Inquiry (Mother and Baby Institutions, Magdalene Laundries and Workhouses) and Redress Scheme Bill - EFM As Introduced
Inquiry (Mother and Baby Institutions, Magdalene Laundries and Workhouse) and Redress Scheme Bill EFM.pdf (355.71 kb)
Inquiry (Mother and Baby Institutions, Magdalene Laundries and Workhouses) and Redress Scheme Bill
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EXPLANATORY AND FINANCIAL MEMORANDUM
Introduction
1. This Explanatory and Financial Memorandum has been prepared by The Executive Office in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.
2. The Memorandum needs to be read in conjunction with the Bill. It is not, and is not meant to be, a comprehensive description of the Bill. So, where a clause or part of a clause or schedule does not seem to require an explanation or comment, none is given.
Background and Policy Objectives
3. The inquiry into Historical Institutional Abuse (2013-17) focused on residential institutions for children and, therefore, did not fully consider women and girls in Mother and Baby Institutions and Magdalene Laundries or children, now adults, born to these women and girls.
4. In 2018, on behalf of the Executive, the Department of Health commissioned a team from Queen’s and Ulster Universities to research the operation of Mother and Baby Institutions, Magdalene Laundries and pre 1948 Workhouses.
5. In January 2021, following publication of the Mother and Baby Homes and Magdalene Laundries in Northern Ireland, 1922-1990 report (the QUB/UU research), the Executive agreed to commission an independent examination of how to take forward the findings of the research recognising that, although it revealed much about the experiences, much remained unknown.
6. In March 2021, the Minister of Health established a Truth Recovery Design Panel (TRDP) which worked with victims and survivors to develop recommendations for an independent investigation and wider process relating to Mother and Baby Institutions, Magdalene Laundries and Workhouses.
7. In October 2021, the TRDP published its report entitled ‘Mother and Baby Institutions, Magdalene Laundries and Workhouses in Northern Ireland - Truth, Acknowledgement and Accountability’ (‘the Report’) which set out 5 core recommendations:
- Recommendation 1: Adoption of Guiding Principles;
- Recommendation 2: Responsibilities of The Executive Office;
- Recommendation 3: An Integrated Truth Investigation;
- Recommendation 4: Access to Records; and
- Recommendation 5: Redress, Reparation and Compensation.
8. In November 2021, the Executive accepted the recommendations of the Report. The Executive Office established the Truth Recovery Programme to deliver the recommendations. Progress to date has included:
a. dedicated support services for victims and survivors which almost 400 people have accessed to date;
b. the appointment of the non-statutory 10-person Truth Recovery Independent Panel (IP) that is leading on the first part of the investigation. It was appointed in April 2023 and will report in late 2025. A key benefit is providing victims and survivors an opportunity to provide testimony in a less formal setting than at the inquiry. The IndependentPanel’s findings and recommendations will help to shape the focus of the statutory public inquiry;
c. enactment of the Preservation of Documents (Historical Institutions) Act (Northern Ireland) 2022 which places a duty on record holders to preserve relevant records; and
d. constructive engagement with institutions, non-statutory and statutory bodies on preserving archival records including 4,500 items which are in private collections and associated digitisation of these records.
9. This Bill seeks to progress core elements in TRDP Recommendation 3 and 5 namely:
a. the establishment of a statutory public inquiry
b. the establishment of a statutory financial redress scheme
While it is unusual for legislation to set out redress payments alongside the establishment of an inquiry, this was recommended by TRDP to allow some financial redress to be paid to victims and survivors who have waited many years for acknowledgement.
10. The overall purpose of the public inquiry legislation is to provide an inquiry with similar powers to those under the Inquiries Act 2005 as recommended by TRDP. In broad terms, it will provide an independent inquiry into the facts to establish:
a. what happened,
b. why it happened, and
c. who was responsible.
The legislation gives the chairperson powers to establish rules and procedures governing the conduct of the inquiry, including powers to compel the production of evidence.
11. New or standalone legislation is requiredbecause the historical reference time period for the inquiry is 1922 – 1995, whereas the Inquiries Act 2005 does not allow an inquiry into Northern Ireland matters before 1973. The inquiry will be required to fulfil its terms of reference, which will set out in more detail outside of the Bill what is to be determined by the inquiry. This approach is in line with the Inquiries Act 2005, but it also enables the findings and recommendations of the IP and the views of an inquiry chairperson to be considered.
12. The Bill makes provision for the establishment of a Redress Service to administer a Standardised Payment redress scheme. This is needed:
a. To commit funding given the size of the scheme;
b. To create an independent body to administer and compel evidence from institutions and other parties; and
c. To establish payments which will not affect social security benefits (where relevant).
The Redress Service will open as soon as possible following Royal Assent and operational arrangements are being prepared.
13. Provisions allow for the appointment of judicial and non-judicial Redress Service members to make determinations on applications and for the administrative functions of the Redress Service to be managed by a designated Department.
14. The Standardised Payment is an acknowledgement to those impacted by a system of institutions established for women and girls, and its associated shame and stigma. The Bill makes provisions relating to entitlement to a payment, including both those affected directly and in respect of claims on behalf of the deceased.
15. The basis of the redress scheme is the Mother and Baby Institutions and Magdalene Laundries research in the 2021 QUB/UU report as there is clear, comprehensive and independent research on each institution considered. These are listed in Schedule 2 of Bill and there is a power for The Executive Office to add, remove or amend institutions or date ranges from the list.
16. The Bill gives the Redress Service power to compel the giving of evidence and allows the President to issue a restriction order to prevent the disclosure of information or a person’s identity where it is in the public interest to do so. A power to make regulations applicable to the redress scheme is also conferred by the Bill.
17. The inquiry’s findings and recommendations will inform separate legislation to establish a further Individually Assessed Payment scheme, as recommended in the Report.
Consultation
18. On the 27 June 2024, The Executive Office launched a 12-week public consultation on the policy proposals to establish a public inquiry and redress scheme for those affected by Mother and Baby Institutions, Magdalene Laundries and Workhouses, and their pathways and practices.
19. The consultation was supported by 16 public events, including online and in 4 regional locations. It was widely advertised in over 90 local, national and international newspapers with extensive outreach through embassies and consulates, targeted emails to community groups in these islands and beyond, and via social media.
20. 269 responses were received across a range of formats and included responses from 245 individuals and 24 groups or organisations.
Results of the policy consultation:
21. There was strong support for both a statutory inquiry and statutory redress scheme. Of the 9 questions asked on the inquiry proposals, 5 received a majority agreement and 4 did not. Of the 12 questions related to the redress scheme proposals – 5 received majority agreement, 5 did not and 2 had an equal split of opinion.
22. The consultation responses report is available to view at Truth Recovery – Public Consultation on a statutory Public Inquiry and Financial Redress Scheme – Consultation Report | The Executive Office. It includes a wide range of views and the use of direct quotes to reflect people’s views in their own words. Some key policy changes following the public consultation have included:
a. Amendment to eligibility criteria (removal of the required 24-hour duration);
b. Amendment to how posthumous claims can be made;
c. Extending the period the Redress Service will be open for; and
d. Addition of the power to establish an advisory panel.
Options Considered
23. Recommendation 3 of ‘the Report’ stated that one of the purposes of the public inquiry would be to ‘exercise powers of investigation equivalent to those of a Public Inquiry under the Inquiries Act’. As noted above, having explored the initial options it was determined that the Inquiries Act 2005 could not be utilised due to the proposed historical timeframe (1922-1995), as it would not allow an inquiry into Northern Ireland matters before 1973.
24. It was considered that bespoke legislation would be the most appropriate route to fulfil the obligations under ‘the Report’ recommendations. The legislation would need to enable the operation of the statutory public inquiry and allow for a redress scheme to be established.
25. The initial options considered to progress the required legislation included:
Three separate Bills;
i. inquiry
ii. Standardised Payment (SP) and
iii. Individually Assessed Payment (IAP) Redress;
Two Bills comprising
i. an inquiry and
ii. a combined SP and IAP Redress;
Two Bills comprising
i. a combined inquiry and SP Bill, and
ii. an IAP Redress;
One composite Bill to cover all 3 areas.
26. It was decided that a Bill covering a public inquiry, and the first part of the redress scheme (the Standardised Payment) is the most appropriate approach (the third option above). This will enable the establishment of a statutory inquiry and would satisfy the need to make an acknowledgement redress payment at the earliest opportunity. Considering the Individually Assessment Payment separately will allow the inquiry to inform its nature and characteristics.
Overview
27. The draft Bill has 47 clauses and 4 Schedules. Part 1 covers the inquiry and Part 2 covers redress.
Commentary on Clauses
Part 1 – TRUTH RECOVERY PUBLIC INQUIRY
The inquiry.
Clause 1: The inquiry
This clause allows the First Minister and deputy First Minister, acting jointly, to establish a public inquiry to investigate Mother and Baby Institutions, Magdalene Laundries and Workhouses during the time period 1922 to 1995.
Subsections (2) to (4) gives the inquiry its title (Truth Recovery); signposts the inquiry terms of reference (clause 2); and makes clear that the reference period for the inquiry is from 1922 to 1995, inclusive.
Subsection (5) outlines that the inquiry can hear evidence about the ongoing effects on individuals of their experiences during the period 1922-1995, and how these may have impacted them.
Subsection (6) explains this inquiry will not duplicate the work of the Historical Institution Abuse (HIA) inquiry in terms of revisiting what happened to specific individuals in institutions that have already been investigated. The inquiry may nevertheless inquire into facts relevant to its purposes if those facts were not established by the HIA inquiry when investigating a given institution, for example, the HIA inquiry only examined the experience of under-18s in Magdalene Laundries.
Subsection (7) signposts that sections 3 and 4 contain the definitions for the inquiry part of the Bill.
Clause 2: Terms of Reference
This clause explains that the terms of reference of the inquiry (including any amendments to those) will be prepared and published by the Executive Office, after consultation with the chairperson. This is in line with the Inquiries Act 2005 and reflects that the ongoing investigation being completed by the Independent Panel may help inform the inquiry terms of reference. Subsection 2 also includes those purposes of the inquiry, which must, at a minimum, be included in the terms of reference. The full terms of reference may, therefore, include more specific objectives than those which the Bill states must be included.
Subsection (2) details those elements that must be included in the terms of reference when they are published, after the chairperson has been consulted. These include that the inquiry must determine if there were systemic failings by the institutions, by public bodies or by other persons in certain circumstances (defined in Subsections (2)(a), (2)(b) and (2)(c) below);
(i) The type of institutions that can be prescribed are described in clause 3 (see below). “Prescribed” means being listed in secondary legislation for approval by the Assembly; so, these are the individual Mother and Baby Institutions, Magdalene Laundries, Workhouses and any other institutions that the inquiry will investigate.
(ii) “Public bodies” are defined (see clause 28) as “a body established by or under any statutory provision”, that is ‘by law’. These include, for example, central government Departments, local authorities, the legal and medical systems, social services or the adoption system.
(iii) “Other persons” can mean individual persons, or corporate bodies including GPs, clergy, social workers, baby homes, private nursing homes or businesses all of which may have been involved with women and girls in the institutions and children, now adults, born while their mothers were in an institution.
Subsection 2(a) means the inquiry must consider systemic failings by the above three groups in their care of “relevant persons” (defined in clause 4) while the individuals were being admitted to an institution, or were under its care, or in their departure from the institution. This provision ensures the inquiry can take into account the experiences of individuals and organisations associated with the routes, pathways and practices leading into and from the institutions, as well as the care of individuals while in the institutions.
In this provision the term ‘under the care of’ is used as a broad term only and encompasses all types of care without a value judgement on the quality of the ‘care’ given. The inquiry will investigate the standard of the care that was provided to those relevant persons.
Subsection 2(b) means the inquiry must also consider whether there were systemic failings by prescribed institutions, public bodies or other persons in how they registered, regulated or inspected the listed institutions. This allows the inquiry to give due account to the relevant legislation in place between 1922-95 to identify the nature of the registration, regulation and inspection functions which institutions, public bodies or persons were required to observe.
Subsection 2(c) ensures the inquiry must focus on the arrangements made for children, now adults, to be placed in the care of others, whether that is in terms of adoption, fostering or other arrangements, for example, boarding out, being placed in another institution or with a relative other than with a biological parent (subsections (5)(a) and (5)(b)).
Subsection 2(c)(i) refers to the placement of children who were born while their mothers were under the care of an institution of interest. Subsection (2)(c)(ii) ensures that a child, now adult, whose mother left an institution to give birth (for example, in a hospital) and did not return to the institution, is also included.
Subsection (3)notes that any changes made to the terms of reference will be prepared and published by The Executive Office.
Subsection (4)(a) outlines that when preparing the terms of reference, The Executive Office must consult the chairperson and (subsection (4)(b)) must consider the TRDP Report recommendations.
Clause 3: Definition of “prescribed institutions”
This clause allows The Executive Office to specify in secondary legislation the Mother and Baby Institutions, Magdalene Laundries, Workhouses and other institutions that it wishes the inquiry to investigate.
Subsection 3(1)(d) - gives The Executive Office the flexibility to include other institutions including, for example, those recommended by the Independent Panel, should this prove necessary.
Clause 4: Definition of “relevant persons”
This clause provides for the meaning of a ‘relevant person’ and lists those people on whom the inquiry will focus.
Subsection (2)gives The Executive Office the power to exclude certain individuals who may seem to satisfy the definition of ‘relevant persons’ but would be outside the intended scope of the inquiry.
Subsection (3) gives The Executive Office the power to amend the definition of a ‘relevant person’ should this be required.
Clause 5: The inquiry panel
The aim of this clause is to provide Ministers with the flexibility to appoint an inquiry panel that is appropriate to the circumstances under investigation. The panel will consist of a chairperson alone or a chairperson and one or two other members.
Subsection (2)outlines that the inquiry panel does not have authority to decide on an individual’s civil or criminal liability. Note – this is a standard principle of a public inquiry.
Clause 6: Appointment of members
This clause sets out how each member of the panel is to be appointed by the First Minister and deputy First Minister acting jointly, in writing. If the panel has other members, as well as the chairperson, certain conditions (subsections (3) to (6)) apply when these other panel members are being appointed.
Subsection (3) says that subsection (4) only applies where the inquiry has not yet begun to consider evidence. Subsection (4) indicates that a panel member, other than the chairperson, can only be appointed after the First Minister and deputy First Minister have consulted the chairperson.
Subsection (5) says that subsection (6) only applies in the situation where the inquiry has already begun to consider evidence. Subsection (6) indicates that another panel member can only be appointed if the chairperson consents to their appointment. In this situation, the chairperson has to agree to the appointment, rather than being consulted about it, as in the previous paragraph.
The expectation is that members will remain with the inquiry until their task is completed; nonetheless, vacancies may arise. This subsection therefore enables Ministers, acting jointly, after consulting / obtaining the consent of the chairperson (as above), to make further appointments either to fill vacancies which arise or, if necessary, to increase the number of panel members.
Subsection (7) allows the First Minister and deputy First Minister to appoint a replacement chairperson from an existing member of the inquiry panel, if required.
Clause 7: Requirement of impartiality
This clause seeks to ensure the integrity and impartiality of the inquiry panel and aligns with the Inquiries Act 2005.
It does this by requiring that Ministers are not to appoint people as members of the inquiry panel where certain things apply:
In subsection (1) - if it appears to them that the person has: -
(a) A direct interest in the subject matter of the inquiry, or
(b) A close association with someone who might be an interested party
A person may be said to have a ‘direct interest’ in the matters to be investigated by the inquiry if those matters have directly impacted their personal life.
In contrast, “close association” focuses not so much on the interests of the individual, but on the links (whether personal or professional) that the individual has. An “interested party” might be someone who could be affected by the outcome of the inquiry. For example, were an inquiry panel member to have ties with a witness, there might be concerns about how fairly the inquiry panel member would treat the evidence provided by that witness.
There might be cases in which it would be beneficial to the inquiry to appoint a person with more direct experience of the area under investigation, and subsection (2) allows for this. In some specialised subject areas, for example, it could be difficult to find panel members who did not have some sort of association with those involved, or a general interest in the subject matter. Even if a prospective panel member did have a “direct interest” or “close association”, this subsection allows Ministers to appoint the individual, provided that the interest or association could not reasonably be regarded as affecting the impartiality of the panel as a whole.
Subsection (3) requires a panel member to notify the First Minister and deputy First Minister, before their appointment, of any direct interests or close associations that might affect their eligibility to be appointed, as outlined above.
Subsection (4) requires a panel member to notify Ministers of any matters that might have affected their eligibility for appointment if they become aware of these during the course of the inquiry.
Subsection (5) requires that an inquiry panel member should not engage in any activity that could reasonably be considered as calling their impartiality into question.
Clause 8: Duration of appointment of members
This clause states that panel membership continues until the inquiry ends, but outlines the circumstances and any conditions that need apply if membership was to end, be suspended or terminated.
Should a panel member have to resign from the panel before the end of the inquiry, this is dealt with by subsection (2).
Subsection (3) sets out the grounds on which the First Minister and deputy First Minister acting jointly may suspend or terminate a panel member’s appointment. These include, (a) physical or mental illness that renders them unable to carry out their duties, (b) failure to comply with a duty that arises as part of their panel membership, (c) any direct interest or close association such as might arise under clause 7, (d) due to bankruptcy, (e) any misconduct since being appointed that might make membership inappropriate.
Subsection (4) allows the First Minister and deputy First Minister to take into account the duration of the inquiry when considering suspending or terminating an appointment on the grounds of illness (subsection 3(a)) that is likely to be temporary.
Subsection (5) qualifies the First Minister and deputy First Ministers’ right to suspend a member under subsection 3(c), if they were aware of the interest or close association in question, when appointing the member.
Subsection (6) requires the First Minister and Deputy First Minister, acting jointly, to consult the chairperson before suspending or terminating an appointment of a panel member (other than the chairperson) under subsection (3).
Subsection (7)sets out the requirements which the First Minister and deputy First Minister acting jointly must observe before suspending or terminating a panel member’s appointment under subsection (3). These include an obligation, (a) to inform the member of their intention to suspend or terminate the appointment, (b) to provide reasons for the intention, (c) to allow the member to respond, (d) to consult other members of the panel, if requested, regarding their intention to exercise these powers. This includes the situation (d)(i) where the member whose suspension or termination is being considered is the chairperson and (d)(ii) where the person whose suspension or termination is being considered, is not the chairperson. In the latter situation Ministers may consult other members of the panel (other than the chairperson).
Clause 9: Assessors
Assessors may be appointed to provide the inquiry with expertise in a particular field whose knowledge, where necessary, can provide the panel with the expertise it needs to fulfil its terms of reference. They are not members of the inquiry panel, do not have powers under this Act and are not responsible for the inquiry’s findings or its report. An assessor may be appointed for all or part of the inquiry.
Clause 10 - Advisory Panel
This clause provides the power to establish an advisory panel. Given the complex and sensitive issues to be investigated by the inquiry, the chairperson may wish to appoint an advisory panel to offer advice as and when required.
Subsection (3)(a-d) outlines the criteria for panel membership. An advisory panel may be appointed for all or part of the inquiry.
Subsection (5) provides clarification on the definition of a relative for subsection (3)(c).
Clause 11: Power to suspend inquiry
An inquiry may be one of a number of investigations into a particular matter. Often, the respective timing of these is very important; for example, to ensure that an inquiry does not prejudice a criminal prosecution. The results of other investigations may also inform the inquiry and help prevent duplication. In the event that new investigations or proceedings come to light or begin after the inquiry has started, it may be necessary to halt the inquiry temporarily. This section sets out the circumstances in which Ministers may, after consulting the chairperson, suspend an inquiry to allow other proceedings to be completed.
Clause 12: End of inquiry
Subsection (1)(a) provides that the inquiry ends provided its report has been submitted, its terms of reference fulfilled and it is completed within any time period stated in the external terms of reference. However, circumstances could arise (as yet unforeseen) in which it is no longer necessary or possible for the inquiry to continue. Therefore, as a safeguard, subsection (1)(b) provides for Ministers, acting jointly, after consulting the chairperson, to end the inquiry earlier if necessary.
Clause 13: Evidence and procedure
Subsection (2) provides for the chairperson to be able to administer oaths and take evidence under oath.
Subsection (4) requires the chairperson of the inquiry to act fairly throughout the inquiry.
Subsection (4) also requires the chairperson to take into account the need to avoid unnecessary cost in planning and conducting proceedings. Every decision to hold a hearing, to call for evidence, or to grant legal representation may add to the cost of the inquiry. This subsection strengthens the chairperson’s ability to defend decisions in which the need to limit the cost of the inquiry is a factor.
Clause 14: Public access to inquiry proceedings and information
This clause makes clear that, subject to any restrictions issued under the following clause, the chairperson can take whatever steps they judge as reasonable to ensure that the public (including reporters) can attend the inquiry or see and hear a transmission of it. The chairperson is able to judge what is reasonable, so for example, if the inquiry panel has been sent documents that it considers to be irrelevant then the chairperson may decide not to make those available with the rest of the evidence.
Broadcasting of inquiry proceedings is at the chairperson’s discretion. In deciding whether to allow broadcasting during proceedings, the chairperson will need to consider whether it will interfere with the witnesses’ human rights and, in particular, with the right to respect for a private and family life (Article 8 of the European Convention on Human Rights).
Clause 15: Restrictions on public access, etc.
This clause sets out the extent to which inquiry proceedings can be held in private, evidence is withheld from the public domain or a person’s identity is concealed. The chairperson can do this by issuing restriction orders, the purpose of which is to is to protect against the risk of harm and damage to the public interest or an individual.
Subsection (2) makes it clear the restriction order must clearly set out the specific restrictions which are to be applied.
Subsection (4) sets out a number of matters that must be taken into account when determining whether it is in the public interest to issue a restriction order.
Subsection (4)(c) covers cases in which the chairperson’s powers to compel evidence can be used to override confidentiality restrictions, so that information can be provided to the inquiry and that the chairperson can consider preventing the information being disclosed more widely.
Subsection (5) enables the chairperson to change or withdraw restriction orders. This allows for situations in which it becomes apparent that more information can be made public than was originally envisaged, or that more people can be given access to information than allowed by the original order, as well as any situations in which it becomes apparent that further restrictions are necessary or, in the case of a withdrawal of an order, that they are no longer necessary.
Subsection (6) provides that restrictions on the disclosure or publication of evidence or documents continue indefinitely unless the time period of the specific restrictions has expired at the end of the inquiry, or the specified restrictions have been changed or withdrawn by the chairperson under subsection (5) or the whole restriction order is withdrawn under subsection (5) or a notice under subsection (8).
Orders restricting attendance will be relevant only during the course of the inquiry. Orders preventing the identification of witnesses, may need to continue beyond the end of the inquiry.
Restrictions under this clause could prevent a person from passing on information that he/she learned through involvement in, or attendance at, the inquiry. Nothing in this clause is intended to prevent witnesses from passing on evidence that they themselves have given to the inquiry, either during the inquiry or after it has ended.
Clause 16: Powers to require production of evidence
Subsections (1) and (2) give the chairperson powers to compel by notice witnesses and evidence and for these to be supported by appropriate enforcement measures, offences, penalties and sanctions.
By way of explanation, it is expected that people will voluntarily respond to the requests from the inquiry either to appear as a witness or to provide evidence. However, some individuals or organisations may refuse. Others may be unable to provide the information required by the inquiry without a formal notice, either because there is a statutory bar on disclosure or because of concerns about breaking confidentiality agreements.
Subsection (4) enables the chairperson to change or withdraw a notice, either because the person does not have the required evidence; or because the terms of the initial notice were unreasonable, for example, because the timescale set is unrealistically short, the cost unreasonably high or the volume of material unreasonably great; or when the evidence requested is unlikely to be of material assistance to the inquiry.
Subsections (7) and (8) make it clear that the powers given to the chairperson by this clause apply to transferred matters at the time the powers are exercised, not when the event under investigation occurred (transferred matters are those issues for which the Assembly has full law-making powers).
Clause 17: Privileged information, etc.
Subsection (1)(a) ensures that witnesses before the inquiry have the same privileges, in relation to requests for information, as witnesses in civil proceedings.
Subsection (1)(b) provides an exemption from producing evidence if this is incompatible with an “assimilated obligation”. An assimilated obligation refers to a legal obligation that derived from EU law, but has been incorporated into domestic law.
Subsection (2) allows evidence to be withheld on the same grounds of public interest immunity that would apply in civil court proceedings in Northern Ireland.
Clause 18: Submission of reports
The chairperson must deliver the inquiry report (and/or any interim reports, if applicable) to the First Minister and deputy First Minister.
Subsection (1)(a-b) ensures that the report must set out the facts of the inquiry and recommendations where the terms of reference have required them to be reported.
Subsection (2)outlines that the report may also contain anything else that the inquiry panel may feel relevant even if outside their agreed terms of reference.
Subsection (3) allows the inquiry chairperson to deliver an interim report containing anything that a report under subsection (1) may contain, prior to the final inquiry report being provided.
Subsection (4) outlines that should the inquiry panel not agree on some areas of the report, that the points of disagreement must be reasonably reflected in the interim report or final inquiry report.
Clause 19: Publication of Reports
The chairperson is responsible for publishing the inquiry’s report in full, except for elements which they are required by law to withhold, or which they decide must be withheld in the public interest and to prevent any risk of harm or damage to an individual. The inquiry report cannot be published until it has been delivered to the First Minister and deputy First Minister and at least 2 weeks have passed.
Clause 20: Laying of reports before the Assembly
The First Minister and deputy First Minister, acting jointly, will lay any report published under clause 19 before the Assembly when it is published or as soon as possible thereafter.
Clause 21: Expenses of witnesses, etc.
This clause enables the chairperson, with the approval of The Executive Office, to award reasonable amounts to cover witness costs. These include the legal costs of certain witnesses called to the inquiry. The Executive Office will set out broad conditions under which payment may be granted, and the chairperson will then advise in relation to the individual cases. Clause 27 subsection (1)(c) provides for The Executive Office to make rules in relation to this clause.
Clause 22: Payment of inquiry expenses by the Executive Office
This clause makes provision about payment of various expenses of the inquiry. It makes clear that The Executive Office must pay any amounts awarded under clause 21.
Under subsections (4) and (5), having notified the chairperson, The Executive Office will not fund activities it considers as being outside the inquiry’s terms of reference. The Executive Office would resume funding if satisfied the inquiry is again working within its terms of reference.
Subsection (6) requires The Executive Office to publish the total cost it has incurred under this clause.
Clause 23: Offences
Subsection (1) makes non-compliance with a notice served under clause 16 or a restriction order, an offence.
Subsections (2) make it an offence during the course of the inquiry for a person to do anything which is intended to distort, alter, or to prevent evidence from being provided to the inquiry.
Subsection (3) makes it an offence during the course of the inquiry for a person to intentionally suppress or conceal a document that is a relevant document; or to alter or destroy a relevant document.
Both these subsections are drafted so that it should not be possible for a person to commit an offence unintentionally (for example by destroying a document that he/she does not know to be relevant).
Subsection (4) defines a “relevant document”.
Subsection (5) ensures that it is not an offence to withhold privileged information under clause 17. This subsection also ensures that offences of altering or distorting information do not apply to actions authorised by the chairperson – for example, if material is redacted from documents in accordance with guidance issued by the inquiry.
Subsection (6) provides that only the chairperson may begin proceedings for non-compliance with a notice issued under clause 16 or non-compliance with, or contravention of, a restriction order. This is because it is for the chairperson to decide whether to enforce notices issued under their power of compulsion, and how best to do this. There are two enforcement options: prosecution of an offence under clause 16 or enforcement of the notice by the High Court under clause 24.
Prosecutions for offences under subsections (2) or (3) may be brought only by, or with the consent of, the Director of Public Prosecutions (subsection (7)); this means that it is not possible for anyone with an interest in the outcome of the inquiry to bring a private prosecution against witnesses with whose evidence they disagree. It also means that prosecutions can be brought after the inquiry has finished.
Subsection (8) makes provision for the penalties for an offence under this section. A person found guilty of an offence will be liable to a fine of up to level 3 on the standard scale on summary conviction or to imprisonment for up to 6 months, or to both.
Clause 24: Enforcement by High Court
Where a person breaches a restriction order or a notice issued under clause 16, or threatens to do so, the chairperson may refer the matter to the High Court, which can then take steps to enforce the order.
Clause 25: Immunity from suit
This clause provides immunity for the inquiry panel, the inquiry’s legal advisers, those appointed to the advisory panel, assessors, staff and anyone else engaged to assist it, from any civil action for anything done or said in the course of carrying out their duty to the inquiry. For the purposes of defamation law, witness statements and inquiry reports are covered by the same privilege as proceedings before a court.
Clause 26: Time limit for applying for judicial review
The time limit of 14 days in this section runs from the date on which the applicant becomes aware of the decision, not from the date on which the decision was made. The exclusions to this time limit are explained in subsections (2) and (3).
Clause 27: Rules
This clause enables The Executive Office under subsection (1) to make rules subject to negative resolution in the Assembly in matters of evidence and procedure related to the inquiry, the return or keeping, after the end of the inquiry, of inquiry documentation and the award of witness expenses under clause 21.
Subsection (2) allows The Executive Office to make provision for witness anonymity orders.
Subsection (3) allows for disclosure of evidence under subsection (1)(a) where this is required to avoid a breach of the Human Rights Act 1998.
Subsection (4) provides for the chairperson or a nominee to assess the amount of any awards under clause 21, and for such assessments to be reviewed, should someone be dissatisfied with it.
Clause 28: Consequential amendments
This clause specifies some minor and consequential amendments to other legislation made as a result of this Act.
Clause 29: Interpretation of this Part
Defines key terms used in the Bill.
Part 2 – PAYMENT OF REDRESS
The Truth Recovery Redress Service.
Clause 30: The Service
This clause establishes a Redress Service (“the Service”) to administer the scheme and outlines that the Service’s duty is to determine applications for redress.
Further detail about the functions and structure of the Service is contained in Schedule 1.
Clause 31: Entitlement to a payment
This clause sets out who is entitled to a redress payment.
Subsection (2) provides that a person is eligible if: (a) they were admitted to an institution listed in Schedule 2 (during the time period specified) and (b) the primary reason for their admittance was to receive shelter or maintenance (or both).
Subsection (3) (a) and (b) sets out that an eligible person can be either an adult or a child, now adult, admitted to a listed institution and the “shelter or maintenance” should not be a by-product of medical services.
Subsection (4) (a) and (b) provides that an eligible person is someone born while their birth mother was ‘under the care of’ a listed institution or someone whose birth mother had been ‘under the care of’ a listed institution until immediately before their birth.
Subsection (5) (a) and (b) allows payments to certain relatives of a deceased person who would have been eligible under subsection (2) or (4) if the deceased was alive on or after 29th September 2011.
Subsection (6) and (7) mean that secondary legislation can provide that persons who would otherwise be eligible are not to be eligible, as long as it is approved by the Assembly.
Subsection (8) means that a person may be eligible for only 1 payment of £10,000 regardless if a person was admitted to multiple institutions and / or the same institution on different occasions.
Subsection (9) (a) and (b) provides that a person admitted to a listed institution or a person whose birth mother was admitted to an institution is entitled to a £10,000 payment. An eligible family member of the deceased is entitled to a £2,000 payment. Note – a person could be eligible for both a £10,000 and a £2,000 payment if they meet the required eligibility criteria for each payment.
Subsection (10) introduces Schedule 2, which defines the relevant institutions and their related time periods.
Subsection (11) sets out that the relatives eligible for a £2,000 payment are defined in Schedule 3.
Clause 32: Time limit for applications for payment
This clause provides that an application must be made within three years of the scheme’s advertisement in the Belfast Gazette.
Subsection (2) allows The Executive Office to extend the scheme up to two years via secondary legislation.
Clause 33: Applications for payments
This clause sets out that the Service is to decide the form in which applications are to be made, and that the President must assign an application to a judicial member or a panel of members (one of whom must be a judicial member).
Clause 34: Priority of applications
This clause sets out the circumstances in which certain applications can be prioritised.
Subsection (1) and (2) means that applications from the terminally ill must be prioritised and how this is defined.
Subsections (3) and (4) allow the Service to decide the priority of application with particular regard to the age and health of applicants.
Clause 35: Power to require further information or oral evidence
This clause gives any judicial member of the Service the power to compel evidence in order to determine an application.
Subsection (2) (a) and (b) provides that the judicial member may, by notice, require a person to provide written or oral evidence on or by a specific date.
Subsection (3) (a) and (b) and subsection (4) means that the person issued with the notice may seek exemption due to an inability to comply or if compliance is unreasonable. Under these circumstances, the judicial member may confirm, withdraw or change the notice.
Subsection (5) (a) and (b) and subsection (6) outlines that records must be redacted if the release of the records would disclose of information about a person not related to the application or where a breach of confidentiality would occur.
Subsections (7) and (8) provide that a person may refuse to comply with a notice if, in proceedings before the High Court, the person would be entitled to refuse to comply with the requirement or if it contravenes data protection legislation. In all other circumstances, the notice must be complied with.
Subsections (9) and (10) set out that it will be an offence if a person fails to comply with a requirement of a notice or intentionally carries out actions which will obstruct or alter the provision of information as may be required under a notice.
Subsection (11) provides that a person found guilty of an offence under subsections (9) or (10) will be liable on summary conviction to imprisonment for up to 6 months or a fine of up to level 3 on the standard scale.
Clause 36: Power to disclose information
This clause sets out the circumstances in which the Redress Service can disclose information.
Subsection (1) provides that that Service can disclose any information where it considers that it is necessary to do so in order to determine an application (for example, it may be necessary to disclose a certain amount of information about an individual when asking another person or organisation to supply whatever information it has about that individual).
Subsection (2) (a) and (b) allows recipients of the information to use or disclosure it further, where necessary for the same purpose.
Subsection (3) (a) and (b) means that information cannot be disclosed if doing so would contravene existing data protection legislation.
Clause 37: Payments
This clause sets out how payments will be made and treated in relation to certain means-tested benefits.
Subsections (1) and (2) sets out that payments are to be made to any eligible person and they should be in a single lump sum. It is intended that payments will be made by the designated Department. Payments may be made on trust, if regulations under clause 42(2)(e) permit it.
Subsections (3), (4) and (5) provides that a payment will be disregarded for an assessment of social security benefits, residential care costs and means-tested Legal Aid. Subsection (3) does this by introducing Schedule 4, which makes amendments to social security legislation to this effect.
Clause 38: Right to appeal
This clause sets out arrangements for appealing against a determination.
Subsections (1) and (2) mean that a person can appeal against a decision to refuse the application as long as they do so within 30 days of the decision. The Service may extend the deadline in exceptional circumstances.
Subsection (3) (a) and (b) sets out that an appeal must be in writing and include the grounds for the appeal. It must also comply with any requirements set out in the secondary legislation made under clause 42.
Subsections (4) and (5) provide that the President must assign an appeal to a different judicial member than the one who oversaw the original determination.
Subsection (6) means that the single judicial member will make a determination on the appeal subject to the same procedures used by the panel in making the original determination on the application (after having fully re-considered all the facts and details provided).
Subsection (7) (a) and (b) sets out that the judicial member overseeing the appeal can confirm or reverse the decision. If a decision is reversed, the payment must be made to the applicant. Payments may be made on trust, if regulations under clause 42(2)(e) permit it.
Subsection (8) means that an appeal decision is final.
Clause 39: Advice and assistance
This clause covers the provision of advice and assistance to applicants.
Subsection (1) (a) and (b) sets out that the Redress Service may provide advice and assistance to applicants and financial management advice to successful claimants.
Subsection (2) (a) and (b) places a duty on the Secretary of the Service, when requested by the Department of Justice, to provide it with the names and addresses of applicants to the Service who have received legal advice and assistance and the details of the solicitors who have provided the advice and assistance. This is to allow the Legal Services Agency to check that there is no duplication of advice being offered to applicants through legal advice and assistance arrangements under the Bill and advice and assistance provided under the statutory legal aid scheme.
Clause 40: Orders restricting disclosure of information
This clause enables the President of the Service to impose restrictions, by order, on the disclosure or publication of any evidence or documents given, produced or provided to the Service, or on the disclosure of a person’s identity.
Subsection (2) means that a panel or single judicial member may also impose a restriction order.
Subsections (3) limits the restrictions that can be made in an order to those which are required by law or which the person making the order considers necessary in the public interest.
Subsection (4) and (5) means that the restrictions will remain in force indefinitely unless the President, panel or judicial member specifies an expiry date within the order. The restrictions may be varied or revoked by the President, panel or judicial member.
Clause 41: Advisors
This clause sets out that the Redress Service may appoint any advisors it deems to have relevant expertise. It may terminate the appointment of advisors at any time.
Clause 42: Regulations
This clause allows The Executive Office to make regulations in relation to payments and applications.
Subsection (2) covers some specific areas for which regulations can be made:
(a) Evidential requirements for applications
(b) Time limits
(c) Costs in relation to legal advice and assistance
(d) Reimbursement of expenses
(e) For payments to be made in trust
(f) Procedure for when an applicant dies before determination
(g) Procedure for appeals
(h) Recovery of payments made certain circumstances (such as when they are made in error)
(i) Withdrawal of an application or appeal.
Part 3 – GENERAL
Clause 43: Application to the Crown
This clause binds the Crown.
Clause 44: Power to make supplementary, etc., provision
This clause provides power by regulations to make supplementary, transitional, consequential etc provision where necessary. Such regulations must be laid in draft and approved by the Assembly.
Clause 45: General Interpretation
This clause is an interpretation clause for several provisions occurring throughout the Bill.
Clause 46: Commencement etc.
Parts 1 and 3 of this Act come into operation on the day after Royal Assent, whereas Part 2 (and the Schedules) come into operation on a day appointed by order made by The Executive Office.
Clause 47: Short Title
States the name of the Bill by which it is generally known and referred to publicly.
SCHEDULES
Schedule 1
Paragraph 1 sets out that the Redress Service is a body corporate.
Paragraph 2 means that The Executive Office must ensure the establishment of the Service is advertised in the Belfast Gazette.
Paragraph 3 requires the Service to have at least two judicial members (one of whom is to be the President) and at least one non-judicial member. There may be such additional judicial members as the President considers necessary (with the approval of The Executive Office) and such additional non-judicial members as The Executive Office considers necessary.
Paragraph 4 requires The Executive Office to designate a Department to exercise the administrative functions of the Service.
Paragraph 5 sets out arrangements for the appointment and remuneration of the President and other members. The Lady Chief Justice will appoint a President of the Service and other judicial members. The Lady Chief Justice may also appoint an interim President if the serving President is unable to fulfil his or her duties. The Executive Office will appoint other members of the Service. These other members must have relevant professional qualifications or experience, so are likely to be from health or social care professions. The designated Department will be responsible for remunerating members of the Service and reimbursing them for expenses reasonably incurred.
Paragraph 6 sets out that the President has responsibility for the efficient and effective discharge of the Service’s functions. The Service can take any action it considers appropriate in the exercise of its functions, apart from borrowing money.
Paragraph 7 requires the designated Department to provide administrative staff (with the approval of The Executive Office as to numbers, if The Executive Office is not the designated Department). This must include a Secretary to the Service and may include a Deputy Secretary. The designated Department must also provide office accommodation and equipment.
Paragraph 8 allows the President of the Service to delegate any of his functions to another member of the Service or the Secretary. The Service may also establish committees to which it may delegate functions or to provide advice to the Service or President.
Paragraph 9 means that the President’s signature or that of his authorized staff is required to authenticate the seal of the Service.
Paragraph 10 sets out that any document signed by the Service or on behalf of the Service or executed with the Seal of the Service will be admissible as documentary evidence in legal proceedings.
Paragraph 11 provides that the designated Department will receive funds from The Executive Office through the relevant standard procedures. Annual grants to the Department will form part of The Executive Office’s budget and the Department will be invited to submit a budget bid to The Executive Office for each financial year.
Paragraph 12 means the Service is required to report back annually to The Executive Office on the exercise of its functions and on the use of financial resources at its disposal. The Executive Office must ensure a copy of each annual report is laid before the Assembly.
Paragraph 13 adds the Service to the list of bodies in Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975, so ensuring that any judicial member (once in post) cannot also hold membership of the Assembly.
Paragraph 14 means the Service is added to the list of public authorities in Part 7 of Schedule 1 to the Freedom of Information Act 2000. It will, therefore, fall within the scope of the Act, but only in relation to its administrative functions.
Paragraph 15 adds the Service to the list of tribunals whose administrative functions are subject to investigation by the Public Services Ombudsman in Northern Ireland. The principal purpose of the Ombudsman is to investigate alleged maladministration in government and public bodies.
Schedule 2
This Schedule lists the institutions which are “relevant institutions” for the purposes of eligibility under clause 31 for a payment and the relevant years they were in operation.
Paragraph 2 sets out that The Executive Office by regulations can add or remove an institution from the list and amend the relevant years. The regulations must be approved by the Assembly.
Schedule 3
This Schedule sets out who is to be an eligible relative for the purpose of claims on behalf of the deceased.
Paragraph 1 means that the eligible relatives are the partner of the deceased, and any child of the deceased.
Paragraph 2 defines a partner as a cohabiting partner of at least two years, or a spouse or a civil partner. This means that if a person has a spouse or civil partner but lives together with another person for two years or more, the cohabitee (rather than the spouse or civil partner) will be eligible for the payment.
Paragraph 3 clarifies that a child includes a child of the deceased who has been adopted by another person.
Schedule 4
This Schedule sets out the amendments required to social security legislation in order to ensure that a redress payment is disregarded for the purpose of means-tested benefits.
Financial Effects of the Bill
Summary of costs
28. Under the main scenario, the estimated costs of the Bill are £80m. This is based on planning assumptions and actual costs could be significantly higher (or indeed lower). An overview is provided below.
Public inquiry costs
29. The public inquiry costs are estimated to be £12m-£20m, with a main cost estimate of £14m. This figure includes, staffing, panel fees, legal and accommodation costs for the duration of the inquiry. It is based on benchmarking inquiry costs and assumes an inquiry period of up to 3 years.
30. This Bill requires The Executive Office to meet the costs of the inquiry acting within its terms of reference. This includes meeting or reimbursing reasonable witness expenses, including the reasonable legal expenses of certain witnesses. It enables The Executive Office to make statutory rules to govern the payment of expenses to witnesses.
31. The Bill also requires the chairperson, in making any decision as to the procedure or conduct of the inquiry, to act with fairness and be aware of the need to avoid any unnecessary cost (whether to public funds or to witnesses or others).
Redress payment scheme costs
32. The redress costs are estimated to be £30m - £96m, with a main cost estimate of £58m. The scheme will be based on admission to a relevant institution and include any children, now adults, born to a person while ‘under the care of’ a relevant institution.
33. This is a demand-led scheme, so it is difficult to accurately estimate the number of claims and costs.
34. An eligible person making a direct claim for their own experience would receive a £10k single award while an eligible family member making a posthumous claim on behalf of the deceased would receive £2,000. The claim and cost estimates are based on a 29 September 2011 posthumous date.
35. A number of factors have been considered to determine the potential number of claims including other state redress schemes, propensity to apply and the posthumous date. Propensity provides for three potential scenarios – the £58m cost estimate is based on the medium scenario below.
- Low scenario c3,400 claims
- Medium scenario c6,600 claims
- High scenario c11,000 claims
36. The number of claims relates to the total number of individuals (living or deceased) who would be eligible for a £10,000 payment, not the total number of applications (as a posthumous claim may have applications from more than one eligible family member).
37. The basis for the £2,000 payment is derived from the £10,000 that would have been received by the deceased person had they been living, and estimating there could be on average five potential applicants:
a. Average family size being three children during the relevant period (based on a metric called Total Fertility Rate);
b. A child, now adult, born to a woman or girl in a listed institution who was adopted by another person(s); and
c. A surviving spouse or partner.
38. It is acknowledged that posthumous claims is one of the most difficult policy issues (this was further highlighted in both the consultation and consultation responses) and the final policy will not address the many strong and divergent views and / or all the potential scenarios.
39. However, the approach importantly preserves the privacy of the deceased and their families (including any adopted children, now adults). The scheme will require individual applications, and allow for independent payments.
Redress administration costs
40. The administration costs are estimated to be £7.8m assuming a main scenario over a three-year period. This figure includes, staffing, panel fees, legal and accommodation costs for the duration of the three-year Redress Service with an additional £2.6m for Year 4 and £2.6m for Year 5.
41. The Bill requires The Executive Office to meet the costs of the Truth Recovery Redress Service i.e. the costs to administrate the scheme. This state redress scheme is intended to provide a timely and supported process. It is estimated to support over 6,600 claims and potentially over 10,000 individual applications to be considered.
Affordability
42. The scheme will be funded by the Executive block grant (at least initially) and it is important that the use of public money is considered carefully.
Funding
43. An important part of the process will be seeking financial contributions from the bodies responsible for historical failings ‘in the care of’ women and girls, and their children, now adults. It should be noted, however, that some of the organisations involved no longer exist.
44. Most state redress scheme seek fair and meaningful contributions from those found responsible, as such it may be considered prejudicial to seek contributions from bodies before a formal investigation has concluded.
45. There are different approaches on how and when contributions are sought. The Scottish Government, for example, has committed to covering the £10,000 fixed payment and all posthumous claims (which can only be made for the fixed payment) in the Scottish Redress scheme for historical child abuse. For the fixed payment, an applicant must make a statement of experience, but no independent or documentary evidence of abuse is required.
46. In line with the TRDP report recommendations, Standardised Payment is not based on the individual’s experience and does not require an applicant to provide a statement. Therefore, the same £10,000 payment will be available to applicants who may have had very different experiences. The Individual Assessed Payment scheme, which will follow in separate legislation after the inquiry, will aim to provide redress for a person’s individual experience including any harm or abuse that may have occurred.
47. Many of the historical issues in question continued under a period of Direct Rule, so there is an argument for seeking funding from the UK Government and there has been engagement with the UK Government on this issue, albeit with no agreement to date.
Human Rights Issues
48. The provisions of the Bill are considered compatible with the European Convention on Human Rights.
Equality Impact Assessment
49. In accordance with its duty under section 75 of the Northern Ireland Act 1998, the Executive Office considered the policy proposal for the Bill for its impact on equality. An Equality Impact Assessment (EqIA) was carried out and published as part of the public consultation. The EqIA found that the policy may positively impact women more than men as it is intended to address historical disadvantage suffered by women and their children, now adults, in gender-specific institutions.
Summary of the Regulatory Impact Assessment
50. The Department considers that no direct costs will be created for the private or voluntary sectors as a result of the provisions of the Bill.
Data Protection Impact Assessment/Data Protection by Design
51. A Data Protection Impact Assessment has been completed with appropriate actions, and it noted that the proposals in the Bill had no new implications for the processing of personal data.
Rural Needs Impact Assessment
52. Consideration was given to the potential impact of each part of the Bill on rural communities. This noted that all of the provisions of the Bill will apply equally to all areas, and there was no difference in the impact of the inquiry or Redress provisions on the basis of geographical location.
Legislative Competence
53. At introduction the First Minister and the deputy First Minister had made the following statement under section 9 of the Northern Ireland Act 1998:
“In our view the Inquiry (Mother and Baby Institutions, Magdalene Laundries and Workhouses) and Redress Scheme Bill would be within the legislative competence of the Northern Ireland Assembly.”
Secretary of State Consent
54. The Secretary of State’s consent is required by section 8 of the Northern Ireland Act 1998 and a statement of such consent is required for the purpose of section 10(3)(b) of that Act:
“The Secretary of State has consented to the Assembly considering this Bill”
