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Senators express 'serious concern' that mother and baby home records will be sealed for 30 years

The Commission of Investigation into Mother and Baby Homes is due to submit its final report later this month.

Roderic O’Gorman, Minister for Children, Disability, Equality and Integration (file photo).
Roderic O’Gorman, Minister for Children, Disability, Equality and Integration (file photo).
Image: Sam Boal/RollingNews.ie

Updated Oct 14th 2020, 4:41 PM

CAMPAIGNERS AND ACADEMICS have called for the government to prevent records compiled by the Commission of Investigation into Mother and Baby Homes being sealed for 30 years.

Senators also expressed “serious concerns” over proposed legislation related to the commission’s records in a debate in the upper house today.

The Clann Project, a joint initiative by Justice for Magdalenes (JFMR) and the Adoption Rights Alliance, is against the records being sealed.

They say it will result in people being unable to access 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,” the groups said in a statement.

Minister for Children Roderic O’Gorman has denied the commission’s records will be put “beyond reach”.

The commission 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 previous delays. Its work has cost about €14 million to date.

Under the 2004 Commissions of Investigation Act once it submits its final report, the commission will be dissolved and, prior to its dissolution, it must deposit all records with the minister to be sealed for a period of 30 years.

Last week the government approved the text of a Bill which it said will safeguard the records after the dissolution of the commission. The Bill was debated in the Seanad today.

A number of senators called for more time to examine the draft legislation, saying it is being rushed through.

The proposed legislation will see the transfer of certain documents from O’Gorman to Tusla, the Child and Family Agency.

Several people have raised concerns about the records being sealed, and have called for clarity on what evidence will be handed over to Tusla.

In a statement, O’Gorman said he understands concern around the issue “given Ireland’s history”. He said the new legislation is “needed to preserve access to invaluable information now and into the future, and not to put it beyond reach as has been reported”.

The commission was set up under the 2004 Commissions of Investigation Act. O’Gorman 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.

He added that the 2004 Act also requires that such records are sealed for a period of 30 years, pending their transfer to the National Archives, adding that this provision was already in place prior to the establishment of the commission.

O’Gorman also noted that earlier this year, the commission informed his department that 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 being brought forward will preserve this information and allows 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.”

Right to information

Speaking in the Seanad today, Labour Senator Ivana Bacik acknowledged the “important” work of the commission but said she and colleagues are “deeply disappointed” at the rushed nature of the legislation and cannot support it because of their “serious concerns”.

Bacik asked O’Gorman to ensure that data access requests to the archive of records will be facilitated.

“There’s a clear need for information. So many survivors, so many family members have expressed to us their urgent desire for information,” she said.

Bacik said “a huge amount of information” compiled by the commission “does not relate to statements given by witnesses”. She said survivors and their families should be granted access to the records kept by the religious orders in question.

She also called on O’Gorman to assure that an “appropriately anonymised index to the archive will be published” so that debate and consultation can be facilitated on the 30-year rule on sealing documents.

Bacik said an archive of historical abuse records needs to be set up, adding that Ireland owes this to the people affected by “our legacy of shame”  over the treatment of women and children.

Speaking about privacy concerns, Bacik noted that senators failed to agree on elements of the Adoption (Information and Tracing) Bill 2016 when it was being debated last year because a compromise couldn’t be reached on privacy rights versus the right to information.

“In that bill as in this bill, there’s undue regard to privacy rights at the expense of the right to information and identity for those persons most directly affected, women and children and their own descendants,” she said.

When asked at a press briefing this afternoon if he understands why people may be reluctant to believe future legislation will deal with allowing greater access to records given the past issues with adoption and tracing legislation, Minister O’Gorman said: “I absolutely can understand that. As minister, as I look at the various legacy issues that fall within the remit of this Department – the issues around the mother and baby homes, issues around Tuam, issues around information and tracing – I can absolutely understand their scepticism.”

O’Gorman added that he “would have preferred” that his first piece of legislation in this field “wouldn’t have been what we’re doing at the moment”.

“But I do think we’re right to act quickly because I want to protect this database,” O’Gorman said. 

“I’m very clear that I want to, during my time as minister, I think it’s absolutely essential that we address these key legacy issues,” he said.

O’Gorman told the Seanad the draft legislation must be passed before the commission dissolves upon the submission of its final report.

He said he wanted to reassure people who have “very legitimate anxieties” about access to birth information and tracing that future legislation will allow greater access to records.

“I am absolutely committed to addressing the long-running matter of birth information tracing legislation. This is not what this Bill today is going to address, but I’m absolutely committed to doing so.”

O’Gorman said “no future opportunity for access to this information will be lost, by virtue of this bill coming into effect”. He said the Bill’s purpose “is to preserve information … including the critically valuable database for future use to the maximum extent possible under the law”.

Senators and campaigners have raised concerns about records being given to Tusla, citing what they view as “discriminatory practices, including defining adopted people’s birth name as third party data”.

O’Gorman said the Bill is “not an expansion of Tusla’s role”, noting the body already holds many of the records in question.

When asked by TheJournal.ie about people’s concerns over Tusla’s involvement, a spokesperson said: “Tusla as a statutory body recognises the imperative for government to make a plan in relation to these records.”

They advised us to direct any other queries to the Department of Children and Youth Affairs.

‘Stopping families accessing infomation’

Speaking today, Sinn Féin leader Mary Lou McDonald said she had huge concerns about the fast-tracking of the Bill.

“There are huge concerns over the lack of consultation regarding this Bill, and there are serious questions as to why Minister O’Gorman is proceeding with this approach.

“The main concern here is the intention of the minister to transfer part of the Commission of Investigation’s archive to to Tusla without keeping a copy, and a plan to seal the remainder of the archive for a period of 30 years.

“This will prevent people from accessing their records from the minister’s archive, and it will stop families from accessing information about disappeared family members or babies buried in unmarked graves. I’m sure you will agree, Taoiseach, that this is very wrong,” she said, addressing Micheál Martin in the Dáil.

Responding, Martin said the reason the legislation has been put forward is to “provide urgent and critical legal clarity surrounding the future use” of the database.

“It has been brought forward, genuinely being brought forward, to preserve invaluable information, not to put it beyond reach, as has been reported. So that’s not the intention.”

Martin said “the urgent issue in front of us is to ensure that we preserve the invaluable cache of information and not lose it forever”.

He said the database of the mothers and children who are resident in the main mother and baby homes “would be of considerable assistance to those involved in providing information tracing services to individuals who were residents in these institutions”.

Martin added that the legislation has been advanced to address current concerns raised by the commission about the need to redact personal information.

“The commission has concerns about the redaction of the information and wants to transfer the database in its entirety,” he said.

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‘Not bound by the 2004 Act’

Dr Maeve O’Rourke, the director of the Human Rights Law Clinic and a barrister who has campaigned on behalf of survivors, said the Oireachtas is not bound by the provisions of the 2004 Act.

“It can legislate – as it is intending to do regarding the database & records it wants to send to Tusla – to ‘un-seal’ material gathered or created by the Commission,” she said.

O’Rourke said the 2004 Act “was never the appropriate legislation on which to base an inquiry into grave and systematic human rights abuse, including enforced disappearance, because of its provisions around confidentiality”, saying she and others argued this at the time.

She said the Act did not require the commission to proceed in private.

“The Commission had discretion under the 2004 Act to conduct some of its inquiry in public. It chose not to do so,” she said.

O’Rourke said people affected by the abuse under investigation should, under European human rights law, “have been enabled to participate properly in the inquiry and to see the evidence coming in from the State and other institutions responsible for the family separation system”.

“They should now have the option of receiving a copy of all of their personal data and information about disappeared family members that the Commission gathered, and they should be entitled to their own transcript of evidence.

“Crucially, the Minister must inform the public of what kinds of records he intends to seal for 30 years. They likely include innumerable state and institutional administrative records, which are crucial to piecing together how the system of forced family separation operated.”

Confidentiality

When asked by about people’s concerns, O’Gorman said in a statement yesterday: “Contrary to what has been reported, the intention of the legislation is not to put the information beyond reach.

“Rather, it is to ensure that information is not destroyed and that relevant information can be made available for information and tracing purposes in line with current and future law.”

O’Gorman said the effect of the “confidentiality provisions woven into the 2004 Act” is that the commission’s archive of records must be deposited with the minister in question in a sealed form and must remain so for three decades.

“While the records must transfer in their complete and unredacted form, the anonymity of those who provided testimony is maintained by virtue of this requirement for the records to remain sealed.

“While anonymity may be fundamentally important to some of those who provided testimony to the Commission, equally, I recognise that others may be anxious to have sight of their testimony and to know that it is recorded for posterity.”

O’Gorman said the commission’s final report will reproduce the anonymised testimony of each individual who appeared before it.

“While the testimony will be anonymous and slightly summarised, people will nonetheless be able to see and recognise their own story told in their own words.”

O’Gorman added that the proposed Bill “preserves the constitutional rights of those witnesses who wanted their identities to be recorded for posterity and relied on the existing law to achieve this”.

With reporting by Christina Finn and Hayley Halpin

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Órla Ryan

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