A CONTROVERSIAL PIECE of legislation related to the records of the Commission of Investigation into Mother and Baby Homes passed through the Oireachtas today.
The Bill was passed in the Dáil last night by 78 votes to 67, and by 22 votes to 16 in the Seanad this evening.
The Bill allows the transfer of a database of 60,000 records compiled by the commission to Tusla, the Child and Family Agency.
The records are set to be sealed for 30 years but this specific aspect is not dealt with in the Bill, rather the 2004 Act under which the commission operated (more detail on that below).
Many survivors and legal experts have expressed anger at the Bill.
Opposition TDs said the legislation is being pushed through without proper scrutiny, and none of their amendments were accepted during an emotional debate yesterday.
Roderic O'Gorman tells Seanad he is "deeply apologetic" for the anguish caused to mother and baby home survivors.
— Órla Ryan (@orlaryan) October 23, 2020
He says the records Bill is a "good law", but in his "haste to fix a legal problem", the communication was poor. #UnsealTheArchive pic.twitter.com/9sWRP6AlCw
Minister for Children Roderic O’Gorman has defended the legislation, but said he regrets poorly communicating what it intends to do.
There has been some confusion over what the Bill does and doesn’t cover so we’re answering some questions people have asked about the legislation.
Why was the Commission set up?
The Commission of Investigation into Mother and Baby Homes was established in 2015 to inquire into the treatment of women and children in 14 mother and baby homes and four county homes between 1922 and 1998.
It was set up following claims that up to 800 babies were interred in an unmarked mass grave at a former Bon Secours home in Tuam, Co Galway.
Excavations carried out between November 2016 and February 2017 found a significant quantity of human remains, aged from 35 foetal weeks to two to three years, interred in a vault on the site.
The commission is due to submit its final report to O’Gorman by 30 October, following numerous delays. Its work has cost about €14 million to date.
The commission is set to dissolve on 28 February 2021.
What is the legislation we’re talking about?
Its full title is the Commission of Investigation (Mother and Baby Homes and certain related Matters) Records, and another Matter, Bill 2020 – but it is generally shortened to the Mother and Baby Homes Records Bill.
The legislation, which can be read in full here, seeks to allow the transfer of a database of 60,000 records compiled by the commission to Tusla.
Earlier this month the government approved the text of the Bill which it said is needed to safeguard the records after the dissolution of the commission.
When questioned on the need for the legislation – and why it is being rushed through with little scrutiny or debate before the end of the month – O’Gorman said that earlier this year the commission informed his department it had created a database tracking who was in the main mother and baby homes, but “did not feel it had a legal basis to transfer that database and would be compelled by law to redact … valuable information”.
The minister said the Bill would preserve this information and allow the database to be transferred to Tusla, “with whom most of the original records are already held”.
O’Gorman said the new legislation will prevent the information “from effectively being destroyed” and will allow access to it under existing laws.
“The draft Bill is focused on protecting a valuable resource which will assist in accessing personal information under existing law and be hugely beneficial in any future information and tracing legislation,” he stated.
Why are the records being sealed for 30 years?
The legislation debated in the Oireachtas this week does not specifically address the records being sealed for 30 years.
The government says it has to seal the records under the Commissions of Investigation Act 2004.
This Act states that a commission’s records will be transferred to the National Archives “on the expiry of 30 years after the date of the commission’s dissolution“.
O’Gorman last week said the entire premise of the 2004 Act “is that investigations are held in private” – however, this has been disputed by academics.
“That confidentiality applies to the evidence and records gathered by the inquiry. It is central to allow testimony be given freely,” O’Gorman stated.
Dr Maeve O’Rourke of the Clann Project, a group that advocates on behalf of survivors, has disputed that, saying the Commissions of Investigation Act 2004 does not require commissions to proceed entirely in private.
As she set out in TheJournal.ie this week, the Act “gives discretion under section 11(1) to every Commission to hold public hearings—something which this Commission refused to do (it even refused Philomena Lee a public hearing)”.
“The 2004 Act also states in Section 12 that a Commission shall disclose to every person who gives evidence to it ‘the substance of any evidence in its possession that, in its opinion, the person should be aware of for the purposes of the evidence that person may give to the commission.’
“The only exception under section 12 to this requirement is that the source of the evidence to be disclosed to a witness may be withheld if given in private unless disclosure of the source is in the interests of the investigation or fair procedures.”
Some people did want their testimonies to the commission be kept confidential – however, others who gave evidence wanted public hearings to be held and for their stories to be public but were not afforded this option.
What about GDPR?
A number of legal experts have said that General Data Protection Regulation (GDPR), which came into law in 2018, supersedes the 2004 Act and would not allow for the records to be sealed.
However, O’Gorman has said this is not the case.
When asked about the issue on RTÉ’s Morning Ireland today, O’Gorman said that when the regulations were introduced in Ireland in 2018, the 2004 Act “was amended to explicitly exclude GDPR from applying to the commission’s archives”.
This assertion has been disputed by legal experts, with O’Rourke stating: “Neither the Commission nor the Government is permitted under the GDPR to place a blanket seal over the entire archive it holds.”
O’Rourke said even if the 2004 Act “did require ‘sealing’ of evidence (and setting aside the fact that EU law is supreme over any conflicting Irish legislation), the Oireachtas can — of course — change the application of the 2004 Act to this particular Commission’s archive, as this Bill already proposes in various respects”.
People can request access to certain documents from the minister or Tusla, citing their rights under GDPR, but these requests may not be granted or may include redacted information.
O’Rourke said that if and when O’Gorman starts issuing blanket refusals of personal data access he will be in breach of EU law.
As reported by the Irish Examiner, the Data Protection Commission agrees that the government has contravened European and Irish law with regard to the accessibility of personal data by choosing to seal the records.
O’Gorman told the Seanad his department has been engaging with the DPC about the issue, and acknowledged there may be legal challenges.
Senator Alice-Mary Higgins said O’Gorman is a data controller in respect of the records and must carry out a Data Protection Impact Assessment and ensure people can access their personal records.
Higgins, like a number of legal experts have done in recent days, pointed out that the Attorney General’s advice is just that, advice, and the government is not bound by it.
And another thing: the Government should admit that it got this Bill and its policy position on the archive very very wrong.
— Dr Maeve O'Rourke (@maeveorourke) October 23, 2020
The Government can still change its policy position and should—
The Minister can and should state that he will apply the GDPR to the Minister’s archive. https://t.co/KzJQH04nV1
Data protection law expert and solicitor Simon McGarr explains the GDPR issue in more detail here, stating:
“The Commissions of Investigation Act 2004 has been superseded by the GDPR and the Data Protection Act of 2018. Its provisions providing for secrecy cannot be applied by any emanation of the state where they conflict with either Article 15 rights of access or Article 18 rights of the data subject to restrict any proposed processing.
“In addition, the proposal to ‘seal’ the archive of documents to be presented to the Minister for 30 years is simply impermissible under EU law. Even where national legislation allows for restrictions on data subjects’ rights, those restrictions must be tightly limited and necessary for an overriding purpose of national importance.”
Speaking in the Seanad today, Labour Senator and barrister Ivana Bacik stated that the 2004 Act “is not set in stone and could have been amended” so the records aren’t sealed for 30 years.
Alice-Mary Higgins makes an important point - these debates have retraumatised many survivors.
— Órla Ryan (@orlaryan) October 23, 2020
"The sense of disempowerment that accompanies this entire legislative process has been extraordinarily unfortunate and has been very traumatising."#UnsealTheArchive pic.twitter.com/K6OnB0uvu6
O’Gorman has acknowledged that some experts have disagreed with the Attorney General’s interpretation of the law.
“There are some very eminent experts in this area, who disagree with the interpretation given by the Attorney General, so I have said that as well as looking at 30-year rule, we need to look at the application of GDPR against personal information that’s contained in the archives,” he told Morning Ireland.
“I’m absolutely aware, particularly for personal information, the 30-year sealing, coming from the original law is really problematic,” O’Gorman said.
“I’m committed to engaging with the Attorney General to see what avenues there are to address the 30-year issue, particularly with regard to personal information.”
What do campaigners want?
The Clann Project, comprising the Justice for Magdalenes Research group and the Adoption Rights Alliance, said in a statement that the sealing of the archive “means no-one will be able to access their personal records [or information] about their disappeared relatives or babies who are buried in unmarked graves”.
“All of the administrative files, which show how the abusive system of forced family separation was run, will also be withheld.
“It will not be possible to question the conclusions of the Commission of Investigation, to do further research, or to hold wrongdoers to account.”
It has also said that Tusla “is not the appropriate recipient for any part of the commission’s archive”.
“It operates legally troubling and discriminatory practices, including defining adopted people’s birth name as third party data and undertaking ‘risk assessments’ of all adopted people who request their records,” the group said.
Senator Lynn Ruane today asked if witnesses will be given a copy of their testimony when contacted by the department about their confidentiality wishes.
O’Gorman said this is not covered in the Bill and will have to be addressed at a later date.
The Clann Project has called for the department to do the following:
When TheJournal.ie asked the department if the minister will consider any of these suggestions, a spokesperson did not address the individual points made by Clann but said: “The Minister will not be receiving originals of records. Host organisations have always had and continue to hold the originals of the documents and they are the organisation which much consider the release of qualifying records to the National Archives.”
In a statement issued last night, O’Gorman noted: “Nothing in this Bill is a new measure to seal records. That is not something I would seek to do, nor is it what this Bill is about. What this Bill does is protect a database, which would otherwise be put beyond reach.”
He said keeping that database intact is “vital” as it “will help many people to shine a light on their past that has been hidden and establish important parts of their own identity”.
“It is irreplaceable, and this legislation is 100% aimed at ensuring it is not put beyond reach. Under current law, the Commission feels it is obliged to delete this data — that is why we have to change the law so the data can be saved.”
What happens next?
The commission’s final report is due to be sent to O’Gorman on 30 October. His department and the Attorney General both have to review it before it is published.
No definitive timeline for publication has been given but it’s expected to be early next year.
O’Gorman said this Bill is “not the end point” and many campaigners “have rightly pointed to the overwhelming need for greater access to information from the commission’s investigations”.
The minister said he agrees with campaigners and is “fully committed to working with survivors and any of those affected by this institutional abuse”.
“I am in touch with the Attorney General on legal ways to improve access to records, and will be requesting the Joint Oireachtas committee on children examine the best legislative reforms to deal with these issues as best we can.
“Over the past few weeks, many people have contacted me and spoken eloquently about the pain this system of institutional abuse caused them and their families. I am committed to do right by them – both in protecting the database … and improving access beyond that.”
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