THE COMMISSION OF Investigation into Mother and Baby Homes will submit its final report to the government today.
The report will be examined by Minister Roderic O’Gorman, the Department of Children and the Attorney General before being published.
The commission was set up over five years ago and the submission of the long-awaited report, which is about 4,000 pages long, was delayed a number of times.
The commission’s records – and whether or not they will be sealed for 30 years – have been the subject of much debate in recent weeks.
Ahead of the publication of the report, which is expected later this year or early next year, we’re taking a look at the steps that led us to today.
Why was the Commission of Investigation set up?
The Commission of Investigation into Mother and Baby Homes was established in 2015 to inquire into the treatment of women and children in 14 mother and baby homes and four county homes – a sample of the overall number of homes – between 1922 and 1998.
The commission was set up following claims that up to 800 babies were interred in an unmarked mass grave at a former Bon Secours home in Tuam, Co Galway – following on from extensive research carried out by amateur historian Catherine Corless.
Excavations carried out between November 2016 and February 2017 found a significant quantity of human remains, aged from 35 foetal weeks to two to three years, interred in a vault on the site.
The commission was established in 2015 and was due to report within three years, but a number of extensions were granted – with today being the final deadline.
In February 2015, then-Minister for Children James Reilly announced that the commission’s terms of reference had been agreed at Cabinet.
The commission is chaired by Ms Justice Yvonne Murphy. The former judge also chaired the commission of investigation into the sexual abuse scandal in the Catholic archdiocese of Dublin, publishing the Murphy Report in November 2009; and the commission of investigation into the Catholic Diocese of Cloyne, with the Cloyne Report published in July 2011.
For the commission into mother and baby homes, Ms Justice Murphy worked alongside Dr Mary Daly, retired professor of Irish History at University College Dublin and former president of the Royal Irish Academy, and Dr William Duncan, retired professor of Law at Trinity College Dublin.
Then-Minister Katherine Zappone set up a Collaborative Forum to “facilitate dialogue and action on issues of concern to former residents of Mother and Baby Homes” in 2018.
The forum was set up to “enable former residents to identify, discuss and prioritise the issues of concern to them”.
What did the commission look into?
The commission was tasked with examining a number of issues such as how women and children entered and left the homes; their treatment while in the homes; living conditions in the homes; burial practices; and the prevalence of abuse; forced labour; forced adoptions; forced participation in vaccine trials; and providing bodies of residents who died for medical research.
The terms of reference include the examination of the following:
For children who did not remain in the care of their parents, the commission was tasked with examining exit pathways on leaving these institutions, and to identify the following:
The full terms of reference can be read here.
The commission carried out its work through interviews with survivors and other relevant parties; written submissions; and documents and records provided by relevant authorities and religious orders.
What institutions were examined by the commission?
The following 14 Mother and Baby Homes:
The following four county homes:
Did the commission publish interim reports?
Yes, the commission has produced seven interim reports – which can be read here – since it was set up. These reports contained updates on the commission’s work and detailed difficulties it was encountering when carrying out its research.
Its fifth interim report, which was published in March 2019, contained information about burial practices.
It stated that “major issues about burials arise in the cases of Bessborough (in Cork) and Tuam (in Galway)”.
“It is not known where the vast majority of the children who died in Bessborough are buried…
“More than 900 children died in Bessborough or in hospital after being transferred from Bessborough. Despite very extensive inquiries and searches, the Commission has been able to establish the burial place of only 64 children.
“The Congregation of the Sacred Hearts of Jesus and Mary who owned and ran Bessborough do not know where the other children are buried.
“The burials of children who died in the three Sacred Heart Homes (Bessborough, Castlepollard and Sean Ross) are not recorded at all. More importantly, there is no certainty about where they are buried.”
The report noted that the congregation “provided the Commission with an affidavit about burials generally and specifically about the Castlepollard and Sean Ross child burials but very little evidence was provided to support the statements in it”.
“The affidavit was, in many respects, speculative, inaccurate and misleading.”
In relation to Tuam, the report states: “In the light of a great deal of inaccurate commentary about the Tuam site, the Commission considers it important to emphasise what it has established and what it has not established:
“The memorial garden site contains human remains which date from the period of the operation of the Tuam Children’s Home so it is likely that a large number of the children who died in the Tuam Home are buried there.
The human remains found by the Commission are not in a sewage tank but in a second structure with 20 chambers which was built within the decommissioned large sewage tank…
“The Commission does not consider that any of its features suggest that it was deliberately formed as a crypt or formal burial chamber.”
The reports goes on to state that the Sisters of Bon Secours who ran the Tuam Home were unable to provide any information about the burials there.
“The Commission is surprised by the lack of knowledge about the burials on the part of Galway County Council and the Sisters of Bon Secours. Galway County Council members and staff must have known something about the manner of burial when the Home was in operation.
“The Board of Health and its sub-committees their meetings in the Home. Employees of Galway County Council must have known about the burials. County Council employees would have been in the grounds of the Home quite frequently as they carried out repairs to the building and possibly also maintained the grounds.
“It seems very likely that Galway County Council must have been aware of the existence of burials when they were planning the Athenry Road housing scheme in 1969.”
The commission’s seventh and final interim report was published in June. This document sought a final extension – until today, citing the impact of the Covid-19 pandemic on its work.
“Like every other activity in Ireland, the Commission has been affected by the restrictions imposed in order to deal with the consequences of Covid-19. The Commission and its staff have been working remotely to try to complete the report.
“While the report is very close to completion, inevitable logistical difficulties have arisen.”
The extension to the deadline – until today, 30 October – was granted by then-Minister for Children Katherine Zappone.
When will the final report be published?
The report is likely to be published later this year or early next year – the exact timeline is not clear, but “as soon as possible”, according to the government.
As required by law, upon receipt the Final Report will be immediately referred to the AG for legal advice as to whether it might prejudice any criminal proceedings that are pending or in progress To expedite publication, the AG will ensure that additional resources are in place to speedily review for publication what is expected to be a very lengthy Report.
“All relevant Government Departments and Agencies will develop a comprehensive State response to the findings and recommendations of the Final Report for urgent consideration by the Government,” a statement issued this week noted.
Alice-Mary Higgins makes an important point - these debates have retraumatised many survivors.
— Órla Ryan (@orlaryan) October 23, 2020
"The sense of disempowerment that accompanies this entire legislative process has been extraordinarily unfortunate and has been very traumatising."#UnsealTheArchive pic.twitter.com/K6OnB0uvu6
A State apology, financial compensation for survivors and the provision of mental health supports and other supports for survivors are likely to be recommended.
The report could also lead to criminal proceedings in some cases.
How much has the commission cost?
Its work has cost over €14 million to date.
When establishing the commission in 2015, the government noted that the investigation and associated additional demands on the Department of Children were estimated to cost €21.5 million, exclusive of third party legal costs.
“Since its establishment, expenditure of approximately €11.4 million has been incurred (to Q3 2020) to support salaries, fees and other operational costs relating to the work of the independent Commission and its engagement with former residents and other witnesses,” Minister O’Gorman said earlier this month.
“In addition, the department has also directly incurred costs of approximately €2.48 million for the same period in supporting this work and responding to the commission’s interim reports.
“This includes the costs associated with the separate Collaborative Forum process to facilitate former residents of these institutions to engage on the issues of concern to them and their families.
“Costs for this process include an extensive public information campaign to support the call for expressions of interest from former residents, operational costs such as meeting facilities and participant travel, and external facilitation and related supports.”
Why did legislation over the commission’s records cause such debate and anger in recent weeks?
The Commission of Investigation (Mother and Baby Homes and certain related Matters) Records, and another Matter, Bill 2020 passed through the Oireachtas last week.
The Bill was passed in the Dáil by 78 votes to 67, and by 22 votes to 16 in the Seanad.
The legislation, which can be read in full here, allows the transfer of a database of 60,000 records compiled by the commission to Tusla.
Earlier this month the government approved the text of the Bill, which it said is needed to safeguard the records after the dissolution of the commission.
Many survivors and legal experts expressed anger at the Bill.
Opposition TDs said the legislation was pushed through without proper scrutiny, and none of their amendments were accepted during a number of emotional debates where the powerful testimonies of survivors were read into the record.
Roderic O'Gorman tells Seanad he is "deeply apologetic" for the anguish caused to mother and baby home survivors.
— Órla Ryan (@orlaryan) October 23, 2020
He says the records Bill is a "good law", but in his "haste to fix a legal problem", the communication was poor. #UnsealTheArchive pic.twitter.com/9sWRP6AlCw
When questioned on the need for the legislation – and why it is being rushed through with little scrutiny or debate before the end of the month – O’Gorman said that earlier this year the commission informed his department it had created a database tracking who was in the main mother and baby homes, but “did not feel it had a legal basis to transfer that database and would be compelled by law to redact … valuable information”.
The minister said the Bill would preserve this information and allow the database to be transferred to Tusla, “with whom most of the original records are already held”.
O’Gorman said the new legislation will prevent the information “from effectively being destroyed” and will allow access to it under existing laws.
“The draft Bill is focused on protecting a valuable resource which will assist in accessing personal information under existing law and be hugely beneficial in any future information and tracing legislation,” he stated.
After a number of debates in the Oireachtas, the government introduced two amendments to the Bill:
Will the records be sealed for 30 years?
The legislation debated in the Oireachtas this month does not specifically address the records being sealed for 30 years.
The government maintained it had to seal the records under the Commissions of Investigation Act 2004.
This Act states that a commission’s records will be transferred to the National Archives “on the expiry of 30 years after the date of the commission’s dissolution“.
O’Gorman this month said the entire premise of the 2004 Act “is that investigations are held in private” – however, this was disputed by academics.
“That confidentiality applies to the evidence and records gathered by the inquiry. It is central to allow testimony be given freely,” O’Gorman stated.
Dr Maeve O’Rourke of the Clann Project, a group that advocates on behalf of survivors, has disputed that, saying the Commissions of Investigation Act 2004 does not require commissions to proceed entirely in private.
As she set out in TheJournal.ie last week, the Act “gives discretion under section 11(1) to every Commission to hold public hearings—something which this Commission refused to do (it even refused Philomena Lee a public hearing)”.
“The 2004 Act also states in Section 12 that a Commission shall disclose to every person who gives evidence to it ‘the substance of any evidence in its possession that, in its opinion, the person should be aware of for the purposes of the evidence that person may give to the commission.’
“The only exception under section 12 to this requirement is that the source of the evidence to be disclosed to a witness may be withheld if given in private unless disclosure of the source is in the interests of the investigation or fair procedures.”
Some people did want their testimonies to the commission be kept confidential – however, others who gave evidence wanted public hearings to be held and for their stories to be public but were not afforded this option.
Where does GDPR come into it?
A number of legal experts said that General Data Protection Regulation (GDPR), which came into law in 2018, supersedes the 2004 Act and would not allow for the records to be sealed.
However, the government disgareed, saying it had received different advice from the Attorney General, Paul Gallagher SC.
This stance was disputed by legal experts, with O’Rourke stating: “Neither the Commission nor the Government is permitted under the GDPR to place a blanket seal over the entire archive it holds.”
O’Rourke said even if the 2004 Act “did require ‘sealing’ of evidence (and setting aside the fact that EU law is supreme over any conflicting Irish legislation), the Oireachtas can — of course — change the application of the 2004 Act to this particular Commission’s archive, as this Bill already proposes in various respects”.
Many people have called the government’s statement on Wednesday night a u-turn on the GDPR issue; they describe it as a clarification.
In a statement, the government said that the Department of Children, along with Túsla, would continue engaging with the Data Protection Commissioner to ensure peoples’ right to access their own personal information about themselves, under data protection legislation and the GDPR are “fully respected and implemented; additional resources will be provided where necessary”.
What will happen next?
The government has committed to do a number of things.
It “will work to establish on a formal, national basis an archive of records related to institutional trauma during the 20th century”.
“This will include archiving relevant records and witness testimony by victims and survivors; it will be developed at a suitable site and operated in accordance with the highest international standards; it will be designed in cooperation with professional archivists and historians, as well as with victims, survivors and their advocates.”
Some survivors have called for this archive to be developed at a site on Sean McDermott Street in Dublin, where the last Magdalene Laundry closed in 1996.
The government also plans to “advance” its work on Information and Tracing legislation, with a view to publication next year. This legislation will be aimed at making it easier for adopted people to access personal information.
Previous attempts at implementing such legislation have stalled amid difficulty reaching a consensus on a person’s right to information versus a person’s right to privacy.
The government will also “urgently proceed with the legislation to provide for sensitive and appropriate actions at the burial site at the former Mother and Baby Home at Tuam, Co Galway, and at any other sites where this is appropriate”.
A State apology, financial compensation for survivors and the provision of mental health supports and other supports for survivors are likely to be recommended in the report, as outlined above.
The report could also lead to criminal proceedings in some cases.
The HSE has committed to “expedite implementation of the provision of health and well-being supports to survivors”.
In a statement issued yesterday, the Adoption Rights Alliance (ARA), Justice for Magdalenes Research (JFMR) and the Clann Project, the groups responsible for the recent email campaign on the Mother and Baby Homes Commission archive, “warmly welcomed the government’s announcement on access to information for those affected by ‘historical’ abuses and the concrete measures proposed”.
The groups said they “welcome the government’s acknowledgement that many decades of secrecy have caused ongoing and unnecessary harm to people already profoundly failed by our State and society”.
Over the past few weeks, the citizens of Ireland and people from across the diaspora have joined with survivors of institutions, adopted people, natural mothers and relatives of the deceased and disappeared to reject this continuing abuse. The government has listened, which is a vital first step in attempting to redress the harm caused.
The groups said the government’s commitment to work closely with the Data Protection Commission to fully vindicate the rights of people who experienced forced family separation abuses is “a clear and welcome departure from previous policy”.
“The right of access to personal data is both a core element of the EU Charter of Fundamental Rights and protected by the EU General Data Protection Regulation (GDPR), making it supreme over any conflicting Irish law,” the statement noted.
“As the government now recognises, existing EU law requires the Irish State to move away from its reflexive habits of secrecy.”
The groups are calling for the urgent recruitment of data protection law expert committees, who are independent of government departments and Tusla, to administer the data protection obligations of the department and Tusla.
In addition, the groups said “independent expertise should also be provided to the Adoption Authority of Ireland and other controllers of adoption and institutional records”.
The groups’ statement added: “Access to information is crucial to attaining any form of accountability for the serious and systematic abuses of the 20th century. Truth-telling is necessary in order to ensure that similar abuses never happen again.”
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