repeat the mistakes of the past. When it comes to children with disabilities, children with additional needs, we are making the same mistakes over and over again. Therefore we need to learn. The academic model we have is a very powerful instrument for moving forward. If we were to apply the restrictions outlined by the Minister to academic research, we would have to close our libraries.

Roderic O'Gorman (Dublin West, Green Party)
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I will respond to that because I agree entirely with the Senator. That is the approach we are hoping to take with the records and memorials centre. We will have a source of records, and a legal basis for access to these records, where academics will be able to access them and make their own conclusions and judgments. These records will be open to everyone, academics and others, who wish to inspect this archive. That is what we are seeking to achieve. In terms of the specific lived experience initiative, the idea is again to move away from a narrow, legalistic approach but allow the spoken words of former residents of these institutions to form the record, unfiltered by legal concerns or the like. That is what we are looking to achieve here.

Roderic O'Gorman (Dublin West, Green Party)
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I thank the Deputy and recognise what she is saying in terms of communication, particularly the communication of this issue. I recognised in my opening statement that this issue was not communicated properly. That is something we should have resolved. We have our quarterly bulletin but we should have provided an update on this specific issue. Survivors should not have been reading about this in response to a media query.

The Deputy makes the very fair point about the age of many of the survivors. On the issue of the payments legislation specifically, the final touches are being put to the full draft of that legislation. I need to bring it to Cabinet and then we will look to bring it rapidly into the Dáil for Second Stage. If it is of any reassurance, we are not just working on the legislation but are working on the basis that it will be passed and are putting in place the mechanisms that will actually allow for the processing of these payments. There will have to be a significant infrastructure behind this. We are talking about up to 34,000 individual payments and 16,000 enhanced medical card applications. There is a lot of work that has to go into delivering that and in a timely manner. That is happening at the same time as the legislation. As I say, I hope to have the legislation to Cabinet this month and then it will be brought swiftly into the Oireachtas after that. I am not meaning to sound defensive in any way, as this legislation needs to happen, but just to recognise that the unit in the Department has delivered the Birth Information and Tracing Act, and a lot of work around this; not just the legislation itself but its implementation. It has delivered the Institutional Burials Act and, even today, there is a piece of work going through Cabinet in terms of delivery of the agency. The Department has been working on this lived experience initiative, on the records and memorials centre, and on other elements of the scheme such as the funds orf memorialisation being undertaken by groups. I think eight of the 22 items of the action plan have been completed and another 12 are under way. An intensive body of work is being undertaken. I take the Deputy's point that redress is of huge importance to survivors and needs to be acted on swiftly.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Do you have anything else to add Deputy Murnane O'Connor?

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I have a couple of questions to ask and then I will bring in anyone who has additional points.

As mentioned by others, part of the difficulty is the fact that we are dealing with a group of people who have been so let down on so many occasions by the State that there really is no trust.

You can understand why. The Minister even acknowledged how people found out that the commitment that was given was not going to happen. It is really important that we have the memorialisation and archives and people get to tell their story but when people go to a commission, while it is not a criminal investigation, they nearly see it in the same light. They see as if they were giving a statement in that they feel that there is potentially a pathway to justice. That is possibly what is missing for people.

I hear what the Minister is saying about the legal complexities but in respect of the High Court case in January 2021, were changes not made at that point? If there were, was it possible for the State to look at making other changes to the commission of investigation? If there is an issue around legal difficulties, was there any way through amending legislation that this could have been changed?

My next question concerns the information and tracing legislation. Could the Minister remind people how they register for that? I know a significant number of people have already registered for that. Could he address any changes arising out of the High Court? If there were changes, was a precedent set then so that we could have made other changes? Was there a way of changing legislation? The memorialisation is really important but everybody has heard that people felt that there was nearly an attitude or a certain tone throughout the report along the lines of "well those were the times we were living in and it was unfortunate.". I know some of the findings were very robust and they were welcome but that is what people felt. They felt it was nearly half an apology along the lines of "we're sorry this happened but sure those were the kind of the times we lived in and it's a pity. Let's all move on now.". That is why when people thought someone with a human rights background was going to look at it, they really welcomed it because it felt like this was going to get the scrutiny it deserved. To a certain extent, it is probably the commission members who have us in this situation and they were the ones who would not come before this committee, which is unfortunate. We are relying on the Minister to pick up the slack for want of a better word.

Roderic O'Gorman (Dublin West, Green Party)
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In response to the Chairman's third question, for clarity, is she talking about amending the commission of investigation legislation in a forward-looking way so that it can-----

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Yes. There is probably no way of doing that retrospectively. That is what I am wondering.

Roderic O'Gorman (Dublin West, Green Party)
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Not that I know of - there may be a case for doing that in a forward-looking way if we use commissions of investigation again for issues as sensitive as this. Another commission of investigation - the Farrelly commission - is ongoing.

Regarding the point about the High Court case, a case was taken by a number of survivors and former residents seeking that certain paragraphs in the commission's report be struck down. An agreement was reached between the State and those survivors and that agreement, which was ratified by the court, was that a statement be appended to the commission's report, be present wherever the commission's report is officially displayed and outline the fact that survivors should have been consulted in terms of the process and should have received the final draft of the report to allow them to comment and that subsequently they do not agree with certain findings. It lists various paragraphs of the commission's report. That is a really important step because we all know that from the day the commission's report came out, there was very significant anger about some of the conclusions. It is really important that this anger and dissatisfaction is now reflected in the official record. That is an official statement that lies beside the commission's report.

In terms of the information and tracing legislation, the key route there is an online route but it can also be accessed via phone and through a letter as well. The website address is www.birthinfo.ie. The website is quite easy to use. You pick which category you belong to, for example, are you a mother, an adopted person, somebody who was subject to boarding out or illegal birth registration or somebody with questions about your origins. You then draw down that menu and tick whether you want to register in the contact preference register and whether you want to receive information. It is an easy-to-use site. I know there was one issue yesterday about people registering from the US. There was an issue with US phone numbers. My understanding is that this has been resolved. There was very significant drawdown on the first day with almost 2,000 people seeking information. It is good to see it being taken up and used.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Regarding the official statement, would it not have been possible to do something similar if there had been a review with a human rights perspective? If somebody chooses to take a court case, is that something that could be open to-----

Roderic O'Gorman (Dublin West, Green Party)
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The key issue there was that the statement was appended according to court scrutiny. A judge of the High Court oversaw that process. It was not the Government doing something independently. It was scrutinised by another branch of the Oireachtas. Commissions of investigation are a creation of the Oireachtas. They are formed under that legislation. It requires a motion from the Dáil to create them so if the Government was to append a statement about the outcome of a commission of investigation, it would need the independent scrutiny of a court process. This is why that was the outcome of the judicial review process.

Holly Cairns (Cork South West, Social Democrats)
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I am not clear. The Minister just acknowledged that there is a mechanism to add to the report. Why is he not pursuing that?

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Is my understanding that somebody has to go to court first correct? Would somebody have to take a case through the legal system to do that?

Holly Cairns (Cork South West, Social Democrats)
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I do not think so.

Roderic O'Gorman (Dublin West, Green Party)
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The statement was appended because the outcome of a court process. A judicial review took place and in the context of that, there was an acceptance that certain survivors should have been provided with a final copy of the report and given the opportunity to make a comment on that final copy. On foot of that, there was an agreement between the State and the plaintiffs in that case that a statement would be appended to the commission's report wherever it was published

Holly Cairns (Cork South West, Social Democrats)
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That is right. So there is a mechanism for survivors to get an amendment to it. Is there a mechanism for the Minister to do that?

Roderic O'Gorman (Dublin West, Green Party)
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Not that I am aware of.

Holly Cairns (Cork South West, Social Democrats)
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Why can individuals do it but not the Minister?

Roderic O'Gorman (Dublin West, Green Party)
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The key issue in those cases was that certain survivors were identifiable from the text of the commission's report and because of their identifiability, they should have been consulted before the court believed-----

Holly Cairns (Cork South West, Social Democrats)
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I am not asking about the reason for the amendment. I am asking about the amendment itself. An amendment can be made. There is a mechanism there for this to be done. That is established because it has happened and it is available in the Oireachtas Library as an amendment.

Roderic O'Gorman (Dublin West, Green Party)
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It is not an amendment. The commission's report has not been amended. It is a statement that sits alongside the commission's report outlining the dissatisfaction of these plaintiffs with the findings of certain paragraphs.

Why is the Minister pursuing that approach?

Roderic O'Gorman (Dublin West, Green Party)
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Because that approach follows them having been identifiable.

Holly Cairns (Cork South West, Social Democrats)
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But it could be for other reasons. There is a mechanism to add this to it. Why is the Minister not pursuing that approach, not in the same way obviously because it may not be one of the survivors?

Roderic O'Gorman (Dublin West, Green Party)
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That option is only open to them because they are identifiable in the report. It is not open to a Minister of the Government because that route, in terms of being identifiable, does not exist in that situation.

Holly Cairns (Cork South West, Social Democrats)
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Is it possible there could be another reason other than being identifiable, for example that the findings of the report would be factually incorrect?

Roderic O'Gorman (Dublin West, Green Party)
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No.

Holly Cairns (Cork South West, Social Democrats)
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The only way to get it is if a person is identifiable in the report.

Roderic O'Gorman (Dublin West, Green Party)
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That is my understanding, yes.

Holly Cairns (Cork South West, Social Democrats)
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When the Minister speaks about the potential consequences of repudiating the report, and how future Governments could repudiate a report based on findings about that Government, for example as the Minister referred to earlier, I can acknowledge that there are consequences there and that it is something that needs to be looked at. I fully understand what the Minister means about that. It is, however, important for us to acknowledge here today that there are consequences for not repudiating a report that has incorrect findings and which did not even produce any kind of methodology into how it came about those findings. This needs to be acknowledged. It is actually very sickening to hear the Minister say in response to Senator Clonan that he would take that approach on memorialisation, about which the Senator spoke so eloquently. That approach has not been taken in relation to any of the other legislation that we have been dealing with. Why is it just with memorialisation? Is it because there is no cost to the State then? The consequences of a report with incorrect findings like that has an impact on issues such as redress. The Minister spoke about the redress scheme as if it is fantastic, but of course if the report found that there were these obscene human rights violations in them, redress would be more appropriate for the crimes that were committed. Perhaps a person might get €5,000. That is ridiculous. That a person must have been in an institution for longer than six months is, again, ridiculous. Of course there are consequences to having this report. If we are acknowledging the consequences of potentially repudiating it, it must also be acknowledged that there are consequences to not doing that.

Roderic O'Gorman (Dublin West, Green Party)
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Deputy Cairns referred to the issue of redress. We did not base our redress proposals on the commission's report. We did not limit ourselves to the limitations that the commission set out. Indeed, in terms of the action plan and our response we did not limit ourselves to the commission's report. Notwithstanding that there are severe criticisms of some of the findings of the report, which are expressed on the record now, the report is one part of the history of what happened in the mother and baby institutions. As a Government we are trying to respond to elements of that and to respond to the broader issues the survivors have brought to us as well. This is what we are seeking to do around the birth information in the context of the Institutional Burials (Amendment) Bill.

Holly Cairns (Cork South West, Social Democrats)
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The amended parts of the Act, which is the attachment, were not agreed by the Government. That was forced on the commission's report by the High Court.

Roderic O'Gorman (Dublin West, Green Party)
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The statement was the outcome of a settlement of that case.

Holly Cairns (Cork South West, Social Democrats)
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But did the Government not have to agree to the amendment?

Roderic O'Gorman (Dublin West, Green Party)
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It was a settlement between the Government and the plaintiffs, yes.

Holly Cairns (Cork South West, Social Democrats)
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The Government agreed to adding that on, but it cannot agree to anything else in that regard?

Roderic O'Gorman (Dublin West, Green Party)
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It was because it was a part of a court-mandated settlement.

Holly Cairns (Cork South West, Social Democrats)
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Is the Minister 100% sure that he cannot do it without that?

Roderic O'Gorman (Dublin West, Green Party)
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Yes. It is the outcome of a judicial process.

Holly Cairns (Cork South West, Social Democrats)
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The Minister said earlier that the draft memo was not put to Cabinet. Was a draft memo made for Cabinet that was never brought there?

Roderic O'Gorman (Dublin West, Green Party)
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Is the Deputy referring to June 2021? No, there was not.

Holly Cairns (Cork South West, Social Democrats)
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There was no draft memo for the Cabinet.

Roderic O'Gorman (Dublin West, Green Party)
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No.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Do any other members wish to comment? No. That concludes our questions. We will publish the opening statements on the Oireachtas website. Is that agreed? Agreed.

I thank the Minister and his officials for appearing before the committee.