Michael McDowell (Independent) | Oireachtas source

I welcome the Minister back to the House. I acknowledge his prefatory remarks on what he believes now to have been an erroneous approach of an over-legalistic kind to the legislation. It is not up to me to accept apologies but I think that the Minister is sincere in saying he underestimated the reaction this legislation appears to have had in the minds of many, portrayed as it was as an effort to conceal information which people feel should be out in the open or accessible or available to them.

In the Minister's defence, if he does not mind, I would say that when these Houses in 2015 established the particular commission, they did not request a detailed examination of what was done to every single person who wanted to come forward and give their account of what happened in these homes. They did not want to do that for the very simple reason that although the opportunity to testify as to one's personal experience is undoubtedly a very valuable thing for victims, inevitably there was going to be the problem that insofar as the allegations referred to abuse both prior, during and after their residence in these homes, a balancing act would be required and a testing of accounts would have to take place.

Therefore, these Houses, in utmost good faith, established the twin-track approach that the commission could summon people who it felt were necessary to achieve its purpose, which was to give to the Irish people a general account of what had happened in those homes and not a particular line-by-line analysis of whether one particular person was abused, as undoubtedly did take place, and as to their rights this way or that. These Houses attempted to strike a balance between the absolutely natural and totally justified desire of victims to be heard in some sense and the problem that it would be a selective commission, dealing with only a narrow range of the homes.It may have been a representative sample, but it was not a comprehensive examination.

Second, there was undoubtedly a need at the time to circumscribe the activities of the commission so it could report within a reasonably short period of time. The commission was established in 2015 and it is now 2020. This has taken us five years. We are going to get its report at the end of this month, which is a good thing. As the author of the Commissions of Investigation Act 2004, I believe in retrospect that it should never have been used as the vehicle for this commission. Tailor-made legislation would have been far more appropriate than the 2004 Act. It was designed to allow speedy and private investigations in which witnesses and their testimony would never be exposed to the public gaze unless absolutely necessary. Publicity was not the purpose of the exercise, but rather trying to find out what happened with regard to specific issues. The difficulty the Minister now faces is that five years ago a decision was taken to use a fairly blunt instrument which was not well adapted to the feelings of victims or their wish for personal vindication. A legislative mechanism was chosen which would almost inevitably produce the problems we have today, unless the law was amended at some point.

In this sense, I have a good deal of sympathy for the Minister. At the 59th minute of the eleventh hour he has inherited a legislative and emotional time bomb which was ticking away. It was going to have a certain result, namely, that all of this material would be archived with no satisfactory outcome for many people who want maximum vindication and closure. Having one's account heard by someone does bring some degree of closure, though obviously not complete closure. I agree with what Senator Bacik has said. The advice received by the Minister was that the appropriate thing to do was to wrap everything up by 30 October, the presumed end date of this commission. However, this could not be done in a satisfactory way for various reasons which we have debated in these Houses. While I admire the Minister's humility in saying that the legislation took a legalistic approach, we have to be fair and acknowledge that he was faced with an almost impossible position. He had to deal with a highly inappropriate legislative time bomb which was going to explode and leave victims extremely unhappy. This required some intervention. The only error, for which he cannot be personally criticised, was imagining that extending the life of the commission was unthinkable until he considered the implications of not doing so.

I fully agree with Senator Higgins. This material will be subject to the general data protection regulation, GDPR. It must vindicate the rights of data subjects in relation to material that relates to them. I notice that Senator Higgins's amendments require the Minister to put in place various provisions, mechanisms and procedures to give full recognition to the status of personal information relating to data subjects and accord them their rights under European law. That is very desirable. Whether it actually needs to be stated is another question, as it is the law. European law trumps Irish law, so those rights have to be vindicated. Obviously certain concerns must be balanced in that context. Those things have not been said. It is a pity that we have found ourselves with a gun to our head, having to deal with this without adequate time for consideration. It is a pity that the option of extending the life of the commission but still delivering the final report at the end of the month was not considered adequately. This option would allow the opportunity for pre-legislative scrutiny and consideration of the very serious issues that have arisen in the minds of the public. It is a pity that the Minister and his Department found themselves in this position. It is like a television movie where a bomb is ticking and a clock is going down, and the protagonist has to snip the relevant wire to prevent a catastrophe.

The amendments I put down were listened to by the Minister and were addressed in amendments made in Dáil Éireann. I was very pleasantly surprised. Personal views may differ on whether on an opt-in or an opt-out basis is more appropriate. Where a Minister attempts to deal with us decently, this House has a tradition of being non-adversarial and recognising what has happened. I hope that those who feel that the exercise was fated to be one of institutionalised cover-up at least understand that the 2004 Act was not the vehicle to give victims the public vindication that might be allowed by some kind of public testimony. It was never going to be that. The Minister has now confessed to fault and that is refreshing to hear, but in the circumstances we should understand that he found himself in a very difficult situation not of his making.