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McGarr Solicitors named in Ireland’s Best Law Firms 2022

Everyone likes to have their work recognised, but there is a particular satisfaction which comes from having your expertise recognised by your peers and colleagues.

So it was a great honour to find that McGarr Solicitors had been listed as one of the top 75 Law Firms in Ireland by Statista, in conjunction with the Sunday Independent.

It was particularly welcome that we were recognised for both our medical negligence work and our data protection expertise.

Internationally, Statista has partnered with other leading newspapers to produce lists of the best law firms in different countries, such as The Globe and Mail (Canada), The Straits Times (Singapore) andThe Times of London. This is the first year they have brought their methodology to bear on the Irish legal market.

Sample letter in response to Dept of Children refusal to provide Health Data in response to Mother and Baby Home survivor Data Subject Access Request

Dear Sirs,

I write further to your letter of the [insert date of reply to SAR letter].

I note that, in response to a Data Subject Access Request made under Article 15 of the GDPR, the Department has acknowledged it holds a number of records relating to my health but has refused to provide them to me.

Your letter, referred to above, cites SI 82/1989 as the basis for this refusal. You state;

These 1989 Regulations mean that the Department is required to consult with “the appropriate health practitioner” before supplying health data to you. The purpose of this is to ensure that a medical practitioner provides an expert opinion on whether or not releasing the health data would be likely to cause serious harm to the physical or mental health of the data subject.

The Department is not entitled to release health data without first consulting with the appropriate medical practitioner.

I write to inform you that the Minister and the Department have misadvised themselves as to the applicable law. You do not cite which regulation the Minister relies upon in making the above refusal to supply data. However, the wording cited partially echoes that of Regulation 5 SI 82/1989.

This Regulation 5 reads;

A data controller who is not a health professional shall not—

( a ) supply information constituting health data in response to a request under the said section 4 (1) (a), or

( b ) withhold any such information on the grounds specified in Regulation 4 (1) of these Regulations, unless he has first consulted the person who appears to him to be the appropriate health professional.

This regulation was amended by Section 68(2)(b)(iii)(III) of Data Protection Act 2018 by ;

the substitution, in paragraph (1)(a), of “a request under the said Article 15 of the Data Protection Regulation” for “a request under the said section 4(1)(a)”,

This Regulation contains no provision in relation to the necessity or proportionality of this interference with to the right of access conferred under EU Law (Art 15 GDPR) and derived from the EU Charter of Fundamental Rights. In addition, it represents a restriction of the essence of the right of access under the Charter.

Regulation 5 of SI 82/1989 is incompatible with EU law, on its face.

Article 8.2 of the EU Charter of Fundamental Rights states:


Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.

Article 15.1 of the General Data Protection Regulation states;


The data subject shall have the right to obtain from the controller confirmation as to whether or not personal data concerning him or her are being processed, and, where that is the case, access to the personal data

Article 15.3 of the General Data Protection Regulation states

The controller shall provide a copy of the personal data undergoing processing.

The European Data Protection Board, in their Guidelines 10/2020 on restrictions to Article 15 rights amongst other rights have stated, at paragraph 38:

Restrictions are only lawful when they are a necessary and proportionate measure in a democratic society, as stated in Article 23(1) GDPR. This means that restrictions need to pass a necessity and proportionality test in order to be compliant with the GDPR

The Court of Justice of the European Union, in case C-73/07, Tietosuojavaltuutettu v. Satakunnan Markkinaprssi Oy and Satamedia Oy, ECLI:EU:C:2008:727, paragraph 56 has stated;

derogations and limitations in relation to the protection of personal data (…) must apply only insofar as is strictly necessary

The CJEU has also confirmed (in Case La Quadrature du net and others joined cases C-511/18, C-512/18 and C-520/18, ECLI:EU:C:2020:791, paragraph 210) that even if there is an objective test in the legislation which demonstrates the necessity of a restriction to a legal right, there is also a requirement for the legislative restriction to address the question of proportionality;

In particular, as is the case for Article 15(1) of Directive 2002/58, the power conferred on Member States by Article 23(1) of Regulation 2016/679 may be exercised only in accordance with the requirement of proportionality, according to which derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary (see, by analogy, with regard to Directive 95/46, judgment of 7 November 2013, IPI, C‑473/12, EU:C:2013:715, paragraph 39 and the case-law cited).

The European Data Protection Board’s Guidelines 10/2020 summarises the requirements for a legislative restriction to Article 15 rights to be compatible with Article 23 GDPR and CJEU caselaw.

A proposed restriction measure should be supported by evidence describing the problem to be addressed by that measure, how it will be addressed by it, and why existing or less intrusive measures cannot sufficiently address it. There is also a requirement to demonstrate how any proposed interference or restriction genuinely meet objectives of general interest of the State and EU or the need to protect the rights and freedoms of others. The restriction of data protection rights will need to focus on specific risks.

Furthermore, at Paragraph 14 of those same Guidelines the EDPB confirms that


a general limitation of the rights mentioned in Article 23 GDPR of all data subjects for specific data processing operations or with regard to specific controllers would not respect the essence of the fundamental right to the protection of personal data, as enshrined in the Charter.

If the essence of the right is compromised, the restriction shall be considered unlawful, without the need to further assess whether it serves an objective of general interest or satisfies the necessity and proportionality criteria.

Regulation 5 of SI 82/1989 represents a restriction to the essence of the right of access as described above. In addition, in restricting the right of access it doesn’t address the question of necessity or proportionality at all, nor does it meet the above test which could allow one to be lawfully implied.

Where a state body encounters a disagreement between a national law and an EU law, it is the duty of the state body to directly disapply the national law.

The CJEU has addressed this longstanding duty of all organs of the State in Case C‑378/17 Minister for Justice and Equality, Commissioner of An Garda Síochána v Workplace Relations Commission, Paragraph 38;

As the Court has repeatedly held, that duty to disapply national legislation that is contrary to EU law is owed not only by national courts, but also by all organs of the State — including administrative authorities — called upon, within the exercise of their respective powers, to apply EU law (see, to that effect, judgments of 22 June 1989, Costanzo, 103/88, EU:C:1989:256, paragraph 31; of 9 September 2003, CIF, C‑198/01, EU:C:2003:430, paragraph 49; of 12 January 2010, Petersen, C‑341/08, EU:C:2010:4, paragraph 80; and of 14 September 2017, The Trustees of the BT Pension Scheme, C‑628/15, EU:C:2017:687, paragraph 54).

Paragraph 50 of the same judgement sets out the nature and basis of that duty.

It follows from the principle of primacy of EU law, as interpreted by the Court in the case-law referred to in paragraphs 35 to 38 of the present judgment, that bodies called upon, within the exercise of their respective powers, to apply EU law are obliged to adopt all the measures necessary to ensure that EU law is fully effective, disapplying if need be any national provisions or national case-law that are contrary to EU law. This means that those bodies, in order to ensure that EU law is fully effective, must neither request nor await the prior setting aside of such a provision or such case-law by legislative or other constitutional means.

As shown above, contrary to the statement in your letter of the [Insert date of letter] that “The Department is not entitled to release health data without first consulting with the appropriate medical practitioner”, the opposite is the case.

Under EU and national law the Department and the Minister as the data controller of my data is obliged to directly disapply the restriction to my right to access as unlawful and to provide me with my sensitive personal health data directly.

We are sending a complimentary copy of this letter to the Department’s DPO for his information also.

Please note that in the event that I have not received my data- which has been unlawfully withheld- within 5 working days of the date of this letter I intend to formally lodge a complaint with the Data Protection Commission and, if needs be, to issue proceedings directly against the Minister without further notice to you. This correspondence and the earlier exchange between me and your office will be brought to the attention of the Court in the application for my costs.

Yours faithfully,

_______________

[your name]

Cc: Data Protection Officer, Department of Children, Equality, Disability, Integration and Youth

How to Read the McAleese Report into the Magdalen Laundries

Preface

The McAleese Report was published on 5th February 2013. It had been commissioned following a complaint to the United Nations Committee Against Torture (UNCAT) resulted in the then Secretary General of the Department of Foreign Affairs, Sean Alymard, attending in Switzerland in May 2011 to address specific claims of state involvement in an organised system of forced labour and mistreatment. 

The Irish State’s representative specifically denied the facts as they had been presented by the Justice for Magdalen’s research group. Having considered that response the UNCAT made a specific recommendation in relation to the Magdalen Laundries.

21. The Committee is gravely concerned at the failure by the State party to protect girls and women who were involuntarily confined between 1922 and 1996 in the Magdalene Laundries, by failing to regulate their operations and inspect them, where it is alleged that physical, emotional abuses and other ill-treatment were committed amounting to breaches of the Convention. The Committee is also expresses grave concern at the failure by the State party to institute prompt, independent and thorough investigation into the allegations of ill-treatment perpetrated on girls and women in the Magdalene Laundries.  (articles 2, 12, 13, 14 and 16)

In response to this, the government established a cross-departmental committee of serving civil servants and appointed then Senator Martin McAleese as its chair. 

The Committee recommends that the State party should institute prompt, independent, and thorough investigations into all allegations of torture, and other cruel, inhuman or degrading treatment or punishment that were allegedly committed in the Magdalene Laundries, and, in appropriate cases, prosecute and punish the perpetrators with penalties commensurate with the gravity of the offences committed, and ensure that all victims obtain redress and have an enforceable right to compensation including the means for as full rehabilitation as possible.

United Nations Committee Against Torture (UNCAT)

I had not been following these events. So on the day of the McAleese report’s publication, I started to read it. I realised I might be able to do something of use to somebody if I were to write up my notes on each chapter. By 3am, I had published notes on the first 14 chapters on the website of the law firm where I work. When working in litigation, it is not unusual for a brief or file to expand by a case’s hearing date to number thousands of pages spread across numerous boxes. 

For this reason, lawyers tend to be good a extracting meaning from a mass of paper at speed. As the issue seemed to be important and there was something I could do, even something small like creating a digest, I thought I should offer this guide.

The McAleese Report into the Magdelane Laundries is over 1000 pages long. The important thing for the would-be reader to realise is that not all words are of equal importance. Where I have had to choose between brevity and comprehensiveness, I have always picked concision. My aim is to let the reader know where the things they might be interested in are located, not to reproduce the entire report. Here, then, is a kind of  guided tour on how to read the McAleese Report.

1) Read the Executive Summary. 

This will be where the most work went in. It is always important, not usually to tell you what is in the report (because that is not what you are expected to read) but rather to tell you what the author wishes you to believe is in the report.

The McAleese Report comes, effectively, with two Executive Summaries. One is called an Introduction, is described as being written by Martin McAleese and runs for eleven pages of disingenuous waffle. The other, called an Executive Summary, follows directly on, was probably written by Nuala Ní Mhuircheartaigh and is sixteen pages of collated statistics, descriptions of methodology and is a display intended to reassure the reader that the report comes laden with all the authority of scholarship.

In fact the Executive Summary is a shameful farrago of guesses, elisions and wilful ignorance. It proposes the most unlikely of explanations for the most serious of issues. On the lack of death certificates for women and the total failure to ever report any women’s death to a Coroners it says 

“It is not possible to state definitively whether the deaths for which certificates were not found were unregistered; or whether registration occurred under a variation of the woman’s name or at her former home-place rather than the district in which the Laundry was located.”

 In contrast with the Committee’s willingness to build castles of excuses out of thin air, the Executive Summary ends with the following assessment of the first hand evidence- presented in oral submission and by way of 800 pages of written submission made by the Justice for Magdalens group-  of the women who witnessed and experienced these institutions

“Although identifying common patterns in these stories, the Committee did not make specific findings on this issue, in light of the small sample of women available.”

Stories.

2) Who Wrote it?

The Committee are named (Martin McAleese, Eight Civil Servants and Nuala Ní Mhuircheartaigh, a civil servant who acted as the report’s “analyst and drafter”)  and then the report has five pages of acknowledgements. Bishops, Archbishops, Accountants, Doctors, Historians and Academics, Agencies of the State and named Civil Servants are namechecked. Advocacy and Representative Groups administrators are thanked by name. Finally, just before the bottom of page 5 we get the last line of the acknowledgements. 

“And finally a special thanks to all the women who shared the story of their time in the Magdalen Laundries with the Committee.”

There you are. The specific women who gave first hand evidence to the Committee get an ‘And finally’ as well as a ‘Special Thanks’. You might almost have forgotten their experiences were the the whole point of the report after the preceding five page parade of Office Holders, Clerics and Professionals.

3) Chapter 1: Terminology

You can scan this whole chapter in a few seconds. It has no bearing on the meaning of the report. It ought to be an Appendix. It is a justification of the authors choice of terms.

4) Chapter 2: Establishment, Membership and Mandate of the Committee

This should be Chapter 1. 

Some relevant nuggets buried in the guff here: 

A) The Committee concedes it went outside its brief to present the argument made by the Religious Orders as to the profit the laundries did (or, it is claimed, did not) make. It says it did so because it was in the public interest. It does not explain how it came to this assessment of the public interest.

B) The Committee decided its brief did not allow it to decide who was liable for anything. It decided this also meant treating the first hand evidence of the women who had been in the Magdelane institutions as merely “input to the process.”

The only member of the Committee to meet with any women who worked in the Magdelane institutions was Martin McAleese. Paragraph 31 assures the reader he ‘engaged broadly’ with them.

However, as we saw in the Executive Summary, the Committee – that is to say Martin McAleese, who was the only member who met the women whose experiences were the subject of the entire report- declined to state that what they said was true.

Chapter 3: History of the Magdalan Laundries

Skip, unless you are writing a history essay. This is a temptation which afflicts anyone who does research- to just publish all your notes.

Chapter 4: Working Methods, procedures and data protection

Another chapter which ought to have been an Appendix. Relevant nugget: The Committee decided that no woman, living or dead, who had ever entered a Magdelan institution would be given a name in their report. This is explained as being due to ‘broader principles of privacy and confidentiality’. 

Apparently, the fact that many women had spoken of having their identity taken from them as being one of the forms of abuse they suffered did not trouble the Committee in its decision.

Chapter 5: Relevant Legislation

This appears to be another Appendix-worthy Chapter. But from the point of view of the state (in whose direct employ all but one of the Committee were) this is a vital basis for the assertion to the United Nations Committee Against Torture that all the actions against the Magdalen women were lawful. 

Exculpatory nugget : 

     “It is possible that a lack of modern awareness of these Acts may have contributed to confusion or a mistaken sense that the Magdalen Laundries were unregulated or that State referrals of girls and women to the Laundries occurred in all cases without any legal basis.”

The rest of the report, of course, provides ample evidence that both these modern ‘confusions’ are in fact (as opposed to on paper) accurate in many cases. In rhetoric, this is known as the strawman argument- deny with vigor something which nobody proposed was true.

Chapter 6: Archive of the Committee’s Work

If this were Lord of the Rings, this Appendix would be the one that listed all the ancestors of all the minor characters. Here, the Committee were so taken with their own doings that we are treated to  a full chapter retelling them. 

Chapter 7: Sources and Methodology for Statistical Analysis

Core quotes: 

  “The Committee was wholly satisfied as to the authenticity and reliability of the Registers and accompanying electronic records of the Religious Congregations.’

 But, at the same time

“The Committee was conscious that there are some gaps in available information, which means that the merged list does not represent all admissions to the Magdalen Laundries.”

Or: The statistics are based on such incomplete and flawed data that they are essentially meaningless.

Chapter 8: Findings of Statistical Analysis

This should have been Chapter 2. 

The statistical analysis is acknowledged to be based on incomplete data. The statistics relating to deaths in the Magdalen Laundries are kept apart, in Chapter 16. The Committee finds that “the total available field of information consisted of 11,198 cases” but acknowledges that “the merged database does not include details of entries to the Magdalen Laundries prior to 1922, or entries to the Magdalen Laundries in Dun Laoghaire (for which no Register survives) or Galway (where only partial records survive).”

So the nicely citable hard figure of 11,198 is, in fact, not a complete figure at all. 

Nevertheless, this is the first meaningful chapter in the Report. It is worth reading it in full. 

Also worth noting: “the Legion of Mary and NSPCC are presented separately (as neither State nor non-State)”  The report couldn’t decide whether the Legion of Mary and the NSPCC were part of the state or not, they were both bound so tightly into the state system.

It goes unremarked upon, but there was a very significant surge in the State sending women to the Magdalen Laundries in the 1960s. 

This coincided with the Courts remanding more women to Magdelan Laundries in the 1960s than in any other decade.

Chapter 9: Routes of Entry to the Magdalen Laundries (A) Criminal Justice System

A revolting litany of oppression, abuse of power and arbitrary behaviour. The McAleese Report consistently seeks to explain away or excuse this behaviour. When no other excuse can be found, or imagined, the authors fall back upon the excuse that the past is very different to now. 

Of course, some of the report’s work has been done for it. Institutions have been contacted and invited to explain away their behaviour. These explanations are presented, unchallenged, no matter how flimsy they are. 

An example of the approach can be seen with the section dealing with the Gardaí. Gardaí would arrest women who had escaped from the Magdalen institutions and return them to their places of imprisonment. There was even a standing order in the Garda handbook to do so:

“persons in institution uniform – if persons are noticed to be wandering about in the uniform of institutions, e.g. workhouse inmates they should be questioned and if they cannot give a satisfactory account of themselves they should be arrested”.

Asked now to justify this instruction- and their members’ implementation of it over the decades- by citing the legal basis for this action the Garda Report to the McAleese Committee came up with this:

[It]“may refer to the power of arrest at common law for the larceny of the uniform. This was a regular incident that Gardaí had to deal with and indeed some Garda records show that people have received convictions for ‘larceny of apparel’.

This excuse is being presented today, by the modern Irish police force. The present day Garda Síochana are arguing that the women were being lawfully arrested for stealing the clothes on their back. This is presented as fact without comment or criticism in the Report. 

Later in the same chapter, the well-known photograph of the women from Sean McDermott Street Laundry being marched under police guard is explained away after the priest pictured and a Garda shown in the photograph are contacted by the Committee to explain that the police just happened to be marching in the same May parade “in veneration of Our Lady and for no other reason” at the same time.

At least they didn’t claim to be guarding the women’s clothes against theft.

There is no reference to any attempt by the Report’s authors to find any of the women pictured and ask them their view of whether they were under police surveillance. 

Chapter 10: Routes of Entry to the Magdalen Laundries (B) Industrial and Reformatory Schools

It takes a strong stomach to plough through this ugliness. Even presented through the McAleese Report’s insistently bueracratic glass, we cannot help but see the Irish state’s gulag archipelago, built to incarcerate children.

The report has unearthed a mountain of raw material. It is presented here in a mostly undigested form. Lists of case studies, a tour of legislation and a presentation of statistics based on what, in paragraph 297 of the chapter, the Report acknowledges are incomplete records. 

No reading of this Chapter can be complete without also making reference to the Ryan Report on Abuse in these institutions. Or so a reader might expect. In fact, apart from passing mentions of the Ryan report’s definition of an Industrial School and the finding that the file record was incomplete, the Ryan Report is completely ignored during this chapter. 

Reducing one of the most potent investigations into State misconduct to a mere source of technical definition is almost inexplicable. Unless, of course, the McAleese Committee found the contrast with their own approach of excuses and elision of State failure impossible to reconcile. 

A studious effort to distinguish the institutional culture of abuse in the Ryan report from the claims of the institutional abuse in the Magdalen Laundries can be found buried away in Chapter 19, on page 989. 

Chapter 11: Routes of Entry to the Magdalen Laundries ( C) Health Authorities and Social Services

This chapter tells the story of how all the organs of the state created to care for the weakest people in society enthusiastically embraced the opportunity to vanish their charges into the nun’s laundries. 

If you want to find any glimpses of reality when reading the report, you have to read this chapter. Of course, as we’re blandly told, 

“Difficulties in securing access to specific case-files on the State side in the health and social services sector mean that it was not always possible to determine what State follow-up, if any, occurred in relation to girls and women referred from these categories.”

I think the sub-clause ‘if any’ is the heaviest pair of words in this entire repost.

Chapter 12: The Factories Acts and Regulation of the Workplace

This chapter aims to demonstrate that the Laundries were under the watchful and careful eye of the State’s designated inspectorate of workplaces. 

It contains 150 paragraphs of evidence from the Department of Industry, the religious Orders, retired Inspectors and, in one case, the Manager of one of the Laundries. 

 The totality of the account of the first-hand evidence from the women Martin McAleese met is contained in paragraph 152.

“152.      A number of these women recalled the inspections of the Factories Inspectors. Two women (both represented by Magdalene Survivors Together) referred to these Inspectors as “the suits” and both gave accounts of the process for inspections. They said that in some cases, this included all work in the laundry ceasing, with the women lining up outside the factory area while the Inspectors carried out their duties. 

It is unfortunate that Martin McAleese chose not to include anything more of the women’s accounts in this report. According to the Justice for the Magdalen’s group, over 800 pages of first hand evidence was provided from those women. 

As to the tone of the rest of the conclave of officialdom, perhaps the best example comes from the Manager of a Limerick Laundry. He is pleased to recall (and the Report is happy to publish) of his establishment 

“walking into the laundry with its expensive non slip vinyl floor covering, standards of cleanliness like those found in a hospital and all the other changes, made it for me, a state of the art industrial place of work.”

Laundry Manager

And that, though he knew of three bad industrial accidents in the Laundry;

“The one in which the lady lost her forearm in the callender (large roller iron), I am reliably told by a Resident, was completely her own fault”

Which, as we know, makes it all right.

Chapter 13: Financial (A) State Funding and Financial Assistance

A long chapter setting out evidence that the state, through both local agencies and councils and the central government, paid the Religious Orders money for some (at least) of the women incarcerated in the Laundries.

It should be noted that incarcerated is my word. The Report uses the term referred. As in  

“Funding included Capitation under the Public Assistance Acts for certain individual women 
referred to Magdalen Laundries by public authorities;”

Also, the state’s records and the records from the religious orders didn’t tally up. The report deals with any discrepancy by simply presenting both sets of figures separately.

“In respect of individual instances of funding identified in the records of the Religious Congregations (and particularly early funding), it was not always possible to determine on what basis funding was provided and for that reason, the findings of those searches are presented separately in this Chapter.”

Buried in amongst these figures there is a chilling exchange in 1954 between Mr. C. Cannon, the Monaghan County Manager and the Department of  Health. 

The County Manager wants approval to pay the nuns for keeping the women it intends to send to the Laundry in Drumcondra. The Department wants to know what kind of women the County Manager has in mind. 

“the type of patient that this Health Authority has in mind as being suitable for admission to High Park Convent, Drumcondra, is an unmarried lady who has given birth to two or more children and whose moral rehabilitation would prevent her becoming a health and social problem”

So, not actually a patient at all. Just a woman the County Manager didn’t want in his county. And the reply?

“We can have no objection to the admission of an unmarried mother to the High Park Convent. The payment rate by Monaghan Co. Council is actually only a ‘token’ payment”.

Monaghan County Manager

Again, I would think incarceration a more accurate description than admission.  

Also included is a strange exchange where the Department of Health offers to pay the Sean McDermott Street Laundry for the deficit they said existed between the cost of housing the women and the profit of their laundry. All that had to be done was to have the size of the deficit confirmed. 

Strangely, this offer seems not to have been taken up. The Department records that “it appears from your minute it is difficult to isolate an appropriate figure.[1]

In other words, when offered free money if they could just substantiate their claims to be run at a loss, the Sean McDermott Street Laundry declined to do so. A fact worth bearing in mind when reading the religious orders financial account of themselves in Chapter 20.

Chapter 14: Financial (B) State Contracts for Laundry Services

If you’re a fan of Requests for Tender dating back to the 1920s, this is the Chapter for you. Otherwise there are probably two pertinent facts to take from this chapter

Firstly, the state was happy to receive low bids from Magadalen Laundries because it saved them money. If those bids were lower than commercial laundries because of forced unpaid labour, the State did not care. In fact- as an exchange between a commercial laundry provider and the Department of Defence shows- they were well aware that financial convenience was trumping the stated government policy. 

When a commercial laundry lost out to a Magdalen Laundry and made enquiries about that institution’s “fair wages” policy there was an internal exchange between officials discussing how to avoid acknowledging the validity of complaint.

The second major point is that when the Magdalen Laundries were offering substantially lower tenders for to obtain State contracts- including cleaning the uniforms of the army and the police- the State was very happy not to do anything to interrupt its access to this cut price work. 

Furthermore, the records published in Chapter 14 show that the State bodies using these Laundries  knew why they were being offered such low rates- it was because the work was being done by women who were working without pay. With the major cost of labour removed from the equation, the religious laundries were able to offer unbeatable tender prices. 

The Government Contracts Committee, as early as 1927, was asked to advise on how these kinds of contracts could be awarded to Magdalen Laundries when State contracts were only meant to be awarded to companies who were paying their labourers “fair wages”. Their reply deliberately avoided answering the question.

“2064. Laundry contracts – application of fair wages clause
The Secretary stated that he had been asked by the Department of Education as to whether, in view of the fact that their prices were considerably lower than those quoted by ordinary commercial firms, the Fair Wages Clause affected Contracts for laundry work placed with convents. He was instructed to inform the Department of Education that there was no objection to the placing of these contracts with convents provided the lowest tender was accepted in each case”.

That Committee would also be repeatedly asked to explain how forced, unpaid labour could be squared with a pledge to protect the ‘fair wages’ of workers labouring for the State. 

As the decades passed, they would successfully avoid giving their answer.

The McAleese Report goes to the trouble of defending these historical State Officials who consciously took advantage of the unpaid labour the women represented to obtain those ‘considerably lower’ prices. Paragraph 186 explains that the Department of Defence, by 1954, had come up with a justification for their exploitation- the women weren’t being paid, but they were getting a fair wage in the form of room and board. 

The Report’s authors then go on to comment: 

  1. … On the basis of the records set out above, this did not extend, however, to favouring such laundries with award of contracts, which occurred only on the basis of lowest tender received. 

This defence ignores the fact that, as we have seen, those low prices from the Magdalen Laundries were possible only because they were being exempted from the ‘fair wage’ clause which fell on all the other tenders.

In 1984, an external consultant’s report for the Health Services on the provision of Laundry services expressed doubts about the financial security of the Magdalen Laundries on the basis that “the Magdalen Laundries were unlikely to be successful in any future tendering process for linen services as the prices they charged, while competitive, were too low to be realistic or sustainable.”

Unlike the unnamed consultant, the State knew precisely how it had access to those unrealistically low prices and for how many decades they had been sustained on the backs of women’s unpaid, forced labour.

Chapter 14 (  C) Defence forces use of the laundry services provided by the Magdalen Laundries

This section sees considerable repetition from Chapter 14(B).  Again, we have a numbing archive trawl uncovering actual evidence of the Defence Forces’ use of the labour of women incarcerated in the Magdalen Laundries. In response to previous Parliamentary Questions on this topic, all the material produced and put on the Dáil record was of failed tenders by Magdalen Laundries for work. So, from that starting point of flat denial of the record, this chapter is an improvement. 

Also notable is the bland way in which we are told that, despite what the committee blandly assures us they were assured was an extensive search in the Department of Defence, the Military Archives and the National Archives, the most significant document discovered to have existed couldn’t be located. This was a policy document produced to guide the state agencies on how to approach these kinds of Defence Forces Contracts. It is only known about because it was referred to in one of the other files produced to the report’s compilers. 

Again we meet the issue of how the Department of Defence could justify using the women’s labour when they were meant to have a fair wages clause in all their contracts. And again, we find the Department avoiding the issue because they don’t want to lose access to the low laundry prices the Laundries offered. At a Department of Defence 

  • “The Fair Wages Clause of the contract was discussed as it applies to the Convent Laundries. It was agreed that as part of their wages / upkeep was supplied from Public Funds the essence of the clause was complied with in these circumstances” 
  • Even the report’s compilers notice that this is a completely separate and distinct justification for the state’s actions from the one produced earlier in Chaper 14.
  • “186. there is no attempt to reconcile this with the previous position of the Department (i.e. that the cost of keep and so on of the women working in the Magdalen Laundry would amount to the equivalent of a fair wage).”

There is similarly no attempt by the report’s compilers to reflect what this might mean for the sincerity of either excuse.

Chapter 14 (D) Use by the health authorities of the laundry services provided by Magdalen Laundries.

Hospitals need a lot of linen washed. Hospitals in Ireland have traditionally been linked to religious orders. As late as 1984, hospitals were being recommended (via a consultant’s report by Craig Gardener) to use the services of the religious- run Magdalen Laundries as they were considered to have very little risk of industrial relations issues.

This was the key point in favour the Magdalen Laundries as service providers to the health services which the consultant’s report noted in 1984; unlike commercially run laundries, they were considered to have a very low chance of industrial relations disruption ie, forced labourers rarely strike.

The only worry the consultant had about using the Magdalen Laundries was that their prices in tendering processes were so low as to appear to be unsustainable. 

Of course, it is possible to offer very low prices and remain financially viable if you don’t have to pay your forced labourers.

Key quote from this chapter comes from the HSE, who make an uncharacteristically plain statement of affairs: 

  1. “The Craig Gardner report confirms that there was a very strong business relationship between the Magdalen laundries and the State health authorities, in Dublin, at any rate”. 

The McAleese report compilers seem not to have felt any requirement to go beyond this 1980’s snapshot of relationships in Dublin to do any more examination of the wider relationship between health authorities and the Magdalen Laundries.

Chapter 14 (E) Notebook submitted by Magdalen Survivors Together, relating to High Park

A rare acknowledgement of information provided by representatives of the women detained in the Magdalen Laundries, this subsection confirms that, in 1980-81 the Laundry was receiving business from 11 emanations of the Irish State. None of this information is acknowledged in Chapter 14, subsection (A), leaving the reader to decide which of the contradictory narratives of state support to believe.

Chapter 14 (F) Other Miscellaneous Information Regarding Laundry Services

This should really be headed: Things told to us by Mr. Kennedy, a former manager- and eventually owner- of a Magdalen Laundry. 

He again stresses how cheaply the Magdalen Laundries could tender for state business compared to commercial operations. He doesn’t reflect on how the Laundries might have managed to undercut institutions that had to pay their workers. Neither does the report. 

Chapter 15: Financial (C ): Taxation, Commercial Rates and Social Insurance

A chapter which again reflects the compilers’ impulse to just publish all their notes, whether they might be relevant or not. So the reader is treated to a history of the law governing charitable tax relief since 1634- presumably supplied to the McAleese Committee by the Revenue Commissioners.

Feel free, if this doesn’t seem like your sort of thing, to jump to paragraph 34 of this chapter. But the meat of this chapter is to be found in paragraph 37 when we encounter the following 

“Chapter 20 of this Report considers, on the basis of the Congregation’s financial accounts, the financial viability of the Magdalen Laundries. The analysis contained in that Chapter challenges the perception that the Magdalen Laundries were highly profitable. “

This assertion is one of the most vital to the McAleese Committee. They explicitly go outside their remit to present the argument for the religious orders in Chapter 20 of marginal profitability. Their source for this “analysis” is solely a report drawn up at the expense of the Orders themselves, based on records they selected.

In this chapter, they tie themselves in linguistic knots to obscure the fact that all the profits which were the result of unpaid labour were deemed tax exempt, while any work done by paid workers for the same orders were not. 

There then follows a discussion of the commercial rates status of various Magdalen Laundries. Short version: It varied depending on who was in charge of the local authority. The best example was when the Laundry in the Good Shepard Convent in Waterford was commercially rated, a decision upheld first by the Circuit and then High Court in 1930.

However, by 1954- and a change of local administration- the County Manager simply issued a Manager’s Order writing off the rates.

Finally, buried under the unexciting sub-heading “Social Insurance” comes the report’s primary engagement with the question of whether the women in the Magdalen Laundries were forced to work without pay, and the level of connivance or knowledge by the State of that fact.

As usual, the report’s compilers come at this vital issue obliquely, by setting themselves the task of po-facedly considering whether the women in the Magdalen Laundry  were actually engaged in insurable employment.

Unsurprisingly, the answer is mostly, yes. Where they weren’t, or mightn’t have been, it was because insurable employment was defined by reference to pay thresholds, and the women didn’t meet them- as they weren’t paid for their labour.

A record was produced showing that in the Department of Social Welfare a decision was issued stating that a woman working in a Magdalen Laundry was not engaged in insurable employment.

The file detailing the basis of that decision, if there was one, has been destroyed. Without any basis in fact, the report then proceeds to contort itself into generating a contrived legal basis for that decision and putting it to the Department, who- unsurprisingly- accept that excuse rather than admit that it had made an unlawful decision which deprived a Magdalen Laundry inmate of her rights.[2]

In one of the most frustrating statements of the entire report, consideration of this matter ends with the blithe assertion 

“      after 1979, it is likely that the women working in the Magdalen Laundries did not qualify as being in insurable employment, as they would not have been in receipt of payment of greater than the threshold amount of £6 per week.[3] “

The question of whether it was lawful for them to be worked without pay and whether- if it was not- they are owed the benefit of the Social Insurance they were deprived of is simply not addressed. 

The chapter ends with a few pages of noodling over the fact that the Department of Labour had accepted that some women were in employment in the Laundries for the purposes of paying redundancy rebates to their employers (who had bought the Laundries as going concerns). 

The authors explain this inconvenient fact away this by asserting that the (completely non-existent) Social Welfare file was a superior examination of the insurance status of the Magdalen women than the Department of Labour’s processes.

How they divine this is left to the reader to imagine.

Chapter 16: Death Registration, Burial and Exhumation

This chapter is one of the most critical in the entire report and the subjects it deals with are some of the most serious in assessing the State’s failures in relation to the women incarcerated in Magdalen Laundries across the decades. 

In 1993, the Order of Our Lady of Charity sold 12 acres of land, including the High Park Laundry and surrounding property. As part of preparing the lands for redevelopment an exhumation was carried out on a burial ground there, used for women who had died in the Magdalen Laundry.

When the exhumation was completed, the remains of 22 unidentified women women had been discovered. 

“The Committee undertook to examine whether the deaths which occurred during the lifetime of the Magdalen Laundries had been registered”.[4]

The committee then proceeds to studiously impose limits on the data it would use in that examination, with the result (if not the intention) of minimising the chances of finding something untoward.

“The Committee first compiled a list of all the women who died in Magdalen Laundries from 1922 onwards until their closure. There were two main sources for this exercise:

– the Entry Registers maintained by the Religious Congregations, which were in some but not all cases updated on death of a woman; and

– records drawn from graveyards, including both the private graveyards which were attached to some Magdalen Laundries and public graveyards in which some Congregations maintained plots[5]

In other words, the Committee ensured that all the asserted facts on deaths were was based on the premise that the records kept by the religious orders and associated graveyards contained the full picture. If there are no questions to be asked, there’s no fear of finding unwanted answers. 

“These searches were not straightforward, due to the multiple variations of names by which women could be registered, as well as the place in which deaths could be registered”

Feel free to read the rest of the chapter if you are looking for 118 paragraphs of discussion of the rules that say you need to report and register deaths. But, if you were looking for explanations, look elsewhere. The chapter studiously ignores the screaming questions the facts addressed pose. As a result it doesn’t give any answers, other than the official excuses which- taken together- the State and the Religious orders hope avoid any admission of any wrongdoing. 

As to how the 155 women who were exhumed died, the religious orders cremated all the remains before they were reinterred in Glasnevin Cemetery so no forensic evidence remains to assist any inquiry.

Chapter 17: Other areas of State involvement

This chapter could just be headed Miscellaneous. 

Disenfranchisement

Through legislative slight of hand, women held in the Magdalen laundries were not allowed to register to vote as (no matter how long they were detained) it was not deemed the place they were ordinarily resident. This was finally changed in 1963 by the Electoral Act of that year.[6]The Committee notes that the women were not actually disenfranchised as they could still be registered to vote at their home address (if they had one) but acknowledges that they would have no way to actually go there to vote. 

We then get a tour of the electoral registration histories of a number of Magdalen Laundries, with tots of the number of religious (and sometimes inmates) registered to vote during various time periods.

There were some instances where the legislative ban was ignored and some inmates registered to vote before the 1963 amendments. As to what significance any of this data may have to anything, it is hard to say. But equally, it is hard to complain about its inclusion.

Rationing 

In 1941 Ireland introduced rationing. Ration books were manufactured for every person in the country (by the Hospital’s Trust Limited, which is a detail which tells a tale in itself) 

The ration books, which determined a person’s access to food, clothing and other basics, were not given to the women in the Magdalen Laundries, but instead sent to the head of each Laundry to be held[7]. Any women being sent to a Magdalen Laundry would have her ration book confiscated on arrival.[8]

If a women were to die while rationing was in place, the book- and the rations it represented- was to be handed back by the institution when (or, as we have seen in Chapter 16, if) the death was registered. 

The Committee then sets out a series of things that “would have”[9] happened, if the rules were followed.

The Committee makes no comment on whether treating the women in Magdalen Laundries under the same rules as convicted criminals in prison was appropriate.

Census and statisticals surveys

“This Section sets out the history of the Census of Industrial Production after

the foundation of the State and its relevance to the Magdalen Laundries.[10]

And then, without any thought for the reader’s mental wellbeing, that is what it proceeds to do. After that comprehensive history is provided, the Committee reports that, when it comes to the Magdalen Laundries “no files were identified including the actual returns of establishments under these Statutory Instruments.[11]

However, we do eventually learn that when statistics were produced in the 1930s, the commercial details of the Magdalen Laundries were not included in the profile of the laundry industry as a whole. 

The Charitable Status of Religious Orders

After an introduction to the role and powers of the Office of the Commissioners of Charitable Donations and Bequests (Briefly: minor, administrative) we are then introduced to the functions of the Revenue Commissioners in respect of charities. [12](Briefly: Major and financially significant) 

 Key Quote: After pointing out that the Charity Commissioners have neither the function nor the legal authority to oversee or investigate Charities the report mildly points out

“There is currently no office or body in the State which has such a function or authority.[13]

Chapter 18: Non-State Routes of Entry to the Magdalen Laundries (Part A)

This Chapter is split into two parts. And, frankly, Part A is a grab bag of anecdotes, isolated incidents and irrelevancies. It collects up a series of unrelated data points- examples of times women weren’t sent to the Magdalen Laundries by state agents.

However it doesn’t seek to make any effort to place these incidents in any wider context. Given that data is not the plural of anecdote, it is difficult to see what point is being made in this section.

It is possible that this chapter (and that Part A) was intended to address (or justify, after the fact) the testimony by the former Secretary General of the Department of Foreign Affairs Sean Alyward to the UN Committee on the Prevention of Torture. 

During the course of his testimony, Mr Alyward asserted that “the vast majority of women who went to these institutions went there voluntarily, or if they were minors, with the consent of their parents or guardians”.[14]

Chapters 8, 9 and 10 of even the flawed McAleese report firmly refutes that assertion.

Chapter 18: Non-State Routes of Entry to the Magdalen Laundries (Part B)

This Chapter is split into two parts. And, frankly, Part A is a grab bag of anecdotes, isolated incidents and irrelevancies. It collects up a series of unrelated data points- examples of times women weren’t sent to the Magdalen Laundries by state agents.

However it doesn’t seek to make any effort to place these incidents in any wider context. Given that data is not the plural of anecdote, it is difficult to see what point is being made in this section.

It is possible that this chapter (and that Part A) was intended to address (or justify, after the fact) the testimony by the former Secretary General of the Department of Foreign Affairs Sean Alyward to the UN Committee on the Prevention of Torture. 

During the course of his testimony, Mr Alyward asserted that “the vast majority of women who went to these institutions went there voluntarily, or if they were minors, with the consent of their parents or guardians”.[15]

Chapters 8, 9 and 10 of even the flawed McAleese report firmly refutes that assertion.

Chapter 18: Non-State Routes of Entry to the Magdalen Laundries (Part B)

Despite the title, this section has nothing particular to do with Non-State Routes of Entry. Rather it is an attempt by the report to lift its eyes from the minutia and give brief (editorialised) voice to the work of professional historians writing about Institutionalisation as a phenomenon in Irish life. 

Imagine you had a pile of history books and articles on your desk. The various historians were attempting to address why Ireland locked up such a huge proportion of its population in various institutions throughout the 20th Century. You don’t try to give these historians the benefit of the fresh sources and material you have piled up around you. Instead you collect up various quotes from the work they published  “without the advantage, which the Committee had, of access to the records of the Magdalen Laundries from 1900 onwards[16]” to try to answer the core question which echoes unasked through the entire report.

“What was wrong with us, and our parents and grandparents, that we allowed this to happen?”

The answer, discernible through the collection of quotes and paraphrasings that make up Part B, seems to be 

“It wasn’t passively allowed to happen. It was the result of a deliberate policy by people with power in Irish society (State, Church, male heirs) to contain and destroy the threat of social disruption posed by of those without power (people in poverty, women, people with mental or physical disadvantages).”

Both the question and answer above are my phrasings. It is well worth reading Part B to hear how the academics put their case. 

One point: I mentioned that the report editorialises. At one point it finds itself torn in two. It is attempting to summarise the unfailingly critical academic works. But it cannot resist, in the middle of this condemnation, inserting its own uncited defence of the Magdalen laundries in the middle of the same paragraph. 

This leads to the incongruous assertion in the middle of paragraph 97, surrounded by descriptions of the inhumanity, social oppression and abuse of power which Ireland’s gulag of detention institutions represented  that “such institutions could legitimately claim to be a charitable outreach to the marginalised”. 

Well, they could. But by the time we’ve reached page 920 of this report, a reasonable reader would have expected that those claims of legitimacy would no longer be advanced on their behalf by the report’s authors. 

Chapter 19: Living and working conditions

This chapter should be the heart of the report. After all, the McAleese Committee was established to confirm what the truth of the state’s involvement with the Magdalen Laundries institutions. The obvious starting point would be to gather as much evidence from the women who were incarcerated about their experiences- and specifically about the role of the state in confining them to the institutions.

Instead we get this chapter. The executive summary describes the treatment of the evidence it acknowledges;

“Although this Chapter identifies a number of patterns among the stories shared with it, the Committee did not make specific findings in relation to this issue, in light of the small sample of women available.” 

Chapter 19 is an apologia for the Magdelan regime presented beside, around and instead of the testimony of incarcerated women.

Rather than trying to choose one issue or another with this chapter to highlight, it would be best to read the 175 pages of first hand testimony of the women who lived in and through the experience of the Magdalen regime. State Involvement in the Magdalen Laundries, compiled from first hand-testimony by the Justice for Magdalens group. This public document, represents only a portion of the 800 hundred pages of testimony given to the McAleese committee. 

References to “the small sample of women available” as the basis for refusing to explicitly state the truth of what the women experienced are exposed for what they are- a wilful blindness.

All you need to know about Chapter 19 is that not a single piece of that first hand evidence from the Justice for Magdalens is used, acknowledged or quoted.

Chapter 20

The last word. 


[1] McAleese Report, Chapter 13, Paragraph 88

[2] McAleese Report, Chapter 15, Paragraph 105

[3] McAleese Report, Chapter 15, Paragraph 107

[4] McAleese Report, Chapter 16, Paragraph 27

[5] McAleese Report, Chapter 16, Paragraph 29

[6] McAleese Report, Chapter 17, Paragraph 10

[7] McAleese Report, Chapter 17, Paragraph 70

[8] McAleese Report, Chapter 17, Paragraph 71

[9] McAleese Report, Chapter 17, Paragraph 75

[10] McAleese Report, Chapter 17, Paragraph 82

[11] McAleese Report, Chapter 17, Paragraph 100

[12] McAleese Report, Chapter 17, Paragraph 120

[13] McAleese Report, Chapter 17, Paragraph 129

[14] Testimony of Mr. Sean Aylward on behalf of Ireland, UN Committee against Torture, Forty-sixth session, 24th May 2011 http://www.ustream.tv/recorded/14928621

[15] Testimony of Mr. Sean Aylward on behalf of Ireland, UN Committee against Torture, Forty-sixth session, 24th May 2011 http://www.ustream.tv/recorded/14928621

[16] McAleese Report, Chapter 18, Paragraph 85

Sample Data Request Letter for the Mother and Baby Home Commission

This is intended to provide a guideline template letter for anyone who would like to access any data held relating to them by the Commission of Investigation Into Mother and Baby Homes.

It should be sent immediately, given the short timeline before the Commission is scheduled to complete its work.

The email address for the Commission is [email protected]

———

Dear Commission,

I wish to make an access request under the Data Protection Acts and the GDPR for a confirmation that you hold data relating to me, and to be given a description of the data, the purposes for which it is held, and a copy of any data you keep relating to me me, including stenographer, audio or other records. I am making this request under Article 15.3 of the GDPR.

Please also cite the legal basis of such processing under Articles 6 and 9 of the GDPR.

To aid your identifying of such documents, I was [Insert relevant dates, times, location or institutional descriptions, your history as you know it etc. Anything that will assist in identifying which records relate to you].

Please send all replies, including copies of all data to me at [insert either an email address or postal address, as you prefer]

Please acknowledge receipt of this request by return and confirm you will set aside any intended deletion or redaction of the above-requested records which would have proceeded under Section 6 of Commission of Investigation (Mother and Baby Homes and certain related Matters) Records, and another Matter, Act 2020, as required by the principles set out in C-378/17 The Minister for Justice and Equality and The Commissioner of the Garda Síochána v Workplace Relations Commission.

Thank you for your assistance.

Yours faithfully

[Insert Name]

Personal Data Transfers after Brexit (Aug 2019 edition)

“There will no longer be a fundamental right to data protection post Brexit & this is something which cannot be remedied by domestic legal settlements short of a British Bill of Rights, & even then perhaps not so if Parliament retains sovereignty”

Professor Andrew D Murray
London School of Economics

Brexit is a challenge to any UK organisation attempting to plan even a few months ahead. It may represent an even greater challenge for any other organisation trading with the UK. The facts change regularly and policies are generated, promoted and abandoned at a dizzying pace.

However, one thing that has yet to receive the appropriate level of public attention is the impact that Brexit is likely to have on the UK services sector. Specifically the largest part of it, which relies on transfers of personal data.

Under the GDPR EU companies will need to show a legal basis for any transfers of personal data from the EU27 to the UK after the 31st October 2019. The UK is profoundly integrated into the data flows of the other EU27 countries. This, on its own, represents a significant risk factor in Brexit.

Source: GB Office for National Statistics. https://www.ons.gov.uk/businessindustryandtrade/internationaltrade/bulletins/internationaltradeinservices/2017

In particular, a chaotic No-Deal Brexit, which we now estimate to be the most likely outcome of this protracted process, will pose significant risks.

Data Compliance Europe, our consultancy services firm, has completed an analysis document on this issue, which we are making available for download. We are doing so because we think that it is critical to raise awareness of this issue in advance of the date set for UK departure, the 31st October.

Companies and organisations will have to take steps now to ensure that data flows may continue uninerrupted.

DOWNLOAD THE DATA COMPLIANCE EUROPE REPORT (4.6MB pdf)

McGarr Solicitors finalists for Personal Injury/Medical Negligence Law Firm of the Year

It’s always nice to get a little nod of recognition for the work you do. So we’re very pleased to announce that McGarr Solicitors have been nominated as finalists in the Travelers Irish Law Awards in the category of Personal Injury/ Medical Negligence Law Firm of the Year.

What makes the recognition of our work sweeter was the quote from our client in the nomination.

“You trusted me when I came to see you and I had nothing but my story to tell you. And that gave me the confidence to trust you.”

Being a firm that represents injured people means learning to listen. We’re pleased to hear it makes a difference.

Data Transfers and the Brexit Withdrawal Agreement

On 14th November 2018, the EU and British Government published a draft of a withdrawal agreement to deal with the UK’s departure from the EU. [This analysis has been updated as of 2nd April 2019].

The Agreement has since been endorsed by the governments of the EU member states. It has been rejected three times by the UK parliament. But, despite this, it remains the only available basis for the UK to leave the EU with transitionary arrangements, including arrancements for data transfers. It proposes the UK departure from the EU in March 2019 (since extended to April or May 2019), with a ‘transition period’ ending (initially) on the 31st December 2020. After that point the UK is bound to follow EU rules if it wishes to continue access to the EU market (or, alternatively, to accept goods checks etc between Northern Ireland and the rest of the UK).

What does the agreement say about data?

For data protection purposes, the articles of primary interest in the Draft Withdrawal Agreement are Articles 127-129, dealing with the application of EU law during the Transition Period and Articles 70-73. These latter provisions deal with “Data and Information processed or obtained before the end of the transition period or on the basis of this agreement”. Article 71.1 confirms that EU law is applicable, directly in the UK, to data transfers made to countries outside the UK. Article 71.2 says that EU law shall not directly apply in the UK to data processed under an adequacy decision. Article 71.3 says that if there’s no adequacy agreement the UK is bound to the requirement to provide the equivalent level of protection to data subjects as required under EU law. Article 72 says that EU data law will apply to the organs of the UK state. Article 73 says that UK data which is transferred to the EU shall be treated as though it were the data of a Member State. It does not say that the converse is also true.

Applying Union Law not the same as being a Union Member

This has been read- insofar as any public attention has been paid to the issue- as meaning that the UK may carry on as before during the transition period, treated as if it were a member state for the purposes of data transfers. But, clearly, this not what is stated in Articles 70-73, on data processing. A basis could be found grounded in an optimistic reading of Articles 127.1 and 127.3, read together. Art 127.1:
Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period.
Art 127.3:
During the transition period, the Union law applicable pursuant to paragraph 1 shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States, and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union.
The problem for proponants of a cheery reading of these sections is that Union law is clear about one thing- that transferring personal data to a non-Member state requires a legal basis. Article 73 says that UK data which is transferred to the EU shall be treated as though it were the data of a Member State. It carefully does not say that EU data transferred to the UK shall be considered to be travelling to a Member State. It cannot, because the EU negotiators can’t agree something that would be illegal under EU law. What next? Under the Withdrawal Agreement European Union law is agreed to have the same ‘legal effects’ as those which it produces in the Union and its Member states, under Article 127.3. But, within the Union and its Member states, the effects of a personal data transfer under Union law depend on whether the destination country is a Member state, or whether it is not. Within the next few weeks, the UK will not be an EU Member state. And the agreement to apply Union law will have the legal effects which flow from that fact. Given the current uncertainty, it would be wise for companies to arrange for alternative legal grounds (Standard contract clauses etc) for data transfers to the UK to be in place before the 12th April 2019.

Ireland’s role in Myanmar atrocities

The Government and military forces of Myanmar are the central focus of the UN Human Rights Council mission report on the plight of the Rohingya people of Myanmar. However, the report cites Facebook’s involvement and states:

“The extent to which Facebook posts and messages have led to real-world discrimination and violence must be independently and thoroughly examined.”

Ostensibly, it falls to Ireland to initiate an examination as suggested by the Human Rights Council mission because the Facebook accounts established for the Myanmar military (the “posts and messages” referred to in the report) were, contractually, located in the Dublin offices of Facebook Ireland Ltd.

Genocide was one of the wrongful acts investigated by the Human Rights Council mission.

Genocide is defined in Article 2 of the “Convention on the Prevention and Punishment of the Crime of Genocide” (“the Genocide Convention”) as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such:

a) Killing members of the group;

b) Causing serious bodily or mental harm to members of the group;

c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

d) Imposing measures intended to prevent births within the group;

e) Forcibly transferring children of the group to another group.

Ireland is bound by the Genocide Convention, having signed it and ratified it. The Convention (Article 4) requires punishment of offenders. Offenders may be “constitutionally responsible rulers, public officials or private individuals”. The Genocide Convention extends to the offence of “complicity”.

The Human Rights Council mission stated:

“The Mission regrets that Facebook is unable to provide country-specific data about the spread of hate speech on its platform, which is imperative to assess the adequacy of its response.”

The Human Rights Council mission also stated:

“Facebook has been a useful instrument for those seeking to spread hate, in a context where for most users Facebook is the Internet.”

Under Article 5 of the Genocide Convention, states are obliged to “provide effective penalties” for persons guilty of genocide or related offenses.

Under Article 50 of the 1949 Geneva Convention, by which Ireland is bound, states are under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches [war crimes], and shall bring such persons, regardless of their nationality, before its own courts… [or] hand such persons over for trial to another High Contracting Party …

At a minimum, Ireland is in a position, and obliged in law, to practically investigate the role of the Facebook platform in the “spread of hate” prior to and during the breaches of human rights law suffered by the Rohingya people of Myanmar and to secure the evidence which Facebook was unable to provide to the Human Rights Council mission.

The fact that Facebook has, reputedly, moved this evidence to California is not an obstacle; the European Parliament has challenged the propriety of that move and Ireland has the legal power, under the GDPR, to require, of Facebook, the return of the evidence to Ireland.

The UN Human Rights Council

Urgent questions for the Data Protection Commission.

A) Do you know that the United Nations Human Rights Council has deplored the failures of “Facebook” in connection with the facilitation of genocide by the Myanmar military in Rakhine district in Myanmar?

B) Do you not know that, under international criminal law, the commander of a military force is, in principal, responsible for the crimes of his forces?

C) Do you know that General Min Aung Hlaing, the commander of the Myanmar military forces (since 2011) communicated with his forces by means of, inter alia, the Facebook platform?

D) Do you know that General Min Aung Hlaing’s account with Facebook was established with Facebook Ireland Ltd. and that the law applicable to that account is Irish and EU law?

E) Do you know that Facebook Ireland Ltd., in or about 19th April 2018, purported to assign or transfer that account (and others) to Facebook Inc. in Menlo Park, California?

F) Do you know that the European Parliament has challenged the propriety of that assignment in paragraph 13 of a recent Resolution?

G) Do you know that any claims of individual Rohingya people for compensation for complicity by negligence or otherwise, if any, by Facebook Ireland Ltd., in the Myanmar genocide and other crimes for which General Min Aung Hlaing is responsible, can and should be brought in Ireland?

H) Do you know that the account records purportedly transferred by Facebook Ireland Ltd. to Facebook Inc. in or about 19th April 2018, are, in principle, evidence required in any criminal or civil claims brought against General Min Aung Hlaing or Facebook Ireland Ltd. arising from the Rohingya genocide and other crimes?

I) What steps, if any, does the Data Protection Commission intend to take to recover and secure, for the Rohingya people, that evidence, purportedly transferred by Facebook Ireland Ltd. to Facebook Inc. in or about 19th April 2018?