Commission of Investigations Act inhibits truth-telling about past and present

Survivors and family members must be afforded a statutory right to information

This week's conference at Boston College on 'Towards Transitional Justice: Recognition, Truth-telling, and Institutional Abuse In Ireland' will grapple with highly topical and important questions.

Taking place on Thursday and Friday next (Nov 1st/2nd), it asks such pertinent questions as whether Ireland is willing to learn from other countries' experience of transitional justice to build a better future. Is the State prepared to promote truth-telling about past institutional abuses in order to radically alter the future treatment of women and children?

Are the people ready to hold the State accountable by insisting on a society that respects human rights for everyone?

The conference brings together scholars, institutional abuse survivors, people affected by adoption and advocates to consider the Irish State's response to abuse in the Magdalene Laundries, County Homes, Mother and Baby Homes and child residential institutions, and in the nation's closed, secret, and forced adoption system.


The agenda complements last summer’s ‘Dublin Honours Magdalenes’ gathering and echoes the recently published CLANN: Ireland’s Unmarried Mothers and their Children, Gathering the Data report.

The three projects–each a Justice for Magdalenes Research (JFMR) collaboration–approach the question of reparation for so-called 'historical' abuse using the international standard of transitional justice.

At its core, transitional justice is an approach deployed around the world in moments of dramatic political change (eg South Africa). Lately, it has been applied in settled democracies, such as Australia and Canada, where it forms the basis for providing justice to survivors of child abuse in residential institutions.

In all cases, transitional justice is built around the four elements of truth-telling, accountability, reparation, and guarantees of non-recurrence. In this regard, the Boston conference asks what Ireland can learn from international best practice.

Some might argue that Ireland has been working towards transitional justice since May 1999 when Taoiseach Bertie Ahern apologised to abuse survivors of industrial schools, reformatories and orphanages.

The Commission to Inquire into Child Abuse, the Residential Institutions Redress Board, the McAleese (Magdalene) Committee, Taoiseach Enda Kenny's apology, the Magdalen Laundries Restorative Justice Scheme, and Judge Yvonne Murphy's ongoing Mother and Baby Homes Commission, each followed in turn.

And yet, these compartmentalised responses all failed to promote truth-telling or apportion accountability. Transitional justice demands more.

Ahern's apology was prompted by Mary Raftery's documentary States of Fear, the third segment of which connected abuse in industrial schools prior to the Kennedy Report in 1970 with the ongoing cover-up of abuse at the Department of Education in the mid-1990s.

Lessons went unlearned, and the disappearance of the Kennedy Committee's archive has further inhibited understanding of these events. According to Rafferty and her collaborator Eoin O'Sullivan in the book Suffer the Little Children the same fate befell the earlier Cussen Committee archive (1936)—"every single shred of material" from both investigations disappeared from the Department's records.

The prohibition of public access to the archives of the Ryan, McAleese, and Murphy investigations threatens a similar fate.

The Commission of Investigations Act, 2004, which underpins the Mother and Baby Homes Commission, ensured that the State would never again face public exposure like that accompanying States of Fear. The Act imposes secrecy: investigators conduct their work in private and witnesses do not have access to a transcript of their interview, or to evidence related to their abuse.

Worse: the archives gathered by Commissions of Investigations are immune to Freedom of Information requests, and their evidence is inadmissible in both criminal and civil proceedings. This Act inhibits truth-telling about State practice in the past and in the present.

Because the 2004 legislation entitles Commissions of Investigation to embargo their archives it thwarts additional inspection, analysis, and transparency. Earlier legislation underpinning the Ryan Commission sealed that investigation’s records too.

Meanwhile, the Department of An Taoiseach refuses to release any content from the McAleese archive, insisting that the records reside “for safe keeping” and “not…for the purposes of the FOI Act.”

Survivors, family members and the public are denied access to this information. Truth-telling, transparency, and access to information are the indispensable building blocks of a different future. Survivors and family members must be afforded a statutory right to information and unfettered access to a newly created national repository of institutional records.

Understanding the past is impossible without truth-telling, and it is only with that understanding that we can guarantee that this never happens again. Ireland must learn the lessons of its past if the State is to guard against a repetition of its worst impulses.

Boston conference website:

James M Smith is associate professor in the English department at Boston College. He is author of Ireland’s Magdalen Laundries and the Nation’s Architecture of Containment, and a member of JFM Research.