Kathleen Funchion (Carlow-Kilkenny, Sinn Fein) | Oireachtas source

I am delighted we are finally getting the opportunity to discuss this Bill as for us it has been a long time in the making. It was prompted by the mother and baby homes report that was published on 12 January 2021, having started up in 2015. It was a huge amount of time for people to have to wait. Over the days, weeks and months that followed, we all expressed our absolute shock at its contents and our disgust that it had been leaked days prior to publication, which was a huge insult to the survivors. So many survivors had so much expectation, and maybe optimism, that this report would right some wrongs and hold to account those responsible for so much hurt and so much injustice, that it would open up honest and truthful dialogue on a shameful chapter in our history and begin a process of healing for survivors and their families. Unfortunately, that is not what happened. Instead, we got a report with particular findings stating there was a lack of evidence regarding forced adoptions, abuse and discrimination despite testimonies contradicting this. I give that as a bit of background to what prompted me to bring this legislation forward.

We have spent about two years going back and forth with this Bill with the OPLA. I thank its staff for the work they did on this, their professional guidance and all their support in drafting it. It is important because I had hoped this would be supported and I have just heard some news contrary to that, which is that the Government is not going to support it, so I stress this particular point: under the proposed legislation former members of commissions could be compelled to appear before a committee within six months of the publication of their final report. It is to ensure future commission members cannot simply discharge their duties upon submission of their final report without a certain level of Oireachtas scrutiny. On foot of ongoing criticism of the mother and baby home report – as people will know in this Chamber, and I think we were all in agreement at the time – we invited the members of that commission to appear before the children’s committee as the relevant committee. As we all know, they declined the invitation on several occasions, which prompted huge anger and outbursts, especially because the members of that commission chose to then speak publicly about the situation, which certainly added salt to the wound. In December 2021 the State acknowledged survivors’ rights were breached when they were not given a draft of the final report prior to its publication and we cannot in good conscience allow this level of unaccountability to ever be repeated again, nor can we stand over it.

I am acutely aware commissions must remain independent and that is the point I want to stress. This is not about jeopardising that independence. There was a huge amount of back-and-forth about how this could be achieved without jeopardising that independence. This is why I have set out matters which are or may be the subject of court proceedings, matters relating to any facts established by the commission, certain matters relating to persons who are not identified in or identifiable from the final report and matters relating to evidence that is confidential that committee members will have to shy away from.

Our Bill will mandate for the appropriate examination by elected representatives to scrutinise the terms of reference and methodology. They are the two sections we homed in on, especially because we acknowledge the independence and that is a crucial part of it. I do not see how anyone could agree with what happened with the mother and baby homes situation with respect to the length of time it took and the fact the report was leaked. There were so many different situations that failed survivors of the institutions. Then we had a situation where there was huge outcry over the report. What it really came down was the terms of reference and it felt like what was in the report did not match the terms of reference and the methodology, and they are the parts we would like to be able to ask commission members about once they have finalised their report. As I said, I do not think anyone could stand over what happened at that time, where there was no level of accountability. If I am not mistaken, I believe the Government said the same as well, that is, the commission members should have come before the children’s committee at that time to answer questions. For the members to then go and speak about it publicly was just shameful. This legislation, if approved, will amend section 2 of the Act in which we set out what format said scrutiny would take in the event of a dispute as to whether a former member is required to give account in respect of a particular matter. The section further provides for the referral of that dispute to the High Court for determination.

I would like to see this Bill passed and I had in one of my concluding paragraphs the hope it would not be left to die on Committee Stage because I had hoped, maybe naively after eight years of being here, that there would be support for this Bill. Perhaps that was a bit stupid on my part. We are not looking to interfere with the independence. We are not looking to jeopardise that in any way, shape or form, but we are looking for accountability at the end of a commission of investigation. The State pays huge money in these situations to get answers and get some form of justice for survivors. In a situation where there are indefinite timeframes, timeframes are not adhered to and the methodology and terms of reference clearly do not seem to have been adhered to it is not unreasonable for us to ask that questions be asked about that once the report is finalised and a commission’s work is done. It also changes the way commissions of investigation might be carried out in future in that it is not any harm for people to think there could be scrutiny or examination of this and some level of responsibility and accountability. Otherwise, that process really is not fit for purpose. We cannot have a situation where we could potentially repeat what happened with the mother and baby institutions. It was just horrific what happened to people who went in, told their very personal stories and then saw on the page that there was account after account, for example, of women not understanding they were signing adoption papers and yet a finding comes out there was no evidence of forced adoptions. That is just an example. Surely somebody should be able to ask how that happened and how that conclusion was reached, given the evidence.

I do not think that is unreasonable; nor do I think it interferes with the process. If the Government is not going to support this, we need to look at how we change commissions of investigation in order that this does not happen again. One of the few times I was extremely angry was during that whole process when thinking there was no way of getting some level of justice for all those women, in the main, but also men.

That is why we looked into this and did an enormous amount of work back and forth. The OPLA, as I said, was fantastic. Emma, who works with me in my office, was fantastic and a huge driver of this as well. If people say this cannot be done, then someone needs to tell me what we can do. We certainly have to do something; we cannot leave this as is. The legislation has been in place since 2004. It is not unreasonable for any of us to say that it needs to be reviewed and that we need to look at how we can change it. If the Government does not plan to support the Bill, I appeal to the Minister to reconsider the decision in that regard and allow it to go to Committee Stage in order that we might tease out what we can do for any group that potentially has to face a commission of investigation. Of course, none of us wants the latter, but we know that is not the reality of life. We cannot have people going into that process with a never-ending timeframe and a report which, if we are all being honest with ourselves and if we take off our political hats for a minute, nobody could honestly say was fit for purpose.

That is all I really want to say. I appeal for support for the Bill.

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