The government appears to be downplaying the significance of its announcement last Wednesday on the archive of the Mother and Baby Homes Commission. Yet the commitments contained in it, if delivered, have the potential to bring about some of the most transformative, progressive changes ever seen in Irish democracy and society.
The government has committed to taking a clear step into a new era of openness and transparency, having listened to the concerns of survivors of institutions, the relatives of the deceased and disappeared and adopted people.
In the announcement last week, the Taoiseach acknowledged that the EU General Data Protection Regulation (GDPR) is, of course, supreme over any conflicting laws or arrangements that the Irish state had previously constructed to address our so-called “historical” systems of abuse.
He and Roderic O‘Gorman, the Minister for Children, have committed to ensuring the effective implementation of GDPR in this area without delay. They have further committed to legislating urgently to provide adopted people, natural mothers and relatives with all of the information they need, and to ensure respectful exhumations where necessary at unmarked burial sites.
The Taoiseach has also announced that the government will develop a national archive for truth-telling and education regarding Ireland’s 20th century “institutional trauma”.
These decisions are significant because the de facto sealing of abuse records has been Irish state practice for so long, as evidenced by the manner in which the Department of Children announced its initial plans for the records of the commission in mid-September.
At the time, O’Gorman and his officials said they were helping survivors and adopted people by sending a certain cache of records and a database from the commission to Tusla, the child and family agency, on the basis that inevitably the whole of the commission’s archive that the minister receives would be “sealed”’ for 30 years.
It was deeply concerning to me and my colleagues in the Clann Project, which was established to help establish the truth of what happened to unmarried mothers and their children in 20th century Ireland, that the minister and his officials were asserting this policy stance. But it was not surprising.
We expected it for several reasons. The individuals affected by the work of the commission have been unable to access personal data and other evidence while it has operated, while the Department of the Taoiseach has insisted since 2013 that it is holding the entire McAleese archive of state files on the Magdalene Laundries “for safe keeping and not for the purposes of Freedom of Information”.
The failed 2016 Adoption (Information and Tracing) Bill proposed denying adopted people access to their early-life file and instead providing them with a “statement” summarising “non-identifying” information extracted from their records.
Last year, the Department of Education produced a bill seeking to prohibit all access to documents gathered or created by the Ryan Commission into child abuse, as well as the Residential Institutions Redress Board and Review Committee, for at least the next 75 years.
Original state administrative records, of which copies lie in abuse inquiry archives, should be in our National Archives, but they are not there due to the chronic under-funding of that vital national agency.
Meanwhile the state has left the religious and other non-state bodies that also hold records of so-called historical abuses largely to their own devices. In 2018 the Department of Justice told the UN Committee Against Torture that Magdalene Laundries records were “in the ownership of the religious congregations and held in their private archives [and] the state does not have the authority to instruct them on their operation”.
Lack of access to information has denied many thousands of people the ability to know their identity and the fate of their relatives, and to connect with forcibly separated family members, as the past fortnight’s public debates demonstrated so clearly. Enduring practices of secrecy have also hampered all justice-seeking efforts of those who experienced abuse.
The seriousness of this situation cannot be overstated. The systematic abuses involved are some of the most serious human rights violations possible, including torture and other forms of ill-treatment, enforced disappearance, arbitrary detention, non-consensual medical experimentation and extreme discrimination.
So what now? Wednesday’s announcement included a promise of extra resources to ensure effective implementation of the GDPR as it pertains to this issue in cooperation with the Data Protection Commission.
If the government moves swiftly to install committees of data protection law experts – ideally including experts from abroad – who are independent of government and Tusla, then we will hopefully see the empowerment of those individuals and families who have been subject to the state’s intense and unjustified control for so long.
The GDPR is supposed to function as a strong tool to grant individuals authority over their own personal data, the definition of which is broad and includes “mixed” data that relates to more than one person at the same time.
To date, unfortunately, many Irish holders of abuse-related records have used the GDPR as justification for redacting everything to do with another person’s relationship with, or treatment of, the person seeking their own data.
Resources and independent expertise are needed to correct the practice of all controllers of “historical” abuse records, including religious and other non-state bodies.
The legislative process to be led by the joint Oireachtas committee on children should look to international best practice, including the Stasi Records Agency in Germany, and examples of institutional abuse records access initiatives in Australia, Canada, Scotland and elsewhere.
This consultative and legislative exercise must be understood as a measure of transitional justice which puts those who have experienced abuse at its centre, recognising them as the primary experts on the measures required.
An immediately necessary step is for Minister O’Gorman to re-convene the independently-appointed collaborative forum of former residents of mother and baby homes. That forum was established by his immediate predecessor, Katherine Zappone, explicitly to advise government on how to respond to the issues raised in the past fortnight.
The Taoiseach and all of his government should also read and listen to the submissions by survivors of residential schools on last year’s Retention of Records Bill, submissions which convinced the joint Oireachtas committee on education to call a halt to that legislation.
The promised Site of Conscience, a national archive and centre for truth-telling and public education, is an opportunity for the state to make amends for some of the grave mistakes of the past two decades that accompanied attempts to respond to so-called historical abuse.
The archive should be open to the inclusion of all related records and experiences, rather than excluding certain institutions or individuals. The “gagging order” contained in section 28 of the Residential Institutions Redress Act 2002 will have to be repealed in order to properly allow for the deposit of witness testimony. This is an unnecessary and likely unconstitutional legislative clause which has never been used to prosecute anyone.
We have the capacity to pursue a human rights-based, world-leading inclusive approach to acknowledging and documenting our history of institutional and gender-related abuse.
It is never too late to learn from where we have failed in the past. Only good can come from the Taoiseach and the government following through on what they promised last week.
Dr Maeve O’Rourke is a lecturer in human rights at the Irish Centre for Human Rights at NUI Galway, and a co-director of the Clann Project (clannproject.org)