Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I move: "That the Bill be now read a Second Time".

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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I thank the Minister, Deputy McEntee, for being here to deal with this.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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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.

Martin Kenny (Sligo-Leitrim, Sinn Fein)
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The commission of investigation process has huge merit and can deliver. Everyone hoped it would deliver. From previous forms of investigations and tribunals that cost a lot of money, ran on for years and so on, we know that this was an alternative way of doing it that would be more succinct, that would hopefully get to the point more quickly and that would cost less. It held all that promise. Now, after the Commission of Investigation into Mother and Baby Homes, many people have lost confidence that this can happen. There is a reason for that.

Some of these unfortunate women in my constituency who went through the process discussed it with me. They spoke about how they had great hope and told their stories honestly. They had terrible, harrowing stories about being in mother and baby homes, about the way they were treated, about the stigma that was attached to them for half their lives and about the way they felt that society, the State, the church and everyone else treated them, which was so badly. They had hoped that something different was finally going to happen and that they would be listened to. Then the report came out. They looked at the contents, which did not match what they had told people. Then those who produced the report said, "Sorry, we cannot talk to anyone about it", and walked away. Yet, they leaked parts of the report and went to the media with bits of it. There was all sorts of completely inappropriate behaviour.

We expect the Government to embrace the idea and the proposal we have here and to recognise that we have to restore confidence in the process. That is what this Bill is about. It is about compelling those who produce these reports to stand over what they have produced such that they have to be scrutinised on them and have to have a certain level of accountability. That is not in any way second-guessing their independence, their stature, their ability or anything else. It is simply asking them to be accountable to the Oireachtas, which has responsibility for seeking these reports in the first place.

I hope the Minister will recognise that we are acting in the best of faith and that we are not here to try to hit the Government over the head about this matter. We are trying to get a solution to a major problem for the victims of the mother and baby homes calamity that occurred in this country. We also wish to ensure that there will be confidence in future commissions of investigation, that they will be done right and that those who run the process will do so with the best of intentions and come out at the end of it and be held accountable for what they produce. That is in everyone's interest. In that context, I hope the Minister will accept the Bill before us and that we will go ahead. If there are some small issues in it that need to be changed or tweaked, we can talk about that on Committee Stage and work our way through it. In general, however, the purpose of the process we are setting about here and the proposal we have put forward is to remedy a situation which everyone from every part of society recognised was a problem. Let us try to deal with that problem together.

Martin Browne (Tipperary, Sinn Fein)
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I thank and commend Deputy Kathleen Funchion for bringing forward this Bill. Like the speakers before me, I hope the Government will support it. The Bill is important because it seeks to ensure that certain members of any future commission of investigation, into whatever issue it is established to explore, cannot simply discharge their duties upon submission of its final report without a certain level of Oireachtas scrutiny.

Unfortunately, that is what happened with the Commission of Investigation into Mother and Baby Homes. Upon the publication of the report, survivors immediately noted differences between the accounts they gave to the commission and those in the final draft. Then we heard about recordings being deleted. Yet, amid all these concerns, we were told of the planned dissolution of the commission, which has been referred to. At the time, I called on the Minister not to dissolve the commission until answers to survivors' questions could be given by its members. In particular, these had to do with, first, why the survivor testimonies were changed in the report, and who ordered those changes; second, who ordered the original recordings to be deleted, and why; and, third, how survivors can expect to correct the report if the commission no longer exists. The final question represents the fundamental problem with the dissolution of the commission so quickly after the report's publication. The commission was supposed to seek answers, to provide some clarity for those denied justice for so long and to indicate possible routes forward in terms of framing redress and indicating where accountability might lie. It subsequently appeared, however, as though the commission would shake off its own shackles of accountability by dissolving itself almost immediately. This left survivors in the shocking position in which they were angered, upset and misrepresented, without recourse to question the commission about the misrepresentation of their accounts, or the lack of recognition of the hurt and trauma from children separated from their mothers.

Survivors have been through enough injustice in this life, and to be effectively stonewalled in getting inaccuracies and other issues to do with the commission's report addressed was yet another obstacle they had to navigate. Do not get me wrong: the commission served an important purpose, and without it I do not think we would have managed to get further scans done on land previously investigated at Sean Ross Abbey, Roscrea, in Tipperary. I thank the Minister and the Minister's staff for their assistance and commitment to getting that project approved and under way.

I wish to note the value of having the commission do the work it did. As I said, however, there are a range of issues with this, and the swift dissolution of the committee in the face of unanswered questions and concerns is a key factor here.

That is why the purpose of this Bill is to ensure that this does not occur again in any further commission of investigation, by ensuring future commission members cannot simply discharge their duties upon submission of their final report. It further allows for the appropriate examination by elected representatives of the terms of reference and the methodology and allows them to ask questions of commission members about the report relevant to them. To address any questions about the impact of this on the independence of any future commission, this Bill also provides for instances where former members are not required to give account. We need this Bill to be supported by this House in order that the limitations that survivors have encountered due to the dissolution of the commission are no longer encountered by those to whom future commissions have an obligation.

Helen McEntee (Meath East, Fine Gael)
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I thank Deputies, in particular Deputy Funchion, for tabling this legislation and allowing us to have this debate. The Bill, as was said, proposes to amend the Commissions of Investigation Act 2004 to require former members of a commission of investigation, upon written request, to appear before the relevant Oireachtas joint committee within six months of the presentation of the commission's final report. I will go briefly through some of the key elements of the Commissions of Investigation Act which I think are relevant in considering this Bill. I do agree and believe that there may be times following publication of certain commissions of investigation when it is appropriate for the chair in particular to make a public statement or to provide an explanation or clarification, especially to avoid confusion and to make sure that we maintain public confidence in the process itself and that those who are involved in the commission have confidence in it. However, it should be a matter for the chair himself or herself, or else the Minister of the day who is setting out the terms of reference, to say that very clearly. We know this happened with previous commissions of investigation whereby that was set out clearly in the terms of reference and where there was public commentary and clarification.

I note and acknowledge the reason Deputy Funchion has just outlined for the Bill being put forward. I do not for a second doubt her reason for putting it forward.

She has been very much to the fore of this in chairing the committee and her involvement with many of my own colleagues, and working with the Minister, Deputy O'Gorman. The chair requested at several stages that the commission would appear before the committee at that stage. That had been resolved. There has been an acknowledgment by the Minister, Deputy O'Gorman, and others that many people but, in particular, survivors, had been left very disappointed by aspects of the report, particularly by the tone and language used in the summary. They had not been able to get clarification or ascertain what they felt were the facts. I understand their feeling of disappointment in that regard. It does not change the fact, though, that in setting out the commission of investigation, the primary function is to establish the factual position about the matter under investigation. We talk about getting justice for people but we have to be clear that it is about setting out the facts and, hopefully, that will, in turn, provide some level of comfort or justice for people. That might not be the case either, however. It has to be absolutely clear that the establishment of a commission is to report on matters of significant public concern. It is to establish the factual position but, as the Deputy also set out, it remains completely independent at every stage. That is where the challenges have arisen regarding this Bill.

I will outline some of the challenges. The commission established under the Commissions of Investigation Act 2004 is required to act independently to conduct its investigation in accordance with fair procedures. This requires it to respect important legal principles that ensure relevant persons obtain a fair hearing and an opportunity to reply to evidence affecting them and their good name. The chairing of commissions is entrusted to persons, usually judges or former judges and senior lawyers, with the skills and expertise to ensure those legal principles are upheld in the conduct of the commission's work and in the writing of its report. It operates in a carefully controlled environment and aims to produce a carefully balanced report that can withstand legal challenge before the courts.

Section 35 of the Act provides that a draft report may be amended for reasons relating to a failure to observe fair procedure. When a commission finishes its report, it has no further authority to act. Requiring a member of a commission to come before an Oireachtas committee in the way suggested in the Bill would not be appropriate. It carries considerable risk to the principles of fair procedure to take the issue out of what is intended very clearly to be a controlled environment where the rights of participants, in particular, are protected and to potentially reopen them in an environment that is not in that sense carefully controlled. It could reopen some of the challenges, and the rights of the participants could be at risk.

Section 9 of the Act provides that: "A commission shall be independent in the performance of its functions" while section 10 provides that "A commission may, subject to this Act and the commission's rules and procedures, conduct its investigation in the manner that it considers appropriate in the circumstances of the case." The proposal in the Bill to require a former member to give account to an Oireachtas committee is not compatible with these particular provisions of the 2004 Act. In terms of separations of powers, it is sometimes the case, as I have mentioned, that members of a commission consist of a member of a Judiciary or, in fact, they may be the sole member or may be chairing. In the event that such a person was to appear before an Oireachtas committee, it is inevitable that difficulties would arise with separation of powers, which is a key element of the constitutional framework. Deputies need to consider this issue carefully before agreeing that the Oireachtas would enact legislation that would potentially give rise to difficulties in that regard.

The Bill also proposes that a former member of a commission shall not be required to give account with regard to number of specific matters, including any facts established by a commission. The Deputy said that specifically with regard to mother and baby homes and the establishment of facts and how the final conclusion was reached. If we cannot talk about the facts established, information concerning any person who is identified and evidence given to the commission in confidence because of that exclusion, members of the Oireachtas committee would have great difficulty in asking questions of any value while complying with the Bill.

Section 32 of the 2004 Act provides that "a commission shall prepare a written report, based on the evidence received by it, setting out the facts it established in relation to the matters referred to it for investigation." It goes on to state that where "a commission considers that the facts relating to a particular issue have not been established, the commission ... shall identify the issue, and may indicate its opinion as to the quality and weight of any evidence relating to the issue".

In light of this provision, therefore, it is reasonable to conclude that the report of a commission would deal as comprehensively as possible with the matter under investigation and, consequently, there would be nothing further for a member of the commission to add in the context of giving account to an Oireachtas committee. The Bill is based on the idea that a commission of investigation is to be accountable to a committee appointed jointly by both Houses of the Oireachtas. The 2004 Act provides for the establishment of a commission that is to be independent in carrying out its functions. It is to be the independent of the Government and also the relevant Minister responsible for overseeing administrative matters relating to the establishment of the commission. Again, the proposals in the Bill would not be compatible with this requirement for independence.

I want to stress again that I absolutely appreciate and understand the rationale behind the proposals. I reiterate that I believe there should be times where clarifications are needed and where there are issues that should be set out and explained, particularly where it avoids confusion but making sure confidence is maintained in this process. That is something that can and should be done through the Minister or the chair when setting out the terms of reference. For the reason I have outlined, however, there could be an implication for future commissions if we were to have a line crossed where that independence was in any way being jeopardised, not just the structure itself and the potential is there for the environment to have implications for those who have contributed to what is a very controlled environment and process, with challenges also arising if members of the Judiciary who are more likely to be the chair coming before a committee. Perhaps there is a way we could engage to see how we could make sure something that has happened previously does not happen again, as the Deputy outlined. I understand the disappointment and the manner in which some of it was dealt with, which was not fair to those who put themselves forward and took part in the commission. We could make it clear that there is a way forward. That type of clarification could be provided in the future so that something like this does not happen again.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I thank the Minister. I appreciate her comments regarding how the mother and baby home issue was handled. There is some possibility. I take on board what the Minister said regarding setting out a statement. I have to say, and the Minister will not be surprised, that just because of the level of work, particularly with the involvement of the Office of Parliamentary Legal Advisers, OPLA, I do not see the difficulties the Minister is outlining with the Bill. Rather than rehashing that, however, there may be some way we can consider amending the legislation. I know what the Minister is saying that sometimes it is in the terms of reference, but there may be a way of putting it in that it has to be part of the terms of reference or something else. If we can get a commitment that we can work on that, that would be good. We basically do not want a situation where what happened already happens again. The Minister is saying the commission of investigation has to come with a factual situation. If we look at the example I gave regarding the forced adoptions, that is just one part of it. However, it is one of the clearest. It was so obvious that the finding contradicted the evidence they provided themselves. If they are setting out factually that this is what they found from speaking to women, but then their finding is different, it is those types of things. Again, not to repeat myself, but it is not to interfere with that independence. It is to actually not allow a situation where so much time, effort and energy has gone into a report that everyone is waiting for, and when it comes out, everyone is left with far more . For those who are directly involved and who are telling their lived experience, not only are they left with more questions, but they are left with far more hurt, upset and anger. If there is a possibility of us looking at this, I would like to explore that.

Separate to that, as I said at the start, the reason for this was my involvement with so many women. I want to acknowledge them today. I never fail to be surprised by the number of women who have come forward to tell their stories. It even turns out that so many women I know had their own stories to tell, which maybe we would not realise. It is not an easy thing to do. It was a very difficult situation. There are so many women still trying to find children who are clearly well into their forties and fifties at this point and still have not been able to find them, and the same for adult children trying to find their mothers. It is just devastating and heartbreaking to think that we cannot go back into the past and change that situation, particularly as a mother. However, when it comes to what we can do going forward in trying to achieve this, whether it is setting out the factual situation of what happened to them or something else, there will always be a level of justice expected in that. We need to do that to our absolute best ability. The legislation has been there since 2004. It is not too demanding to ask that it be reviewed and that we look at how we can make some sort of positive changes to it. I would like to get a commitment on that. I will leave it at that.