Thursday, 18 February 2021
Saincheisteanna Tráthúla - Topical Issue Debate
Mother and Baby Homes Inquiries
I thank the Minister for coming to the House to facilitate our discussion on the commission for mother and baby homes, in particular the legal lifetime of the commission which is due to conclude on 28 February. The report from the commission reveals a very dark and disturbing chapter in our history, a history which none of us should ever forget. It is a piece of our history that should be recorded and archived to ensure that the 550 testimonies which make up the vast majority of survivor evidence is retained and protected.
I appreciate and am aware that the Minister has written to the commission in respect of the audio recordings and tapes allegedly destroyed on the grounds that survivors were promised they would remain anonymous. He and I know that was not the understanding of the survivors. The commission stated that it made clear to survivors that records would be destroyed, but the Minister and I know that in the leaflet presented to them there was no reference to the destruction of tapes or to the records being destroyed. To be fair, how could the Minister pre-empt the destruction of records?
Section 43 of the Commissions of Investigations Act 2004 clearly states that every piece of evidence gathered by a commission of investigation shall be transferred to the relevant Minister. How could the Minister expect or even imagine the deletion of records might happen? Nobody could anticipate that the commission of investigation would breach that clear commitment and destroy evidence without the permission of those who gave it.
The commission never stated it would keep a transcript of what survivors said and that their evidence was to be destroyed without a full transcript. I do not believe that in this day and age, when technology is at its best, that evidence cannot be retrieved. It must be retrieved. We must extend the legal lifetime of the commission.
We must remember that the survivors have rights and under GDPR their data rights have been breached. For that reason alone, we must act now and extend the lifetime of the commission. At the very least, the State owes the survivors the transparency they deserve.
I thank the Deputy for raising this important matter. I understand the anger of survivors regarding the deletion of tapes. For a long time, they have felt that their voices have not been heard and this action is compounding that anger and frustration.
I am aware of recent calls for the timeframe of the commission to be extended to enable it to deal with concerns relating to the audio recordings made by the confidential committee. The commission is independent in its operation. It has stated that each witness at the confidential committee was given a guarantee of complete anonymity and it was for this reason that the tapes were deleted. The commission has repeatedly stated that this process and the associated actions were carried out with the knowledge of survivors. However, as Deputy Smyth has said, it is clear some survivors do not share that view.
Since the concerns about the deletion of the audiotape was brought to my attention, I have engaged intensively with the Attorney General, the Data Protection Commissioner and the commission of investigation on this point. I am working to achieve a solution that ensures that survivors' voices are heard. As I stated to the Joint Committee on Children, Disability, Equality and Integration earlier this week, on 8 February I wrote to the commission of investigation to ask it to ascertain whether the deleted recordings could be retrieved. The commission replied to me on Tuesday, stating, "It seems we are unable to retrieve the recordings".
However, I am engaging further with the commission so I can conclusively ascertain whether there are any available technical solutions which may allow the retrieval of the missing data and this engagement is ongoing. When the issue of the deleted audio files was raised I asked my officials to examine whether the right to rectification under Article 16 of GDPR could be applied as a mechanism to address the issue of deleted tape recordings. This gives data subjects the right to have incomplete personal data about themselves completed, including by means of providing a supplementary statement. This is one of a number of GDPR rights that survivors of the mother and baby homes may be entitled to.
When the commission is dissolved, its archive will transfer to my Department. I know from my engagement with survivors how important access to information is, in particular access to personal information within the archive. Last October, the Attorney General clarified that when the archive transfers to my Department the rights of GDPR will apply. This was an important development and opens up the possibility of survivors being able to access crucial personal information in the archive.
My officials are preparing intensively for the Department's role in the management of the archive and are committed to having robust processes in place for managing information access requests in full compliance with GDPR. We have worked with the Data Protection Commissioner and sought advice from the Attorney General and external data protection experts on this point.
While I remain open to exploring all of the avenues that will best serve survivors, at this point it is not clear that additional time for the commission will necessarily assist in this regard. In practical terms, the commission has commenced the initial process of transferring its records to my Department. If it was extended, with the archive transferring to my Department as suggested, it is difficult to see how it could engage with any further investigation if it did not have access to its records.
If there was legislation for an extension, with the archive remaining with the commission, this would mean the commission would remain as data controller and make decisions on subject access requests, which it has always denied up to this point. The possibility of an extension also raises complex legal questions. I am engaging with the Attorney General on the specific matters. It is unclear how a proposed extension could overcome the complex legal matters associated with such a move or how best survivors could be served, in particular those who seek access to the commission's archive.
A decision on further action will be informed by the ongoing urgent engagement that is taking place with the commission, the Data Protection Commissioner and the Attorney General. I am happy to update the Deputy and the House on any further developments.
I thank the Minister for his comprehensive answer. There is a commitment in section 43 of the Commissions of Investigation Act 2004 that all information gathered will be kept as evidence. That is a basic and simple principle that we would all understand commissions of investigation to operate on.
I appreciate that the Minister has written to and awaits the advice of the Office of the Attorney General on this. However, we must remember the human life stories of the survivors who are listening to the debate and feel further anxiety and hurt is being piled on top of them after a number of years of waiting for a conclusion to all of this.
The positive aspect of this is the transfer of the archives to the Minister's Department so that people can finally access their details. However, it is difficult to understand how this commission of investigation could think for one second that the destruction of records and deletion of evidence could be in any way appropriate or helpful in terms of what it was trying to achieve. I cannot reconcile in my head how professionals at that level could think for one second that would be acceptable.
I appeal to the Minister to consider an extension. There are still a number of days until 28 February. I appreciate he is getting the legal advice necessary, but let us not cause any more unnecessary hurt to the survivors. If we have clear and concrete answers in terms of retrieving the information, evidence and records, I am sure survivors would be happy to move on with the next stage. In the absence of that and in the absence of the information I ask the Minister to continue to work night and day, as I know he is, to ensure that survivors have that transparency.
I am acutely aware of the very human stories and the real upset this has caused to survivors. I have engaged and continue to engage with survivors. My absolute priority is to see if there is a technical solution to seek to retrieve that information and those recordings. That is what we are looking at currently. We will continue to engage intensively with the commission on that point, to see if we can retrieve data. In the event that does not manifest, we are looking at the right to rectification and the potential right for each survivor to be able to ensure there is a statement of the survivor's testimony on the record of the commission's archive and to ensure their voices are heard.
I also want to emphasise what I see was a fundamental policy shift that we saw last October in terms of the GDPR access to the archive and the ability of the tens of thousands of former residents of mother and baby homes and county institutions to submit subject access requests to get that essential early-life information that they have been denied for so long. I am incredibly reluctant to take any action which I feel will delay the ability of survivors to start to use those mechanisms under GDPR. That must be borne in mind in our considerations and I know the Deputy recognises that. As I said, work is ongoing on all elements of this with regard to a technical solution, rectification and looking at the wider question of what is feasible in terms of an extension. It is a difficult and complex question, but all elements continue to be examined.