Friday, 16 October 2020
Commission of Investigation (Mother and Baby Homes and certain related Matters) Records, and another Matter, Bill 2020: Committee and Remaining Stages
Alice-Mary Higgins (Independent)
I move amendment No. 1:
In page 3, between lines 20 and 21, to insert the following:“ “Authority” means the Adoption Authority of Ireland;”.
I am speaking to amendments Nos. 1 to 6, inclusive, and several others. My contribution will be lengthier than I would like because this is such a large grouping. Amendment No. 1 is simply around ensuring the Bill would be well-drafted if my proposal was accepted. Some of the proposed changes are consequential. I have tried to ensure that the Bill would remain robustly drafted.
The fundamental point in this set of amendments relates to the documents being deposited with a body. There remain strong and robust views that all documents should simply be with the Minister until an appropriate process has been put in place to ensure all relevant parties can access them in a way that is appropriate and with appropriate regulations. If these documents and the section of them that include the database and relevant records are to be deposited with a body, then a more appropriate body would be the Adoption Authority of Ireland.
I say as much for several reasons. The Adoption Authority of Ireland was the envisaged repository in the 2017 legislation. As I understand it, there was also far more clarity and detail in that proposed 2017 legislation. This is crucial. I note that although there were other areas of controversy, this was not one of the main areas of controversial focus in the draft 2017 legislation. There was considerable detail regarding how those records would be treated and where they would go. The Bill before us ensures simply a blunt transfer of a database and relevant records to Tusla with no guarantee over how they will be treated, where they will be stored or whether they will be kept together in one place.
The argument in favour of the records going to Tusla is that many relevant documents came from it. Will those documents go back into different filing cabinets throughout the country if they are to be used by Tusla in carrying out its functions? Will we see the great work done in assembling this body of connected work to paint a picture of the serious concerns and abuses in our mother and baby homes, in effect, scattered?
Under the 2017 legislation, the Adoption Authority of Ireland would hold one of the largest sets of records. The authority holds a large number of the legal records. It does not hold all the institutional records but it holds the legal records on adoptions, including adoptions that were in some cases forced adoptions. The authority has the records from certain homes. We know that the Adoption Authority of Ireland is in negotiations to have large numbers of other records of adoption transferred to it. The authority is in possession of a key piece of the puzzle. This is crucial for adoptees who are trying to trace their records. Yet, the other set of records coming from Tusla and the commission relate to the circumstances that may have surrounded the adoption, whether legal or questionably legal, as it might be. There was a strong rationale for the Adoption Authority of Ireland to be selected in 2017. Crucially, there was also extensive provision for how the authority would do this. There was provision for the authority to maintain all of the records properly with an index. This is vital.
I fully support the other amendments before the House. The Minister may say that we do not know what is in these reports or documents. We have to know what the documents are so that we can know the appropriate way to treat them. Section 11(2)(a) of the 2017 legislation provided for the Adoption Authority of Ireland to keep an index of the records referred to and a searchable electronic database of the records.We know also that the Minister would have been able to issue guidelines in terms of the appropriate treatment of these records. There was a sense that the records and documents were going to be transferred to a place where they would be treated properly. We know the Adoption Authority of Ireland, AAI, took seriously that if it took receipt of these documents it would be regarded as a place of deposit and would be required to keep all of the relevant documents to the standard of a place of deposit, namely, an archival standard, protecting all of the relevant documents and ensuring clarity around how they are preserved electronically. We know that the authority, in the years since 2017, had actively pursued this responsibility and met, for example, with the OPW around an appropriate location for such a repository. It had, for example, visited Germany to look at comparable storage of equally sensitive documents in Germany. It is a serious matter to have these documents transferred to one's care. There is, unfortunately, nothing in this Bill that tells us how, besides setting out what will not be looked at, the documents will be preserved and kept together or whether there will be an index that is searchable such that we can identify documents and know to what they might be relevant, be they relevant to future regulations around access, future archives or a future tribunal.
This group of amendments ask that the Minister replaces the references to "the agency" in the legislation with "the authority". I have tabled other amendments, which I will come to later. I believe that the Adoption Authority and Tusla, as two of the bodies which will receive subject to access requests from individuals personally and directly affected by these issues, should be in a relationship of data controller and data processor where they can co-operate in ensuring that subject access requests, where one half of the picture might be a legal form to the effect that a person was adopted and the other half might be the circumstances under which a mother signed the document, could be pieced together by them. These are fundamental parts of the puzzle. I hope the Minister will consider accepting the amendments in respect of the Adoption Authority.
Amendment No. 6 proposes that if the documents are not to be deposited with the Adoption Authority or Tusla they be deposited with the Minister. This would allow him to make an appropriate future choice in respect of which body might be best suited to act as a data controller or preserver and maintainer of these records, with appropriate relationships of access subject to appropriate safeguards attached to the relationship between other bodies, be that a tribunal or Tusla. That is the logic behind the amendments I have put forward. I have spoken largely around the positive reasons that I believe the Adoption Authority is a more appropriate location and the reasons the Minister should have preserved his right to recognise and consider properly what might be the most appropriate public body or bodies, but there is also a concern not just around the absence of the positive measures, which the Adoption Authority had looked to, but the lack of information around how Tusla will act in regard to these documents. There is no clarity around how the documents will be stored, preserved and treated. There is a real concern, unfortunately, of distrust in the way that Tusla has in the past engaged with survivors of institutional violence and adoptees. The interpretation of GDPR by Tusla has been questionable in many cases, not only in terms of information but also in terms of tracing. There has been enormous frustration in regard to what appears to be a culture around the treatment of documentation. I hope Tusla can rebuild its reputation and its relationships with the many vulnerable persons with whom it works and their families. There is an issue of trust in regard to Tulsa that needs to be addressed. Had the Minister chosen the Adoption Authority it would have been a gesture of recognition of those very serious concerns which have been expressed by many of the people most affected.