Government will breach European and Irish law by sealing mother and baby home records, says DPC

The controversial legislation on sealing records on mother and baby homes passed the Dáil on Thursday
Government will breach European and Irish law by sealing mother and baby home records, says DPC

Minister for Children, Disability, Equality and Integration Roderic O'Gorman TD File picture: Gareth Chaney/Collins

The Government will breach European and Irish law by sealing the records of mother and baby homes for 30 years, the Office of the Data Protection Commission has claimed.

The controversial legislation passed the Dáil on Thursday and will see the database of the mothers and children in the homes sent to Tusla.

Under the 2004 act, the remaining archives and survivor testimony will be sealed for 30 years, meaning they are withheld from families.

Around 30,000 emails flooded into TDs inboxes pleading with them not to pass the legislation in advance of the vote — a number did not reach them because they had been diverted to spam.  When the legislation was passed it was met with outrage from a majority of survivors.

There has also been widespread criticism of the legislation by opposition TDs, who say it has been rushed through without proper scrutiny.

Opposition parties including Sinn Féin, Labour, the Social Democrats, and Solidarity — People Before Profit voted against the Bill.

Explicit amendments

The office of the data protection has now said sealing the records breaches European and Irish law in relation to people's right to access their personal data and that this was communicated to the Department of Children ahead of the drafting of the new mother and baby homes bill.

Children’s Minister Roderic O’Gorman said that his advice from the attorney general was that access to the records had been explicitly restricted by the Commissions of Investigation Act 2004.

However, deputy data protection commissioner Graham Doyle said the 2018 Data Protection Act, drafted to enact the EU’s powerful General Data Protection Regulation (GDPR) within Irish law “explicitly amended” the Commissions of Investigation Act in relation to access to personal data.

“It would appear to the DPC to be the case that the separate provisions of the 2004 Act in relation to the sealing of documents were not intended in the context of the amendment to the 2018 Act to provide an effective ‘blanket’ barrier to the exercise of rights,” Mr Doyle said.

In a statement released late on Friday night, the Minister once more asserted that the 2004 Commissions of Investigations Act “expressly” prohibits the right to access personal data under GDPR.

Real difficulties 

However, Mr O’Gorman said he is “committed” to re-examining the current approach, and would “undertake further detailed engagement” with the Attorney General to that end. He also said he would ask the Oireachtas Children’s Committee to consider the issues “with a view to resolving the very real difficulties which the past week has highlighted”.

Roderic O'Gorman, a member of the Green Party, has borne the brunt of criticism after refusing to add opposition amendments or ask for an extension to consider the bill more thoroughly.

It is understood the Green Party head office was informed of a number of resignations in the hours following the vote. One senior party source said that some elected representatives and party officers are considering their positions.

They said: "There's reaction from people who up to this point were diehard for government. It's not just the bill itself but how poorly it has been handled by the party.

"I wouldn't be surprised to see more people go over the next few days, they're talking seriously and making plans. It's the last straw, and it has been so upsetting for people.

"When we signed up for government there was a tremendous naivety that we wouldn't get blamed and that carried through up until now, we've been totally unprepared for the understandable and predictable outcome of this."

One resignation letter, seen by the Irish Examiner, sent by a party policy chair, said they wanted to make "known my disgust at the amount of abuse, gaslighting, and other issues I personally experienced" in the party. "This is not what I expected from the Green Party."

Mr O'Gorman said on Friday morning he would consult with survivor groups and academic experts.

More in this section