Fergus Finlay: Sealing of mother-and-baby home records is burying of our shame

The Dáil and the Seanad owe a debt to the women and children involved. They owe them the truth, writes Fergus Finlay

The Little Angels' plot in Bessborough mother-and-baby home, Blackrock, Cork. Picture: Jim Coughlan

Last week, the Houses of the Oireachtas brought shame on themselves. With indecent haste and inadequate scrutiny, they rushed through one of the lousiest, laziest, most insensitive pieces of legislation I’ve ever seen.

And then government TDs and senators rushed out a contrived statement, all saying the same thing: "I never voted for that." This, hours after they had done precisely the opposite.

It was one of the worst ministerial performances I’ve ever seen, one of the shoddiest pieces of work, and one of the laziest opposition performances in my lifetime. Some members of the opposition emerged with credit — Brid Smith, Kathleen Funchion, and Holly Cairns come to mind — but, essentially, the opposition sat on its behind.

The Dáil and the Seanad owe a debt of honour to the generations of women and children involved. They owe them the truth. They owe them the dignity of acknowledging what happened. They failed, abysmally, to honour that debt.

I think President Michael D Higgins was saying that on Sunday night. I had, I admit, harboured a faint hope that the President could find a reason not to sign the Commission of Investigation bill they all voted for.

But the Constitution is pretty clear. The President must sign every bill passed by the Oireachtas, unless (with a couple of exceptions) he believes that some provision of the bill might be repugnant to the Constitution.

In that case, he must consult with the Council of State and then he may refer the bill to the Supreme Court and ask them to consider whether it is in any way repugnant to the Constitution. Of course, if the court finds that the bill is compatible with the Constitution, effectively it can never be challenged again.

It’s possible that this piece of legislation is repugnant to aspects of the Constitution, especially those aspects that refer to the "natural and imprescriptible" rights of children.

If the sealing of records results in adults now being denied access to information that would establish an identity robbed from them as children, that's a natural and imprescriptible right denied. It's possible that a potential breach of European law, in the form of the General Data Protection Regulation, might also constitute grounds for invalidating the bill.

To be honest, though, it's a stretch, and I wasn’t surprised the President was unable to find a way to refer the bill. He did make his feelings as clear as it is possible for a President to do. 

I hope the Government, and their craven TDs and senators, were listening.

Because the real problem with this bill is not so much what it did, but what it failed to do.

The facts are simple enough. We’ve had a Commission of Investigation in place for a number of years, delving into a dark corner of Ireland's history. It was a time when women were tortured and shamed for the crime of being pregnant. It was a time when undernourished babies were denied adequate healthcare, when they were used in medical experiments, when they were buried in unmarked graves.

Former TD Ruth Coppinger ties little babies shoes to a sign while at aMother and Baby Home protest event at Áras an Uachtaráin on Monday. Picture: Sasko Lazarov/ RollingNews.ie

It was a time when religious orders, funded by an obsequious and blind-eyed state, were responsible for the neglect of individual rights and the abuse of generations. It was a time that we chose not to talk about too much until the courage and perseverance of survivors made us take off the blinkers we had found so useful.

The names of some of these places — the mother-and-baby homes — are synonymous now with a history of barbarous neglect: Tuam, Bessboro, St Patrick's, Castlepollard.  

Things happened in those places that diminished us as a republic, and will continue to as long as we deny the truth.

The investigation into all these places and activities has resulted in, presumably, a huge cache of records and documents. I'd have no doubt that the commission has done a thorough job;  its chair, Yvonne Murphy, has already produced seminal reports into clerical abuse in the dioceses of Dublin and Cloyne.

The purpose of the bill passed last week was to order the commission to transfer some of the individual records it has over to Tusla.

 

But because of a previous piece of legislation, which last week's bill failed to amend, everything else it has collected will be sealed for 30 years. And they all knew that. I've no reason to believe that the minister who rushed this awful legislation through had any evil intent;  as far as I can tell, he's an honourable, decent person. But he's also legally qualified, with a master's degree in European law, and he has completed a PhD thesis. He allowed himself to be a victim of 'system capture', and never, clearly, questioned any of the advice he was given.

'System capture' often happens to inexperienced ministers. Last week's bill was the first he had to steer through the Oireachtas, and you can see that the speeches he made were largely written by civil servants, probably assisted by someone from the Attorney General's office.

In pushing the bill through the Dáil in the way he did, he was doing the bidding of the system. Did he not stop to think about his higher duty to the survivors of generations of abuse. Not until it was too late. 

Whose interests will be served now? The only information that's going to be made available to Tusla will be the so-called database — according to the minister, in the Dáil, that's a record "tracing the entry and exit of women and children from the mother-and-baby homes".

Even those individual records handed over to Tusla won't be made readily available to survivors and families. There'll probably have to be more enabling legislation. 

The records will have to be sorted and put into readable form. Anyone wanting, or needing, access to them, for reasons of identity or to find the origins of their family, will have to go through a laborious process of establishing entitlement.

And that database is probably a tiny fraction of what appears to be available. If there's anything else likely to cause embarrassment or shame to a government department, or civil servant, or (perish the thought) a minister, or to a bishop, or parish priest, or a religious order, it will be buried for 30 years.

If there's anything that speaks to neglect, or abuse, or decisions to deny children healthcare, or to bury dead babies in the night, it will be buried for 30 years.

If there's anything that demonstrates the ability of religious orders to operate these places at a profit, it will be buried for 30 years.

So, whose interests are served? You can guess, can’t you?

Only one thing is possible now. This act, only just signed into law, must be repealed and replaced by a proper piece of legislation. And that must happen immediately. Any other course of action will deepen the gross betrayal perpetrated by our elected legislators last week.