Political reaction revealing in dark era of Kerry Babies
The turbulent 1980s led to many decisions in politics and policing that we look back on now with more than a degree of regret, writes Jody Corcoran
It is interesting to recall now that when the Kerry Babies Tribunal reported in October 1985, that report was not debated in Leinster House, despite the public controversy that raged over its conduct and findings.
This was referred to by Liam Skelly, a barrister and businessman, who had been elected to the Dail as a Fine Gael TD in a Dublin West constituency by-election in 1982. During a debate on supplementary estimates for the Office of the Minister for Justice, Skelly said on December 12, 1985: "As far as the Kerry Babies Tribunal is concerned, we did not get value for money. I do not think the mandate this House gave that tribunal was carried out. It is unfortunate that we were not allowed to debate its findings in the House although such debate was called for by Members, leaving a very big question mark over what we are doing here."
Michael Noonan was Minister for Justice at the time.
Fine Gael had chosen Skelly to contest the by-election in 1982 because he reflected the liberal ethos of then Fine Gael leader, Garret FitzGerald.
At this remove, it is relevant to place the Ireland of the time in some political and social context.
Gerry Adams was elected leader of Sinn Fein in 1983, at a time when the Provisional IRA campaign of terror was under way on the island of Ireland, and in the UK, with the 1981 hunger strike deaths still potent.
There were five general elections in that decade: the first in 1981, two in 1982 and the others in 1987 and 1989, with Fianna Fail and Fine Gael/Labour separately in power.
The dominant political figures were Fianna Fail leader Charles Haughey and Garret FitzGerald, who had embarked on what was called a "constitutional crusade".
This crusade led to a bitterly fought and divisive abortion referendum in 1983, which added the Eighth Amendment to the constitution - recognising the equal right to life of the mother and unborn child; and the first divorce referendum in 1986, which was rejected by a substantial margin.
Throughout this period of economic recession the Catholic Church was dominant, controlling, as it did, attitudes towards sexual morality. The period was also marked by the death beside a grotto of 15-year-old schoolgirl Ann Lovett and her baby, a rising number of single mothers and widespread claims of moving statues of the Virgin Mary.
In his examination of the Kerry Babies story, Professor Tom Inglis of UCD's School of Sociology stated: "On the one side was traditional, conservative, Catholic teaching emphasising purity, chastity and self-denial. On the other was modern, liberal, individualism emphasising self-expression, eroticism and sexual experience."
It is indeed extraordinary now to think that the Kerry Babies Tribunal report was never properly discussed in the Dail, though there have been repeated references to it through the years.
For example, in Private Members' Business related to Irish Shipping, arch-conservative Fine Gael TD Alice Glenn (who fiercely opposed abortion and divorce) said on June 26, 1985: "Recently we spent £1m on the so-called Kerry Babies inquiry, which was set up at the behest of many hysterical females and the media, all of it intended only to humiliate the Garda."
Such a comment might now be dismissed, but her reference to the Garda was relevant at the time for a number of reasons and, like the Eighth Amendment, still has a resonance today.
It is particularly instructive to look again at the debate in the Dail, and more illuminatingly in the Seanad, in respect of setting the terms of reference for the Kerry Babies Tribunal.
More illuminating still is to read the Fine Gael-led Government's official response to the Kerry Babies Tribunal report in a written Dail reply, by Michael Noonan, in which he used the word "vindicated" four times to defend the gardai at the centre of the controversy.
On October 25, 1985, Noonan stated, in an apparent defence of the controversial way Joanne Hayes was cross-examined at the tribunal: "Whatever views one might have as to whether certain lines of questioning were at all necessary, it is clear that the tribunal would have faced serious difficulty if it had insisted on imposing restrictions on what counsel could pursue and, on a more general plane, it is I think unfortunate that there should have been public criticism of the tribunal for decisions that were unavoidable in the circumstances."
When the terms of reference were being set, however, the most controversial issue was that Noonan did not specifically allow for the chairman, Mr Justice Kevin Lynch, to make recommendations to him as minister for justice.
There was a suggestion at the time that this was because the tribunal might recommend a third party be present in future during Garda questioning - something the Government had just rejected.
It is also worth noting that the debate took place against a background of other Garda controversies, such as the Amanda McShane case, the Michael Ward case, the Nicky Kelly case and the notorious Shercock case in which a member of the Garda was cleared of a number of charges arising from the death of a man in Shercock garda station in Co Cavan.
Furthermore, the Oireachtas debates on the Kerry Babies Tribunal terms of reference took place against some unease over the passage into law of additions to the Criminal Justice Act and the Offences Against the State Act - specifically to bolster the State's response to the Provisional IRA campaign.
In retrospect, it seems to me that the third of the three agreed terms of reference allowed for the too broad and ultimately controversial, cross-examination of Joanne Hayes and the other Hayes family members.
This term stated that the tribunal could inquire into "any matters connected with or relevant to" the specific terms of the inquiry that the tribunal considered necessary to investigate.
In a partial reference to the Garda's actions against the Provisional IRA - when he announced the terms of reference to the Dail on December 11, 1984 - Noonan also staunchly defended the force, arguably setting a tone for the tribunal report to follow.
He said: "Since the foundation of the State, the Garda Siochana has had a role vital to the maintenance of the institutions of democracy. The force has served this State outstandingly well and will, I am in no doubt at all, continue to do so in the future. The members have done so often at great cost to themselves. Since 1970, 11 members have been murdered. Last year, we have had two such cases and this year another one. Many members place their own safety at risk, day after day, in the defence of the community.
"These are stark facts of life and we need, I think, to remind ourselves of them from time to time and especially now. Whatever the outcome of this inquiry may be - even if the result is unfavourable to one or more members - it should not cause us for one instant to forget what we owe to the force.
"Furthermore, I can say with total confidence that the Commissioner shares fully - as indeed he has conclusively proved by his actions in this and other cases - my own commitment to ensuring that, if and where remedial action is called for, remedial action will be taken.
"That, at the end of the day, is perhaps the most important point of all and a major reason why I have no doubt whatsoever that the force will come through this difficult period without lasting damage."
Interestingly, in the Seanad the following day, Shane Ross, now a Minister, supported Noonan's trenchant defence of the Garda: "I am glad the Minister for Justice said that we should get things back into perspective and compare this with the good that the Garda does in the community.
"We are once again debating the evil that gardai have possibly done but, as the Minister for Justice quite rightly said, they are the only people who have stood between us and anarchy since the foundation of the State."
In the context of current Garda controversies, however, it is also worth noting what Labour TD Mervyn Taylor stated in the Dail debate, in relation to an inconclusive internal Garda inquiry into the Kerry Babies investigation: "The message should go forth from the House, and from the tribunal in due course, that the primary loyalty and responsibility owed by each member of the Garda force is not to his colleagues, his superiors or subordinates but to the public who set up the force through the operations of legislation. That is where the primary responsibility and loyalty of each member of the Garda must lie."
Also in that Dail debate, Mary Harney, then a Fianna Fail TD said: "This case teaches us a lot about what might happen in investigations of this kind but it must draw our minds to the fact that in terms of social policy in Ireland, things have not really changed. We all know the names Ann Lovett and Joanne Hayes, but nobody knows the names of the fathers."
It was in the Seanad the following day, however, that a more robust debate took place.
There, Michael Noonan also repeated his assertion that if the inquiry should establish that one or more gardai had failed to observe proper standards, it was primarily for the Garda authorities to take the necessary action and they were in the best position to judge what action was appropriate.
Obviously, if a question of criminal charges arose, he said, it would be a matter for the DPP to decide whether charges should be brought. Likewise, if disciplinary matters arose, it would be up to the Commissioner to act.
The future president, Mary Robinson, then an Independent senator, made what Noonan, in reply, referred to as a "major contribution", in which she urged the justice minister to allow for the tribunal to make recommendations.
She said it was of the "utmost importance" that there be an understanding of the kinds of pressures people can be subjected to by being brought into a Garda station, and the tribunal must have the power to look very closely at the effect on an ordinary citizen of being brought in and questioned.
"It is not enough, in my submission, to resolve some of the factual issues in the Kerry case that may go some way towards explaining how detailed statements were made by members of a family in relation to the alleged murder of a baby which it appears, for scientific reasons among others, they were not in a position to have carried out or to have had any part in," she said.
Many years later, on February 17, 2006, Labour TD Joe Costello elaborated to the Dail on what Mary Robinson had referred to. He quoted the following passage from an appendix to the report of the Kerry Babies Tribunal:
"Ned, Mike, and I left our house at 3.50am... We drove through Tralee, on through Dingle town for about six miles and we stopped at a place where the road runs beside the sea and Ned, who was driving, got out and opened the boot of the car and took out the bag containing the baby and threw it into the sea.
"It was about 5.30am when Ned threw the bag into the sea. You could see the water from the road where we were parked and when the bag was thrown in, it sank and resurfaced and floated on the water."
This dramatic passage was taken from a statement made to the Garda by Kathleen Hayes, the sister of Joanne Hayes but, said Costello, "it is a description of a journey she never made and a series of events that never took place.
"We still do not know why that statement was made."
He also referred to the attitude of Mr Justice Kevin Lynch to the Garda evidence: "They are not barefaced lies on the part of the gardai... but they are an exaggeration over and above the true position, or a gilding of the lily, or wishful thinking elevated to the status of hard fact."
In the Seanad terms of reference debate, however, it was Labour senator Brendan Ryan who was perhaps most hard-hitting and showed the greatest foresight.
He said: "My sympathy goes out to the people named in this motion who will be subjected to the most rigorous and public cross-examinations because of statements they made.
"By and large, not judging the circumstances under which they made certain confessions, most people will accept that innocent people were being charged with an offence they could not have committed, yet the consequences for all of them will be a harrowing experience of severe cross-examination by some of the most eminent legal people in the country.
"These are vulnerable, ordinary innocent people who simply felt they were suffering an injustice. They will suffer enormously, irrespective of the outcome of this inquiry."
Ryan also suggested the "real reason" for excluding the Kerry Babies Tribunal from making recommendations was a "fear" that it would recommend a right to have a third party present during Garda questioning - something not incorporated in recently-passed Criminal Justice Act legislation.
He also said he did not share Noonan's "benign view" of the way the "Establishment operates to protect itself in society".
Neither did he "share the optimism" that the tribunal would get to the root of not just the Kerry case but the "problem with the Garda that is widely perceived".
When it came to the crunch, he said, the Establishment almost invariably believed itself: "In this case, the wording of this motion is such as to ensure that any damage that is done to the Establishment - in that I include the law enforcement agencies - will be minimal and will not be able to suggest that there are any fundamental inadequacies in the way the Garda do their business."