THE LEGAL APPROACH of the Commission of Investigation into Mother and Baby Homes appears to have been heavily influenced by the lasting impact of the Ryan Commission into child abuse, an expert has said.

Máiréad Enright, a human rights lawyer, said that the threat of legal action from religious orders appears to have heavily influenced the approach of the commissioners in the more recent inquiry.

Indeed Professor Mary Daly, one of three commissioners involved, yesterday told an online event that “looming” legal threats impacted the Commission’s work.

The more recent Commission dissolved at the end of February 2021 – six weeks after its final report was published. Daly and the other two commissioners are facing growing calls to appear before the Oireachtas to answer questions about their work.

Speaking to The Journal today, Enright said the adversarial Ryan Commission and related long-running legal battles also appear to have played a role in the approach.

Daly acknowledged that the personal testimonies of hundreds of survivors were not considered when drawing up the inquiry’s findings. The reason for this, she said, was because most survivors gave testimony via the Confidential Committee instead of the Investigation Committee.

The former was a less adversarial, information-gathering exercise, while the latter involved witnesses testifying under oath and being questioned in a more rigorous manner.

As such, information gathered at the Confidential Committee was not legally “robust” and could not be given the same weight as other evidence.

Sixty-four survivors gave evidence to the Investigation Committee and 36 provided sworn affidavits, whereas over 500 witnesses gave evidence via the Confidential Committee.

Just 19 people applied directly to give evidence to the Investigation Committee, and it’s not clear how the other witnesses were chosen.

Of the 550 people who met the Confidential Committee, one witness had not spent time in one of the institutions under investigation. Of the 549 others who were interviewed, 304 were mothers; 228 spent time in the institutions as children; and 17 were involved in other ways (such as workers).

Daly stressed on numerous occasions yesterday that the Commission’s hands were tied by the Terms of Reference it had to operate under, as well as the “looming” threat of legal action from the religious orders in question.

The potential legal action of survivors – which has now become a reality in several cases – was seemingly not given the same consideration.

Enright, who attended yesterday’s discussion, said that as the testimony given to the Confidential Committee was anonymised, it would be difficult for a religious order or person to say with certainty that a certain claim related to them.

Despite this, if an alleged perpetrator was identifiable they would have had the right under the Commissions of Investigation Act to review the report in draft form and make submissions or corrections.

No religious orders have lodged legal action related to the Commission’s findings, but a number of survivors are seeking to have elements of the final report quashed via judicial reviews in the High Court.

A number of survivors have told The Journal this week they are “disappointed” that their right to reply and challenge certain elements of the report was seemingly not given the same weight as religious orders’ right to reply, describing the situation as “disrespectful” and “very frustrating”.

Enright said it has “always been the case” that the State is “willing to drag activist communities through the courts”. She said “the State seems quite happy to engage in that work as long as its survivors and victims”.

She said the Commission’s approach appears to have been influenced by a previous, very adversarial inquiry: The Ryan Commission (also known as the Commission to Inquire into Child Abuse).

The Ryan report, published in May 2009, detailed the endemic scale of physical, sexual and emotional abuse suffered by children in institutions run by a range of religious orders.

The legal battles, and threats, that occurred because of the Commission’s work have had a lasting impact.

Speaking to The Journal today, Enright said: “People will remember that the Ryan Commission started as the Laffoy Commission and took a very long time to get off the ground because of lack of Government cooperation. And then the next big threat to it was potential legal action by religious orders but primarily by the Christian Brothers, and also legal action by doctors.

“The legal action by the Christian Brothers was most important because they argued at the time that the Ryan Commission was going to make individual findings of criminality against named Christian Brothers who were major abusers in particular institutions.”

Enright recalled how the Christian Brothers argued that in cases where the brother in question was still alive it was unconstitutional to make certain findings against him. She added: “Even where they were dead, they argued it was potentially unconstitutional because the Christian Brothers, as an organisation, that its reputation would be tainted by association with their dead members.”

A previous High Court ruling found that people have a constitutional right to their good name and reputation, Enright noted, “so you can’t have a situation where a Commission unilaterally makes findings, not of guilt or innocence necessarily, but findings of fact in relation to serious crimes”.

“Basically, it was ruled that it would be unconstitutional to make certain findings against individuals.

“Because of that, the Ryan Commission was so adversarial and there were so many lawyers involved,” Enright explained. She said the fact that this Commission became “such a legal circus” – as well as “very expensive” and “very traumatising for survivors” – continues to have a lasting impact.

“That experience seems to have directly influenced and over-influenced how [the Mother and Baby Home] Commission was run. Since Ryan, there have been all kinds of discussions about commissions of inquiry, tribunals of inquiry – different judges take a different view, but the policy position now is that we have commissions of inquiry precisely to avoid long trials and so on.

“We have to be reasonable about it, you don’t get to question and cross-examine every piece of evidence that mentions you. It’s the role of the chair or of the commissioners to make sure that evidence that leads to findings is tested, but you don’t necessarily get to have a barrister for every single issue.”

Enright said the Commission’s final report cannot be allowed to stand as it is “a half-complete investigation”. However, she said this should not delay redress being given to survivors.

‘Back with a vengeance’ 

Daly yesterday said that the Commission had to be “ultra careful” in terms of what it published due to the “looming” threat of legal challenges.

“If we wrote something that was averse or critical about an individual or an entity, an institution, we had to write a draft report, send them that draft report where we made these critical observations and supply them with the accompanying documentation. And they had a chance to read that, and they had a chance to come back.”

This, she said, happened “with a vengeance” in certain cases, giving the example of the Tuam Mother and Baby Home.

The Commission of Investigation 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 extensive research by 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.

Speaking about Tuam, Daly said: “The burial report, I would have thought, was fairly conclusive in what we said about both Tuam and Bessborough but we got heavy pushback on both.

“Tuam came with this extraordinary assertion that those burial tanks were actually purpose-built burial vaults. The kind of thing you see in continental Europe used by royal and other families.”

She said the assertion that “a cash-strapped local authority would have constructed something like that in the 1930s” was very unlikely. “They had the nerve to send that back to us,” she added.

At the site of a former mother and baby home in Bessborough in Co Cork, the burial place of over 800 children remains unknown as the records could not be located.

Discretion not used

Enright views the assertion by Daly that the Terms of Reference prohibited the Commission from using the personal testimonies given via the Confidential Committee as incorrect.

She said the terms allow the Commission to use evidence from the Confidential Committee’s report as it sees fit. She said “allegations identifying individual perpetrators or religious orders or institutions” could be tested by questioning or other means.

“It was not intended that the Commission should ignore the bulk of survivor testimony. On the contrary, it was intended that it should weigh and assess that testimony according to the appropriate standard of proof.”

Enright said the Commission had a certain amount of discretion in this regard, but instead chose to essentially dismiss the majority of survivor testimony.

Many survivors have said they were directed to the Confidential Committee when they sought to give evidence. Some have told The Journal they were not aware there was a second committee gathering evidence that would be given more weight and used by the Commission to help inform its conclusions.

Enright said the Commission may argue it “felt an obligation to protect victims by steering them towards the non-adversarial option”. However, she said this is somewhat patronising and condescending.

“That’s not consistent with people’s dignity, it’s not about helping them to achieve what they want to achieve – which is to contribute to the process – and it’s also not consistent with European human rights obligations which say that people have to be able to participate in the process, not just as spectators”.

Enright noted how the Clann Project, which advocates on behalf of survivors, highlighted years ago that the Confidential Committee was “the only one advertised” by the Commission.

“Some people are saying they were steered to the Confidential Committee, but other people are saying they didn’t even realise there was another option.”

“People should have been informed of their full range of options and supported to make a meaningful choice between them.”

Yesterday Daly gave an example of a woman who gave the Confidential Committee “quite persuasive evidence of physical abuse”. The Commission asked her to appear before the Investigation Committee but she did not want to do so.

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Enright said, rather than not use her testimony at all, the Commission should have asked her if she would be willing to make a sworn written statement instead.

“If she was upset at the idea of being cross-examined, why not make a sworn written statement?”

Human rights lawyer Maeve O’Rourke, co-director of the Clann Project, yesterday noted that only 19 people “managed to go straight to the investigative arm” of the Commission, while 550 people gave evidence via the Confidential Committee.

The Clann Project wrote in 2016 to the Commission asking why it was only advertising the Confidential Committee on its website.

“We told the Commission that many of the people we were working with had not known the difference between that and the investigation proper,” O’Rourke told us.

Problems raised five years ago

In a letter sent to the Commission on 9 August 2016, Rod Baker of Hogan Lovells, a law firm which provided pro bono support to survivors via the Clann Project, raised a number of concerns.

Baker wrote: “A number of individuals responding to the Clann Project, including a number of people who have appeared before the Confidential Committee, seem to have absolutely no idea about the difference between giving evidence to the Confidential Committee and giving evidence to the main Investigative Committee, or indeed the fact that there are two options open to them.

“Having reviewed the Commission’s website, we note that the Commission’s rules and procedures, which identify the two ways to give evidence, are not shown on the website and there is no mention of being able to give direct evidence in person to the Commission other than via the Confidential Committee.

“Both we and our clients consider that this is a significant deficiency in the Commission’s advertising of the options open to individuals that should be remedied as soon as possible.”

In its response to Baker on 23 August 2016, the Commission’s solicitor Maeve Doherty explained the difference between the two committees but did not say that the Commission would take steps to clear up any confusion.

Doherty wrote: “Not everyone who expresses an interest in giving evidence to the Investigative Committee will be invited for hearing. The procedures for appearing before the Investigative Committee are set out in our Rules and Procedures (a copy of which has already been furnished to your clients).”

She continued: “You note that our Rules and Procedures are not on our website. Section 13 of the Commissions of Investigation Act requires the Commission to provide a copy of our Rules and Procedures to any person giving evidence to the Commission — ie to the Investigative Committee.

“The document is necessarily of a legalistic and technical nature. Most of it does not apply to individuals meeting with the Confidential Committee. The Commission has made a decision not to put this document on our website so as not to dissuade such persons from applying to the Confidential Committee, which is of a more informal nature. A copy of our Rules and Procedures will be provided to anyone on request and we will arrange to put a notice to this effect on our website.”

‘Hundreds of hours of work’

Speaking about the difference between the two committees yesterday, Daly said: “There was the confidential inquiry where people could come to the Confidential Committee and their names would not be noted in the final report, there would be no challenge to what was said, it wouldn’t be cross-examined, it wouldn’t be cross-checked.

“I don’t think the two should have been put into the one Commission, one inquiry, because they are very, very different exercises.”

Daly said the work of the Confidential Committee was “a very valid exercise” as “it gave people who would not have subjected themselves to the rigours of coming in and taking an oath and giving evidence” the opportunity to “tell their stories” without being “cross-checked or queried to any significant degree”.

She noted that a number of people gave evidence to both the Confidential Committee and the Commission, but most just gave evidence to the former – as such, their testimony was not given the same weight or consideration when the Commission set out its findings.

Daly said she spoke to her colleagues about “how we could have integrated the confidential inquiry into the report”, but that it “would have taken a lot of time, additional time, I mean”.

“It would have taken hundreds of hours of cross-checking, rereading against the other evidence available from registers and so on. Then maybe interrogation, and then maybe working out how to integrate the two.”

Enright is among those who believe the Commission should have taken the extra time and spent its outstanding budget – some €11 million – to do a more thorough job.

Today, Taoiseach Micheál Martin and Tánaiste Leo Varadkar joined the politicians calling for the commissioners to appear before the Oireachtas Children’s Committee. Enright agrees that this needs to happen, and soon, but said others also must answer questions.

“I don’t want to just see the commissioners, I want to see the whole legal team, not just pick and mix commissioners. They have questions to answer.”

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