Wednesday, 14 October 2020
Commission of Investigation (Mother and Baby Homes and certain related Matters) Records, and another Matter, Bill 2020: Second Stage
Ireland's history is sadly littered with a legacy of failings related to the care of our most vulnerable citizens in institutional settings. Previously, the State has ordered investigations into specific institutional settings and shone a light on the pain and anguish experienced by people who found themselves in these institutions through no fault of their own. In 2015, the Government established the Commission of Investigation into Mother and Baby Homes and Certain Related Matters to comprehensively examine the experiences of mothers and children who were resident in mother and baby homes and related county homes. These matters have never been the subject of a statutory investigation before and it is vitally important that there is a comprehensive examination and understanding of the experiences of those who were resident in them. Vulnerable women were hidden away in these places because of the societal shame and stigma associated with being an unmarried mother at that time. The commission is charged with investigating specific sensitive issues relating to the practices and procedures regarding the care, welfare, entry arrangements and exit pathways for the women and children who were residents of these institutions. It was also tasked with completing an academic social history spanning 75 years. This will chart the journey of many who passed through these places and the lifelong shame and stigma which they experienced as a result. The commission's report will put these experiences into the context of the time they occurred.
The commission established a confidential committee to enable former residents to provide an account of their experiences in private. These accounts will be captured in the final report, thereby giving an explicit voice to the mothers and children who began their lives inside the walls of these institutions. The lived experiences and hidden secrets of life in these establishments, as told by survivors, will finally be reported.
This has been a long time coming for many who have associations with the homes. I understand that the anguish felt by many former residents of mother and baby homes and their families has been prolonged by the commission's need for additional time to complete its work. However, I know they understand that the commission is investigating important, personal and sensitive matters which happened over a period of more than 75 years. The commission of investigation is due to submit its final report to me by 30 October of this year.
The commission was established under the Commission of Investigations Act 2004.As prescribed under this Act, on submission of its final report, the commission will stand dissolved and, prior to its dissolution, it must deposit all commission records with me as the prescribed Minister. The 2004 Act further provides that this archive of records will remain sealed for a period of 30 years after which time its availability for public inspection is governed in accordance with the National Archives Act 1986.
The Bill I am putting before the House today deals with serious legal and practical issues that were raised by the commission of investigation with regard to finalising its records. This Bill aims to safeguard the records gathered by the commission over the course of its complex five-year investigation so they are preserved intact and available into the future in an appropriate way.
This is a technical Bill so I will be using phrases such as "database" and "records" and other technical language during the debate but I am acutely aware that each record represents a person and very real suffering in the past but also emotional wounds that are still very much open today for many of the survivors. The commission has compiled digital databases with details of the mothers and children who were resident in 15 of the main mother and baby homes under investigation from the records that are available to it. These databases have been painstakingly developed over a long number of years and at considerable cost. The commission believes that these databases and related source records would be of assistance to those involved in providing information and tracing services. However, the commission believes that as the information compiled in its records contains sensitive personal information, it is obliged to redact the names and other identifying information about the residents of these homes from its archive, including its database and related records, prior to transfer. Notably, the commission believes that legislation is required in order to address those matters.
Having examined the issue, the Government concluded that there was a strong rationale for legislation to be passed to protect the complete records of the commission and to specifically provide for the transfer of the valuable database and related records from the commission to Tusla so that it can support information and tracing services for former residents. This is the essence of the bespoke legislation before us today.
This Bill ensures that the records of the mother and baby homes commission of investigation are deposited without redaction. While the main archive will be deposited with the Minister, in line with the provisions of the 2004 Act, significantly, this Bill provides for the transfer of the database and related records directly to Tusla. That ensures that this invaluable resource is preserved and maintained and remains available, albeit on a limited basis in the first instance. That limitation is reflected in the restrictions set out in the Bill. These provide that the processing of records or data is limited to the purposes authorised by the data protection regulation, the Data Protection Acts 1988 to 2018 or any other enactment. However, nothing in the Bill prevents Tusla from processing information from a related record given to the commission by Tusla itself. The Bill also enables appropriate access for the essential maintenance of the digital database and related records. The Bill provides no new entitlement to information.
By legislating for the urgent protection and limited use of these databases now, my intention is to provide an important foundation upon which we can build. In the future, I plan to advance comprehensive information and tracing legislation, which will expand access to the entire suite of information now being transferred to Tusla. However, as Senators will understand, this is a challenging task that requires a balance between the complex constitutional rights, and its not a balance that we can achieve in this particular urgent legislation.
The Bill also includes a number of technical amendments to the Judicial Council Act 2019 as proposed by my colleague, the Minister for Justice and Equality, Deputy McEntee. Given the timeframe for the finalisation and submission of records, there is an urgent need for this Bill to be passed and signed into law prior to the dissolution of the commission on 30 October. It is imperative that the valuable information compiled and developed by the commission is preserved for posterity by passing this legislation before that date.
I will outline the Bill's key provisions, which should be read in the context of the relevant powers, procedures and protections in the Commissions of Investigation Act 2004.Section 1 is a standard provision which provides definitions of key terms used in the Bill. The term "database" specifically includes all the databases developed by the commission with regard to the former residents of the institutions being examined. The definition of "related record" refers to the source material from which information was obtained for the purpose of creating the database. In practical terms, these sources are institutional and public source records which were obtained by the commission in the course of its work.
Section 2 provides for the commission to deposit the database and all related records with Tusla as soon as possible after enactment. The Bill substitutes Tusla for the Minister as the recipient of these specific records. Section 2 also confirms that the material shall be transferred without redaction. It is declaratory at the current provision under section 43(2) and has been included in the Bill purely for the avoidance of doubt.
Section 3 deals with restrictions on processing of the database and records received by Tusla. It stipulates that Tusla may not process records or information provided to the commission except where authorised or required under the data protection regulation, the Data Protection Acts 1988 to 2018 or any other enactment, or for legitimate purposes related to maintenance. The section expressly states that nothing in the Bill or the Act of 2004 shall prevent the processing of information which originated from any record given to the commission by Tusla. The Bill does not provide any new entitlement to access information in the possession of Tusla or to the archive which transfers to the Minister in accordance with section 43(2) of the 2004 Act. This would have to be addressed by separate legislation in the future.
Section 4 deals with the application of section 45 the 2004 Act in respect of evidence and documents to be available to tribunals. This section ensures consistency with the 2004 Act insofar as the evidence and records to be deposited with the agency can be made available to a tribunal of inquiry in the event of the future establishment of such a body.
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 thereof. 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.
Section 6 amends the Judicial Council Act 2019. That Act provides for the establishment of various committees of the Judicial Council including the personal injuries guidelines committee. It provides that the committee shall submit the first draft of personal injuries guidelines to the board of the council within a defined period and also provides that the draft guidance guidelines will be considered and adopted by the council as soon as is practicable and in any event no later than 12 months after their submission. It is these provisions which are the subject of the amendments in the Bill.
Section 6 substitutes a new paragraph for section 7(2) of the Judicial Council Act 2019 and amends section 18(4) of the 2019 Act to allow the personal injuries guidelines committee to complete its work with a new extended statutory deadline of 9 December 2020 and for the council to adopt the personal injuries guidelines by 31 July 2021 at the latest. Section 7 is a standard provision enabling expenses incurred in the administration of the Act, other than by section 6, to be paid by the Minister for Children and Youth Affairs out of moneys provided by the Oireachtas. Section 8 is a standard provision to provide for the Short Title of the Bill which reads, "This Act may be cited as the Commission of Investigation (Mother and Baby Homes and certain related Matters) Records, and another Matter, Act 2020."
The provisions of this Bill are not expected to give rise to any significant additional costs to the Exchequer. The associated costs will be met from within the Vote from the Department of children, equality, disability, integration and youth.
As colleagues will be aware, access to information is a recurring and priority concern for those directly involved with the mother and baby home institutions. This legislation represents an important and urgent measure in terms of preserving valuable databases and records which speak to that very concern. I understand there are genuine expectations that this database should enable additional information to made available to residents. In that regard, it is essential to understand that Tusla is still bound by the continuing significant constitutional constraints in terms of access to information. This can only be dressed by future legislation, something to which I am absolutely committed. I appreciate that some stakeholders have argued that the database and related records should be transferred to a body other than Tusla.The rationale for specifying Tusla as the recipient of the database is that it already has statutory responsibility for adoption tracing services under the Adoption Act 2010 and dedicates substantial resources and expertise to carrying out tracing functions. Crucially, it currently holds the originals of many of the relevant institutional records. Legally, this enables the maximum value to be obtained from the database in the immediate term while comprehensive information and tracing legislation is being put in place. A transfer to any statutory body other than Tusla, such as the Adoption Authority of Ireland, AAI, would mean that two different statutory bodies would hold the same records, with Tusla holding the originals and the AAI holding the database and associated copies. Such duplication would be inefficient and lead to confusion.
Tusla will be fulfilling an important public service in safeguarding this database in the immediate term. The appropriate body to retain such records in the Iong-term will be the subject of further consideration in the course of bringing forward new legislative proposals for enhanced information and tracing services. I will, of course, seek further engagement with stakeholders as I advance these deliberations.
Due to the urgent need to pass this legislation before the commission is dissolved, I appreciate there has been limited time to review the proposals. The requirement for pre-legislative scrutiny was waived by the House Business Committee at my request. However, I hope that the recent briefings I provided, as well as the information outlined today, have been helpful to Senators. I thank the Seanad for the opportunity to come before it today to outline this important Bill and I look forward to the debate. Ireland has come a long way from the Ireland of the 1920s. Ours is, I hope, a more progressive, tolerant and equal society. Our commitment to remembering and learning from our past must be absolute. The forthcoming report of the commission is a crucial element of that national process of learning, understanding and acknowledgement. This legislation is also crucial to ensure that records of the commission are preserved and the opportunity presented by the database, in terms of laying the path towards fuller access to early life information, is not overlooked. We have a duty to the former residents and survivors of these institutions to pass this legislation and I would welcome Senators' support for it.
I commend the Bill to the House.
I welcome the Minister of State. I reflect on this opportunity to speak here today on the mother and baby homes as an honour and a great responsibility. What the State, the country, the church and our people did to these women and babies was disgusting. It was wrong and I am ashamed that this is the story of our nation in terms of it treated women, girls and children. It is incredible that we, as a nation, we were so cruel to the most vulnerable. That we abused that vulnerability in ways that were so depraved should make us all completely ashamed. In terms of the numbers, the commission that was established under the Commissions of Investigation Act 2004 has examined records for over 70,000 mothers and a greater number of children in 18 different institutions all across our country.
Between the years 1922 and 1998, women were subjected to forced labour, psychological or physical torture, ill-treatment, denial of education to children, sexual assault and many other forms of abuse. This is sometimes described as historical abuse but we cannot describe the 1990s, when the last laundry was shut, as historical. This is our modern Ireland - an Ireland that was, even in the 1990s, a member of the EU and the United Nations. This is our present and these women and the children who were interned in the mother and baby homes deserve respect, care, understanding, support, dignity and a break. They have been fighting for survival, to live, to be heard and for respect and they had to fight for an apology. This is not history, it is our citizens' present stories. They are not artefacts, they are people.
In the Magdalen laundries, girls as young as nine and women were locked away and forced into penal servitude for a wide variety of spurious reasons. The institutions solved a problem, one of avoiding shame on a society - the irony of this. Our people, our state, our church, our schools and everyone turned a blind eye, closed their doors, closed their minds to "that girl" who was in trouble or difficult to deal with. They were dealt with: they were put away.
To speak directly and specifically to the Bill, there has been much discussion about what it covers and the reason it is being fast-tracked. It deals with serious legal and practical issues raised by the commission in relation to finalising its records. In the absence of the important changes contained within this Bill, the commission would continue to be obliged to redact sensitive personal information before depositing its records.The commission was established under the Commissions of Investigation Act 2004. Under the 2004 Act, investigations are held in private. That confidentiality applies to the evidence and records gathered by the inquiry.
Earlier this year, the commission informed the Department of Children and Youth Affairs that it had created a database tracking who was in the main mother and baby homes, but did not feel it had a legal basis to transfer that database and would be compelled by law to redact the valuable information contained within it. This Bill ensures that the records of the commission are deposited with the Minister or with the Child and Family Agency without redaction. Most significantly, the Bill provides for the transfer of specified databases and records relating to the former residents of the institutions being examined by the commission to Tusla.
The database contains information relating to the mothers and children who were resident in 11 of the 18 institutions being investigated by the commission. Into the future, a database of this nature, as discussed by the Minister, is undoubtedly required to support a statutory information and tracing service for individuals who resided in these institutions and have fundamental questions about their identity or their time in these institutions. The complex constitutional and legal issues which arise in this area would require further legislation. The Minister has stated that he is committed to separately advancing robust information and tracing legislation to provide an enhanced statutory framework for the release of birth and early life information and will have my full support in that.
We have received thousands of emails as I am sure the Minister has also. The sealing of documents which is not part of this Bill specifically has become the main talking point of this Bill. However, it is a very important matter and needs to be discussed here. The Minister's intentions regarding this 30-year sealing needs to be questioned. It is worth noting, and everyone must acknowledge, that the oral witness statements given to the commission will be printed without personal details in the report when it is published.
I understand that the 30-year rule cannot be amended in blanket fashion in the 2004 Act as it would change the legal framework and remit of other very important commissions of inquiry established under that Act. I also certainly know that this 30-year locking up of testimony is far too long for too many people. They do not have 30 years. They have had a lifetime of torment and if their lives will be helped or healed in any way whatsoever we must act. We must immediately set about doing a review on how these stories of the women in the database can be in a public record for those who wish it to be a public record. I fully understand that not all of the women want their names made public.
I spoke to Dr. Maeve O'Rourke from NUI Galway who is one of many tireless campaigners for these women and children and I hope that the Minister might consider three things. First, that a copy of the entire commission archive be kept in his Department. Second, that personal access requests to the archive are facilitated when his Department receives them. Third, that an appropriately anonymised index to the archive be published in a timely manner after his Department's receipt of it, so that debate and consultation can be facilitated on the further unsealing of the commission’s archive, and the future creation of a dedicated archive of historical abuse records, detailing what it might contain, and how and where it could be established.
This country needs to accept its horrendous past and face it head-on. It needs to establish a dedicated archive in Sean McDermott Street where we as a country can see the cruelty of what we did to the women and these precious little children that we neglected. We also need a monument to honour all of these lives, to honour their stories, to face the truth, and to respect our women and children.
I again urge the Minister to review my request concerning these amendments, if not in this Bill, then in the weeks and months ahead, because it is very important that these women who want their stories told and their lives made clear to us all and to our children are facilitated, so that our children will know what our State and our people did to these women. I fundamentally believe that these women deserve a break and the chance to have their stories told and deserve some sort of healing. If the Minister can give any sort of healing to these women at this stage I would greatly appreciate it.
I welcome the Minister to the House. I am concerned that some of the contributions made today are confusing various concepts involved in this legislation. I want to reiterate at the outset that the Minister has not explained the circumstances in which section 6 came to be necessary and the Minister for Justice and Equality is not here.
I move amendment No. 1:
To delete all words after “That” and substitute the following: “the Bill be read a second time on 21st October, 2020, to allow for further consultation on certain provisions of the Bill, including the insertion of the words ‘another matter’ into the title of the Bill and the insertion of section 6 into the Bill, noting the power of the Minister to further amend the Terms of Reference of the Commission to provide for a later date for the delivery of its final report.”
I am concerned about the fact that section 6 appears in this Bill without any explanation whatsoever. No Members of this House, other than perhaps the Government Members, were consulted about section 6. I do not believe that. The Minister has not advanced the reasons this extension of time became necessary. I will leave it at that, but I do not think it is satisfactory that a justice provision dealing with the Judicial Council should be just added onto the back of a legislative train like an oil tanker being put behind a passenger train and suggesting it can go down the line without any pre-legislative scrutiny or real explanation as to why it was necessary.
The confidential committee established under the terms of reference of the commission was set up for a particular reason. I bring the Minister's attention to terms of reference 3 and 4 of the order of 2015. Paragraph 3 stated:
The Commission shall establish a Confidential Committee to provide a forum for persons who were formerly resident in the homes listed in Appendix 1, or who worked in these institutions, during the relevant period [...]
Paragraph 4 stated:
The Confidential Committee shall -(a) operate under the direction of and be accountable to the Commission,
(b) provide in its procedures for individuals who wish to have their identity remain confidential during the conduct of the Commission and its subsequent reporting, and
(c) produce a report of a general nature on the experiences of the single women and children which the Commission may, to the extent it considers appropriate, rely upon to inform the investigations set out in Article 1.
It was mainly women, and some children, who came forward to the confidential committee. They received a leaflet from the committee which stated:
The Confidential Committee will make a general report which won't name you or any specific person or institution. This is because people who go to that Committee will not wish to have any information about them given to anyone outside the Commission or to be questioned by anyone outside the Commission.
They were also told, "No report on anything you tell the Confidential Committee will be given to the authorities." Those were solemn undertakings to people that they would never be identified. The effect of the Bill that the Minister has tendered before the House is to tear up that undertaking and say that their testimony can go into an archive in his Department and, in 30 years' time, be opened up. If somebody comes before a State organ and is told that he or she will never be identified to the authorities but will be given absolute anonymity, it is wholly wrong for the Department to produce legislation the effect of which is to tear up that guarantee and put a ticking time bomb for many families in the State archives.
It is different for people who are part of the database. I strongly support the accumulation of material which enables people to trace their parents. However, this material consists of people describing the circumstances in which they were put into these homes, parental pressure, bullying, who they met in the homes, their attitude to their child being taken from them and all of those things. They were given an absolutely cast-iron commitment by the commission, in accordance with its terms of reference, that they would not be identified. The Minister is tearing that up, saying that it goes into the archive and can come out in 30 years' time. That is fundamentally wrong. The amendments we will be tendering to the Bill will ensure that the database goes to Tusla for preservation and that the documents that go to the Department are redacted so that it will not be open to anyone, in any circumstance, to upend the solemn guarantee that was given to those women and children who came forward and gave evidence under an absolute guarantee of anonymity and non-identification.It is a central obligation of the Irish Government to uphold what was a solemn undertaking given to people that what they said would not be identifiable and that their evidence would never be used in such a way as to make what they said identifiable. Either we believe in that or we do not. The Minister's Department has not adequately considered the constitutional injustice of getting somebody into a commission and saying: "You will never be identified, your names will never be given to the authorities, what you say will be absolutely confidential" and then passing a Bill in a hurry without any consultation on this point and just rushing it through in a few days without pre-legislative scrutiny. There are fundamental issues here. There is an argument between the Minister's Department and the commission over general data protection regulation, GDPR, issues. I still believe GDPR is not completely overcome by simply saying there is an Act involved. If the Act itself is such as to make sensitive information available and to allow it to be processed in breach of a solemn undertaking given to the persons who gave testimony to that commission, the GDPR probably makes what is envisaged here unlawful.
The alternative is to simply allow the commission to do what it asked to do, that is, to black out a few names on these personal accounts as it does not affect the database in the slightest. However, it does guarantee to these people that their evidence will be anonymised in a manner and will not be dragged out by somebody in 30 years' time to say, "Your grandfather did this", "Your grandmother did that", "These are the circumstances of your family", "You are the result of incest", or "The person who you believed was your grandmother was in fact your aunt", or vice versa, or something like that. These things were extracted from volunteers on an absolute guarantee of confidentiality and anonymity and we now find ourselves in a situation that that is being torn up by the Minister's Department and no excuse is being offered for it. It is not necessary to renege on those commitments. The Minister's Department will be none the wiser if the general report, which will not mention any people or any individuals - which is what the terms of reference said - is published and if the people who painted the day-to-day picture of their existence are delivered the anonymity they asked for. There will be no advantage to naming names in 30 years' time. There will be a huge disadvantage in 30 years' time for families who thought they were descended from one person finding out that in appalling circumstances they were dealt with in a different way, especially when that information was volunteered by somebody who said, "I am only volunteering this on the basis that the identity of the people in my evidence will never be given".
I will finish by saying that the Minister should by all means send the database to Tusla. It is a sensible thing to do. He should bring in his tracing legislation and that is fine. However, he should not tear up a solemn commitment, given by an organ of the Irish State in accordance with its terms of reference, to people who were told that what they said would remain secret as far as their identity was concerned, forever. I remind the Minister that even the tape recordings of some of their interviews were destroyed afterwards. These people deserve justice. I ask the Minister to consider the amendments that I and my colleagues have put down because they are the minimum that is required to deal honourably with people who were guaranteed anonymity as a condition of testifying.
I welcome the Minister. The Mother and Baby Homes Commission of Investigation was established to provide a full account of what happened to women and children across named mother and baby homes and four county homes between 1922 and 1998.The personal experiences I have watched, heard and read about thus far were undoubtedly harrowing. At no point in our remarks in the House should we lose sight of the absolute suffering of women and children and their lifelong experience, their state of not knowing and the abuse and hardship they endured. There were also those who did not have long lives and whose remains were treated so despicably and appallingly.
The commission's interim reports, particularly the fifth one, indicate an Ireland that was harsh and judgmental and that had no compassion. While the focus of the investigation is rightly on the actions of the institutions, we, as a society, either expressly or otherwise - and I appreciate the complexity of the word "otherwise" in that context - colluded to condemn women and children to lifelong suffering and torment. Children did not know their mothers or the circumstances of their separation from them. For mothers, there was the unspeakable pain of not knowing what happened to their children. In many instances, the mother and child were condemned to lifelong abuse, hardship and slavery. This is our shameful history. When the report comes out, I have no doubt we will recoil from the horror of it. Our State and people stood by and were involved in the infliction of terrible pain.
I want to remind us of what the commission set out to do. It was to establish the circumstances and arrangements surrounding single women in these institutions, all of the relevant decisions taken and their agency within those decisions. It was also to examine their living and care arrangements and the mortality rates as compared to the national law and to investigate whether the institutions were compliant with regulatory and ethical standards of vaccine trials. It was also to examine how children became residents without their parents, how they left the care of their parents and their mothers, what were the child welfare measures and how those women made their decisions and the lack of full, free and informed consent. Within this is also the systemic treatment of people on the basis of their religion, race, membership of the Traveller community or disability.
I fully support that we need a national memorial and archive in Sheriff Street - I am completely behind the proposals in that regard - but right now we are dealing with the commission. To get individuals to come forward to it and state, with clarity, their experiences and everything that surrounded the experience and the lead-up to what happened in their lives, they were assured confidentiality. The terms of reference set out that the commission was not set up to establish an account of individual cases in such manner that would intervene and-or assist individuals to resolve questions relating to their identity or trace their birth relatives. In fact, the frequently asked questions section of the website very clearly states the commission will not help people who were adopted from these institutions to trace their identity and birth relatives and that the commission has no role in resolving identity and tracing relatives. The website refers individuals with such inquiries to Tusla and the AAI.
When the final report issues at the end of this month, the commission will cease to exist. At that moment, a decision needs to be made on the records and database compiled in the course of the commission's work. Without the Bill, these records cannot be transferred unless redacted. If redacted, they will be of no use or assistance to anyone attempting to access the valuable information in the database created by the commission during the course of its work. The law, as it stands, will not allow this unredacted transfer and the Bill is about dealing with this.
The commission was established under the Commissions of Investigation Act 2004. The Act predates the commission by 11 years and predates today's Bill by 16. The establishment of the commission occurred under the Act and its powers flow from the Act.The treatment of evidence and records is prescribed by that Act and the implications of records being sealed for 30 years were envisaged in it, for a well thought-out and good reason. We cannot turn back time or change the law. The evidence that has been given and the records created through the lens of the provisions of the Act cannot suddenly be subject to a change in the legislative conditions. Were the rules to be suddenly changed after the fact, it would render any future commission of inquiry untrustworthy and impotent.
I disagree with Senator McDowell, who expressed the view that what is being done tears up the confidentiality. It moves to secure it. I believe that what the Minister intends to achieve in future legislation, about which I have heard him talk, will address any anomalies or other matters that arise. The evidence was heard in private and in confidence, and confidentiality still applies.
We are receiving thousands of communications on this. I have had over 4,000 emails at this stage from people who are hurting in many instances, and from others who no doubt are well intentioned and want support to be given. What they call for, however, is not addressed by today's Bill. The wrong that they claim is being perpetrated is neither being perpetrated under this Bill nor exacerbated by it. Those from whom we did not receive an email are the contributors who want to remain anonymous and who have participated on the condition that their evidence would be kept confidential, as provided for in the 2004 Act.
I believe in the Minister. I believe he is sincere with regard to addressing how people are assisted in tracing their identity and relatives. I believe him with regard to his intentions and I believe he will set up an authority. I believe his statement that there will be a national archive. Today's Bill is about the database of the commission. It seeks to preserve that invaluable database, not to put it beyond reach. It places it in the care of Tusla. While I question that, the more I have read and thought about this since the Minister's very fine briefing the other day, the more I believe that Tusla is the correct recipient for the time being. The law, as it currently stands, prohibits access and disclosure by the Department. The Bill cannot amend that, nor should it. The Bill is about the preservation of the database. I commend it to the House.
I pay tribute, as others have done, to the women of the mother and baby homes and to their families and campaigners for maintaining dignified pressure on successive governments to see the process through to completion. Five interim reports have been published and the inquiry was granted a one-year extension. That extension was necessary in part owing to the lateness of materials submitted through the discovery by the Department of Health and the Department of Children and Youth Affairs. Despite these setbacks, the women concerned never gave up hope that the completion of the commission's work would bring a measure of closure and leave a legacy. I can only imagine their disappointment when they learned that a Bill was to be rushed through the Upper House that would hide away for another generation the attitudes, policies and shameful neglect that condemned thousands of women to incarceration and robbed them of their dignity.
In an answer to a question by Deputy Mary Lou McDonald last month, the Minister indicated that once the report of the commission was published and read by him, the offering of an apology to the women and their families would be considered. Is that still the intention when the report is published on 30 October?
Under the terms of this Bill, some of the records gathered by the commission, referred to as the "database and related records" of women and children detained in 11 mother and baby homes, will be given to Tusla. The rest of the archive will go to the Minister for "sealing". How is it acceptable to release some, but not all, of the records? How did the Minister decide which records would go to Tusla and which would be retained and sealed away by the Department for 30 years?
I disagree with previous speakers. It is our belief that Tusla is not the appropriate body to retain these records.Tusla operates legally troubling and discriminatory practices, including defining adopted persons' birth names as third party data and undertaking risk assessments of all adopted persons who request their records. We need a body with the expertise in archival upkeep and associated skills in interpretation and historical placement. The work of the commission should not just be used to set the historical record straight. It should be used to a much greater effect and there needs to be input from those very people who suffered in the first place.
To be clear, this will not be the last inquiry or commission of inquiry. There are many more issues around how our society treated some of its most vulnerable people. We need to see solutions emerge with any findings, recommendations or reports such as this. Does anyone in this House doubt that some day in the future we will see a commission of investigation into the shameful practice of direct provision? I hope that when that report is released the associated records and testimonies are not locked away because when that happens we can never learn from the mistakes and injustices of the past.
The public needs to know that the vast sums of money and long periods spent on the work of the commission impact positively on those who were so badly let down. The clear message that my colleagues and I are hearing is that the Bill does not meet that test. We will table robust amendments on Committee Stage. As I stated earlier, I welcome decisions to commence legislation in the Seanad but the process in this case has been stifled, especially as we look towards Friday when the House will debate Committee and Remaining Stages in one day. I also pointed out that guillotining a Bill after a few short hours is right out of the Fine Gael and Fianna Fáil playbook. Sinn Féin will propose robust amendments on Committee Stage and we will also propose an amendment to Friday's Order of Business to prevent what will be, in effect, a guillotining of the Bill.
We need to be conscious of public opinion. Senators have mentioned the thousands of emails we have received in recent days concerning the years of delays and extensions to the work of the commission, which will potentially be lost to poor and rushed decisions at the end of this process. The volume of correspondence all of us have received over the last few days is a sign of solidarity from citizens with the women affected. For many years, citizens have listened in shock to the stories of these women. They now see that this legislation has the potential to retraumatise people who have been through so much. The idea that people gave testimony, hard as it was, only to find out at the very end of the process that it will be hidden away from any examination is hard to accept. We will table amendments to see that this does not happen. If we cannot secure amendments on these key issues of access and openness, Sinn Féin will not be able to support the Bill in its current form. We want to see this process bring closure to so many who were wronged and we cannot condone the sealing of abuse records. We stand in solidarity with those women who entered this process in the belief that they would have access to the entire truth and that the horror they endured would be held up as a warning to us all to never allow this to happen again.
I welcome the Minister to the House and acknowledge his comments on our shameful history, as a society, of treatment of women and children over many decades, in particular of those citizens who were incarcerated in homes like the mother and baby homes and so many other institutions.
In my previous life as a practitioner, I had the privilege of representing many survivors of abuse before the Residential Institutions Redress Board. I learned from so many of them of the terrible injustice they suffered in those institutions at the hands of the State and religious orders. I commend Christine Buckley, Carmel McDonnell Byrne and others who have done so much to expose the failings of the State. It is in that context that all of us should recognise the immense work that has been undertaken by the Commission of Investigation into Mother and Baby Homes and its three members - Judge Yvonne Murphy, Professor William Duncan and Professor Mary Daly - in carrying out their terms of reference. I recognise the huge scale of their inquiry, over a 75-year period, to look into the appalling treatment of women and children in 14 mother and baby homes and four county homes. I acknowledge that the commission has published five interim reports to date. We should also recall the origins of the setting up of the commission.I refer to the huge public outcry following the discovery of a mass unmarked grave at the site of a Bon Secours home in Tuam that shocked the nation. There was a further shock for those of us who read the fifth interim report last year, 2019, at the finding that the burials of so many children were unaccounted for, in particular in the Bessborough mother and baby home in Cork. There was one line in the report that really stood out for me: "It is not known where the vast majority of children who died in Bessborough are buried." The findings are appalling. What was shocking in reading that interim report, as with others, was the obstructiveness of some of those involved, in particular the obstructive approach taken by the Sisters of the Sacred Hearts of Jesus and Mary, who ran the Bessborough home, in terms of providing information to the commission.
We acknowledge the hugely important work the commission has done, and is doing, and acknowledge the importance of the context in which the commission was set up. Having said all that, I am deeply disappointed, as are my Labour Party colleagues and others across the House, at the rushed nature of this legislation. We have serious concerns about the way in which the Bill has come before us. Other speakers have expressed those concerns. I attended briefings with the Minister and his officials, and I thank him for that, but despite that and the documents we have been given the clear legal rationale for this legislation has not been fully made out to us.
In particular, other colleagues have raised questions about why, given the terms of the 2004 Act and existing data protection legislation, there are provisions around the transfer of records without redaction to Tusla and a further provision later in the Bill on the provision of the database to the Minister. It is still not clear which subset of data is being provided to whom. We do need assurances. I thank in particular Dr. Maeve O’Rourke and Ms Susan Lohan from the Adoption Rights Alliance and the many thousands of others who have expressed their concerns to us about this legislation.
I seek assurances from the Minister on three points. The first is why he, as Minister, cannot keep a copy of the entire commission database. Why is there a need for this legislation? The clear need must be provided to us on the record of this House.
Second, could the Minister assure us that a data access request to the archive will be facilitated? There is a clear need for information. There are so many survivors and so many family members who have expressed to us their urgent desire for information. I have heard comments about privacy and confidentiality but the commission is now in possession of a significant amount of information, which does not relate to the confidential statements given by witnesses to it. There are large amounts of records kept by the religious orders and provided to the commission and kept by other officials. I know from the redress board experience the extent of information that the commission will now be in possession of and that survivors and their families do not have access to and that they urgently want. I seek a commitment from the Minister about that second assurance.
The third assurance I seek is also one that has been outlined by others. It is that an appropriately anonymised index to the archive will be published by the Minister so that a debate and consultation can then be facilitated as to future unsealing of the archive and that we can talk then about the 30-year rule. Undoubtedly, there are complexities there, but we need to talk about this, and we need to facilitate the future creation of a historical abuse record archive, sensitively and respectfully maintained. We must facilitate access to those who wish to have it, to whom we owe it. Because of our legacy of shameful treatment of women and children, we owe their family members access. Unfortunately, the tenor of this Bill is not in keeping with those assurances around information and access to people's identity information.
I accept the Minister stated in his speech and we have been told in the briefings that the Bill is not about providing access and that it will be dealt with in future legislation. However, sadly and with respect, I think that is putting the cart before the horse because we need to sort out the issue of access and information. We did attempt to do it. The Minister's predecessor, Katherine Zappone, made valiant attempts to address this, which I acknowledge. I worked constructively with the Minister and departmental officials to try and ensure that we saw an appropriate balancing of the rights to which the Minister referred, that is, the constitutional rights to privacy and information. The Adoption (Information and Tracing) Bill 2016, which was last debated in the Seanad on Committee Stage in June 2019, fell because we could not reach a compromise. In that Bill, as in this Bill, there is undue regard to privacy rights at the expense of the right to information and identity for those persons most directly affected, namely, the women and children and their descendants.At the time we debated the Bill, when we were trying to reach a compromise, I pointed out that privacy rights should not be used to trump information rights and I say that again in the context of this Bill.
In the context of this Bill, we should not only be debating rights of information and identity but also the issue of accountability for the State that colluded in the incarceration of women and children in homes and the issue of the enormous accountability that is still owed to the State in financial redress as much as anything else by those religious orders, which were so directly and shamefully responsible for the abuse of those who were incarcerated. The Labour Party has tabled amendments to this Bill and despite recognising the importance of the work of the commission, we are unable to support the Bill in its current form due to the way in which it is being rushed through this House. I am sorry about that because I want to acknowledge the importance of the work the commission is doing. We need to see more respect paid to the interests and concerns that have been eloquently expressed to us by many survivors and relatives and families of survivors. They deserve better and more extensive consultation, as well as more regard to their rights of information and of access to their identity.
I can agree with an awful lot of what has been said. As Senator Bacik said, we need to talk about this. We need to talk about the State collusion and shame on the one hand and the abuse on the other hand. I come from a constituency that is deeply impacted by this and I have been contacted by a number of my friends in this regard in recent days.
It is incredibly difficult to put a shape on this because it is not about this Bill but is about the larger issue. I have a fear in respect of those who state they will not support this Bill because of its technicalities. The impact of that is to not support those in our communities who need to access the information. It has already been mentioned here that significant work was done by the previous Minister in trying to pass legislation that would allow people access to the records. Over that time, it was not achieved. Therefore, I am not sure how we think we could achieve that before 30 October in order to secure access on an ongoing basis in order that we can pass proper legislation, do the scrutiny and engage with the stakeholders.
That is the nub of it and the fact that Senator McDowell has raised the issue of privacy goes to show the divisions around this issue, that there are competing interests and that there are interests in respect of privacy that we have to address. Those people also must be involved in the stakeholder engagement. I would like people to have access to their records because it is incredibly important that one has access to one's biological database. However, that cannot be achieved today.
I would like to give assurances, however, and the Minister has given assurances that it is important for the Government that we solve the issue. I hope everyone across the House will join with me and with all of us in trying to solve the issue of those competing interests.
I thank the Minister for being in the Seanad today. I thank the many survivors and their advocates and allies who have contacted me and other Members this week on this Bill. I have not had a chance to go through the more than 4,000 emails I have received since Monday but I and others have heard the concerns being expressed loud and clear.
There has been a strong reaction for a reason. We are legislating in an extraordinarily sensitive area where we are beginning the process of trying to come to terms, as a society, State and Parliament, with the incomprehensible horrors of what occurred in mother and baby homes across this country in our all-too-recent past. The importance of the kind of records we are discussing cannot be understated in helping us to understand, memorialise and reconcile with that shameful part of our history.These records will play a crucial role in the national process we are engaged in to build narratives based on historical and intergenerational justice and that appropriately and sensitively memorialise the women and children who were resident and lost their lives in these homes. What happened to them in homes such as that in Tuam cannot be forgotten or swept under the rug; it must be remembered in all its shameful detail to honour their memories and the experiences of the survivors and their descendants. As a result, how we manage these records, as well as how we manage access to them and whom we give responsibility to for holding them for safekeeping, are vital. This goes to the heart of the legislation.
To respond to Senator McDowell's comments on privacy, we have learned from the likes of the Retention of Records Bill 2019 and other legislation that survivors are not a blanket group. Moreover, there was not, as I understand, an option to waive anonymity. Anonymity was assumed and people were not given an option to waive it.
I turn to the process used to progress the Bill through the Seanad. Forcing a Bill through the House in the space of a week, on a sensitive subject such as this, has provoked significant and justified reaction. The Bill will not move through the House in a vacuum or without the context of what has gone before us. As the Minister will be aware, legislation on adoption, information and tracing came before the previous Seanad and, unfortunately, stigmatised and belittled adopted people. It is clear the damage done by that Bill is still raw, as we have seen reflected in the strength of the reaction this week. Taking an additional week to allow for additional debate in the House would have allowed for more consultation with survivors. This has, unfortunately, been a central complaint about how the Bill has progressed. Being seen to move too quickly, or without due scrutiny of legislation of this kind, damages our credibility with the public and, in particular, with the survivors affected.
As for the Bill itself, our concerns will be familiar to the Minister. Any pronouncement about a 30-year sealing of records will always be a cause of concern, especially when it comes so soon after the intense debate on, and the eventual withdrawal of, the Retention of Records Bill 2019. We need to listen to survivors when they tell us they want to access their personal information and testimony, something we should be able to guarantee them. Where appropriate and sensitive memorialisation is the aim, efforts should be made to anonymise records for their inclusion in crucial historical projects, such as for the proposed archive to be built on the site of the Magdalen laundries in Seán MacDermott Street. We are concerned this will not be possible under the Bill.
There are also concerns about the legislation in regard to the general data protection regulation, GDPR, and particularly about how data subject access requests are currently being denied by Tusla on spurious grounds relating to the conduct of future commissions. How can a survivor being able to access his or her personal records harm the conduct of a future investigation? Our central concern is that Tusla will be given control of these records, despite its track record and its highly conservative interpretations of what should be released under GDPR. There are also concerns about how appropriate the Commissions of Investigation Act 2004 is for sensitive investigations such as these. In 2017, during statements in this House on the setting up of the commission, many of us all called for it to sit in public, a request that was ignored.
These are just some concerns. We will discuss them in further detail on Committee Stage, when we will table amendments. I reiterate the importance of moving and legislating sensitively and respectfully on these issues. All of us here will play a crucial role in deciding how this shameful part of history will be remembered, and we must take the responsibility seriously.
I welcome the Minister to the House. He will know the volume of distress and concern this matter has caused. He spoke about learning from the past and moving into the future, but we are not yet at a point where we are talking about simply learning from the past. We are still seeking justice, satisfaction and basic rights for those who lived through that past. They are still with us. Their families and their children who were adopted through the systems in place at that time are still seeking identity. People are still trying to find out whether they have siblings and where their siblings may have been buried. People are still trying to find out basic information about who they are and who their families were. The Minister has the dual task of vindicating the rights of those affected by these issues and of national archiving. I have submitted more than 20 amendments which address some of the key issues. We speak about having our hands tied by legislation from 2004. I disagree completely with Senator McDowell. I know he was involved in that legislation but it does not necessarily trump developments that have taken place since 2004. For example, we had a constitutional referendum which placed the rights of the child, including the right to identity, at a central point. We also have European legislation on people's right to information about themselves. I will ask that sections 39 and 41 of the 2004 Act, which deal with restrictions on the right of the individual to seek information and the 30-year binding rule, respectively, should not apply to individuals seeking information about themselves.
We talk about future commissions and safeguarding participation. It is unacceptable that people are being denied their own testimony, which is gut-wrenching to give. I have looked for specific exceptions to ensure that people can access their own testimony and story. Not giving that basic right will undermine the operation of future commissions and co-operation by future witnesses.
We need a timeline. We all heard the apology made to the victims of the Magdalen laundries, which feels as if it was millions of years ago. We have not had justice. It has been a scrabble for individuals to try to have peace in their own families and lives. We need to know when there will be legislation that guarantees appropriate access to the right to information and the right to identity. There is an issue with Tusla. The Minister stated this information will be preserved but there is nothing in the Bill to indicate how it will be preserved. How do we know the records will not be scatter-shot back to whatever filing cabinets they came from originally? That is a fear. Patching together the stories of people's lives involves substantial work. Will these records be kept to an archival standard? I ask because, as we know, the Adoption Authority of Ireland had made plans to keep documents to an archival standard. There are real questions about the physical documents and rights and we will push them on Committee Stage. I urge the Minister not to take Committee and Report Stages together but listen to us on Committee Stage and change the Bill.
I thank the Minister for attending to listen to our comments, observations and concerns. Undoubtedly, the Commission of Investigation into Mother and Baby Homes is investigating one of the darkest periods in Irish history. Mother and baby homes represent some of the worst aspects of our collective history and humanity. Their existence was underpinned by a complex web of culpability and responsibility. Since it was established in 2015, the commission of investigation chaired by Judge Yvonne Murphy has worked to gain a deeper understanding of the practices and experiences in these institutions. It was required to conduct a great amount of document discovery work and carry out interviews with survivors, as well as workers and authorities in these institutions. Although the commission of investigation was initially scheduled to make its final report by February 2018, the deadline was extended three times and we have had five interim reports. It is extremely important, therefore, that the commission makes its final report on 30 October.
It is important to acknowledge that three postponements of the commission's findings have been deeply distressing and disappointing for many of the survivors, particularly the elderly. It is in the best interest of all survivors that the commission of investigation be given sufficient time to finish its work before making recommendations on redress. I am hopeful that a redress scheme will be established after the report is finalised. Obviously the completion of the report was the priority.
The commission of investigation has been at the forefront of all our minds.The shocking details from this shameful chapter in our history have been seared in all of our memories from the point when we started to learn and absorb the horrific practices that had occurred. It is correct to say that we all share a determination to do what is right for the survivors. It is vital that we give them confidence in the process. It is very important in this context to also mention the specific focus of the work to investigate institutional patterns of referral and relationships with adoption societies and other intermediaries involved in the placement of children, and of illegal registration.
It is also important to note the courage of the survivors and the help of a brave local historian and committed journalist, Catherine Corless. It is thanks to her courage and hard work that we can bear witness to the considerable harms experienced by mothers and their children in one of the darkest periods of Irish history. Most of us in this Chamber were overwhelmed this week by the volume of correspondence we received from people about the proposed legislation before us today. Significant concern is evident and that is completely understandable in light of the horrendous treatment meted out to women in these homes and how protective we all feel about the survivors of the homes.
There is a perception that this Bill seeks to put information beyond the reach of people. I understand that is not its intention. The aim is to safeguard the records of the commission. The original legislation specified that the investigations into the mother and baby homes were to be held in private because confidentiality allowed people to give testimony freely. I was very much taken by Senator McDowell's comments in that regard. These testimonies are hugely important because they are the lived experience of women who were treated so badly by institutions of the State. I am comforted by what the Minister says and by his commitment to ensure that the records are to be preserved intact and will be available in the future in an appropriate way. We must preserve this information, not destroy it. The Bill provides for the transfer of the records, as opposed to their destruction.
I have been contacted by numerous women who object to this legislation because they feel it prevents them having access to their own information. Those women should be able to decide what happens to their personal records. For those who have passed away, their children should be able to decide what happens to their records. Everyone should have access to their birth information. I understand that the Government has a better system for this in the pipeline.
I welcome the Minister to the House for this debate on what is a very difficult topic. With the exception of Senator Craughwell, it is all women in the House today. We realise how important this situation is for women, including young women. I come from east Galway and the mother and baby homes in Tuam and Glenamaddy are the ones that are very much on my mind. I am mindful of the impact those homes had on these extremely rural areas in the 1930s, 1940s and 1950s, when society here was extremely conservative and where much importance was afforded to the Catholic Church, which was not balanced in terms of rights for women and children.
I very much welcome this debate. Members across the parties really understand the importance of what the Minister is doing, but also the necessity for further legislation regarding access for those who wish to have it. They also very much understand the confidential nature of the information that needs to be protected in terms of names and of the people who have gone before.
As a councillor in Galway County Council, last year I was very fortunate and privileged to receive testimonies from the mother and baby home in Tuam when a number of people came before the council. We had children who had gone through the process of being adopted illegally. Others who spoke had worked with the historian Catherine Corless, to whom tribute has been paid here today.Ms Corless is a champion and NUI Galway as paid tribute to her as a person of note in Galway. She discovered this and worked tirelessly to ensure the records of those children were brought forward. She worked with the commission as well.
It is very important that the Department shows the vigilance required of it on this sensitive issue. I hope it will be a priority for the Minister who I know has many competing priorities in his Department. I also hope that, as previous speakers requested, he will provide easier access for those who require further information, including on illegal adoptions.
This was a very emotional issue when I was a member of Galway County Council. Of the 39 councillors at that time, seven were women. I am not saying this issue does not impact on men too but as a young woman growing up in east Galway, I understood from a young age the impact of having a child at a young age in a strongly conservative Catholic society. I am happy that we live in a different society today. W.B. Yeats spoke about how Ireland was "no country for old men" but to be honest, Ireland was no country for women, mothers or babies. That has to be taken into account.
This is an important topic that I do not feel qualified to speak about. I thank the Minister for his time.
There has been much talk today about the rights of a child to know about his or her parentage and historical background, and I support all of that. I am coming to this debate as somebody who grew up in Galway in the 1960s and the 1970s. No young girl got pregnant in my time in Galway. Many young girls went away on holidays and came back nine months later without a child, however.
I had personal experience of this. It involved someone I know and who is dear to me. We knew she was pregnant and we believed she went to a family to be looked after during her pregnancy. When all of this started, we heard about Bessborough and of women being confined in a home. We heard of the trauma this woman went through. She was not a woman but a child at the time she was pregnant. I mention the trauma she went through and goes through every day of her life, remembering what happened to her. She is only one of the victims.
I agree with tracing. I will mention the story of a girl who sought to find her mother. When she found her mother, they met in a café in Dublin. Her mother explained the circumstances behind the pregnancy and the delivery of her daughter. She then told the girl that, now that she knew all she needed to know, she never wanted to see her again. Can Members imagine the devastation this caused in both their lives or even think for a moment about what is going on here?
The 4,000 or so emails Senators have received in recent days are heartbreaking. They are from people who want to know more but there were also a couple of hundred emails from people who do not want anything to be known about their previous lives. These are women who delivered children and had their hearts broken to have their children taken off them. They did not willingly give them up but they were taken off them and these women were then sent back to wherever they came from. They have lived with that for all of their lives. Some of them went on to get married and have families. They hold this secret deep within their minds and hearts and they live every day with that. We are about to blow all of that wide open and we have to think about what we are doing. The right to trace one's parentage is vital, the right of the child who was the mother because, God damn it, no man ever came forward and admitted to fathering one of these children. We hid away in the background and let the girls take the full brunt of societal condemnation.I cannot express how distressed by this I am. I had many dear friends who were pregnant in the 1960s and 1970s who disappeared from Galway and came back nine months later. Nobody ever asked where they were; we all knew. Nobody ever spoke about it; it was buried. Nobody ever questioned what happened to the poor, unfortunate child who was born. As my colleague, Senator McDowell, noted, the women who went into the commission did so on the basis that what they said was between them and those they were giving witness to. I do not know where this will lead us, but it is leading us somewhere where we need to be very careful.
The Bill is being rushed through the House in two days, even though we were promised this would stop. Democracy demands that legislation be scrutinised. This is not scrutiny of legislation. The Government has the numbers on its side of the House to ram through anything it wants, and that is not fair. It is not fair on the Government and it is not fair on us.
I am absolutely appalled that the Minister allowed section 6 to end up in the Bill. Personal injuries have absolutely nothing to do with the matter, so why are they included in the Bill? This is heartbreaking enough as it is.
I thank the Minister for coming to the House and bringing this very important legislation for our consideration. I thank the members of the commission, the three judges who have worked for five years and who will produce a report that will document such a dark piece of our history, spanning 75 years, 18 institutions and more than 70,000 lives, most of them women and children. I thank the 4,000-odd people who sent me emails. I have no doubt they are all heartfelt. Most important, I want to speak for the survivors and their friends, families and supporters. It has been a long, lonely road for them. It is important that this House is taking the time, and that politicians in the Lower House also take the time, to consider these issues.
I come from Dublin Central which has the most recent Magdalen laundry site on Sean McDermott Street. It only closed its doors in 1996, after the tragic discovery of the burial of 150 bodies at the site. I ask the House to think about this. It is less than 500 m from O'Connell Street and 150 bodies are buried there. Our capital city was conducting its business all around that site, and buried, unknown to anybody, were 150 bodies. I also come from the Navan Road, where the St. Patrick's institution is located, as the Minister will be aware. My grandfather was born before 1922, before any mother and baby homes had been established. He was born illegitimately and my great-grandmother kept him. This tragedy, this horrible history, is of the State's creation, and it is really important that the State deal with it and apologise. As a Senator today, I apologise for my part.
I welcome the action the Minister is taking to protect and preserve the records, which is vital. Nevertheless, we live in an era of data and it is important that the data be retained intact and unredacted, in one complete set.I appreciate that the intention to try to separate the data into personal records in order to allow for access is good. However, it is important that an entire set of the archive documents be kept in a one location. In the initial stages, the Department is the best place for this. That issue needs to be dealt with.
I am extremely concerned about the 2004 legislative requirement in respect of a 30-year seal. Earlier, we heard the voice of male privilege in this house talk about rights to protection and argue in very legalistic language. It is that language which stifled those women and hid them away. I oppose it strongly. I want the Minister to guarantee that all of the living survivors will have access to their personal data. I ask him to publish an anonymised index of the archive.
Finally, I return to the requirement to recreate a national archive. For the entirety of this, I propose that it be housed at the two acre State-owned site at Seán McDermott Street. There is an excellent concept proposal to create an archive at the site and to address the issues of homelessness, housing poverty and lack of community facilities in the area. I ask the Minister to champion this proposal at the Cabinet table. If he does so, he will have my support and that of my party.
It is important that we take this action today but that we do not stop because there is much more work to be done in order to do justice to the survivors, make some reparation and give a degree of peace.
I welcome the Minister. First and foremost, all of us in this House should acknowledge that the speed and pace with which this legislation is being dealt is, as proven by the volume of emails we have received, unnecessarily re-traumatising the survivors of mother and baby homes. In fact, this entire Bill is unnecessary.
The Commission of Investigation Act 2004 was never the appropriate legislation on which to base an inquiry into grave and systemic human rights abuse because of its provisions around confidentiality. However, the Government is not bound by the 2004 Act because it can legislate and legal experts have set out how that can be done. After all, it is legislating today in order to unseal selective records for a Tusla database.
We have heard the Minister claim that he is protecting the interests of those who suffer abuse by archiving the remaining records for 30 years. I thought we had moved away from the paternalistic attitude to citizens. In the context of the Retention of Records Bill 2019, the then Government made the same argument when it wanted to seal records for 75 years but, rightly, the Committee on Education and Skills of the previous Oireachtas pointed out that doing so would re-abuse survivors. The argument that the Government knows what is best for a person is the attitude that led us to the point at which we find ourselves today. The history of this State is marked by its arguing that it knew what was best for its women, children and young mothers. I ask the Minister to please reconsider what he is doing today because it will only visit further abuse on survivors.
Nobody is saying that the public should have access to the personal data of those affected. Of course they should not. These are people's lived experiences we are discussing. Those affected by the abuse that this State meted out to them should have the option to receive all of their personal data and information. They should also be entitled to the transcripts of their evidence because these are their life stories. This Bill, as I read it, seems to want to take away the ability of people to understand what happened to mothers and babies in this State. There is also the fact that the Government wants to seal up vast amounts of State and institutional administrative records that are critical to helping us to understand how the system of forced family separation operated in this country. I beg the Minister to listen to the thousands of people who wrote to us over the past 24 hours and not rush this legislation through the Houses.The Government side has the numbers so all we are doing today is talking but trying to give voice to the 4,000 people who contacted us over the past 24 hours and the survivors who are being re-traumatised. I ask the Minister to listen to the survivors. I ask him to find a solution that ensures survivors have ownership of their evidence and their lived experience and seek to ensure that we, as a State, learn from this and ensure it never happens again.
I welcome the Minister to the House. I was mindful when I was Acting Chairman earlier and now as I stand here that I am someone who has travelled this journey. I was born in 1961 in the St. Kevin's Dublin Union Institution and lived in many institutions throughout my life. If I were to be honest and asked myself what politicised me then it was that sense of injustice and denial. It was the sense that there was so much wrong going on with people with whom I shared dormitories and living quarters. These were institutions where one ate, slept and were educated but never left. These were institutions where one looked through a pane of glass in the hope that someone might hear one's voice and listen to what one had to say so I bring personal experience to this story.
I am not a child of a single mother as many people here referred to. Many of the children who were incarcerated in these institutions had both a mother and father. I am happy to say that I am the youngest of seven siblings and even though we were kept in different places, we all speak and are a family of brothers and sisters.
One thing that I said as a young child when leaving the institution, something we always ritually said was "never forget us"; we said "do not leave" and "never forget us", which are words that I have kept in my heart, mind and spirit. I was elected to Dún Laoghaire-Rathdown County Council many years ago and if I were asked which was more important, being elected and walking through the doors of the county hall in Dún Laoghaire or walking into the Dáil and Seanad of Leinster House, my answer would be becoming a county councillor becase the Dún Laoghaire-Rathdown community took me on board. It is a community that I ended up joining not by choice but by circumstance. By choice, I chose to live there because it was there that I found colleagues, friends and a supportive community.
It is very important that we all have the opportunity to tell our story. We have lived it but, more important, we must be believed. Too often, too many children were labelled as bitter, twisted or angry and presumed to either have an axe to grind with the institution, their own family or with somebody else or there was another agenda. People do not tell lies about their experiences. People do not make up stories of physical, emotional and sexual abuse. People want just justice and truth. People want to be able to tell their story. We have had the Ryan commission, the Martin McAleese report and the Residential Institutions Redress Board. Many are the same people who have come through different strands to seek redress. However, I urge the Minister not to lock away people's unique stories. We are all unique and everybody has a unique story to tell. Please allow survivors to access their information on their basis. The appalling story of life, death and adoptions inside and outside of mother and baby homes and other institutions cannot be hidden away for another 30 years.
I hope that when Mr. Justice Murphy's report is published that it goes to the Cabinet, the Government and the Attorney General. I hope that within days it will go to the Garda Commissioner because he and his staff must also analyse this important document for breaches, criminality or wrongdoing and ensure that people are brought to justice. It is also important that we have redress.
Finally, I keep in touch with many people who are homeless in Dublin, have addiction problems, never got opportunities and were never able to be educated because they were held and dampened down physically and emotionally, and were unable to grow spiritually, academically or realise their potential.Let us hope for more of this because it is all information but good must come from the flow of this information. There must be a recognition of what has happened, rehabilitation, housing and medical support, and any other support required. Having all of this information sitting in boxes in rooms is no good if we are not going to be motivated by all of this to help these people get on with their lives.
I thank the Minister. He has a difficult job. We must bear in mind the people who have lived these experiences. The Minister must listen to their requests. That is important.
I welcome the Minister. This is the first time I have seen him in this House and I wish him well in his post. I look forward to engaging with him on this and other issues.
I do not like the way things continue with regard to procedure in this House with the rushing together of Stages of legislation. It seems to me that a necessary delay of a few weeks would allow us to tease out the difficulties and problematic aspects of this legislation. I would say the same about Second Stage. If more people want to speak for longer, we should have the flexibility to do our work properly.
I dislike the sudden, ill-advised tacking on of extraneous issues to legislation. It reminds me of the pork barrel politics in America where Bills about one thing involve shunting money off to a particular region, or whatever, on something completely unrelated. We need to get away from that.
To come to the substance of today's legislation, I feel that where promises have been given to people, for example to women at the time they put their children up for adoption or people who gave information relying on complete confidence, we must be at pains to ensure those promises are kept. I do not think that is the voice of male privilege speaking. It is being honourable and respectful.
Nobody supports the right of people to know their identity more than I do. It often surprises me that some of the people who push surrogacy, for example, seem to care little about whether a child can know who his or her father and mother is, or whether they have the right to the society of their father and mother or birth mother. There are amazing hypocrisies and inconsistencies around some of these issues in our society.
I start from the perspective of supporting a child's right to know who he or she is and genetic identity is particularly important. However, I believe that one cannot ignore the context of the past and where people were given promises, they should be kept. Senator McDowell's amendments are sensible. This commission only deals with a certain number of institutions. In a case where somebody tells his or her story and it might be the only time the person intends to do that, I would not like that information to be lost in case it could be used for tracing in the future. That can only happen if specific permission is sought from the person involved that his or her name not be redacted. Nothing else shows respect for people, having regard to the promises that they were given.
I would like to say a little about how we talk about the past. There was harshness in our past but when we think about the decade of commemorations that we are going through, we see how dangerous it is to get into the business of assigning blame. Senator Dolan referred to the Catholic Church and people talk about the dark periods in Irish history. Are people open to recognising that even though there was harshness, there were people who had positive experiences of how they were treated? Are people open to considering that some who worked in these institutions had the best of intentions? Do people think that things were significantly better in other countries? Do they think that the church institutions involved were only doing it for money or the sexual control of people's lives? Is it not the case that, in the context of a poor and difficult society, some, many or most of those people were trying to be a part of a caring agenda? Are people interested in that kind of nuance or do we all want to be running with the pack in condemning the past? It is easy to condemn the past because the people who were involved are either dead or weak and voiceless now.
This line of debate is insulting to the survivors about whom we are speaking. We are speaking about a specific area of the church and institutions. We are not here to defend something that clearly happened. It is disrespectful.
That is precisely the kind of response that closes down respectful debate in our society because, as I have said, we should all want to look at the past in all its ugliness but also to look with honesty at the redeeming aspects that were there in the context of some people's stated experiences.Are we willing to talk about the families, for example, who did not show love? I ask that people be less preoccupied with anger and blame, and to think about the hypocrisies of the present. Senator Warfield mentioned direct provision. I could ask how we treat unwanted babies in the present. Does our law not now sentence them to death in many situations? People think that is an inconsistent-----
I also care about survivors. I have explicitly stated that I want to support people who want to find out more about what their experience was. I just ask colleagues to remember that this is a kaleidoscopic situation where many people have different stories to tell. If we are only interested in some stories, that marks us down as some kind of hypocrites. That is all I will say.
That is all I need. I welcome the Minister to Seanad Éireann. I have been contacted by a constituent who is concerned about this matter. She is concerned about the apparent lack of consultation and I wonder if the Minister will comment on that.
The other issue is that all the administrative files which show how the abusive system worked will be withheld. That is a mistake. My view is that people should be entitled to information about their background. That is a natural and absolute human right. Under the Bill, some of the records gathered by the commission of investigation, a database and related records of women and children detained in 11 mother and baby homes, will be given to Tusla. The rest of the archive will go to the Minister for sealing. How is it acceptable to release some but not all of the records? The Bill ignores the views of the collaborative forum of former residents of mother and baby homes, which was established to advise the Government and repeatedly stated that Tusla should have no further role in adoption information and tracing.
Just two weeks ago, the Minister promised that he would receive a copy of all records gathered by the commission of investigation but this Bill breaks that promise. It states that the database and related records transferred to Tusla will not form part of the Minister's archive. I am suggesting that the Bill be amended so that the Minister takes custody of the whole archive and provides immediate access for affected individuals and families to all records concerning them or their disappeared relatives once he receives those records. In fact, this is currently required by section 43 of the Commissions of Investigation Act 2004 and section 198 of the Data Protection Act 2018.
The Government should commit to establishing a dedicated archive at Seán MacDermott Street to provide national education and truth-telling regarding all connected forms of historical institutional adoption-based abuses. Administrative records can be anonymised as necessary to protect survivors, adopted people, natural mothers and relatives. Individuals should be entitled to voluntarily deposit their testimony.
I thank all of the Senators for their detailed and heartfelt contributions today and in some of the earlier consultations they have had with my Department. The debate we have had demonstrates the complexities and sensitivities touched on by this Bill and the wider legacy issues arising from our past and the treatment of certain categories of people, particularly women, in that time.
I have heard the dissatisfaction that Senators have voiced about the process. The sole reason this has been done in a rapid fashion is because of the upcoming deadline of 30 October, at which point the commission of investigation stands dissolved.The reason this is being done in a rapid fashion is because of the 30 October deadline, at which point the commission stands dissolved. That is the sole reason for the rush in this situation. When we bring forth the legislation I mentioned we will take the time to go through it in detail in both Houses so the very significant complexities can be teased out. This legislation is brought before the Seanad today as an opportunity to save a invaluable resource of information being lost forever. If this legislation does not pass, the database will be redacted and it will no longer be useable. It is important to note that that is the nub of what we are doing here.
I have listened to the individual contributions from Senators today. I want to get this right for the people who have been directly involved with the institutions. We all have that shared responsibility and duty. I have heard directly from former residents and their advocates and by way of the very significant email campaign as well. I understand their concerns and their need for reassurance. I thank Senator Boyhan for his personal contribution in which he reminded us of the real impact these legacy issues have on individuals.
This is not solely a matter for history. We have spoken about this in a historical context but we must remember that there are existing issues of deep concern for many people who have lived through the experiences of the mother and baby homes and other industrial schools and the impact this has had on their relatives and descendants. I reassure the people who are watching this debate and have real and legitimate anxieties about future access to birth information and tracing that I am committed to addressing the long-running matter of birth information and tracing legislation. This is not what the Bill before us today will address but I am committed to following up on the other legislation. I note the points made by Senator Bacik. I am going through the correspondence between the former Minister, Katherine Zappone, and the Attorney General. The former Minister did an enormous amount of work on this matter. I will take up that work and engage with the many people in this House who I know are interested in this issue so that we can get it right.
In passing this legislation in the next week, no future opportunity for access to this information will be lost by virtue of it coming into effect. Its purpose is to preserve information, including the critically invaluable database, for future use to the maximum extent possible under the law. We are passing this legislation to save this resource, which we can use for existing purposes but also future purposes that will be developed through future legislation. I am satisfied that the Bill as presented is needed to preserve invaluable information now and in the future. Contrary to how some have interpreted it, the intention of the legislation is not to put information beyond reach. Rather, it is to ensure that information is not destroyed and also that relevant information can be made available for information and tracing purposes in line with current law and any future law. The Bill is necessary to resolve the serious legal and practical issue that were raised by the commission in finalising its records in accordance with the Commissions of Investigation Act 2004. The intent of the legislation is to safeguard the records of the intensive five-year investigative process that the commission of investigation into mother and baby homes has commenced. I hope we can all agreed with the principle of saving that body of work.
When the Government decided to establish its inquiry into mother and baby homes the model it chose was that of a commission of investigation under the Commissions of Investigation Act 2004. I know there have been criticisms of that model today. I note those criticisms but that is the model that was chosen and the model we are operating to. The consequence of choosing a commission of investigation as the model does impact on the reporting functions of the commission. The Bill must be read in the context of the relevant restrictions and safeguards of the 2004 Act. The effect of the confidentiality provisions woven into the 2004 Act is that the commission's archive of records must be deposited with the Minister in sealed form and must remain so for a period of 30 years, pending transfer to the National Archives.Guarantees of confidentiality in respect of the information and the evidence given must be understood in the context of that legislative framework. While the records must transfer in their complete and unredacted form, the anonymity of those who provided testimony is maintained by virtue of the requirement that the records are sealed. For the avoidance of any doubt, it is important to clarify that the commission is not in possession of original departmental records and no original records will be sealed by these arrangements. State records remain in the possession of the relevant statutory bodies and public access is regulated in accordance with existing law. Any proposal to amend the legislative arrangements under which evidence was provided to a commission would need to fully address the privacy rights and legitimate expectations of third parties who are engaged with the commission. I am open to looking at this issue but it would have to be understood in the context of other commissions of inquiry that have taken place and of balancing the rights of the various parties involved, Cabinet colleagues who are responsible for this legislation and other Cabinet colleagues. This legislation is not the appropriate place to deal with those issues, in my view.
Earlier this year, the commission advised that it had created a database tracking who was in the main mother and baby homes and related institutions. It did not feel it had a legal basis to transfer this system and would be compelled by law to redact the valuable information we are now trying to preserve. Most important, this Bill provides for this and allows the database and related records to be transferred to Tusla, which will be fulfilling a public service in safeguarding this database. On the criticisms of Tusla holding these records, it is important to point out that the Bill does not provide for an expansion of Tusla's role. Section 3 is declaratory in that it only allows the records to be used for the purposes already defined in statute and data protection regulations. The majority of the records on which the database is based are already in the possession of Tusla. The digitalised and index records could be a notable enabler for Tusla's current services in this area, notwithstanding that no new right of access for information has been created. Again, it should be noted that the institutional records held by the commission are copies of the original documents supplied by various bodies to the commission. The Bill does not introduce restrictions on access to the original documents.
We have a duty to the women and children who passed through these institutions and to their families to ensure their lived experiences are shared, acknowledged an understood. The commission is due to submit its final report and stand dissolved on 30 October. This Bill needs to be passed and signed into law prior to its dissolution. A failure to act will result in an incomplete archive transferring and in the database being effectively destroyed and unavailable for information and tracing. This bespoke legislation addresses the urgent issues which have emerged in regard to the commission's records. Everything in this Bill is there for a reason. No future opportunity for access to this information will be lost by virtue of this Bill coming into effect. Its purpose is to preserve information, including a critically invaluable database for future use to the maximum extent possible under this law.
I look forward to seeing the amendments proposed by Senators. I will examine them thoroughly but I do ask that they support this Bill so we can safeguard and protect these records for future generations.