Just over a week ago, it emerged that the Cabinet did something very “dangerous”. As reported by my colleague Conall Ó Fátharta, ministers agreed to approve a highly controversial and highly dubious piece of legislation. Under the terms of the bill, thousands of testimonies relating to child abuse in residential institutions and related records are to be sealed and “withheld from public scrutiny” for at least 75 years.
That is right. You read correctly. 75 years. There has been some muted consternation at the development, but it seems few enough have seen the potential danger in what is proposed.
So, just what is happening?
Well, the Retention of Records Bill 2019, as approved by the Cabinet, will see records from the Commission to Inquire into Child Abuse, the Residential Institutions Redress Board, and the Residential Institutions
Redress Review Committee placed in the National Archives of Ireland and sealed for a minimum of 75 years. These are the records associated with the Laffoy/Ryan commission of inquiry, which revealed widespread and appalling abuse and neglect of children in the country’s industrial schools — sealed up for three-quarters of a century.
Why cast these records away for such a long time?
According to Education Minister Joe McHugh, who tabled the proposal, the existing legislation for the Redress Bodies contains strict confidentiality provisions, including the related provision that the records be
destroyed. Seeking to sell this as a positive move, McHugh says the bill is designed, firstly, to ensure that the records are not destroyed, but are retained intact. He correctly says that the retention of the records is
essential to ensure that “we never forget the abuse that was perpetrated against innocent children in institutions and that future generations can be made aware of and understand what took place”.
But it’s hard to remember such horrors when the records are locked away and not available to be examined.
McHugh argues that for the 75-year approach to be sustainable, “due consideration has to be given to the assurances of confidentiality to those who gave testimony, balanced with the wider public interest of retaining the records for posterity”.
The provisions of the bill in regard to a lengthy sealing period reflect the need to strike that balance.
This is important.
The Government argues that the people affected by the abuse who co-operated and contributed, did so on the basis of anonymity and expected such testimonies not to surface ever again.
McHugh says the advice of the Attorney General is that the legal advice to the Government says if the records are to be retained at all, they must be sealed and withheld from public scrutiny for a lengthy period of time. The sealing of the records is therefore integral to ensuring that they are retained and ultimately released, rather than being destroyed.
McHugh says the rights and concerns of individuals must also be properly taken account of when the timing and circumstances of the release of the
records is being determined. This applies to the concerns of individuals who gave testimony about very difficult and traumatic experiences in their lives, as well as those who might be named in that testimony.
McHugh also argues that built into the act is a 25-year review of its operation, leaving it open to the government of the day to decide if they want to open the records up or not. That is what the Government says, and McHugh is a very nice fellow. But unfortunately, their defence is simply hogwash.
Firstly, fairly strict provisions already exist as to the handling of records, sensitive and important, which include the delaying of their release for up to 30 years. This is provided for by the 1986 National Archives Act, which covers commissions of inquiry.
Secondly, while the Government sought the views of the National Archives about what to do, it ignored their advice. Caitriona Crowe, former head of special projects at the National Archives of Ireland, said the NA’s advice was to add the two redress agencies to the schedule to the National Archives Act 1986 (commissions of inquiry are already covered by the act), thus making all of these records subject to the provisions of the act.
“They did not see a need for a new piece of legislation which proposes to bypass the National Archives Act with regard to access, with no provision for appeal. The National Archives Act has served the country perfectly well since its passage in 1986, as regards the withholding of records from public inspection,” she said.
“The precedent set by this bill, in disregarding and disabling the main piece of legislation dealing with Irish archives, is ill-considered and dangerous. What other sets of records exist to which the State would prefer its citizens not to have access?” she added.
Secondly, there seems to be no rational explanation as to how the 75-year limit came about.
Crowe has made it clear that this new bill proposes to disable portions of the National Archives Act, to definitively close down important records from public scrutiny with no room for appeal, and to deny recourse to the Freedom of Information Act by those who may seek access to their own records.
She asks if the information commissioner and the data protection commissioner were formally consulted with regard to this bill. If so, what were their responses? Most importantly, Crowe states that the existing
provisions of the National Archives Act are more than adequate to cover access to these records, which will presumably also contain administrative records which should be in the public domain in an ordinary way after 30 (soon to be 20) years: “There is no need for any of this.”
The basic and most obvious fear is that the Government will use this as a way to preclude access to more and more documents which should be made available sooner under existing rules.
Coupled with a decision of the courts this week to fundamentally undermine the workings of the Freedom of Information Act, it is a worrying development that access to public records, which we pay for, is being limited at the behest of the people we elect to serve us.
Given that the State is still mired in processes connected with the disgraceful relationship with the Catholic Church and its agents over the past century, it is right that such documents are not destroyed.
But it is contemptible that Government would seek to paint the sealing of records for 75 years as a positive development when it is by any definition an overzealous measure.
Authoritarianism does not arrive overnight, it happens in steps. This is an anti-democratic measure and should be reversed. It will protect the powerful, the elites, those with most to hide. As Crowe says, there is no need for it. It should be scrapped.