Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

Ireland's history is sadly littered with a legacy of failings related to the care of our most vulnerable citizens in institutional settings. Previously, the State has ordered investigations into specific institutional settings and shone a light on the pain and anguish experienced by people who found themselves in these institutions through no fault of their own. In 2015, the Government established the Commission of Investigation into Mother and Baby Homes and Certain Related Matters to comprehensively examine the experiences of mothers and children who were resident in mother and baby homes and related county homes. These matters have never been the subject of a statutory investigation before and it is vitally important that there is a comprehensive examination and understanding of the experiences of those who were resident in them. Vulnerable women were hidden away in these places because of the societal shame and stigma associated with being an unmarried mother at that time. The commission is charged with investigating specific sensitive issues relating to the practices and procedures regarding the care, welfare, entry arrangements and exit pathways for the women and children who were residents of these institutions. It was also tasked with completing an academic social history spanning 75 years. This will chart the journey of many who passed through these places and the lifelong shame and stigma which they experienced as a result. The commission's report will put these experiences into the context of the time they occurred.

The commission established a confidential committee to enable former residents to provide an account of their experiences in private. These accounts will be captured in the final report, thereby giving an explicit voice to the mothers and children who began their lives inside the walls of these institutions. The lived experiences and hidden secrets of life in these establishments, as told by survivors, will finally be reported.

This has been a long time coming for many who have associations with the homes. I understand that the anguish felt by many former residents of mother and baby homes and their families has been prolonged by the commission's need for additional time to complete its work. However, I know they understand that the commission is investigating important, personal and sensitive matters which happened over a period of more than 75 years. The commission of investigation is due to submit its final report to me by 30 October of this year.

The commission was established under the Commission of Investigations Act 2004.As prescribed under this Act, on submission of its final report, the commission will stand dissolved and, prior to its dissolution, it must deposit all commission records with me as the prescribed Minister. The 2004 Act further provides that this archive of records will remain sealed for a period of 30 years after which time its availability for public inspection is governed in accordance with the National Archives Act 1986.

The Bill I am putting before the House today deals with serious legal and practical issues that were raised by the commission of investigation with regard to finalising its records. This Bill aims to safeguard the records gathered by the commission over the course of its complex five-year investigation so they are preserved intact and available into the future in an appropriate way.

This is a technical Bill so I will be using phrases such as "database" and "records" and other technical language during the debate but I am acutely aware that each record represents a person and very real suffering in the past but also emotional wounds that are still very much open today for many of the survivors. The commission has compiled digital databases with details of the mothers and children who were resident in 15 of the main mother and baby homes under investigation from the records that are available to it. These databases have been painstakingly developed over a long number of years and at considerable cost. The commission believes that these databases and related source records would be of assistance to those involved in providing information and tracing services. However, the commission believes that as the information compiled in its records contains sensitive personal information, it is obliged to redact the names and other identifying information about the residents of these homes from its archive, including its database and related records, prior to transfer. Notably, the commission believes that legislation is required in order to address those matters.

Having examined the issue, the Government concluded that there was a strong rationale for legislation to be passed to protect the complete records of the commission and to specifically provide for the transfer of the valuable database and related records from the commission to Tusla so that it can support information and tracing services for former residents. This is the essence of the bespoke legislation before us today.

This Bill ensures that the records of the mother and baby homes commission of investigation are deposited without redaction. While the main archive will be deposited with the Minister, in line with the provisions of the 2004 Act, significantly, this Bill provides for the transfer of the database and related records directly to Tusla. That ensures that this invaluable resource is preserved and maintained and remains available, albeit on a limited basis in the first instance. That limitation is reflected in the restrictions set out in the Bill. These provide that the processing of records or data is limited to the purposes authorised by the data protection regulation, the Data Protection Acts 1988 to 2018 or any other enactment. However, nothing in the Bill prevents Tusla from processing information from a related record given to the commission by Tusla itself. The Bill also enables appropriate access for the essential maintenance of the digital database and related records. The Bill provides no new entitlement to information.

By legislating for the urgent protection and limited use of these databases now, my intention is to provide an important foundation upon which we can build. In the future, I plan to advance comprehensive information and tracing legislation, which will expand access to the entire suite of information now being transferred to Tusla. However, as Senators will understand, this is a challenging task that requires a balance between the complex constitutional rights, and its not a balance that we can achieve in this particular urgent legislation.

The Bill also includes a number of technical amendments to the Judicial Council Act 2019 as proposed by my colleague, the Minister for Justice and Equality, Deputy McEntee. Given the timeframe for the finalisation and submission of records, there is an urgent need for this Bill to be passed and signed into law prior to the dissolution of the commission on 30 October. It is imperative that the valuable information compiled and developed by the commission is preserved for posterity by passing this legislation before that date.

I will outline the Bill's key provisions, which should be read in the context of the relevant powers, procedures and protections in the Commissions of Investigation Act 2004.Section 1 is a standard provision which provides definitions of key terms used in the Bill. The term "database" specifically includes all the databases developed by the commission with regard to the former residents of the institutions being examined. The definition of "related record" refers to the source material from which information was obtained for the purpose of creating the database. In practical terms, these sources are institutional and public source records which were obtained by the commission in the course of its work.

Section 2 provides for the commission to deposit the database and all related records with Tusla as soon as possible after enactment. The Bill substitutes Tusla for the Minister as the recipient of these specific records. Section 2 also confirms that the material shall be transferred without redaction. It is declaratory at the current provision under section 43(2) and has been included in the Bill purely for the avoidance of doubt.

Section 3 deals with restrictions on processing of the database and records received by Tusla. It stipulates that Tusla may not process records or information provided to the commission except where authorised or required under the data protection regulation, the Data Protection Acts 1988 to 2018 or any other enactment, or for legitimate purposes related to maintenance. The section expressly states that nothing in the Bill or the Act of 2004 shall prevent the processing of information which originated from any record given to the commission by Tusla. The Bill does not provide any new entitlement to access information in the possession of Tusla or to the archive which transfers to the Minister in accordance with section 43(2) of the 2004 Act. This would have to be addressed by separate legislation in the future.

Section 4 deals with the application of section 45 the 2004 Act in respect of evidence and documents to be available to tribunals. This section ensures consistency with the 2004 Act insofar as the evidence and records to be deposited with the agency can be made available to a tribunal of inquiry in the event of the future establishment of such a body.

Section 5 provides that, for the avoidance of doubt, the obligation to deposit records with the Minister in accordance with subsection 43(2) of the 2004 Act is an obligation to deposit such evidence and documents without redaction thereof. This section is declaratory of the current position under section 43(2) and has been included in the Bill purely for the avoidance of doubt.

Section 6 amends the Judicial Council Act 2019. That Act provides for the establishment of various committees of the Judicial Council including the personal injuries guidelines committee. It provides that the committee shall submit the first draft of personal injuries guidelines to the board of the council within a defined period and also provides that the draft guidance guidelines will be considered and adopted by the council as soon as is practicable and in any event no later than 12 months after their submission. It is these provisions which are the subject of the amendments in the Bill.

Section 6 substitutes a new paragraph for section 7(2) of the Judicial Council Act 2019 and amends section 18(4) of the 2019 Act to allow the personal injuries guidelines committee to complete its work with a new extended statutory deadline of 9 December 2020 and for the council to adopt the personal injuries guidelines by 31 July 2021 at the latest. Section 7 is a standard provision enabling expenses incurred in the administration of the Act, other than by section 6, to be paid by the Minister for Children and Youth Affairs out of moneys provided by the Oireachtas. Section 8 is a standard provision to provide for the Short Title of the Bill which reads, "This Act may be cited as the Commission of Investigation (Mother and Baby Homes and certain related Matters) Records, and another Matter, Act 2020."

The provisions of this Bill are not expected to give rise to any significant additional costs to the Exchequer. The associated costs will be met from within the Vote from the Department of children, equality, disability, integration and youth.

As colleagues will be aware, access to information is a recurring and priority concern for those directly involved with the mother and baby home institutions. This legislation represents an important and urgent measure in terms of preserving valuable databases and records which speak to that very concern. I understand there are genuine expectations that this database should enable additional information to made available to residents. In that regard, it is essential to understand that Tusla is still bound by the continuing significant constitutional constraints in terms of access to information. This can only be dressed by future legislation, something to which I am absolutely committed. I appreciate that some stakeholders have argued that the database and related records should be transferred to a body other than Tusla.The rationale for specifying Tusla as the recipient of the database is that it already has statutory responsibility for adoption tracing services under the Adoption Act 2010 and dedicates substantial resources and expertise to carrying out tracing functions. Crucially, it currently holds the originals of many of the relevant institutional records. Legally, this enables the maximum value to be obtained from the database in the immediate term while comprehensive information and tracing legislation is being put in place. A transfer to any statutory body other than Tusla, such as the Adoption Authority of Ireland, AAI, would mean that two different statutory bodies would hold the same records, with Tusla holding the originals and the AAI holding the database and associated copies. Such duplication would be inefficient and lead to confusion.

Tusla will be fulfilling an important public service in safeguarding this database in the immediate term. The appropriate body to retain such records in the Iong-term will be the subject of further consideration in the course of bringing forward new legislative proposals for enhanced information and tracing services. I will, of course, seek further engagement with stakeholders as I advance these deliberations.

Due to the urgent need to pass this legislation before the commission is dissolved, I appreciate there has been limited time to review the proposals. The requirement for pre-legislative scrutiny was waived by the House Business Committee at my request. However, I hope that the recent briefings I provided, as well as the information outlined today, have been helpful to Senators. I thank the Seanad for the opportunity to come before it today to outline this important Bill and I look forward to the debate. Ireland has come a long way from the Ireland of the 1920s. Ours is, I hope, a more progressive, tolerant and equal society. Our commitment to remembering and learning from our past must be absolute. The forthcoming report of the commission is a crucial element of that national process of learning, understanding and acknowledgement. This legislation is also crucial to ensure that records of the commission are preserved and the opportunity presented by the database, in terms of laying the path towards fuller access to early life information, is not overlooked. We have a duty to the former residents and survivors of these institutions to pass this legislation and I would welcome Senators' support for it.

I commend the Bill to the House.