Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

This is not solely a matter for history. We have spoken about this in a historical context but we must remember that there are existing issues of deep concern for many people who have lived through the experiences of the mother and baby homes and other industrial schools and the impact this has had on their relatives and descendants. I reassure the people who are watching this debate and have real and legitimate anxieties about future access to birth information and tracing that I am committed to addressing the long-running matter of birth information and tracing legislation. This is not what the Bill before us today will address but I am committed to following up on the other legislation. I note the points made by Senator Bacik. I am going through the correspondence between the former Minister, Katherine Zappone, and the Attorney General. The former Minister did an enormous amount of work on this matter. I will take up that work and engage with the many people in this House who I know are interested in this issue so that we can get it right.

In passing this legislation in the next week, no future opportunity for access to this information will be lost by virtue of it coming into effect. Its purpose is to preserve information, including the critically invaluable database, for future use to the maximum extent possible under the law. We are passing this legislation to save this resource, which we can use for existing purposes but also future purposes that will be developed through future legislation. I am satisfied that the Bill as presented is needed to preserve invaluable information now and in the future. Contrary to how some have interpreted it, the intention of the legislation is not to put information beyond reach. Rather, it is to ensure that information is not destroyed and also that relevant information can be made available for information and tracing purposes in line with current law and any future law. The Bill is necessary to resolve the serious legal and practical issue that were raised by the commission in finalising its records in accordance with the Commissions of Investigation Act 2004. The intent of the legislation is to safeguard the records of the intensive five-year investigative process that the commission of investigation into mother and baby homes has commenced. I hope we can all agreed with the principle of saving that body of work.

When the Government decided to establish its inquiry into mother and baby homes the model it chose was that of a commission of investigation under the Commissions of Investigation Act 2004. I know there have been criticisms of that model today. I note those criticisms but that is the model that was chosen and the model we are operating to. The consequence of choosing a commission of investigation as the model does impact on the reporting functions of the commission. The Bill must be read in the context of the relevant restrictions and safeguards of the 2004 Act. The effect of the confidentiality provisions woven into the 2004 Act is that the commission's archive of records must be deposited with the Minister in sealed form and must remain so for a period of 30 years, pending transfer to the National Archives.Guarantees of confidentiality in respect of the information and the evidence given must be understood in the context of that legislative framework. While the records must transfer in their complete and unredacted form, the anonymity of those who provided testimony is maintained by virtue of the requirement that the records are sealed. For the avoidance of any doubt, it is important to clarify that the commission is not in possession of original departmental records and no original records will be sealed by these arrangements. State records remain in the possession of the relevant statutory bodies and public access is regulated in accordance with existing law. Any proposal to amend the legislative arrangements under which evidence was provided to a commission would need to fully address the privacy rights and legitimate expectations of third parties who are engaged with the commission. I am open to looking at this issue but it would have to be understood in the context of other commissions of inquiry that have taken place and of balancing the rights of the various parties involved, Cabinet colleagues who are responsible for this legislation and other Cabinet colleagues. This legislation is not the appropriate place to deal with those issues, in my view.

Earlier this year, the commission advised that it had created a database tracking who was in the main mother and baby homes and related institutions. It did not feel it had a legal basis to transfer this system and would be compelled by law to redact the valuable information we are now trying to preserve. Most important, this Bill provides for this and allows the database and related records to be transferred to Tusla, which will be fulfilling a public service in safeguarding this database. On the criticisms of Tusla holding these records, it is important to point out that the Bill does not provide for an expansion of Tusla's role. Section 3 is declaratory in that it only allows the records to be used for the purposes already defined in statute and data protection regulations. The majority of the records on which the database is based are already in the possession of Tusla. The digitalised and index records could be a notable enabler for Tusla's current services in this area, notwithstanding that no new right of access for information has been created. Again, it should be noted that the institutional records held by the commission are copies of the original documents supplied by various bodies to the commission. The Bill does not introduce restrictions on access to the original documents.

We have a duty to the women and children who passed through these institutions and to their families to ensure their lived experiences are shared, acknowledged an understood. The commission is due to submit its final report and stand dissolved on 30 October. This Bill needs to be passed and signed into law prior to its dissolution. A failure to act will result in an incomplete archive transferring and in the database being effectively destroyed and unavailable for information and tracing. This bespoke legislation addresses the urgent issues which have emerged in regard to the commission's records. Everything in this Bill is there for a reason. No future opportunity for access to this information will be lost by virtue of this Bill coming into effect. Its purpose is to preserve information, including a critically invaluable database for future use to the maximum extent possible under this law.

I look forward to seeing the amendments proposed by Senators. I will examine them thoroughly but I do ask that they support this Bill so we can safeguard and protect these records for future generations.