National Archives (Amendment) Bill 2017: Report and Final Stages

Before we commence I would like to remind Senators that a Senator may speak only once on an amendment on Report Stage, except the proposer of an amendment, who may reply to the discussion on an amendment. On Report Stage each amendment must be seconded. Amendment No. 1, in the name of Senators Marie-Louise O'Donnell and Diarmuid Wilson, has been ruled out of order as it is a potential charge on the Revenue. The same applies to amendments Nos. 2 to 6, inclusive. They are all in the names of Senators Marie-Louise O'Donnell and Diarmuid Wilson and have been ruled out of order because they are potential charges on the Revenue.

Amendments Nos. 1 to 6, inclusive, not moved.

Amendment No. 7 in the name of Senators Warfield, Conway-Walsh, Devine, Gavan, Mac Lochlainn and Ó Donnghaile, arises out of committee proceedings. Amendments Nos. 7 and 8 are related and may be discussed together by agreement. Is it agreed to discuss them together? Agreed.

I thought that Senator Warfield was speaking on this amendment. Perhaps the Acting Chairman might inform me of what the amendment says and I will do my very best to reflect upon it.

That is not necessarily what the Cathaoirleach is normally going to do, but I will read amendment No. 7 to the Senator.

The Acting Chairman is very good. I thank him.

The text of amendment No. 7, in the name of Senator Ó Donnghaile and others, reads: "In page 4, line 18, to delete “may” and substitute “shall”.

Sure, that sounds grand.

I move amendment No. 7:

In page 4, line 18, to delete “may” and substitute “shall”.

I second the amendment.

It is not the longest or most complicated wording ever. Seeing as the Senator does not have too much to say on it, I might bring in the Minister for her response.

I am sure the record will appreciate the Minister's contribution.

Amendment No. 7 proposes to delete "may" and substitute "shall". On consideration of this amendment, and following advice received from the Office of the Attorney General, I cannot support this proposed amendment for the following reasons. The advice of the Attorney General is that the procedure in section 8 of the principal Act is cumulative, in that as Minister, before I can make an order I must consult with the director and obtain the consent of the Taoiseach, the Minister for Public Expenditure and Reform and other relevant members of the Government pursuant to paragraph (a), to be satisfied as the matters referred to in paragraph (b). If the word "shall" is placed in paragraph (b) this would lead to a confusion as to whether or not I as Minister must make an order if I am satisfied as to the matters referred to in paragraph (b), notwithstanding the conditions provided for in the previous paragraph, for example, consulting with the director of the National Archives and obtaining the consent of the Taoiseach, the Minister for Public Expenditure and Reform and other relevant members of the Government. Therefore, I cannot make such an order unless I have consulted with the director, received the consent of the relevant parties, and am satisfied as to the matters referred to in paragraph (b). I therefore cannot accept the amendment.

Will the Minister deal with amendment No. 8 as well, as we are discussing amendments Nos. 7 and 8 together? It reads: "In page 4, lines 18 and 19, to delete “where he or she is satisfied that” and substitute “where the Director of the National Archives is satisfied that”."

The Government desires a balanced approach to the release of departmental records. For this reason the proposed legislation includes checks and balances. All decisions to release documents will be taken in consultation with the director of the National Archives. The consent of the Taoiseach, the Minister for Public Expenditure and Reform and the relevant member of the Government are also required. These consultations and consents are being carried out to ensure that this legislation is acted on and that the requisite resources are in place. There are conditions that must also be met, namely, that the documents have to be of historical or public interest, there must be a fair and balanced reporting of matters of common interest to the State and other jurisdictions and arrangements for such transfer must be adequate.

The role of the director of the National Archives is defined under the National Archives Act 1986. The wording of this amendment, if carried, would give a co-decision role to the director before a Government Minister could agree to transfer records to the National Archives after 20 years. This is not appropriate. The director would not be in a position to judge the test for release set out in the Bill, as I have mentioned. The relevant expertise in this regard will rest with the Departments which hold the documents. For these reasons, I cannot accept the amendments.

The amendments are in Senator Warfield's name. Is he pressing them?

Would the Senator like to speak on them first?

Have they been moved?

Amendment No. 7 was proposed and was seconded. We have not yet got to amendment No. 8. We are dealing with amendments Nos. 7 and 8. We are discussing them together, but we will deal with amendment No. 8 when we have disposed of amendment No. 7.

Obviously, the amendment changes "may" to "shall" in a provision concerning the records the Minister releases, in this case under the new 20-year rule. In our opinion, a certain amount of accountability arises if, when the criteria are met, the Minister absolutely must transfer those records to the National Archives. It clears any ambiguity. Can I speak to amendment No. 8?

Indeed the Senator should speak to amendment No. 8.

Can I move the amendment?

The Senator cannot move it yet. He may speak on it.

The amendment allows the director of the National Archives to be part of the decision-making process on whether 20 year old State records are deemed to be of "significant historical or public interest". I do not think this decision should be an entirely political one, nor should politicians have the final say. The Bill leaves no scope for transparency or accountability for these decisions. While I appreciate that the records can be sensitive in nature, these records could be reviewed with independent and apolitical oversight by the director of the National Archives. Deputy Peadar Tóibín and I have asked the Minister to suggest an appropriate office to conduct such reviews, and I would like to ask the Minister to finally accept this amendment, in the absence of an alternative as far as I can see.

I wish to speak generally if I can, because I had ten amendments and they have all been ruled out of order because of a cost on the Exchequer. If Members do not mind the cliché, I personally think this is a bit of a cop-out. I refer to Senator Norris's attempts to get some legislation through. We are meant to be the Upper House of the Oireachtas and we are not allowed to talk about tuppence, which is absolutely ridiculous. It closes us down.

In my amendments, I was trying to bring about a sea change in the Bill, because the Bill has a major omission. The omission is the history of women and the history of men in this country. We are running around the country apologising to people for the way they have been treated, the way institutions, establishments and people have treated them under the auspices of the State. However, those apologies seem very weak when it comes to something like this Bill. Let us consider the Magdalen laundries, the mother and baby homes, the industrial schools, the county homes and the adoption agencies. There should be a place for them in the National Archives. I will not be easily dismissed here, because this is the history of our country, and much of our archives are in private ownership.

How can the State monitor or regulate archival material in private ownership? That has been the position historically and continues to be. Even if we were looking at direct provision, it would give space for breach of regulation, although I am not saying it is doing so. Our archival history has been in private hands and this should be mentioned in the Bill. The archival history of women and men in this country should be under the canopy of the National Archives. When I am handed neatly over to the Department of Education and Skills and told that that is where it will happen, I know that is a wipe because in respect of the report of the Commission to Inquire into Child Abuse, the Ryan report, for example, which commission ended in 2009, the archives cannot be opened for 75 years when many of the people involved will be well gone. It is a situation where it is made every other Department's problem.

To be fair, I can see the problem for the Department. These archives straddle 1,000 departments. It is what the academics call interdisciplinary. It is a big word, but it really is a polymorphic term. It means a big tree and that everybody can come in under it. If we look at children who spent time in residential and training centres, they would come under the Department of Justice and Equality, as would the Magdalen laundries, while mother and baby homes would come under the Department of Children and Youth Affairs and possibly even mental hospitals when it comes to psychiatry.

The process has to start and I suggest the Department and perhaps the Minister might give me a bit of a steer. I am going to bring forward a Private Members' Bill on this subject in the autumn because I understand it is a complex problem. It has thousands of radii in the one circle and tentacles, but that is not a reason to say we could not start it or try to do it. The National Archives is a place where much of this information comes within data protection. There are many people in Ireland today who do not know who they are, where they came from and what they are. They have a right to know within the law and a right not to have to queue. Within data protection and all of the protective constraints, there is a need to allow them to be free. I thought it was a major omission, but I am not accusing; rather, I am suggesting we look at ways by which we could create that platform or path in the future. I am going to start that process and I would like to hear the Minister's thoughts on it. It would be a brilliant thing to do for her Department which could be the conduit for other Departments in whatever way it is right for them to come in and do so within the law. This is a major omission. We cannot have people's records in boxes in attics and rooms for which there is no key. People have to be able to access information to know who they are. Most of the time we are confused about who we are, even when we know. It is important for women, men and young people. It is important for the country's great archives.

Ms Catriona Crowe gave a brilliant dean's lecture in Maynooth in which she spoke about this issue, not in an accusative way but in a way in which she made reference to Ireland as a grown up country - we are talking 100 years on from independence - with strength in outlining what we did badly and what we did well and being able to hold it together. It is what the poet Seamus Heaney told us all about. He brought us all back down and gave us a sense of ourselves through our natural world which we tend to forget because we are so busy watching televised rubbish from other countries. I say this from my background in the arts, history and language and communications. As I said, it is an omission from the Bill. I know that it did not set out to make it, but I am flagging it as something that is coming down the tracks. It is not going to go away. We need a place, an archival treasure house to store all of the great history of the women and men of this country, especially of people who do not know their history.

I express my disappointment. I refer to the excellent suite of well thought out measures put forward by Senator Marie-Louise O'Donnell, and Senator Diarmuid Wilson. They are thoughtful and detailed amendments which attempt to do something vitally important in capturing our shared social history as an island. This is something I studied many years ago in America. I remember Professor Howard Zinn's book, A People's History of the United States. The work of Ms Catriona Crowe has also been mentioned. I refer to the idea of history of what was it like to be alive in a period and the pressures faced. It is not simply about looking at advertisements and historical letters but also about looking at the more difficult paperwork. I refer to what it was like to be alive and trying to live, sometimes in difficult circumstances and vulnerable situations, at different points in our histories in order that we do not just get, as sometimes seems to happen, the highlights, the major political winds, the high papers and the commercial space when the deeply personal and shared struggles of people's existence are lost.

It has been mentioned that there are major issues with identity. The issue has been and will be discussed again during the debate on the Adoption (Information and Tracing) Bill 2016, but it is not the answer. It is a complementary and separate struggle from the question of identity. Great cruelties are still being inflicted by issues such as the Magdalen laundries, industrial schools and forced adoptions. In many cases, they are not crimes of the past because people are still being denied records and information. The decisions are still being hidden. It is not only about individuals, it is also about practices and-----

-----administration and even finances when we look at things like the vaccine trials that took place on children in Ireland. It is important for us to look at that issue. There is a double role. There is the identity of individuals and the battle in that regard, but there is also our shared identity. I feel very passionately about this issue and we need to be able to look at it. We have seen two examples. In the commemoration of the 1916 Rising we saw that we were able to face up to a difficult history. We are able to talk abut the nuances and engage with them. In a different way, the recent referendum on the eighth amendment showed us that, as a nation, we were able to talk and trust each other. We are able to talk about these difficult issues. We can be trusted to look at and engage with this archival material, learn from it and grow collectively from it. Compared to many other European nations, we are unfortunate in that there are large holes in the National Archives. There was the fire that destroyed large parts of them. There are other areas where great archives were destroyed. More recently, in our social history, we have seen the destruction of things like the symphysiotomy files. It was not just a terrible issue for the women affected, it is also something for us from which to learn as we design and move forward in schools, hospitals and medical care. As a nation, we need to say we do not need more holes in our social history. I refer not only to the fact that, in many cases, records are held in either private situations or unsafe conditions, but also to the fact that they are being lost. The Bill Senator Marie-Louise O'Donnell proposes to introduce in the autumn is urgent.

We cannot get back papers that talked about what it was like to be an unmarried mother or somebody dealing with separation in a society in which he or she was invisible.

All the difficult systems people had to go through in those situations will be missing. Another issue is the industrial school records about which our colleague, Senator Boyhan, who is not present, has spoken passionately. It is necessary. I urge the Minister to do everything she can to ensure something is done to capture those records.

With regard to data protection, there are very clear exemptions. We are allowed to do this. There is no privacy block in this regard because archival material for collections purposes is a clear area for exemption on the basis of public interest. It is set out in the legislation.

We are dealing with amendments Nos. 7 and 8. I exercised some discretion with Senator Marie-Louise O'Donnell because so many of her amendments were ruled out of order.

We are on amendments Nos. 7 and 8.

I will go straight back to amendment No. 7.

I thought the Senator had dealt with them.

I very strongly support amendment No. 7. I support amendment No. 8 as well but amendment No. 7 is absolutely pure common sense and should be accepted by the Minister. Amendment No. 7 addresses the part of the Act that says where we have records the Minister is satisfied are of significant historical or public interest and where he or she is also satisfied the transfer of those records will facilitate the balanced and fair reporting of matters of common interest to the State and other jurisdictions, he or she may publish them. If the Minister is satisfied they are of significant historical and public interest and is satisfied they can be transferred and dealt with in a fair and balanced way, those are sufficient safeguards. We do not need the word "may" there, we need the word "shall". If they are that important, if we have the mechanisms to deal with them and they are also satisfactory, "shall publish" is the only phrase that is acceptable there.

There is a danger. We do not want a situation in which an entire nation is denied part of its history because a Minister of the day - not the present Minister - may not like what he or she sees even though he or she recognises its historical interest and recognises that it can be shared. I feel strongly about it. I hope my colleague presses a vote on the amendment because I feel strongly about it. It is very good.

I recognise what it attempts to do with regard to the director of the National Archives. I would have preferred a combination role for the Minister and the director of the National Archives but I appreciate the sentiment involved in trying to move this away from political influence.

I urge the Minister to publish the census of 1926. I know the amendment concerned was ruled out of order but it would be wonderful for us to have it.

I will bring in the Minister. We must remember that the Bill has been in the Dáil. This is the end of it.

I am not sure if Senator Warfield was here when I spoke on amendment No. 7. As I said with regard to amendment No. 7, I am acting on the advice of the Attorney General's office and I cannot accept the amendment.

On amendment No. 8, it is important that Departments with relevant experience carry out the relevant functions. For example, the director would not be in a position to judge the sensitivity of documents relating to the Good Friday Agreement 20 years ago which would now fall to be released under this Bill.

I thank Senator Marie-Louise O'Donnell for tabling her amendment. It has been a long process to get this short, focused Bill to this point and I assure the Senator that I and my officials will give careful consideration to the proposals the Senator has made. They are quite complex and would need to be teased out in greater detail. An example of those details would be constitutional issues that might arise with the State acquiring documents to be transferred to the National Archives. There could be data protection and privacy issues with regard to the making available of records within the archives. While the amendments provide for the situation when the Data Protection Commissioner may certify records that should not be transferred, the default position is that relevant public authorities shall transfer records unless the Data Protection Commissioner steps in.

The issue of the right to privacy versus the right to know is something that is being considered in the context of the Adoption (Tracing and Information) Bill 2016, which is currently before the Seanad. The Minister, Deputy Zappone, has indicated she wishes to work with all parties to get this issue resolved. That process would assist in taking an overall view of the wider range of social services documentation.

The administrative burden of operating the new provisions is unknown, as are the implications for the National Archives, public bodies and many private bodies. There are also a number of issues that would need to be considered. For example, the amendments would give a role to the Taoiseach instead of the Minister, which is a misreading of the Act as it is now construed. Another issue is the role of a new archives board versus the role of the existing board. There is also conflict with existing legal provisions regarding local authority archives and the local authority archive service. However, I would like to work with Senator Marie-Louise O'Donnell going forward. Senator Higgins referred to some of the issues that Senator O'Donnell raised. Given these substantial amendments have appeared at the last moment of the legislative process, I have asked my officials, in consultation with the National Archives, to view the documentation and bodies that come within the remit of the National Archives in its entirety. This review would have regard to the progress of the adoption Bill and any principles laid down in it; the need to consult with relevant Departments and public bodies in the first instance and the wider sector thereafter; proper consideration of the intersection of an extension of the archives legislation with the obligations under the data protection legislation; as well as the organisational, logistical and resource implications of any proposed changes. I am happy to work with Senator Marie-Louise O'Donnell on that.

Senator Higgins spoke about the need to tell the personal stories. It is something with which I agree. While the National Archives and the Military Archives hold official records they also hold many personal stories, including the struggles of women to get recognition for the role they played in the struggle for independence. There has been a great opening up in Ireland over recent years and it is something I am also passionate about. The way forward is to do it in a way that works and which ensures buy-in from all who lived through personal dark times in Irish history.

That is all I have to say on the amendments.

I will explain to Senator Warfield why he is not allowed to speak. He was not here at the start. Senators are only allowed to speak to an amendment once on Report Stage expect for the proposer of the amendment. Senator Warfield was not the proposer because Senator Ó Donnghaile moved the amendment. Senator Warfield was not here at the time. Unfortunately I am precluded from letting the Senator back in. The only thing I can ask Senator Warfield is what he would like to do with amendment No. 7.

I moved amendment No. 8.

The Senator has not moved it yet. We cannot move amendment No. 8 until we have disposed of amendment No. 7. What are we doing with amendment No. 7 in the name of Senators Warfield, Conway-Walsh, Devine, Gavan, Mac Lochlainn and Ó Donnghaile? It arises out of Committee proceedings. Is the Senator pressing the amendment?

Amendment put and declared lost.

Amendment No. 8 has already been discussed with amendment No. 7.

I move amendment No. 8:

In page 4, lines 18 and 19, to delete “where he or she is satisfied that” and substitute “where the Director of the National Archives is satisfied that”.

I second the amendment.

Is the Senator pressing the amendment?

Yes. Can I speak to the amendment?

No, it has already been discussed with amendment No. 7.

I have a question. Are we completing Final Stage directly after this?

Can Senators speak on Final Stage?

Senators may make comments.

The Senator can make comments on Final Stage.

Amendment put and declared lost.

Amendments Nos. 9, 10 and 11 in the names of Senators Marie-Louise O'Donnell and Diarmuid Wilson are all out of order for the same reason, that is, they may result in a potential charge on the revenue. Amendment No. 12 has been ruled out of order for a slightly different reason but also because it may result in a charge on the Revenue. I can read out one or both of the explanations if people want them.

Amendments Nos. 9 to 12, inclusive, not moved.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."

Would Senator Warfield like to say something?

I have some questions about the concerns the Attorney General had and whether those concerns were about resources.

Before the Minister's time in the Department, the then Minister, Deputy Heather Humphreys, I and other members of the arts committee had lengthy discussions around the obligation of the State to release certain records and the failure of the State to do so in many cases. Is the concern of the Attorney General one about resources or a legal concern? Is that the reason that my amendment around the words "may" or "shall" was not accepted?

We have a Private Members' Bill on the Order Paper on the statistics Act and the early release of the 1926 census. We are in a decade of centenary. That resource would be of great value to historians and to people looking to explore their heritage. We know the success of the 1901 and 1911 census returns of the National Archives; they have proved a wonderful national heritage resource for our diaspora also, which is available via the internet. Genealogists and historians have campaigned for this for quite some time. The Minister's predecessor, former Deputy Jimmy Deenihan, had promised the early release of the 1926 census in 2012, and I wonder if the Minister would consider making that promise a reality. No one from the 1926 census is still living and I am asking the Department to consider its early release. Deputy Seán Ó Fearghaíl previously brought forward that piece of legislation, as did Deputy Aengus Ó Snodaigh, and I believe there is absolute merit in the early release of the 1926 census, so that we can have that information available to us in these centenary years.

I have a neighbour who was born in 1925, so there are some people around, but they may not be too pushed about whether the census details are released on them. I call Senator Hopkins and then the Minister to conclude.

I welcome the passage of this Bill through its final Stages in the House today. As we have discussed before, one of the major elements of this Bill is to bring our legislation into line with the legislative regime in operation in the UK since 2013. That is particularly important in terms of the release of state papers. Aligning our release time lines will allow us to be given a much more in-depth understanding of the shared history we have with our nearest neighbours. While the obvious academic value is incredibly important, the release of these records is also important in the context of informing our future decisions.

I am a very strong believer in looking to the past and learning from it in guiding future decisions. I thank the Minister, Deputy Madigan, for steering this Bill through both Houses and commend her strongly on all of the work she has done and is doing since entering Cabinet.

I thank the Senator for her kind words. I do not propose to go into Senator Warfield's amendment No. 7 again. I did actually address his question about the Attorney General.

On the 1926 census, the view of the Central Statistics Office is that any weakening of the existing 100 year guarantee of confidentiality would result in undermining the public trust in the confidentiality of the census and would be detrimental to the collection of data, particularly in the economic, business and social sectors, where difficulties in data collection are already encountered. However there is much preparatory work which can be done to prepare for the release of the 1926 census and this is something that I do wish to progress.

I thank the members of the Seanad for their interest in and contributions on what is a very important Bill and I acknowledge the support of Members in facilitating its passage through this House. There has been significant deliberation about the task of moving to a 20 year rule, both around the necessity for the change and the resources needed to effect it. This legislation provides a mechanism to allow for the release of records over 20 years old to the National Archives and thereby to the public, while recognising the significant resourcing issues. It provides the flexibility for Departments to release certain classes of records earlier than the standard 30 years, if the Minister feels the historical or public interest value of the records warrants early release. I have taken the view that, notwithstanding the resource implications involved, the pragmatic approach in this Bill gives a workable way forward to allow for the early release of records of significant historical or public interest value. Given the extent of our shared history with the United Kingdom, I know that the restoration of the synchronised release of official records on such issues would be widely welcomed. I thank the Members of the House for their co-operation in expediting the passage of this Bill.

I thank the Minister. I believe I was in the Chair last week when we were doing Committee Stage and I just happen to be here when we are doing Report Stage and Final Stage. I congratulate the Minister and her officials in getting the Bill passed in such an efficient manner, and I thank all of the Members for their participation. I believe the Minister will be back next week in the Seanad for the Heritage Bill and we look forward to seeing her then.

In accordance with the order of the House this morning, the House now stands adjourned until 2 p.m on Monday, 9 July 2018.

Question put and agreed to.
The Seanad adjourned at 3.26 p.m. until 2 p.m. on Monday, 9 July 2018.