Tuesday was the second, and most eventful, day of the Irish state’s examination before the ICCPR . I have made a Storify of my tweets and some others from Geneva, which is embedded at the bottom of this post, and includes some video from the examination.
Symphysiotomy in Geneva and Mother and Baby Homes in Dublin.
I want to dwell, for a moment, on Prof. Yuval Shany and Sir Nigel Rodley’s critique of the Irish government’s approach to symphysiotomy in Geneva on Tuesday. This issue is important, not only on its own terms, but because the government has just published the Report of the Interdepartmental Inquiry on Mother and Baby Homes. The Mother and Baby Homes were a topic of passing comment for the Committee. The Minister for Justice gave no hint in Geneva that proposals for the shape of an inquiry (contained towards the end of the Report) were so close to completion. The Government has also announced that Judge Yvonne Murphy will chair a Commission of Investigation into Mother and Baby Homes. The retired judge, as well as chairing well-received inquiries into child sex abuse within the church in Dublin and Cloyne, formulated the principles for a proposed redress scheme for those subjected to symphysiotomy. In Geneva the UN Human Rights Committee roundly criticised both those redress scheme proposals, and the wider government approach to engaging with victims of abuse in state-run and state supervised institutions.
In his first set of questions to the state delegation, Professor Yuval Shany had asked the state what the next steps were for the symphysiotomy redress proposals given that Survivors of Symphysiotomy had rejected and criticised them. In his follow up questions, he noted that, although he could not comment on the financial awards under the scheme, he had a number of procedural concerns about its proposed operation. He questioned whether the scheme would be compatible with the effective redress provisions of the ICCPR given that:
- There is no right of appeal from decisions taken under the scheme.
- Claims are not individually assessed, but fall under only 3 broad financial bands.
- Claimants would be required to waive their right of access to the courts as a condition of participation in the scheme.
His questions mirror Survivors of Symphysiotomy’s critique of the proposed scheme. There is also implicit, in the Committee’s firm rejection of the government’s position that symphysiotimies were not human rights abuses, a critique of Judge Murphy’s acceptance of the Walsh report, on which the government’s position is also based.
The Committee also expressed some concern about the route which the State tends to take to redress. As the UNCAT has repeatedly confirmed in its criticisms of the McAleese process, survivors of the institutions have a right to an independent inquiry as a matter of international human rights law. This was also the position taken in Geneva this week. Sir Nigel Rodley, again echoing both Survivors of Symphysiotomy and the Irish Human Rights and Equality Commission Designate (IHEC), noted that what was missing from the Murphy report, and from the state’s entire approach to historical abuse, was provision for “accountability” for human rights abuse, both state and third party accountability. Material redress, he said was no substitute for meaningful accountability mechanisms. Madame Christine Chanet had earlier asked questions about the independence and narrow scope of the McAleese report, and about whether an ex gratia redress scheme could meet with the requirements of the ICCPR. Echoing the established position of the UN Committee Against Torture, she asked why Ireland was so reticent in dealing with the laundries’ abuses. When she later received no answer, but only a repetition of the state’s original description of the scheme, she criticised the state delegation, and said she could only conclude that the state’s position on these matters was “very firm”.
We wait to see how these issues will appear in the Committee’s Concluding Observations and Recommendations, which will be published next week on July 24th. The Committee, I would have thought, left the state delegation in no doubt as to where its international obligations begin and end. And its members were clearly impatient with state efforts to dodge the issue of insitutional wrongdoing. But given that it has set a new institutional abuse inquiry in motion before the UNHRC examination has concluded (we are still within the 48 hour period which states are allocated in which to respond in writing to unanswered questions asked by the Committee) it would be foolish to conclude that the State was embarrassed by its grilling. Or perhaps the impact of the criticisms has yet to sink in. The threat is that the State, like Monty Python’s Black Knight, will bounce merrily onward despite a mauling from the Human Rights Committee: “Tis but a scratch!”
Anticipating Problems with a Mother and Baby Home Investigation
The Terms of Reference for the mother and baby homes inquiry will not be set until the Autumn. There is time for the government to reassess its approach to inquiry and compensation. That said, the Report of the Inter-Departmental Group, which states that the group will inform and support decision-making on terms of reference, does not provide much cause for optimism. The Dail passed a motion in June which asserted, amongst other things, its belief that ‘this latest shameful episode in Ireland’s painful social history must be fully and accurately documented in order that a comprehensive account of these institutions is available’. The Report suggests that there may be difficulties in achieving this aim, much less the aim of effective remedy which the members of the UN Human Rights Committee advocated so firmly in Geneva.
The most important section of the Report for our purposes is section VII, which sets out potential working methods. The aim of the Commission would be “to provide valuable findings in a manner which is cognisant of the sensitivities of those most concerned and the importance of undertaking its work on a timely and cost effective basis”. A number of key points emerge from Section VII.
- Concern for cost effectiveness and ‘scarce public resources’ will limit the scope of this inquiry. The section on ‘relevant previous experiences’ is mostly concerned with costs. Section VII opens with a reference to the costs of the Mahon, Moriarty and Flood Tribunals. It notes (at p. 28) that the Public Accounts Committee, in view of the cost of these inquiries, ‘endorsed the recommendation for the terms of reference of inquiries to be tightly drawn and that new lines of inquiry should be limited.’ It also reviews the Ryan Commission, attributing the massive difference between anticipated and final costs to delays, which it says were caused in part by (i) issues of compensation for victims (ii) extending the scope of the inquiry to include vaccine trials and (iii) ‘legal challenges’ (which are not explained or analysed). The Minister for Children has also suggested that the scope of the inquiry will be limited in an effort to reduce delay and keep costs within bounds ‘in order to provide services for people’. (It is striking that the ‘relevant previous experience’ reviewed here only includes commissions of investigation. There are apparently no lessons to be learned from McAleese/Quirke (Magdalenes) or Walsh/Murphy (symphysiotomy)).
- The report is quite vague (at p.30 and p. 32) on how ‘former residents’ of Mother and Baby Homes should be included in the investigative process. This has been a huge source of concern with the McAleese and Walsh reports. The report discusses the issues around participatory rights in very general terms and very briefly. Both the McAleese and Walsh reports were criticised for ignoring submissions of survivors’ detailed written testimony. The report concludes, tellingly, that ‘should matters be dealt with in an adversarial or legalistic manner from the outset, or as a result of legal challenge, this is likely to lead to protracted procedures and add significantly to costs.’ Is there a danger that a Mother and Baby Homes inquiry would put in place measures to prevent or deter survivors from accessing the courts, or from accessing independent legal advice?
- The report notes (at p. 31) that any inquiry must take account of the ‘Constitutional right to privacy…enjoyed by all citizens, particularly in relation to sensitive personal information bearing on private and family life’. Are there echoes here of the McAleese Report’s commitment to ‘data protection’, which led, ultimately to the return of key records to religious orders’ custody, and their removal from the public gaze?
- This inquiry is likely to exclude a range of questions which it might usefully have considered. The report says (at p.31) that an inquiry should not duplicate the work of the Ryan Report. This may mean that institutions considered therein would fall outside the scope of the Mother and Baby Home inquiry. It also suggests (at p.32) that detailed investigation should be confined to 9 ‘core’ institutions. The Adoption Rights Alliance (and indeed, the former Minister for Children Charlie Flanagan) have argued that the inquiry should be far more extensive.
- The Report does not appear to have taken up the suggestion made by Justice for Magdalenes Research, and by the Irish Human Rights and Equality Commission, that the Magdalene Laundries should be included in the inquiry.
- The Report is also not especially clear on the extent to which the inquiry should consider issues of illegal and forced adoption or the widely reported vaccination trials conducted in some relevant institutions. Records from the Mother and Baby Homes have been transferred to the Child and Family Services Agency.
- On a positive note, this will be a statutory inquiry, unlike McAleese (Magdalenes) or Walsh (symphysiotomy). This means that the inquiry will have some power to compel records. However, the Report suggests (at p.5) that the inquiry will take place under the Commissions of Investigation Act, 2004. The Irish Human Rights and Equality Commission Designate has argued that consideration must be given to the impact of that legislation on later criminal proceedings.
- The Report stresses the huge volume of records with which any inquiry would have to engage. But it offers very little detail about how those records will be obtained and managed. Justice for Magdalenes Research had recommended that the inquiry must provide the most thorough audit possible of all relevant records, whether in the custody of the state or of religious orders. To this end, professional archivists and historians should be involved in the collection, collation and assessment of materials. Financial records must also be disclosed fully, and analysed by appropriate experts – the McAleese report was especially poor on this point. Accounts, fees, state funding, contracts, insurance policies, tenders all provide important evidence of past practice.
- The Report suggests (at p. 32 and 33) that a great deal of further research into the Mother and Baby Homes would be of benefit to public understanding of the relevant issues and might compile ‘a comprehensive social history of enduring significance’. It does not say who would be charged with conducting such research, or say to what extent a Mother and Baby Homes Inquiry would itself seek to establish a comprehensive and authoritative public narrative around the operation of the homes.
- There is no discussion of whether or how the proposed investigation would connect to subsequent reparations mechanisms. A proper Mother and Baby Homes inquiry, as the IHREC has argued, must mandate provision of effective remedies to survivors. O’Keeffe v. Ireland confirms that an ex gratia redress scheme of the type offered to the Magdalene women, and to the survivors of symphysiotomy cannot vindicate the ECHR right to an effective remedy.
- Individualised assessment of claims to compensation is a must – the sort of broad payment bands which characterised the redress schemes proposed for the Magdalene women and the survivors of symphysiotomy will not do.
- Care must be taken in ensuring that survivors are adequately advised in accessing compensation, and that they are provided with well-qualified independent advocates where necessary.
- The state must plan in advance to secure financial contributions from relevant third parties, including religious orders. None of the religious orders which ran Magdalene laundries offered either an apology or a financial contribution. Similarly, the Murphy redress recommendations proceed on the basis that hospital insurers will not contribute to any payments in respect of symphysiotomies.
- Proper compensation schemes will be designed with the needs of survivors in mind, and will not prioritise, without appropriate scrutiny and justification, the apparent demands of the public purse.
Now read the Justice for Magdalenes Research and IHREC Designate submissions on the outline of a potential scheme and spot the differences. Will one of Frances Fitzgerald’s successors find herself scrabbling for justifications before a different Human Rights Committee in Geneva a few years from now?