I made my written submission to the committee with Máiréad Enright, reader at Birmingham Law School, and Dr. Sinéad Ring, assistant professor at Maynooth University School of Law.
Since 2009, I have been researching, writing and advocating on the topic of the State’s constitutional law, as well as international and European human rights law, responsibilities towards those who were abused as children or women - incarcerated, tortured, forced into servitude, systematically degraded, denied identity and education and separated from family members - and those who died in the network of Catholic Church-related, State-supported institutions and the forced adoption system of the 20th century.
It is absolutely clear to me that an overriding human rights violation is continuing to affect every single person who experienced abuse in that network, as well as their families. That is the State’s failure to date to ensure truth-telling through the production of both its own State records and the records held by non-State bodies, which relate to the individuals who suffered abuse and the administration of the institutions and the network as a whole.
The failure to produce the records and to house them in an archive where individuals can retrieve their own life and family history, along with where administrative records and voluntarily deposited testimony can contribute to national education, undermines all efforts at reparation. At the time of the Ryan commission’s work, European and international human rights law required that survivors should have had access to the substance of the evidence that the investigation was considering so they could have commented on it and suggested further lines of inquiry.
I have major concerns that the State’s investigating practice continues to breach this requirement, a basic one under European international human rights law. For example, the ongoing mother and baby homes commission is proceeding entirely in private. Survivors who have requested public hearings of their own evidence have been denied them. Survivors have no access to any of the evidence being gathered. They are also being denied a copy of their own transcript of evidence, as well as their own personal records that the commission holds of the death and burial of family members. As for the McAleese committee’s State records relating to the Magdalen laundries, the Department of the Taoiseach is currently holding that entire archive secret, claiming it is holding it for safekeeping and not for the purposes of the Freedom of Information Act. This is the general approach.
Beyond the right to an effective investigation that survivors of industrial and reformatory schools had at the time of the redress board and the Ryan commission, the secrecy of these records violates other reparation rights. Without records, personal rehabilitation is gravely hampered. Without records, revisionism by those who would prefer the past to disappear is a risk, while memorialisation and national education – basic human rights obligations in this context - are not what they should be. Without records, accountability is denied.
We know that Garda investigations into the residential schools were insufficient. If survivors and their advocates cannot access records or information, they cannot press for investigations or prosecutions. Due to the passage of time, however, and because of the redress board legal waiver, criminal and civil legal accountability have become less available. At this point, access to records and national truth-telling is where accountability lies. It is where dignity lies. It is a vital measure of justice.
I recommend that, while work is ongoing to consult on and redesign the Retention of Records Bill, some small but crucial amendments should be made to existing legislation. I can make these amendments available to committee members later. I recommend that the Commission to Inquire into Child Abuse Act 2000 and the Residential Institutions Redress Act 2002 be amended to state explicitly that survivors and relatives of children who died while incarcerated have a right to all personal data held in those archives, including information about how they were treated by others, in the interests of vindicating their right to a remedy and respecting their right to privacy. I recommend section 28(6) of the Residential Institutions Redress Act 2002 be amended to make clear that it does not prohibit survivors from publishing information about their own life experiences.
I draw the committee’s attention in particular to section 3 of our joint submission which explains our understanding of the existing legislative provisions, including that the Ryan commission’s archive currently appears to fall within the remit of the National Archives.