Are we on the cusp of a genuine resolution or a return to Commissions without end?

Hello there and welcome to my latest Podcast.  Today I am going to take about the Mother and Baby Home Scandal in Ireland, dealing with a summary of the controversial Mother & Baby Home Report, the latest mismanagement by the Irish government on this subject matter and taking a look at the rules of the Irish parliament and what steps could have been taken by Irish TD’s.  I’ll be with you for a while, so draw up with that cup of tea and listen to how ordinary victims and survivors of Human Rights abuses have to navigate through a sea of political commentary.

In the midst of this Coronavirus crisis, the scandal of the Irish Magdalene women and children rolls on, delivering further misery and a sense of hopelessness and injustice.  It was bad enough that the Irish coalition government (in October 2020) had tried to enact a law quickly that would have locked up the records of the Mother & Baby Homes Commission for decades, but, it was worse still to watch the machinations of politicians and some of their supporters in the Irish media, trying it seems to minimise or isolate individuals who had been campaigning for justice.

I certainly didn’t suffer from this onslaught, but it was clear that campaigners were being maligned on the basis of some hysteria or other agenda, and was quite shocking to not just witness some of this dialogue in the press, but to also see some Irish TD’s engage in their own brand of vitriol through the social networks.

The furore resulted in an about face from the Irish government and their decision that the records from the Commission would not be sealed.  It was a victory for common-sense; a victory for the Irish people.

But this small but positive step was immediately overshadowed by the realisation, that the Commission’s long-awaited report had yet to be published.  A growing tension was further cemented by subsequent political announcements that the report received by Irish Ministers in October 2020, was both shocking and difficult to read.  Anticipation was high amongst the surviving Magdalene Women and Children that at long last, the truth of their terrible experiences would be laid bare before the Irish nation.

On 12 January 2021, the Department for Children, Equality, Disability, Integration & Youth, published all 3,000 pages of the Commission’s report which covered the period from 1922 to 1998.  When I initially examined the report, I found that it is poorly paginated and sectioned, requiring constant cross-referencing by using your own methods to join the sections and issues together.

Within days of publication, anticipation gave way to anger and disbelief.

The report made clear that the principal blame rested with the Father’s of the children, then captured by the Mother and Baby Home system, along with the women’s immediate families.  It also blamed Irish society as a whole for allowing these conditions to exist, adding that the Church & State had supported, contributed and condoned what had happened.  Above all it claimed that the institutions in question provided a refuge and that women had not been forced to enter the homes.  Curiously there was a somewhat torturous explanation and justification that women placed into Mother and Baby Homes had not been ‘incarcerated’ unlike their sisters (the so-called repeat offenders) of the Magdalene Laundries.

I have found the report to be both confusing and contradictory, particularly with its claim that the Catholic Hierarchy had not been involvement in the day-to-day running of these homes.  Then, further into the report, the Commission highlights a glaring contradiction to that opinion when speaking of the views of the then Archbishop of Tuam.  He had been asked by the County Council for his opinion about the relocation of the Tuam Home.  He was robust in his opinion that it would be ‘undesirable in every way’.  But then his recorded comments betrayed his knowledge of the operation of such homes by stating:

“Anyone who has experience of the workings of a home for unmarried Mothers will tell you that such a home must be a place that is quiet, remote and surrounded by high boundary walls…In many cases they are on the look-out to get in touch with a man, and some of them cannot repress their excitement when a man comes to the home to deliver a message…may of these unmarried Mothers are anxious to get off without delay.  The only thing that prevents their leaving is the strict supervision and boundary walls…in some cases it has been known that attempts were made from outside to get at the inmates”.

I am sure that you have picked up the key words from this senior churchman’s response: ‘remote’, ‘high boundary walls’, ‘supervision’, ‘prevents their leaving’, ‘inmates’.  This all sounds like a good working knowledge and by any measure, a system of incarceration that suggests criminality.

Equally, the Archbishop’s comments also reveal the mindset of authority when he spoke about how the women cannot ‘repress their excitement’ when they see a man.  To me it suggests a strong stereotyping of women and their behaviour, no doubt satisfying a Church and State doctrine about a woman’s place in society and the sanctity of her role.  This idyll was threatened by the very existence of unmarried Mothers which is why they had to be locked away in case they contaminated the pool of virtuous women, cast in the model of Our Lady and of male politicians.  

The report touches somewhat briefly on what can only be described as the rendition of women.  These were women who had escaped the suffocating threat to their lives and found a lonely existence in England.  There the Church ‘rescued’ escaped women and returned them through the force of words and condemnation back to the servitude they deserved to fit their crimes.

Remember the conclusions of the report; women were not incarcerated in these homes and that the Church were not involved in their operation - it kind of stands out there, doesn’t it?

The report went on to say that it did not invent Irish attitudes toward prudent marriages or to family respectability.  But, whilst it spoke to issues of inheritance, hence the direction toward prudence, the report failed to provide any historical context (as was its brief) which could have revealed that from the late 1800’s, the Vatican was already setting out its moral code in a changing world which followed into the early 20th Century.  The report acknowledged that this world view was nonetheless reinforced through its teachings. Importantly the report highlights the ‘denouncements’ from the altar for the fallen men and women (or the threat of a denouncement) which were designed so that they:

“were reinforcing wider social concerns”.  

The report acknowledged that the Church had long advocated against the ‘occasions of sin’, warning against ‘Nightwalking’, Dance Halls, and were fearful of the loosening of moral standards after World War I.  No doubt the actions on film censorship and the ban on contraceptives were vigorously supported by the Irish Catholic Church. The report noted the commentary that:

“The sense of moral panic was aggravated by a belief in some quarters that an independent, Catholic Ireland should be a role model, an exception to the moral decline seen in most other Western Countries”.

I want you to remember, according to this report, there was no incarceration, no involvement in the day-to-day running of the Homes, in fact there was an almost at arms-length relationship between most aspects of the Church and the State (much of the blame appeared to have been placed on the actions of local authorities).  It was really the fault of the Father’s, the women’s families and Irish society as a whole who tolerated such abuses.

Is it any wonder that people were fearful?

The report acknowledges that the ‘Free-State’ was determined to show the world that it was different and as I have written before, they did so through their close relationship between senior politicians and Church leaders.  They created the idyll of Irish society through its Constitution and through censorship, with the religious storm-trooper, armed with this high morality or calling, in every single parish across the land.

As I read the report relevant to my family’s experience, I began to recognise the elements that affected both my Dad and his Mother: 

• 1st offenders were “amenable to reform”; 

• 1st time Mothers “required a moral upbuilding…requiring firmness and discipline”;

• In large homes “they lose their sense of shame”;

• Rehabilitation delivered “The process of caring for her child [and] was seen as contributing to the Mother’s rehabilitation”;

• ’Old offenders’ were a “Possible danger to the Community” - (‘offenders’ representing the language of criminalisation which this report offers little in the way of commentary);

• Fear; 

• Poor conditions; 

• Hard work;

• A lack of hygiene;

• Poor diet; 

• Infant mortality (noting that there was apparently little discussion if at all at Cabinet level) and, 

• Little in the way of medical treatment.  

The pathways they highlighted to exit this nightmare, certainly did not reflect my Grandmother’s experience nor the question of why she remained incarcerated for 42 years; how many other women suffered a similar fate?  I reflected on my Dad’s story and had already realised that he had indeed been lucky when he came to be ‘boarded-out’.  But I also spared a thought for my Grandfather, alone, isolated and clearly trying to reach out to his lover, but his desire to marry her was given scant regard within the report, either to him and men like him, who had wanted to take care of their loved ones.

Within the terms of reference for the Commission, they were obligated to examine historical elements to provide context, in particular they were asked to apply a methodology that:

“…shall include a literature based academic social history module to establish an objective and comprehensive historical analysis of significant matters. The Commission shall, as it considers appropriate, rely on this analysis as evidence to inform its investigations and to assist the Commission in framing its findings and conclusions within the wider social and historical context of the relevant period. This analysis shall detail:….The role played by religious orders, civil society, the State, families and partners/fathers in relation to single women and their children”.

So whilst we can see evidence that apparently examines the prevailing attitudes of the public, there is little analysis of Church or religious actions, beyond the basic functions of their work.  

The only exception to religious commentary appears through subsequent contradictory statements to their propositions.  

At a political level, there was only one brief reference made to ‘Taoiseach’ (in relation to foreign 'adoptions’), only a few links to historical debates in the Dáil & Seanad, one reference to Fianna Fáil losing an election, no reference to Fianna Gael and absolutely no references to Eamonn De Valera, the principle architect of the modern Irish State. 

If ever there was a deficit, then it is here because the political/religious axis is key to any consideration of the matter, but once again the traditional ruling parties of Ireland have been given a free pass, but a day of reckoning must surely come for this axis because it is from here, that the people of Ireland took their conscious or unconscious lead from?

The reaction from the victims and survivors has been profound, with many struggling to read the report, simply because of the report’s size and complexity; some have no access to a computer and have been waiting for a hard copy of the report.

Within days of the report being published, those who had given testimony to the Commission were disturbed to read that their stories had not been fully reported, if at all.  There was concern by the claim that the taped testimonies of the survivors had been destroyed, without it seems a robust application of the rights contained within the General Data Protection Regulation (the GDPR).  I couldn’t believe what I was reading about records and the GDPR; it appeared that nothing had been learnt following the October experience.  Rising concern about the inaccuracies of the report and of the failure to inquire and conclude more thoroughly caused some to speculate that they may have to make a challenge for Judicial Review, to seek answers to their concerns and to cause the Commission to reflect on its actions and output.  The Oireachtas Committee for Children had their own concerns about the quality of the report and wrote to the Chair of the Mother & Baby Homes Commission requesting that she appeared before them; she apparently declined their invitation.  This led to a recognition that a growing and unsatisfactory state of affairs needed answers and time was running out fast; many believed that the Commission’s tenure needed to be extended beyond the 28 February deadline.

Frantic actions were deployed by the Irish government to try and allay a growing public anger on the report and actions of the Commission.  The Dáil appeared to be sending out messages that their hands were once again tied by the 2004 Commissions of Investigation Act, contradicted by a number of progressive TD’s.  Then the Minister, Roderic O’Gorman declared that back-up records had been found (this back-up did not form part of the records that should have been handed over to the Minister), and that these back-up files would be handed over to him and his department.  Clearly the government hoped that the crisis had been averted, but it did nothing to satisfy the concerns that the report produced was in fact not fit for purpose and the call to extend the Commission gained further traction.  

I joined the growing chorus of calls for action, citing the justification to extend the Commission’s tenure on the basis that:

• There was considerable controversy over the quality and content of the report;
• The debacle over the recordings and yet more failures on the GDPR;
• The narrative attacking bona-fide Campaigners and the ill-advised ‘official’ commentary being put out on behalf of the Commission;
• The failure to tell the survivors stories and the frustration of potential Judicial Reviews with the threat of even more complex litigation ahead;
• But it was the fact that the members of the Commission had declined to attend before the Oireachtas Committee to give evidence on its actions and output, that was of even greater concern.  I asked the question of whether it was acceptable in a modern society, that the will of the Oireachtas should be ignored and treated with contempt? Could the Commission have been compelled to attend?

I wrote to all members of the Oireachtas and received few responses to the points I made; some answered entirely different questions to those I had asked.  But the government again failed to listen to the many voices calling for action to restore confidence in the process, and they failed to organise a full and proper debate, with a vote, that would have defined a definitive response.  As a result, the Commission was formally closed on 28 February, leading behind a trail of unanswered questions and a great deal of dissatisfaction.

But what caught my eye was a newspaper article which quoted the Minister, Roderic O’Gorman.  In the weekend before the dissolution of the Commission he is reported to have declared that in his view there was:

“no meaningful justification or reason”,

to extend the Mother & Baby Homes Commission, Cabinet collective responsibility had clearly won the day.  He apparently justified this response by referencing the recovery of the audio recordings of the survivors.

But his most important comment came when he addressed the concern that the Commission members had declined to appear before a Committee of the Oireachtas; here he was of the opinion that they couldn’t be compelled to attend.

He then justified that by stating:

“I know a lot of TDs and senators are very annoyed about that, but they can’t be compelled, and extending them for another year wasn’t going to enhance that ability…I think any additional clarity in all of this is welcome. But I’m also conscious, in terms of it being an independent commission, they make decisions on how they operate”.

The response was both simplistic and fails to recognise the possibilities that exist within the Dáil processes, not to be dictated by a so-called Independent Commission of Investigation.  Nonetheless it was clear from his response that the debate would benefit from ‘clarity’; perhaps he too has concerns over the operation of the Committee and its output?  But to say that they couldn’t be compelled is not quite correct.

We know from one report that an invitation to the Chair of the Commission (Judge Yvonne Murphy), from the Oireachtas Committee for Children, was declined.  We then learned that the Commission didn’t believe that it would be appropriate for them to engage with the Committee and the report further added that there was a growing concern within government circles that the Commission may resign en-masse if the period of the Committee was extended; was the government being held over the barrel - what was the nature of the exchanges between government and the Commission?

I thought I would look back to see how previous Commissions had been conducted and found a critique written by Fergal Sweeney (a barrister), who looked into the operation of a previous Commission of Investigation, looking into the responses of the Archdiocese of Dublin, following allegations of abuse.  He noted that the Committee was chaired by Judge Yvonne Murphy, the same Chair to the Mother and Baby Home Commission. 

In his assessment of the Archdiocese of Dublin Inquiry, Sweeney expressed a general concern about how clerical witnesses had been dealt with and the scope of the Commission’s work.  He expressed concern at the tone and content of the report, balance, analysis, context, evaluation of issues or positions, disparity in fully examining the state responses, fair procedures.  This analysis is interesting because of the deep concerns of those affected by the publication of the Mother & Baby Homes report; is this critical history repeating itself?

I then thought I would look at the terms of reference for the Committee on Children and Youth Affairs, which are in turn referenced to the Standing Orders of the Oireachtas.  The ‘terms’ are fairly unremarkable and I could see that they are empowered to consider bodies that have been funded by the State or on other matters, but, I could not see any reference to witnesses or persons or evidence that they could access or interrogate.  Odd I thought; surely such an important Committee should have such a set of powers?

When I looked at the Standing Orders I noted that the Committee on Children’s terms of reference did not cite other rules (DSO 85, 114 and 116 and SSO 71, 107 and 109), which could potentially have given the power to call witnesses and explore their testimony; again I couldn’t understand this deficit.  

But I also found that references to Standing Orders sometimes doesn’t quite match their headline title (for example I think the correct Standing Orders on people and evidence are contained in Rules 96 & 97).  But, I did find some clarity which makes it clear that in order to obtain the power to compel witnesses, a Committee must first of all seek the approval and power of the House to ‘send for persons, papers and records’! Oh really, a similar power to the Select Committee’s of the UK’s House of Commons?

I then found that this power to ‘to send for persons, papers and records’ and any desire or need to compel witnesses, can only be applied to those Committee’s who have been given that power under a 1997 Act given by the Oireachtas!  Under the same Act it is interesting to note that a Judge’s from certain courts within the Irish State, cannot be compelled to call evidence!

The long and the short of it is that a Committee believing that it requires to see ‘persons’, their papers and records have to seek the approval first of all from the Oireachtas.  Then if they wish to achieve a further power on compellability they have to follow a further process to achieve that goal.  So when the Minister and others say it’s not possible to compel people to attend before a Committee of the Oireachtas, they need to be ready to explain that process and justify why in matters of great public concern such devices have not been deployed!

It was equally interesting was to discover that under Section 42 of the Commissions of Investigation Act 2004, members of any Commission are given ‘absolute privilege', meaning that they cannot be pursued for the statements that they make verbally or in writing, and so the Commission of the Mother and Baby Homes disinclination to appear before the Committee on Children, made no sense to me at all, as they would not have suffered with any prejudice.

There are those who say that if you questioned the Commission, extended their operations or overrode their actions, that you will negate the 2004 Commissions Act.  They also argue that such challenges would dissuade future engagement in other Investigations, either by Judges or Victims or Survivors. This is a simplistic argument in the extreme. 

It is then all the more puzzling when you try to understand the debate and processes in the Dáil against the outcome of this report.  

I would have thought that in something as important as this and indeed previous inquiries on the same subject matter, raising matters of important public concern, that members of the Oireachtas would have considered what tools they needed other than being able to question the Minister directly?  

I confess I am left with the question of trying to understand why the Oireachtas didn’t consider this to be a good idea, to equip themselves with the necessary interrogatory tools to access information and opinion? 

The Dáil exists to scrutinise laws and to correct anomalies in laws. It is entirely possible to correct the defects contained in the debate on data, also problems detected within the 2004 Act, importantly to seek approval ‘to send for persons, papers and records’, and to be able to deploy provisions contained in the 1997 Act, to promote and enforce compellability.  It was also was entirely possible for the Irish Government and the Dáil to take action before 28 February 2021 to extend the tenure of the Mother & Baby Homes Commission. 

If you disagree, then you are perhaps reflecting the view that the Dáil has no real power at all?  Do you really believe that or is it the case that Irish Society is dominated by a political class that seeks to crush or confuse political processes and thereby Justice?

Is this a new breed of political eunuch, trapped in the headlights of their own making, delivering wider consequences and frustration for all?

(This is the script for Frank's Podcast - Mothers, Children & The Political Eunuch. You can watch and listen to Frank's Podcast here. This text and podcast is subject to © 2021 and any reproduction of text, sound or video, in any form, requires written permission)