I admire Children's Minister Roderic O’Gorman for his commitment to human rights and equality. I believe he will want to respond to the impending report of the Mother and Baby Homes Commission of Investigation in a way that recognises — rather than further denies — the rights of people who were forcibly and otherwise unlawfully separated from their families in our recent past.
Many people affected by the commission’s work meet the international-law definition of a victim of enforced disappearance. This is one of the most serious human rights violations possible, involving the abduction or detention of a person with the State’s knowledge or involvement, following which the State refuses to reveal the person’s fate and whereabouts to their relatives.
When Justice for Magdalenes Research and Adoption Rights Alliance, acting as the ‘Clann Project’, tried to make submissions on these matters to the Commission of Investigation in public in 2016, we were denied a public hearing without the commission specifically explaining why.
Every person who requested a public hearing before the Commission of Investigation was refused permission, as Conall Ó Fátharta previously reported in this newspaper.
Along with its denial of public hearings, the Commission of Investigation refused all requests by victims of abuse for the personal data that it held on them or their deceased relative.
Witnesses were allowed to read a copy of their evidence in the commission’s office, but they were not allowed to take it away. The commission also refused those affected by the matters it was investigating permission to see or comment on the administrative records or witness statements it was gathering from the State, the Church, or the institutions.
The secrecy imposed by the commission appears to have contravened at least the spirit, and perhaps also the letter, of the Commissions of Investigation Act 2004.
Section 12 of the 2004 Act requires a commission to disclose to all witnesses "the substance of any evidence that, in its opinion, the person should be aware of for the purposes of the evidence that person may give or has given to the commission".
Since 2015, the Clann Project has argued repeatedly that the commission’s blanket insistence on working in secret violated the established European human rights law entitlements of victims and survivors of torture, ill-treatment, deaths in unexplained circumstances, medical experimentation, and enforced disappearance to participate meaningfully in any investigation into their abuse.
Mr O’Gorman has had a baptism of fire over the past week. It seems that he did not realise either the extent of the secrecy that cloaks records and testimony of institutional and adoption-related abuse, or the contribution of this secrecy to a general feeling — and objective situation — of impunity for the crimes and rights abuses committed.
If the minister had understood this, he might have anticipated the public uproar that he would prompt by stating in his briefings on the Commission of Investigation (Mother and Baby Homes and Certain Related Matters) Records Bill that everything in the commission’s archive would be sealed for 30 years once he receives it at the end of October.
Some simple but fundamental amendments to the bill could begin to change this situation.
First, the minister could take custody of the full archive of the Commission of Investigation, rather than giving part of it away to Tusla. Section 43 of the Commissions of Investigation Act 2004 already requires the minister to receive every document created or gathered by a commission.
The decision to interfere with the integrity of this monumentally important archive was made without any consultation on, or pre-legislative scrutiny of, the bill.
Tusla is notoriously under-resourced. It has also been criticised repeatedly by the Collaborative Forum of Former Residents of Mother and Baby Homes, and adopted people more broadly, for operating questionable policies of ‘risk assessing’ all adopted people who apply for their personal data, and treating a person’s publicly registered birth name as ‘third-party data’ which cannot be released without consent.
Second, the minister could confirm in the bill that he will facilitate personal data access requests for information in his archive. This, again, is already the law on the books (since the GDPR came into force in 2018), but the minister’s recent insistence that the archive will be fully sealed indicates his department does not agree, and that people who seek their personal or family records or their transcript of evidence will be refused without such an amendment to the bill.
Third, the minister must publish a comprehensive index to the archive within a month of receiving it from the commission. The index can be anonymised to the extent necessary to protect individuals in their private capacity.
Its production is essential in order to enable consultation about the legislation that is needed to further unseal the commission’s archive — for example, to release the administrative records of the State, the religious and the other entities involved in the operation of the mother and baby homes, county homes, adoption, and related systems.
There is a way out of this week’s mess, if the minister and the Government are brave enough to take it.
- Maeve O'Rourke is a lecturer in human rights, Irish Centre for Human Rights, NUI Galway, and a member of Justice for Magdalenes Research