From top: Majella O’Connor, who was born in St Patrick’s Mother Baby Home on the Navan Road in Dublin in 1971, at a protest on the site of the home on Monday; Solicitor Simon McGarr; Minister for Children, Roderic O’Gorman
The Department of Children and Youth Affairs released a statement which included the following line:
“The Department of Children, Equality, Disability, Integration & Youth Affairs, along with Túsla, 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 GDPR are fully respected and implemented…”
It comes as the Commission of Investigation into Mother and Babies Homes is scheduled to hand over its 4,000-page report to the Government tomorrow.
The Department’s position on GDPR in respect of the commission’s investigation followed data protection expert and solicitor Simon McGarr writing a blog post on October 20 (nine days ago) highlighting the huge significance of GDPR in this matter.
“It is critical that the state does not compound an administrative error being made by the Commission of Investigation into Mother and Baby Homes and Certain Related Matters, in failing to take account of its duties under the Charter of Fundamental Rights and GDPR to set aside any national provision which would conflict with the rights of access and other data protection rights.”
When the Minister for Children Roderic O’Gorman was specifically asked in the Dáil, on October 21, if he accepted that GDPR superseded the Commissions of Investigation Act 2004, he failed to answer.
Further to this sequence of events.
Claire McGettrick, of Adoptions Rights Alliance and the Clann Project, was on RTE’s Morning Ireland saying the group warmly welcomed the approach by the Government.
But she said:
“However we believe that in order for the effective and respectful and fair implementation of the GDPR, it is absolutely crucial to have data protection law experts involved in both the Department of Children and Youth Affairs, immediately, and in Tusla who are already in the business of information provision and indeed in every other situation where records of adoption and institutional abuse are held.”
Journalist Aine Lawlor asked her if she was correct in understanding that the Government has now acknowledged adoptees and survivors’ right to seek but not necessarily to get their records and that terms and conditions may apply.
McGettrick said the State’s practice to date has been “unfortunately appalling”, particularly in regards to Tusla.
So she said it’s “absolutely crucial” to have independent data protection experts installed in the department and Tusla in regards to these records.
She also added:
“We also stress that this new position has huge implications for people with records at the McAleese archive, of people with records of the Ryan Commission. They should also be provided with their records immediately because the GDPR applies across the board and we welcome the State’s acknowledgment of that.”
In June 2015, Conall Ó Fátharta, then a journalist with the Irish Examiner, reported that, during the McAleese Inquiry, the HSE examined both the Tuam and Bessborough mother and baby homes and found that death certificates pertaining to children at Bessborough may have been falsified in order for “clandestine adoption arrangements, both foreign and domestic” and that the findings could have “dire implications for the Church and State”.
Mr Ó Fátharta also reported:
“It also noted the possibility that up to 1,000 children may have been trafficked from the Tuam mother and baby home, which could “prove to be a scandal that dwarfs other, more recent issues with the Church and State”. None of the concerns are mentioned in the McAleese report.”
On October 23, on Tipp FM.
After Minister for Children Roderic O’Gorman appeared on RTE’s Morning Ireland, Breeda Murphy, of the Tuam Mother and Baby Home Alliance, spoke to Fran Curry.
The interview came a day after the Dáil vote on the Bill.
From the interview:
Fran Curry: “What’s your take on it all, at this point Breeda?”
Breeda Murphy: “Well, it’s an affront to democracy. I wrote to the Minister this morning and I said:
‘We were the very first to write to you upon your appointment that very day with sentiments of goodwill and support. Because we understood given your background and understanding in law you would lift the vulnerable; support us through the difficult days and take us to a new political arena of openness and transparency, where truth would reign and justice would follow.
‘But last evening’s performance left none of us in any doubt. Just as under some guise of all that is good; the powerful figures of yesteryear incarcerated our youth and trampled on their vibrancy to reduce them to mere shadows of their former selves, you have severed any hope we held steadfast to of a truthful narrative emerging,
‘I actually felt sorry for you in recent days – you cut a forlorn figure in a large hall with no support from your own party or those you bedded with. Had times been different (pre-Covid) we would have been there and I would actually have voiced your vulnerability because, to me, it appeared unfair.
‘But against the resounding expert opinions of law, of compliance, of amendments, of extensions to allow informed discourse – you, just like power brokers of the past, donned the mask that hid any words you may have mouthed through exchanges and continued with a mantra that holds no weight.
‘I sincerely hope for your sake, it’s worth it. Because after the vote I had to attempt to explain to our members the continuing injustice.
‘Through tears I took phone call after phone call and assured them they did nothing wrong and attempted to present as this was an expected outcome. That we will manage. After all, this is a battle we have fought for decades.
‘But just occasionally the wind dies from under our sails; just occasionally that glimmer of hope burns out; and darkness envelopes and the dreams fade – that was our experience yesterday evening. Of fading dreams to walk without shadows, to reclaim lives and the unburied dead, to be able to recall an ethical response from a parliament that understood.
‘You, just like all the rest, turned your face away.
‘There is no right in that.
‘Justice delayed is justice denied.’
“Fran, that’s what I wrote to the minister, I haven’t had a response yet. The legal arguments he put up have been shot down by absolute experts including barrister Catherine Connolly (Galway Independent TD) in Dáil Éireann; Simon McGarr who’s a solicitor in the interest area of data protection; and by Maeve O’Rourke, who has done incredible work on the human rights legislation.”
Curry: “He is still putting it out there, and he did again this morning, that, you know, that he is trying to protect the records and that what he’s doing, he’ll take that information out of the 30-year sealing of documentation. How do you answer that Breeda?”
Murphy: “Fran, you see, you have to ask what’s in those records? And what’s in those records, related to Sean Ross Abbey for instance, is that the sisters told us that 269 children died there. Official governmental records tell us that 1,024 died there. And they tell us that 427 babies died between 1931 and 1939; 412 babies died throughout the 1940s.
“And then the Adoption Act came into play in the 1950s and we saw that drop off, the deaths drop off at that period of time. But also we saw yesterday [October 22], leaks of some information that, well, actually, is in the public domain and that would be by way of Government documents.
“And those are the important documents that are being sealed. This one is from the 1950s and it shows the trafficking of children to the United States and one lady in particular, whose case was carried on the BBC, she was born in Northern Ireland.
“She was routed, trafficked to Stanmullen in Co Meath and, interestingly, Stanmullen, St Clare’s and St Joseph’s are not included in this investigation at all. So there’s no spotlight placed on them. And from there, the children were routed to Canada and the United States.
“Now this particular lady has three passports, one from Northern Ireland, one from the Republic of Ireland and one from the United States with different identities.
“So this tells us that this is a massive cover-up.
“And when the Government seal for 30 years what they’re effectively saying, that they are destroying them, to my mind they are destroying them from our ability to reach them. So those would support and the Government and the Commission can come out with any statement that we cannot verify because we will not have access to the same information.
“So we’re expected to put our trust in a system that’s let us down.”
Curry: “Are you taking any solace at all from what the minister said, that he would get together with the Attorney General and, indeed, survivors, and they would come to some sort of agreement where this is concerned. That he’s still up for that? Does that hold any water for you at all?”
Murphy: “No, I’ll tell you why. I cannot trust a government that does this. I cannot and when you say he has had tremendous support and he actually said it himself, he’s had tremendous support. I’ve watched the proceedings through the Seanad, through the Dáil on this. And not one, not one Fianna Fáil, Fine Gael, or Green Party member stood up in defence because they didn’t attend. They did not come in.
“Now, if that was a good news story, Fran. If that was something they could be proud of…”
Curry: “They’d all be there…”
Murphy: “I can guarantee you, they would be there. They have attempted, some have attempted to write to me. One wrote yesterday, to explain what you’ve said, about the minister. I would prefer to take advice, the legal advice from the likes of Simon McGarr, from Maeve O’Rourke, from people who’ve studied this.”
Curry: “Will you explain some of that advice to us, because what the minister is saying is that the entire basis of the commission is based on that 2004 Act. His concern then is, of course, a legal challenge where this is concerned. What are you hearing about that?”
Murphy: “I’m hearing that the legal challenge will actually be in Europe. Because he’s relying on…”
Curry: “The GDPR is it?”
Murphy: “Yeah, with GDPR. He’s relying on Attorney General advice. Now it’s very interesting that he has not named the Attorney General advice and, more so, that he has not provided it to the Opposition who could study it, who have their own legal experts.
“Now the minister is claiming that Section 39 of the 2004 Commissions of Inquiry [Investigation] Act can oust GDPR access rights and exception related the administration of justice.
“But Simon McGarr responds. He’s in the area of data protection. He said, even if Section 39 of the commissions act of 2004 was an exemption that fell into one of the existing grounds for restricting GDPR rights, it still wouldn’t be legal.”
Curry: “Right, but that [GDPR] wasn’t in the original act, that was an amendment wasn’t it, just a few years ago?”
Murphy: “I can’t say. I don’t know if it was an amendment but certainly GDPR legislation trumps, it’s European, so it trumps, and it comes in from 2018, and Catherine Connolly was very strong on it, Bríd Smith. I mean they have…the fact that the ministers have another 16 advisors…you know, Fran, I’m talking to you without anybody advising me.
“I’m trying to understand this legislation but I can tell you that it is flawed, that what they are doing effectively is that they are now the imposing structure of the institutions that trampled, you know, effectively silenced all of our survivors, their families and those looking for children today.”
Curry: “The speed of this legislation as well, Breeda, what’s your understanding of that? I mean it’s come upon everybody rather suddenly hasn’t it, last-minute stuff?”
Murphy: “It’s unheard of to have a Bill go through the Dáil with these repercussions for 30 years, silencing without pre-legislative scrutiny. And even Michael McDowell, himself a former Attorney General and probably an advisor in 2004 on this Act. Even he requested and actually begged the minister for a month’s duration to examine. And the commission would have, I’m sure, because now he’s pushed the commission out to February anyway. So the commission would have obliged and not handed over the report and no survivors wants and unsafe…”
Curry: “Yeah but he, the minister said though that the reason for that was that people waited long enough for this report from the commission, he didn’t want them waiting any longer. Again, does that hold any water for you?”
Murphy: “Not any. You know why? He never actually asked any survivors that question. He went along, this is all so completely tied up to dismiss the rights and the voices of survivors. If he wanted us there, there are 40 in our group, we could have at least and we were the very first on the day he was appointed, we wrote to him because we were right off the mark and we congratulated him and we looked forward to working with him, he is, after all, a law lecturer. And we put our trust and faith. But this has happened decade after decade. The survivor has been silenced, has been ignored, their rights disrespected.
“And for the lost babies of Tuam or the lost babies of Sean Ross Abbey, the sisters didn’t even know there was another 700- and whatever there. I mean how can you lose the records of these children and where are they buried? That is really the crux of the question.”
Earlier: Dan Boyle: Not Doing It For The Kids
Previously: “I Didn’t Want To Ask Survivors To Wait More”
The Magdalene Report: A Conclusion