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
Ivana Bacik (Labour)
I thank the Minister for engaging on the question that I had asked about the rationale for the Bill in the context of these amendments tabled by Senator Higgins. I understand that he said, and I think the concern was expressed to the Department by the commission so it would be helpful to see even an outline of the commission's legal advice, the commission was concerned that if legislation was not passed that the database or any documents it handed to the Minister or his Department, under the 2004 Act, would then be sealed for 30 years and inaccessible for any future purpose and, therefore, legislation was necessary to deal with that aspect. Why this legislation? Why not deal with the problem disapplying the 30-year rule? If that is the plan in any case, because there is going to be a future information and tracing service, which, apparently, will be conducted by Tusla in line with future legislation, then why not disapply the 30-year rule in this legislation?
The 30-year rule is, as the Minister has said, a legislative provision passed by a previous Oireachtas. It is perfectly possible for this Oireachtas to disapply that legislation. Indeed, without getting ahead of ourselves on Committee Stage, the Labour Party's amendment No. 12 seeks to disapply the 30-year rule by enabling the agency to provide "information about a deceased person to a brother, sister, son, daughter, nephew" and so on of that person. We are saying, let us just amend that provision in the 2004 Act. I know it is there and I know, as the Minister has said, that that is the default if nothing were done but something can be done, that is, an amendment to the 2004 Act to disapply the 30-year rule.
The crux of the matter is that very many people who have contacted us feel strongly about this. We have been told in a very useful data protection assessment document that we received from the Department at 10 a.m. that there are 60,000 records identified to be transferred in the database concerning individual data subjects, both dead and alive, who passed through 15 of the institutions under investigation by the commission. If one is one of the survivors or a family member about whom there is data held, how frustrating it is to know that the data is going to be held by the Minister but sealed for 30 years, and by Tusla for some undefined period yet a survivor or one's family member will have no access to it and no right to see it or even know what it is. This is hugely important. This is not centrally about the testimony given by survivors to a confidential committee. This is about the 60,000 records, as the data protection assessment says, that relate to a huge array of information, of paper records, records obtained under discovery, and records held by the institutions, by the State, by the religious and so on. We are saying that people should have access to a huge amount of information where it identifies them or a relative and where it is their information. How frustrating it must be and paternalistic of us to continue to hold that and say, "We are going to allow you access at some future point but we don't yet know how we are going to do that".
The data protection document sets out very squarely that:
The proposed legislation will not expand access to information for individuals. This is a key issue for most stakeholders who seek access to birth and early life information but are prevented from accessing it due to constitutional issues relating to the balancing of rights.
That is the obstruction that we faced before trying to achieve a resolution and legislation on this issue. I do not think that we should give up on it. Absolutely not and I really agree with the Minister on that. I am heartened, as I know that the survivors will be, to hear his commitment to bring forward that legislation. However, the problem for survivors now is that this legislation simply compounds the existing ban or obstacle to their seeking or obtaining information, which is the real problem. I have been contacted about this matter by so many people. One of these people is somebody for whom I have huge regard, as I know the Minister does, and that is former Tánaiste, Joan Burton. She did a huge amount of work, along with the former Minister, Katherine Zappone, to bring forward information and tracing legislation.
There are huge concerns that this legislation simply compounds the existing problem. It may be aimed at, and the rationale behind it may be to deal with the 30-year sealing rule. However, it does not address the rule but re-enforces it and provides for a transfer of a database to Tusla. It does not indicate how Tusla will use that or, crucially, what access people will have. A simple solution is to amend the 30-year rule as it applies to this database in this legislation. I would have thought that was the better approach to take.