Holly Cairns (Cork South West, Social Democrats) | Oireachtas source

I suppose as we know the Minister will not accept any amendments today, I will speak for the record, as it is the only thing we can do.

Regarding the amendments to which the Minister just referred, I note that there have been many references to Dr. Maeve O'Rourke's article on thejournal.ietoday. I would like to put some of it on the record. Dr. O'Rourke writes that the first amendment is intended "to ensure that the Minister receives a full copy of the commission of investigation's entire archive, including a copy of the part of the archive that is sent to Tusla". That amendment is very welcome and I thank the Minister for including it. Dr. O'Rourke describes the intention of the second amendment as:

To allow the Commission to continue to operate until February 2021 (although it will still deliver its final report by the end of October 2020), so that it can contact all those who gave evidence to the Confidential Committee to ask whether they would like the Commission to redact their personal data from its archive prior to the Commission depositing the archive with the Minister.

Regarding this latter amendment, Dr. O'Rourke goes on to argue:

... the Commission or Government should give those affected by the abuses under investigation a choice as to whether they wish to be identified in their transcript of evidence in the Commission’s archive.

However, this amendment is not the way to achieve this.

The Commission and the Government should be applying the framework of the EU General Data Protection Regulation (GDPR), which gives individuals many rights in respect of their personal data, including the right to be informed, the right of access, the right to rectification, the right to erasure, and the right to object to data processing.

It makes no sense to single out one of these rights and to leave out the rest including the immediate right of subject access to personal data held by the Commission.

People are sick of hearing many of the arguments being made by the Minister and his Department. Dr. O'Rourke did an amazing job of debunking those arguments. I would briefly like to go through a few of them. One argument holds that the legislation needs to pass by 30 October or the database will be destroyed or will somehow disappear. Nobody knows exactly why the commission feels it will have to destroy the database. It appears to believe that it cannot deliver personal data to the Minister despite section 43 of the Commissions of Investigation Act 2004 explicitly stating that every commission of investigation has to give every document or piece of evidence gathered or created by it to the relevant Minister on concluding its work. The general data protection regulation, GDPR, which came into force in 2018, contains no barrier to the transfer of this data to the Minister.

Another argument which we keep hearing holds that this legislation is not about sealing the archives. The commission was established under the Commissions of Investigation Act 2004, which requires that evidence be private and sealed for 30 years. The public disquiet is about sealing. Concerns have been raised on foot of the repeated briefings on the Bill given by the Minister and his Department, as well as statements by the Minister in the Seanad. The Minister keeps stating that everything he receives from the commission will be sealed in the archives for 30 years. For this reason, the public is campaigning for the Minister to amend the Bill to make clear that these records will not be sealed. If the Minister does not intend to seal the archives, why not include this guarantee? Neither the commission nor the Government is permitted under the GDPR to place a blanket seal over the entire archive in any case.

Another argument worth dispelling holds that people gave evidence under assurances that the archive would be sealed. Nobody has asked for the testimony of vulnerable people to be revealed to the public. We have asked for individuals to be given access to transcripts of their own evidence and to their personal and family records.

I will address one more argument and then encourage anyone who is listening to read Dr. Maeve O'Rourke's article. It is claimed that adoption information and tracing will be addressed by much broader legislation which the Minister will bring forward in the near future. The commission of investigation and the Minister still cannot avoid EU law, which requires them to uphold GDPR rights in relation to the archives they hold. It is also important to note that the commission of investigation has gathered personal data that goes beyond adoption files.

We know that the Minister will not accept any amendments but I find it difficult to believe that he is not finding it hard to push this legislation through, especially when we could simply postpone it, as other Deputies have noted. Will he at least consider doing that? The least that survivors deserve is for the Bill to go through proper pre-legislative scrutiny. We all know the Minister can do that. There is no reason for him not to do so.

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