The national conscience may have to be commandeered and brought to the darkest corners in pursuit of the truth of what happened in The Mother and Baby homes. The Commission of Investigation is probably not the vehicle to give effect to the transitional justice warranted here. Their final report was castigated by survivors and representative groups, the former Commission Members in return delivered a strong rebuke to such criticism. The Commission worked over a 6 year period producing a final 3000 page report which has been seriously undermined, only time will tell if it’s not irreparably damaged.
The Commission’s final report at times portrayed our worst national traits as having been a cold and insular society during the first half of the 20th century, wherein women and children suffered invidious discrimination, inhuman and degrading treatment.
The extent of the systemic vaccine trials conducted in these institutions was a particularly disturbing aspect that shouldn’t be swept under the carpet or archived. These trials were albeit done to eradicate or prevent the spread of various diseases including diphtheria, measles, polio and tetanus.
The Commission identified seven vaccination trials between 1934-1973 which took place in baby homes within the scope of their investigation. Ireland was plagued by high infant mortality rates in the early 20th century attributable in part to the spread of infectious diseases. The Commission’s report determined that researchers had been operating in contravention of The Therapeutic Substances Act 1932, the principal legislation governing clinical research at that time.
The Executive Summary of the Final Report states “It is clear that there was not compliance with the relevant regulatory and ethical standards of the time as consent was not obtained from either the mothers of the children or their guardians and the necessary licences were not in place.”
These trials involved Wellcome Foundation or Glaxo Labatories who were separate corporate entities at that time and ultimately merged to form part of the successor company, GlaxoSmithKline (GSK). GSK provided the commission with records about vaccine trials conducted in children’s residential institutions between 1930-1973.
The executive summary of the final report adopted a soft focus approach concluding that “There is no evidence of injury to the children involved as a result of the vaccines.” This finding should certainly have had a caveat that there were limited records available. GSK even acknowledged that “….records from so long ago are inevitably incomplete. Unfortunately, there are also no living witnesses remaining who were involved ……. As a result, it is very difficult to fully understand or comment on events which occurred so many decades ago.” There are a number High Court cases currently pending seeking to quash or correct various aspects of the final report including the above conclusion.
On the political front, Minister for Children, Roderic O’Gorman’s language is phrased in terms of a “moral and ethical obligation” that the pharma giant GSK has regarding theses vaccine trials. Legal responsibility is more problematic with the passage of time, in terms of the state seeking a contribution or indemnity from GSK.
GSK has adopted a defensive approach to date, stating in correspondence to the Minister that “While the findings of the Commission’s report are extremely upsetting, they do not question Wellcome or Glaxo’s responsibilities and duties in developing, manufacturing and supplying vaccines …..we do not propose to pay reparations in response to the issues raised in the report…..”
The State and GSK have a complex and often interdependent relationship. High Court proceedings for example were brought against GSK and the HSE by a plaintiff who had developed debilitating conditions after receiving the GSK pandemrix swine flu vaccine. This lead case was ultimately settled without any admission of liability in 2019.
Contributions from the Dáil floor have been scathing of GSK’s stance to date. Is the government however prepared to escalate matters? Will greater emphasis for example be placed on corporate responsibility in terms of future healthcare procurement?
Irrespective of the above outcomes, survivors of mother and child homes will still face daunting barriers as encountered by symphysiotomy and thalidomide survivors. Effective access to justice is a non-runner if hamstrung by almost insurmountable legal obstacles. These include the statute of limitations, a heavy burden of proof, lack of evidence available and an inadequate legal aid scheme.
International Human Rights Law has generally recognised that victims have a right to an effective remedy for violations of fundamental rights before a national authority. This principle has been enshrined in The Universal Declaration of Human Rights and The European Convention on Human Rights.
Historical abuse survivors could invoke the UN General Assembly Resolution 60/147 – Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law. It provides in particular that the statutes of limitations shall not apply to gross violations of international human rights law. It further states that domestic statutes of limitations for other types of violations including those time limitations applicable to civil claims should not be unduly restrictive. This resolution is however generally considered to be non-binding and commonly referred to as soft law. Ireland interestingly voted in favour of the resolution, which was adopted in December 2005.
A test case may be warranted here at least first before the domestic courts. The Oireachtas could alternatively throw a lifeline in amending The Statute of Limitations Act which was done in 2000 for victims of sexual abuse. It would be abhorrent now for the State to mount technical defences which invariably would compound and re-traumatise Mother and Baby Home Survivors in court.
Anthony Fay is a solicitor and Former Winner Irish Law Awards-Sole Practitioner of the Year