A STATE OF SILENCE

Across the span of one week in October 2020, Ireland once more reckoned with a legacy of secrecy and shame as the aforementioned Commission of Investigation Records Bill 2020 was fast tracked through the Oireachtas. Like a jolt to the system, survivors and advocates were suddenly mobilised by outrage against the State’s attempts to seal reports on widespread systemic human rights abuse for 30 years.

Under the Commission of Investigation Act 2004, commission processes were introduced as a cost-effective alternative to tribunals and a method for investigating matters of public concern. The plan being, once the work is completed and before dissolution, the chairperson deposits “all evidence received by and all documents created by or for the commission” with the specified Minister. Then, 30 years after the date when the commission was dissolved, records would be placed in the National Archives. On October 6, 2020, the Minister for Children, Disability, Equality and Integration, Roderic O’Gorman, received government approval for the text of the Commission of Investigation Records Bill 2020, which would seal access to reports during this time period as a ‘safeguard’ measure.

Years before, in 2015, the Mother and Baby Homes Commission was established to investigate the treatment and abuse of individuals detained in 18 Mother and Baby Homes and four country homes across Ireland. The government issued orders to begin the process following international outcry over the discovery of mass unmarked graves at the Bon Secours Mother and Baby Home in Tuam, Co Galway.

Writer, actor, and adoption activist, Noelle Brown, opened up about her experience with the Commission, “To me, it represented lip service, it didn’t look like it was set out to achieve anything. As an experienced go-and-meet with the Commission of Investigation, it was less than heartening. I got the impression that what they wanted to give us was tea and sympathy basically.”

Brown has spoken openly about being born in Bessborough Mother and Baby Home and her search for her birth family throughout the years. She shared these experiences with the Commission in order to have her story heard, but also in the hopes of finding out information on whether she had been subjected to vaccine trials as a baby.

In 1961, 58 infants in five Mother and Baby Homes were subjected to vaccine trials, according to the 2000 Kiely Report. It reads, “In the home in Bessborough, Cork, the mothers of the infants would also have been resident there, but there is no written evidence to indicate whether the mothers’ consent was sought or obtained for their children’s participation in this trial. Further, there is no documentation available in Bessborough which describes the arrangements made between management and the researchers for the conduct of this trial.”

Despite Brown seeking answers from the Commission of Investigation over her involvement in these trials, she was sent by them to the child and family agency, Tusla, where she was told the vaccinations she was not given as an infant rather than the ones she had. Her experience is similar to the many survivors who are continuously denied information around their own history through half-answers and gatekeeping from State bodies, especially in regards to obtaining their official birth certificates.

Since the establishment of the Commission of Investigation into Mother and Baby Homes, survivors have been left waiting throughout five years of delays for the final report. Led by former Circuit Court Judge Yvonne Murphy, the three person Commission initially worked towards a report deadline of February 2018. However, as that date neared, they requested, and were granted, a one-year extension. Another 16 months were provided for the submission, which was then further extended due to the impact of COVID-19 on their activities.

Brown outlined the devastating impact of these extensions, “Five years of delay in terms of the report coming out really disheartened a lot of survivors, including myself, because we were waiting and waiting and waiting and waiting, and the whole thing is time sensitive. The older generation are dying without seeing justice.”

After waiting years for the final report and with many survivors publicly speaking out about the trauma they have endured beacuse of the delay, the State’s fast track of the Commission of Investigation Records Bill sparked widespread outrage. Brown said, “This is a living archive of what happened and what is still going on. To take that chunk of Irish history and lock it away for 30 years, you question ‘why?’ It’s not something we wanted, it’s not something the nation wanted.”

Brown further acknowledged how attempts to seal records only perpetuates a long standing policy of silence shaped by State and Church. “Secrecy enabled them to run a system that sold babies, did vaccine trials, food supplement trials on infants without their mother’s consent, disappeared babies, sold babies. So that secrecy, this made-up blanket of cover, facilitated all those crimes upon human beings. That secrecy again is being used continually to keep our human rights away from us and dehumanise us. As a nation, we have had enough.”

Growing up in ‘70s and ‘80s Ireland as a queer woman, Brown became familiarised with the means by which shame was utilised as a tool to silence people. Secrecy became a gag over the nation, allowing for widespread systemic abuse in the form of incarceration, dehumanisation, and the removal of basic human rights. The State’s attempts to seal records dredged up memories surrounding this culture of silence for many survivors. Brown shared, “It was a horrible, horrible reflection of the past but also something that was being reflected in the present, and that was really disturbing. We were supposed to carry that shame, birth mothers were to carry that shame of getting pregnant outside marriage, we were to carry that shame as children for being illegitimate, for being adopted. And they are still inflicting that on us. That level of secrecy is so destructive. But it’s not our shame, the shame belongs to the Catholic Church and the Irish State for what they did.”

Lecturer at the Irish Centre for Human Rights (ICHR) and programme director of the BCL Law and Human Rights, Dr Maeve O’Rourke, expressed, “[Minister O’Gorman’s] repeated statements that he would ‘seal’ for 30 years the full archive received by the Department from the Commission of Investigation was unfortunately not surprising, because it chimed with other disturbing behaviour on the part of State bodies tasked with responding to our 20th century system of grave family separation and social care-related abuses.”

“For example,” Dr O’Rourke continued, “the Mother and Baby Homes Commission itself has also been preventing survivors from accessing any of the documentation it gathered, the Department of the Taoiseach has refused to publish the archive of State papers on the Magdalene Laundries gathered by the McAleese Committee, and the Department of Education attempted last year, through the Retention of Records Bill 2019, to ‘seal’ for at least the next 75 years every single document in the archives of the Commission to Inquire into Child Abuse and the Residential Institutions Redress Board, including from survivors themselves.”

Led by Dr O’Rourke and Irish Research Council postgraduate scholar Claire McGettrick, the Clann Project provides legal assistance to individuals presenting evidence to the Commission of Investigation. It was established as a joint initiative by Adoption Rights Alliance (ARA), JFM Research (JFMR) and global law firm, Hogan Lovells.

Dr O’Rourke has strongly advocated for transitional justice and transparency in the State’s response to survivors, as highlighted by her 2020 report to the UN Special Rapporteur on Ireland’s experience of memorialisation regarding human rights violations. She said, “I would also argue and have argued in the Clann Project Report, in opposition to the Retention of Records Bill and in relation to Magdalene Laundries records, that the State’s failure to ensure people’s access to their own information, to that of relatives who died while institutionalised, and to the State’s administrative files and the administrative files of the non-State bodies involved, breaches numerous other Constitutional, European and international human rights laws.”

Following widespread backlash to the Bill, Minister O’Gorman clarified that survivors would have access to their own personal information. Dr O’Rourke stated, “The Minister’s position was unlawful - as have been the actions of all other State bodies that have prevented access to so-called ‘historical’ abuse archives on a blanket basis, particularly since the introduction of the EU GDPR in 2018. It is not permissible under the GDPR [General Data Protection Regulation] to prevent access to personal data on a blanket basis, and this was belatedly acknowledged by the Minister, and by the Government as a whole, after the Bill passed through the Oireachtas.”

Despite the Government rolling back on their initial blanket seal on records, survivors must undergo two tests before their personal information can be released. Under GDPR, the Minister’s department will evaluate data access on the grounds of whether the request affects the rights and freedoms of others as well as safeguarding the operation of commissions of investigation and future cooperation of witnesses.

Adoption Rights Alliance co-founder, Susan Long, addressed glaring issues within the current system of commissions, “It’s about controlling the narrative and stifling victims’ abilities to discuss and educate people on their experiences.”

“They gag survivors under pain of criminal prosecution, Long further shared. “If a survivor repeats or publishes their evidence outside the Commission of Investigation hearing, they can be charged with a crime. They are not given a copy of their own testimony. And then the evidence gathered cannot be used in any criminal prosecution. So the whole idea is, we will punish the victims all over again.”

Adoption Rights Alliance was formed by Long and McGettrick in response to Fianna Fáil member Barry Andrews’ planned consolidation of adoption legislation, known as the 2011 Adoption Act. She said, “Our mission is to vindicate the rights of Irish adopted people, to know their identities, their family of origins, their early care situation, to secure their medical reports.”

Long further outlined Adoption Rights Alliance’s demands for the State in their response to survivors; “We want first and foremost the clearest and swiftest access route to our personal information, no exceptions to that. Second, a State apology for the systemic human rights abuse committed against non-marital mothers and their non-marital children. Thirdly, compensation for the systemic human rights abuse we have endured.”

“[Minister O’Gorman] needs to consult with and communicate with those of us who are directly affected by the systemic State and Church abuses. If he thinks that promising legislation based on the template put out there by any of his predecessors [is enough], he could not be any more misguided. That legislation is toxic, it’s discriminatory, and goes nowhere near delivering the sort of restorative justice measures that can allow some of us to establish our own identities,” Long continued.

While the State’s handling of the Commission report presents a glaring step backwards, author and journalist Caelainn Hogan reflects on the urgency in rethinking responses to these investigations around systemic abuse. She said, “I am sure that there will be Commissions of Investigations in the future into institutional systems in Ireland from Direct Provision to emergency accommodation. And we need to think about how we are approaching that.”

Further speaking on how the current system treats survivors of institutional abuse, Hogan stated, “When it comes to Commissions of Investigations, [survivors] are never treated as experts of their experience, they are forced to comply with a system of investigation that the State decides, and told whether their testimonies will be private or public and told their records will be sealed. It’s as if it is for their own protection and there’s a sort of a paternalism there that I think really does not respect the lengths survivors have gone to make sure that the truth is heard. I think there’s a push for Commissions of Investigation to be survivor-led and to really be much more transparent.”

In 2019, Hogan explored the devastating legacy of institutionalisation on survivors in her debut novel, Republic of Shame. Navigating the Church and State’s control over women and children, she delivers an insightful look into the industry and culture behind Ireland’s ‘Fallen Women’.

As Hogan addressed the State’s move to seal records, she acknowledged how recent societal and legislative changes shaped a nation that will no longer stand for secrecy. She shared, “The Marriage Equality Referendum, Repeal, all involved people coming forward speaking about their experiences, and Irish people speaking to each other about things which were silenced for a long time or thought of as shameful to speak about or stigmatised - I think that’s changed us as a country.”

The publication of the 3,000 page Commission report has been delayed until the second week in January 2021 as it has been deemed inappropriate to release before Christmas. Although the State clarified their response to the investigation, still echoes the words spoken by many survivors: ‘delay until we die’.

Until the State acknowledges this history with meaningful actions rather than harmful blockades and subsequent apologies, Ireland will once again reckon with this legacy of shame in the future.