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
Michael McDowell (Independent)
That was my understanding too. The database that is going to Tusla has nothing to do with an individual who, in response to the appeal by the commission, came forward to give the confidential committee information about their experiences. Is this going to be transferred to Tusla as a database? I take it that it is not considered a related record. I wanted to be 100% clear on that because I did not want lines crossed.
Whatever about the Tusla issue and whether it is an appropriate interim resting place for this information, bearing in mind its role in tracing and the like, my amendment No. 2 is concerned about information given to the confidential committee. As the Minister will see, this amendment consists of identifying the confidential committee, for the purposes of later amendments, as the one established under the terms of reference of the commission.
In that context, it is important to put on the record what the confidential committee is. It is a separate subgroup of the commission. It is not the same as the commission in its entirety. Members should remember that the Commissions of Investigation Act 2004 gave, for instance, the members of a commission of investigation the right to summon witnesses, cross-examine them, demand they produce records and, effectively, to come as voluntary or involuntary witnesses before a commission. If I were running one of these institutions, I would be liable to be summoned, asked questions and to produce records I have on any of the institutions mentioned in the Schedule.
The idea of the confidential committee was to achieve an entirely different and separate purpose. It was not for the purpose of summoning people to extract information under powers of compulsion. In 2004 that was the power given to the commission. The confidential committee was a non-compulsory process, whereby people who had a picture to paint for the commission could do so separately while not being cross-examined, told to bring records, birth certs, their child's birth cert or whatever correspondence with adoption societies. This was for people who were invited to participate in a limited way in the commission of investigation's function to give them an opportunity to tell their story in a particular way.
Paragraph 3 of the terms of reference reads:
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 to provide accounts of their experience in these institutions in writing or orally as informally as is possible in the circumstances. Subject to the requirements of Section 8 of the Act, the Commission may appoint persons it deems to be appropriately qualified to be members of the Confidential Committee.
It is a separate procedure from the mainstream investigatory function of the commission. It then defines what the purpose of this confidential commission committee is:
The Confidential Committee shall- (a) operate under the direction of and be accountable to the Commission, [it clearly is not an independent republic]
(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. [Its mainstream investigatory activity]
This was a standard form of commission of investigation to look into all of the issues in Article 1 of the terms of reference. However, this was a separate process by which people would not be swept into that, brought along as witnesses and rights to cross-examine and so forth conferred on people. Instead a separate confidential committee was put in place, the purpose of which was to allow people who were in the homes to give their account of what happened in a manner which was outside the normal cut and thrust of a commission of investigation. It should be remembered that a commission of investigation is entitled to subpoena people, documents and ask questions which one must answer. One can be certified for contempt if one refuses to do so. It is a serious investigatory body. The confidential committee was, by contrast, a wholly different animal. It was a receptive, informal venue for people who were not going to be treated as witnesses in the main investigatory process to allow them to paint a picture of what it was like to be or work in those homes.
For that reason, the database Senator Higgins and others are concerned with is, as the Minister has now confirmed, entirely separate from this. There is no crossover between the database and this material. That is why I, like many Members, believe it is important that the database be preserved. It is important for those who were adopted, fostered or brought up in these homes to have the right to know what is in the database. I agree with the Minister that there are constitutional issues of balance and so forth. I am quite sure what the former Minister, Katherine Zappone, attempted to do, and what the current Minister is committed to doing, can be done and that there can be a mechanism to deal with those people. I have no problem with all of that. I do not think the Minister intends kicking the can down the road for 30 years. I accept his word that he is working hard to deal with all of the issues, including the right to know one's real identity, subject to some other countervailing rights which will have to be balanced out by some kind of mechanism. I wish the Minister well in drafting that legislation.
Having said all of that, some Members think I am being overly legalistic. I am not. People were invited to the confidential committee on a particular basis, namely of representations which were made to them. The representations were set out in the leaflet which invited them to participate. The leaflet stated:
An important part of the Commission's work is the establishment of a Confidential Committee. This Committee will operate under the direction of the Commission.
The main purpose of the Confidential Committee is to listen to the experiences of those who have spent time in Mother and Baby Homes. These can include mothers, children, nuns, workers, occasional workers (e.g. delivery men, painters etc. ) and visitors to the home.
This Committee may be suitable for you if you wish to have your experiences heard in a sympathetic atmosphere by experienced people and you do not want any person or institution to know that you are giving evidence to the Commission.
Nothing could be clearer. It was stated to people that they were not witnesses, their names would never appear in a report, no one would ever be given the right to cross-examine them or challenge what they were saying, and they could come in and quietly tell their story, totally anonymously.
There were told the meetings of the confidential committee would be in private and that they could bring a friend with them but they would have to do the talking themselves and they could not allow the friend to paint the picture for them unaided. They were told they would be given travel expenses and that they would not need legal assistance but that if they wanted a solicitor with them that they could. They were told that after their application form to give evidence to the confidential committee was received that they would be contacted by a witness support officer who would agree a date and a time for them to meet the committee and make necessary arrangements for travel or accommodation, and who would meet them when they arrived and help them with processing and reimbursement of expenses and so on.
Under the heading, "What will happen at the confidential committee?", people were told:
You will be asked to describe your experiences. You may be asked some questions in order that the Committee can collect as much information as possible. Any person accompanying you will not be allowed to describe your experiences for you because it is your account that the Committee wishes to hear. However if you need to, and with the agreement of the Confidential Committee member, you may ask your companion to assist you in giving your account.
There will be one Confidential Committee member in the room and another experienced person taking notes. If you agree, an audio recording will be made of the meeting so that the members can have as full an account as possible to assist them in preparing their report.
Audio recordings were made on tape but participants were assured that the tape would be destroyed once the confidential committee member was satisfied that they understood what had been told to them.
The terms of reference continued:
What sort of findings will the confidential committee make? The confidential committee will make a general report, which won't name you or any specific person or institution.
The confidential committee would anonymise what it heard and say something like, "We found that mothers were frequently treated this way or that way, or ill-treated in this thing, or deprived of access to their families and so on." The information was used to aggregate a general report, not to say this particular man made someone pregnant or this particular parish priest had someone else brought to a home, for instance. One can imagine the kind of material that would be set out by an individual so many years later. Most of these cases happened quite a long time ago. According to the terms of reference, "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." That was the basis on which those people participated. They were volunteers, they were given an assurance and that was of anonymity, that their identity would not be revealed. They were told:
No report on anything you tell the Confidential Committee will be given to the authorities, except where the Committee has reason to believe that: a serious crime has been committed; a serious risk to a person's life exists; there is a current risk of child abuse. In any of those situations, we are obliged to report the matter to the Gardaí or to TUSLA, the Child and Family Agency.
They would know that if they made a direct allegation of, say, rape against somebody that it could be reported by the commission, but short of that they were told that everything they said was personal to them and would be protected.
What myself and follow Senators who are putting forward this amendment and those related to it want to ensure is that they will not have the guarantee of anonymity given to them broken and that they will have their rights upheld. They were not told that everything would be recorded, put into an archive which would go off to the Department and after 30 years become part of the National Archives of Ireland and subject to the procedures of the National Archives or that they would be released or not released as the case may be. There are protections under the National Archives Act 1986 for the rights and reputations of people, so it is not the case that everything automatically is thrown out into the public domain under the 30-year rule.
I want to give the commission, before it winds itself up, the right for people to remove their names from their testimony, if that is what they want to happen. If the picture they painted of their own family at home, the circumstances that drove them to the home, the failure of people to help them was a highly specific picture, the amendment would give them the right to say that they did not want that to go to the National Archives as they had provided the information on the absolute understanding that they would never be identified, whereas the commission is actually storing away the material with their name on it in contravention of what they were told. I understand that the commission intended to anonymise the material, not destroy it. It should be the case that a black line goes over any names or addresses or information that would clearly identify who respondents were if that is what they wanted. This and the related amendments aim to bring about not only what is legally acceptable but also morally demanded, namely that the State, through an agency, having established this confidential process on the guarantee of anonymity, would honour its side of the agreement. The commission of investigation is a State body established by statute. The State has told people that if they come in and give this picture, they will never be identified. Then, after the event, when the commission indicated its desire to anonymise its material, the State told the commission it could not redact the material in any shape or form and that the people's names must remain on the records and be sent to the National Archives. I ask Members and the Minister what useful purpose is served by that. If one gives someone a solemn undertaking and then, as section 5 does, prohibits the commission from ensuring the anonymity will be perpetuated by simply putting a black line through various portions of a person's volunteered testimony, what harm is done? Those people could go out onto O'Connell Street tomorrow with a loudhailer and tell the world the same story. It is not as though their rights would be infringed by it. Every one of them is free to write a letter to the paper or to call "Liveline" and give an account of what happened to them in any of these places. They could write a book or do whatever they want. They are free to do that but when they are invited into this process on the basis that they will not be identified, what useful purpose is served by not allowing the commission to go back over those records and give truth and life to the commitment that was made to them by simply taking out a black pen and obscuring who these people were?It does not affect people tracing their ancestors and it simply does not affect the rights of survivors of these institutions one bit. It does not affect the rights of any third party that these accounts are anonymised and that a redaction of that kind takes place. I know this may have nothing to do with the hundreds of emails we have received from survivors who are unhappy with this Bill and I have some sympathy with what they are saying, but I am making a different point. I am talking about the 500 or so people who responded to this process. I am asking that as a matter of honour, having established the commission and this confidential committee, these Houses do not renege on their commitment to those people by asking them to accept the fact that what they said in total privacy and on a guarantee of anonymity is now going to be preserved forever so that at some stage somebody can have access to that material and identify them from it.
I will be interested to hear what the Minister has to say about this but I cannot see what good will come from this. All of those 500 people are free to go on an RTÉ programme, if they can get invited on, and give their accounts. All of them are free to write a letter to a newspaper or set up a website and give their accounts if they want to do so. Here they were given an opportunity to paint a picture with a solid guarantee that they were free to say whatever they wanted because they knew they would never be identified as having interacted with the commission. I cannot see why we should withdraw that total anonymity from them.
These amendments are attempting to negate certain parts of section 5. Section 5 of the Commissions of Investigation Act 2004, which I was responsible for bringing before the Houses, rightly says that because it was assumed that all evidence was evidence before a commission, all records received by it were part of the record of its transactions. It was assumed that, at the end, all of that material and all records of a commission of investigation would go to the Minister, just in case there was to be a further tribunal of inquiry. Otherwise they would be given over to the National Archives of Ireland in the normal way as a departmental record and be subject to all the protections that apply to them. It was assumed that would be a perfectly reasonable thing to do. I can say for certain that at the time of the Commissions of Investigation Act 2004, nobody had in mind that tacked on to one of its terms of reference would be a process that did not amount to the giving of evidence, that was outside the normal cut and thrust of giving evidence and being questioned about it, and involved being forced to give evidence and being forced to do this, that and the other.
It is important to note that if in sworn evidence before a commission of investigation, somebody accuses another person of abusing him or her, that person is entitled, as a matter of fairness, to rebut that evidence. All of that is completely irrelevant to the confidential committee accounts given by these survivors. Section 5 reads:
For the avoidance of doubt, the obligation under subsection (2) of section 43 of the Act of 2004 to deposit with the specified Minister evidence received by, and documents created by or for, the Commission (other than the database and related records) is an obligation to so deposit such evidence and documents without redaction therefrom.
What the Minister has in mind with this Act is to prohibit any redaction in support of anonymity. I cannot see why that is necessary and I cannot see what is unjust about a redaction which the commission thinks is fair. I cannot see how anybody could be prejudiced by that or how upholding the rights of those 500 people who came in prejudices the public in any way, shape or form. Therefore, I ask the Minister to look at this in that light.
These people were told that the accounts they gave would not be open to challenge. In other words, they were told that if one accused another of having done something to him or her, that accusation could be freely made but there would not be anybody coming in to say that the accusation was false. They were told that what was said would just be taken on board in creating a general report for the commission. That is what it is there for. I ask the Minister to explain to the House what good will be done by this. I am not asking that everything be redacted. I am only asking that the confidential committee reports be redacted if the commission thinks that amounts to delivery on its representation that there would be anonymity. I ask the Minister to explain to the House what good purpose is served by prohibiting the commission from taking out the felt marker and removing the names of the people who have created these records.