Stop the Retention of Records Bill!
By Sheila Ahern
In the aftermath of the broadcast of the three-part television documentary States of fear in 1999 I naively thought that we had broken through the decades of silence and cover-up about the abuse of children in industrial schools. On the day the third programme was transmitted, 11 May, Taoiseach Bertie Ahern apologised for the State’s role in the abuse and set up an inquiry to examine the system that allowed it to happen. I thought that everything would now be out in the open. I was wrong.
While working as the researcher on States of fear with producer Mary Raftery, I was acutely aware of how difficult it was to access information. None of the religious orders would allow us into their archives and the State only allowed us very limited access to the archives of the Department of Education held in Athlone. We were not allowed to see any files about a school involved in an ongoing court case, which meant that if there was even one case against Artane, for example, we couldn’t have access to any files relating to Artane. Despite these limitations we managed to establish enough evidence to make a compelling case about the appalling conditions and the abuse that the children experienced.
The Commission to Inquire into Child Abuse was set up in 1999 and Justice Mary Laffoy was appointed as its chairwoman. Almost from the start she hit several brick walls that made her work impossible. The Department of Education was dragging its heels in giving her access to records and archives. ‘The records they had were crucial to the investigation’, Laffoy said in an interview for the two-part series Redress: breaking the silence on RTÉ1 in March this year, ‘there was a resistance there’. Simultaneously the Christian Brothers took a High Court case against the Commission to protect the reputation of any of its members who might be named as abusers at the hearings. Most of the congregations were not co-operating with the Commission, according to Laffoy; the High Court case had resulted in long delays and ultimately forced her resignation. Her successor, Seán Ryan, had a very pragmatic approach: ‘This is urgent’, he told RTÉ, ‘people deserve to have a result from the commission … the only practical way was to abandon the idea of naming abusers’. Soon after Ryan’s appointment the Christian Brothers dropped their court case and also released files that were held in Rome and showed that the congregation knew about 40 cases of improper conduct between brothers and boys in institutions. A remarkable coincidence! These so-called ‘Rome files’ confirmed what many of the survivors had been saying. In the final report of the Commission, known as the Ryan Report (2009), no abusers were named and nobody was to be held to account.
In 2002 a Redress Board was established with the very laudable aim of compensating those who had suffered as children. In November 2001 the Residential Redress Bill was debated in the Dáil. Yet again there was pressure on the State to suppress information. Inserted in the bill, at the very last minute and without the scrutiny of the usual robust committee structure, were several amendments, including a gagging order (Article 28 [6]):
‘A person shall not publish any information concerning an application or an award made under this Act that refers to any other person (including an applicant), relevant person or institution by name or which could reasonably lead to the identification of any other person (including an applicant), a relevant person or an institution referred to in an application made under this Act.’
This made it a crime for survivors, or anyone else, to say how much they received in redress, to name the institution, the abuser, the religious order or to give any details as to why they got the award. The penalty is a fine and/or a period of imprisonment. In March this year RTÉ broke the law by discussing the operations of the Board in Redress: breaking the silence. It was difficult to find out how this particular clause got into the Act. Freedom of Information requests showed that there was lobbying of the minister but we weren’t allowed to know by whom—all documents we received redacted anything that could identify those looking for the ‘enhanced confidentiality provisions’. It is absolutely accepted that every citizen has the right to privacy and the right to a good name but this clause went further and protected convicted abusers—alive and dead.
The question should always be asked: who benefits from secrecy? In this case it is clear that it was members of religious orders accused of abuse. Protecting its reputation has been a primary concern for the Catholic Church in this and many other contexts. The impact of the gagging order on survivors was negative. Many felt that they were coerced into accepting an award when what they really wanted was to tell their story, to name their abuser and to receive an acknowledgement and an apology from those responsible.
The most recent attempt at gagging is in the form of the Retention of Records Bill, which was presented to the Dáil by Minister for Education Joe McHugh in April 2019. If passed, all of the material gathered by Mary Laffoy and Seán Ryan in the Commission and the Redress bodies will be sent to the National Archives, where they will be sealed for at least the next 75 years—until 2094! Under the provisions that set up the Commission and Redress Board the bulk of the records will be disposed of when the work is completed and the bodies dissolved, so there is a clear need for legislation to preserve the personal records, institutional archives, the documents produced by both Church representatives and the State, and the survivor testimony that was given to the Commission and the Board. Joe McHugh acknowledges the importance of these records: ‘The records also contain testimony from those involved in the operation and supervision of the institutions. This is information which is also of great significance in understanding this dark period in our history. These are, therefore, historically important records which could, in time, become primary source material for historians.’ So why seal them for 75 years?
The government’s current stance is that the Retention of Records Bill provides survivors with a level of protection and privacy. Of course, anyone who wishes to remain private should be able to do so and there are many ways to protect a person’s identity and personal information. But there is a massive difference between secrecy and privacy. Secrecy implies that there is something to hide, something to be ashamed of. For so many years survivors were made to feel shame about their past and what happened to them. To lock away the records of this abuse is a further insult.
Catríona Crowe, formerly of the National Archives, has stated that the government would set ‘an extraordinary precedent’ if the bill becomes law and locks away all records of institutional child abuse. When she addressed the Oireachtas Education Committee in November 2019 she said that ‘there would seem to be no good reason not to use the provisions of existing legislation to preserve, withhold and make accessible these very important records … Administrative records of these bodies should be subject only to the provisions of the National Archives Act, and not swept up in this ill-considered attempt to bypass its provisions.’
While there may be no way of making good the mistakes of the gagging clause in the 2002 Residential Redress Act, there is still time to stop the Retention of Records Bill, not only as a mark of respect for survivors but also to assist researchers and historians to understand this very dark chapter in our history.
Sheila Ahern was a researcher on States of fear (1999) and series consultant on Redress: breaking the silence (2020).