Duncan Smith (Dublin Fingal, Labour) | Oireachtas source

Nothing speaks to the harshness and horror of the Irish experience in the almost 100-year history of our State than the experiences of those who had to endure and survive, and in some cases the experiences of those who did not survive, our State-sponsored institutions, such as mother and baby homes. Quite frankly, it is shocking, disheartening and totally avoidable that the Government is ramming through this legislation without pre-legislative scrutiny or consultation. It was rammed through the Seanad last week and there is an attempt to ram it through the Dáil this week. The 76 years of experience in these homes are being rammed through the Houses in fewer than eight days.

I am very privileged, along with many people in the Chamber, to have grown up at a time in this country when we did not have to experience the horrors of these institutions but they were being reported to us and information on them was coming out in dribs and drabs through the bravery of survivors and the work of brave journalists. In some cases, those on the fringes of politics and public representatives on the outside acted as amplifying voices for these victims. Finally, the State began to listen in a substantive way, or at least the survivors thought so.

When it comes to what we are facing this week, survivors are again feeling totally let down. This is completely avoidable. We could be ramming through legislation to amend the 2004 Act and push it back a couple of months to allow us the time to discuss this without a guillotine or contrived urgency, because that is what it is. It is a contrived urgency. It does not have to be this urgent. This requires and deserves as much time as is needed. We should not be having this discussion under the yoke of a guillotined Bill.

I know the Minister, and I worked with him in local government. He is of the same generation as me. I know he cannot be happy to stand over what is happening at this time with the Bill. We all received what has been described as an avalanche of emails. In my ten years working in politics as staff or a public representative, I have never seen such a wave of correspondence on an issue. I cannot profess to have read them all, and no one in the Chamber will have been able to have read them all, but I read as many as I could. I am viewing this as a legislator and not as the citizen I was, who was shocked by all of the stories in the news.

I looked at it through the lens of a legislator and through the responsibility we all share in this House to ensure that we deal with the Bill with much more sensitivity and a greater sense of justice than we do with any other legislation that comes before the House. That is our responsibility but it is being lost in how the Bill is being rammed through. The Minister stated that the Business Committee agreed to waive pre-legislative scrutiny but the committee does not agree to such matters; the Government does that. Members of the Business Committee, such as my party colleagues and I, have dissented as a matter of principle in the waiving of pre-legislative scrutiny in respect of a number of Bills, but none more so than the Bill before us because of the reasons I outlined. I will accept that since the Bill was debated in the Seanad a number of days ago, there has been an inching on the part of the Minister, with the tabling of a couple of amendments. It is just an inching, however, and it does not come anywhere near where we need to be to feel confident that the treatment of these very sensitive and important archives will be to the standard the survivors deserve.

The Government is introducing amendments to ensure that the Minister will receive a full copy of the commission's entire archive, including a copy of the part being sent to Tusla, which is okay. Those amendments further seek, however, to allow the commission to continue to operate until February 2021, although it will still have to deliver its final report by 30 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. While the commission and the Government should give those affected by the abuses under investigation a choice as to whether they wish to be identified in the transcript of their evidence in the commission's archive, the amendment in question is not the way to do that. The commission and the Government should apply the framework of the 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 omit the rest, including the immediate right of the subject to access personal data held by the commission.

One of the arguments the Minister made is that as part of its work, the commission has created a database of every person to have passed through the main mother and baby homes, that the legislation needs to pass by 30 October or the database will be destroyed, and that the Government cannot allow this important information to be lost, which is why this is being done urgently. We do not know why exactly the commission believes it will have to destroy the database of mothers and children that it created from the records it received if the legislation is not passed by 30 October. It has not been explained why that is the case.

From what we can tell, the commission has self-imposed this deadline of 30 October to give its final report to the Minister. The current legislation, the Commissions of Investigation Act 2004, states that on delivery of its final report, the commission will be dissolved. This means the archive has to be sent to the Minister along with the final report under section 43 of the 2004 Act. The commission appears to believe it cannot deliver personal data to the Minister, despite section 43 of the 2004 Act explicitly stating that every commission of investigation has to give every document or item of evidence gathered or created by it to the relevant Minister on concluding its work. The GDPR was introduced in 2018 but poses no barrier to the transfer of these data to the Minister. Archiving in the public interest is a legitimate ground for data processing under the GDPR. Furthermore, if the commission were to destroy personal data, it would be a highly questionable form of data processing because the commission has no legislative basis on which to do that.

This debate on the Bill, and the anger associated with it, is predicated on the belief, which the Minister has not dissuaded us from, that these records could be sealed for 30 years. I ask him please, in the short time we have, to bring forward amendments that will put this right or, better still, withdraw the Bill and change the self-imposed deadline.

We have all received long lists of correspondence. One item stood out to me and what got to me was the first line of the email, which was from a woman called Anne. She wrote that as far as she knows, she was born in Dublin to an unmarried mother on 7 March 1952. I expect that all of us in the House have seen our birth certificates. We probably have photos and stories and everything has been passed down to us. Those privileges have been afforded to us by the luck of the draw of where we were born. The email broke my heart. Anne went on to detail her fight for information throughout the 68 years she has spent on this Earth, seeking basic information on who her mother and father were, where she was born and what happened to her. She has no one left in this world apart from her sister. This is just one of many stories. They are stories that have so much horror to them, some of which have been outlined by other Deputies, and there are thousands more such stories out there.

That is why the Bill demanded a sensitivity beyond that of any other legislation but that has been lost. It is being rammed through and is another Bill being put through on the guillotine list. It did not have to be like this and it still does not have to be like this. There is still time and I ask the Minister please to reflect on it. There is sound legal advice from the Justice for Magdalenes group and political will on this side of the House to do this in a different way. We will support it but we cannot do it in this way. This is not doing justice to the survivors.

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