Wednesday, 4 November 2020
Ceisteanna - Questions
Mother and Baby Homes Inquiries
6. To ask the Taoiseach if he has met with the Attorney General to discuss the position held by the Data Protection Commission as expressed in its observation on the data protection impact assessment commissioned on the legislation on mother and baby homes. [33529/20]
Following discussion of the Commission of Investigation into Mother and Baby Homes on 28 October last, the Government issued a statement on the matters of recent public concern and the next steps proposed by the Government. The statement sets out that the Government acknowledges and regrets the genuine hurt felt by many people across Irish society. It is determined to take the necessary actions to ensure those concerns are dealt with in a manner that is timely, appropriate and focused on the needs of victims and survivors. Also set out was a commitment that the Department of Children, Equality, Disability, Integration and Youth, along with Tusla, will continue to engage closely with the Office of the Data Protection Commissioner to ensure that the rights of all citizens to access personal information about themselves, under data protection legislation and the general data protection regulation, GDPR, are fully respected and implemented and that additional resources will be provided where necessary.
Following further detailed engagement on the issue of access to the records of the commission, the Attorney General wrote to the Minister, Deputy O'Gorman, on 28 October and advised that individuals will have a right to access personal data held by the Minister. The Department of Children, Equality, Disability, Integration and Youth is liaising with the Attorney General's office and the Data Protection Commission on supporting this right of access. As set out in its statement, the Government is committed to publishing the final report of the Commission of Investigation into Mother and Baby Homes as soon as possible and to developing a comprehensive State response to its findings and recommendations.
We now know that the Attorney General did not advise the Minister in respect of the GDPR legislation when we were told that he had. Was the Taoiseach aware of this? Will he now acknowledge that the information peddled by the Minister, the Taoiseach and the Government was totally false? This concerns me because we were led to believe that there was engagement on this matter with the Attorney General. Time and again the Taoiseach and his Ministers come in here and tell us that the advice of the Attorney General is whatever it may be on the day, but can we really believe them? We now know that the Minister was fully entitled under the 2018 GDPR legislation and the Commissions of Investigation Act 2004 to take custody of the whole of the archive and all the records gathered and created by the commission, including all personal data in those archives. Under the GDPR, archiving purposes in the public interest are lawful grounds for processing personal data. Why was this not considered before the legislation was rushed through?
I welcome that the Department, under the new advice from the Attorney General, has changed its position and that the Government is now telling survivors that the Act does not preclude consideration of data access by the Department when it receives the archives from the commission. We should be working to ensure maximum transparency and access to files. I welcome what has happened in recent days, but we need to make sure the Government is going forward on a solid basis of acknowledgement and maybe even a bit of humility for not having listened to the survivors, their families and their representatives. It is important that we do that and that we outline the timeline around the Attorney General and where his advice comes from.
Will the Taoiseach confirm that GDPR applies to the archive of the commission of investigation both now and once the Minister receives it? Will he also confirm that all necessary resources and independent expertise will be put in place to correct the practice of all controllers of historical abuse records, including religious and other non-State bodies, from holding on to these records? Does the State now have the authority to instruct them to release all the records? When will the Minister reconvene the independently appointed collaborative forum for former residents of mother and baby homes to advise the Government on how to respond to issues of institutional abuse? When will the independent committees of data protection law experts be set up? We have an opportunity to do this right. We need to listen and to act in a timely way.
After the debate that took place on mother and baby homes in the Dáil, we, like many other Deputies, were overwhelmed by the response from people and the anger, anxiety and concern expressed, particularly by those who had been in those institutions and suffered abuse in them. I held an online public meeting which was attended by hundreds of people, many of whom had suffered horrific abuse and who were very angry. Their anger can only have been magnified by the information that has emerged since then that the Minister misled the House about the advice from the Attorney General. There was no advice. The suggestion was made that GDPR did not apply under the condition that it might jeopardise the work of this or future commissions, but that was not a basis under GDPR. Why did the Minister claim he got this advice from the Attorney General? Why did he claim something that simply was not true, when GDPR did not do as he suggested it did? He wrongly suggested that it applied in a certain way.
More generally, what was expressed by the survivors and those who had a stake in this matter was how angry they were that they were not consulted, were not part of the process and were not at the centre of the Government's considerations on how to deal with this matter.
Even with the matter of the proposed archive, what is said by the survivors is that this is the place that the narrative will be set about their lives and histories. They want to determine that narrative, not somebody else, and not so-called experts. They want to determine the narrative about their lives and histories. They want to have a real stake and involvement in how that archive is operated. Even now, after the admission following the Data Protection Commissioner's intervention in the debate, the Taoiseach or the Minister said that the right to people's information and history is not absolute. That is worrying. The Government misled the House about GDPR and then said that a person's right to identity and history is not absolute. All of that adds to the suspicion of a group of people who have been robbed of histories and identities and been abused. There needs to be an admission that what was said was wrong and the needs, wishes and direct involvement of the survivors of the process, and the people whose identity and history are at stake, need to be at the centre of how we deal with this matter.
In the course of the debate on the legislation, the Minister was advised that his position was wrong. He was challenged on that point and advised that European law and instruments had primacy over the 2004 Act that he was citing. That went in one ear and out the other. It alarms me that the House was misled and that there were repeated public policy statements about sealing an archive for 30 years, which were clearly unlawful, and that it was echoed repeatedly as the position of the Minister, the Government and therefore the State. This is concerning because it is the latest evidence in a long litany of evidence of the capacity of the State, despite everything that happened and that we know, to be in denial and to visit further suffering and cruelty on citizens whom it has failed badly. The belated recognition that GDPR rights are real and will be honoured and vindicated by the State is good but I share the concern about the limitation of those rights. Will survivors have a right to all of their personal information? When I say all of their personal information, I include administrative files that tell the story of the institutions in which those individuals found themselves. In addition to the mother and baby homes files, will GDPR rights be recognised in respect of the McAleese and Ryan files? Will the State finally open up and allow victims and survivors to have complete knowledge and access to their own files?
In the past decade or so, the State has opened up in an unprecedented way on many issues. I initiated the inquiry into the industrial schools as Minister for Education. Many people did not expect that would happen. I was the first to do it despite many survivors having gone to successive Governments before that without any satisfaction. Likewise, we introduced and started inquiries into the church in relation to sexual abuse. I initiated the inquiry into Ferns, for example. The then Minister, Senator McDowell, initiated an inquiry about Dublin and the then Minister of State, Barry Andrews, initiated the Cloyne inquiry, without fear or favour. A previous Government initiated this inquiry into the mother and baby homes, which was designed to reveal and open up the story.
It is disingenuous and wrong of the Opposition and Deputy McDonald to suggest that someone was trying to undermine people's rights or to seal off archives. That is the opposite of the intention of setting up a commission of inquiry in the first instance. The same applies to the Magdalen laundries, which the then Taoiseach, Enda Kenny, initiated an inquiry into. It was to open it up. GDPR applies to all records since it is a European law. People can apply for access to their data in all records under GDPR. That is adjudicated on, as Deputy Barry knows. The 2004 Act relates to certain people giving evidence so that we could find out what was going on in those institutions, when people wanted to avail of confidentiality clauses so that they could be protected. There is a good article by Patsy McGarry in The Irish Timeswhich lays that out. He made the point that the provisions of that Act enable us to find out much more and to have these inquiries in a more expeditious and effective way.
It is important that the Deputies opposite acknowledge their failings too. They deliberately misrepresented the 2004 Act. I could imagine the debate that we would have in this House this week if it was discovered that, having been told by the commission of inquiry that if he did not legislate, the records would be destroyed, rendered useless and redundant, the Minister did not act to legislate, and the uproar and furore that there would be in the House. Those were the bona fide reasons the Minister brought in that legislation. The Deputies need to show humility too because some of the assertions made in that debate were wrong and the Minister's bona fides were wrongly undermined. He has no interest in closing off any archive, yet he was presented as such. That was wrong and did not do public debate any good. It did not help to ease the anxieties and genuine concerns of survivors, which should be all of our primary concerns.
The commission of investigation has compiled a database of all the mothers and children who were resident in the main mother and baby homes. They said to the Minister that it is clear that this database would be of considerable assistance to those involved in providing information and tracing services under existing legislation. They said the database would effectively have to be destroyed. As the information compiled in the database is all sensitive personal information, the commission would be obliged under existing legislation, prior to the Minister introducing the Bill, to redact the names and other identifying information about the residents of these homes before submitting it to the Minister. That is not what we wanted. The commission stated that this would have the effect of rendering the database useless, and of course that is not what we wanted. That is why the legislation was introduced. I accept that it was in a hurry. It was to make sure that by the time the commission's report was sent to the Minister, we would have protected the records for the survivors so that they could access them under GDPR, yet that was horribly misrepresented. The Minister accepted that he should have consulted with the groups and he accepted some fault regarding communication, but in my humble opinion, it still should not have been misrepresented and distorted to the degree that it was that weekend. I am putting that on the record of the House in a fair manner and would like some acknowledgement of that.
I want to finally say that I want to work with Members of the House on this. I am committed to having a centre which will tell the story and give people access. The Government is on the side of giving as much access as we possibly can and applying GDPR to the optimal extent to vindicate the rights of access to information of survivors of these institutions. I accept people to accept our bona fides in that regard. I assure Members that we have no other agenda.