Wednesday, 4 November 2020
Saincheisteanna Tráthúla - Topical Issue Debate
Mother and Baby Homes Inquiries
Less than two weeks ago, we sat here in the middle of an incredibly difficult week for survivors of mother and baby homes. Based on the advice of survivors and human rights lawyers, I and other Deputies opposed aspects of the Bill and proposed changes to help those affected access their personal information. I welcome the change in approach taken but it is unfortunate that this did not happen at the outset. The delay caused immeasurable unnecessary distress for so many.
Three main things, among others, were being sought - first, that the Minister retained a copy of the mother and baby homes commission archive, to which he agreed; second, that an explicit guarantee that GDPR requests would be permitted, and the Minister has in essence confirmed this since the Bill was passed; and, third, the publication of an extensive index to the archive as this finding aid is necessary for people to access their personal information.
The Minister has yet to confirm the latter part, however. The Minister still has questions to answer on this. I had requested time to discuss this in the Dáil this week but, unfortunately, instead we had to spend hours talking about the Tánaiste’s misunderstanding of what the word “confidential” means. The day after the Dáil passed this Bill, we learned that the Government went against the advice of the Data Protection Commission’s assessment. Yesterday, we learned that the Minister was depending on legal advice from Department officials and not the Attorney General until the week of the Bill. These are serious questions that remain unanswered. I am asking for time to be secured in next week’s schedule to address these matters. It is the least people deserve and the Attorney General needs to meet with the collaborative forum to advise it as to how this happened.
Nonetheless, in response to incredible public pressure and the #RepealTheSeal campaign, there has finally been acknowledgement of the right of survivors to access their information under GDPR, which I very welcome. I also welcome the Taoiseach’s confirmation to me earlier today that all survivors of institutional abuse will be able to access their personal data, not just relating to the mother and baby homes commission but also the Ryan report and the McAleese archives.
However, I think I am justified in treating these announcements with a degree of caution. The Government’s record on dealing with this over the past few weeks and, indeed, decades has been incredibly damaging. People will understandably find it hard to trust that these promises will be kept. Even with the Minister’s recent announcements, people are already worried about what information will be redacted from documents and other bureaucratic barriers.
It is absolutely essential that the Minister ensures the proactive and full compliance with GDPR for survivors and all relevant persons. This process has to be underpinned by person-centred legislation and a nuanced understanding of the legitimate rights of so-called “third parties”. The Minister must define this in terms of duties of proactive disclosure and protection of identity rights.
Last week, the Minister promised extra resources to ensure GDPR is implemented, for which we are all grateful. It is crucial he engages experienced data protection law experts, preferably, including international expertise, to assist his Department and the Government in giving people their information.
The Department needs to be prepared to provide individuals with access to its copy of the commission's archive, assist Tusla in remediating its practice, and instruct all other holders of historical abuse information. It is urgent that the Minister brings in independent experts because trust in the Department's legal knowledge in this field is understandably very low. These experts would be able to work with the Minister and the Data Protection Commission to create the necessary systems.
The Minister has promised extra resources to ensure the general data protection regulation, GDPR, is implemented. Will he outline what steps he has taken or will take to recruit independent expert advisers on data protection law to deal with personal data access requests?
I thank the Deputy for her query. I acknowledge the importance of the issue of access to the commission's archive, which is due to be deposited with my Department at the end of February 2021. I am committed to implementing fully the right of access under the GDPR for those who wish to access their personal information from that date. I can confirm that my Department will provide appropriate guidance for individuals in good time to assist persons wishing to access personal information from this archive when it transfers to my Department. I have committed to continued engagement with the Data Protection Commission to ensure that the rights of all citizens to access personal information about themselves under data protection legislation and the GDPR are fully respected and implemented. The recent clarity provided by the Attorney General is very helpful in this regard.
The Commission of Investigation (Mother and Baby Homes and certain related Matters) Records, and another Matter Bill 2020 was brought forward by the Government to provide urgent and critical legal clarity on the protection and future use of a database compiled by the mother and baby homes commission during the course of its five-year investigation. The Bill was brought forward to preserve invaluable information, not to put it beyond reach. Of critical importance in this debate is the development of future legislation on rights of access to birth information. Future information and tracing legislation yet to be developed will provide a statutory basis for access to these records and will reduce the necessity to apply for the information in the form of subject access requests. I have committed to introducing legislation to the Oireachtas on this point in 2021. I have discussed the proposals for legislation on this with the Oireachtas Committee on Children, Disability, Equality and Integration yesterday.
It is important to state that the records of the commission will not transfer to my Department until the end of February 2021. This is to allow the commission time to consult all those who gave their stories to the confidential committee to ensure their wishes in respect of the inclusion of their names in the record are respected. That was another amendment which I introduced in the context of this legislation. I understand that the commission has compiled an extensive archive for which it will provide an index, which will be most helpful in providing access to the material. Copies of records that were provided to the commission will be returned to the Department, along with many other records from a multitude of sources, when the commission deposits its records with me in February 2021.
The Department digitised and captured a significant number of these records in the course of making its discovery to the commission. Not all contain personal information, but there is an immediate and resource-intensive task ahead in cataloguing and indexing all relevant records to assist in the effective management of subject access requests and related records management responsibilities. This is a significant issue which requires dedicated resources and expertise to develop a workable and GDPR-compliant corporate solution. As I have indicated, it is my intention to prioritise additional resources to this issue and it is anticipated that significant additional resources will be needed to manage current demands and those that will be made once the full archive has been deposited with the Department.
I thank the Minister. I am sure he appreciates that there is considerable distrust among survivors and their representatives on this issue. Years of secrecy and denial, compounded by an adversarial system, have rightly left people sceptical about any Government announcement. That is understandable. I have to believe that the Minister was doing what he thought was right. However, it also seems that he was let down by his Department, or as the Irish Examiner put it, "left holding the bag". While the Minister is the public face of this affair, behind all of this is a Department that is unable to deal properly with these matters. The challenge is in how we respond to the situation now.
The Government needs to engage with survivors and earn their trust. It must recognise the deficiencies in the Department, even if the Minister cannot acknowledge them publicly. The Minister must immediately bring in experienced data protection law experts, including international expertise, to report to him as the data controller. This is an opportunity to start a new chapter in how the State treats survivors of mother and baby homes and of other forms of institutional abuse in Ireland. The mother and baby homes commission report will be published shortly. That will be a difficult time for everyone affected and a time for self-reflection as a society. It is so important that we get it right. I would like the Minister to respond in writing on the potential for the Attorney General to meet with the collaborative forum to discuss goings-on in recent weeks. The experts the Minister appoints must be experts in the GDPR specifically to help the Minister as the data controller to issue personal data access requests from the mother and baby homes commission and from other commissions concerned with institutional abuse.
The Deputy is absolutely right to say that survivors are essential to all of this. That is the key concern. As I acknowledged in my earlier contributions, I did not do enough to reach out to survivors prior to the introduction of this legislation. I am in the process of rectifying this. I have engaged with survivors this week, including today, and I will continue to do so.
There will be a range of new responsibilities on my Department in light of the clarification the Attorney General has provided. I welcome these responsibilities but we must provide resources for them, which we are in the process of doing. We must also understand how we as a Department can fulfil those responsibilities in a way that is fully compliant with the GDPR. My first port of call in that regard will be the Data Protection Commission, which is the official advisory body on this and had flagged issues which helped to advance this matter dramatically. I am very happy to engage with international experts as well. Several names were suggested to me by the Adoption Rights Alliance when the Taoiseach and I met with that body on Friday of last week. I am very happy to engage, but the Data Protection Commission is this State's statutory body for overseeing the enforcement of data rights in general, including under the GDPR. That office will be my first port of call, but I am happy to engage further.
It is important to state that the GDPR will not address all of the issues around access to information. That is why it is important that we bring in information and tracing legislation as quickly as possible. It is also important to understand that my Department will be addressing issues to do with the commission's archive. The Ryan and McAleese reports are under the remit of other Departments. That is why the wider issue of access to information and the archiving issue, to which the Government made a very significant commitment last week, will be fundamental in addressing the wider landscape of information and records on institutional abuse in Ireland in the 20th century. My Department looks forward to co-operating with other Departments on that matter.