Seanad debates

Wednesday, 14 October 2020

Commission of Investigation (Mother and Baby Homes and certain related Matters) Records, and another Matter, Bill 2020: Second Stage

 

10:30 am

Photo of Michael McDowellMichael McDowell (Independent) | Oireachtas source

I am concerned about the fact that section 6 appears in this Bill without any explanation whatsoever. No Members of this House, other than perhaps the Government Members, were consulted about section 6. I do not believe that. The Minister has not advanced the reasons this extension of time became necessary. I will leave it at that, but I do not think it is satisfactory that a justice provision dealing with the Judicial Council should be just added onto the back of a legislative train like an oil tanker being put behind a passenger train and suggesting it can go down the line without any pre-legislative scrutiny or real explanation as to why it was necessary.

The confidential committee established under the terms of reference of the commission was set up for a particular reason. I bring the Minister's attention to terms of reference 3 and 4 of the order of 2015. Paragraph 3 stated:

The Commission shall establish a Confidential Committee to provide a forum for persons who were formerly resident in the homes listed in Appendix 1, or who worked in these institutions, during the relevant period [...]

Paragraph 4 stated:

The Confidential Committee shall -
(a) operate under the direction of and be accountable to the Commission,

(b) provide in its procedures for individuals who wish to have their identity remain confidential during the conduct of the Commission and its subsequent reporting, and

(c) produce a report of a general nature on the experiences of the single women and children which the Commission may, to the extent it considers appropriate, rely upon to inform the investigations set out in Article 1.

It was mainly women, and some children, who came forward to the confidential committee. They received a leaflet from the committee which stated:

The Confidential Committee will make a general report which won't name you or any specific person or institution. This is because people who go to that Committee will not wish to have any information about them given to anyone outside the Commission or to be questioned by anyone outside the Commission.

They were also told, "No report on anything you tell the Confidential Committee will be given to the authorities." Those were solemn undertakings to people that they would never be identified. The effect of the Bill that the Minister has tendered before the House is to tear up that undertaking and say that their testimony can go into an archive in his Department and, in 30 years' time, be opened up. If somebody comes before a State organ and is told that he or she will never be identified to the authorities but will be given absolute anonymity, it is wholly wrong for the Department to produce legislation the effect of which is to tear up that guarantee and put a ticking time bomb for many families in the State archives.

It is different for people who are part of the database. I strongly support the accumulation of material which enables people to trace their parents. However, this material consists of people describing the circumstances in which they were put into these homes, parental pressure, bullying, who they met in the homes, their attitude to their child being taken from them and all of those things. They were given an absolutely cast-iron commitment by the commission, in accordance with its terms of reference, that they would not be identified. The Minister is tearing that up, saying that it goes into the archive and can come out in 30 years' time. That is fundamentally wrong. The amendments we will be tendering to the Bill will ensure that the database goes to Tusla for preservation and that the documents that go to the Department are redacted so that it will not be open to anyone, in any circumstance, to upend the solemn guarantee that was given to those women and children who came forward and gave evidence under an absolute guarantee of anonymity and non-identification.It is a central obligation of the Irish Government to uphold what was a solemn undertaking given to people that what they said would not be identifiable and that their evidence would never be used in such a way as to make what they said identifiable. Either we believe in that or we do not. The Minister's Department has not adequately considered the constitutional injustice of getting somebody into a commission and saying: "You will never be identified, your names will never be given to the authorities, what you say will be absolutely confidential" and then passing a Bill in a hurry without any consultation on this point and just rushing it through in a few days without pre-legislative scrutiny. There are fundamental issues here. There is an argument between the Minister's Department and the commission over general data protection regulation, GDPR, issues. I still believe GDPR is not completely overcome by simply saying there is an Act involved. If the Act itself is such as to make sensitive information available and to allow it to be processed in breach of a solemn undertaking given to the persons who gave testimony to that commission, the GDPR probably makes what is envisaged here unlawful.

The alternative is to simply allow the commission to do what it asked to do, that is, to black out a few names on these personal accounts as it does not affect the database in the slightest. However, it does guarantee to these people that their evidence will be anonymised in a manner and will not be dragged out by somebody in 30 years' time to say, "Your grandfather did this", "Your grandmother did that", "These are the circumstances of your family", "You are the result of incest", or "The person who you believed was your grandmother was in fact your aunt", or vice versa, or something like that. These things were extracted from volunteers on an absolute guarantee of confidentiality and anonymity and we now find ourselves in a situation that that is being torn up by the Minister's Department and no excuse is being offered for it. It is not necessary to renege on those commitments. The Minister's Department will be none the wiser if the general report, which will not mention any people or any individuals - which is what the terms of reference said - is published and if the people who painted the day-to-day picture of their existence are delivered the anonymity they asked for. There will be no advantage to naming names in 30 years' time. There will be a huge disadvantage in 30 years' time for families who thought they were descended from one person finding out that in appalling circumstances they were dealt with in a different way, especially when that information was volunteered by somebody who said, "I am only volunteering this on the basis that the identity of the people in my evidence will never be given".

I will finish by saying that the Minister should by all means send the database to Tusla. It is a sensible thing to do. He should bring in his tracing legislation and that is fine. However, he should not tear up a solemn commitment, given by an organ of the Irish State in accordance with its terms of reference, to people who were told that what they said would remain secret as far as their identity was concerned, forever. I remind the Minister that even the tape recordings of some of their interviews were destroyed afterwards. These people deserve justice. I ask the Minister to consider the amendments that I and my colleagues have put down because they are the minimum that is required to deal honourably with people who were guaranteed anonymity as a condition of testifying.

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