Fergus Finlay: We’ve passed a law to protect abusers and punish the abused

Fergus Finlay: We’ve passed a law to protect abusers and punish the abused

At the end of a programme on RTÉ the other night, this message appeared. “In its correspondence with RTÉ and survivors, the Residential Institutions Redress Board has always referred to the implications of breaking section 28(6) of the Redress Act.” The programme was Redress — Breaking the Silence. It set out to prove — and did so persuasively — that there is no closure without justice. In its moving and harrowing interviews with survivors, a simple truth emerged. Ireland decided that if it gave people who had suffered beyond endurance a few bob, it was safe to turn our backs on them.

Nothing exemplified this more than a couple of pretty disgusting interventions by Bertie Ahern. He gets great credit for having issued the famous state apology to survivors of institutional abuse, but when he was asked about the resignation of Judge Laffoy as the first head of the inquiry, he sneered at her. She just walked away, he said. No reason at all because his government was doing nothing except helping.

Yet it was abundantly clear — it has always been clear — that she felt she had no choice but to resign after three years of Department of Education stonewalling. Three years when they made every effort they could to undermine the authority and independence of the Commission to Inquire into Child Abuse. She spelled out all her reasons in a lengthy letter to Bertie Ahern’s government in September 2003. Yet years later he claimed that she had no reason at all.

In another section of the interview he gave the programme, Ahern completely poo-pooed the idea that survivors might feel any sense of grievance at all. Nobody ever gets 100% of what they’re looking for, he said. The innuendo in everything he said was clear. A bit more money would have sorted it out.

What’s 100% of justice, I wonder? Is there a proportion at which justice become injustice? And what has it got to do with money?

Bertie Ahern wasn’t asked, and certainly didn’t offer to explain, the basis for that warning notice at the end of the programme. Maybe he couldn’t explain it, because it’s a mystery.

Here’s what section 28(6) of that act says: “A person shall not publish any information concerning an application or an award made under this Act that refers to any other person (including an applicant), relevant person or institution by name or which could reasonably lead to the identification of any other person (including an applicant), a relevant person or an institution referred to in an application made under this Act.”

As the programme made clear, this is a gagging order. It’s an offence under the Act to break the gagging order. That means it’s a crime for any survivor to say how much they got in redress and why they got it. Under pain of criminal sanction they cannot say anything that names the institution where they were abused, or of course the name of the abuser or the religious order that ran the institution.

The mystery is where this gagging order came from. I have yet to meet a survivor who believes the gagging order was put in place to protect them — indeed I’ve yet to meet a survivor who wants to be gagged.

And I’ve read the entire Dáil debate on that Act. It was debated in the Dáil on four separate occasions in November 2001 before being referred to a committee. After the committee stage, and a lot of amendments, it was then debated over two days in February 2002. More amendments were discussed.

Then they ran out of time. Right at the end of the final stage, this motion was put to the Dáil and passed: “That the amendments set down by the Minister for Education and Science and not disposed of are hereby made to the Bill, Fourth Stage is hereby completed and the Bill is hereby passed.”

In other words, amendments proposed by the Minister (Michael Woods) that hadn’t been reached, were all now declared passed without ever being debated. They included the gagging order. This invidious and punitive piece of legislation was never placed on the Dáil record at all, and is now the law of the land. That’s disgraceful in its own right. But what’s even more disgraceful is that there has never been an opportunity to ask why. It’s clear from reading the act that the section is designed only to protect the identity of abusers and the religious orders that wanted to protect them. We’ve actually passed a law to protect abusers and punish the people they abused. And we’ve done it without a single word of debate.

And then the system went on to deprive people of justice even more. In 2019 the government started debate on another bill, the Retention of Records Bill.

It quickly became clear that the purpose of this Bill, irrespective of what any survivor might want, is to ensure that all records and documents associated with the Inquiries into Institutional Abuse, and all the stories told by survivors themselves, are to be buried in the national archives for 75 years.

This isn’t just disgraceful, it’s inexplicable. The only question worth asking is whose interests are served. Whose interests are served by not allowing the name of a dead abuser into the public domain? Whose interest are served by not allowing religious orders to be named, or their accounts to be published, or their records to be open for scrutiny? Whose interests are served by not allowing the records of official inspections public?

When he was moving the Bill in the Dáil, the Minister for Education (Joe McHugh) said: “When the draft scheme of this Bill underwent pre-legislative scrutiny, the substance of concerns raised related to: the right to privacy; the right to a good name; and the issue of legitimate expectations of confidentiality”. That sort of explains it, doesn’t it?

The good news, insofar as there is any good news, is that the Retention of Records Bill died when the Dáil was dissolved. But there is little doubt that it will be seen as an urgent piece of legislation when a new government is formed.

If it is passed in its present form, it will be another piece of injustice against the survivors of institutional abuse. For many of them, giving their testimony involved agony and stress. We know what they suffered in the process. Now, for some at least their testimony is all they have.

If they want it buried, so be it. If they want their own records, they should be seen as having an absolute right to them. If they want to publish, they should have access to advice on whether or not some names should be redacted, in their own interest.

But I will join any campaign, any protest, any demonstration, if the right of any survivor to own his or her own story is trampled on in this arbitrary way. There is no closure without justice and there can be no justice if the state continues to protect everyone’s interests except those of the survivors. The systems of the state have done enough damage. It’s time for it to stop now.

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