The decision was made by the Government after a scoping inquiry gathered almost 2,400 allegations of sexual abuse of children in over 300 schools run by 42 religious orders.
The scoping exercise was only tasked with looking into abuse in day and boarding schools run by religious orders.
However, the report has recommended that the terms of reference for any future inquiry be extended to cover all schools.
Minister for Education Norma Foley said the extent of the abuse unveiled yesterday is “truly shocking”.
“This is the first time – and we shouldn’t underestimate this – this is the first time that the scale of sexual abuse allegations in schools run by religious orders has been disclosed based on information provided by religious orders and survivors.
“It covers schools all across the country,” Foley said at a press conference yesterday.
Ireland is no stranger to commissions of investigations, but what exactly could the new inquiry look like? And have lessons been learned from how previous inquiries were carried out?
The scoping exercise, led by Mary O’Toole SC, recommended that a Commission of Investigation – pursuant to the Commissions of Investigation Act 2004 – be established.
It also recommended that a redress scheme be set up, and that the religious orders in question should contribute to it. The report notes that a majority of survivors “see redress as an important element of accountability”.
“Whilst they are clear that it cannot compensate for the harm that was done, most survivors who engaged in this process viewed it as a means to achieve some symbolic accountability, particularly if it were to be funded by the religious orders.”
Foley yesterday said that the relevant orders have a “moral obligation” to contribute to any future scheme.
However, it is notable that no religious orders have yet committed to contribute to the redress scheme for survivors of mother and baby homes. That particular scheme opened to applications in March, but has been beset with delays.
What do survivors want the Government to do next?
As part of the scoping review, survivors were asked what they would like the Government to do next.
The report published yesterday notes that “two matters particularly emerged as key concerns that most participants wanted, namely a statutory inquiry and a redress scheme”.
Most survivors who took part in the scoping review said they wanted a statutory inquiry.
The two models of statutory inquiry in Ireland are Tribunals of Inquiry (under the Tribunal of Inquiry (Evidence) Acts 1921 to 2002) and Commissions of Investigation (under the Commissions of Investigation Act 2004).
The Disclosures Tribunal, for example, examined the Garda whistleblower scandal. The most recent Commission of Investigation, meanwhile, looked into mother and baby homes and related institutions.
It is also possible to establish a bespoke statutory inquiry. An example of this is the Commission to Inquire into Child Abuse (CICA), which produced the Ryan Report in 2009 – a document that detailed endemic levels of horrific abuse in many institutions.
The main drawback of an inquiry like this is that it requires the passing of special legislation – something that would likely cause a significant delay in setting up the investigation.
O’Toole’s report said this approach was not deemed appropriate “in light of the views expressed by survivors that a future inquiry be established as quickly as possible”.
Why will a Commission be held, instead of a Tribunal?
The report notes that survivors who took part in the scoping exercise want any future inquiry to have the power to compel attendance and documents. They also want survivors to have the option to give evidence in private if needed.
“Survivors were also clear that it is vital to mitigate the risk of retraumatisation in participating in an inquiry process in so far as possible,” the report adds.
“However, most survivors also said that they wanted an inquiry held in public, because they felt this would be the best way to hold the religious orders and others to account and to prevent any cover-up of historical sexual abuse in schools.”
The default position for a tribunal is that it sits in public. The default position for a commission is that it sits in private. However, each has the power to do the opposite in certain circumstances.
Tribunals are generally considered to be the most adversarial model of inquiry, with proceedings very similar to that of a court including the cross-examining of witnesses.
The report notes: “There is some difficulty in reconciling the views that evidence should be heard in public, which would generally require a tribunal, the most adversarial model of inquiry, and the view that an inquiry process should be as non-adversarial as possible.
“In assessing the type of inquiry that should be established, we also considered the views of most survivors that any inquiry process should be as inclusive as possible, to encourage the broadest range of survivors to come forward.
Ultimately, the scoping exercise recommended that a Commission of Investigation be established.
“Our view is that any inquiry process should be as inclusive as possible. The more court-like processes of a tribunal risk discouraging survivors from coming forward and would pose a greater risk of retraumatisation.
“The procedural flexibility of a commission affords the least adversarial model of inquiry, and therefore the greatest prospect of reducing the risk of retraumatisation. A commission model is also likely to be speedier than a tribunal model of inquiry.”
What will the inquiry examine?
Most survivors told the scoping inquiry they want any future investigation to look at what happened in schools, who was responsible for what happened, whether there has been a coverup and what can be learned.
Survivors want to “establish what had been known by religious orders and school management at the time and what actions had been taken”.
“If no action had been taken, they wanted to investigate why that was so.”
Survivors also want the role of An Garda Síochána, health and social services, and government departments “to be investigated as to what was known about the prevalence of sexual abuse during relevant periods, and if steps were taken to address any concerns or issues identified”.
The scoping inquiry had a relatively narrow focus – it was tasked with looking into abuse allegations at day and boarding schools run by religious orders only. However, the report recommends that the terms of reference of any future inquiry be extended to include more schools.
It notes:
“We recommend, therefore, that consideration be given to extending the remit of the future commission to all schools in due course.”
The report also notes that extending the terms of reference “should not delay the setting up of the Commission”.
The report adds that there is a mechanism under the 2004 Act that enables the minister to extend the terms of reference of a commission, “with the consent of the commission, and provided that this does not prejudice anyone who has come before that commission to give evidence or provide documents”.
“It seems to us that this mechanism might be utilised to extend, in due course, the work of the Commission to other schools.”
Anger over Mother and Baby Home Commission
The Commission of Investigation into mother and baby institutions heard evidence via two Committees: the Investigation Committee and the Confidential Committee.
Witnesses who gave evidence to the Investigation Committee had to swear that the evidence they gave was true, and their claims were questioned in a more rigorous manner.
The main purpose of the Confidential Committee was “to listen to the experiences” of survivors. People who gave testimony to this committee were not speaking under oath or cross-examined. As such, their testimony was not deemed legally robust.
Sixty-four survivors gave evidence to the Investigation Committee and 36 provided sworn affidavits, whereas over 500 survivors gave evidence via the Confidential Committee. Just 19 people applied directly to give evidence to the Investigation Committee, and it’s not clear how the other witnesses were chosen.
When the Commission’s final report was published in January 2021, many survivors expressed their frustration and anger that testimony given via the Confidential Committed was not given the same weight as testimony given to the Investigation Committee.
Some people said they didn’t even realise there were two different committees.
Many survivors criticised the final report, in particular conclusions which state there was a lack of evidence of forced adoption and abuse, despite testimonies contradicting this. Some people have also said their testimonies were amended or misrepresented.
Much anger over the Commission’s findings, and the exclusion of thousands of people from its subsequent redress scheme, remains to this day.
The report of the scoping inquiry published yesterday doesn’t specifically look at the approach of the mother and baby institution inquiry, instead focusing on how previous inquiries into child abuse were carried out.
A number of those, including the CICA, also gathered testimony via a Confidential Committee.
The report notes: “One potential difficulty that arises where a Confidential Committee is run alongside a formal Investigative Committee is the need for clear communications with survivors on the limitations and consequences of a Confidential Committee process.”
People who choose to give testimony via a Confidential Committee should, in advance, be made “aware that they are choosing not to have their complaint investigated”.
“They should further be informed that the Inquiry will not be entitled to rely on their testimony to make findings concerning instances of abuse because their evidence was not tested,” the report adds.
The scoping inquiry has made its recommendations, it’s now up to the Government to implement some or all of them.