That Dáil Éireann: notes:
— the shocking revelation that all 550 recorded audio testimonies of survivors have been deleted by the Commission of Investigation into Mother and Baby Homes (the Commission) - the vast majority of survivor testimonies provided to the Commission;
— that many survivors have refuted the Commission’s claim that permission was sought from witnesses regarding the destruction of their testimonies, however, the Commission has not provided evidence that consent was granted by those survivors who contributed, furthermore, survivors claim they were not made aware that transcripts of their audio recordings would not be made;
— that without access to these testimonies, it removes the ability of survivors to refute various conclusions as set out in the Commission’s report;
— several witnesses have made complaints to the Data Protection Commission (DPC) pursuant to the European Union General Data Protection Regulation (GDPR) and the Data Protection Act 2018, and to An Garda Síochána; and
— unless legislation is amended, the term of the Commission is due to expire on the 28th of February, 2021;
— questions remain as to the legality surrounding the Commission’s destruction of testimonies, particularly under sections 31 and 43 of the Commissions of Investigation Act 2004, which requires the Commission to deposit with the Minister ‘all evidence received by and all documents created by or for the commission’ including ‘records of interviews’, and legality of such destruction under Articles 6 and 9 of the GDPR legislation;
— the Commission of Investigation has refused requests to attend the Oireachtas Committee on Children, Disability, Equality and Integration to answer questions from its members in relation to this matter;
— the Minister for Children, Equality, Disability, Integration and Youth has indicated the Government is currently seeking legal advice from the Attorney General in relation to the destruction of these audio recordings;
— it is understood that the DPC has raised concerns with the Commission and has asked it to provide the justification and legal basis for the deletion of the records;
— survivors need more time to seek answers to their questions and accountability over this action;
— extending the timeframe of the Commission by one year would give 550 survivors an opportunity to query why their voice recordings were destroyed by the Commission and what, if any, remains are salvageable; and
— other commissions of investigation have had their timeline extended, including the Commission to Inquire into Child Abuse which still exists as an entity; and
calls on the Government to:
— extend the term of the Commission for another 12 months to 28th February, 2022, in order to facilitate a review from the DPC and other relevant authorities’ investigations into the destruction of the recordings and allow for any potential salvage of remaining testimony;
— maintain the existing legislative requirement regarding the transfer of the remaining Commission archive to the Minister by the end of this month as planned; and
— carry out a full review of legislation regarding commissions of investigation, including their operation and oversight, their terms and conditions, scope and jurisdiction.
I will be sharing time with my colleagues.
They say that time can be a great healer but for survivors of mother and baby homes that has not been the case. Instead of healing, survivors have had to learn to live with the pain. They have learned to live alongside a concealed past - a vague, unimaginable distant life. When this State, many decades later, accepted the responsibility to uncover what lay hidden for many lifetimes it did not uncover the truth. Instead, it unearthed more pain, which survivors have been forced to live through again and again. That pain does not just come from reliving the past but from actions that are carried out in the present also.
The Commission of Investigation into Mother and Baby Homes was supposed to uncover the truth through the testimonies granted by 550 survivors, each setting out and reliving the details of his or her difficult past. Instead, the commission's report churned out a series of conclusions which were not only contested by many survivors but displayed an insensitive narrative of women calling into question the validity of women's and survivors' experiences.
I will read a few of the excerpts from those conclusions and the survivors' responses to them, as presented by Dr. Maeve O'Rourke. I do so in order that we can all remind ourselves of the power imbalance that still exists, which echoes from another time and is clearly reflected in the final report of the mother and baby homes commission, a document that was intended to be the outcome of a truth-seeking exercise. These excerpts also serve as a reminder of the importance of providing survivors with valuable time in their search for truth and justice. The executive summary of the report states that "the institutions under investigation provided a refuge". The survivor said:
I do not even know whether he was buried in a coffin... There was never even a kind or sympathetic [word] spoken to me.
In paragraph 11 of the executive summary it is stated: "There can be no doubt that legal adoption was a vastly better outcome than the alternatives previously available." A survivor stated:
One of the saddest things is the perception of adoption in the past as being the best solution for mother and child. It most certainly was not. I feel personally I have lost so much...I have information, I have photographs, but there is a disconnect, a distance that will forever be there. I missed out on meeting close and extended family members because of the so-called shame of illegitimacy.
Paragraph 27 of the final report recommendations states: "They were not 'incarcerated' in the strict meaning of the word but, in the earlier years at least, with some justification, they thought they were."
The survivor said:
We were locked in and there was absolutely no way of getting out. Daily life was so bad that I attempted to run away twice with two other girls but they always found us and brought us back. On the second occasion we were caught by the police, who returned us to the convent.
After attempting to gain access to their testimonies to counter the report's conclusions, survivors realised they had been misled again when the commission revealed it had destroyed 550 audio testimonies, which the commission believed and said had been done with the permission of the witnesses who had taken part. This is a statement heavily contested by survivors.
First, survivors' words were twisted to fit into the narrative of a report and then they were told their words had been erased. It did not even end there. In a strange twist of events over the past week, the Minister for Children, Equality, Disability, Integration and Youth revealed that backup files exist for the recordings. Late last night, at the eleventh hour, we found that the commission had notified the Department that it had retrieved all the backup tapes of audio recordings from the confidential committee and an information technology expert had identified, checked and ensured, through testing a random sample, that the material was accessible and audible. This is against a backdrop of media reports where the commission is quoted as saying the testimonies should be destroyed and this was morally and legally the right thing to do. Some commentators even stated the report has already been submitted by the commission and that should be the end of it.
The Social Democrats motion seeks to extend the commission of investigation by one year to allow survivors the opportunity to seek answers to their questions. The motion was driven by revelations that survivor testimonies had been deleted by the commission, as explicitly stated in the final report of the commission in October. This action was in direct contravention of the Commission of Investigation Act 2004, which states that all evidence received by and all documents created by and for the commission should be deposited with the Minister on dissolution of the commission. Survivors need time to have these actions fully investigated by data protection authorities. They also need answers. It appears these testimonies are available, despite everything that has been said and documented.
I welcome that these testimonies have been found and I acknowledge the efforts of the Minister and the Department to ensure they could be retrieved from the commission. The question now for everybody in the Chamber is whether an extension is still needed. The short and simple answer to the question is "Yes". We absolutely still need an extension.
The commission has confirmed that all files have been recovered and a sample of the 550 testimonies has been tested. We can consider that in October the commission wrote in the final report that all testimonies had been deleted, and this was reiterated to Ms Elaine O'Loughlin of the Irish Examiner when the commission confirmed to her that it had destroyed witness recordings and had not made any transcripts. We can consider that only last week the Minister stated the commission believed it was acting in good faith when it destroyed testimonies. We can consider that only two days ago the commission was quoted as saying "We are strongly of the view that [the recordings] should not be retrieved for legal and moral reasons". Are survivors now to take the leap of faith that every single testimony is available and intact, and there is no possibility that any survivor, when trying to access her own story, will be turned away empty-handed? What happens in a week's time if it is discovered that some elements of the testimonies are gone? Who will answer for that and be accountable? Will the Minister categorically guarantee today that each minute of the thousands of hours of testimony is safe and available to survivors?
The retrieval of this data is only one of the reasons the commission must remain in existence. Survivors have many questions about why they believe their testimonies are not accurately reflected in the final report. Without transcripts of their testimonies, it would be nearly impossible for them to prove this case. The retrieval of their testimonies now means they can clearly show any discrepancies and if the findings and recommendations of the report are in line with the evidence presented to the commission. This can be determined through the application of a judicial review, an exercise where every individual in Ireland can challenge the decision-making process of a public body.
As is so often the case, the story of the survivors' path is punctuated with bureaucratic deadlines. The next deadline in seeking justice is 11 April, three months after the publication of the final report, by which time any application for judicial review must be lodged.
My second question to the Minister is this: can he guarantee that access to a judicial review of the findings of the final report will be available to survivors in the event that the commission ceases to exist on 28 February next or will the dissolution of the commission shut down that opportunity for survivors? There has been quite a bit of toing and froing on this issue over the past week. I want to bring it back to the simple facts. Survivors should enjoy the same rights and access to justice as every other person in this State. The dissolution of this commission will mean that those rights will not be available to survivors. The extension of the life of the commission is a simple act. This has been done before by Government. It has been done before for the benefit of the Government and the commission. This time we are asking for it to be done for the benefit of the survivors. The extension of the life of the commission will not impact upon any of the other work that is happening in respect of survivors and the redress scheme. That work will not be delayed. It will be completely separate and will be another opportunity for survivors to get answers if they so wish.
The power is with the Government. The survivors have done what they can. They have disputed the findings of the report, made reports to the Gardaí and to the DPC and campaigned to be heard. We have done what we can. The Social Democrats introduced a Bill seeking to extend the life of the commission but it was not passed. We have written to the DPC and we are presenting this motion to extend the life of the commission by one year. The Government has the power to use time, not as a weapon but as an instrument of reparation. It can be used as an act of apology, an acknowledgement and a confession of the State's role in these women's lives and the lives that were lost to history. This extension is still needed and time is running out.