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TDs ask how testimony 'miraculously appeared down back of sofa', as time runs out to extend Commission

A Social Democrats’ motion to extend the commission’s term by one year had broad support but is non-binding and is not being acted on by government.

Updated Feb 24th 2021, 4:37 PM

Screenshot 2021-02-24 at 11.38.17 Minister Roderic O'Gorman listening to the debate today Source: Oireachtas.ie

THE GOVERNMENT IS not going to extend the term of the Commission of Investigation into Mother and Baby Homes, despite mounting pressure from opposition TDs.

A Social Democrats’ motion to extend the commission’s term by one year had broad support but is non-binding and is not being acted on by government.

The government did not table a counter-motion as expected.

During the debate, Children’s Minister Roderic O’Gorman said an extension to the Commission would serve “no practical purpose” now that audio recordings of survivors’ testimony have been recovered.

Speaking after the debate, Holly Cairns, who co-sponsored the motion with Jennifer Whitmore, said: “Earlier today, the Government committed to not blocking the Social Democrats’ motion to extend the Commission of Investigation.

“However, when challenged by my colleague Gary Gannon to give effect to this by allocating time in the Dáil, they voted that proposal down. This shows that the Government is attempting to look both ways on the issue.”

Cairns said the government did not submit a counter-motion “to avert a rebellion of Government TDs and to give the appearance of wanting to do the right thing”.

“It is a disgraceful attempt to effectively hoodwink the Dáil,” Cairns added.

Speaking in the Dáil today, Whitmore, the SocDem’s children’s spokesperson, said the confirmation “late last night, at the 11th hour” that the audio testimony of witnesses could be recovered presents more questions than it answers.

Whitmore said the Commission’s term has been extended a number of times “for the benefit of the Commission, and for the benefit of the government, and this time we’re asking for it to be done for the benefit of the survivors”.

She said the backup tapes “miraculously appeared at the back of the sofa” after pressure was put on the government and Commission by survivors and the public.

Whitmore accused the government of “playing political games” and called on it to extend the Commission’s term so questions can be answered.

During the debate Cairns said that in recent days O’Gorman “went from saying, ‘I won’t extend the Commission because I don’t think it’s legally possible’ … to change tack and say ‘I don’t want to extend the commission because that was scupper subject data access requests’ – that was also debunked. Then when you were backed into a corner, miraculously, the tapes were discovered”.

In response, Minister O’Gorman said he welcomed the opportunity to address the Dáil on the latest developments. He said the government would not be tabling a counter-motion, as was expected.

“I strongly believe that we must focus on real solutions and move quickly to resolve difficulties in a way that best serves survivors…

“The government has not tabled a counter-motion today in the spirit of working together to provide solutions for survivors.

“We are focusing our energies on practical actions, which can assist those who are distressed by the deletion of the audio recordings.”

O’Gorman told the Dáil the Commission has said that each witness at the confidential committee was given a guarantee of complete anonymity, and it was for this reason that tapes were deleted, adding: “I recognise some survivors dispute this point.”

He noted that the Commission has said consent was given by 549 of the 550 witnesses to the use of an audio device and “approximately 80 people who attended the confidential committee sought for their personal information to be redacted”.

O’Gorman said if witnesses “consider that their record is inaccurate or incomplete, they will be able to exercise their rights” and can contact his dept, once it becomes a data controller after 28 February, to “exercise their right to rectification”.

Survivor reaction

Síobhan, a survivor who gave birth to a son in Denny House in Dublin in the 1980s, gave testimony to the Commission in 2017.

Speaking to TheJournal.ie today, she said she was frustrated after watching the Dáil debate.

Síobhan is among the survivors who have contacted gardaí and the Data Protection Commissioner about their testimony being deleted.

“All of the speakers (in the Dáil) brought up very, very good examples of why this Commission has to be extended. Because a number of us, including me, have given evidence to gardaí about our about the tapes been deleted without our consent. And I’ve also got an ongoing case with the Data Protection Commissioner.”

She said that during her interview with the Commission she requested a copy of the recording of her testimony but was told this was not possible.

“They never told me then about the tapes being destroyed. So when I read in the news about the tapes being destroyed, I was shocked, absolutely shocked,” she said.

“The Commission said they destroyed because they were only an aide memoire for the transcriber, but now they’re coming out saying, ‘Oh, we did is to make you all anonymous.’”

Síobhan said that while the wishes of the 80 witnesses who wish to remain anonymous should be respected, they should not usurp the wishes of the wishes of the 470 witnesses who did not request anonymity.

Síobhan said her evidence was “misrepresented in the report”, and that important elements of her experience were not included.

Síobhan noted that many survivors have spoken about forced detention and abuse in the institutions, and forced adoption, but the Commission found a “lack of evidence” to back this up.

She said hearing the original recordings of the testimony is vital so errors in the written accounts of people’s experiences can be corrected.

‘Weasel words’

A number of TDs criticised the government’s approach to the situation, as well as the Commission’s final report and deletion of the audio recordings, during the debate today.

Independent Catherine Connolly said “weasel words” came to mind when she listened to O’Gorman’s speech.

She said the majority of witnesses want their testimony to be heard, noting that people have “come forward to say ‘please publish our stories, please listen to us now’.”

Connolly asked, now the backup tapes have been found, who will listen to them, who will make notes and check against the testimony in the report.

Connolly hit out at the “boys’ club” that has defended the Commission in the media in recent days – saying a few women are now unfortunately part of that club too.

She said O’Gorman will have her full support if he seeks to deal with the issues raised by survivors.

RISE TD Paul Murphy said “survivors deserve the truth – but what’s more, they deserve justice and redress”.

“Those who bear particular responsibility, the religious orders who ran (the institutions), should be made to pay for what they did.”

Murphy said religious orders shouldn’t receive “a slap on the wrist and a pocket of public money”, rather their assets should be seized “to fund proper redress for their victims”.

Solidarity–People Before Profit TD Bríd Smith said the Commission left “many stones left unturned”, adding: “As well as that, there’s been a tonne of cement poured on top of the truth.”

Smith said the unmarked graves of children “littered around the country” are crime scenes and must be treated as such. She added that there are “unknown amounts of dead babies buried” at Sean Ross Abbey and other locations.

TDs from Sinn Féin, Labour and a number of independents also spoke in favour of the motion.

Anne Rabbitte, Minister of State at the Department of Children, noted that some survivors want their testimony to be kept private.

The Fianna Fáil TD also said that some survivors do not support extending the Commission’s term. She said she was not trying to pit survivors against each other, but all voices must be listened to.

Rabbitte said the government is committed to a “survivor-centered” approach and implementing the 22 action points announced in January – such as redress, counselling, medical support, memorialisation, and information and tracing legislation.

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Deleted audio

Last night it emerged that the recordings could in fact be retrieved.

In a statement, the Department of Children confirmed an IT expert had checked if the audio recordings are retrievable by testing a random sample, and verified that they are “accessible and audible”.

The commission has agreed to deposit the audio recordings with the department.

The department said it is continuing its preparations to become data controller of the Mother and Baby Homes archive from 28 February and is liaising with the Data Protection Commission in their regard.

“The retrieval of audio recordings from the backup tapes and their imminent transfer to my Department now provides another avenue for the people who appeared before the Committee to access their personal data,” O’Gorman said in a statement last night.

“The request of the approximately 80 people to have their identities redacted will be respected and my Department will liaise with the Commission as current data controller in this regard.

“If any of the people who appeared before the Committee consider that their record is inaccurate or incomplete, they will be able to exercise their GDPR rights with the Department once it becomes data controller. This will involve making a request to exercise their right to rectification after the archive transfers to my Department.”

Speaking to TheJournal.ie ahead of today’s debate, Whitmore said survivors still want to ask questions about why the audio recordings were deleted without their consent, among other issues.

“Survivors also have raised concerns about how the final report did not accurately reflect their testimony. The Commission will need to be in existence to provide survivors an opportunity to address these discrepancies and offer them a right to rectification of the information.

“It is welcome that they did not, in fact, delete these testimonies as they had previously stated they had, but it is really only one element of the justice that survivors need.”

Whitmore said the deletion of the audio is at odds with GDPR legislation, which states that the processing of a person’s data cannot happen without their consent, and Section 43 of the 2004 Commissions of Investigation Act.

The latter states that, before the dissolution of a commission, “all evidence received by and all documents created by or for the commission” must be given to the relevant minister. This includes “records of interviews conducted” by a commission.

“These are legal questions that people are asking. It’s not necessarily a criticism of the commission, but people want to know what happened there. And they’ve gone to the Data Protection Commissioner (DPC) to ask about that, and the DPC will need time to investigate that,” Whitmore said.

“I think we need to try to move away from the narrative of saying this is an anti-commission thing, it’s not. This is survivors seeking information about their own information, wanting to exert their legal rights, and also seek justice.

“That’s what we need to keep front and centre – this isn’t about upsetting the commissioner, this needs to be about survivors and them not being forgotten,” Whitmore said.

About the author:

Órla Ryan

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