Alice-Mary Higgins (Independent) | Oireachtas source

I will speak to the three amendments. These are some of the most important amendments of the day. Amendment No. 12 explicitly refers to "providing information about a deceased person to a brother, sister, son, daughter, nephew, niece, grandson, granddaughter, grandnephew or grandniece of the deceased person". One of the greatest sources of distress for families concerns the information about their siblings. For those who have been adopted, this might include learning whether they have siblings and having information about them even if those siblings are deceased. We know, for example, of the extraordinarily high mortality rates in the Bessborough home. It is extremely important that people are able to find that. The Justice for Magdalenes events happen every year in Dublin, Galway and different places and a number of us go to them. Each year, they go to the graves of those who lived in the Magdalen laundries and one of the great sources of distress is that even information on the locations of the graves - the ability to know where one can go to mourn - is something that has been obstructed, denied and made difficult. Those are the days when people go and try to remember their mothers, in most cases, who may have died within the mother and baby home system. It has been agony for most people to get that information.

There is a strong and usual principle in law that where somebody is deceased, things change as far as access to information is concerned. It is really appropriate, especially in circumstances where we know there were forced adoptions and where women were sometimes lied to about whether their child survived, that if there is any small modicum of light which can be shone for people in relation to a deceased relative, they would be able to access it. There absolutely is scope for the Minister to provide for that. It is important that if Tusla have records or if there is a database, that that be allowed. This is a very strong amendment and I will support it 100%. I notice also the mention of archiving, scientific or historical research purposes but of course, as is made clear here with regard to section 42 of the Data Protection Act 2018, for those purposes it would be important that the Minister would set out suitable and specific measures, safeguards and so forth to ensure all of those things were done in the right way. Again, the Data Protection Act gives him extensive powers to make suitable regulations. As such, he has the powers to make regulations in respect of both of these issues. I hope the Minister will accept this amendment but it might be good if an amendment was added in the Dáil that relates to mothers and fathers because there are some survivors who are still seeking information on burials of children who they may have had inside the industrial homes. This has been a really fraught issue in relation to Bessborough and a real issue of concern. Tuam is not the only situation where there was a high mortality rate and huge numbers of infant deaths. Again, I really support amendment No. 12.

I want to speak to amendments Nos. 24 and 26. I tried to co-sign No. 26 but apparently my co-signature arrived too late. I strongly support it however. These amendments again concern the data protection regulation. We are suggesting the Minister should not be restricting Article 15 of the data protection regulation. Article 15 relates to people's access to their own information. We talked about the GDPR as an empowering piece of regulation, not simply a tool a secrecy. One of the fundamental principles is that people's information is their own. Across many arms of the State there is often a core misunderstanding of that, whereby it gets framed as "Don't worry you won't be identified, it will be a secret and don't worry, no-one will know". That is not the issue; the issue is people's own information being theirs and them being able to access it. The Minister needs to be able to answer data subject access requests and needs to be able to do so in respect of documents lodged with his Department, notwithstanding anything in the 2004 Act. That is not about publishing things for the record, it is about ensuring people can access any of their own critical information that might be there, especially if the Minister has the full repository.

I note also that people have mentioned the concern around Tusla and its very narrow interpretation of the GDPR. I am concerned about the balancing act, which we talked about at great length with the Adoption (Information and Tracing) Bill 2016. There is already a proviso within Article 15 about balancing the rights of an individual and ensuring that it does not impact disproportionately on the rights of others. That is a nuanced balancing act, one that can be and is done in sensitive situations right across Europe. It is doable. When we were debating the information and tracing Bill, there was a lot of discussion of the balancing in the Constitution. We pointed out that there are mechanisms of balancing within Article 15 already that are in fact an appropriate balancing mechanism, especially since EU legislation is also part of the Constitution. Indeed we also have the rights of the child which entered, since any previous Supreme Court cases, around the balancing of privacy and information. In that respect, I am concerned that trying to take Article 15 out of the picture, so to speak, will roll us backwards in the discussion on how we deal appropriately with a person's access to requests. In that respect, both amendments Nos. 24 and 26 urge the Minister to ensure he does not remove Article 15 and that he rather puts in place regulations and measures to ensure he deals appropriately with Article 15 and that there are measures in the regulations and so forth that balance, as is required already, within Article 15.

Given the very blunt interpretation of GDPR we unfortunately have seen consistently from the Child and Family Agency, another concern is that other rights people have under other parts of the GDPR - including for example, rights in terms of information where their legal rights might be affected - do not effectively disappear because we are told GDPR does not apply in this regard.That is in terms of the wider question of Article 15 being taken as a stand-in for the other sets of rights under the data protection regulations.

I hope the Minister will consider these. I urge him to be cautious in terms of something that will tie his hands in the future when he looks to put in place appropriate legislation and that will in fact remove one of the most important and powerful tools that we have in terms of Article 15 from his deliberations at that time.