What Does It Mean to Repeal The Seal?

By Katie Whelan.

I am sure that on Thursday night you may have been wondering why your social media feed was flooded with outcries of #repealtheseal and #stand4truth. I, for one, did not initially know what was happening, I was just aware that the Government – the usual suspects of Fianna Fáil and Fine Gael along with The Greens this time, had voted to pass a highly controversial bill.

Seemingly they had voted to seal the records of the Mother and Baby Home Commission for 30 years against the explicit wishes of survivors.

Yet, after some investigation it seems that this is not exactly the case, it is apparent that the Government has once again failed the survivors of these Mother and Baby homes, but it is not as clear-cut as it appears on social media.

Here is what you need to know:

The Commission of Investigation into Mother and Baby Homes and Certain Related Matters was established in 2015 in response to claims alleging that up to 800 children were buried in unmarked graves at the Bon Secours Home in Tuam, Co Galway.

Subsequent investigations carried out between November 2016 and February 2017 made the harrowing discovery of human child remains.

The Commission, which is due to report its findings next week, was established to find out what happened in 14 similar homes and 4 county houses across the country in the period from the creation of the State in 1922 to 1998, when the last home closed.

The database which was created and digitised by the Commission contains valuable information that could help survivors of these homes to find their birth parents or reach some sort of closure. But the database also contains over 500 testimonies from survivors. These men and women who bravely chose to tell their stories were assured that they were doing so in confidence. If the seal were to be repealed, anonymity would need to be assured to those who wished to keep their experience inside these homes private.

It is this database that has caused such heated debate within the two Houses of the Oireachtas – the Seanad and The Dáil, and an outcry from those affected, the survivors.

The survivors, who have been denied justice and utterly failed by the state for decades, want access to these databases, and rightly so. Many can no longer wait 30 years to access information that is, in essence, theirs, because it contains information pertaining to their birth.

But herein is where the problem lies.

Under the Commissions of Investigation Act 2004 which allowed for The Mother and Baby Home Commission, records are automatically sealed for 30 years, after which they are then released to the public through the National Archives.

The Data Protection Commissioner raised concerns with regards to the application of a right to personal data within the 2004 Act on the Commission into Mother and Baby Homes. Basically, the Commissioner questioned the legitimacy of sealing the records for 30 years. Under General Data Protection Regulations (GDPR) individuals have control over how their own personal data is used.

The Data Protection Commissioner argued that GDPR and the Data Protection Act of 2018 superseded the Commissions of Investigation Act 2004.

Yet this legal issue concerns the Commissions of Investigation Act 2004, which allowed for the Commission into the Mother and Baby Homes, not the Bill passed by Government on Thursday 22^nd Oct.

The Bill passed on Thursday by the Government did not seal the records; the commission of Investigation Act 2004 had already done that. The fate of the records being consigned to 30 years on the proverbial shelves had already been sealed.

So, what did the Commission of Investigation (Mother and Baby Homes and certain related Matters) Records, and another Matter Bill 2020, passed on Thursday do?

The bill facilitated the transfer of records from the Commission to the Child and Family Agency Tusla as well as allowing for the depositing of records to the Minister for Children, Equality, Disability, Integration, and Youth.

Minister Roderic O’Gorman defended the Bill stating that upon transfer to Tusla, the commission’s database, will help people “establish their identity”.

I am sure that on Thursday night you may have been wondering why your social media feed was flooded with outcries of #repealtheseal and #stand4truth. I, for one, did not initially know what was happening, I was just aware that the Government – the usual suspects of Fianna Fáil and Fine Gael along with The Greens this time, had voted to pass a highly controversial bill.

Seemingly they had voted to seal the records of the Mother and Baby Home Commission for 30 years against the explicit wishes of survivors.

Yet, after some investigation it seems that this is not exactly the case, it is apparent that the Government has once again failed the survivors of these Mother and Baby homes, but it is not as clear-cut as it appears on social media.

Here is what you need to know:

The Commission of Investigation into Mother and Baby Homes and Certain Related Matters was established in 2015 in response to claims alleging that up to 800 children were buried in unmarked graves at the Bon Secours Home in Tuam, Co Galway.

Subsequent investigations carried out between November 2016 and February 2017 made the harrowing discovery of human child remains.

The Commission, which is due to report its findings next week, was established to find out what happened in 14 similar homes and 4 county houses across the country in the period from the creation of the State in 1922 to 1998, when the last home closed.

The database which was created and digitised by the Commission contains valuable information that could help survivors of these homes to find their birth parents or reach some sort of closure. But the database also contains over 500 testimonies from survivors. These men and women who bravely chose to tell their stories were assured that they were doing so in confidence. If the seal were to be repealed, anonymity would need to be assured to those who wished to keep their experience inside these homes private.

It is this database that has caused such heated debate within the two Houses of the Oireachtas – the Seanad and The Dáil, and an outcry from those affected, the survivors.

The survivors, who have been denied justice and utterly failed by the state for decades, want access to these databases, and rightly so. Many can no longer wait 30 years to access information that is, in essence, theirs, because it contains information pertaining to their birth.

So, what is the problem?

Many survivors do not trust Tusla nor do they regard them as the appropriate body through which to access their information.

This was evidenced by the approximately 30,000 emails from survivors and concerned citizens which flooded TD’s inboxes before the vote imploring them to carefully consider the consequences of passing the Bill.

According to Dr Maeve O Rourke, lecturer in Human Rights at NUI Galway, and Co-Director of the Clann Project, Tusla is an inappropriate body to transfer the files to.

As reported in The Irish Examiner, Tusla has been “criticised repeatedly by the Collaborative Forum of Former Residents of Mother and Baby Homes, and adopted people more broadly, for operating questionable policies of ‘risk assessing’ all adopted people who apply for their personal data, and treating a person’s publicly registered birth name as ‘third-party data’ which cannot be released without consent”.

So, it seems that the Government has once again silenced the women of these homes. They have prevented them from telling their stories.  Yet another dark chapter has been written in the Mother and Baby Home scandal.

President Michael D. Higgins has signed the Mother and Baby Homes Bill into Law – an action which it turns out, is not as bad as it initially seemed.

By signing the Bill, the President implicitly chose not to refer the bill to the Supreme Court. If he had referred the Bill to the Supreme Court, then no other court would have had the power to question the validity of the Bill in the future. By not referring the Bill to the Supreme Court for consideration, the President has allowed citizens to challenge the Bill.

There is also a petition in circulation https://my.uplift.ie/petitions/repeal-the-seal-open-the-archive entitled Repeal The Seal, calling for the removal of the seal from the documents. As of 8 pm on the 26^th of October 2020 over 170,000 people had signed it.

Minister Roderic O Gorman has apologised for his communication failure over the Mother and Baby Homes Bill, stating that there were legal issues to overcome but “we need to fix this problem and I am absolutely committed” to doing this.

Yet is it not the case that justice delayed is essentially justice denied yet again for the mothers and babies who have waited so long to have their voices heard?