State must do more to vindicate rights of Mother and Baby Homes survivors

Majella Connolly (front), an adoptee from the St Patrick's Mother and Baby Home in Dublin, joins protesters outside Aras an Uachtarain, Dublin, after President Michael D Higgins signed the Bill into law.

The fundamental problem with the Government’s handling of last week’s legislation that did nothing to stop the Mother and Baby Homes Commission’s archives from being sealed for 30 years is that it perpetuates the suffering of survivors. 

It did so through the abject failure of the Minister Roderic O'Gorman to engage constructively with survivors in advance of passing legislation that affects them – perpetuating exclusion. It did so by failing to properly recognise the right to access information about personal history and identity – perpetuating a culture of secrecy. And it did so by once again demonstrating a failure by the State to take full responsibility for assisting survivors in their search for truth - perpetuating the lack of an adequate remedy for State-sponsored abuse.

Exclusion, secrecy and stonewalling. This is what survivors of institutional abuse have dealt with all their lives. 

Mother and Baby Homes were designed to exclude people from society. Secrecy around pregnancy, births, illegal adoptions, deaths and disappearances denied basic rights and allowed horrific abuse behind closed doors with no consequences. Stonewalling by the State when survivors seek information about their own lives, identities and the systems that oppressed them is an ongoing denial of rights.

In response to the wave of public outrage after the legislation was passed last week, Mr O’Gorman made clear that more legislation is planned to assist survivors with accessing some of their personal data. This was positive in that dedicated legislation can provide clarity and can allow those affected to access a broader range of records.

A key problem however was his initial denial that EU data protection law that allows individuals to access their personal data would apply to the archives in his possession. This position, based on the Attorney General’s advice, was contrary to the advice he received from Ireland’s data protection experts - the Data Protection Commission. The ignoring of advice from the Data Protection Commission was particularly concerning given it appears to be a Government trend.

Following an incredibly effective campaign by survivors and advocates, Mr O’Gorman accepted on Wednesday evening that the EU General Data Protection Regulation (GDPR) will apply to the archives once they are in his possession. But this was quickly qualified by a problematic statement about the restrictions that would apply. 

Some restrictions on accessing data are allowed under the GDPR but any restriction must be necessary, proportionate in a democratic society and must not interfere with the essence of the right. 

The essence of the right here is about allowing individuals to access data about themselves, their identities and their own personal history. 

The suggestion that access would be restricted to protect the work of the Commission or future commissions based on a piece of Irish legislation was fundamentally flawed - how can a decision be made to deny someone access to their own personal data in order to protect work that has not yet begun?

This fudging of EU law obligations is unacceptable. EU law on data protection trumps Irish law. It’s as simple as that.

Human rights principles must be taken into account when we define personal data, including the right to access information under the EU Charter of Fundamental Rights. This is important because we have already seen problematic interpretations of data protection law that block survivors and stakeholders from accessing their information, not least by Tusla in relation to the personal identity documents of adopted people.

Given the history of state secrecy, controversial legal interpretations and a demonstrated reluctance by the State to respond to data access requests, campaigners have recommended the establishment of an independent committee of data protection experts to respond to requests for access to personal data in the Commission’s archives. 

This committee would be independent of both Tusla and of the Department of Children and Youth Affairs. Creating such an independent committee is an eminently sensible suggestion and should be implemented both within the Department and within Tusla.

Survivors and campaigners have been arguing for years for access to personal files, but also to administrative documents that explain the systems in place in Mother and Baby Homes and other institutions where serious abuse occurred. A proper, EU law compliant, interpretation of personal data should allow survivors to access a broader range of documents. Accessing information about how and why abuses occurred is vitally important for survivors to understand, and to tell, their own story. 

The final report by the Mother and Baby Homes Commission of Investigation will provide expert analysis and no doubt chilling reading. But survivors have the right to tell their story in their own words. This is currently denied to them because they haven’t been allowed to see the documents gathered by the Commission. 

Nobody outside the Commission is allowed to see the evidence they are basing their report on. Incredibly, this includes survivors being denied the transcripts of their own interviews.

Some argue that allowing witnesses to provide testimony confidentially is necessary to ensure participation in this and future commissions of inquiry. It’s important to note that no person is obliged to share their personal data. Privacy can and should be maintained where participants do not consent to sharing their personal data, for example though anonymising documents. 

But the promise of confidentiality doesn’t actually ensure all important information is shared with commissions. In their fifth intermediary report published last year, the Mother and Baby Homes Commission explicitly said that they believed people with vital information were not coming forward.

The UN Human Rights Council has emphasised that states should preserve archives containing evidence of human rights violations “to facilitate knowledge of such violations, to investigate allegations and to provide victims with access to an effective remedy”. 

The right to an effective remedy includes the rights to truth, to justice, to proper reparations and to guarantees that such abuse will not happen again. The Irish State is obliged to vindicate these rights. 

It must comprehensively investigate abuses. It must ensure accountability where wrongdoing is identified. It must properly compensate those who suffered. And it must ensure that the voices of survivors are treated with the utmost respect. 

Last week’s rushed legislation without proper debate sent a message not of respect but of something closer to contempt, whether intentionally or not.

If new legislation is proposed that would provide clearer rules around access to the archives, the Minister must change his approach. He must undertake meaningful consultations with survivors and human rights experts in advance of drafting such legislation. 

There should be adequate time for robust debate. Crucially, any new legislation providing for access to archives should include appropriate, survivor-centred access to other archives relating to institutional abuse, including the Ryan archive and the McAleese archive, as well as access to their indexes. 

Gagging orders provided for under the Residential Institutions Redress Act 2002 should be removed. And Freedom of Information requests should be allowed, in line with what the body in charge of these requests – the Information Commissioner - has recommended.

Some positive steps have been taken in the last 20 years to uncover the truth of these dark chapters in Irish history, not least because of the incredible commitment and sustained campaigning by organisations like the Clann Project, the Adoption Rights Alliance, Justice for Magdalenes Research and other groups; and of course by survivors themselves, adopted people and other stakeholders. 

But the State is still failing to properly vindicate rights. The debacle around last week’s legislation is just another example. It is high time for government to pro-actively transform the culture of state secrecy to one of openness, inclusiveness, and truth.

• Doireann Ansbro is Senior Research and Policy Officer, Irish Council for Civil Liberties