Seanad debates

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

 

10:30 am

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent) | Oireachtas source

I am disappointed. With great respect, the 2004 Act is not set in stone. We amend and change laws all the time. Of course, there is a concern if there are people whose rights are affected because we have changed a law. The Minister may speak of the rights of those who participated. However, there is sufficient measure already, even within Article 15 of the GDPR, to protect the rights of those who participated. Article 15 states: "The right to obtain a copy referred to in paragraph 3 [the right of providing a copy of personal data] shall not adversely affect the rights and freedoms of others." The latter means that there is already in place a measure which ensures that if there is a concern on the part of anybody who participated in the commission that his or her rights might be affected. I do not see how inhibiting Article 15, or seeming to do so - especially when the Minister described them as almost being more concerned - because, at present, the position is only constrained under section 39 of the 2004 Act, which was only inserted into it two years ago. The Act was changed two years ago in an explicit attempt to narrow the position and remove rights under Article 15 because the GDPR rights took precedence over the original constraints. The 2004 Act was amended in 2018 by means of section 198 of the Data Protection Act, whereby there was an explicit decision to have it stated that Article 15 would be constrained only "to the extent necessary and proportionate to safeguard the effective operation of commissions and the future cooperation of witnesses".

Amendments Nos. 24 and 26 in the names of Senators Bacik and Ruane simply seek to clarify that Article 15 applies. However, it should be clearly stated on the record that it applies and that the exclusions the Minister has put in with regard to section 198 of the 2018 Act are not helpful and should be removed. If the Minister does not remove them, he will have a battle of interpretation because I guarantee that someone will say that the decision to withhold from someone information regarding where that person's child is buried is not necessary or proportionate in the context of the operation of future commissions. The Minister is opening himself up to a suite of litigation. Of course, there will be those who will not be able to litigate and they will simply suffer as a result of the impact of a poorly designed tool. If the Minister cannot accept either amendment Nos. 24 or amendment No. 26, he needs to know that the Senators asked him to clarify that issue in the context of both of those amendments. I regard refusing information to persons in respect of a deceased family member as already being illegal and out of line with Article 15 - even under the interpretation adopted by means of section 198 of the 2018 Act - but I would regard it as an unnecessary cruelty to fail to give people that clarity and to suggest, in the context of the records, that it somehow cannot be done.

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