Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

For the past 20 years, this House and State have been trying to rectify the terrible damage that was done to women, children and babies who were placed in, or born in, institutions that operated on this island in the 20th century. I regret to say, notwithstanding the efforts of this House and previous Governments, we have not succeeded in rectifying the terrible damage that was done to those people.

We need to go back and look at 1999 because it was an important year in the start of the process of our attempted rectification of the damage. The late journalist Mary Raftery produced an outstanding programme in 1999 called "States of Fear". It was broadcast in April and May of that year. Shortly afterwards, the then Taoiseach, Bertie Ahern, made an historic statement. He apologised on behalf of the State to children in institutions who had been abused over the years.

Since that time we, as legislators, have tried to introduce legislation to rectify some of the damage. In 2000, we introduced and enacted the Commission to Inquire into Child Abuse Act which resulted in the subsequent production of the Ryan report. That was followed by the enactment of the Commissions of Investigation Act 2004 which was not for any specific issues related to the abuse of children and women but there was a mechanism by which the State enabled inquiries to take place. Within the rubric of that legislation, we had inquiries into the dioceses of Dublin, which was published in 2009, and of Cloyne, which was published in 2011. Since then, we have started the process of having an inquiry into mother and baby homes on this island. I also recall that we discussed legislation in respect of adoption information and tracing in the previous Dáil.

All of these items of legislation have three issues that are absolutely core to their discussion and development. The first is a public issue but the second and third are private issues that are more important. The public issue that is of importance is that it is to the benefit of this State that we find out and inquire into what happened in these institutions throughout the 20th century. It is our obligation, as a country, to ensure that we do proper historical research and that the Government formulates an inquiry so that we can have an official record of what was a very dark time in our country's history. We have sought to achieve that objective.

We have not yet achieved the second objective, which is to provide a remedy to individuals who were incarcerated in these institutions, born in them, or adopted out of them. A constituent phoned me yesterday. He is a survivor of Goldenbridge and St. Joseph's, Navan Road. He understands he was illegally adopted via the Rotunda Girls Aid Society in St. Patrick's Guild. That man has been trying for 40 years to identify who his parents were and what is his identity in terms of the place from which he came. My belief is that he has an entitlement to find out about his identity.

The third group of individuals whose privacy and lives need to be recognised and respected are the unfortunate women who were placed in these institutions, gave up children in terrible circumstances and, in doing so, wanted to protect their confidentiality and anonymity. There are three groups and issues here to which careful consideration needs to be given when we appraise any legislation. I communicated my view on the matter to the former Minister for Children and Youth Affairs, Katherine Zappone, when we were discussing the adoption legislation.

My view is that nothing trumps the right of an individual to find out about his or her own identity and background. I do not think any right of confidentiality trumps the right of an individual to find out about his or her identity and background.

In fairness to the Minister, Deputy O'Gorman, he recognises that. He is going to bring forward legislation that will provide some certainty to people so that they can access information about their provenance. This has gone on for too long. There has been too much legislative inactivity and uncertainty and legal ambiguity about whether these people can be given the very simple information that they seek to obtain. I urge the Minister to ensure the next crucial piece of legislation that comes out of his office is legislation that gives this vulnerable group of people the right to find out about their identity. That is a fundamental right that trumps all of the other rights we are discussing.

The Bill which has been brought before the House today has received considerable appraisal, controversy and recognition. We need to examine how the mother and baby inquiry was established and the legislation under which it was established. As I said earlier, in 2004 the Commissions of Investigation Act was enacted by both Houses of the Oireachtas. It provides that once a commission delivers its final report it is dissolved. If a commission is dissolved, it is the same as when a company has been dissolved. It cannot operate, be sued or take any steps. It is dead and nobody can act on its behalf.

I can understand why there was a concern on the part of the Minister. We also need to recognise that before the dissolution of a commission there is an obligation on the chairperson to deposit with the specified Minister all evidence received by and all documents created by or for the commission. Had the Minister not introduced this Bill, that is what would have occurred.

Section 43 does not just operate on its own. We also have to look to see what is contained in the other relevant provisions in the 2004 Act. In particular, there is a provision in section 41 which states that records of the commission, including documents lodged with the Minister under sections 43(1) and 43(2), will be within the meaning of the National Archives Act and on the expiry of 30 years after the date of the commission's dissolution they will be deemed to be available.

No matter what the Minister does, he cannot get around the fact that in section 39 of the 2004 Act, as amended in 2018 by the Data Protection Act, there is a provision regarding restrictions in the 2004 Act. That section now reads:

Article 15 (Right of access) of the Data Protection Regulation is restricted, to the extent necessary and proportionate to safeguard the effective operation of commissions and the future cooperation of witnesses, in so far as it relates to personal data (within the meaning of that Regulation) provided to a commission for as long as the data is in the custody of ... the specified Minister after being deposited with him or her under section 43(2).

My reading of that section is that it provides a mechanism for people to apply to get their records, and if it does not conflict with the provisions set out that I have just read they will be successful in their application for access.

I listened to the Minister's speech earlier today. He gave a commitment. He said he will bring forward this legislation to ensure people have access to information that relates to them. Those people do not need legislation from the Minister if it is the case that their personal information is retained and they have an entitlement to access it. In that case, they can seek it. Lest there be any doubt, the Minister has committed that he will bring forward extra legislation to deal with the matter.

In respect of the Bill we are discussing, it would have been more appropriate if we had more time to deal with this issue. The Minister said we are operating under a deadline because of the impending publication of the report. I do not think there is any difficulty in delaying the publication of a report. Nearly every inquiry that has ever been set up in this country has sought an extension of time in order to produce a final report. It may be unusual for a Government to play that card the other way, but we could have asked the commission to hold off on the delivery of its report until such time as the Bill received fuller consideration.

I do not see anything in the Bill we are discussing, which I have looked through with a boring eye, that states the records have to be sealed for 30 years. I can understand the concern that people have because of the 2004 legislation. That is where the problem arises. It is incumbent on the Minister, as he said previously, to ensure he brings forward legislation that, for once and for all, provides people who are adopted and were adopted from mother and baby homes with an avenue to get information and certainty about their identity. Our State owes those people that.

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