Catherine Martin (Dublin Rathdown, Green Party) | Oireachtas source

I move:

That Dáil Éireann approves the following Order in draft: National Archives Act 1986 (Section 1(2)(d)) Order 2023, a copy of which has been laid in draft form before Dáil Éireann on 31st January, 2023.

Tá mé sásta go bhfuil an deis seo agam chun an rún a phlé leis an Teach. I thank the House for the invitation to discuss this motion to add the Courts Service to the Schedule to the National Archives Act. The National Archives of Ireland was established on 1 June 1988 under the National Archives Act 1986 to preserve the archive of records of central government and the papers of the Public Record Office of Ireland and State Paper Office, both of which were dissolved. In 1992, the headquarters of the National Archives moved to the former Jacob’s biscuit factory in Bishop Street, Dublin 8.

The National Archives occupies a key position in the cultural and intellectual life of the nation and holds the records of the modern Irish State. These are key to informing Government policy and assisting research into the political, economic and social forces that have shaped our nation. Under the National Archives Act 1986, Government Departments, offices, the courts and bodies listed in the Schedule to the Act are obliged to transfer records older than 30 years to the National Archives. This is known as the 30-year rule. The National Archives (Amendment) Act 2018 allows for the earlier release of records after 20 years if the relevant Minister, and I, as Minister with responsibility for the National Archives, agree that the early release is warranted by virtue of the historical or public interest value or to facilitate fair reporting of matters of common interest to the State and other jurisdictions.

Every year, Government Departments and offices, as well as State bodies, transfer records over 30 years old to the National Archives. Each record taken in is listed by Department office and included in the accessions report that is published as an appendix to the annual Report of the Director of the National Archives. Following submission to Government, this is laid before both Houses of the Oireachtas.

The 2021 annual report listed the transferred records predating 1992 from Departments and offices of the State that were released for public inspection under the Act. Not all records due to transfer to the National Archives under the 30-year rule do so. This is due in large part to the fact that the storage facility in the National Archives building has been physically full for several years. As a result, just a fraction of eligible records transfer each year. In turn, many records that do transfer are moved off site to commercial storage to be retrieved, as necessary, when requested by members of the public. I am pleased to inform the House that the archival repository project will convert the warehouse located to the rear of Bishop Street headquarters to a secure, environmentally controlled repository complying with international storage standards. It will provide an increase of two thirds in the total storage capacity to be available to the archives. This will be achieved by inserting an additional floor into the warehouse and having both floors fitted out with a modern shelving and retrieval system. The opportunity will be taken to have the warehouse building future-proofed to allow further additions in future decades. Planning will not be required. This very important high-profile project is being driven by the Office of Public Works, OPW, and overseen by a high-level steering group from my Department, the OPW and the National Archives. The OPW recently invited tenders for contractors to deliver the archival repository, and I expect that the new facility will open in the next few years. The records now in commercial storage will be returned to Bishop Street at a significant saving to the taxpayer, and the backlog of records from Departments can be taken into the archives and made available for public inspection.

The Courts Service was established in November 1999 under the Courts Service Act 1998 to manage and administer the courts. As it was established after the National Archives Act 1986, the question has been raised as to how the Courts Service is comprehended by the National Archives Acts. Section 1(2) of the National Archives Act 1986 defines a Department of State as including "references to a court." It follows that for the purposes of the Act, a court constitutes a Department of State and records made or received and held in the course of business by a court constitute departmental records, and, subject to the National Archives Act, should be sent to the National Archives when they are 30 years old.

Indeed, the archives hold court records from the foundation of the State up to the 1990s. These include records relating to the District Court, Circuit Court, High Court, Central Criminal Court, Court of Criminal Appeal and Supreme Court. In addition, the National Archives holds some earlier court records predating the destruction of the Public Record Office in 1922. Many of these records survived only because they had not been transferred to the Public Record Office of Ireland by the local court offices before 1922. While the lack of archival storage facilities limits the court records that can be accepted, the National Archives nevertheless continues to accept records. A detailed list is provided in Appendix C Accessions, 2021 in the annual Report of the Director of the National Archives, a copy of which was deposited in the Oireachtas Library on 24 January 2023.

While the courts are subject to the National Archives Act, the question could be posed as to whether the Courts Service is itself a Department of State that has not been expressly added to the Schedule to the Act as a scheduled body. The Courts Service is an independent State agency established to administer and manage the courts, support the Judiciary, provide information on the court system to the public and provide court buildings and facilities for court users. While the courts remain subject to obligations under sections 7 and 8 of the National Archives Act to retain and preserve court records and transfer them to the National Archives records under the 30-year rule, the issue that arises is whether it is permissible for the Courts Service to facilitate or give effect to the transfer of these records in circumstances where the Courts Service itself is not a Department of State. In this regard, the Courts Services has now been expressly added to the Schedule to the Act, and the provisions of the Courts Service Act 1998 do not appear to have the usual non-textual amendment that would permit an existing reference to a Department of State to be construed as a reference to the Courts Service.

In circumstances where the courts are required in accordance with sections 7 and 8 to retain, preserve and transfer core records to the National Archives, the statutory functions of the Courts Service are likely sufficiently broad to permit the Courts Service to facilitate or give practical effect to this transfer.

Section 5 of the Courts Service Act 1998 confers upon the Courts Service the express functions of managing the courts and providing support services to judges. Under section 6, these functions are supported by a relatively broad power for the Courts Service to do anything necessary or expedient to enable it to perform its functions.

Notwithstanding the foregoing, and in order to put the matter beyond all doubt, I am proposing that the Schedule to the National Archives Act be amended to include the Courts Service as a scheduled body. This would bring the records created or held by the Courts Service in the course of its business, such as administrative records, unambiguously within the scope of the National Archives Acts 1986 to 2018. This means that the status of the Courts Service, as distinct from the courts, will be addressed by the proposal to add the service to the schedule to the Act.

Under section 1(2)(d) of the National Archives Act 1986, the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, after consulting the director of the National Archives and the National Archives Advisory Council "may by order amend the Schedule". The director and the National Archives Advisory Council were formally consulted on the addition of the Courts Service to the Schedule to the Act, and both are in agreement that it should be added. The matter of making additions to the Schedule arises from time to time, particularly with public sector organisations that were formed after 1986. In most such cases, the legislation forming the new organisations is drafted to ensure that the new body will be subject to the National Archives Act.

Before the order can be made, a draft must be laid before each House of the Oireachtas and the order may not be made until a resolution approving the draft is passed by each House. Since the Courts Service is less than 30 years old, its records will not need to be transferred until 2030. Adding the Courts Service to the Schedule now will facilitate the proper preservation of its records and prepare for their orderly transfer at the end of the decade. I seek the House's support for the addition of the Courts Service to the Schedule to the National Archives Acts 1986 to 2018.

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