Rónán Mullen (Independent) | Oireachtas source

I support the amendments tabled by Senators McDowell and Boyhan. The first amendment is definitional, setting up the reference to the confidential committee. The first of the two substantive amendments proposed refers to the material that will be passed on to Tusla and I note the importance of Senator McDowell's questions to the Minister at the outset. As I understand it, he was seeking to guarantee that we are not talking about any information that would have been presented to the confidential committee. As I understand the purpose of amendment No. 7, it is to ensure that were any information from the confidential committee to go to Tusla, there would be redaction unless the person supplying the document consented otherwise. The substantive and more significant amendment is amendment No. 21. It relates to the information that will be deposited with the Minister, which I understand will include testimonies given to the confidential committee and much information that could identify people.

On Second Stage, the Minister commented on section 5, which is the subject of Senator McDowell's amendment, that section 5 provides that for the avoidance of doubt the obligation to deposit records with the Minister in accordance with subsection 43(2) of the 2004 Act is an obligation to deposit such evidence and documents without redaction therefrom. The Minister went on to say this section is declaratory of the current position under section 43(2) and has been included in the Bill purely for the avoidance of doubt. I am correct, am I not, in saying this section 43(2) of the 2004 Act is effectively silent on the issue of redaction? I ask the Minister to please correct me if I am wrong. It simply refers to the deposition with the specified Minister of all evidence received by, and all documents created by, the commission. If I am incorrect in this and if there is a reference to it not being redacted I would be very grateful for clarification on this point.

We do need to consider very carefully what went on in the context of the work of the confidential committee. Senator McDowell went to great lengths to explain what explanations and undertakings were given to people that would have caused some people to go forward. I take very seriously the point made by Senators Ruane and Higgins that there were people who went to the confidential committee who had no interest in their testimony being confidential. That point has to be taken very seriously. If I understand it correctly, there were people who would have preferred it not to be confidential, as Senators Higgins and Ruane have said, but I do not think it is doubted there were people who were happy to go forward to the committee on the basis that what they were saying would be confidential. Therefore, it seems all the more necessary that the wishes of such persons be established before any information is transferred to the Minister without redaction. This points to the need not to rush the Bill but for the Minister to go away and consider the issues of justice, fairness and honour that these amendments touch on and give us and himself the chance to see how it might be addressed by way of an amendment on Report Stage.

It has already been pointed out several times that there is no obstacle to the Minister extending by a short period the deadline by which the commission must submit its report and thereafter dissolve so as to allow to be teased out not just this issue but the impact of any change consequent on this debate, these points that have been raised and any possible acceptance by the Minister that is a serious point to these amendments being affected in activity. The commission must be allowed to establish the wishes of people who came forward on the question of redaction. We cannot just assume it is okay to pass on all of this information, including identifying information, without redaction.

It is very difficult, at least I find it very difficult, to imagine in the abstract, as it were, and without examples, all of the different kinds of information that are in play here, whether it is the databases and related records being passed on to Tusla about who was in these mother and baby homes, or the kind of information that would have been the subject of disclosures given to the confidential committee. As I listen to the debate I have been asking myself what kind of person would be affected by the decision to redact or the decision not to redact. In going to the confidential committee there were two aspects to this. There was the promise of confidentiality or, as Senators Ruane and Higgins might put it, the imposition of confidentiality but, of course, there is also the unchallenged nature of what would be said, by definition unchallenged so as to allow people to tell their story. As Senator Seery Kearney pointed out, this is not evidence in that sense, if I am quoting her correctly.

We can say the decision to redact or not could do an injustice to the person speaking but, of course, it could also do an injustice to the person spoken about. We can imagine an allegation or claim being made about the parentage of a child, or whatever it is, that is not being tested by the confidential committee but which is a claim that could be very damaging to the reputation of a person being mentioned. That person may be alive or dead. Putting such information, even subjecting it to a time period during which it cannot be accessed, creates potential risks of unfairness or injustice.It might be the case that people might wish that their evidence is not redacted in the sense that their names are not separated from it but it might still be the case that justice to another person requires that certain names in that testimony be redacted. It might be the case that people who came forward to the confidential committee might not want their names linked with a story because they might not want any further linkage between them and their story. The State has to be honourable in this and we have to err on the side of caution. If there was an understanding that confidential information was being given, the State has to proceed with tremendous caution.

I am sorry that I have not had the chance to look back in some detail on the Ryan commission but perhaps the Minister will know the answer to this question and I would be grateful for a direct answer from him. The Ryan commission was established to inquire into child abuse from 1936 and it also had a confidential committee, in addition to a more evidence-based committee. What commitments or representations were made to those who gave testimony to the confidential strand of that committee? What decisions were made about redaction in that context when presumably the information was eventually transferred to the Department? I do not know if that is a relevant question but I would be grateful for clarification. It would perhaps be some indicator as to what precedent might exist in this situation, not that the cases are exactly the same because in the context of this confidential committee we are talking about information that touches on the Minister's aspiration to provide for a system of information and tracing into the future that would allow people to know more about their identities and stories. That is an aspiration we must all support. I would be grateful to know whether the activities of the confidential strand of the Ryan commission can shed any light on this question we are discussing today.

Could it be said, supposing Senator McDowell's amendment is accepted, that information could be lost that might be of benefit to a person trying to establish information in the future as to his or her identity and so on? While I agree with what Senator McDowell has said in pointing out that there are other means open to people to put their information into the public domain, it does strike me as at least possible that people might have approached the confidential committee with information. These people might have done so because people evolve in their minds and thinking about their situations, and it might be the case that they gave information, perhaps intending that it remain confidential and perhaps not engaging with that question because they knew the only form in which they could give the information was in a confidential context, as per the points made by Senators Higgins and Ruane. It might be that such people, having told their stories, would want their names to be linked with that story. That can be separate from any questions about what they have to say and how it might adversely impact on third parties mentioned in their stories. There is also the question of their identities being disclosed by them being linkable in the future with certain information that might help the information and tracing process.

That prompts me to wonder whether a tweaking of Senator McDowell's amendment could be done so as to provide that before the commission's dissolution, it would provide the intent of each person who came before it as to whether their names shall be redacted or not. That is not to touch on the other possibly complicating aspect of this, which is that what they say might impact unfairly on others and the question of whether those other persons' names should be redacted would remain to be considered.

That is all I have to say but it all points to the need for the Minister to not rush to Report Stage of this legislation. The Minister would be setting a good standard if he treated the amendments of Senators McDowell and Boyhan, particularly the last one, in light of the guarantees he gave on the second one. It would do a credit to him and to his seriousness about these sensitive issues if he were to take the time to consider the important points that their amendments have brought to the surface and if we were to not take Report Stage today so as to give the Minister a chance to consider those amendments and this debate fully before we go any further.