Speech on Commission of Investigation (Mother and Baby Homes and certain related Matters) Records, and another Matter, Bill 2020: Second Stage

14 October 2020

Ivana Bacik

I welcome the Minister to the House and acknowledge his comments on our shameful history, as a society, of treatment of women and children over many decades, in particular of those citizens who were incarcerated in homes like the mother and baby homes and so many other institutions.

In my previous life as a practitioner, I had the privilege of representing many survivors of abuse before the Residential Institutions Redress Board. I learned from so many of them of the terrible injustice they suffered in those institutions at the hands of the State and religious orders. I commend Christine Buckley, Carmel McDonnell Byrne and others who have done so much to expose the failings of the State. It is in that context that all of us should recognise the immense work that has been undertaken by the Commission of Investigation into Mother and Baby Homes and its three members - Judge Yvonne Murphy, Professor William Duncan and Professor Mary Daly - in carrying out their terms of reference. I recognise the huge scale of their inquiry, over a 75-year period, to look into the appalling treatment of women and children in 14 mother and baby homes and four county homes. I acknowledge that the commission has published five interim reports to date. We should also recall the origins of the setting up of the commission.

I refer to the huge public outcry following the discovery of a mass unmarked grave at the site of a Bon Secours home in Tuam that shocked the nation. There was a further shock for those of us who read the fifth interim report last year, 2019, at the finding that the burials of so many children were unaccounted for, in particular in the Bessborough mother and baby home in Cork. There was one line in the report that really stood out for me: "It is not known where the vast majority of children who died in Bessborough are buried." The findings are appalling. What was shocking in reading that interim report, as with others, was the obstructiveness of some of those involved, in particular the obstructive approach taken by the Sisters of the Sacred Hearts of Jesus and Mary, who ran the Bessborough home, in terms of providing information to the commission.

We acknowledge the hugely important work the commission has done, and is doing, and acknowledge the importance of the context in which the commission was set up. Having said all that, I am deeply disappointed, as are my Labour Party colleagues and others across the House, at the rushed nature of this legislation. We have serious concerns about the way in which the Bill has come before us. Other speakers have expressed those concerns. I attended briefings with the Minister and his officials, and I thank him for that, but despite that and the documents we have been given the clear legal rationale for this legislation has not been fully made out to us.

In particular, other colleagues have raised questions about why, given the terms of the 2004 Act and existing data protection legislation, there are provisions around the transfer of records without redaction to Tusla and a further provision later in the Bill on the provision of the database to the Minister. It is still not clear which subset of data is being provided to whom. We do need assurances. I thank in particular Dr. Maeve O’Rourke and Ms Susan Lohan from the Adoption Rights Alliance and the many thousands of others who have expressed their concerns to us about this legislation.

I seek assurances from the Minister on three points. The first is why he, as Minister, cannot keep a copy of the entire commission database. Why is there a need for this legislation? The clear need must be provided to us on the record of this House.

Second, could the Minister assure us that a data access request to the archive will be facilitated? There is a clear need for information. There are so many survivors and so many family members who have expressed to us their urgent desire for information. I have heard comments about privacy and confidentiality but the commission is now in possession of a significant amount of information, which does not relate to the confidential statements given by witnesses to it. There are large amounts of records kept by the religious orders and provided to the commission and kept by other officials. I know from the redress board experience the extent of information that the commission will now be in possession of and that survivors and their families do not have access to and that they urgently want. I seek a commitment from the Minister about that second assurance.

The third assurance I seek is also one that has been outlined by others. It is that an appropriately anonymised index to the archive will be published by the Minister so that a debate and consultation can then be facilitated as to future unsealing of the archive and that we can talk then about the 30-year rule. Undoubtedly, there are complexities there, but we need to talk about this, and we need to facilitate the future creation of a historical abuse record archive, sensitively and respectfully maintained. We must facilitate access to those who wish to have it, to whom we owe it. Because of our legacy of shameful treatment of women and children, we owe their family members access. Unfortunately, the tenor of this Bill is not in keeping with those assurances around information and access to people's identity information.

I accept the Minister stated in his speech and we have been told in the briefings that the Bill is not about providing access and that it will be dealt with in future legislation. However, sadly and with respect, I think that is putting the cart before the horse because we need to sort out the issue of access and information. We did attempt to do it. The Minister's predecessor, Katherine Zappone, made valiant attempts to address this, which I acknowledge. I worked constructively with the Minister and departmental officials to try and ensure that we saw an appropriate balancing of the rights to which the Minister referred, that is, the constitutional rights to privacy and information. The Adoption (Information and Tracing) Bill 2016, which was last debated in the Seanad on Committee Stage in June 2019, fell because we could not reach a compromise. In that Bill, as in this Bill, there is undue regard to privacy rights at the expense of the right to information and identity for those persons most directly affected, namely, the women and children and their descendants.

At the time we debated the Bill, when we were trying to reach a compromise, I pointed out that privacy rights should not be used to trump information rights and I say that again in the context of this Bill.

In the context of this Bill, we should not only be debating rights of information and identity but also the issue of accountability for the State that colluded in the incarceration of women and children in homes and the issue of the enormous accountability that is still owed to the State in financial redress as much as anything else by those religious orders, which were so directly and shamefully responsible for the abuse of those who were incarcerated. The Labour Party has tabled amendments to this Bill and despite recognising the importance of the work of the commission, we are unable to support the Bill in its current form due to the way in which it is being rushed through this House. I am sorry about that because I want to acknowledge the importance of the work the commission is doing. We need to see more respect paid to the interests and concerns that have been eloquently expressed to us by many survivors and relatives and families of survivors. They deserve better and more extensive consultation, as well as more regard to their rights of information and of access to their identity.