Joe McHugh (Donegal, Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time."

Tá áthas orm deis a bheith agam labhairt ar an mBille tábhachtach seo.

The Bill’s purpose is to ensure the records of the Commission to Inquire into Child Abuse, the Residential Institutions Redress Board and its review committee are not destroyed, but are instead retained for posterity.

I will now outline the Bill's key provisions. It provides for interaction between the redress bodies and the National Archives to determine which records should be disposed of and which should be retained. It also provides that on the dissolution of the bodies, their records are deemed to be records of the Department of Education and Skills and transferred to the custody of the National Archives; that on their transfer to the National Archives the records will be withheld from public inspection for a period of not less than 75 years; that access to the records may only be possible at that point when regulations are made by the Minister; and that a number of provisions of the National Archives Act 1986 will not apply to the records. This mainly covers the disapplication of provisions that govern access by individuals and Government Departments.

The historical context for this Bill is important. It is almost ten years since the report of the Commission to Inquire into Child Abuse published its final report, popularly known as the Ryan report. The commission was established in an atmosphere when the scale of abuse in the residential institutions was only becoming known. However, without the benefit of the commission’s work and the testimony given to it, the truth of what happened in these institutions might never have been made public.

The commission and the Residential Institutions Redress Board, which was established to provide financial redress to survivors of abuse, are key elements in the State’s response to institutional child abuse. The Ryan report is an exemplary work which rigorously charts the history of the residential institutions. It exposes the scale and systemic nature of the abuse which was perpetrated within them and the failings of those who managed and supervised the institutions in allowing this abuse to continue to take place. While those institutions no longer exist, it is important that the history of institutional abuse is preserved and not forgotten.

It is also important that those who suffered abuse were provided with redress. As I have said, the Residential Institutions Redress Board provided financial awards to those who suffered abuse, while the Residential Institutions Redress Review Committee provided for the independent review of such awards where applicants so wished. The redress board has virtually completed its work, with just a very small number of cases yet to be finalised. Some 16,650 applications to the redress scheme were accepted, with 15,600 awards offered to survivors or their families. Costs of €1.25 billion will have been incurred under the redress scheme, including awards, legal costs of applicants and administration costs.

The national counselling service and the family tracing service provided by Barnardos are other important elements of the State’s response and are available to former residents. Funding of €12.7 million was provided to the now dissolved Education Finance Board to enable it to provide grants and supports to former residents and their relatives to assist them in accessing educational services. The Residential Institutions Statutory Fund, which operates under the name of Caranua, was established in 2012. Caranua administers the fund of up to €110 million pledged by the congregations as part of their contribution to the costs of redress. To date, it has expended some €91 million, including administration costs, engaging with and funding supports for survivors. It has received more than 6,500 applications and more than 5,000 individuals have received support.

In addition to these measures, my Department has engaged professional facilitators to support the planning of consultations with survivors on their experiences of redress and on how they might be supported into the future. My Department has also convened an interdepartmental committee to examine how existing State services can support the needs of survivors.

I turn now to the nature of the records to which the Bill refers. These are highly sensitive and personal documents. The records of the Residential Institutions Redress Board and the review committee are essentially the applications for redress made by individual former residents. These records would include much personal data, including, for example, detailed family information regarding the individual applicant and perhaps others such as parents, siblings, spouse or children. They could include details of the circumstances leading to the individual being placed in a residential institution and details of the abuse suffered in the institution and its impact, etc. Detailed medical and psychological reports regarding the individuals which may also be on file. The views, if any, of the relevant management body on individual applications made to the redress board may also be included, together with papers regarding the determination of a redress award. The records are also likely to include information regarding alleged perpetrators of abuse, based on the information provided by victims. This information was not contested and the individual against whom an allegation was made may not be aware that such information exists in the records.

The records of the Commission to Inquire into Child Abuse contain the papers of both the commission’s investigation committee and its confidential committee. This includes personal testimony of former residents, members of congregations and other individuals who testified before the commission. Again, this testimony contains details of abuse of various forms and committed by various persons. It was certainly the view at the time of the establishment of the commission that, without assurances of confidentiality, it would have been very difficult to persuade people to engage with the commission. Without that engagement, the light which the Ryan report shone on the abuse would have been dimmed significantly.

It is, I hope, apparent from this summary of the very sensitive and highly personal nature of the records in question why mechanisms to ensure confidentiality, including the disapplication of the provisions of the Freedom of Information Acts, were enshrined in the legislation establishing the bodies. The Acts in question are the Commission to Inquire into Child Abuse Act 2000 and the Residential Institutions Redress Act 2002.

The ultimate protection provided in the Acts was for the disposal and destruction of the records of the bodies once they had completed their work and prior to their dissolution, which is also provided for in the legislation enacted by the Oireachtas. However, it is also the case that, with the growing state of knowledge about institutional abuse, to which the work of the commission and redress board made a significant contribution, concerns arose in relation to the destruction of the records. In this regard, a motion on the Ryan report, which was adopted by Dáil Éireann on 12 June 2009, noted "the desirability that, in so far as possible, all of the documentation received by and in the possession of the Commission to Inquire into Child Abuse is preserved for posterity and not destroyed."

The Ryan report is a comprehensive account of the extent of the abuse that was perpetrated and its impact on the individuals concerned. However, even in some 2,500 pages, it could not tell the many personal stories of those affected. Retention of the records will ensure that these stories are kept. The records also contain testimony from those involved in the operation and supervision of the institutions. This is information which is also of great significance in understanding this dark period in our history. These are, therefore, historically important records which could, in time, become primary source material for historians and family members seeking to undertake genealogical research or simply to understand what their father, mother or other relatives suffered while in an institution.

The purpose of this Bill is to amend the current legislation, which would see the records destroyed, to establish a new Act, which would seek to balance the need to retain the confidentiality that was promised to those who provided personal information with the need to preserve what are important historical records. There is no doubt that the question of destruction of the records - the current status quo- or retention is complex. The timing of release is also significant. On the one hand, it requires weighing in the balance the original assurances of confidentiality, the associated provision for the destruction of the records and the sensitive and personal nature of the records. On the other hand, due consideration must be given to the wider public interest in ensuring that the history of child abuse in the residential institutions is preserved.

I am aware that when the draft scheme of the Bill underwent pre-legislative scrutiny, there was significant concern about what would be the impact on individuals if the records were released. Some of those concerns have been amplified by the coming into force of the general data protection regulation, GDPR. Cognisance of those concerns has been reflected in the drafting of the Bill and in the context of the data protection impact assessment which my Department will publish in due course.

I am also aware that there is a spectrum of views. Some favour disposal of the records, some want their immediate release and others support retention for varying periods and-or release with redaction.

These matters required careful consideration and that consideration has been given in the development of the Bill before the House today. The Government has been supportive of the intention behind the Dáil motion and has been anxious to give that intention effect in a way which takes account the sensibilities and rights of those persons who are named in the records.

The result of that consideration, which includes significant legal advice, is that the records should be retained and transferred to the National Archives, but that they should be withheld from public inspection for a lengthy period. This period is specified in the Bill before the House today as being at least 75 years.

I will now address the main provisions of the Bill. The Bill is short and contains only 11 sections, a number of which are standard provisions. I will now outline them.

Section 1 defines the terms used in the Bill. Section 2 provides a mechanism for the disposal of records not requiring to be retained. As would be expected in archival processes, not all the records of the bodies will warrant preservation. For example, there will be routine administrative records on file. Decisions in regard to the disposal are, in my view, best left to the bodies themselves with the director of the National Archives having the final say in the matter. Under this section, the bodies will certify that particular records or classes of records are not required to be retained and the director, on being satisfied that the records in question do not warrant preservation, may grant an authorisation for their disposal. Records must be disposed of confidentially. These provisions are similar to those in section 7 of the National Archives Act 1986 and reflective of the normal practice the National Archives would go through when assessing records for preservation. The section also provides for the inspection of records by the director and for the making available to the director by a body of records for the purposes of the section that may otherwise be prohibited from being disclosed. This provision is required in order to overcome the restrictions on access set out in existing legislation.

Section 3 provides that the records of the three redress bodies will, on the dissolution of the bodies, become records of the Department of Education and Skills and be transferred to the National Archives. The records will then be withheld from public access for a period of at least 75 years. Release of the records will be contingent on regulations being made under section 6 of the Bill. It is important to note that if no regulations are made, then the records cannot be released.

As the records will come under the scope of the National Archives Act 1986, it is necessary to provide that the definition of "archives" in that Act should include a record transferred under section 3(1) of the Bill. Section 4 makes provision for this.

Section 5 provides that a number of sections of the National Archives Act 1986 will not apply to a record transferred under the Bill, while other sections will not apply during the sealing period. This is to ensure the integrity of the confidentiality provisions. Essentially, any provision of that Act that provides for access to records is being dis-applied. For example, under the 1986 Act, a Department could retain a copy of a record transferred to the National Archives or could requisition records back from the National Archives. This will not be possible in the case of these records. Once records are transferred to the National Archives, they may not be disposed of during the period for which they are sealed. The existing right of persons to inspect archives in the custody of the National Archives must also be dis-applied. As the Bill contains provisions regarding the disposal of records and the transfer of records to the National Archives, the existing provisions set down in sections 7 and 8 of the National Archives Act are being dis-applied.

I mentioned earlier that access could only take place if regulations are made and section 6 makes provisions for this. Such regulations can be made no earlier than 12 months prior to the expiry of the 75 year period and following consultation with the director of the National Archives. The regulations do not prescribe the specific issues that should be addressed in the regulations as it is not possible at this remove to specify what those issues might be. As I mentioned earlier, the regulations will consider arrangements in regard to the release of the records based on the circumstances prevailing at that time, and not now. However, the regulation making provision requires that the Minister of the day, when proposing to make regulations, must have regard to the impact that any resultant disclosure of information may have on the well-being and emotional state of persons alive at the date of the making of the regulations. This enables any concerns that there may be that the release of the records may have an effect on persons still alive at that time to be taken into account. Positive resolutions of both Houses of the Oireachtas are required before any regulations are made.

Sections 7 and 8 provide for the removal of the existing power of the redress bodies, set down in the Commission to Inquire into Child Abuse Act 2000 and the Residential Institutions Redress Act 2002, under which the bodies would determine or make arrangements for the disposal of their records. Other amendments to those Acts are also being made.

Section 9 continues the existing restriction of the Freedom of Information Act 2014 to records transferring under section 2(1). Sections 10 and 11 are standard provisions dealing with expenses, citation and commencement.

When the draft scheme of this Bill underwent pre-legislative scrutiny, the substance of concerns raised related to: the right to privacy; the right to a good name; and the issue of legitimate expectations of confidentiality. I must stress again that these issues were given detailed consideration. That is reflected in the measures in the Bill in respect of: the duration of the period of retention and the provisions in respect of the timing of the making of regulations; and the requirement to take into account the impact of release of records on persons alive at the time of the making of the regulations.

Questions have also been raised as to why the existing provisions of the National Archives Act 1986 would not be sufficient. I acknowledge that the National Archives Act 1986 provides for a certification process to limit access to records that could potentially be open for access after 30 years. However, this provision does not give sufficiently robust assurances regarding the treatment of the records. This is especially the case when account is taken of the fact that their retention represents a substantial change of approach relative to the process of destruction that is provided for in the existing legislation governing the bodies. It is precisely for this reason that the lengthy withholding period is being proposed.

I should at this point make it clear to the House that the records which are already extant in my Department in respect of industrial schools and reformatories do not come within the ambit of this Bill. They will be treated under the general provisions of the National Archives Act as they apply to departmental records. In addition, certain personal records of persons who were committed to industrial schools are held by my Department and are accessible under freedom of information. That position remains unchanged under the Bill.

Questions have also been raised as to whether the records might be released on an anonymised basis and consideration has been given to this approach. However, it has a number of deficiencies which are as follows. First, it would rob the records of much of their historical significance. The Ryan report itself already presents an anonymised, or, to be strictly accurate, pseudonymised, account of the residential institutions and the abuse which took place within them. Therefore, relative to that report, anonymising the records would take away much of the additional significance of the records themselves. Second, anonymising the records would not be without risk that personal information could be revealed, either through an administrative error or by inference from the remaining content. Lastly, the anonymisation of the records would represent a massive and costly undertaking, given that there are in excess of 2 million individual records involved. This, of itself, would not be reason enough to rule out this approach, but in light of the other drawbacks I have alluded to, it must also weigh on the considerations.

As I have said, there are arguments on both sides in favour of destruction or retention and on the timing of release of the records. It is unlikely that those arguments will be conclusively resolved given the differences of view which have been expressed on the matter.

The Government is, however, anxious to respond to concerns from survivors that their experiences will be forgotten. That is why, on Committee Stage, I intend to bring forward a proposal to provide for a review of the operation of the Bill after 25 years. While not being prescriptive, I envisage that such a review will provide an opportunity to look at the situation of survivors and at any developments in relation to the history of the various institutions in which abuse took place - a so-called "archipelago of institutions" which, regrettably, extends beyond those comprehended by this Bill.

The Ryan report recommended that a memorial to survivors be erected. Unfortunately the proposals for the erection of such a memorial on a site adjacent to the Garden of Remembrance on Parnell Square in Dublin failed to receive the requisite planning permission. Memorialisation is a recurring theme for survivors of institutional abuse and while I would like to move forward with memorialisation in relation to the residential institutions for which my Department had responsibility, I see merit in taking a whole-of-government approach to memorialisation, especially given what we now know about the interconnectedness of these institutions.

See this speech in context