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Seanad Éireann debate -
Friday, 23 Oct 2020

Vol. 272 No. 2

Commission of Investigation (Mother and Baby Homes and certain related Matters) Records, and another Matter, Bill 2020: [Seanad Bill amended by the Dáil] Report and Final Stages

This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 148, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For Senators' convenience, I have arranged for the printing and circulation of those amendments. The Minister will deal separately with the subject matter of each related group of amendments.

Senators have tabled a number of amendments which arise from the changes made to the Bill in the Dáil. In view of the number of amendments and to avoid repetition of debate, I propose that the amendments made by the Dáil and the related amendments tabled by the Senators will be debated together in related groups. Decisions on the amendments tabled by the Senators will be taken when discussion of all groups of amendments have concluded.

I have also circulated the proposed groupings in the House. A Senator may contribute once on each grouping. I remind Senators that the only matters that may be discussed are the subject matters of each of the groups of amendments made by the Dáil and the amendments tabled which arise out of the amendments by the Dáil.

Question proposed: "That the Bill be received for final consideration."

I call on the Minister to speak to the subject matter of amendments in group 1, that is, amendments Nos. 1 and 7 and Seanad Report Stage amendments Nos. 2 to 4, inclusive. This is in order to avoid repetition.

My intention when I brought this Bill forward was that it would be a specific item of legislation to resolve the issues of the database that was created by the commission of investigation into mother and baby homes. I had hoped that this would be a discrete piece of legislation addressing a discrete and distinct legal issue. In my approach, what I lost sight of was that the issues around the mother and baby homes, and, indeed, the issues around all the major legacy issues that we have to deal with in the State, are not cold legal problems. They are some of the most grievous types of abuse that could be perpetrated on women and children and in my haste to fix a legal problem, I lost sight of that. I realise and accept that that approach has caused anguish and frustration and this is something for which I am deeply apologetic.

I believe the Bill before us today is good law. It secures a valuable database that can help children who went through these homes establish their full identity. However, this Bill is just one piece of work we have to do. We have work to deliver new legislation around adoption information and tracing. We have work to provide the children and babies buried in Tuam a dignified burial and memorialisation. We have work to ensure that personal information about people - their full identity - is available to them. We have work to do to secure the archives of all the institutional abuse that happened in Ireland in a single location, have it appropriately managed and have it accessible in order that the terrible wrongs that were done can never be forgotten.

It is my intention to speak with the Taoiseach and my ministerial colleagues and I will seek to adopt a new approach to legacy issues in this country - one that places victims at its very centre. I make the commitment today, in my continued work as Minister with responsibility for children, to reach out to survivors and their families and those affected. I hope the relationships that have been badly fractured over the past week can be rebuilt and it is my absolute determination and my commitment to do that.

I still believe that this Bill will help many of those who passed through the mother and baby homes and will help those who continue to seek their own identity. The amendments that I speak to today are reflective of some of the issues that were raised in this House and issues that were raised in the wider dialogue on this issue.

I refer to amendments Nos. 1 and 7. Amendment No. 7 provides for a copy of the database on mothers and children and related records to transfer to the Minister. This means that both Tusla and the Minister will receive a copy of the database and related records from the commission. The amendment replaces section 4 of the Bill, which provided for a transfer of the database and related records from Tusla, if necessary, should a tribunal of inquiry be established. That section will no longer be required as the specified Minister will hold a copy of the full archive as a consequence of this amendment. As the House will be aware, the impetus for this Bill derives from the necessity to secure an urgent bespoke solution to protect the complete records of the commission, including the database, before its expected dissolution by the end of this month ensuring that the information can be immediately accessible to relevant persons in accordance with the existing statute and protecting the opportunity for enhanced access in the future. That is the rationale for the provisions of the Bill, which seeks to transfer certain records to the Child and Family Agency.

I listened carefully to the arguments put forward last week seeking to have a copy of all records transferred to my Department rather than the limited separation of records as I had initially proposed and I accept that there is additional value to this approach. The amendment seeks to ensure that a copy of the database and related records is also deposited with my Department. This will deliver a complete archive while still ensuring that the database and related records can also transfer to Tusla and remain available for use in accordance with existing and future statute. I believe that this change enhances the outcome being achieved by this legislation. Amendment No. 1 is consequential on amendment No. 7.

I remind Members they can only contribute once on each grouping.

I welcome the Minister to the House and thank him for those comments. However, it still begs the central question of why the legislation had to be rushed through at such speed. Reflecting on it since our last debate in the Seanad and watching the Dáil debates this week, it has increasingly come home to me that if the commission, as it indeed did, came to the Minister on the basis of its legal advice - which we obviously have not seen - saying it needed this legislation to be put in place, the Minister could have responded that he could not get this legislation passed with due parliamentary process by 30 October and that the commission would have to seek an extension. I do not see why that could not have been done. An extension of a few short weeks would have made the difference where parliamentary process is concerned and would have served to smooth the passage of what the Minister says is necessary technical legislation but which has in fact stirred up such distress and such painful memories, stories and experiences for so many people.

The Minister has been very clear and open about having underestimated the extent to which that would be the case from this Bill. I think that was a very fair comment. When we look back at the anguish which emerged in the debates in this House and in the other House on previous and related legislation, it was foreseeable that it would have this effect, particularly when this Bill will do nothing to improve access to records or information for survivors. That is the crucial point. It will simply facilitate the sealing, the 30-year rule and so on. We know all of that is in the 2004 Act, but that Act is not set in stone and could have been amended. Indeed, the Adoption (Information and Tracing) Bill 2016 could have been brought forward. I tried to ensure it would be brought forward under the Minister's predecessor, Katherine Zappone. For all of those reasons, it is unfortunate, to say the least, that the Bill has been rushed in this way and that an extension was not simply sought and granted to enable a better parliamentary process to go on.

This morning I had a long conversation about this legislation with someone the Minister knows very well - my former Labour colleague, Joan Burton, who is a former Tánaiste. As the Minister knows, Ms Burton has been hugely active on this matter and has really sought to ensure that adopted persons in particular, but also persons who were in mother and baby homes and persons whose family members were in those homes, would have access to information and that privacy rights would not be used to trump their rights to access their own personal data. Having spoken to Ms Burton and, over the years, to survivors and those who support them, including women such as the late and very great Christine Buckley and Carmel McDonnell Byrne and those who work in Barnardos tracing service and the Aislinn Centre, etc., I am aware that for everyone involved in this matter there has been a sense for many years now that the State has blocked access to information. The sense is that we have not been able to adopt suitable legislation for various reasons to do with constitutional legal arguments which should be tested more strongly. Somehow, we have not been able to bring in the sort of gold-standard legislation we have seen in other jurisdictions where adopted people have rights to access their own information and it is just a very clear right and that is unfortunate. We have got a situation where many survivors and family members have been blocked from getting information for many years. This Bill then comes into that context and is seen as simply contributing to the overall culture of secrecy and blockage of information. It is a really important point.

I must say to the Minister that we have been constructive all through this debate on this legislation. I said at the start of Second Stage that the work of the commission is hugely important. I have immense respect for the three members of the commission who are incredibly eminent. We all eagerly await the publication of the 4,000-page report which we know will be groundbreaking. I have quoted some of the interim reports the commission has produced. They have really contributed to our store of knowledge on this issue. Given that the Minister is saying there is such a rush in getting this Bill through, I ask that he publish the report without delay, that we be able to debate it in the Houses and, crucially, that support be given to those organisations providing support to survivors and their families. That need is so clearly evident in the emails, communications, talks and conversations we have all had with so many survivors and survivors' families. I think all of us on the Opposition benches appreciate that in the Seanad - if not in the Dáil - the Minister took some amendments on board and the Bill has been improved as a result. However, we still have fundamental issues with the tenor of the Bill and with the fact that it will not provide persons with access to their own data. That is really the fundamental point which remains a point of contention and of opposition to the legislation.

I thank the Minister. I am going to speak to his amendments and to my amendments to his amendments, which are grouped together. Given the time constraints, I am going to speak specifically to issues in these groupings but I reiterate that the manner, the timing and the sense of disempowerment that has accompanied this entire legislative process has been extraordinarily unfortunate and has been very traumatising for many people.

I acknowledge that when we were previously debating this Bill in the Seanad, four or five of my amendments related specifically to the point the Minister is addressing in amendments Nos. 1 and 7. I was calling on him to ensure he would have a copy of everything. The Minister may have taken on board some of the reasons it is important for him to have a copy of everything. The amendment relating to a potential future tribunal states that such a tribunal should be able to access all relevant documents in one location, as provided for under section 45, rather than having to go to two locations to seek the full suite of relevant documents. Tribunals may yet be needed in respect of the many appalling issues which have been uncovered in the process of this commission. In 30 years, when these documents may go to the archives, it will be important to point out about the related records that where records and their original copy are already into or past the 30 years, that of course should not delay them transferring to the National Archives. It is important for the Minister to emphasise that we are talking about the copies of documents that the Minister has and that there will be a full suite of documents transferring to the National Archives in 30 years.

My amendments to the Minister's amendments relate to the other key reason it is so important for him to have a full set of documents and to use them properly, which is the need to ensure that during the next few years, before the National Archives receive these documents, these documents cannot be sealed and are not sealed. A huge amount of the distress has been caused by the language of sealing. Unfortunately, it was the Government which introduced that language by saying it has taken the database out because otherwise it would have been sealed for 30 years. That language of sealing was introduced in a very unconstructive and negative way at that time. I know there have been some interpretations in the past around this being a seal and it is unviable and it is under the 2004 Act. We need to be really clear that the 2004 Act states that after 30 years these documents will go to the National Archives. There is nothing in the 2004 Act that says nothing else can happen in the interim. That is not in the 2004 Act. There is nothing in the order of 2015 that established this commission that says nothing else can happen. What we have in the order of 2015 is simply that the commission had to provide for procedures for individuals who wished to remain confidential - not general procedures, but procedures for those individuals who wish to remain confidential during proceedings and subsequent reporting. That remit extends solely to the commission, its proceedings and its reporting. We have already discussed the balance the Minister has sought to strike, and I think we will get to discuss it again in the context of a later set of amendments. All of the documents the Minister receives, including these additional documents, the copies of the database, the copies of the relevant records and the other documents he had already been scheduled to receive, are subject to the general data protection regulation, GDPR. All of those documents will be subject to the GDPR not in 30 years' time but as soon as the Minister gets them. He will be the data controller and he will need to process those documents as required under the GDPR.

That includes processing Article 15 data subject access requests. There will need to be processing of those and the Minister is going to have to respond to requests. The only caveat, which was not in the 2004 legislation, was brought in 2018, proving the fact that the 2004 legislation can be amended. In 2018 a new section, section 198, was inserted into the Data Protection Act, which was a new version of section 39, and suggested that Article 15 rights may be restricted to the extent necessary and proportionate to safeguard the operation of future commissions.

That is not a blanket permission to refuse requests. It needs to be addressed on a case-by-case basis. As the Minister receives requests, he must respond on a case-by-case basis to say that he is not answering a request to access personal data because if he did we would not be able to have future commissions. That is an extremely high bar. If it was not, it would be illegal. We know this from recent rulings made in respect of the Workplace Relations Commission, WRC, which stressed the point that any restrictions that might be placed on rights under the GDPR, must respect the essence of the right. Restrictions are, by their nature, restricted.

The Minister will be the data controller in respect of these documents. In anticipation of becoming the data controller, as he plans to be under the amendments he has moved, he will need to complete a data protection impact assessment, DPIA, on how he, as data controller, will deal with the database, the relevant records, and all of the other documents, how he will ensure that he will process them in a way that is compliant with the GDPR, and how he will address Article 15 issues. The interpretation of section 39 by the commission has been extraordinarily narrow. The Minister will have to make his own interpretations, which will have to be robust, and will have to do so on a case-by-base basis. In setting out the DPIA for all of the documents that the Minister is about to receive, as the data controller, he will also need to consult with stakeholders, because even storage is a form of data processing. Even if the Minister were not to process the data in other ways, although I believe he will, he would nonetheless need to complete a DPIA. I suggest that in the period between now and February 2021, the Minister really needs to address and engage with people on the issue of the DPIA, to ensure that he puts in place measures that guarantee that GDPR rights are being accessed and will be accessed.

My amendments, Nos. 2, 3 and 4, simply try to reaffirm that. The Minister has these obligations under law but I do not want to see individuals having to force him to fulfil these obligations. People have been through enough. The Minister should embrace his obligations. The amendments that have been tabled both in the Seanad and the Dáil were moved in an effort to provide the Minister with support in that, and to strengthen primary legislation to reinforce the fact of the applicability of the GDPR. This primary legislation is just as powerful as that of 2004, if not more powerful, because it reflects the full legal context including the EU context.

My amendment proposes that the Minister "shall put in place processes for the processing of the copies of relevant records and the database and records, along with such other documents as deposited with him by the Commission, under the Data Protection Regulation, including Article 15." This amendment is helpful, and it is something that needs to be understood. As a Minister, he is not simply appealing to officials and authority. We have heard the Attorney General being invoked, but that is advice that the Minister takes on board. The Minister operates within the constraints of the law, including the Constitution, not the advice of the Attorney General which is different from the constraints of the Constitution per se. The Minister also operates within the constraints of EU law etc. Within that, the Minister can make law, and it is a stronger tool for him, or it would have been. It is a missed opportunity that the Minister has not embedded procedures in this legislation, which include that not just him, but any future Minister, is paying proper attention to the GDPR.

My amendments do not seek to insert the GDPR into this legislation, rather, they try to insert action under the GDPR into it. I hope that the Minister will consider them and will do everything that he can to ensure that we do not put individuals through the appalling mill of having to individually seek to access their rights, and take their cases, which some will win, and others will die before their case is ever heard. Can the Minister clearly indicate that he understands himself to be a data controller in respect of these documents, that he will put in place proper procedures to take proper action as a data controller in respect of the full suite of documents, and indicate how he intends to move forward, including in terms of the completion of a DPIA and consultation with stakeholders around it, prior to him taking the documents in February 2021?

I welcome the Minister to the House. Many people are very angry and disappointed by the process that we have seen over the last number of weeks, and by the nature and the design of this legislation. There has been an outpouring of support that I have not seen since my first election into politics. Therefore I am making one last appeal, however likely at this stage, for us to go back to the drawing board. I have two questions for the Minister that will tee up Sinn Féin's amendments, which will be moved by Senator Boylan. My questions relate to the amendments that we are discussing, that is, around the issue of the holding of records in the Department. Will we not have a situation now where victims and survivors have to litigate against the Minister's archive in order to obtain a copy of their transcript or evidence, or indeed any other records that the Minister holds that relate to the survivors or those who have endured forced family separation? Following from previous contributors, my second question is this: should the Bill not clarify, for the avoidance of all doubt, that the GDPR applies to this archive?

I wish to thank the Minister for coming to the House; he is always welcome here. I recognise that we have a job to do and he has a job to do. I also want to acknowledge the frankness and honesty of the Minister both in his radio interview on RTÉ's "Morning Ireland" this morning, which was refreshing. It was simply honest, and it may have made the Minister appear vulnerable. I think this is the measure of a good politician - a politician who can come back and say that perhaps we underestimated this and are slightly overwhelmed, and did not anticipate the hurt involved. However the Minister has acknowledged it, and that takes courage, which I admire, and I thank him for doing so.

I also want to acknowledge what the Minister said in his opening statement. Amendment Nos. 1 and 7 are helpful, and clearly demonstrate that the Minister has been listening. However, we are where we are. A woman called me this morning to tell me that she was very disappointed, and I told her that she should not be, because it has been a long road for many people. To sum it up, it is lived experiences, a life's journey and a life's work. For some, in these last few days, they consider this to be one of the last opportunities for them to do this work. Some of them may be 70 or 80 years of age. Everyone in this House will have received emails and telephone calls from heartbroken people.

I commend the interviewer who interviewed the Minister this morning on RTÉ's "Morning Ireland" and posed a number of questions, which I wrote down. She asked the Minister whether the State has let these people down. The State has let these people down, and the Minister did apologise for it. However, apologies are no good for these people. They have had a lifetime of betrayals, hurt and isolation, being vulnerable and being picked up, dropped and rejected so many times, through the church, education, schools, the Government, services, adoption agencies, social workers, and in the last few years, through Tusla.

They do not feel respected or valued. It is a sad day but I am not going to give up because it is a really important day. It is a turning point for those of us who are strong and able to carry on. We must carry on. We will have our day. The 4,000 page document will come back before us, as the Minister said, and we will call for him to come back before the House and we will discuss it. No doubt there will be many more tears by politicians and people will say they underestimated. I can tell the Minister that in four, five, or six weeks, we will be going through some of the most harrowing stories and we need to prepare for that.

We are where we are. Dáil Éireann passed the Government Bill last night by 78 votes to 67. The Government parties did not allow a free vote on the legislation. In a democracy, on an issue of such importance, the Government parties whipped their members to vote. None were able to vote against it or had the courage to stand up alone and walk away and be brave, because some of them told me that they would lose the Whip. That is a very sad state of affairs in our democracy. There were more than 60 Opposition amendments, every one rejected by the Minister. We have to deal with that. The Minister has said, in response to the amendments, that a copy will go to the Department. All the victims and survivors wanted was for it to go to the Department in the first place. They did not want it to go to Tusla. Those 60 Opposition amendments tabled last night in the Dáil were the words and aspirations of survivors and victims. The Opposition politicians did not make them up. They transcribed and interpreted the responses, engaged with their electorate and their communities, and brought that to the table. Not only were the politicians rejected, but the wishes they expressed on behalf of victims and survivors were rejected too. People feel disempowered. It is a setback. I recognise the significance of the Minister's two amendments and thank him for acknowledging, even at this late stage, that he could have done it differently.

I speak to amendment No. 7. Our duty is to ensure that survivors of these institutions are satisfied with their treatment in this legislation. I do not want to see them retraumatised by being denied access to their statements, and I am sure neither does the Minister. He is a good man.

I will read a letter I received today from an independent councillor, Francis Timmons, who was in a mother and baby home and who wrote of his fear that this is another exercise in brushing things under the carpet. It is important that we listen to the survivors and that the truth comes out now, not in 30 years when some of the survivors may not be with us:

Dear Senator,

I write to ask you to be very vocal against the bill when it returns to the Seanad for further scrutiny the sealing of records for 30 years.

I spent the first few years of my life in Madonna House Institution I refuse to use the word home, a home is where you feal safe and have opportunities to grow. While in Madonna House I was used as part of the Vaccine Trials. I am put one of thousands of Children survivors who was mistreated in an institution.

We are told there is 57,000 survivors that are still alive, 57,000 Irish people looking for answers, Truth and Justice, both Children and their Mothers of a cruel Ireland that separated unmarried Mothers and their children. Many of us where ignored and dismissed as children when no one listened, and no one cared.

The plan by the Government to lock up files for 30 years is but another slap in the face for those who seek Truth and Justice. This legislation could see records of mother and baby institutions (homes) put beyond the reach of survivors for 30 years. This follows on from a previous plan to lock up files of survivors for 75 years. The Retention of Records Bill 2019 proposed to seal records from the Commission to Inquire into Child Abuse, commonly known as the Ryan report, and the Residential Institutions Redress Board in the National Archives for 75 years.

Both these do nothing to install faith that the culture of cover up has ended, as yet again Ireland try’s to sweep the past under the carpet the truth hidden again , the voice of those who were voiceless yet again silenced. The culture of control and cover up continues as the voice of survivor’s is yet again under discussion in the Dail and Seanad, the real discussion should involve truth telling and a process of healing, truth and justice that would allow survivors who want to tell their story.

Many Survivors where abused sexually, physically, and mentally and this had life lasting effects on many. If we are to grow as a country and a true equal community, we need to deal with the past and all the pain and hurt that so many felt and still feel.

We were hurt as Children, please don’t hurt us again, listen to those who lived through the institutions, we must never forget the Mothers who desperately wanted their Children and the Children who desperately wanted their mothers.

Amendment No. 7 provides that "the Commission shall also offer to furnish that person with a copy of their statement and/or document free from redaction”. It relates directly from Councillor Timmons's request that information should not be put beyond the reach of survivors. I hope the Minister will accept the amendment.

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

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

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

It may have been a representative sample, but it was not a comprehensive examination.

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

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

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

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

I thank the Minister for his opening remarks and for the humility of his approach, especially in the past week. In Irish society there have been few occasions where we have felt the gut-wrenching anger of our citizens with regard to the treatment of previous generations of Irish women and men. We have definitely felt the anger, the hurt and the sense of revisiting the humiliation inflicted on these women and men over many years.

I wish to speak to amendment No. 1. I welcome the Minister's decision to keep a copy of the entire archive for himself. Given the previously stated policy of his officials was not to open any of the boxes and, therefore, they would not have access to the information in the archives, I am curious to know whether he intends to respond to data requests from data subjects. Those requests will come. Regardless of whether one agrees with Article 15 - I do not - regarding the commission's use of the data, the responses it has given to data subject requests in recent years have not been worth the paper they were written on due to the redactions. The commission used the provision whereby it could determine it necessary and proportionate to refuse the information on the basis that it would hinder its ongoing work. We are all waiting in anticipation for the 4,000-page report. It will be very telling about how the State has dealt with another chapter in Irish history.

I will not table an amendment, but this is a vital point. For the avoidance of doubt, does the Minister intend the GDPR legislation and the get-out clause used by the commission to apply to the archive that will be deposited with him? Will he maintain the blanket seal on the archive and refuse to reply to data subject requests? If so, how will he reply when people come looking for that information, which they will?

Senator McDowell has stolen all my lines. There are bona fides in the presenting of this Bill, but we can never say anything on it without prefacing our remarks by acknowledging the context, namely, the appalling wounds and trauma and the retraumatising that is happening in the course of this discussion. I believe there was an original intent to see a legal problem, see a deadline and deal with the legal problem in the hope that doing so would release information as opposed to withhold it. In the public narrative around that, however, the intent has been changed and, at times wantonly, misrepresented. We need to get back to the basics, in that this Bill is about assisting people in accessing information.

In that regard, I welcome the Minister's amendments and that he has listened to what was without question a worthy debate in this House. I agree with Senator Higgins's view, in that the Minister will now receive these data as a consequence of his amendments. That is welcome. However, it puts him in control. Currently, there is legislation to tell him what he has to do. Regardless of whether we liked it or whether it was intentional, that Act was amended by the GDPR. In transposing the GDPR into Irish law, we made an amendment to the 2004 Act to allow for the competing balancing act between Articles 23 and 15. However, there have been subsequent EU rulings on the entitlement to information. There is a fundamental human right in this regard.

While I agree with the spirit of Senator Higgins's amendments, the Minister needs to undertake a data protection impact assessment, DPIA, quickly. Ideally, it should be done at the Joint Oireachtas Committee on Children, Disability, Equality and Integration, but it must be done with a view to determining how to set in place a mechanism that takes into account all of the matters we want to address, including the pressing need of people to have their own information and their lawful right to access same, without creating unintended consequences for other commissions, witnesses and situations. We must consider that wider context. Unfortunately, the Government does not have the luxury of addressing one situation and it must consider the ramifications. That process must take place, ideally in the Oireachtas committee or some other specially created forum. We could invite experts and stakeholders and people from all sides of the Oireachtas to ensure that we reach a solution to the issues being presented by people who want contact with their relatives and to know who they are, where they came from and why their lives transpired as they did. They are entitled to that information, and the GDPR provides for that, but we have a balancing to do under Article 23. There are competing rights, but the rights of individuals should trump everything else. Politics is supposed to be the art of the possible. Without politicising it, we can move together and do that in acknowledgement of people's hurt. It is important that we do so quickly.

I echo the Leader's question. Now that the Minister will have the archive, what does he plan to do with it?

I call Senator Mullen.

I had not indicated at this point.

If the Senator wishes to contribute later-----

I will move an amendment later.

That is okay, but we might not reach some amendments because of the constraints. To remind Members, under the order of the House, we are finishing at 4.45 p.m. As such, we might not reach every amendment.

In that case, I would like to contribute now.

The Senator should stick to the amendments under discussion.

He should keep it brief. We are on Dáil amendments Nos. 1 and 7 and Seanad amendments Nos. 2 to 4, inclusive.

I need the Cathaoirleach's assistance on this matter. My amendment is No. 9. I do not have much to say on it but I do not want to-----

That is towards the tail end. We will try to get to it, but I want to stick to the amendments under discussion. The Minister will then respond. The next speaker on this group of amendments is Senator Ward.

I welcome the Minister. I acknowledge and welcome what he stated at the outset. One of the issues with Irish politics is that, when we make mistakes, we do not admit them often enough. As the Leader stated, the Minister's comments demonstrated a humility that is often absent in politics. I welcome the compassion of his comments and I acknowledge Senators' remarks about the level of pain and anxiety this legislation has caused in the public discourse in recent times.

I apologise, but will the Senator please move to the seat next to him? It has a microphone.

I am sorry. I do not know whether I need to repeat it, but I acknowledge what the Minister stated at the outset of this debate. The humility of his comments and his acknowledgement of mistakes in the context of this legislation were important.

Senators have mentioned the effect of those mistakes on the survivors and victims of the horrible deeds about which we know. The anxiety, hurt and upset they have been caused are undeniable. In all of the discussions in the Houses, what has been absent is a recognition of what has truly caused that hurt, that is, a sustained and dishonest campaign of misinformation about what the Bill does. Every Oireachtas Member has received thousands of emails on this subject, including ones that were grossly misinformed because of discussions online and elsewhere, including the mainstream media, about issues that were not covered by the Bill. I do not know how many emails I have received from people criticising me for sealing the records of the mother and baby homes, a matter that is not addressed in the Bill. I have challenged other Members to point out where the Bill states we will seal those records. They have not been able to tell me because it does not. This is a short Bill that deals with the specific issue the Minister identified, that is, safeguarding the database created by the commission.

I welcome the Minister's comments on revising the time limits to be applied to information from the commission and revising what we will do to make that information available to people.

Everybody, in both Houses, recognises the importance of his doing so. However, if we are to be honest on this subject, we must recognise that there are parties out there, and in here, who have been involved in wilfully misleading the victims of these homes.

They have wilfully put out information that has deliberately caused upset, anxiety and hurt to the very people whom they purport, in this House, to represent. In fairness, some of those same people have acknowledged the Minister's good intentions in this. He has an honest and forthright approach and he has sought to do what is right. However, others have twisted that and taken what is in the Bill, misrepresented it and led the people they claim to represent up the garden path.

On a point of order, the Senator is making some very serious allegations about the conduct of certain people. He is not naming anyone or saying whether they are in this House or outside it but he needs to be careful where he is going in making allegations about people "wilfully misleading" or "deliberately" seeking to mislead. That is a very dangerous sort of allegation to make, especially in such a sensitive area. Many people feel very passionately about this issue and there are many people who have been wronged in it. It involves a history of wronging and shameful treatment of women and children. I know the Senator appreciates that we must be mindful of the context in which this debate is taking place. I advise him to be careful about his language.

I would like to add-----

Unless they are raising a point of order, Senators who want to intervene must ask the Senator who is in possession if they may do so.

I am raising a point of order.

I recognise the point Senator Bacik is making.

I want to point out that Senator Ward is talking about what is and is not in the Bill regarding the sealing of the records. We are dealing with proposals concerning the deposit of the records with the Minister. These provisions relate to where the records are going to go, which is what the Senator is talking about. I ask Members to be mindful of their use of language and of making accusations in the House, in this discussion or at any time.

I acknowledge what Senator Bacik said but it is really important to call out what has happened. She is correct that there are people who have been wronged. To be absolutely clear, I am not blaming any of them. There is a cohort of people, including those who have been through the homes, those who were born in the homes and the families and friends of those people, who have endured unimaginable suffering as a result of what happened in this State. None of that is denied and I do not blame any of those people. I blame other parties who have intervened. I can stand over what I am saying because of the more than 5,000 emails on the computer in my office. The vast majority of those emails - some 4,000, I would say - contain exactly the same thing because they came from a website that was generated to allow people to plug into it for that purpose.

On a point of order-----

Will Senator Bacik allow me to address what she said?

On a point of order, people are entitled to campaign-----

I have allowed Members latitude because we are under a time constraint and some of them may not get to speak. However, we are drifting into a Second Stage debate and people are making speeches that do not relate to the matter under discussion, that is, the deposit of the records with the Minister. What transpired in terms of emails to Members and all of that is not relevant to the group of amendments we are discussing. Any Member is allowed to intervene and I understand the points being made-----

I have already yielded once, a Chathaoirligh. I am not saying that there is anything wrong with sending emails. God knows we welcome emails. If Senator Bacik will allow me to finish the point I was making, it is that much of the information contained in those emails is deliberately misleading and inaccurate in terms of-----

I am going back to-----

A Chathaoirligh, I must be allowed to address the point that was raised.

The Senator is most welcome to address the House. He is in possession and other Members are raising points of information. However, my point is that we are discussing the first group of amendments, concerning the deposit of records with the Minister, comprising amendments Nos. 1 and 7 and Seanad Report Stage amendments Nos. 2 to 4, inclusive. I ask Members to confine themselves to discussing those amendments. I understand the points being raised. If Senator Bacik has a point of information, I ask that she make it now.

I will do so very briefly. This House is a democratically elected institution and we are public representatives. People are perfectly entitled to organise emailing campaigns. This is not the first such campaign and I am sure it will not be the last. People are perfectly entitled and, indeed, justified in so doing if they feel strongly about an issue. It is up to us as public representatives to respond to and call out the individuals who email us if we believe that what they are saying is wrong or we disagree with them. We certainly can do that but we should not be critical of them in this House.

On a point of order, there is a practice in this House whereby Members do not refer to persons or organisations outside the House in a way that makes them identifiable. In terms of specific campaigns run by specific organisations, I feel we have strayed into that type of thing. Several Members have expressed concern about whether the amendments they have put forward will be reached in the time available. We need to have a really clear focus on the amendments at hand.

That is the point I am making. I am asking Senators to stick to the subject matter of amendments Nos. 1 and 7 and Seanad Report Stage amendments Nos. 2 to 4, inclusive. Does Senator Boylan wish to raise a point of information?

I wish to raise the same point as Senator Mullen did. I am seeking assurance that we will get to the amendment I have tabled that is in the second group of amendments. If not, then I will speak to it now, seeing as Senator Ward was allowed to veer off into making accusations about people.

Senator Boylan is next to speak on the current group of amendments but Senator Ward remains in possession.

The point I am making is not to criticise people for emailing Senators or to discourage them-----

Sorry, Senator Ward-----

I must be allowed-----

I make the point, again, that we are dealing with the deposit of the records with the Minister. That is the provision in the Bill to which the amendments in this group relate. We are not speaking about emails being sent to Senators.

If a point of information or order is made against me, I must be allowed to respond to it.

Senators are making the point, validly, that the discussion must be confined to the amendments under discussion. They have made their point and-----

I am sorry, a Chathaoirligh, but they have also suggested that I am criticising people who send emails to Members of the Oireachtas. I must be allowed to address that point because it is not what I said.

The Senator has spoken on it-----

I am not criticising people for doing that.

-----but it is not relevant to the amendments we are discussing.

I will finish on this point. I am saying that there has been a visible campaign of misinformation in respect of what is in the Bill.

I will make the point one last time that Senators are to speak only on the amendments that are under discussion. The issue of emails being sent, if it was in relation to-----

I am going to finish the point I am making, which the Cathaoirleach has deemed to be relevant.

Only if it relates to the deposit of records with the Minister.

The point I was making is that there are issues in this regard precisely because there is a significant misunderstanding abroad, among people in our society, that this Bill does something that it does not do. I am saying that this misunderstanding is a result of information that has been put out by people which is incorrect.

The information comes from human rights lawyers.

That misinformation is a significant factor and a major part of the hurt and anxiety that has been caused in the first instance. I am calling it out because I think it is wrong, just as other Senators have criticised other aspects of the issue we are discussing, as they are entitled to do. There is a major problem of misinformation and we need to identify it. If we say nothing about it, it will happen again and we will allow-----

Senator Ward should issue a press release about it and allow us to get on with dealing with the amendments.

I will finish if people stop interrupting me. The point I am making is that if we do not call it out, it will happen again and again. It is important to stand up when one recognises that something is happening that is wrong. The point I raised is relevant to the amendments we are discussing. I welcome what the Minister said in terms of acknowledging that things can and should be done better. I welcome what he said about re-examining the availability of the records as they will be under the remit of his Department.

I will speak to the amendments but I will also defend the Clann Project, which is an admirable initiative, and the human rights lawyers who have been putting out the information about the provisions in this Bill. As a person from a legal background, Senator Ward, you should know that legal opinions differ. How dare you call into dispute other legal opinions and claim that the people voicing them are trying to misrepresent what is being sought to be done in this Bill?

Sorry, Senator Boylan-----

It is important to call the Senator out and to defend the rights of people to email us.

The Senator must address her points through the Chair. If she has an issue with what a Member has said, there is no problem in raising it but it must be done through the Chair.

I will make my point through the Chair. Senator Ward said that bodies such as the Clann Project orchestrated a campaign.

He was not brave enough to name the organisation but that is who he is talking about.

The Sinn Féin amendments are a final attempt to facilitate the Minister to do the right thing by providing survivors and other individuals affected by this investigation the right to access all the information that pertains to them in the archive. Under the Minister's amendments, the records will remain sealed. The issue is not about sealing them. The issue is that this legislation does nothing to unseal them. The only information that will be accessible to those affected is the limited database that is going to Tusla. Survivors are fundamentally opposed to that body holding their information.

I listened intently to the Minister in both Houses and heard him refer to the Attorney General's advice to which he is bound. According to the legal expert with whom I have spoken, he is not bound by the advice of the Attorney General. It is advice. Putting that aside, let us consider the advice allegedly given by the Attorney General, namely, that the right of access to personal data set out in Article 15 of the GDPR is expressly prohibited by section 39 of the Commissions of Investigation Act and that Article 23 of the GDPR provides for exceptions in a range of circumstances, including those relating to the administration of justice. Other Members said that national law cannot override EU law, particularly that which is derived from the EU charter. The Minister stated that section 39 exempts the records from Article 15 requests; it does not. In fact, it does not even mention Article 15 because it could not unless it had a time machine and could see into the future. The Commissions of Investigation Act was passed in 2004 while the GDPR was passed in 2016. Instead of section 39, to which the Minister is clutching tighter than a string of pearls, it refers to the Data Protection Act 1988, which was almost completely repealed with the exception of two Acts that can still rely on it. The Commissions of Investigation Act is not one of those. If the advice to which the Minister refers is the advice of the Attorney General, he is doing some serious mental gymnastics to make his case. I will quote Simon McGarr, who is probably one of the people Senator Ward is calling into question. He is the director of Data Compliance Europe. He stated: "This is deep into what might be termed 'novelty'."

The Sinn Féin amendments facilitate the Minister to do what he would ordinarily do in response to requests for personal data in the commission archive once it is sealed. It give him the "out" from the legal cul-de-sac into which he appears to have led the Government but, more fundamentally, the amendment is a final attempt to respond to the heartfelt appeals from the survivors, their families and human rights lawyers to ensure they have access to all of the documents that pertain to them. I cannot fathom what it must be like for people to know that there are documents about them, their brutal experience at the hands of these institutions and their families and lived experience, and that after everything the State has put them through, it will now put those most critical documents into a box and put them away from them. I cannot get my head around the fact that the Government would even contemplate this after everything this State has done to those women. What we are doing with this Bill is creating a situation whereby victims and survivors of forced family separation must take the State to court to access the documents about them that it is holding. That is some legacy for this Government - dragging older women through the courts.

That is not even touching on the broader issue relating to the archive, the index and the concerns of archivists regarding discrepancies in how the commission references its sources, including giving only one-line references for multi-decade tranches of files. The manner in which this Bill has been brought through the Houses has retraumatised the survivors. This is not being done by those calling on them to appeal to the legislators to listen to their voices. It has been brought about by the manner in which the Bill is being fast-tracked and in the way it is being handled in these Houses. There is no excuse for that.

Can the Senator keep within the amendment?

I am keeping within the amendment.

Yes, but fast-tracking is not the amendment.

The survivors of mother and baby homes have been repeatedly treated with contempt by this State and the Minister is asking us to trust that he will fix this at some future date so that there will be access to the documents. Why would survivors trust the State? They have been let down at every single point. In December 2018, the Collaborative Forum on Mother and Baby Homes requested that health and well-being resources be put in place. In April 2019, the former Minister, Katherine Zappone, committed to giving them. In December 2019, the former Minister for Health, Deputy Harris, said that they would be rolled out in January 2020. It is October 2020-----

With respect, that is a Second Stage speech.

I will finish on this point. In October 2020, it was confirmed by the Minister for Health that none of those resources have been rolled out. The State said that survivors must join the back of the queue after Covid so why would survivors trust the Minister for Children, Equality, Disability, Integration and Youth when they have not even been afforded counselling for which they asked back in December 2018?

We must stick to the amendments to give everyone a fair opportunity to speak on them.

The Sinn Féin speaker clearly has a well-rehearsed script. I will stick to the amendments.

I am not impugning Senator Fitzpatrick.

I was not taking the Chair's comment that way.

I welcome amendments Nos. 1 and 7 from the Minister. When this Bill was introduced to the Seanad, I was critical of the Government's approach in fast-tracking the legislation. It is not how we should do our business. I accept the urgency. Survivors have been waiting five years for the commission of investigation to complete its work. It has indicated it is ready to complete its work and provide the Minister with a report next week. Every single one of the survivors deserves to have that report furnished to him or her and made public as soon as possible. I support the Minister and accept his apology, which is heartfelt and sincere. We are all learning on the job. It was unfortunate for the Minister and the Government but, most importantly, for the survivors, their friends, families and supporters and everybody who has campaigned for them and, therefore, the apology was appropriate and welcome.

When the Minister brought the Bill to us, I said that we live in a era of data. I do not want to in any way reduce the enormity of this history to a discussion of data but that is what the Bill is about. I specifically asked the Minister to ensure that one entire unredacted record of this archive would be kept in one place because the original proposition was that the archive would be sealed and the database transferred to Tusla. Critically, the Minister's amendment seeks to ensure that one entire unredacted, unedited and untouched record is retained in the Department. I do not think it is a small database. I have not seen it. I do not know. I have heard others say that it is a small database. I do not think it will be an Excel spreadsheet with a number of lines. My expectation is that it will be a database that will document records of more than 60,000 individuals over 75 years of records and data. That is not a small data file. That is not something insignificant. That is very significant and precious, which is why I would like the Minister to tell me the format in which it will be secured and how it will be secured because data are fragile. That is important. It does not necessarily have to be captured in the legislation but I want to understand the format in which the records, documents and database will be deposited in the Department and how they will be secured. I also want to know what the process will be in the interim because we do not have the information and tracing legislation required. What will be the process be until such information is in place for individuals to be able to make requests for their personal data?

I also support the Minister's amendment that will allow those who contributed and gave evidence to have that evidence released. That is very welcome and something else we had sought. He has said that if we pass this legislation, the commission can report. There is talk of the report being in excess of 4,000 pages with an anonymised index of 80 pages. This is incredibly valuable but once that report is available, it must be made public because, more than anything, there are many sides to this and many lived experiences.

In Dublin Central there were a number of these institutions. I know many of these survivors and I know that people have different ways of dealing with history and their past and of wanting to reclaim it and reclaim their identity. More than anything, however, I think that, collectively and individually, they want to be heard. They want their voices to be heard and their story to be told. Therefore, when the report of the commission of investigation is completed, I want the Minister's Department to make it public. I want it to be made public online and deposited in every library in the country. It will be part of our history. It should be made available to all our citizens. I have asked the Minister this before but I will not end my contribution without mentioning again the need for an archive. I heard him talk earlier about the State moving to having a victim-centred approach.

We are beginning to stray from the amendments.

I will finish then.

For all our sakes I am trying to keep to them.

As for the establishment of an archive, Sean MacDermott Street is an ideal site. The site was given to the State, intended as a repayment. I would like the Minister to speak on that before we finish the debate today.

Again, I exhort Members, in fairness to their colleagues and in order that every colleague will get in, to keep their contributions tied to the amendments.

I welcome the Minister. I have been asked that the Government take a survivor-led approach to this. The Minister's comments today show that that is what he will do from now on. Generation after generation has been let down by the State imposing its will on people. I thank the Minister for his comments on that.

To speak directly to the amendments, the Minister has shown he has taken on board what the Senators raised with him last week and also what has been raised with me by phone, email, text and letter. I have not been able to respond to all the correspondence I have received but I have done my best to listen to it.

GDPR is raised in some of the amendments. Senator McDowell put it best: GDPR applies whether or not it is referred to in the Bill. We must not forget that. Therefore, for the moment, it is not necessary to refer to it in the Bill on the basis that the Minister has asked the Oireachtas Joint Committee on Children, Disability, Equality and Integration to examine the issue. That is the point about GDPR. Others have made it better than I have made it with their legal background, particularly in the context of the legislation from 2004 and 2015, and I thank them for that.

From the Green Party's point of view, we are newly in government, faced with a difficult situation that was urgent. It is really important to say, however, that there is no mention of sealing of data in the Bill. I think people have been re-traumatised in the past week by misinformation. Whoever's fault that is, it is a fact that has to be acknowledged. Now we all need to be on the same side and the same team, not against one another, and we need to take the word of victims and survivors and use that as our basis for moving forward.

I welcome the Minister. I take on board the amendments tabled by our Seanad colleagues. The database is what it is all about. It is being protected. The fact is that it can be used by Tusla and that the social workers will be able to access information in the database to provide it to families looking for that information. As for the question of GDPR that my colleagues have raised, the database that resides with Tusla, from what I understand, comes under GDPR. In other words, GDPR applies to the database that is with Tusla. Will the Minister confirm this?

We are about justice. I really hope the report will be published as soon as possible. Justice for the survivors is what we all want. We want that report as quickly as possible. Are there any timelines in that regard?

There were a very significant number of contributions, so I will try to address the key points made by the various Senators. If I slip into repetition at all, I apologise.

Senator Black read a very powerful letter from Councillor Timmons about his fear that what happened is being swept under the carpet. I absolutely acknowledge that, but that is the absolute last thing I want to see happen as Minister. It was stated that the Bill will seal records. It is really important to state that the Bill will not seal any records. The consequences for the records arise from the original Acts of the 2000s, not from this Bill. I would not bring before this House a Bill to seal such records. There are great questions over the 30-year rule. I would like to put that on the record, with all due respect to Senator Black and her correspondent.

Senator Bacik in her comments raised the issue of publication without delay, which was raised by many other Senators. Once the report is issued to my Department, it has to be reviewed by my Department and by the Attorney General and then, subject to a Government decision, it will be published. I think I said this the last time I was here but I will say it again. I have said it in the Dáil. It is my intention to publish this as quickly as possible. I cannot give a timeline but I am conscious that survivors have waited a long time. My haste in trying to get this Bill through was on the basis of not delaying this further but ensuring we make this report available to people. That is my commitment: as soon as possible we will get it published. I think that what will be valuable will be not just the content, not just the 4,000 pages, but also the recommendations that the three commissioners will include in the report. I am conscious, however, and never more so than after the past week, that its publication will be another incredibly traumatic event. We have spoken this week about re-traumatising, which I have acknowledged. This will be a re-traumatising event. I therefore absolutely take on board Senator Bacik's and Senator Boylan's points about the need to support organisations that will be the front line for the people most affected by the issues that will come up in the report. I do not have detail on that right now but I will make a note to address it and between my Department and other Departments we will be ready for that when it comes.

In response to Senator Higgins, in particular to her amendments, yes, GDPR applies to my Department and, yes, I am the data controller for the archive. We have had substantial engagement with the Attorney General on this point. That engagement has focused on section 39 of the 2004 Act. It is worth remembering - Senator Higgins read out to us most of the text of section 39 - that it is a strong exception. I know the extent to which the balancing is-----

It is not an exception but a restriction. That is a very important clarification given that the word "prohibition" was misused earlier.

I take that on board, but it is worth stating that the amendment came in following the introduction of GDPR. That is important. Section 39 was amended in 2018 to deal specifically with the introduction of GDPR.

In light of that, the Attorney General has stated that I am bound by that as data controller and by the revised section 39 on responding to data access requests. I do not see that it is morally feasible that my Department can continue to refuse data access requests, specifically for personal information, as we go forward when this archive comes over. I have to deal with the legal interpretation that is given by the Government's legal adviser. We need to fix this problem. I repeat what I said in the Dáil yesterday, namely that I am committed to fixing that problem. I have agreed with the Attorney General that we will sit down and tease through the various issues but I suggested in the Dáil that we use the Committee on Children, Disability, Equality and Integration to bring in the experts, many of whom the Senator cited, to explore the alternative interpretations. I envisage that we would not just bring in the experts but representatives of survivors as well so the need to provide for access to this data is expressed within the House and then I can move. I was asked by a number of Senators what I will do. I do not know today what I will do. We have this legal advice and I have what I and most Senators believe is the right thing to do so I have set out a course of action and that is how I propose to act on this particular issue. We can pass this legislation and then move on to this one process of moving on and dealing with some of the consequences that have been raised. Senators Boylan and Warfield raised the issue and I accept that there will be litigation stemming from a complete refusal to give access to the data. We will have the consequence, as was pointed out, that people will be dragged through the courts in appeals at various stages and I do not want to see that happen. We can find a resolution to this particular issue. I do not profess that it will be easy but we can find a resolution to the issue that faces us.

I thank Senator McDowell for his comments. As I look at the situation, I agree with the Senator's comments about the inappropriateness of a commission of investigation for investigating what happened in the mother and baby homes. As I say, however, we have to deal with the situation as it stands. I have responded to the points made by Senator Doherty about the application of GDPR, particularly section 39. On Senator Seery Kearney's question on what can be done, I have outlined what I have proposed to do, specifically on the issue of GDPR. I have addressed Senator Boylan's comments.

Senator Fitzpatrick asked some specific questions about what format the material will come to Tusla and to my Department. As we know now, my Department will be getting the entire archive and Tusla will be getting the database and copies of the relevant records. My understanding is that there will be both electronic and paper copies within what is being transferred, particularly within the archive. There will be significant paper copies within that as well. My Department has already done an initial DPIA and I know Tusla is undertaking one. We are also in continued engagement with the Data Protection Commissioner because we know this is a significant consignment of material in different formats. Therefore, we will continue to engage and to seek advice about the management of that where we feel need to do so. We are conscious of the importance of this material.

That leads me on to the issue of archiving, which Senator Fitzpatrick and other Senators raised. Again, the debate over the last two weeks has highlighted the need for a sensitive way in which material can be stored appropriately as well as be curated to an extent. A number of Senators have referenced the approach taken in Germany with the Stasi Museum as a potential model whereby there was a divisive period in a nation's history with confidential and personal information contained in files. The German State made a decision as to how to approach that. I do not know a huge amount about it yet but it is something I need to look into in more detail. The idea of a permanent location has been mentioned, and the CoLab project on Sean McDermott Street has been cited in that regard. I had a presentation about three weeks ago with Dr. Maeve O'Rourke and Deputy Gannon in which the ideas for that were outlined. Those ideas are definitely interesting. I cannot make an absolute commitment on it today.

Our focus has been on the mother and baby homes archive. There are other archives. There is the archive of the Ryan commission, which was a source of considerable debate in the previous Oireachtas and which was not resolved. There is the McAleese commission as well, which is another detailed archive. These archives are in a legal limbo to a certain extent and that is not appropriate either. I know the term "all-of-government approach" is overused but these issues are not just for the Department of Children and Youth Affairs. They are issues that stem from other Departments as well. Whereas the legal basis for the investigations differ, some of the broad principles about the sensitivity of the material that these investigations addressed and the desire among those who were victims to access that information, are common across them all. As I said at the start, I have committed to that and I will be engaging with the Taoiseach and my ministerial colleagues. I had a quick conversation with the Minister for Education and Skills yesterday to get a sense of her situation with the Ryan report. That is ongoing work but I am convinced of the need for an archive. If we can do that and combine it with some sense of memorialisation, that may be where the Sean McDermott Street site would be appropriate. We could have something like an archive commemoration but perhaps there could be some societal and community gain in the area as well. That is an attractive package and it would be one element of an appropriate memorialisation of everything that has happened.

I call on the Minister to speak to the subject matter of amendments in group 2, that is, amendments Nos. 2 and 10 and Seanad Report Stage amendments Nos. 1, 11 and 12. I invite contributions.

On a point of order-----

I apologise to Senator Mullen. The Minister is to come in on this initially.

Dáil amendments Nos. 2 and 10 enable the commission to remain in existence beyond the submission of its final report. This is for the purpose of engaging with people who attended before the confidential committee in order to allow them to state their preference for anonymity where that is their wish. As such, the amendments are effectively consequential on amendment No. 9, which provides for this process of engagement. The amendments have the practical effect of separating the submission of the final report from the commission's dissolution in law. Crucially, this will allow the commission to remain in being until 28 February 2021. This will enable the commission to engage with those people who courageously contributed to the confidential committee process.

I will empower those people to decide on whether their stories, as captured in the archive, are anonymous. The approach proposed will ensure this can be done without delaying the submission of the commission's final report. As Senators will be aware, that is due on 30 October and the commission has indicated it will be ready on that date. Accordingly, as I have stated previously, this is why the urgent passing of the legislation is needed. It is my sense that we need to ensure that the commission can conclude and submit its final report at that stage to begin the process whereby it can be fully published.

The amendments have been brought forward following the debate in this Chamber and I hope they are seen as an acknowledgment by me of having listened to the issues flagged here. I accept there has been a heated debate on the issue in regard to the very strong desire of some people to have their names clearly associated with what they said, versus the desire of others for whom it had taken a great deal to go before the confidential committee and who never wanted any permanent record of their names with their contributions. I believe we have struck a fair balance in what is being proposed and by giving the commission additional time, following the submission of its report, to contact people who appeared before the confidential committee.

I welcome the amendment because the extension of time to delay the dissolution of the commission, if not the report, flows directly from the Minister's effective acceptance of the amendment proposed by Senators McDowell and Boyhan in respect of the issue of redaction. Having listened to the Minister, I know he has a very challenging task in his Department. These are very challenging issues and I wish him well in addressing them. When he was describing his Ministry, it occurred to me, in light of some of the challenges he may face, that it might be better order if the Department were named the Department of disability, integration, children, equality and youth, which would make it dicey.

What also strikes me as dicey, however, is that we will, according to the Cathaoirleach, quite likely get to the end of the debate without some or all of the amendments having been capable of being moved. If the Minister and the House were amenable, it would be good to get his response to those various amendments. My amendment, as he will know, also concerns redaction and has to do with an issue that I drew to his attention on Friday last. By nodding his head, he indicated he would consider it. I was disappointed that an amendment was not brought forward in the Dáil to address what I regard as a significant justice issue. The Minister rightly considers it appropriate to provide that those who went before the confidential committee in the expectation that what they were saying and presenting would be treated in confidentiality, and that the commission notify them and give them the opportunity to have their personal data redacted, hence the delay in the dissolution of the commission, which is the subject of these amendments.

By the same logic, it is appropriate that the same right be afforded to third parties that might be the subject of allegations that would be damaging to their reputations and that were made in that confidential forum, not least because given the nature of the work of the commission and its confidential committee, certain claims could not be tested. That is nobody's fault and the nature of the work would require that, but it seems as a matter of justice that in identifying personal data relating to third parties named, where their reputations could be damaged or where families could be hurt or aggrieved down the line, a similar redaction should take place. Speaking to my amendment, I would be grateful if the Minister addressed that point before we get to the end of today's business.

I thank the Minister for his very considered response to comments made by many of us in respect of the first group of amendments. In particular, I thank him for his response to my comment about the need for supports for those who will be affected by the publication of the report and the organisations supporting them, and for his commitment to ensuring that enhanced supports will be made available, which is important and good to hear. I also thank him for his positive comments on the archive and the securing of access.

It has been a constructive debate, as the second group of amendments reflect. As the Minister stated, the Government amendments are consequential to the debate in the House last week, which is very positive. It is unfortunate that one Government Senator chose to adopt a confrontational tone in impugning the motives of people who had expressed opposition to the Bill because, generally, it has been a very good debate in the House.

Having said that, we remain critical of aspects of the legislation. Through Dáil amendments Nos. 2 and 10, the Government seeks to provide that the commission shall not be dissolved until 28 February 2021. That raises the question I asked earlier as to why there was such urgency with the Bill and the need for it to pass all Stages, to be guillotined through the House and to be enacted by 30 October. Although the report will be published on 30 October, we are now providing that the commission itself will not be dissolved until 28 February 2021. Would that not always have been a better approach to take, to give us more time to debate the issues and to enable a clearer explanation of the context for the Bill being put forward? It is unfortunate, although we will not object to the extension of time for the commission to carry out the work that will be provided for now in establishing the agency of those who gave evidence to the confidential committee. I will not oppose that extension of time but the amendment highlights that the time could have been extended before now, which would have meant we would have had appropriate time for proper parliamentary scrutiny of the Bill, rather than having it rushed through the Dáil and the Seanad in the way it has been. That is an obvious point to make when considering amendments Nos. 2 and 10.

On behalf of the Labour Party Senators, I support Senator Higgins's amendment No. 1, which seeks to do what I have just described, namely, to provide for a longer date, specifically to the end of January. I will also support amendments Nos. 11 and 12, put forward by the Sinn Féin Senators, which were also signed up to by the Labour Party Senators on Committee and Report Stages last week. I acknowledge the amendments have been addressed by others and we have spoken to them in respect of the data protection law aspects and of the application of the Data Protection Act.

It is unfortunate that we are rushing the debate and that we may not get to other amendments. Nevertheless, I wanted to put on record my views on the amendments in the second group.

I thank the Senator. Given that it is such a respectful, controlled debate, Senators might exercise their own judgment on being brief in order that everyone will get involved and every amendment might be reached. That is purely up to Senators and there is no way for me to stop them, but they might show deference to colleagues in that regard.

I have a query for the Clerk. I have been trying to find out the information from my office but have not yet heard the answer. The Chair is due to pose the question to pass the Bill at 4.45 p.m. but we are not due to start the debate of the Health (Amendment) Bill 2020 until 5.30 p.m., which gives us 45 minutes. Can we extend this debate until 5 p.m. or 5.15 p.m. to give colleagues an opportunity to get to amendments that we are not likely to reach if I keep rabbiting on?

It is at the Senator's discretion, as Leader of the House, to make such a proposal, which will then be put to the House for agreement. Does she wish to propose that?

Yes, I would like to. I propose we continue with the debate and not put the vote until 5.15 p.m., if that is acceptable to colleagues.

Is that agreed? Agreed.

We are on the Minister's second amendment, which compels the investigation to give us a report by 30 October, and give an extension before it winds up, until 28 February 2021. The Minister's response to me on the amendment in the previous section was that he is going to rely on amendment No. 15 to not give information to data subjects on the basis of an amendment. That amendment applied to the workings of the commission whereby they were refusing information to data subjects on the basis of the necessity and proportionality to safeguard the effective functioning of the commission. The commission is to be stood down on 28 February 2021. What basis is the Minister going to use in the Department to refuse data requests from people after 28 February 2021? If the Minister is going to continue to refuse the data set, as he said he would, even though he knows it is morally wrong, what will the Minister give as a reply to people when they make those requests? If it is anything like what is being given by the commission, it makes a real insincerity of what we are doing here today.

I have an amendment within this grouping. I completely agree with the points made by Senator Doherty. It is, and remains, the nub. The Minister has described a process that he will put in place but there is also a process of the data protection impact assessment, DPIA, where the Minister needs to look to how he as data controller, not the commission, will deal with the documents. The Minister is the data controller of these documents, not the commission, the information within which belongs to the persons. The impact assessment would also need to look at the rationale of the impact on the process, or even the reporting, of the commission, which will have passed and not be relevant after that point on 28 February. The Minister mentioned a process but I believe that we need to clarify that this will involve a DPIA and that the consultation would feed into a data protection impact assessment.

I am trying not to be adversarial, and I do not seek to embarrass the Minister or anybody else, but the really crucial thing is the idea of fear being created and so on. It was created by the use of the language of "sealing", which was used by the Government. I have multiple instances of that. Yes, the language said that it was not sealing under this Act, the caveat being that it is to seal under the 2004 Act and that we are trying to get around that. The language of "sealing" was used. I agree that the information is not being sealed under this Act. It is not sealed under the 2004 Act, even as amended. These files will become an archive. Right now they are just a set of documents, a set of relevant records and a database. All of those documents are not under seal. As Senator Doherty has said, it is not an exemption. It is telling that the language was used again in terms of the strong exemption. It is not, as was quoted, a prohibition. It is a restriction, subject to very tight caveats. The tightness is on it. If it was a blanket provision or a blanket measure, then section 39 would be illegal and would be struck down as being incompatible with our laws. The case law referred to by Senator Seery Kearney has shown increasingly that one cannot have a blanket provision or measure. That is not allowable or acceptable. If section 39 was to operate in any sense as a seal, a prohibition or an exemption, it would not be eligible law. If it is to serve as a balancing act, as described, then it needs to be subject to appropriate balances and checks. I put it to the Minister that the circumstances will have changed significantly because, as Senator Doherty pointed out, there will no longer be a commission in play on this issue. That commission will be concluded. I acknowledge the Minister has engaged positively with that debate in the last session between Senators McDowell and me and others on how we might appropriately reflect the diverse wishes of those who engage with the confidential committee. Given the amendments in this section the Minister has put in place in respect of redaction, there will have been an action that asserts those rights of persons. They will have been able to redact themselves from those documents. Again, the balance will certainly shift, in that context, when the commission has finished its work and when persons who have a particular wish to be confidential will have had themselves redacted from the documents. I put it to the Minister that it will be extraordinarily difficult to say that by giving people pieces of personal information about themselves, their family, their early life, their health or their name when they were born, it would somehow damage the operation of a future commission. That would be an extremely difficult thing to prove. Nobody wants us proving this in court. That is the key.

The Minister has said that he recognises the Minister as the data controller and is wrestling with this Attorney General aspect. It is the Minister who is the data controller, not the Attorney General. The Attorney General can give advice. That advice can be on the constitutionality or the advice may state that this may be challenged. Constitutionality is one issue that does not arise here. If the advice is that the legislation may be challenged, that is a different piece. The Minister needs to look into this robustly. I believe that the Minister will end up in a different situation in terms of that original advice but I wish the Minister had taken the step now. Senator Boylan's amendment No. 11 is better than my amendments, in that it is really clear. It was a chance for the Minister to make a decision on what he wanted to apply, much as in 2018 when the then Government chose to amend the 2004 Act. The Minister was completely free to do so. If section 39 deals with the administration of requests and Article 15 rights, there is nothing to stop the Minister from choosing to not apply section 39 for this specific commission. That could have been done legislatively and it could still be done if the Minister accepts amendment No. 11. Instead, the Minister will end up doing it with a slightly more difficult process. I would like the Minister to be a little bit stronger and clearer around the fact that he will not be giving blanket provision and blanket replies to people who make data subject access requests. That is a real concern.

My amendment is about changing the date and delaying the date of the report, which I do not want to do and I will not press the amendment. I proposed the amendment because I am concerned that the sixth interim report has still not been published. We are going towards a date for the publication of the final report, and we have seen the seventh interim report, but the sixth interim report has not been published. I am concerned about what is in that report and why it has not been published. I do not want to see that kind of delay. I believe it was concluded nearly one year ago in January and has not yet been published. We do not want to see that delay in the commission's report. I proposed my amendment to give space for the interim report to be published and then the final report. I will not press the amendment but that is the concern.

The conversation we had last week in the Seanad was specifically around this issue relating to the Government amendments Nos. 2 and 10. Their specific purpose is to address the concerns Senators have raised. Senator Ruane spoke to this issue incredibly well and powerfully last week. In the terms of reference and in the leaflet that was given to those who came before the confidential committee to tell their stories, people were not asked if they wanted their names to be kept and for the public to be able to see and identify what had happened to them. The Minister felt that this lack of agency was an injustice. These two amendments would provide that those people who do not want their names attached to their stories will be able to ensure that this does not happen.

Those who do also will be able to ensure that this happens. It gives people a sense of agency that they did not have. An awful lot of other things in respect of agency are not being addressed here. That is very clear and is why this is the start of what will be a long and difficult process for many people in this country. That is why that date of February is there. The commission will publish its report at the end of October. That is what it said it is going to do and it has not looked for an extension. That period of time is there in order that everybody can be contacted and be allowed that sense of agency. These two amendments are welcome and they achieve what the Seanad was asking the Minister to do.

The aim of invoking the workings of either the present commission or future commissions is immaterial as grounds for withholding information or not applying GDPR. In my view, GDPR qualifies and makes conditional both the National Archives Act, to some extent, and the 2004 Act because the provisions of those Acts have to be interpreted in a GDPR-compliant way, even though the GDPR makes provision for archives and the like. I am not absolutely clear how GDPR would interact with other statutory provisions, except that it is the law in Ireland now and a statute law has to be interpreted as conformable with GDPR.

I refer to the Minister's amendment, which would wind up the commission at the end of February. I always accept the rulings of the Chair. However, I submitted an amendment on Committee Stage to extend the commission by a few weeks and the Standing Orders of this House meant that the Chair felt obliged to say that it could have the effect of increasing the charge on the Exchequer. Therefore, it was ruled out of order. I just want to draw to the attention of the House to the fact that that provision in the Standing Orders is badly in need of reform.

It is very unsatisfactory in such a situation, where one wants to extend the life of a commission with a view to creating more time, to be told that because it might cost the Exchequer some money we cannot even discuss the idea or raise the issue on the floor of the House. Senator Norris has been very strong on modifying that rule and it would require an interaction between the Dáil and the Seanad because it has implications for money messages and things like that. In this House, it seems a ridiculous constraint on our debate, especially since my amendment was only ruled out of order because it was an amendment to a Government Bill. If I had introduced a Bill to achieve the same thing, that is, to extend the life of the commission, it would have been perfectly permissible for us to debate it in Private Members' time. It is a strange aspect of our procedure here, to which the Committee on Procedure and Privileges will have to return. We need a more balanced approach to these kinds of matters.

These amendments are welcome. They are a response to the amendments that were fought over and the debates that occurred in this House. I accept that there is a need to extend the commission's life to 28 February. I am curious as to how the groupings worked on this because I would think this should have been discussed with amendment No. 9. As I understand it, the purpose of the extension is for the commission to write to the contributors to the confidential committee, in order that they may exercise their agency and decide whether they wish to be redacted or named. I will come back to that as I have a difficulty with whether one opts in or out. As the Minister previously mentioned, I had the same curiosity about that. Maybe I am missing something here but if the report is issued on 30 October and the intervening period until the end of February is given to allow people to have their names included or not, are we going to end up with two reports? How is that issue being overcome? Will we then lose the intervening period due to the report going to the Attorney General and its publication and all of that? As a consequence of this amendment, will we lose the period from October through to February? I would appreciate clarification on that question.

Eoin Wilson in the Minister's office has been fantastic in chatting through some of the issues with me. I am anxious about what happens with the report. First and foremost, it should be an exposure of our society and the people who were victims of our society and State throughout a particular period. Its purpose should truth-telling in the first place. We must acknowledge the journey and hardship that has been imposed on people, as well as our society's attitude and what we tolerated, thought was okay or did not even think to question. That would be significant in and of itself. I also want the report to lead to justice being served and for it to be forwarded on. In that context, and this may go to Senator Mullen's question, it is my understanding that anyone who went before the confidential committee was given the same warning given at the beginning of any counselling session, that if what the person said engaged trial protection, the commission will be obliged to take action on it. That is my understanding but perhaps the Minister could confirm that for the benefit of the House. It is also my understanding that some matters have been referred to the Garda Síochána and that names have been attached to them. It would be beneficial to hear about that in the context of Senator Mullen's comments.

I have a quick question about these amendments. When survivors who have given testimony to the commission are contacted about whether they want their records redacted, will they also be provided with a copy of their testimony at that time?

Will the Minister comment on the announcement and findings by the Data Protection Commission regarding the application of GDPR to the archive? The commission observed that, apart from a database which is being sent to the Child and Family Agency, Tusla, the records will be sealed for the next three decades. The Data Protection Commission provided a number of observations on this. According to an article in The Irish Examiner, Deputy Commissioner Graham Doyle stated that "the 2018 Data Protection Act, itself drafted in order to enact the EU’s powerful General Data Protection Regulation (GDPR) within Irish law, 'explicitly amended' the 2004 Commissions of Investigation Act so that 'any restriction on the right to access personal data processed by the Commission can only be implemented 'to the extent necessary and proportionate to safeguard the effective operation of commissions and the future cooperation of witnesses'." Mr. Doyle said "It would appear to the [Data Protection Commission] to be the case that the separate provisions of the 2004 Act in relation to the sealing of documents were not intended in the context of the amendment to the 2018 Act to provide an effective ‘blanket’ barrier to the exercise of rights". Does the Minister want to respond to this information, which is just breaking in a report in the Irish Examiner today? The Data Protection Commission is saying that the Government is breaking the law by sealing the mother and baby homes records.

I welcome the redaction part of the legislation that the Minister has taken up from Senators Boyhan and McDowell. What happens to the data of an individual who gave a testimony to the confidential committee and is now deceased? Does any individual named in that testimony have access to that data? Are such individuals contacted? How will the victims be contacted for opting in and opting out, and the sensitivity around that?

In response to Senator Boylan, I have not seen that report or what it has commented on, so I am not in a position to comment on it. I have been here with the Senators for the past period of time.

Senator Bacik made the point that we are putting a delay in this Bill and the consequence and asked why not delay originally. Since coming to the Department my sense was that, for legitimate reasons outlined by the commission of investigation in its interim reports, this report had been delayed for too long and my goal was to ensure that the final report could be published. It was suggested in the Lower House that perhaps I had asked the commission. It is a statutorily independent commission and I do not know if it would be appropriate for me to ask it to take longer, particularly when it indicated it was ready to report on 30 October. The delay we provided for can only take place if this legislation is passed. The sole purpose of that delay is to allow engagement between the commission and those who attended before the confidential committee on the basis of the personal stories they told.

That ties into the question asked by Senator Seery Kearney as to whether this impacts on the final report. It does not. First, there are no names of the people who gave personal stories to the confidential committee in the final report. Second, the redaction, where that is chosen, only takes place in the context of what goes into the archive. The final report can be given and the relevant redactions can take place, where necessary.

Senator Keogan asked about when a person has been deceased. We engaged with the Attorney General on this point. The decision was made that the approach taken would be to opt into redaction, rather than opt out of it. That was taken on the basis of the understood status quo of the 2004 Act and the terms of reference of the commission of inquiry. Where somebody is deceased, it will not be possible to redact the person's name from the person's testimony. Again, that was a decision based on the best approach. We have discussed whether opt in or opt out was better, but that was the determination in light of advice from the Attorney General.

As regards the potential reference to third parties in somebody's personal story to the confidential committee, and this is a response to what both Senators Mullen and Seery Kearney said, it is worth remembering that personal stories were not sworn testimony, whereas when the person appeared before the commission it was sworn testimony. The Department engaged with the commission on that and it said, in accordance with its rules and obligations, the personal stories do not contain the names of third parties where criminal allegations were made. If in the course of an engagement between an individual and the members of the confidential committee any allegations came up, at that point they were notified immediately to the Garda. It is a little like what the Senator said in the context of counselling. The engagement with authorities took place at that point. I understand the commission has fulfilled its terms of reference and rules of action as regards where an issue of criminality came up in the context of a discussion in front of the confidential committee, and it was referred on. Obviously, if something happened before the commission that was sworn testimony, the commission was in a position to summon the other person. That will be referenced within the report.

Regarding GDPR and the contributions of Senators Doherty and Higgins, my Department will hold the entire archive from 28 February. I have been working on the basis of advice from the Attorney General regarding the restriction that was placed on us by section 39. I have undertaken enhanced engagement with the Attorney General on that, because I do not wish to be in a position where we are offering blanket refusals. I do not want to do that. We have engaged with the Data Protection Commissioner in the context of the impact assessment. We circulated that to Senators earlier in this process. I do not have the full answer to how we will address it today, but I have set out the process and I am determined because I believe many of the issues relating to access to personal data, in particular, could be resolvable in the context of GDPR.

Senator Ruane asked me a question which I noted but I cannot find it.

It was about when survivors are contacted and whether they will also be provided with their testimony at that time.

Not under the amendment I have tabled. I hope that is something we can address in the wider scope of things, but I am not able to provide for that today. However, I recognise that it is an issue.

The next group is definitions, subject matter of amendments Nos. 3 to 6, inclusive. Two Members were indicating their wish to speak in the following order, Senators Gavan and Mullen.

I will try to be brief. I have to follow up with the Minister on this section. As this debate takes place, we are learning that the Data Protection Commission was asked for and gave information to the Department regarding the legality of the Bill. I have a simple question. Can the Minister tell us what the commission's observations were? If not, he must explain to us why he does not know them.

This arises out of what the Minister just said. He helpfully addressed one aspect of the amendment I tabled. It related to information that might serve to identify any third party, living or deceased, who was the subject of any untested or unproven claims and allegations contained therein, where such claims or allegations concerned an illegal act or would otherwise in the view of the commission be injurious to the reputation of any third party. I proposed that redaction would be required in respect of such claims or allegations. The Minister clarified that, where the commission in its confidential committee phase received any allegation concerning an illegal act, there would be a redaction without prejudice to what else it might have had to do in respect of notifying authorities.

What is to happen where there is other information not relating to an illegal act? When drafting the amendment, I was thinking of a very unjust possible situation.

To put it in a real-world scenario, let us say that a person was named as being the parent of a particular baby. That might be disputed and it could cause hurt to future family members and so on. It does not necessarily involve claims about illegal acts. I would be grateful to know the Minister's view - and what the commission would do - regarding circumstances where somebody was named but where this was injurious to his or her reputation but did not necessarily relate to something illegal.

This group of amendments relates to the application of data protection regulations but, as others have said, it is of genuine concern that there are reports that the Data Protection Commissioner has expressed serious reservations about the effect of the 2004 Act and stated that, as a result of its application, we will see effective sealing for 30 years. I am conscious that the word "sealing" is loaded but the reality is that this is the effect for survivors, who will not have access to their personal information. Reports just emerging indicate the Data Protection Commissioner has said it is difficult to see how the 2004 Act's provisions on the sealing of documents could supersede the Data Protection Act 2018 given that the latter Act states any restriction of the right to access personal data can be implemented only to the extent necessary and proportionate to safeguard the effective operation of commissions and the future co-operation of witnesses. On the basis of the view of the Data Protection Commissioner, it is difficult to see how rights of citizens to access their own records can be prohibited or prevented through an Act that was passed prior to the passage of the data protection law. That is a crucial issue. The recent reports really illustrate the fact. It is a point we have been making throughout the debate on the Bill.

I have one other point. The Minister, in his response to the debate on the earlier group of amendments, stated the commission is independent and he could not make a request of it to extend its time, but clearly there was correspondence from the commission to the Minister in the first place, based on legal advice we have not seen, seeking that this legislation be passed. From the helpful briefings we had with the Department, I believe that was the case. In the context of that correspondence, it might have been possible to request that the commission extend the time.

I previously welcomed commitments the Minister made on supports for survivors. I welcome the commitment he made in the Seanad, and again in the Dáil, that there would be an index to the database published. That is all very welcome but the central point arising from these amendments and the application of data protection law - the central point about how the 2004 Act can act as a blanket barrier to the accessing of personal data - remains the key point. It has been very much raised by the Data Protection Commissioner.

The Minister stated that information relating to criminal acts was brought to the attention of the relevant authorities at the time. In that case, I am surprised that we have not seen a raft of prosecutions. It seems clear from what we have heard that large numbers of illegal acts have taken place. I acknowledge that the Minister will be engaging with the Garda when the final report comes through but it would be useful to know when illegal acts have been identified. Might we anticipate prosecutions and legal proceedings?

The message coming out regarding the Data Protection Commissioner is exactly what we have said repeatedly, namely, that it is not legal to have a blanket provision. I acknowledge that the Minister was indicating his wish but we need to be stronger than that. Even if we want to ensure this legislation does as desired, the Minister needs to be clear that his understanding is that he will be making different and diverse decisions in regard to each subject access request he gets, that he will be balancing those out on each occasion, that there will be no blanket provisions and that there will be due consideration. He is now at a point where he is in jeopardy. If we suggest that we are accepting a seal or an implied seal for now and that we will re-examine the matter later, it needs to be clear that this is the Minister's understanding because otherwise this Bill will have the potential to be illegal. That is an important point to be addressed.

The Minister indicated that he is not now dealing with the question of people's statements. If people are being asked whether they want their information redacted, surely they need to be either given copies of their statements or afforded the opportunity to obtain copies. It is surely detrimental to the operation of future commissions and the co-operation of future witnesses not to give a witness a copy of her own testimony. I tabled an amendment previously based on this interpretation. I realise that the Minister does not like to direct the commission but I would like him to clarify whether he will be engaging with it. In the process of seeking preferences in regard to redaction, will he be asking it to furnish witnesses with copies of their own statements?

There is an incredible body of legal experts taking one side or the other side. The Data Protection Commissioner is now saying that this Bill could potentially break the law. We have the Attorney General with one-----

I have a point of order. That is not what the article states.

My apologies. I retract that.

May I clarify the position on a point of order? If the Senator wants to give way, Senator Seery Kearney has 30 seconds.

Thirty seconds.

It is not what the article states. It refers to the 2018 amendment of the 2004 Act; it is not referring to the Bill currently before the House.

Perfect. I thank the Senator.

If the Senator wants to make a point of order, she must ask the Senator in possession. We cannot have a discussion in the Chamber. Comments must be made through the Chair. If a Senator wants to intervene, she or he must, under Standing Order 39, ask the Senator in possession to allow the intervention, and 30 seconds are allowed for the intervention.

My point is that there is an incredible body of legal experts with a diversity of opinions. A question arises over people having to take the Government to court. Why can the Government not pursue a test case? We all agree across this House that the women in question own their histories. We have all heard the testimonies. I do not know how many buckets of tears I have shed this week over the women, and I am about to shed tears now. We need to test this law. We are passing this Bill today. I absolutely agree that the narrow scope of the Bill is to protect the data but the next step is critical. It is a matter of the Government questioning its own law. The Minister has said the women own their testimonies and that we need to find a way. I am no legal expert so we need to get the legal experts to rule on this. We need the women to have their justice. I echo what Senator Higgins said, namely, that if there have been allegations of crimes - my sense is that there has been criminality - the people concerned need to be questioned in a criminal setting. I do not know the legalities of that either. The crux of the matter, however, is that we have to test all these GDPR arrangements and the legacy of setting up this commission under the wrong Act. It was wrong to set it up under the 2004 Act. As a layperson, I was glad to hear Senator McDowell state that.

I had believed that my feelings on the matter were right. We have to test the consequences of our actions.

It is important that the Minister respond. He told us previously that he would rely on the amendment to support his and his Department's stance to apply blanket refusals on information requests. I find myself in the unusual position of being on the same page as the Data Protection Commissioner, DPC, given that I have had a number of years of differences with her, but her salient statement is that it is necessary for the Department to demonstrate "why in all the circumstances of this Commission it would be necessary to restrict rights of access" and how, in sealing the records, it is safeguarding the rights of citizens to access their own information, particularly in terms of that action's necessity and proportionality, which are key measurements under GDPR legislation and the amendment.

The Minister stated at the outset that he was not comfortable with the current position and that he would put measures in place to make changes. Why are we not making them now? The Department and his officials have already received advice from the DPC, but information has not been supplied to her or us-----

How can we----

-----explaining why the Minister is still comfortable relying on the amendment under the 2018 Act.

Regarding contributors to the confidential committee, how can they make a decision on whether they should have their names attached to their contributions if they do not have a copy of what they said? I agree with Senator Higgins in this regard. The advice is that people would be able to identify themselves within the report, such is the transparent manner of the representation of what they said. If so, why not just send them a copy anyway? That would be beneficial.

I believe the Minister stated that Tusla was undertaking a DPIA and that his Department had done one. We must clarify the context of those DPIAs. What processing were they attached to that resulted in this advice from the DPC on the blanket ban? A blanket ban is not permissible. There must be a proportionality and balancing of rights - the rights of the State, the greater good, or the commission versus the rights of the individual. Will the Minister elaborate on the context of the DPIAs and how they came into being? From the article, it appears that the commentary relates to the 2004 Act and the 2018 amendment of same, and is confined to saying that a blanket ban is unlawful and goes beyond what is necessary and proportionate. Will the Minister give us the context of the DPIAs? It may illuminate the article.

Other Senators have outlined the key issues. The information that has come to light is important to the debate. It is regrettable that so many victims and their next of kin and other family members have taken from this that there is some attempt to try to restrict their rights to the benefit of institutions or those who have done wrong, including abusers. That is due to a breakdown in communication from all sides. However, this advice from the DPC is significant. It changes things. I have spoken to the Minister numerous times. I do not doubt his intention in this legislation and he is doing his best, but it does not strike me as reasonable that an individual would not have a copy of her or his own testimony. It does not make sense and is not logical. No law could have been drafted with that intent in mind.

I have not seen the article in detail, but my understanding, including from what has been stated in the Chamber, is that it refers to the 2018 Act and its amendment of section 39 of the Commissions of Investigation Act 2004. That is not what my Bill addresses. Rather, my Bill addresses the transfer of the database from the archive to Tusla. That is an important point. We have all highlighted our concerns about the interpretation that I am relying on of the breadth of the amended section 39. I indicated my intention to address that through engagement with the Attorney General. My Department has been engaging with the DPC for the past week. We conducted the initial DPIA. Where the DPC has raised any issue about areas where the interpretation of the Attorney General has conflicted with the DPC's interpretation of EU law, we have referred those issues to the Attorney General's office.

It is important to state that the interaction between section 39 and GDPR is not contained within this Bill. It is a-----

On a point of order,-----

Does the point of order relate to the Standing Orders of the House?

Yes. Our amendment No. 11 would fix this issue. The House needs to vote for it.

I am sorry, but that does not relate to Standing Orders.

This is the only opportunity to raise it.

Please, Senator.


The Minister without interruption. There will be no more points of order allowed if people are going to use the opportunity to raise-----

I am just ensuring that Senators know what they can do.

That opportunity was available to Senator Gavan when he was on his feet. He is not allowed to contribute a second time. I cannot have Senators contributing a second time.

It is too important.

Under the rules of the House, the Senator will have an opportunity under the next grouping to raise issues-----

I will not have the time. You all know now that amendment No. 11 will fix this.

Senator, please.

I ask the Senator to respect the rules of the House. If Members are going to stand up claiming a point of order but, when I ask them whether it relates to the Standing Orders of the House, they say it does when it clearly does not, I would appreciate it if they instead respected not only the rules of the House, but also the Minister, who is on his feet replying, as is his right. That is the way we ordered the business.

No. I will not allow anyone else to contribute now. The Minister is on his feet discussing group 3. We have agreed the rules and the procedure. The Minister without interruption.

I need to engage with the Attorney General on the DPC's advice on the application of section 39 of the 2004 Act and the amendment made to same in 2018. This matter is not contained within my Bill, which is still important if we are to maintain the database. This is relevant to the wider issues that we have all agreed need to be addressed in the context of the application of GDPR. I flagged it as something that we would have to address. Doing so has become even more urgent now.

Next is group 4 on the redaction of certain records. Group 4 is the subject matter of amendments Nos. 8 and 9 from the Dáil and Seanad Report Stage amendments Nos. 5 to 10, inclusive. Before I ask the Minister to speak on the subject matter of group 4, I will outline the procedure again, given that Senators are coming and going. Senators are entitled to speak once on this Stage. They are entitled to intervene in the debate under Standing Order 39, but they must ask the Member in possession to give way and, if they get that permission, will have 30 seconds to speak. That is it. Those are the rules and I am only enforcing the rules on which we have all agreed. I ask Members to respect that, especially when the Minister is on his feet. He is entitled to speak without interruption unless someone wishes to raise a valid point of order.

I call Senator Higgins first.

What about the Minister's amendments? I have amendments in this group. I can be brief.

I am sorry. Does the Minister wish to speak on group 4 first?

These relate to the matter we discussed in the Seanad last week regarding personal stories. These sets of amendments make provision for that opt-in to redaction, working on the basis of restoring agency to those people who came before the commission. They deliver on that.

I recognise that the Minister has listened to my comments but there is an issue that has been raised by others, and my amendments for this group would simply allow the Minister, under the same section he has introduced, to oblige the commission to offer people a copy of their testimony along with the obligation on the commission in the legislation to consult people on the question of redaction. It is appropriate and, as others have said, it makes no sense not to do this. If the Minister accepts the amendment, it would be a requirement on the commission, which would be useful.

I agree on the point that has been made in that although it is not a subject of the Bill, there is the provision under amendment No. 11, which is before the House and which the Minister could potentially accept, that could explicitly deal with the concerns of the Data Protection Commission by specifying that Article 15 restrictions will not apply.

I support the amendments put forward by Senator Higgins that refer to the rights of access to personal data. It is the very issue that relates to the data protection commissioner's comments as reported. I welcome that the Minister has said he will engage with the Attorney General on those comments but I take issue with the comment that this is not directly related to the Bill. I certainly agree there are wider issues around access to information, which we all accept. However, this Bill has a very direct connection to the 2004 Act as section 4 directly relates to that Act as to the deposit of copies of records with the Minister. As it refers to the Act and deposits records with the Minister under the 2004 Act, the 30 year rule applies. Through this Bill and section 4 in particular, there is a direct link to the very provisions in the 2004 Act about which the data protection commissioner has expressed such concerns. We must be mindful of the comments of the data protection commissioner and bear them in mind. That points to the difficulties we have with this Bill.

I echo the point made by Senator Bacik on the relevance of the data protection commissioner's intervention on the Bill. When did the commissioner make those observations and did the Attorney General read those observations? If that happened, why would the Attorney General not recommend wording such as that in amendment No. 11 to make a correction to the Bill? It is directly related to the Bill. The House needs to know when the data protection commission made the observations, if they were made available to the Attorney General, and if they were, why did the Attorney General not recommend wording to fix those problems? The wording would be similar to that in amendment No. 11.

I reiterate those points. This is so serious and all of us are aware of the issue. The good news is we have the opportunity to work collectively, put our party hats to one side and accept amendment No. 11. At the very least all of us should agree and act on this now.

The Senator knows that is not one of the amendments under discussion.

I disagree strongly with Senator Bacik. This is about the database and its preservation, and just because there is allusion to other matters it does not make them the central part of this Act. It is unfair to make that statement. With due respect, the only party politics being played arise from the Sinn Féin position of criticising the Government.

The points have been made respectfully so far but those points were unfortunate.

The Senator would be more than welcome to introduce a new Standing Order to deal with that but her comments are not relevant to the contribution. As it is now 5.15 p.m., I am required to put the following question in accordance with the orders of the Seanad of 22 October and 23 October 2020: "That Fourth Stage is hereby completed, that the Bill is hereby received for final consideration and that the Bill is hereby passed."

Question put:
The Seanad divided: Tá, 22; Níl, 16.

  • Ardagh, Catherine.
  • Byrne, Malcolm.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Lisa.
  • Conway, Martin.
  • Crowe, Ollie.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Fitzpatrick, Mary.
  • Gallagher, Robbie.
  • Garvey, Róisín.
  • Kyne, Seán.
  • McGahon, John.
  • McGreehan, Erin.
  • Murphy, Eugene.
  • O'Loughlin, Fiona.
  • O'Reilly, Joe.
  • O'Reilly, Pauline.
  • Seery Kearney, Mary.
  • Ward, Barry.


  • Bacik, Ivana.
  • Black, Frances.
  • Boyhan, Victor.
  • Boylan, Lynn.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Keogan, Sharon.
  • McCallion, Elisha.
  • McDowell, Michael.
  • Moynihan, Rebecca.
  • Mullen, Rónán.
  • Ruane, Lynn.
  • Sherlock, Marie.
  • Wall, Mark.
  • Warfield, Fintan.
Tellers: Tá, Senators Robbie Gallagher and Seán Kyne; Níl, Senators Ivana Bacik and Paul Gavan.
Question declared carried.