The Mother and Baby Homes Commission is obliged under human rights law to provide information to family members about where their relatives are buried — despite claiming it is legally prohibited from doing so.
That is according to a number of legal experts who have said that not only is the commission misinterpreting the Commissions of Investigation Act in claiming it can not release such information, but that it is also obliged to under the European Convention on Human Rights (ECHR).
The commission has said under Section 11 (3) of the Commissions of Investigation Act, it is “an offence for anyone, including a member of the commission, to disclose or publish any evidence given or the contents of any document produced so we cannot inform the families”.
In a report prepared for the Government on the human rights issues arising from the infant remains discovered at Tuam, special rapporteur on child protection Geoffrey Shannon pointed to two decisions of the European Convention of Human Rights which found that, under Article 8, “family members of a deceased have a right to information regarding the fate of their loved one”, and that this includes burial location.
“A failure to provide relatives with definite and/or credible information may fall foul of the positive obligation under Article 8, even where the death occurred before the convention came into force in the relevant country, where the failure to provide information continues following the coming into force of the ECHR,” said the report.
Maeve O’Rourke, a human rights lawyer and lecturer at NUI Galway, said that “as a State body under our ECHR Act 2003, the commission of investigation is obliged under Irish law to give effect to people’s European Convention rights”.
Fred Logue, a specialist in information law, also took issue with the commission’s interpretation of the Act.
“Information about where people are buried is generally public and it is hard to see what purpose is served by refusing to tell people where family members are buried,” he said.
The Irish Examiner put a series of questions to the commission on its interpretation of the act.
“The answers to all of your questions will have to await the publication of our final report,” the commission said in a statement.