I welcome the Minister for Children and Youth Affairs, Deputy Zappone, who is accompanied by her officials, Ms Michelle Shannon, director of the Irish Youth Justice Service; Ms Noreen Leahy, principal officer; and Mr. Tony O'Donovan, child welfare officer. I also welcome members and those who may be watching the proceedings on Oireachtas TV. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable. I also remind them to turn off their mobile phones or switch them to flight mode as they will interfere with the sound system and make it difficult for the parliamentary reporters to report the proceedings of the meeting. Television coverage and web streaming may also be adversely affected. I advise the Minister that any submission made or opening statement submitted to the committee will be published on its website after the meeting. After her presentation, there shall be questions from members of the committee. I call on the Minister to make her opening statement.
Oberstown Children Detention Campus: Minister for Children and Youth Affairs
I thank the Chairman and members of the joint committee for inviting me to discuss the operational review of the Oberstown facility. When I last spoke to the committee about the Oberstown facility on 24 January, I was pleased to note the positive changes which were becoming evident at the time. I am pleased to say there appears to be continuing improvement in the operation of the campus. I would go so far as to say that at the end of 2018 the campus is a different place from what it was in December 2016. This is supported by the implementation of the recommendations made in the various reviews, including those in the operational review which have been implemented in the past year or two.
Committee members will be aware that I established a review implementation group in March 2017 to oversee implementation of all of the various recommendations made in the reports, including those made in the operational review. The group produced a coherent action plan to implement all of the recommendations. The plan which was completed in May was published on my Department's website at that time.
There is real evidence of positive change in the day-to-day operations of the Oberstown campus. I have seen it myself and know it through meeting the children, staff, management and board of the Oberstown campus. It is not just me who believes it. Most recently the change is reflected in the report of the Health Information and Quality Authority, HIQA, on its inspections of the campus. HIQA is authorised by me under the Children Act 2001 to undertake inspections of the Oberstown Children Detention Campus. The chairperson of the board of management invited HIQA to read the report on the operational review for its most recent unannounced inspection which was carried out between 7 and 13 March. The subsequent HIQA report on this inspection which was published on 9 October acknowledges that, having undergone major change in the past few years, the campus is now enjoying a period of relative stability. Overall, the inspection found that where the focus of campus management and resources had been applied to address identified issues within the campus, improvements were evident. The HIQA inspection report highlights that many of the recommendations identified by the review implementation group were implemented in full and that work on the remainder was under way at the time of the inspection. My Department continues to monitor the review implementation group and the second report on the implementation of its recommendations will issue shortly.
The operational review was carried out following a particularly difficult time at the Oberstown centre. There had been serious incidents, some of which were well publicised, involving young people which threatened the safety of the centre. The campus had been experiencing extraordinary difficulties in 2016 and there were severe industrial relations issues. There were also challenges in the structural redevelopment of the campus. There was a difficult change process following the amalgamation of three well established autonomous schools. These difficulties were well documented and well known at the time. Some youths who were under 18 years of age were still detained in St Patrick’s Institution and it was agreed that they would, in time, be detained in the Oberstown centre. This was a very positive development, one that was warmly welcomed in the Oireachtas and beyond, but it, undoubtedly, created anxiety for staff and children alike as the operational environment in Oberstown faced many changes.
Unlike many other detention facilities in other jurisdictions which operate more like prisons, the campus is based on a care ethos in a secure setting. This is a relatively unique but important approach. My visit last week has reinforced my confidence in how the Oberstown centre is delivering care and support for the children being detained in it. While the detention of any child is regrettable, the current atmosphere and operational structures in the Oberstown centre are focused on providing the best environment for children we can attain. I was, as always, impressed by the dedication and commitment of the staff and the board to ensuring the operation of the campus focused on what was best for the children who spent time in the centre.
Last week I experienced a significantly more stable campus than in September 2016 when the board of management commissioned an external independent review of operations and best practice at the centre. The review was undertaken by two international experts in this field, Professor Barry Goldson and Professor Nicholas Hardwick. The terms of reference agreed to for the review stated its aims were to evaluate practice and policy in line with international standards and best practice; to identify obstacles or barriers to achieving greater implementation of international standards and best practice and to make recommendations to ensure greater and more successful implementation of these standards. The board received the outcome of the review in February 2017. Its immediate concerns about the review were that it had moved outside the terms of reference that it had developed; that it did not demonstrate any process for verifying the accuracy of its claims; and that fair procedures had not been adhered to in the case of persons referred to in it.
When I was last before the committee, I advised the members that the board of management of Oberstown had decided that it was not safe to publish the report of that review. This decision was based on a careful and lengthy process of deliberation, including the commissioning of independent legal advice. I also told the committee there were several requests for its publication. I sought legal advice on the matter and the issue was the subject of detailed consideration and discussion involving the chair of the board of Oberstown and my Department. On foot of the legal advice that I received, I asked the chair of the board of management to confirm that fair procedures had been observed in advance of any decision to publish the report. At that time, we were still awaiting the chair’s final response on this matter. I advised the committee that further legal advice may have been required to ensure that fair procedures were adhered to and that I would decide whether the report could be released based on the chair’s response and any further legal advice that would be received. I also made clear that the board had carefully reviewed each recommendation made in the report and published those recommendations, together with the board’s response in July 2017. The publication of the recommendations ensured that the supportive and developmental aims of the review were met.
I wish to emphasise that my Department’s focus and that of Oberstown children detention campus is on the implementation of the recommendations to ensure that there is a safe and stable environment in Oberstown which is responsive to the needs of the children detained there by the children’s courts and for the staff who work there. I have been advised by the board that its decision not to publish the report of the operational review was not one that it either expected or wanted to make. It resulted from a lengthy, careful and extensive process of consideration which weighed up, in light of the independent legal advice, the legal risks associated with publication. The board had always intended to publish the report and, in taking its decision not to publish it, was exceptionally mindful of the importance of ensuring transparency and accountability in operations. I have been advised by the board that its aim in commissioning the operational review was specifically to understand how to retain the care ethos within a secure setting. The review was explicitly intended to be a supportive and developmental process constructed to enable the campus to move on. Integral to this process was feedback to the board, management of the campus, and staff. I am advised by the chairperson that this feedback did not happen. In addition, the findings of the report were never put to the board, the management of the campus or its staff for their response. This is the fundamental problem and provides the context for the legal risks associated with publication. It goes without saying that we always, in the legal context, have to ensure that any legal risks presented by publication of reports of this kind are very carefully weighed in the balance. This was what happened in this case. A careful process of consideration of the risks indicated in independent legal advice received brought the board regrettably to the conclusion that the risks of publication were too great.
Having been advised by the board of its decision, I then sought the advice of the Attorney General, who advised me that publication of the report was fraught with legal risk. In light of the risks and based on the legal advice received, I gave the matter careful consideration and, in July 2018, I concluded that it is not appropriate to publish the full report. It is imperative that a report of this kind should observe due process and fair procedures so that all persons referred to are treated appropriately. Where a person is the subject of proposed criticism, he or she is entitled to fair procedures. Following careful examination, the board was not in a position to ensure to either its satisfaction or mine that fair procedures had been applied before the report was finalised and submitted. My officials recently raised the question of the publication of a redacted version of the report with the chair of the board. However, I am advised that the board considered that there were serious flaws that could not be remedied at this stage and that redaction of the report was not feasible. The board has further advised me that the reviewers have requested a copy of the board’s independent legal advice before redactions can be made. In other words, while the reviewers offered to make redactions, they have always insisted that they would only make them once they saw the legal advice. The board remains of the view that the report cannot be published.
In reaching the conclusion not to publish the report, the board and I acted with due diligence, prudence and care to all of the parties affected and with regard, as is our responsibility, to what is in the best interest of the Oberstown children detention campus as a whole, including the best interests of the children under our care there. The recommendations of the report, all of which are at the kernel of how we move forward to make Oberstown a safer place for young people and staff, are being implemented as part of a significant package of reform in Oberstown, which is now well under way. The implementation of these recommendations has been my key priority to bring about improvements in standards. My Department is supporting and, where appropriate, monitoring the changes necessary to ensure that international standards and best practice are observed and to identify and address any barriers or challenges to maintaining our ethos of care.
I thank the Minister. Before I invite Deputy Mitchell to pose questions to the Minister, I wish to ask one or two questions relating to her opening statement. To the Minister's knowledge, did the board of Oberstown approach the reviewers and request that they review their report to ensure that it complied with the terms of reference that were set originally? Did the board request a revised report rather than something that it had not requested?
I ask the Chairman to repeat his question.
Did the board ask the reviewers to produce a report in line with the terms of reference provided to the reviewers in the first instance, after this report was provided to Oberstown? Given that-----
I will take that first part, if I may. The Chairman is asking me if the board asked the reviewers to provide a report in line with the terms of reference.
Yes, after this document was provided to the board. In other words, did the board go back to the reviewers and say that the report provided was outside the terms of reference and that there were questions around verification of accuracy?
I do not know the answer to that question but I can find out for the Chairman. The terms of reference were agreed and it is usually the case that, when terms of reference are agreed, a report is written in accordance with those terms. However, I do not explicitly know the answer to the question posed by the Chairman.
I appreciate that. My only other question is whether the Minister knows the cost of the production of this report.
Does the Chairman mean the costs of publishing it?
No, the cost of producing it. I am referring to the fees associated with the reviewers.
Again, I do not have the specific answer to that question to hand, but I am sure that information is available in the Department, if the Chairman would like to have it.
I understand that we did answer it through a parliamentary question recently.
We can get that information. I thank the Minister and invite Deputy Mitchell to pose questions.
I thank the Minister for coming before us today. I will start by saying that the most recent Health Information and Quality Authority, HIQA, report clearly demonstrates that improvements have been made in Oberstown but that there are still some outstanding concerns about the centre. The HIQA report indicates that, in terms of ten standards, the centre was found to be "moderately non-compliant". Five areas of particular concern include the care of children, planning for children, premises safety and security, dealing with offending behaviour, and staffing and management issues. While I acknowledge that there is good work going on, there is still more to be done, particularly with regard to the issue of single separation, which we discussed with the Minister previously. The latest HIQA report shows that single separation was used 1,700 times in 2017, indicating that a lot of work remains to be done on that issue.
On the issue before us today, namely, the withholding of the report, I note that correspondence obtained under freedom of information by RTE for the "This Week" programme shows that the chairperson of the board of Oberstown informed the Department of Children and Youth Affairs that the board would not publish the report because of "legal risks".
We are all agreed on that. It appears the legal risks were because members of the board were criticised in the report. Is that true? Does the Minister honestly believe that withholding the report, which appears to have done what it was supposed to do, namely identify the problems at the campus, is in the best interest of the detained children?
On the Deputy's first point, on there being more to be done and on concerns over what needs to be implemented in regard to the HIQA report, that is why the reports are produced. It is always going to be a challenging environment given the nature of the work done. That is why it is important that there be ongoing inspections, reviews and examinations of the implementation of recommendations of many reviews. That is work that is taking place.
There was a 56% reduction in the incidence of single separation between 2016 and 2017, and this was verified by HIQA. A further 22% reduction was achieved between 2017 and 2018. Overall, this amounts to a 60% reduction in single separation since 2016. That is one of the aspects of the work being done and the improvements that are being made.
On the legal risks and the associated criticism of members of the board, the legal risks, as I have outlined and identified, are due to a lack of fair procedures. The fair procedures require that when certain statements are made, they go back to the people concerned – the campus, board, staff, etc. – so there is a right of reply. Reviewers are required to take this into account prior to publication. That did not happen. That is the nature of the legal risks.
The Deputy asked me about the best interest of the children.
Does the Minister believe it is in the best interest of the children that this report is not published?
Yes, I do.
The authors have rejected the claims. In a response last week, the Minister said she did not believe fair procedure had been applied.
On what basis?
The authors said they had not been provided with any specific instance-----
Is the Deputy bringing that evidence to the committee, or is it just something that happened-----
We are actually saying what the authors are saying. I refer to the record of the Dáil from last week, when we were in the Dáil Chamber. It is worth noting that the authors pointed out that throughout the entire process of preparing the final report for Oberstown management, the latter was provided with opportunities to raise anything it considered to be unfair or inaccurate. This was before the final report was to be submitted.
Does the Deputy want me to answer on what the authors said?
The problem we have is that the board was saying the report was unfair. The authors are saying the board was given an opportunity to highlight where it felt the unfairness was.
I thank Deputy Mitchell. As I understand it, there was a lot of exchange back and forth over a long period. If the Deputy wishes, I could read the chronology of this exchange into the record, but the nub of it is that when the report was written and conclusions made, that work and the observations made were not provided to my officials or the board to review them in order that they might have a right of reply. That is the nub of the fair procedure issue.
An article dated 6 August refers to public statements on the report by the two professors. They said it was deeply problematic that it was not published. They said they had very grave concerns about what they learned, about what individuals told them and about what they discovered during the operational review and that they believed it would serve the public interest for their findings to be published. I am concerned by their statement that, if their report had been published, it might have been of interest to the courts and relevant to the sentencing of children involved in the disputes. Does the Minister accept that the non-publication of this report might have affected the sentencing of the young people in 2017 and this year?
I deeply respect the views of the reviewers and met them during the reviewing process. I am not in agreement with them but I respect their views. On the Deputy's question, I believe there is no basis for the suggestion that the report would have been of interest to the courts and relevant to the sentencing of those involved. The courts are completely independent in the performance of their functions. Additionally, given that the relevant proceedings have not yet been concluded, such statements would risk interfering with an ongoing criminal matter.
I was not aware that this matter was still ongoing. We obviously have to tread carefully in such matters. I appreciate the response.
I thank the Minister for her opening statement and affording us the time to discuss this very serious issue. This was raised last week during oral questions in the House. Since then, I have been doing a fair amount of research and have gone back under the bonnet of it, so to speak. Last week, I said I felt I was working in the dark. I said so because there are pages of recommendations. I want to know where they came from. From what review? The Minister may correct me if I am wrong in stating the recommendations have five different feeders. Is it possible for us to know which review made each recommendation? What came from the independent report and what came from HIQA? From where was it all pulled together?
Let me give an example. Recommendation No. 4, which is on its own, is that girls should no longer be placed in Oberstown. The comment on this states:
The Board is not in a position to address this matter, which falls under the remit of the Department of Children and Youth Affairs to consider as a matter of national law and policy. It has been referred to the Department for its consideration by the Review Implementation Group.
Who made that recommendation? There are numerous others. No. 8 is that "Visits should only ever be screened in cases where it is demonstrably necessary following a robust individual risk assessment." This contradicts recommendation No. 9: "In accordance with the Oberstown policy, visits should never be stopped as a punishment." There are contradictions in some of the recommendations and it is important for us to know where some of them came from. Which reports do they fall under?
Have the recommendations of Professor Barry Goldson and Professor Nick Hardwick fed into the recommendation document?
Have we used the good bits from it? I ask the Minister to answer some of that.
I thank the Deputy. To be clear on her question, is she is speaking about the recommendations regarding the implementation group?
Yes. It is the response to the operational review recommendations of 2017.
That is as part of the overall-----
It is the overall review of Oberstown since August 2016 when the major incidents took place there. It is the response by the Oberstown children detention campus board of management to recommendations of the operational review, which was launched by Oberstown itself in July 2017. That is how it is referred to and it was signed off on by the chair of the board. I am trying to figure out the various lots of recommendations contained there along with the commentary. There are recommendations and comments. I am trying to understand the operational review. It refers to the operational review, recommendations and comments. I am trying to figure out who made the recommendations and what parts of the review fed into this. I know the comments come from the board but who fed into the recommendations? It is a fair point.
Okay. I am so sorry but I do not have the specific document to which the Deputy refers in front of me.
I appreciate that.
My understanding of what she is asking about is that it concerns the recommendations from the operational review in particular or any other review. She is referring to a document where the board responded to the recommendations of the operational review. Is that right?
Yes, that is exactly the document. The board produced the document. This is its bible so that when one visits Oberstown, one can see that X, Y and Z have been ticked off. I am sure the culture and atmosphere is part of it but this is its bible to determine whether it is making progress when reporting to the Department with responsibility for youth justice or to the Department of Children and Youth Affairs. This is its bible to say what it found at the time and what it is working on. I am trying to unpack what is behind it. Who fed into it and what recommendation came from where?
As I understand it, they are all from the operational review. Is that the Deputy's question?
Yes but I am also trying to understand where they came from. While they are all part of the operational review-----
The Deputy does not have the document. Is that what she is implying?
Yes. What came from the external independent review team? Were some from HIQA or were some used from Oberstown's own procedures?
They were from the reviewers.
All of them?
Not the external reviewers, but the internal reviewers the Minister appointed in March 2017.
The two reviewers we are speaking about in the context of the operational-----
That is Barry Goldson and the other person. They were all from them.
As I understand it.
In an attempt to be helpful to Deputy Rabbitte, I have the report and it refers to the recommendations of the operational review. It is the only operational review that was carried out.
All right. That all came from their report. That is very helpful. It gives me a complete understanding as to what they had highlighted within it.
I still go back to recommendation No. 4 on having no females, whereas we have allocated six places for females at Oberstown detention centre. What are we doing to address that?
That was a recommendation of the reviewers. It is their view and opinion.
What are we doing in relation to that? Are we addressing it?
There is a separate facility for girls and there is one girl there at the moment. I met her when I visited recently. The opinion or view of the reviewers is their recommendation and as far as the board is concerned and as far as our policy goes, we have a place for girls there. That is their view. The Children Act provides that all young people, male and female, may be subject to remand and committal in relation to the detention centre.
What does the recommendation mean by saying we should no longer have girls there?
I think this has to do with an issue, as I have mentioned here and in the Dáil, which moves outside the terms of reference of the review. That is a policy issue that was already decided and I have indicated what the policy is on males and females.
The Minister referred to the HIQA report in her opening statement. I have read the report in great detail and have placed pages and pages of my own post-its on it. Something I found glaring was the fact that the percentage of staff with up-to-date training declined between the 2017 inspection and the 2018 inspection. The dip related to child protection and safeguarding. At the time of the 2017 inspection, 88% of staff were trained but as of March 2018, only 63% had trained. In March 2017, 48% of staff had first aid training whereas in March 2018, 28% had first aid training. Is there a reason for the dip in training and safeguarding for staff?
While I appreciate the question, I understand a very comprehensive action plan was agreed between HIQA and the Oberstown management and it outlines the range of issues raised which will be addressed following an agreed timescale to improve day-to-day operations. Many of these have been put in place. As the Deputy knows, that is the usual and important process of good practice where recommendations are made in light of necessary improvements. That is the job of HIQA and an action plan has been put in place. That is what is happening.
With the height of respect, we are talking about young people and child protection and safeguarding. Is that not something one would want to have at 100%?
Of course. My understanding is that my time before the committee today is specifically on the operational review. As to the HIQA questions the Deputy is asking, I am indicating that it put forward a report. I raise the report because HIQA had sight of the full operational review, which is what we are here to discuss this afternoon. As is usual in its inspections and having looked at the operational review, HIQA has identified an action plan and agreed a timeframe on it. That is happening.
That is why I looked at the HIQA report. It is because HIQA had sight of that whereas I do not. I have to use that as my bible at the moment to make a fair assessment.
I appreciate that. I thank the Deputy.
Perhaps I mistook what Deputy Rabbitte said. Has HIQA seen the reviewers' report?
Yes. I said that.
Forgive me. I thought I misheard.
It was offered to HIQA by the chair.
I thank the Minister for her statement. I share the concerns of other members about the report not being published. One must ask what the purpose of commissioning a report is if it is never seen by the public. It is in the interests of transparency that people are seeking to see the entirety of the report. Not even a redacted version has been made available, even though the authors were willing to redact anything considered sensitive or unfair. However, they were not taken up on that offer. One of the points made by the two professors is that the failure to publish the report means the right lessons will not be learned by the many individuals and organisations which have had some involvement in the campus unless there is a full understanding of what happened in the past. What is the Minister's view on that? If we do not publish the report and delve into the details of what happened, how do we learn the lessons from what happened in the past?
I would have thought that was the purpose of preparing a report in the first place.
Has the Minister seen the legal advice, not the advice she would have obtained from the Attorney General, but the legal advice made available to the board? She has seen that. Was that legal advice made available to the authors of the report to explain to them why their report did not met with that legal advice?
I think I have answered the Deputy's question about fairness. She made the point that if the report is done, the public should see it in the interest of fairness. I absolutely agree. In my opening statement I said that was the board's intention and hope as well as mine. I have indicated in terms of the legal advice as well as the experience of the board, the staff and my officials, that fair procedures were not followed. Therefore there is a lack of fairness there, which leads to the legal risks, which is why there is not a publication. Whereas I respect that the Deputy has raised the issue of fairness again, I believe I have already answered that question.
I absolutely agree that we must learn lessons from the past. It is a great disappointment to me and to the board that this report cannot be published for the reasons I have outlined. That is not to say that lessons are not being learned; they have been learned. I have indicated all the ways that is the case from the perspective of the recommendations being published, the pulling together of those recommendations with recommendations from a number of other reviews, the HIQA report, the HIQA inspection and the action plan that has come about as a result of that. That is the basis of the lessons being learned from the past.
I have not seen the legal advice that was given to the Oberstown detention campus. The Oberstown legal advice was made available to the Attorney General.
Did the Deputy ask another question?
I asked why a redacted version of the report was not published.
The board considered that regrettably, it would not serve a meaningful purpose. I am advised that the board considered there were serious flaws that could not be remedied at that stage and that the redaction of the report was not feasible due to the extent of the redactions that would be required.
I believe Deputy Lisa Chambers asked a relevant question that the Minister has not answered. She asked if the legal advice had been provided to the authors.
No, it has not been.
If the Minister is satisfied, given that she has not seen the legal advice, we can only assume that there were suggestions that-----
I have seen my own legal advice-----
From the Attorney General.
-----from the Attorney General and the Attorney General saw the legal advice from Oberstown.
It is not satisfactory that Attorney General's advice is based on legal advice from somewhere else that nobody has seen. There is no reason that legal advice cannot be published because it is not the Attorney General's advice. There is nothing precluding the Minister from publishing that legal advice or seeking that it be published in order that we can all make an assessment as to whether the correct call was made.
I accepted the Deputy's questions.
The Minister appears to be satisfied that fair procedures were not followed. I can only assume that there was a threat of defamation proceedings from staff. We do not know what was threatened. Deputy Mitchell asked a very good question as to whether the Minister believed that non-publication serves the interest of children. The Minister said "Yes". How can she say that? On the one hand she is saying she is very disappointed that we cannot publish and that she wanted to publish. She is not publishing because of legal threats from people named or dealt with in the report. That is not the children. That is clearly other persons. How can she say it is in the interest of children not to publish?
If fair procedures are not followed - I know this has been rejected by the authors - should we not start again and have another review? If it was not done properly the first time, surely we should not just sit back and accept that. The purpose of a review and report is to give us, the elected representatives, an opportunity to scrutinise the report on a very serious issue. This all came about because of a UN anti-torture committee and very serious allegations that children were being detained individually. I am not surprised that some individuals really did not want this report to be published. However, if it was not done properly the first time, are we supposed to accept that or should we not try to do it properly a second time leading to a report that can be properly scrutinised? I share the Minister's disappointment and it is not satisfactory to give up.
I am not saying that. I have given answers here and in the Dáil Chamber. I do not accept what the Deputy has just said as a conclusion. Should we do it again? As I have also indicated, there are ongoing reviews and inspections of what goes on in Oberstown. A HIQA inspection took place subsequent to that review. If the Deputy's concern and interest is whether there are ongoing monitoring, inspection, assessment and evaluation, I can say they are happening. That is the overall objective and I am satisfied that is the case.
Why do I say that the interest of children is served at this stage by the non-publication of the report? I accept the advice is that there are legal risks. The content of the material is such that it would not be good for that to be published. It is important to ensure and support an environment in Oberstown that is conducive for the care of the children and that is supported by ongoing good working relationships between the staff, management and children. It is my assessment that the legal risks with publication could potentially disrupt the stability that I have witnessed and the incredible improvements that have been made.
I accept what the Minister says. In fairness to her, she did not prepare the report. She did not complain about it being unfair. She is relying on legal advice from the Attorney General, based on legal advice from another legal firm. I fully accept her bona fides in this regard. I understand she is defending work that she did not carry out. I accept that HIQA will consistently review the operation of the facilities and we will always look to make improvements. The focus of every member here is to ensure that the children are looked after and cared for and that the infringements on human rights that we have witnessed never happen again.
We have a specific report that was commissioned on the back of a UN committee identifying serious breaches, including 3,000 incidences of single separation in one year, which is an incredibly large number. What is the purpose of the report if we do not get to read it? If it was done in such a poor way as has been alleged by some and if fair procedures were not followed, do we need to conduct that review again following the fair procedures that are necessary in order to facilitate publication so that we can then read and assess it? Otherwise I am not sure why it was done in the first place.
I think I have answered that question. I do not have anything more. The Deputy has already asked the question. I have answered the question. I do not have anything more to add to her asking the question again.
Specifically on the second-----
I have answered the Deputy's question on whether we need to do it again.
Does the Minister just think we need to draw a line in the sand and move on?
I answered the question.
I am not being difficult. I did not understand that the Minister answered that specific question. Is she suggesting that this process-----
I have said we have had subsequent reviews and inspections, in terms of-----
My point is-----
The point of those is to improve the practice in Oberstown, which is what is going on.
I fully agree with the Minister and accept that.
That is my answer. Why would we ask for another review to be conducted right now?
What was the purpose of the review we cannot see now? If HIQA was sufficient, why did we bring in these two professors to do the review?
I do not have anything more to add to what I have already said.
I think I have answered the questions a couple of times.
I seek clarification on the Minister's opening statement vis-à-vis the information provided for the Department by the Attorney General. The Minister said:
Having been advised by the board of its decision I then sought the advice of the Attorney General ... In light of the risks and based on the legal advice received, I gave the matter careful consideration and in July 2018 I concluded that it is not appropriate to publish the full report.
No reference is made to whether the Attorney General based his advice on legal advice or the actual report. Did he read the report?
Yes. I received advice from the Attorney General on that basis. I am presuming he read the report.
The Attorney General reviewed the report rather than the legal advice. Deputy Chambers has questioned this.
It was not simply based on other advice.
I will try to give the Minister a fair hearing and look at the issue in a cold and rational way. I understand from her response that a set of substantive recommendations, arising from the operational review, is being enacted but that she will not publish a report which underpins the recommendations. Is that assessment correct?
Yes. That is what I have decided.
I wish to tease out the reasons for the Minister's decision. We have all received most of the freedom of information legislation material based on the work of Justine McCarthy of RTÉ. I also have correspondence dated 17 November 2017. The report was received in February 2017, almost a full two years ago. I am reluctant to name people, but there is correspondence from the chairperson of the board to a senior person in the Department which states the board's view remained that it was not legally safe to place the report in the public domain and that it could see no basis for deviating from the position or distinguishing between different types of publication. I understand some of the reason for the use of the phrase "legally safe" on the basis that, in giving it to certain stakeholders, it could be deemed to be legally published. However, I am confused and worried about the Minister's submission, in which she stated:
When I was last here I advised the committee that the board of management of Oberstown had decided that it was not safe to publish the report on that review. This decision was based on a careful and lengthy process of deliberation, including the commissioning of independent legal advice.
The board has its own independent legal advice, while the Minister has the advice of the Attorney General. Is there a conflict between the advice of the Attorney General and the board's legal advice on whether the Minister could or could not safely publish the report?
Both sets of legal advice stated there would be legal risks in publication. I understand the term "legal risk" to be synonymous with "not safe".
Was the Minister minded to publish the report?
I wanted to publish the report in the same way as the board wanted to publish it and my intention was to do so. I had hoped to be able to publish it.
If the Attorney General's report states, on more than one occasion, that there was no impediment to publication of the report, it would be logical for the Minister to deem it safe to publish it. What are the risks? Was the advice received from the Attorney General clear on the publication of the report? Did the Attorney General hedge his position? I understand the Minister will not go into the detail of the content of the Attorney General's advice, but it would be helpful if we could be given the sense that it was the Minister's intention to publish the report. There is always a risk, but there does not appear to have been a prima facie case against the report's publication from the Government's point of view. Is there a statutory entitlement on the part of the board not to publish?
I have already said it was my hope we would publish it. However, following the Attorney General's advice, the Department asked Oberstown House to suggest mechanisms to establish that fair procedures had been applied. It gave me its view and that of its legal advice to the effect that this was not the case.
Frankly, I do not understand that. I am not a lawyer, but I look at it from the layman's perspective. Many stakeholders have had access to the report.
To whom does the Deputy refer?
Did HIQA not have access to the report?
That is one.
Did the Department of Justice and Equality have access to it?
I do not think so. My Department had access to it.
Are HIQA and the Minister's Department the only two stakeholders that had access to the report?
What does the Minister mean by "fair procedure"? Can she spell it out in very simple terms?
The report was written and conclusions, observations and recommendations were made. I answered Deputy Rabbitte's question about observations made that were outside the terms of reference and which went into policy issues. It was not provided for Oberstown House for people to review. People may have been named.
That is the point. Individuals were named in the Goldson-Hardwick report.
Are there specific named persons who it is believed are entitled to fair procedure? Is that the reason the report is not being published?
What I will say is that it was not given to the campus. They interviewed several people. There was no opportunity for a right of reply in respect of what was written before finalisation of the report.
The Minister is saying the process of the report-----
That is what "fair procedure" means.
I appreciate that.
Does that explain it?
I am keen to have the point clarified to ensure I understand it correctly. Is the Minister saying there was a flaw in the process? Perhaps I do not mean a flaw in the process but rather the question of whether the process was imperfect to the point of saying there was nothing built in to allow persons possibly named in the report to be afforded due process and an entitlement to their good name, to use the language of the law of tort.
I am not hearing the question differently from the way the Deputy asked it already and I have responded. Does the Deputy wish to ask it again?
To be helpful to the Minister, I will refer to correspondence received from senior officials. The relevant date is 13 November 2017. The correspondence states the Department is of the view that the following are mechanisms to progress matters to ensure the matters raised are addressed in respect of the board and principal people within it. The first mechanism is a response to the authors of the report pointing to the existence of concerns about fair procedures and suggesting a further process of engagement with staff and management at Oberstown to ensure persons criticised in the report have been fairly heard. The alternative mechanism would involve a submission by the board and management of the Oberstown campus on behalf of the persons criticised in the report to be disclosed to HIQA and the Oireachtas joint committee, with the report. The officials sought to arrange a meeting between the relevant people and the Department to discuss the matter since the Minister was due to appear before the Oireachtas joint committee on 22 November. As I recall, the issues did not arise at that meeting, but the Minister did anticipate that they would arise. They are arising now.
On what we are strident - I think the Minister is seeing unity across the members of the committee in that regard - is the fact that I would not be doing my job if I left here with questions on my mind about the content of a report from eminent persons such as Professor Goldson and Professor Hardwick. I am not a conspiracy theorist, but is there some cover-up of practices at the Oberstown centre about which we need to hear in the public interest? Are people being protected unduly? The conflict I have in my mind is that I must always take steps to protect the good name of individuals and due process, but there is also the matter of the public interest. Notwithstanding the facts that the recommendations are being implemented, that HIQA is now in Oberstown and that there is a clear pathway in the improvements being made, we still have the sword of Damocles of the report hanging over our heads as an Oireachtas committee and I do not believe we will be satisfied until we receive clearer answers on its publication. I do not believe the public will be satisfied until it is published.
What would such clear answers be?
We need clear answers to certain questions. What is the level of risk inherent in the Attorney General's advice to the Minister? There was possibly more than one piece of advice. Perhaps the Minister might clarify the matter. There may have been more than one engagement with the Attorney General's office. Frankly, I do not think the Attorney General said to the Minister of the day that it was the advice of the office not to publish the report.
The Deputy has to do his job and I am doing mine.
I come at it from the point of view of being respectful of the Minister's position.
Fair procedures were not adhered to. The Oberstown centre has advised, for example, that persons mentioned in the report were not given an opportunity to respond to the reviewers' findings.
Have they responded since? I am asking the question specifically about whether the process of publication of the report-----
Has who responded since?
The persons named in the report. I am referring to the persons or entities and practices criticised in the report. Have they had a chance to respond?
The reviewers did not go back to ask to hear what they had to say or remain open to listening in that process or revising the report. That is what I understand.
Were they invited back?
We will have a second round of questions. In fairness, Deputy Rabbitte has indicated that she wishes to come back in. I also wish to make a contribution and Deputy Neville may wish to make one. We will then come back to Deputy Sherlock. Does the Minister have anything to add on the last point made by Deputy Sherlock?
What was the last point?
Were they invited back? Was the process designed to accommodate it? That is why I am talking about the process.
That was the initial question I asked.
Was the process designed in such a way that if findings were made against persons or the entity, there would be a right of reply?
Yes. They were asked to provide the report for the people concerned before there was a final report. That is what I am saying.
They did not do that.
The Oberstown centre envisaged that the visit would take place before the reviewers finalised the report - that was included in the terms of reference - in order that comments could be taken into account in the final version of the report. However, the reviewers maintain that it would not have been possible to provide feedback until the final report had been completed. Is that what the Deputy wants to have published? The reviewers consider it to be final.
In fairness, the Minister did allude to that response following my initial question.
I think it is a little clearer now.
I think I said that earlier.
I am not casting aspersions on anyone, but that was what I had gleaned earlier. As Chairman, I believe there is a question about this document. It has been shared with the Department of Children and Youth Affairs, the board of the Oberstown centre, HIQA, the Attorney General and the Minister. It has been shared with these four institutions and their relevant heads. The committee is responsible for the scrutiny of governance and budgets, etc. Does the Minister believe an overview of the document should have been provided for the committee, even in a confidential set of circumstances?
Are you seeking an overview?
I am referring to either the full document or an engagement with the board of the Oberstown centre to flesh out the views of the members of the board and the committee.
I think it is still open to the committee to do that, if it wishes to do so.
The Minister spent some time at the beginning of her contribution in referring to the fact that HIQA had provided relatively positive reports on the Oberstown centre, albeit some issues remain outstanding. This represents progress since the incidents in 2016. The facility has shown a clear pathway to improving standards. Following my visit not long ago, it was clear to me that some of the security changes made at the facility made it far more user-friendly in the creation of a secure environment. The position, as the Minister rightly points out in her opening statement, is that the facility is not a prison. It is an environment in which the children must be treated fairly. Does the Minister have confidence that the unpublished recommendations made in the reviewers' report have been taken into consideration by HIQA and followed up since it was provided for HIQA?
The recommendations in the report were published. There may be some misunderstanding in that regard.
Some of the recommendations were published, but I want to be confident that the Minister has confidence that HIQA has reviewed the reviewers' report and taken it into consideration on an ongoing basis in the course of it business.
Yes, I do.
Deputy Chambers has referred to whether the Minister took the view that there would be a requirement at any point in the future for a further review. The Minister has said she believed HIQA was fulfilling that function. I am alluding to her answer to the last question. My only observation is that there may be certain elements of the unpublished report that received the attention of those responsible for the independent legal advice provided for the board of the Oberstown centre and the Attorney General.
Are there sections in the report that have not been subject to recommendations from HIQA in particular?
If I were to answer an exact specific "Yes" to the question, I would have to take a look at it again. Generally, I believe this. Is the Chairman asking me whether it is word for word?
I believe this is the case but if the Chairman wants me to go back and take a look and review all of it, I will.
In the interest of members of the committee and Oireachtas Members in general, it would be beneficial to us. Perhaps the Minister could correspond with the committee secretariat so we could provide it to all members.
I would be happy to do so, and I respect that.
It would be worth doing. While the Minister was responding to other members, I was looking at the cost of the report. I was absent last week so I did not have an opportunity to review it. I was unable to find the answer in the parliamentary questions of last week or the week before. Does anybody with the Minister have the figure and, if so, will she please provide it?
Of course we will. That is fine.
The only point I can make as Chairman is that committee members have an oversight role as to the operation of Oberstown and the Department and there should be a mechanism, if there is not already, for such matters to be dealt with in a confidential manner. Members of the committee and Oireachtas Members in general who have queried this matter would feel a lot more confident. Deputy Sherlock is perfectly entitled to ask the questions he has asked and to leave this room without having further questions which, I suspect, is unlikely. A mechanism should be created and I ask that the Department consider such matters in future.
I accept the Minister's point to the effect that it is open to members to ask the board of Oberstown to make themselves available to us. Without seeking to second-guess my colleagues, that is probably something we will seek in the new year.
I thank the Chairman. I am not sure what he was referring to in terms of Deputy Sherlock's questions.
Deputy Sherlock referred to the fact that he does not want to leave this room with his questions unanswered. I suspect, given the look on his face, that may prove to be the case. Rather than the Minister having to field constant questions, freedom of information requests, segments on RTÉ radio and everything else that has taken place in recent months, if members were provided with a rundown on the unpublished report, we would have avoided all of this. That is my sense of the matter.
I hear what the Chairman is saying.
Perhaps a mechanism should be put in place in future in the unlikely event that this issue should arise. I suspect that members may request an audience with the board of Oberstown.
My calendar stated the meeting would run until 6:30 p.m., but earlier the Chairman mentioned a finish time of 7 p.m.
I was informed that the Minister had to vacate the premises by 7 p.m. so I was operating on the assumption that proceedings would run until that time Is the Minister stating that she must leave at 6.30 p.m.?
This has nothing to do with the issue. First, we did not start until 5.15 p.m.
I have another engagement and my calendar indicates that the meeting is due to run from 5 p.m. to 6.30 p.m. If it is not sufficient, we can do this again.
There is no closing time. I was just informed that the Minister needed to be off the premises by 7 p.m. I ask members to be brief.
The problem we have is our inability to scrutinise what gave rise to the recommendations. We are reading these recommendations, which have been published, and I would like the Minister's perspective on a few of them. Recommendation No. 79 states that a young person's clothes should only be removed in exceptional circumstances authorised by the director and that a dignified safe alternative should be provided. Prior to the report, was this happening? Is this a change of policy? Recommendation No. 82 gave rise to a lot of alarm when we saw it. The recommendation states that internal cavity searches of young people should never be undertaken unless authorised by a doctor for medical reasons. The Minister can understand why we are concerned. Was this happening? When did it happen? Is it still happening?
I thank the Deputy and I appreciate the Chairman's comments, which might help me to answer. The questions on publishing the report constitute one issue. There is also the committee's obligation and responsibility to scrutinise, as has been outlined very clearly, and I accept this. This is different to putting something into the public domain that has legal risks attached, and perhaps there is a mechanism. These have been my answers to the questions on the basis that I understood it was the committee's belief that it should be in the public domain and published, which is different to the committee's job of scrutinising a report and asking questions in light of it. It relates to some of the questioning and people wondering about other mechanisms, the basis of some of the recommendations and the actual terms of reference. Members are stating that they need more information in this regard. I hear what they are saying.
I do not want to take up Deputy Mitchell's time, but my observance of this is that we, as Members of the Oireachtas, have spent an inordinate amount of time addressing this issue, as have the media queries, but the process is disjointed. The report was provided to the board of Oberstown and at that point legal advice was sought, which led to further legal advice from the Attorney General, which led to the Minister making a decision based upon the advice, which all of us respect. However, this does not undermine the fact we have a job to do in scrutinising it in a reasonable fashion and the Minister has a job to do. Not being provided with a background on the decisions leaves us all a disjointed position, whereby the Minister is fielding questions elsewhere in the Oireachtas and at this committee. The manner in which it has been approached, and I do not believe this is the fault of the Minister-----
I understand that.
-----is somewhat disjointed and, therefore, Deputies and Senators have spend time analysing this.
Which I appreciate.
They have come to the same conclusion, which is that if the board of Oberstown had been more forthcoming in its dealings with the committee an awful lot of supposition may have been avoided, as could stories generated through the provision of freedom of information requests which, in themselves, can often be disjointed. This is not casting any aspersions on anybody reading freedom of information requests and putting them together. The truth is that unless people have the whole story, they have none of the story. That is my take on it.
I will be brief. I will return to the questions I asked on the previous occasion. Were any of the recommendations of Goldson and Hardwick, the authors of the report, not included in the 95 recommendations?
When I spoke at our previous meeting, I stated that the response of the board of management to the recommendations of the overall operational review 2017 was not just one review but was made up of five independent reviews: a review of security was completed in December 2016; two reviews in regard to health and safety took place in 2017; a review of behaviour management was completed in July 2017; and the reviewers conducted their field trip in October-November 2016. When February 2017 came around, the board of management sought independent legal advice to clarify any legal risks associated with publishing the body of the report. The advice received by the board was that the risks were too great and, so, it regrettably decided that the body of the report could not be published. Notwithstanding this, 95 recommendations were published. To go back to my initial question, of those 95 recommendations, which emanated from the security part, which relate to health and safety, which relate to the behavioural management part and what were the other recommendations? I am trying to unpack it. The Minister can appreciate from where I am coming.
I want to put it in context. When I look at recommendation 4, for example, which is to do with girls, I want to know who put that in the body of the report and in what context the recommendation was made. Is the facility not good enough? I am trying to understand it from a female point of view. Is that okay?
It is. In terms of the initial questions on from where the different recommendations came, I can get the Deputy that information.
That would be appreciated.
I appreciate the Deputy's desire to ask that question. I also appreciate that she is wondering what is the point of or what lies underneath, let us say, the recommendation in regard to having no girls at Oberstown.
I understand why the Deputy has to ask that question. My initial response was that this was something that went outside of the terms of reference of the report because it related to policy. As policy is set by the Department and the Government, in that sense, it is not appropriate. In terms of why it was said anyhow-----
That is it exactly. It is the context.
I appreciate the Deputy has that question.
Will I be able to get an answer to that?
I do not have the answer right now to offer to the Deputy but I will go back and see. Again, in terms of what the Chair said, I would be very happy to do that and perhaps it could be given more directly in regard to questioning the board.
That is from where I am coming. My line of questioning regarding the 95 recommendations relates to what fed what.
I am trying to reconcile in my own mind the interpretation of the Minister and the Department regarding the status of the report. If there is respect for due procedures, then there is an entitlement on the part of those who are the subject of the report to due process. Given that there was no further interaction between Professors Goldson and Hardwick, and notwithstanding the fact Oberstown is implementing the recommendations and HIQA is across that, does this mean this report is still, arguably, in the Minister's or the Department's interpretation, not a full but a draft report, and incomplete in that sense as per the terms of reference?
I would like to know why the Deputy is asking that question before I-----
This is where the FOI data comes into play. I refer to a document of 15 August 2017 in this regard. I have a full set of the documents through FOI. The source is RTÉ and this is in the public domain. There is a letter in the Department which states that there is confusion generally as to the status of the report and that, while the reviewers consider the report to be the final report, this was not necessarily the view of the Department or Oberstown.
If the Minister tells us there is a conflict between the reviewers in terms of an understanding of what the status of the report is, that will provide some clarity. However, notwithstanding the advices of the Attorney General in the context of risk, as I understand it, the Minister still has full discretion, based on those advices, as to whether she wishes to publish the report. I am only one Member of the Oireachtas. I note the Minister's earlier comments in respect of the mandate of this committee but we are all also Members of the Oireachtas and we speak to the public interest and can question anything at any time. Notwithstanding the mandate of this committee, it is my view that the Minister should publish and be damned, as they say, and put it all out there in the public domain.
Does the Minister have the legal authority to publish a report commissioned by the board of Oberstown?
Yes. I understand Deputy Sherlock's view but I do not agree with it on the basis of all that I have been saying. Nonetheless, I understand that it is his view.
I suggest we will be revisiting this.
That is fair enough.
Ultimately, we are talking about the report but a young man has been sentenced over this-----
I am sorry. I have no desire to shut Deputy Rabbitte down but I am not aware that matter has concluded legally. If the Deputy does not object, I do not think it appropriate to comment.
I appreciate that. It is not really my call; it is a matter for the House. I call Deputy Neville.
I was delayed, but I have been listening to the debate and I will not ask questions that have been already been posed. I assume we will revisit this subject in the new year. I propose that we do so.
Members have made it clear in the course of the past hour that this will be the case.
I echo the sentiment of the Chair. I am not discounting what the Minister stated in respect of the recommendations and progress being made. I understand the spirit of what she is saying. However, in scrutinising this, when we see discrepancies highlighted, conflicting opinions and procedure that has not been followed in line with the terms of reference, although I am not saying that is definitely the case due to the legal implications, it leaves committee members in a difficult position. I have reservations and I feel insecure about this, and that is just from listening to others. That is what we are trying to put on the table. Like Deputy Sherlock, I do not want to walk out the door and wonder whether we missed this or that or whether we should have done this or that. I have to take the Minister's word and I respect what she is saying in this regard. However, those are my reservations.
To give the Minister some food for thought, I did not get into the statement that was issued by Professor Barry Goldson on 10 November, where he states very clearly in the public domain that he gave the board and the various stakeholders every opportunity to engage with him in respect of the issues before they went to publication. On the face of it, there seems to be a contradiction between the Minister and the Department's position and that of Goldson and Hardwick in this respect.
That is a very good question.
I thank the Deputy for that. Deputy Mitchell made the same point earlier.
A question for the committee or for all of us together is how to sort that out.
What is the Minister's view of the question Deputy Sherlock asked?
They have effectively contradicted the understanding that I have from the board.
In terms of the procedures-----
In fairness, I think the conflict is between the reviewers and the board. The Minister is acting on advice. What is the Minister's view on it, as Deputy Sherlock asked?
My view on what?
I asked previously in terms of fair procedures whether the reviewers went back and my understanding of the Minister's response was that they did not go back.
That is correct.
They are saying in their statement that they offered every opportunity before coming to their final report for the individuals involved, or for Oberstown, to provide further details or clarification of points they had made.
Is that a contradiction? Does it not sound a little bit like they are saying different things?
It seems to me that perhaps the mechanisms or procedures operated by the reviewers were more robust than we had previously understood. The impression has been given here that they were less than robust. I would contend, based on that statement, that Goldson and Hardwick were more than comprehensive in respect of their interaction with Oberstown. This needs to be teased out further.
I respect what Deputy Sherlock has said. The reviewers are men with an international reputation. I have met them. Deputy Sherlock has stated what they said and the board has said something different. Let us at least agree with that. The question is how to resolve that. It is part of what we are trying to resolve here. Maybe there is another way to do it. We are not resolving it.
Is the Minister finished with the process following the Oberstown report? I apologise to the Chairman for taking up so much time on this.
I respect the Deputy's responsibilities.
It would appear, on the face of it, based on Goldson and Hardwick, that everybody in Oberstown was given the right to reply or was allowed due procedure. I am certainly of the impression, however, based on the Minister's interaction with us, that that is not her interpretation of events. That is where the question lies in my mind.
As I said, I have received, as the Deputy has, a lot of ongoing correspondence and communication with the board on what is from its perspective, as well as others' perspectives, a very unsatisfactory process. On that basis, at this point, I am not asking for the report's publication because of the legal risks involved. I have indicated that. The Deputy's question has to do with the fact that the reviewers say they offered those opportunities whereas the board is saying they did not.
The Deputy asked earlier whether this is a draft as distinct from the final report. I could say in the sense of what we are arguing here that it is a draft, or that it ought to be a draft because they ought to have had the opportunity, which does not seem to be-----
That is the point made by Deputy Lisa Chambers.
Yes, Deputy Chambers made that point. The document was provided only once to the board but it occurs to me that if a review of a report is provided to its paymaster, namely, those who requested it, there would be a to and fro. That would of course depend on the report but in this case, because it was dealing with individuals, there would have been a to and fro. We now have a conflict. The board says there was not and the authors say there was. We will have to revisit this.
There is obviously a legal aspect to all of this and I will not go into that but there are trade unionists speaking up for adults. Who was speaking up for the child on this review?
That is our job.
That is our job as a committee, and that is why we are pushing so hard on this. The voice of the child has to be heard through this report. Somewhere along the way, whether it is a redacted version or whatever, throughout the whole afternoon's proceedings we have talked around and around this but we have to get back to the centre, which is protecting the child.
I thank the Deputy because that sums up the position quite succinctly. Does the Minister wish to make any final remarks?
That is also my interest.
On behalf of the committee, I thank the Minister for her presentation and for dealing with members' questions as comprehensively as she could.