Is there a way out of the legal quagmire over mother and baby homes records?
Government has temporarily limited damage but will have to tackle a range of issues
The site of a mass grave for children who died in the Tuam mother and baby home, in Co Galway. Photograph: Niall Carson/PA Wire
After days of shipping body blows on the rights of victims to their mother and baby homes records, the Government has managed, at least temporarily, to limit the damage from the controversy.
However, the issues discussed during an extensive exchange at Cabinet on Wednesday show that the route out of this most complex political quagmire is far from clear.
Take, for example, the most immediately pressing issue: what rules will govern residents’ rights to access data about themselves contained in the Mother and Baby Homes Commission of Investigation archive? It has been temporarily defused after the Government accepted that access will be primarily determined by rights granted under the powerful European GDPR law. In doing so, the Government has made a rhetorical concession to campaigners who, it seems, always had the law on their side.
What remains unexplained is how, last week, the Department of Children was still arguing that GDPR rights were expressly prohibited by the Commissions of Investigation Act 2004. This position was seemingly supported by advice from the Attorney General’s office.
This was reiterated in the memorandum that went to Cabinet this week. Yet Attorney General Paul Gallagher’s latest advice, also delivered to that meeting, is that the 2004 act does not preclude the consideration of requests made by individuals for their personal data.
However, the AG’s advice is that requests must pass two tests relating to others’ privacy rights and the impact on future inquiries, so access will not be unfettered – but the apparent gulf in the legal advices given to Government just days apart is remarkable.
How these requests are handled when they come – and come they will – is a potential pitfall. If a request fails to pass the tests, how will the requestor react? How will the tests be applied?
What will be the role of the Data Protection Commissioner, whose intervention on the side of arguments made by campaigners proved so pivotal?
The issue of publication is also vexed. Many Ministers believe it should be published as soon as humanly possible. There is no political dividend, they say, in sitting on the report. However, officials passed on warnings to the Cabinet of the real risks that exist if matters are rushed, and mishandled.
Firstly, there is a risk of prejudicing criminal trials, which must be managed. Secondly, Ministers were warned that publication will lead to a range of demands – well-founded demands – from victims for redress schemes and State apologies.
These issues will demand attention from departments and agencies beyond Roderic O’Gorman’s purview, and failure to deliver on them quickly could lead to yet another public and damaging scrap with the former residents and their advocates.
The Cabinet was advised to develop a plan to keep campaigners informed and involved as these issues are addressed. Doing so effectively, however, will be key for the Government, given the troubles it has made for itself so far.
The issue of tracing services is another weak point for the State. An effective way of balancing adopted persons’ rights to information on their parentage against the privacy rights of parents who do not wish to be identified has never been developed.
Ministers discussed three options here: that the issue be put to a referendum; that it be kicked out to the Citizens’ Assembly; or that a piece of legislation be drafted that would require parents to indicate their desire not to be identified, with data release issues then decided on by a third party when they emerged. A simple, risk-free approach to this issue is not readily apparent.
There are other issues still, which go to the heart of the emotional rawness and very real pain that has powered this story. How can the remains of children found at Tuam and elsewhere be properly identified, returned to families, or left to lie, respectfully interred, where they are?
The completion and eventual publication of the commission’s report will, inevitably, be characterised by much pain and recrimination as the State, its citizens and, ultimately, the victims come to terms with what was done in the mother and baby homes.
If the Government is to chart a sober path through this, it must grapple with all the above issues, and more.