Mother & Baby Homes

Commission

The Commission of Investigation (Mother and Baby Homes and certain related Matters) Records, and another Matter Act 2020  deals with the arrangements for the transfer and management of the records of the commission of investigation established by the Commission of Investigation (Mother and Baby Homes and certain related Matters) Order 2015 (S.I. No. 57 of 2015), upon its dissolution.

The Commission of Investigation (Mother and Baby Homes and certain related Matters) is due to submit its final report to the Minister for Children, Equality, Disability, Integration and Youth by 30 October 2020. On submission of its final report, the Commission of Investigation (Mother and Baby Homes and certain related Matters) will stand dissolved and, the Act responds to a number of issues raised by the Commission in relation to finalising its records.

The Act also carries a number of unrelated amendments to the Judicial Council Act 2019.

Records

The Act ensures that the records of the Commission of Investigation (Mother and Baby Homes and certain related Matters) are deposited with the specified Minister, or with the Child and Family Agency, in the case of the subset of specified databases and related records, without redaction. Most significantly, the Act provides for the transfer of specified databases and records relating to the former residents of the institutions being examined by the Commission, to the Child and Family Agency (Tusla).

The Act further sets out the restrictions on processing of records by the Child and Family Agency unless those records were given to the Commission by the Agency in the first instance. In particular, processing of records/data other than those provided by the Agency is limited to the purposes authorised by the Data Protection Regulation, the Data Protection Acts 1988 to 2018 or any other enactment (other than in this Bill).

Processing Data

However, nothing in the Act prevents the Agency from processing information from a related record given to the Commission by the Agency. In addition, the Act also provides appropriate access for the essential maintenance of the digital systems and related records. Notably, the Act provides a statutory basis for these matters without amendment to the generality of the Commissions of Investigation Act 2004. The Act provides no new entitlement to access information in the possession of the Child and Family Agency, or to the archive which transfers to the Minister in accordance with section 43(2) of the 2004 Act.

Database

“Database” includes all the databases developed by the Commission in relation to the former residents of the institutions being examined by the Commission (as specified in the Schedule to its terms of reference). The definition of “related record” is aligned with the relevant definition in the Commissions of Investigation Act 2004, and includes evidence within the meaning of the Act of 2004 received by the Commission, any document created by or for the Commission within the meaning of section 43 of that Act, or a copy of any such evidence or document, from which information was obtained for the purpose of creating the database.

The  Commission is to deposit the database and all related records with the Child and Family Agency (the Agency) as soon as possible after enactment. The Act substitutes the Agency for the Minister as the recipient of these specific records.

There are restrictions on processing of the database and records received by the Agency from the Commission. The  Agency may not process records or information provided to the Commission by someone other than the Agency, except where authorised or required by or under the Data Protection Regulation, the Data Protection Acts 1988 to 2018 or any other enactment (other than the Act) or for legitimate purposes related to maintenance. In addition, the section expressly states that nothing in the Act or Act of 2004 shall prevent the processing of information which originated from any record given by the Agency to the Commission.

The obligation to deposit records with the Minister, in accordance with subsection (2) of section 43 of the Act of 2004, is an obligation to deposit such evidence and documents without redaction therefrom.

The 2020 Act allowed the Personal Injuries Guidelines Committee to complete its work within a new, extended, statutory deadline of 9 December 2020, and for the Council to adopt the personal injuries guidelines by 31 July 2021, at the latest.