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

Ireland's recent history is sadly littered with a legacy of failings related to the care of our citizens in institutional settings. This is no less true for the mother and baby homes and county homes that operated in this country throughout much of the previous century. Our most fundamental duty today is to acknowledge the profound failures and mistreatment of Irish women and their children. They were cruelly deprived of their choice and agency and in so many cases were coerced into institutional settings that were designed to reinforce in brutal terms that their power to exercise a free choice about their own lives would not be tolerated in the society in which they lived. Over the past two decades, as a country we have been working to confront this terrible legacy. The names of the various investigations and institutions are known to us all, and we feel a collective sense of outrage and of sorrow when the truth is finally revealed. Even over the past two weeks, people have spoken about their experiences, the experiences of family members and the hurt and pain that was caused and that was silently carried for far too long.

I want to acknowledge all who have written, emailed, and called Deputies, Senators and my office about this Bill. It speaks to the genuine and profound depth of feeling, and sense of both solidarity and empathy that Ireland has for those who suffered institutional abuse at the hands of State and religious institutions. I have read the letters and emails received, and listened as survivors and their family members spoke about their experiences and the anxiety that much of the reporting around this legislation has created. I know that this debate will be watched closely, and I am acutely aware of the responsibility that I have, as Minister, to do the right thing by the survivors of mother and baby homes, as well as their families. This is not ancient history. This is real and live trauma for a great number of people in this country.

It is important to state clearly that this Bill does not seal the mother and baby homes archive for 30 years. The legislation has one objective: to stop invaluable information from a database tracing the entry and exit of women and children from the mother and baby homes from being put beyond reach. In doing so, the Bill aims to try to address some of the core concerns of those who were so badly let down in our recent past; those who were robbed of their identities and of their capacity to navigate the course of their lives by virtue of being placed in a mother and baby home. Nothing in this Bill will seal important records, or put invaluable information beyond reach. In fact, we are trying to do the opposite.

In 2015, the then 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 over a period of 75 years in the 20th century. I am informed by the commission that this has been an exhaustive and rigorous investigation that will result in a substantial report exceeding 4,000 pages. The investigation will shine a light on the pain and anguish experienced by women who found themselves in these institutions, and on the children who began their lives behind those institutions' walls. Women were hidden away in these places because of the stigma associated with being an unmarried mother at that time in our history.

The commission's report will finally allow us to share and acknowledge the lived experiences of these women and children during a period of our history defined by silence and shame.

The Commission is charged with investigating specific sensitive issues with the practices and procedures in respect of the care, welfare, entry arrangements and exit pathways for women and children who were residents in these institutions. It is also tasked with completing an academic social history spanning a period of 75 years. This will chart the journey of many of those who passed through these places and the lifelong trauma they unjustly experienced as a result. The commission's report will put these experiences into the context of the society in which they occurred.

As Deputies will know, 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 explicit voice to the mothers and their children. The hidden secrets of life in these establishments, as told by survivors, will finally be reported and, most importantly, their brave contributions will assist the commission to ground its findings in lived experiences.

I understand the anxiety felt by those who have associations with the mother and baby homes in waiting for this much-anticipated report. The commission of investigation is due to submit its final report to me by 30 October 2020. As prescribed by the Commission of Investigation Act 2004, on submission of its final report the commission will stand dissolved and, prior to its dissolution, must deposit all commission records with me as the prescribed Minister. The 2004 Act provides for the publication of the final report of a commission by the prescribed Minister and further provides that the archive of records will remain sealed tor a period of 30 years, after which time its availability for public inspection is governed in accordance with the National Archives Act 1986.

It is essential to recognise that when we talk about a commission's records we are taking about the evidence established by a statutory inquiry using the significant statutory powers provided to it by the Oireachtas. The use of such powers, which include extensive powers to question witnesses and direct the production of records, must be balanced with proportionate safeguards to protect the constitutional and legal rights of all parties. The 2004 Act is a legal framework specifically designed to achieve this careful balance and it is not credible to suggest we can now rapidly alter the basis on which the entirety of this evidence was compiled without due regard for the legal consequences of doing so.

However, although much of the debate has conflated the genuine aims of this Bill with the pre-existing legal requirements in place in respect of the sealing of the commission's records for 30 years, it is impossible to ignore the volume of correspondence I have received expressing very legitimate and grave concerns that some important commission records - essential validating personal information for survivors - would be put beyond reach for 30 years. I understand the anguish this legal requirement may cause, especially where people may have been only learning of this rule for the first time. It has become very apparent to me this week that although I believe it is absolutely vital for survivors and their families that we enact this legislation to allow the database to be preserved, the Bill has nevertheless brought into sharp focus other very real and grave concerns which absolutely must be listened to. These concerns are centred on how the 30-year archiving of records, as required of the commission of investigation into mother and baby homes, impacts the legitimate expectations of survivors and relatives to access important personal information related to the circumstances of their time in these institutions. It is clear that a re-examination of the current approach on how access is provided to the archives of the commission for certain validating personal information for survivors is needed. In so doing, it is my view that there exists an obligation to survivors and their relatives that goes beyond purely legal questions. To begin this process, I am today committing to two actions.

First, I have requested - this has been agreed - a detailed engagement with the Attorney General's Office on the issue of personal data access in the commission's archives, which is so vitally important to so many former residents.

Second, I intend to request the Oireachtas Joint Committee on Children, Disability, Equality and Integration to lead on this re-examination in a format that would allow for survivors and their representatives, expert legal opinion and other leading academics to explore thoroughly the major principles underlying the debate on access to personal information in the commission's archive and to make a set of recommendations aiming to resolve the very real difficulties which the passage of this legislation has highlighted. As part of this, I am committed to working closely with the committee towards finding a way forward.

It remains my intention to pass the Bill through the Oireachtas in order to safeguard the database. I believe, however, that by giving time, space and substantive consideration to the complex issues raised, we can and will do right by all those who passed through the mother and baby homes. In the meantime, I must stress that although it is the commission records that are required to be sealed, there will nevertheless be a very significant quantity of information available. The commission's final report is vast and comprehensive. It will include survivors' personal stories in anonymised format, accessible to all those who told their own stories. Many of the records of the commission are copies of originals held by other institutions, such as the HSE, the Department of Health and so on. The originals remain available for access under the relevant law. As part of the final report, the commission will publish an 80-page index listing the information it accessed in compiling its report. This index will be available to survivors and researchers freely.

The Bill I am putting before the House deals with serious legal and practical issues raised by the commission of investigation regarding the finalisation of its records. It aims to safeguard records gathered by the commission over the course of its five-year investigation in order that they be preserved intact and available into the future. The Bill does not put information beyond reach; the intent is quite the opposite.

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 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 great assistance to those involved in providing information and tracing services. It believes, however, that as the records compiled contain 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 databases and related records, prior to transfer. Notably, the commission believes that legislation is required in order to address these matters.

It is important to consider in the discussion of records, archives and databases what exactly is at stake here. This database contains the names and personal details of young women, babies and children who passed through these homes. It will be a lifeline for many vulnerable people to establish their full identities or shine a light on that part of their past that has been hidden. This could help heal the wounds that this system of institutional abuse created. It is effectively irreplaceable.

Having examined the issue, the Government concluded that there is a strong rationale for legislation to be passed in order to protect the complete records of the commission and to provide specifically for the transfer of the valuable databases and related records from the commission to Tusla in order that they can support information and tracing services for former residents. This is the essence of the bespoke legislation before us today. It is about preserving a priceless and unique source of information.

The 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, the Bill also provides for the transfer of the databases and related records directly to Tusla. This ensures that this unique and invaluable resource is preserved and maintained and remains available, albeit on a limited basis in the first instance. This 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 databases and related records. The Bill provides no new entitlement to access information.

By legislating for the urgent protection of these databases now, my intention is to provide an important foundation on 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. As Deputies will appreciate, however, this is a complex challenge which requires the balancing of constitutional rights and is not one which can be progressed in the present 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.

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, that is, the database, is preserved for posterity by passing this legislation before that date.

I will outline the key provisions of the Bill as initiated and I propose to bring forward a number of amendments in response to some of the concerns that were raised in the Seanad debate.

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 purposes of creating the databases. In practical terms, these sources are institutional and public source records that 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 following enactment. Section 2(2) confirms that the material shall be transferred without redaction. It is declaratory of the current position under section 43(2) of the 2004 Act and has been included in the Bill purely for the avoidance of doubt. My understanding is that these records do not contain any witness testimony.

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 by or under the general data protection regulation, GDPR, 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 that originated from any record given to the commission by Tusla itself. The Bill does not provide any new entitlement to access to 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 of 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 section 43(2) of the 2004 Act, is an obligation to deposit such evidence and documents without redaction thereof. The 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 guidelines will be considered and adopted by the council itself as soon as practicable and in any event not 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 Act to allow the personal injuries guidelines committee to complete its work within 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 section 6, to be paid by moneys coming from my Department.

Section 8 is a standard provision to provide for the Short Title of the Bill. The Act may be cited as the Commission of Investigation (Mother and Baby Homes and certain related Matters) Records, and another Matter, Act 2020.

I propose to bring forward amendments on Committee Stage to respond to a number of concerns that have been raised.

First, it has become clear that an expectation of privacy was given to persons who attended the confidential committee. Those who voluntarily came forward to tell their story believed they would remain fully anonymous. However, I know some people who told their story may wish for their names to remain attached to their story for posterity. For these reasons, I propose that the legislation should respect the agency of each person to decide on whether their story, as contained within the archive, is anonymous or bears their name. Accordingly, I will table an amendment that can address both viewpoints. The amendment will facilitate the commission to remain in being after it reports on 30 October for the purpose of engaging with each person to determine their preference with regard to anonymisation. The commission will take account of these preferences when finalising its archive of records.

Second, I want to ensure that a copy of the database and related records are deposited with my Department as part of that archive. This will deliver a complete sealed archive while still ensuring the database and related records can also transfer to Tusla and remain available for use in accordance with existing and future statute. On both these issues, I have listened to the concerns raised and I have acted to address them.

Due to the urgent need to pass this legislation before the commission is dissolved, the requirement for pre-legislative scrutiny was waived by the Business Committee at my request. I appreciate that this urgency is unfortunate as is the time limit available to review the proposals. I hope, however, that the briefings I have provided, as well as the information outlined today, has been helpful.

Ireland has come a long way from the Ireland of the 1920s. We are, I hope, a more progressive, tolerant and equal society. As a society, our commitment to acknowledging, 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 crucial to ensure that records of the commission are preserved and the opportunity presented by this valuable database in laying the path towards fuller access to early life information is not overlooked.

I believe we have a duty to the former residents and survivors of these institutions to pass this legislation and I would welcome the support of Members.

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