Statement by the Minister O’Gorman, TD, on the Commission of Investigation (Mother and Baby Homes and Certain Related Matters) Records, And Another Matter, Bill 2020

Last week I published the Commission of Investigation (Mother and Baby Homes and Certain Related Matters) Records, And Another Matter, Bill 2020.

I am aware that concerns have been expressed regarding the proposed legislation. Given the weight of history in Ireland on these matters, and the very real lived experience of Mother and Baby Homes which many people in Ireland carry, it is entirely understandable that people may wish to seek clarity on what is proposed.

I am issuing this statement in order to clarify the intention of the legislation, and my hope is that this will serve to address any misunderstanding and will allay concerns.

In short, the bill is being brought forward to preserve access to invaluable information now and into the future. Contrary to what has been reported, the intention of the legislation is not to put the information beyond reach. Rather, it is to ensure that information is not destroyed and that relevant information can be made available for information and tracing purposes in line with current and future law.

Earlier this year, the Mother and Baby Homes Commission informed us that it had created a database, tracking who was in the main Mother and Baby Homes, but it did not feel it had a legal basis to transfer that database and would be compelled by law to redact the valuable information we are trying to now preserve. This bill allows the database to be preserved and transferred to Tusla (with whom most of the original records are already held). It prevents the information from effectively being destroyed, and will allow access to that information under existing laws. The information can also be made available to the National Archives at the appropriate time.

The Mother and Baby Home Commission of Investigation was set up under the Commissions of Investigation Act 2004. The entire premise of the 2004 Act, which we are bound to follow, is that investigations are held in private. That confidentiality applies to the evidence and records gathered by the inquiry. It is central to allow testimony be given freely.

The effect of the confidentiality provisions woven into the 2004 Act is that the Commission’s archive of records must be deposited with the Minister in a sealed form and must remain so for a period of 30 years, pending its transfer to the National Archives. While the records must transfer in their complete and unredacted form, the anonymity of those who provided testimony is maintained by virtue of this requirement for the records to remain sealed.

While anonymity may be fundamentally important to some of those who provided testimony to the Commission, equally, I recognise that others may be anxious to have sight of their testimony and to know that it is recorded for posterity. It’s important to note two points which may serve to address those concerns:

Firstly, I understand that, within the Final Report of the Commission, the section on the Confidential Committee will reproduce the anonymised testimony of each individual who appeared before it. While the testimony will be anonymous and slightly summarised, people will nonetheless be able to see and recognise their own story told in their own words.

Secondly, by affirming that the archive of records is to be deposited in an unredacted form, this Bill preserves the constitutional rights of those witnesses who wanted their identities to be recorded for posterity and relied on the existing law to achieve this.

The Commission is due to submit its final report and stand dissolved in law on 30th October. This Bill needs to be passed and signed into law prior to its dissolution. Failure to act will result in an incomplete archive transferring and in the database being effectively destroyed and unavailable for information and tracing.

In conclusion, the present Bill is focused on protecting a valuable and unique resource which will assist in accessing personal information under existing law and will be hugely beneficial in any future information and tracing legislation. No future opportunity for access to this information will be lost by virtue of this bill coming into effect – its purpose is to preserve information, including a critically invaluable database for future use to the maximum extent possible under law.

I'm absolutely committed to addressing the wider matter of providing a new architecture surrounding access to birth information and tracing; this will be advanced soon. I look forward to engaging widely to allow all those with a stake in this process to have their voice heard.

ENDS