Last night.

On RTÉ One’s Prime Time.

Dr Maeve O’Rourke (above), lecturer and director of Human Rights Law Clinic at the National University of Ireland in Galway and co-founder of the Clann Project, spoke to Sarah McInerney about the Commission of Investigation report into Mother and Baby Homes and why it should be repudiated.

It followed the Clann Project publishing a transcript of an Oxford University seminar on June 2 last in which one of the authors of the commission’s report, Professor Mary Daly, explained why evidence given by survivors to the commissions’ confidential committee was deliberately and consciously excluded from the main body report and the commission’s ultimate findings.

Professor Daly said to integrate that confidential committee testimony into the body of the main report would have required “hundreds of hours of cross-checking…”.

Sarah McInerney: “Professor Mary Daly made it very clear in her testimony that the reason she felt, or the commission felt, that they couldn’t include survivors’ testimony in the main report, was because of the law. She said that those witnesses, if they wanted to include their testimonies, would have had to go through a very tough legal process and have their statements challenged. Do you accept that is something that would have needed to have been done?”

Dr Maeve O’Rourke: “There’s two things to say here. The first is that the law, the terms of reference which were in the statutory instrument, underpinning the commission, specifically state that the commission was empowered to the extent it considered appropriate to take into consideration what was in the confidential committee report, for the purposes of making general findings.

“So it’s not true that the law prevented the commission from integrating confidential committee testimony into the report in some way.

“The second thing is that, actually, a lot of people would have wanted to and did, in our experience, want to give proper evidence, as Professor Daly might have seen it, to the investigative committee. But, as we wrote repeatedly in public, but also we wrote to the commission in 2016 to point out that the commission unfortunately was not advertising the investigative committee on its website.

“We said that many people in touch with us had given evidence to the confidential committee, had no idea of the difference, and we asked the commission to advertise the investigative committee on its website because at that time, it was only letting people know about the confidential committee.

“And 550 people went to the confidential committee and only 19 managed, directly themselves, to get to the investigative committee in the first instance to give oral evidence.”

McInerney: “All right. And as it happens, the Government has not sought to defend those claims by Professor Daly. They also believe that the witness testimony could have been included in the report but Minister Roderic O’Gorman…has also said that, despite that witness testimony not being included, the Government doesn’t feel at this point that it can reject the report on the basis that, to do so, might undermine the redress scheme because, a spokesman for him said, particularly around the number of deaths and the conditions in the institutions, and the failure of the state to act on reports of these conditions. All of those findings in the report will advise the redress scheme.”

O’Rourke: “Well the minister is actually failing to turn his attention to the other key findings in the report and I’m not sure that people realise that this report finds: there is no evidence of incarceration in the institutions, no evidence of forced adoption, no evidence of medical neglect, no evidence of forced labour in mother and baby homes, and that adopted people’s criticism of the secrecy of information has been vitriolic and unfair.

“And, actually, the recommendations for  redress in the report are highly limited. The commission only recommended that women who were in institutions for more than six months, but only before 1973, should receive any medical care or payments. And the only children born in those institutions who should receive any redress are children who were in the institutions on their own. In other words, the commission did not recommend redress for the separation of mother and child because essentially it found there is nothing to see here, there was no unlawful separation. And that, as we know, is not true. And that cannot stay on the national historical record as the accepted version.”

McInerney: “So, if this report is rejected, as campaigners now are calling for, how does the Government decide who qualifies for redress?”

O’Rourke: “But Roderic, the minister, has already said to survivors several times, I’m not going to be bound by the limitations of the commission report. So I don’t think the Government can have it both ways.

“They’ve actually recognised that their redress scheme is going to have to recognise the harm of separation of mother and child, I think; the harms caused to children who were boarded out; the harms caused to people who were in poor adoptive placements that weren’t overseen properly. So on the one hand, he’s saying ‘don’t worry, I won’t be bound’ and on the other, he’s claiming that he has to be, even though we know that that’s not the case. We know that the redress board…”

McInerney: “Could it get too big though, Maeve. If there are no limitations on the redress and all the people who you say have gone through this very difficult  time in their lives, at the hands of the state, and religious institutions, but still, could it get too wide and and too unwieldly?”

O’Rourke: “But that is a political decision. It’s not a legal one. It’s never been. These redress schemes, unfortunately in some ways but have always been on the ex-gratia principle, meaning that ‘we recognise the moral need, we’re not recognising a legal need’. There will be some restrictions to the scheme but the  Government has already said we won’t base the scheme, really, on the commission report.

“So what I’m saying, what we’re all saying, is that this commission report does a massive disservice to the survivors in terms of historical truth and it’s not good enough say, ‘oh survivors are more interested in money than they are in the truth’. You can’t make them choose one or the other. The truth is the most basic form of redress, actually.”

McInerney: “And does it help at all that the minister has said, ‘we believe you’. He’s writing to survivors to say ‘we believe you’?”

O’Rourke: “I actually think it’s somewhat patronising of the survivors because, in actual fact, officially, they are not believed. And we have to remember that, long after Minister O’Gorman is gone, civil servants may well, as they do with the McAleese report, be relying on this report to say in public, as they still do, about the magdalene laundries, ‘the State has found there was no systematic abuse here’.

“We are seeing at the UN Committee Against Torture right now a case by Elizabeth Coppin who was detained in three magdalene laundries. And the State is saying ‘she is not telling the truth because the McAleese committee found no credible evidence of systematic ill-treatment in magdalene laundries’. So these reports have a lifetime far beyond any Government.”

Meanwhile, during the same programme, Susan Lohan, co-founder of Adoption Rights Alliance, said:

“I think when you have one of the three main authors of the report outline the shortcomings of their actual approach, that they took this decision to discount eye-witness testimony, that, certainly for the Adoption Rights Alliance, is the death knell in this report.”

On the commission’s report becoming the official, final word on Mother and Baby Homes in Ireland, Ms Lohan said:

“I think that would be ultimate insult to survivors. The report needs to be repudiated and set aside.”

The programme also drew attention to an article by Catriona Crowe in the Dublin Review about survivor Caroline O’Connor’s testimony being misrepresented in the commission’s report.

In respect of this article, James Gallen, Associate Professor in Law at Dublin City University, said:

“If we look at the article in the Dublin Review, we see a process that is disrespectful to survivors, that doesn’t follow international best practice, and a process that really challenges the idea that we are listening and believing survivors.”

In respect of the claim by the Minister for Children Roderic O’Gorman that repudiating the report would delay survivors receiving redress, Mr Gallen said:

“There is no basis in law or in the state’s prior practice to believe that. The Commission  of Investigation Act says the commission’s findings cannot be used in criminal or civil proceedings. And, in addition to that, all of the Government’s prior redress schemes have been ex-gratia which means without admission of legal liability or as a gift. You might remember the Ryan Commission – that ran concurrently with the Residential lnstitutions Redress Board scheme.”

Watch back in full here