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 thank Senator McDowell for clarifying that the database is not affected by this, as it is important that there is unity across the House. There are a number of other areas of agreement across the House, but I must oppose amendments Nos. 7 and 21. I will explain why.
It is about the core issue of people's rights to have their stories told, if they wish to tell them, and to own their words and experiences. The 2004 legislation was drafted at a particular time when Ireland was early in beginning its journey. It was before the referendum on the rights of the child, the apologies and Tuam. We were at a point where we were beginning to look at these stories. There was still an assumption of secrecy and a climate of secrecy, and it is one that unfortunately permeates many parts of the legislation in the history of the State. So be it.
Nonetheless, the 2004 legislation contained a measure which allowed for balancing. It said that commissions may conduct proceedings in private unless a witness requests that all or part of his or her evidence be heard in public, and the commission grants that request. There was that provision that people should be allowed to give their evidence in public if they wished to, unless there was a reason not to. One of the only reasons not to was where the commission might have concerns regarding impacting on the procedure and the investigation. Bear in mind that, according to the records we have now, the investigation is finished and the procedures are concluded.
That was in 2004, but let us refer to 2015 and the order establishing this commission. It reflected to some extent the fact that the argument, situation and understanding had changed. Part 4(b) of this commission's order of establishment states that it will "provide in its procedures for individuals who wish to have their identity remain confidential during the conduct of the Commission and its sub-sequent reporting". The assumption has switched from assuming everything is private and a person might request a public hearing to saying that it may be public, but there are and must be circumstances, and they have been eloquently described by Senator Boyhan, in which people could request to speak in private. That was the mandate given to the confidential committee. That committee was asked to provide in its procedures for individuals who wished their identities to remain confidential. However, the confidential committee instead issued instructions to people telling them that it would be private and secret.
We have the words of the director of the commission referring to how a number of groups had asked for public hearings, specifically because this is the confidential committee. This is the testimony on what happened and the words of those affected. She said that at least five individuals had asked to give their evidence in public and had been refused. I care about those five individuals and their rights. There are far more than five because a number of them were told from the start that it was going to be this way. It was not based on volunteering. People were not looking for assurances in many cases because they were not ashamed. They were proud of themselves. They were proud of coming forward and talking about the horrors that had been inflicted upon them. It was a massive moment for people to be brave, come forward and talk about their experiences. They wanted it to be recognised. They wanted the dignity of it being recorded. They wanted the history books, which had hidden them after decades of erasure and secrecy, to show that they had stood up and given testimony. We know from the histories of abuse and from court trials for sexual abuse and attacks how important it is to be able to say, "I recovered my power and strength, I spoke and I reclaimed my life and experience".
With great respect to Senator McDowell, it is not something about which one can casually telephone Joe Duffy or on which one might write to a newspaper. The Senator may have the access he wishes to RTÉ or The Irish Times, but most people do not have that. In the interim, when we were halfway through this process, people were telephoning me and begging me to read what they said into the record of the Seanad because they were so upset that what they said had vanished. It is not easy to give this testimony, or to give it multiple times. It is not something one wishes to run with to the media, but one wants the record to show it.
Absolutely, there must be massive nuance in this. I do not believe that these records should be transferred wholesale. In fairness, Senator McDowell acknowledged there are provisos in the National Archives and that if that were the case, it would be entirely inappropriate. Those who wish to be anonymous and so forth should be - and their documents should be anonymised - but there must be space left in this legislation.
With regard to the operation of section 41, I have tabled an amendment in which I ask the Minister to make regulations on how the 30 years would operate. Those regulations should include provisions that protect the anonymity of those who actively want it, and offer an opportunity for access to their testimony and, indeed, an opportunity to not be erased from history for those who wish to have their records. One of the few people who managed to get her story out to the public is Philomena Lee. Her family are tweeting again today about how important it was and how much she wanted it to be public. She challenged and begged for her record to be public.
The culture that prevailed in 2004 seems to have trumped the direction that was given to the confidential committee in the 2015 order. If it chose to not properly give people the right to the option of public hearing at that time, we certainly should not replicate that mistake. There are two specific concerns here. One is that the record would be lost and people would disappear. If there is one thing we have known, it is disappearance.If the records were not transferred, the stories of persons would vanish. That is not respectful to people, especially to those who wish to have their names in their stories. There are people who do not want to be just a salutary lesson for future generations but to be known, and they should have that right. One of my amendments at a later stage seeks to address this issue in a different way. It suggests that all of the data protection rights, including the right to erasure if that is what people need or want, as well as the right to access one's own personal information, should be applied to all of the records, including those testimony pieces of the confidential committee. I have huge respect for those proposing these amendments but I cannot support them.