Clare Daly (Dublin Fingal, Independent) | Oireachtas source

The preservation of the records of the three inquiries would be welcomed by everybody. It is probably overdue in many ways. The fact that positive act, and the legislation being proposed to do that, would also contain within it one of the more regressive, unhelpful and draconian elements of legislation is appalling. It strikes a chilling tone. This is being enforced in respect of citizens who have already been violated by this State. I find that utterly shocking. I realise this legislation is being pushed because of the lack of other legislation before the House due to uncertainty with Brexit. It is completely unhelpful that this is being rushed because of that vacuum.

The first thing to state is that the sealing of records or archives for 75 years is unprecedented, unnecessary and extreme. I will oppose this tooth and nail. I am shocked by it. The Minister needs to clarify what records we are talking about and why. We have heard allusion to sensitivity regarding survivors etc. Many administrative records are also included, however. They are not testimony but they will help us understand how the commission operated. If those records are buried, that will fulfil the worst expectations people have regarding a cover-up.

The National Archive Act 1986 provides for officers of Government Departments, with the consent of the Department of the Taoiseach, to certify that the release of departmental records which are more than 30 years old in some circumstances:

(a) would be contrary to the public interest, or

(b) would or might constitute a breach of statutory duty, or a breach of good faith on the ground that they contain information supplied in confidence, or

(c) would or might cause distress or danger to living persons...

That clause already exists and it is adequate to protect any information or any person in need of protecting. The excuse, therefore, of why we need this gagging order inserted does not hold water. The sensitivity and interests of the people who might be damaged regarding information they gave in confidence is already protected under the legislation to which I referred. Why, therefore, are we doing this? What is being gagged? We do not know the wishes of the people who gave the testimonies. We know some are deeply distraught at even the mention of this legislation. Can the Minister state what percentage of the people who gave evidence before the commissions wanted the records sealed for 75 years? Were the survivors consulted about this proposal? Were alternatives considered and given? How many people were asked or given options about how to preserve their records? Do they have a copy of their own testimonies?

We know people who gave testimony to the mother and baby homes commission have not been given a copy of their own testimony. I do not think that is adequate or fair. The former head of the National Archives, Catriona Crowe, has already been quoted here. That is appropriate and not an accident. I am going to quote her again because she is the foremost authority on archives in this State. Archives are the public's information and part of our history. Ms Crowe recently stated there was no clear reason why people should be denied access to copies of their own information. Such access would be entirely in keeping with modern data requests.

Ms Crowe gave the example of the Military Pensions Act 1924, and related Acts, that required applicants to submit detailed information on military actions in which they were involved from 1916 to 1923. A copy was given to the applicant in every single one of those cases. Why are the survivors of abuse not given the same respect? The survivors themselves have asked that question. The files created under the Military Pensions Act dealt with serious conflicts, including the 1916 Rising, the War of Independence and the Civil War. Those conflicts involved many sensitive issues but they were not subject to a gagging clause. There was no problem with them at all.

Even after the controversy around the Boston tapes, nobody mentioned imposing a 75-year rule. In those examples nobody saw fit to have a 75-year rule, yet there is to be a different set of criteria for the victims of industrial abuse. This is the story of those people's lives. They have been treated differently and disrespected all of their lives and the same will apply to their records after their deaths. It is the final insult for so many people.

Catriona Crowe raises very important questions about the legality, or lack of legality, of the proposals because the legislation will, in effect, disable parts of the National Archives Act 1986 and place records beyond the Freedom of Information Act 2014. This is a step which will weaken citizens' rights to access vital information about themselves and which, in the era of the GDPR, is potentially illegal. As other Deputies have said, this clause will obviously have an incredibly negative effect on public discourse and will reinforce a culture of silence and shame with regard to issues of child and sexual abuse. It cuts across educational and cultural awareness of these issues. In that sense, it is incredibly regressive and unbelievably disproportionate. I cannot see any logic in it whatever.

It is ironic that this Bill is being dealt with shortly after the UN special rapporteur on child and sexual abuse made statements in which she singled out the damage that can be caused by the culture of silence. We are perpetuating this culture in this Bill because one of our last dirty little secrets will be locked up for 75 years.

Let us consider the reasons we keep archives and why they are so important. In the first instance, we keep archives to ensure that our knowledge of the past and of human social life in all its varieties - good and bad - remains available for the future. It is very important that records are preserved and we welcome that part of the Bill. However, withholding them for 75 years instead of the standard period is not justified given that, as other Deputies noted, records can be anonymised and sensitive material redacted. Furthermore, the legislation also provides a safety valve, as I mentioned.

The 30-year rule is now considered too stringent. The United Kingdom has passed legislation to transition to a 20-year rule by 2022. It is absolutely inevitable, with or without Brexit, that Ireland will follow suit with regard to that clause. We have to do so in the interests of academia and scholarly access to information. Ireland will follow and have a 20-year rule because researchers and students need to have archival access at the same time. Otherwise, there will be an imbalance and a bias in historical research that will not be helpful for humanity across Europe. It is inevitable that the 30-year period will change. Despite the move towards a 20-year rule, we are adopting a 75-year rule for this special situation. We should not engage in limiting our understanding of history or our research options. We should be trying to manage our archival resources in a thoughtful manner on a par with our European neighbours, rather than resorting to excessive gagging legislation which will hinder future research.

To hold back particular records for a much longer period than is the norm sets a very worrying precedent and arouses justifiable suspicion. Many of the survivor groups already feel there has been an incredibly inappropriate delay in dealing with the conditions their members experienced and addressing the criminal activity that took place in the institutions. Those conditions and that activity were ignored and covered up and these people had no recourse to the justice system for most of their lives.

In the UK, an escape clause is used to block the release of archives after 30 years. Where do these exceptions normally apply? In Britain, they are applied to files relating to matters such as the Westland affair, the Gibraltar killings and the Falklands War. In other words, they are applied to files relating to incredibly controversial events. Most of us believe that these files are being gagged beyond 30 years because the British State has something to hide in respect of these matters. That is the reason. Does the same reason apply in this case? Is that why we are doing this? It looks very much like that is the case because there is no other logical explanation for this approach. Survivors see it as a cover-up. The only precedent relates to extremely controversial international events in respect of which the State has something to hide. There in no other precedent. Unless the Minister can give me a good reason not to do so, I will strenuously oppose the Bill. This is not just important for the victims but also for history and future generations.

The Cambridge historian, Richard J. Evans, who is coincidentally speaking in Trinity College this evening, was a key expert witness against the racist anti-Semite and falsifier of history, David Irving, in an historic trial in April 2000. Irving falsified the history of the Second World War in many of his books in order to deny the Holocaust. Evans testified against him as an expert and his expert witness testimony systemically traced the false footnotes and misleading references cited by Irving to their archival sources. Through that process, he was able to discredit Irving's false history of the Second World War. It was an incredibly important case and a lesson for all of us. If those resources and archives had been gagged or buried, it would have allowed charlatans or racists like David Irving to present their warped view of history unchallenged. Historical scholarship has to have the ability to reach reasoned conclusions on the basis of careful examination of written evidence. That is all we are asking for. We cannot engage in obstruction of the historical record, which is what this looks like. We need to have the capacity to know what happened to all of these people when they are no longer around to tell us themselves. That is absolutely vital. To impose any special clause on that is to do them, their families and their testimonies an enormous disservice. I am very unhappy about this.

There is a certain irony in discussing this legislation in the era of fake news and the rise of the far right. Accuracy and truth are hugely important. Burying the truth causes major problems. It is something that we, as a society, cannot afford to do. As we have done here many times before, I salute the efforts of the victims and those who had the courage to speak up, speak out and come forward to testify against the perpetrators of violence and sexual abuse. Many of those perpetrators remain unaccountable for the heinous crimes they committed. To call for an exceptional seal on those records for 75 years creates the impression that something is being hidden. It is a case of shame and stigma all over again and it is not helpful for healing. Critically, it has no basis in Irish archival law.

I indicated earlier that in her report to the Human Rights Council last month, the UN special rapporteur heavily criticised Ireland for what she described as a culture of silence around issues of childhood sexual abuse and exploitation. She had not even seen this legislation. Wait until she does because she will add to her report. She also highlighted the reason she singled this issue out as a cause for concern. She said that historical precedents impact on the situation today. That is absolutely the case. If we do not learn lessons from the past, we cannot move forward into the future. We know the State's response to the legacy of sexual abuse, incarceration, forced adoption and mother and baby homes has been a disappointment to the survivors. Instead of support, redress, and access to justice, the State has engaged in denial, delay, gagging survivors and limiting the scope of investigations. It has left people behind in respect of Bethany Home and the Magdalen laundries and has given indemnity to many perpetrators, including St. Patrick's Guild and the like. It has let religious orders off the hook for the financial bill and traumatised many of the victims all over again through the establishment and mismanagement of Caranua. This is part of that process.

It did not have to be this way. That is what really sickens me. Other countries in which similar abuses took place, including Canada, the UK and Australia, did not deal with the issue in the way in which we are dealing with it - or not dealing with it as the case may be. They moved faster and were more compassionate. They issued apologies and dealt with redress. They accepted the state's role in the abuses, held their hands up and allowed people to move on. In this country, the permanent government has decided to dig in, protect the State at all costs and, I suspect, protect some of the religious orders as well. This Bill is another part of that process.

The sealing of records has already taken place in terms of, for example, adoption records. It helps no one and causes a lifetime of grief. We cannot have that.

The Government is being disingenuous about the sensitivity of the files. I do not mean the Minister personally, but that is the only conclusion I can draw from the legislation before us and the fact that the State has never acted in the interests of survivors of abuse or their families. We have seen that time and again in the form of the Magdalen redress scheme, Caranua, Bethany Home, illegal adoptions and so on. The State's approach in the first instance is to protect itself, not the survivors. That is the hallmark of every option it takes. It should be the victims who make the call to draw a line under something, not the State.

Catriona Crowe has done a great deal to highlight some of the institutional abuses that took place. Her curiosity was raised when she found files that originated in another jurisdiction. That led to her taking a closer look and discovering 1,500 documents relating to the illegal adoption of children to the United States. Apart from the heartbreak of the families involved, the startling aspect of her uncovering of those historical records was the fact that the State, through officials in the then Department of External Affairs, had facilitated the illegal export of children. It is no wonder that people are suspicious of the Government's intentions in sealing records, but the truth will out no matter how great the attempt to bury it, which is what this Bill is doing.

I will quote Catriona Crowe's remarks on this legislation in the Irish Examinerlast week:

The existing provisions of the National Archives Act are more than adequate to cover access to these records ...

These records are vital for an understanding of the policies and operations of the commission, and there is no reason at all why they should be closed for 75 years.

We should all remember that survivors should be the primary consideration with regard to these records.

They were brave enough to give testimonies about their shocking treatment to the commission, and the emphasis now should be on establishing what they want, and as far as practicably possible, meeting their wishes.

I have not met a survivor of these institutions who wants this legislation. Survivors want the truth to come out, justice, a full acknowledgement, an apology and redress. They do not want a continuation of the culture of silence that led to them being incarcerated in these institutions for so long and to so many people not being called to account for what happened. I hope that we will see sense and, while preserving these documents, ensure that they are subject to the normal protections that exist as opposed to this special gagging clause.

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