Last Sunday night, access to the President of Ireland's website was limited due to the number of people logging on to it.

News websites were reporting that Michael D Higgins had signed the Commission of Investigation (Mother and Baby Homes and certain related Matters) Bill into law.

There was a statement from him on the website. And those who questioned the bill being signed into law on social media were advised to read it.

Described by some "a masterstroke", Mr Higgins pointed out that when considering any piece of legislation, the President must also be cognisant that constitutionally, no court can question the validity of any legislation following a referral by the President to the Supreme Court.

It read: "The President’s decision to sign this legislation leaves it open to any citizen to challenge the provisions of the Bill in the future."

This then leaves the door open for future legal challenges, which are expected.

At one level it ended an exhaustive and confusing week for the survivors of mother-and-baby homes. On another, it contributed to the realisation among some that mother-and-baby homes is not an issue of the past, it is ongoing.

The legislation centered on a database of information linking children and mothers, which had been compiled by the Commission of Investigation into Mother and Baby homes. 

It was introduced by the Minister for Children and Youth Affairs, Roderic O’Gorman, to the Oireachtas in early October and which the Minister sought to be moved to Tusla through the introduction of emergency legislation.

However, it unearthed a lot of hurt and anguish for those whose lives are central to the Commission of Investigation. And the message was confused from the outset.

There were questions too about the legislation itself. Why send the database to Tusla, when those who had sought to find out more about their backgrounds from the Child and Family Agency found it so difficult?

As the bill entered its final stages in the Seanad, Minister O’Gorman acknowledged that through his intention to resolve one issue, he lost sight of the major legacy issues that have to be dealt with in the State, which he said are not "cold legal problems".

"I realise and accept that that approach has caused anguish and frustration and this is something for which I am deeply apologetic," he said.

So, why did the legislation result in so much upset and trauma? To find the answer, we have to go back to 2004 when the Commission of Investigation Act was introduced in an effort to provide a less expensive and speedier method of investigating matters of public concern.

The tribunals of the late nineties had cost millions and commissions were seen as an effective alternative. In fact, the 2004 Act gives a Commission of Investigation the power to conduct an investigation in any manner it considers appropriate, as long as it adheres to the Act and the commission’s rules and procedures.

When a commission completes its work and before its dissolution, under the Act the chairperson deposits "all evidence received by and all documents created by or for the commission" with the specified Minister.

The Act doesn't say documents need to be sealed away, it says that 30 years after the date that a commission is dissolved, the records go to the National Archives.

In February 2015, the Mother and Baby Homes Commission of Investigation was established in the wake of claims that the bodies of up to 800 babies and children may have been interred in an unmarked mass grave in the Bon Secours Mother and Baby Home, located in Tuam, Co Galway.

The Commission’s remit also covered investigation into the records of and practices at an additional 13 Mother and Baby Homes, including circumstances for the entry of single women into mother-and-baby homes and the exit pathways on leaving.

It would explore living conditions and care arrangements experienced by residents; the causes, circumstances and rates of mortality among mothers and children residing in the institutions - and post-mortem practices and procedures in respect of children or mothers who died while resident in the homes.

Led by Judge Yvonne Murphy, the three-person commission got to work with a final report deadline of February 2018.

As that date loomed, the Commission requested and was granted a one-year extension until February 2019. It then sought another 12-months to February this year. And another four months which brought the deadline to June this year when a further extension was granted due to impact of Covid-19 on the Commission’s activities. 

In the seventh interim report, sent to the then Minister Katherine Zappone on 3 June, the Commission said it would submit its final report on 30 October.

Just over 20 days later, Mr O’Gorman took the baton from Ms Zappone as Minister for Children, Equality, Disability, Integration and Youth. Direct Provision was also moved to his Department from Justice.

Having never sat in the Oireachtas before, he had a huge brief to get to grips with, but it was known in the Department that further legislati on would be required regarding the Commission of Investigation, as it had alerted the Department to a database which the Commission viewed as potentially valuable.

The Commission said that the database would be of considerable assistance to those involved in providing information and tracing services; but under existing legislation, the database would have to be effectively destroyed and stated that legislation would be required to avoid that happening.

Essentially, it felt it did not have legal grounds to hand it over to the Minister.

On 15 September, the Department of Children and Youth Affairs announced that Minister O’Gorman would introduce legislation to safeguard the database.

Noting that the Commission’s deadline was 30 October, the Department of Children confirmed that the Minister was "moving forward with this legislation to support the Commission in handing over its archive, in complete form, to the Minister and also transfer a specific database which it has developed to Tusla, the Child and Family Agency".

Significantly, the correspondence to interested parties said the Commission informed the Department that it had created a database "earlier in the year".

So, did the matter of legislating for the database get set aside because of the wider political situation as Government formation talks continued and a pandemic was declared?

Department officials had to wait for a new government, a new Minister and the Oireachtas to re-sit before they could address the matter.

But within three months of taking up the role, Mr O’Gorman got Cabinet approval to introduce legislation to move the database to Tusla.

In his rush to get the legislation through the Oireachtas before the Commission’s deadline of 30 October, the Minister failed to contact survivor representative groups or to consider delaying the publication of the final report to slow the process.

The Commission had already missed numerous deadlines, so the view was that the legislation needed to be fast-tracked to allow for the publication of the final report, so survivors wouldn’t have to wait longer.

When the Government announced the introduction of the legislation in a press release issued to the media, it stated that "under current legislation, on submission of its final work, the Commission will stand dissolved, prior to its dissolution, it must deposit all Commission records with the Minister to be sealed for 30 years".

It was the reference to the documents being sealed that dominated Oireachtas and online discussions.

It resulted in questions around why the Government stated that documents would be sealed as an explanation for importance of the database being saved.

The 2004 Commissions of Investigations Act says that records can be made available for inspection by the public on the expiry of 30 years after the date of the Commission's dissolution, when they are sent to the National Archive.

It doesn’t state they should be sealed for 30 years. The language used to explain why the urgent legislation was so pressing, concerned survivors and representative groups.

In the midst of Level 3 Covid-19 restrictions, which moved to Level 5, they couldn’t protest outside the Dáil. So they sent thousands of emails to their public representatives expressing anxiety. They crashed the Oireachtas email system in the process.

It took Noelle Brown, who was born in the Bessborough Mother and Baby Home in the 1960’s, 15 years get information about her birth parents. She turned to DNA in the end.

While she stubbornly pressed ahead in finding out more about her past, others gave up because the hurdles dealing with Tusla were considered far too great. She’s angry with the State Agency and she is not alone.

For its part, the Child and Family Agency has pointed out that legislation is very weak. This, it says, is the reason why it has limited ability to respond to very "understandable questions" from people about their identity and birth parents.

Its CEO, Bernard Gloster, has said while the Child and Family agency will "continue to be limited up to that point of any future legislation, I want to assure people that every effort will be made to engage in a supportive and caring manner". 

The Minister reiterated time and again that the 2004 Commissions of Investigations Act meant that unless the urgent legislation was passed, the database would be put placed in storage (or sealed) with the remaining archives from the Commission of Investigation rather than being sent to Tusla.

Increasingly he was asked, why he couldn’t simply amend the 2004 Act, rather introducing the database legislation but he said amending the 2004 Act would cause more difficulties legally and legislatively.

On the first day of debate in the Seanad it emerged that even when the database transferred to Tusla, further legislation would be required in order to access it.

This is something Minister O’Gorman said he would advance next year but there’s scepticism in this regard.

Despite efforts by the former children’s minister Katherine Zappone, the adoption and tracing bill was shelved in 2019 after the Attorney General said it was constitutionally unacceptable to allow unrestricted access to birth information for adopted people.

Minister O’Gorman has promised he will work on legislation to find ways around these obstacles.

In the Seanad, an amendment was put forward suggesting that a copy of the database that the Minister wanted to send to Tusla should be kept in his Department. 

It was also agreed that all the archives and related documents from the Commission of Investigation would be held in the Department of Children and Youth Affairs.

It means that under General Data Protection Regulation, the Minister will be the 'controller’ of the data as soon as the database and the archives go into his possession.

And so, we come to another piece of legislation in the mix.

The Data Protection Act of 2018 is an EU law, therefore it supercedes Irish law.

On Monday the 19 October, the bill had completed Committee stage in the Seanad and was due to begin its passage through the Dáil the following day.

On the Monday, the Data Protection Commissioner sent a query to the Department of Children regarding the original 2004 Commission of Investigation Act and the amendment made to it in 2018.

The Attorney General was asked to look at the query. The following Friday, the legislation returned to the Seanad for its final stages, having passed in the Dáil the night before.

There were amendments with accompanying questions by Senators regarding GDPR. Under Article 15 of the Data Protection Act, individuals have the right to request a copy of any of their personal data which are being ‘processed’ by ‘controllers’.

The opposition suggested that as ‘controller’, the Minister conduct a Data Protection Impact Assessment, which it said was required for any processing that is ‘likely to result in a high risk to individuals’.

In the meantime, the Data Protection Commission had conducted its own impact assessment. It pointed out that the Data Protection Act 2018 amended the Commission of Investigation Act 2004.

So, any restriction on the right to access personal data processed by the Commission could only be done so "to the extent necessary and proportionate to safeguard the effective operation of commissions and the future co-operation of witnesses".

The Data Protection Commission said it appeared that the separate provisions of the 2004 Act were not intended in the context of the amendment to the 2018 Act, to provide an effective "blanket" barrier to the exercise of rights.

The view of the Data Protection Commission became concrete on Friday when it issued a statement containing the above information.

It was at that point the minister said he didn’t see it as "morally feasible" that his department could continue to refuse access requests specifically to personal information when the archive goes to him.

He stated that he was committed to fixing the problems that had emerged and would request the Oireachtas Committee on Children, Disability, Equality and Integration to discuss and explore alternative interpretations with experts and representatives of survivors.

"I accept there will be litigation stemming from refusing access to requests and we’ll have a consequence of people being dragged through the courts in appeals, I don’t want to see that happen, I want to find a resolution", he said.

On Wednesday this week, Cabinet held a lengthy meeting which was dominated by the issue of mother-and-baby Homes.

The Government released a statement outlining necessary actions to deal with concerns in a manner that is timely, appropriate and that is focused on the needs of victims and survivors.

Those actions include releasing the report to the wider public as soon as possible. They also say the HSE will expedite implementation of the provision of well-being supports to survivors - this was something that was promised back in 2018 but still hasn’t happened.

They’ve committed to advancing work on the Information and Tracing legislation, with a view to publication next year; that legislation to provide for sensitive and appropriate actions at the burial site at the former mother-and-baby home at Tuam will proceed.

The Government will also work to establish on a formal, national basis an archive of records related to institutional trauma during the 20th century, including archiving relevant records and
witness testimony by victims and survivors.

Significantly, it confirmed that once the archive of the Commission of Mother and Baby Homes is transferred to the Minister and his Department, GDPR will apply.

The Government says those seeking their records will have to undergo two tests when a subject to access request enters the Department of Children.

On Friday morning, Minister O’Gorman said anyone seeking to get information from the archive through GDPR will have to prove that their application does not infringe on the rights of others.

He said they would also have to prove that their application does not undermine the processes of the Commission of Investigation or the co-operation of witnesses with other Commissions of investigation in the future; essentially pointing back to the 2004 Act.

However, legal experts for the campaign groups have said these tests are not GDPR compliant.

When this was put to the Minister on RTÉ’s Morning Ireland, Roderic O’Gorman said the Department would engage with the Data Protection Commission regarding the advice it received on the tests.

"We’ll keep it under review", he said "The key principle is the right to put access requests to my Department which is significant, giving survivors access to personal information".

While the final report was handed to the Minister on Friday, the Commission will not dissolve immediately.

The irony of pushing legislation through the Oireachtas before October 30 due to the impending dissolution of the Commission was not lost when the Minister suggested keeping it in place until February next year.

The move is to allow those who gave their stories to a Confidential Committee redact their personal data if they wish to do so.

So, where to from here and what have we learned? 

On Friday, the 4,000-page Commission of Investigation report was delivered to the Minister.

A copy of the database and the wider archive will follow in February when the Commission is dissolved.

The database will also go to Tusla in February.

The report will need to be vetted by the Attorney General, to see if it raises any legal issues especially in relation to upcoming or ongoing prosecutions.

It will not come into the public domain for a number of weeks, but the Government is keen to see it published as quickly as possible.

This has been a huge learning curve for the new Minister who admitted himself that he underestimated the legacy issues, in a bill which he viewed at the outset as technical.

However, few in the opposition benches doubted Minister O'Gorman's efforts to rectify the situation once they began to unfold. 

The author of the 2004 legislation Senator Michael McDowell said on reflection the Commissions of Investigations Act possibly should never have been used as vehicle for the Commission of Investigation into mother-and-baby homes.

He said a tailor-made piece of legislation would have been far more appropriate than the 2004 Act.

At the bill’s final stages, he said: "In retrospect the difficulty we now face and the Minister faces is that the decision five years ago was a blunt instrument not adapted to feelings of witnesses to have personal vindication, this mechanism was chosen which inevitably would produce the problems we have today unless the law was amended."

One thing that has stood out in the teasing out of the legislation in the limited time period available to the Oireachtas was the quality of the legislators in the Seanad.

It was impressive to watch the debates on amendments in the Upper House. While some Senators were directed by campaign groups, others were not.

Ultimately, their modus operandi was to ensure that victims who have been failed by the State in the past, finally get the justice they deserve.