A first few sketchy thoughts on this afternoon’s announcement before I go on air.
The Minister for Children Charlie Flanagan said today the object of the Commission of Investigation will be “to seek the truth, to catalogue the facts and to explain exactly what happened in Mother and Baby homes.” So is a Commission of Investigation the right vehicle and will it have the power to do exactly that?
Can it for instance conduct excavations of the site at Tuam?
The 2004 legislation doesn’t specifically mention archaeological investigations but it does say that the Commission can “remove for later examination or copying any documents, or information in any form, that the authorised person has reason to believe may relate to a matter under investigation”. So the commission could argue if it felt exhumations and forensic examinations were necessary that they have the authority to conduct them.
But are exhumations really necessary?
I interviewed Toni Maguire an archaeologist specialising in the remains of marginalised children, this afternoon. She appears in my report here, but in essence she says yes. This inquiry will have to establish the facts on the ground or under it to answer the questions most troubling the public. And it was her unfortunate experience in dealing with similar digs in Miltown Cemetary in Belfast that when dealing with the religious orders you have to go the extra mile in obtaining corroborative facts.
Can people be forced to give evidence to a Commission of Inquiry?
The overriding intention of Commissions of Investigation was to be scaled down versions of Tribunals without the public hearings and without the Phalanx of Barristers and Lawyers standing behind every witness. And alarm bells should ring when the Dept of Justice’s own website emphasises that a Commission “must seek and facilitate the voluntary co-operation of people whose evidence it requires, and it must conduct its proceedings in private, except in exceptional circumstances.”
But while the legislation says that attendance should be voluntary the commission will have the powers to compel testimony and discovery of documents should that be necessary and can trot off to the High Court to achieve that. And if anybody is found to have lied to the commission that is an offence. So it has teeth – it just has to chose to use them.
But what will the commission investigate?
That Irish society, church and state permitted and indeed fostered attitudes towards pregnancy outside marriage that we would now find offensive is the stuff of social history not quasi judicial investigations. What are the specific issues that a commission is needed to make findings of fact on.
Off the top of my head the issues that need to find their way into the terms of reference are:
Adoptions – The extent? How many and why were numerous adoptions conducted outside the state regulated process? Who profitted financially and by how much?
Vaccinations – Authorised by who? Conducted on how many? To what medical effect? Who profitted and by how much?
Burials – Who was buried where? Can a comprehensive record be established? Why were apparently unregistered sites in use?
There is enormous volumes of information on what went on that can be established from public records in places like land registry, coroners offices, courts system, HSE, County Councils and various other archives. Where the Nuns record keeping might have been poor the Church’s own records or those of the County Council might prove to be substantially better. This paper trawl could establish a much greater appreciation of what went on and teh scale of it before ever having to put anyone through the trauma of reliving their time there.
One of the most valuable could be a trawl through the land registry to see where there are covenants on land use attached to sales that might indicate burial sites.
Will the commission make findings of fact?
Can it? Yes. Will it? Well …
It has the authority to make such findings. And where evidence is contradictory it has the authority to offer its own opinion on that dispute. Experience shows though, that the extent to which that is excercised will depend on who the government puts in the chair.
Whoever gets that job is going to have to be ever mindful of the senitivities of those who still feel stigmatised by their time in The Homes. So there will be a lot of black pen and a lot of Child A and Nun B. That will leave some feeling unsatisfied with the process, but we should all remember it is the victim’s process more than it is ours.