The row over the treatment of sensitive information currently in the possession of the Mother and Baby Homes Commission of Investigation has raised multiple disputes centred on how to deal with conflicting rights.
The commission, which is due to hand over its report later this week, was set up under legislation enacted in 2004 to deal with the tensions that arise when a legitimate public inquiry threatens an individual’s right to his or her good name.
In the Re Haughey case in 1971, the Supreme Court ruled that "in proceedings before any tribunal where a party to proceedings is on risk of having his or her good name . . . jeopardised, any procedures which restrict or prevent the party concerned from vindicating those rights must be outlawed".
The ruling (named after Pádraig “Jock” Haughey, brother of Charles Haughey) explains why the tribunals of inquiry held in Dublin Castle and elsewhere tend to be so expensive and slow-moving.
If someone is going to say something in public that threatens someone else’s good name, then that person is entitled to respond if they so wish. They are also entitled to legal representation paid for by the public.
The 2004 Commissions of Investigation Act provided for inquiries that had the power to secure documents (for the purposes of its inquiry) and compel people to give evidence, just like a tribunal.
But they could also hear evidence in private, and so circumvent what flowed from the re Haughey principle.
If a witness said something in private that reflected badly on someone else, but the commission did not think it needed to pursue it, that could be the end of the matter.
In the case of the Mother and Baby Homes Commission, it was decided to adopt a particular structure because of the sensitivities involved.
It set up a confidential committee to hear evidence from those women who volunteered to tell their stories.
Confidential
These women were told their identities were going to remain confidential, but their stories would inform the commission’s final report. (Workers in the homes could also volunteer to give evidence, under the same conditions.)
The witnesses were encouraged to speak freely. Claims they may have made about others went unchallenged.
The anonymised nature of the general report that was subsequently passed to the commission by the confidential committee meant the re Haughey ruling was not triggered.
However, recently a difficulty emerged. The commission, under a law that was being rushed through the Oireachtas, would have had no right to redact the documentation it was to hand over to the State when it is finished its work.
An amendment introduced at the suggestion of Senator Michael McDowell last week addressed this problem.
Now the witnesses are to be given a choice: their names can be redacted from the records of their testimony, or not, prior to the records being handed over to the State.
It is worth considering the type of sensitivities that might be involved in the commission’s work. Take, for instance, a woman who had as a girl been the victim of incestuous rape, had given birth in a mother and baby home, and had given, or been pressurised into giving, the child up for adoption.
Suppose this woman had never told her story to anyone, but had decided to give her testimony to the confidential committee, precisely because of the assurance that no one outside the committee room would ever know.
And suppose she recently learned that her name was going to be attached to her testimony when the commission records were passed to the State.
Now, because of the McDowell amendment, she has a choice as to whether she wants this to happen or not.
The focus of the law that was hurried through the Oireachtas last week was to allow the commission give to Tusla, the family and child agency, a digitalised record it has created of factual data gleaned from historical, paper records it had statutory powers to access for the purposes of its work.
The fact that the data can now be digitally searched is hugely useful for an agency responsible for helping people who want to trace their birth mothers, or indeed mothers who may want to find a child they gave birth to in a mother and baby home.
Tensions
As with public enquiries and a person’s right to their good name, the tracing of a birth parent can raise tensions between conflicting interests.
It is hard to think of a more visceral issue than a person’s right to know who their parents are, or were, and why they were given up for adoption.
But some women who became pregnant in difficult circumstances may have no wish to relinquish a legal assurance they were given decades ago that their identity would always remain secret.
An attempt by former minister for children Katherine Zappone to bring in a new law that would tip the legislative balance between these rights a bit more in favour of the child failed to pass through the Oireachtas during the period of the last (minority) government.
Her successor, Roderic O’Gorman, has committed to making a renewed effort to pass such a Bill.
The records created by the commission will now pass to the State (the digitised record will also go to Tusla) and in time become subject to national archive legislation.
Once again, the law governing when records can be released, and to whom, is not absolute and involves weighing different objectives.
The 2004 law that provided for commissions of investigation stipulated that unpublished records of a commission were to be given to the department that set up the commission, and moved to the national archives after 30 years.
After that time they can become publicly available, save where the law says they should not. The reasons for not releasing a document are specified in the national archives law, and can include because it might cause distress, or lead to an action for defamation.
The 2004 law, and the law on releasing material under the national archives regime, are both subject to more recent law that grants people access to their personal information, but again subject to certain conditions.
Mr O’Gorman is to ask the joint Oireachtas Committee on Children, Disability, Equality and Integration to examine changing the law to allow greater access to the data that lay at the heart of last week’s controversy.
The committee members are going to have to weigh up a matrix of difficult matters before arriving at their recommendations.
