Catherine Connolly (Galway West, Independent) | Oireachtas source

I move amendment No. 1:

In page 3, to delete line 20.

It is difficult to know where to start on this matter. I had 15 minutes to speak last night, which is an extraordinarily long time for somebody in a small group, and I did my best to capture the lead-in to this urgent legislation, as it has been described, that left the Government little choice other than to rush it through the Dáil by 30 October. I said this during the debate last night, and while I do not like repetition, it is important to note that my staff and I have done our best to get my head around this and understand the urgency of this legislation. I have utterly failed to do that.

I am not given to personalising issues and I do not wish to do so. I want to stick with the issue. It is difficult to understand how the Government could be in a situation where they are telling us that this is urgent legislation when the commission was established in February 2015 and there have been seven interim reports. I went through those reports as best I could last night. I did not do it perfectly but as well as I could. My purpose was to show that there were seven interim reports from this commission of inquiry, all seeking extensions of time, which is understandable. Some of those reports are more extensive than others and all of them were published except interim report No. 6. I asked the Minister last night to deal with that matter and he did not do so in his closing speech. Even though his closing speech ran to five pages, he failed to deal with the sixth interim report. I have to rely on a press release from the former Minister for Children and Youth Affairs, Katherine Zappone. I thank her for all her work. I was critical, I hope in a constructive fashion, of her role in this but I believe, in retrospect, that she did her best with a system that has clearly closed ranks to protect itself. I made that point during the debate last night.

I listened clearly to that debate, and all of the language that was used was also used for the duration that the institutions in question were in existence - "This is for your own good, we know best and we know best now". I find that utterly nauseating for many reasons, both professional and personal.

We have seven reports, all asking for extensions of time and most of them pointing out different issues. Time is limited in the overall context of this matter for no good reason and because it is, it is important to repeat the following: one of the reports pointed out that there was no logic to the exclusion of unaccompanied children from the redress scheme. The report suggested that the exclusion could not be stood over. That was pointed out to the Government and it failed to take any action. The exclusion of certain homes was also pointed out and the Government took some limited action on that. It was pointed out many times that the volume of documentation was extensive. One can see from the reports that the commission had to use orders for discovery. The commission sympathised, to a point, with the HSE because it had changed formation often, through its previous guises to the HSE. In one of the reports, the commission stated that it found it difficult to understand how documents that had arisen in the more recent past were still not available, and so on.

Many Deputies wish to speak today so I will not go on for too long but I will point out the following: as a new Minister, there was a duty for him to be briefed on the background of this matter. There was a duty on the Department to brief him and explain how it could arise that we need urgent legislation now when seven interim reports have pointed out various matters and put the Government on notice of them. I have re-read the press release of the then Minister, Katherine Zappone, which stated:

The Minister for Children and Youth Affairs, Dr Katherine Zappone, has today [14 February 2020] confirmed that she has received a Sixth Interim Report from the Commission of Investigation into Mother and Baby Homes. Although it is a short report it nonetheless raises complex issues related to the completion of the Commission’s programme of work. Most significantly, because the Commission is required to transfer its records to the Minister and deal with third party legal costs prior to submitting its final report, the Commission has requested an extension of time to enable it to effectively manage these issues.

The extension was agreed and the then Minister hoped to make the report public, which did not happen. That was in February 2020. The Covid-19 pandemic can be used as an excuse for many things but it cannot explain the failure to publish this sixth interim report. It seems to me, though perhaps I am wrong, that the sixth interim report raised the very issues that we are now trying to tease out in a rushed manner in a forum that is not effective, leading to many misunderstandings and a complete sense of despair that once again the system is protecting itself and failing to protect those who need it most. I do not mean protection in a charitable manner but in a manner that empowers by giving maximum information and documentation. That is the lesson to be learned, if there is one.

I ask the Minister again where the sixth interim report is. Following that report, what interchange was there between the Government and the independent commission? We were told many times, and rightly so, that it is an independent commission and we cannot interfere with it. It seemed last night that there has been an interaction between the Minister or his Department and the commission about records. At the very least, we should know about that interaction, have copies of it and a copy of the sixth interim report. Where is it? Can we please have it?

The commission asked for an extension of time until 30 October in the seventh report. The Minister said that he cannot give an extension of time because the commission has to request it. Can he please clarify that for me? I am not 100% sure about that and I ask him to clarify that.

Can he also clarify how a commission can be partly dissolved and partly not dissolved? It will be dissolved on 30 October but not dissolved for the purpose of allowing the commission to interact with the survivors and people who came forward to give evidence before it. How can the Minister explain that part dissolution and part non-dissolution? That is difficult to understand.

I have no idea why this legislation was necessary, which is why I am submitting this amendment relating to Tusla. The legislation has been brought before the Dáil ostensibly to give the database and related records to Tusla. I will come back to Tusla and its reputation. I cast no aspersions on the staff of the agency but I have great reservations about the system. More importantly, those affected by mother and baby homes have serious concerns about Tusla. The main purpose of the legislation that the Minister has brought before us, prior to his amendment, was to allow for an archive of documents. Finally, some attempt has been made to bring together documentation from various sources, including the religious orders, local authorities, Departments of Health and Education and Skills, to name but a few. The Minister brought this draft Bill before us to divide that archive up for no apparent purpose and without clarity for the need to give some documents to Tusla and to keep some to himself. He has now come forward to say that he will keep a complete record of the documents, in his role as Minister.

I will deal with Tusla. My opinion of the agency does not matter but the opinions of those from HIQA who did a report on the agency do matter. Have they been brought to the attention of the Minister in the context of the issues arising from what I would call the Maurice McCabe scandal? Has the Minister's attention been drawn to the Charleton tribunal and Mr. Justice Charleton's comments on Tusla? That is not to mention the many other concerns that we all have about the agency. Has the Minister spoken to survivors about their experiences of Tusla before he gives reports to it? For what purpose are those reports going to Tusla?

I asked the Minister at a briefing what assessment had been done of Tusla's capability to hold onto an archive of this size and significance.

I do not want to misconstrue what he said - he might correct me if I am wrong - but I think he indicated that a regulatory impact assessment, or words to that effect, would be carried out in the future. He brought legislation before the Houses, in an urgent manner and without proper explanation, to provide that some percentage of the documents would be given to an agency in which the survivors have little confidence without any impact assessment having been carried out of the organisation's capacity to receive that volume of documents. That is totally unacceptable, so I have tabled the best amendment we could formulate in such a short period. We were asked to table amendments before the debate on the Bill in the Seanad had been completed. It was still ongoing at the time of the first deadline we were given for tabling amendments, which was 2 o'clock or so on Friday last. The Seanad debate was still in progress. With the Ceann Comhairle's good graces, as I understand it, that time was extended. We had submitted our amendments because we were complying with the rules, but then we had to reconsider our amendments.

The Minister stated that the Business Committee had waived pre-legislative scrutiny on his recommendation, which is not, as I understand it, totally accurate. The Government majority on the committee, not the committee as a whole, agreed with him. If any item of legislation requires pre-legislative scrutiny and scrutiny by committee, this is the one because we should be arguing about the legacy with which we are trying to deal. Unfortunately, it is not just a legacy but also ongoing abuse. There are so many aspects I could mention, some of which I mentioned last night, but I add to that Caranua, which, from day one, was not fit for purpose.

This issue has been under debate since before the Minister's time, although it was all reported in the newspapers. We have been here every step of the way, watching everything being dragged out of each Government in the most minimalist way possible, in a way that did not empower but demeaned and reinforced the abuse that had happened. It is in that context that I tabled the amendment. It is wrong to give documents to Tusla without any analysis, as it is to propose a different organisation, such as the Adoption Authority of Ireland. All of that should be teased out at committee level, with proper expert advice on the importance of the archive and the documents that will be put there for the first time, and on the accessibility to that archive.

The Minister, in his follow-up contribution last night, confused matters even more. It is deeply troubling. He has not answered the question as to why there is no sixth interim report nor clarified the nature of the interaction between him and the commission further to the publication of the six report, or of the seventh or any other report, but I will focus on the sixth because that was the one, according to the press release, that raised complex issues. In his follow-up contribution last night, which runs to more than five pages, the Minister stated: "Also, the database will be transferred to Tusla so it does not go into the commission's archive once the commission has brought forward its final report." That is difficult for me to understand, even though I have the privilege of having a background that helps me in that regard and I have copies of the documentation; imagine how difficult it is for people who were listening to and watching the debate. The Minister further stated: "This Bill allows the database and the related records to be transferred to Tusla and it prevents that information from being effectively destroyed." The use of the word "destroyed" was strange. The Minister went on to explain that the word does not really mean what it says but instead means "redacted". "Destroyed", however, is a very powerful word. Nowhere in the 2004 legislation, the grounding legislation for the commission, nor in the National Archives Act, which was published before that and provides for how archives are stored and protected, is there a reference to documents being destroyed. One section states that all documents will be handed over to the Minister. I am not sure, therefore, why the legislation before us is necessary.

According to the 2004 Act, on the handing over of the report the commission will be dissolved and all documents will be handed over to the Minister. Did he or the Department consider that? What was the defect therein that meant the Minister needed to bring legislation before the House to provide that the documents would be given to Tusla rather than to him, whereby he would take a little bit, Tusla would take a little bit and they would look after it all because that is the right thing to do for the survivors and they were again acting for the survivors' own good? Why did the Minister do that, as opposed to recognising the importance of the archive, which empowers us, the people and those who have been in institutions to look at records for the first time?

The 30-year rule under the National Archives Act, I understand, was due to be changed to 20 years. Perhaps the Minister could have outlined for the reasons for that too, or his and the Department's views on the European GDPR regulation. We have clearly articulated - other speakers have done it better than I - how, under that legislation and directive, a person is allowed access to his or her files. There cannot be an absolute ban on files and documents if they are of relevance to the person in question. There has been no attempt to analyse that.

It is very difficult to work with a Government that perpetuates the system that utterly failed people in institutions. The Government is perpetuating it by saying that it knows best, that it will hold on to the documentation, that it will tell the survivors what they need to know and no more, and that we should take its word on the matter. After this legislation is passed, I will revert to the committee and ask it to work out the complexities of the mess we have made, all because each Government - I think there have been three - has failed to consider seven interim reports, and failed to publish the sixth one, or to deal with the questions that would be raised in respect of documents Those Governments failed to come before us with proper legislation to amend the 2004 Act, if that was necessary, although I cannot see why it would have been.

To add insult to injury, the Government sought advice from the then Attorney General and reverted to say that the State would have to write to those who had come forward in order to protect their confidentiality, even though the terms of reference clearly allowed and mandated the commission to protect confidentiality in terms of identifying criteria such as their names. Now, rather than taking that as a presumption, if the time is to be extended, it should be extended to allow the people involved to opt to waive their confidentiality. It should be done the other way around, which would be in keeping with the terms of reference. The Government should partly extend the commission's remit on this aspect, which was not necessary in my opinion, although I will go along with it. It has not even explained how the commission can be partly dissolved.

I have no confidence in the system or in the Bill before us. I say that reluctantly and wish I could say something different. I ask the Minister to accept the amendment and remove the Tusla element. Down the road, it might be the correct organisation or that might be the Adoption Authority of Ireland. I do not have a view on that. I have listened to those affected, and it seems the Government is protecting the system, either unwittingly or in full agreement with it. The Bill is not about protecting the survivors but rather the system and the documents. I have used every opportunity to refer to briefing notes from 2012, when the intelligence unit in the Department of Health - I pay tribute to the unit and the Minister might clarify whether it still exists - produced a briefing note on the Bessborough and Tuam mother and baby homes, highlighting its concerns about the practices at both. No shortage of information has been available. Notwithstanding that, the information over the past five years in which the commission has existed has had to be dragged out of the various organisations. In that spirit and because of that background, I will press the amendment.

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