This has been a torturous 2 weeks for victims & survivors against an ill-advised progress of policy!

The Irish government yesterday announced important changes as to how data from the Mother & Baby Homes Commission of Investigation will be managed. This comes after two weeks of passionate debate, leading many Magdalene Women & Children & their Families to despair that they would never gain Justice or Access to information about their Identity.

In tweets yesterday, Minister O’Gorman acknowledged the “hurt” caused during the recent debate. He also highlighted the Government response and measures to be taken, following a Cabinet meeting.

Those measures include:

1. Focussing on the needs of Victims & Survivors;

2. Full engagement with the Magdalene Women, Children, Families & their Advocates;

3. That engagement to lead to a full and comprehensive State response;

4. The Mother & Baby Home Commission’s report to be published “as soon as possible” after it has been received by the Minister:

1. A caveat states that before publication, the report will be sent to the Attorney General to determine any prejudice in current criminal proceedings;

5. All Government Departments & Agencies will develop a comprehensive State response for urgent consideration by the Government;

6. The Minister’s Department, in tandem with TUSLA, will continue their liaison with the Data Protection Commissioner;

7. Acknowledgement that the General Data Protection Regulation (GDPR) is key to the Rights of the Magdalene Women, Children and their Families;

8. The HSE will expedite the implementation of health and well-being support to survivors;

9. The Government will publish Information & Tracing Legislation in 2021;

10. The Government will publish legislation to deal with the Burial site at the infamous Mother & Baby Home in Tuam;

11. The Government will seek an all-party consensus on all issues through the Oireachtas Committee on Children;

12. The Government will create a National Archive of Records “related to Institutional trauma during the 20th Century”, in consultation with the Magdalene Women, Children, Families & their Advocates and others;

13. The Government sought to clarify its rationale for the controversial Mother & Baby Records Act, to “preserve and protect valuable records that would otherwise have been destroyed or rendered useless”. In justification, they summarised the Chair of the Commission Chair’s concerns that:

1. “The Commission had compiled a database of all the mothers and children who were resident in the main mother and baby homes. It is clear that this database would be of considerable assistance to those involved in providing information and tracing services; under existing legislation, the database would have to be effectively destroyed As the information compiled in the database is all sensitive personal information, the Commission would be obliged under existing legislation to redact the names and other identifying information about the residents of these homes before submitted to the Minister; the Commission stated this would have the effect of rendering the database useless”;

2. In response to these issues, The Irish Times has reported further comments from the Minister that suggest:

1. Significant issues of data transfer from the Commission to the Minister would have arisen, particularly in relation of access to data;

2. Following the recent outcry, it appears the Minister sought further clarification from the Attorney General, which he received yesterday evening, who confirmed that the GDPR is not overridden by the Commissions of Investigation Act 2004, and

3. The Minister is bound by the obligations of the GDPR in relation to the archive & records;

4. Importantly he stated that in applying for information from the archive, data access requests will have to satisfy two tests: 1) Whether requests impact the rights and freedoms of others (for example, the right to privacy), and 2) whether the Minister should restrict access in order to safeguard Commissions or Investigations and future co-operation of witnesses.

Frank Brehany states:

“I give a cautious welcome to this announcement, which frankly could have been factored into discussions since the beginning of October. I look forward to reading the two sets of proposed legislation, regarding the burials at Tuam and on Information and Tracing, which are long overdue. I am however concerned by the seeming lack of awareness of existing laws, particularly as to obligations contained within the Commission of Investigations Act 2004 and the GDPR, and it appears, late-in-the-day consultation with Government Legal Officers. The proof of all these intentions will be witnessed in the handling of all the data, including any already held by Government Departments, the operation of the two-stage test and in how Government Departments and Agencies will react to access requests made by the Magdalene Women, their Children and their Families”.

Media Notes: 

1. Frank Brehany is a surviving Grandson of a woman who was incarcerated for 42 years, until her death in 1972. His Father had to face a life, carrying with him the stigma of his birth, being boarded out and never knowing his Mother or Father. Frank has spent over 10 years, painstakingly researching his family secret and discovering the remarkable story of his family.

2. ‘Commission of Investigation (Mother and Baby Homes and Certain related Matters) Records Bill 2020’ can be found here: https://www.oireachtas.ie/en/bills/bill/2020/38/?tab=bill-text 

3. Frank’s Open Letter to Minister O’Gorman can be found here: http://frankbrehany.com/blog/open-letter-minister-o-gorman-don-t-bury-the-mother-and-baby-homes-commission-archive/

4. Frank has seen no convincing measure within the Commissions of Investigation Act, that would have caused concerns as to the database created by the Commission. A clear obligation exists under Section 43 to hand over all evidence to the Minister. It would be more convincing if sight of any Legal Advices to the Commission were released.

5. Frank Brehany is based in Wales and is an Irish Citizen. Frank has extensive Media Experience, primarily dealing with Consumer & Rights issues. Frank’s CV can be found here: http://frankbrehany.com/media/1151/fbs-cv-24220.pdf