Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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I welcome the Minister, Deputy O'Gorman. Amendments Nos. 1 to 5, inclusive, 8 and 15 are related and may be discussed together.

Roderic O'Gorman (Dublin West, Green Party)
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I move amendment No.1:

In page 3, between lines 9 and 10, to insert the following:

"PART 1

PRELIMINARY AND GENERAL

Short title and commencement

1. (1) This Act may be cited as the Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024.

(2) This Act, other than section 6, shall come into operation on such day or days as the Minister for Children, Equality, Disability, Integration and Youth may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

(3) Section 6 shall come into operation on such day or days as the Minister for Social Protection may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.".

I will speak to all of group A amendments if that is all right.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Yes.

Roderic O'Gorman (Dublin West, Green Party)
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The amendments in this group are largely technical in nature. Amendments No. 1 and 15 propose a change to the Short and Long Titles of the Act, respectively, to reflect the proposed addition of sections related to non-disclosure agreements and preservation of records, which were not part of the published Bill. Amendment No. 1 further provides for the commencement of different sections of the Act. Amendment No. 2 is a standard provision related to expenses incurred in the administration of this Act. Amendments Nos. 3 and 4 are of a technical nature, changing wording slightly and correcting a cross-reference but with no change to the intended purpose of the amended sections. Amendment No. 8 provides for the Minister for Social Protection to make regulations to allow for maternity benefit to also be postponed in line with the provisions to postpone maternity leave. This is necessary to ensure that when a person who is eligible for maternity leave and benefit avails of their option to postpone that maternity leave, that maternity benefit can also be postponed as well.

I will speak briefly to Deputy Sherlock's amendment as I am not sure if I will get a chance to come back in.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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You will.

Roderic O'Gorman (Dublin West, Green Party)
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I will leave it there then and allow the Deputy to speak about his amendment.

Seán Sherlock (Cork East, Labour)
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I will speak to my amendment No. 4. The logic of the amendment is based on correspondence we received from IBEC.

I referred to this on Second Stage. I wish to quote from correspondence we received on 17 October with regard to the potential for discrimination to arise specifically where:

For example, 'necessary medical intervention' is only defined with respect to mental health conditions (by requiring inpatient hospital treatment) but there is no such definition for physical health conditions. Ibec argues that this distinction in itself could constitute discrimination. Furthermore, the requirement for a mental health condition to require inpatient hospital treatment would appear to risk discriminating against individuals based on the type of mental health condition, or indeed on their access or otherwise to inpatient treatment.

The letter goes on to state:

IBEC submits that many individuals with serious physical health conditions receive treatment as outpatients due, not least, to the advancement in treatments available and the availability of community-based facilities. Yet, the Bill excludes from its remit individuals with serious mental health conditions that receive treatment as outpatients, which Ibec submits [as do we by way of the amendment] will expose employers to a claim of direct discrimination for which there can be no objective justification under the EEA.

Roderic O'Gorman (Dublin West, Green Party)
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The Deputy referenced it earlier in the process, and I thank him for bringing it forward. I will make a broader point and a specific point on this particular issue. The campaign to extend to women who were ill the ability to postpone maternity leave was first introduced by the Irish Cancer Society. It was originally for women who were experiencing cancer during maternity leave. That is a mercifully small group of people numbering 50 to 60 women every year. When I decided to bring this forward, I did not feel we could just protect women with cancer as a serious illness and not include other women. Therefore, we sought to broaden it and say women it is who are suffering a serious illness, and we always said this was a serious illness. Originally, that term "serious illness" in some of the earlier drafts was very much looking at a physical illness. I am very aware, however, and we as a society are more aware of the serious nature of mental illness as well. Therefore, it was important for me to ensure that mental illness was covered within the definition of "serious illness". In terms of our engagement with the Department of Health in trying to tie down what that would look like, that is difficult. The identification of inpatient treatment was used as our determining factor. However, it is important for Deputies to understand the genesis from going from cancer to serious physical illness to serious illness including mental illness, although with a definition the Deputy discussed.

We looked into the specific point that IBEC made. Amendment No. 7 also amends section 17 of the Employment Equality Act 1998 to clarify that anything done in compliance with the new section 14C of the Maternity Protection Act 1994, inserted by this Act to provide for a pause in maternity leave for women with serious illness, will not be considered discrimination on disability grounds. In practical terms, this ensures there can be no doubt that granting this pause to someone with a serious illness, but not someone with a less serious illness, does not count as discrimination under the Act. As we know, disability has a very wide interpretation in the Employment Equality Act. This clarification is being added to ensure this pause can be provided for that cohort of women who are suffering from a very serious illness. We have taken a legislative provision here specifically to address the point the Deputy raised on foot of the IBEC concern about a risk of a discrimination claim in the Workplace Relations Commission, WRC. We feel we have addressed it with that legislative provision. I have also spoken to the wider point of how we have tried to evolve this to be a broad provision.

Seán Sherlock (Cork East, Labour)
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I am a little bit at pains to understand the justification with regard to the inpatient hospital treatment insertion within the legislation. However, I am very conscious of the need to have this legislation dispensed with today. On that basis, I will withdraw, but I suspect we will be coming back to that very issue again at some future date. I have no doubt about it. I think we all share the views of the Irish Cancer Society with regard to the need to ensure this legislation does pass before the lifetime of this Government ends.

Roderic O'Gorman (Dublin West, Green Party)
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I move amendment No. 2:

In page 3, between lines 9 and 10, to insert the following: “Expenses

2. The expenses incurred by the Minister for Children, Disability, Equality, Integration and Youth in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure, National Development Plan Delivery and Reform, be paid out of monies provided by the Oireachtas.”.

Roderic O'Gorman (Dublin West, Green Party)
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I move amendment No. 3:

In page 5, to delete lines 17 to 20 and substitute the following: “(10) An employee to whom subsection (1) of section 14B and subsection (1) apply shall not be entitled to postpone maternity leave under section 14B and this section in respect of the same birth.”.

Roderic O'Gorman (Dublin West, Green Party)
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I move amendment No. 4:

In page 5, to delete lines 23 and 24 and substitute the following: “ ‘maternity leave’ includes, where applicable, a further period of maternity leave referred to in section 8, section 13(2), or section 13B;”.

Roderic O'Gorman (Dublin West, Green Party)
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I move amendment No. 5:

In page 5, to delete lines 27 and 28.

Roderic O'Gorman (Dublin West, Green Party)
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I move amendment No. 6:

In page 6, line 13, after “period”, to insert “(whether or not deferred or paused in the event of the member having a serious health condition)”.

Amendment No. 6 deals with the issue of leave for Oireachtas Members. The proposal related to maternity leave for Members of the Oireachtas has been carefully drafted with the Office of the Attorney General in particular to avoid any perception of overreach in terms of separation of powers. However, given the subject matter of other sections of this Bill related to a pause in maternity leave for mothers with serious illness, I felt it was only right that this section clarify that Members of the Oireachtas can also postpone their leave in the event of such an illness. This amendment, drafted with the Office of the Attorney General, provides that clarification.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Is the amendment moved by the Minister agreed?

Seán Sherlock (Cork East, Labour)
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It is agreed, but may I speak to the amendment very briefly?

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Yes, you may.

Seán Sherlock (Cork East, Labour)
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I do not think the Minister can talk about this amendment for Members of the Oireachtas without talking about the amendment the Labour Party tabled on the social welfare Bill with regard to a Member of the Oireachtas who is the subject of maternity leave and who is paying class K contributions. That amendment, which we promulgated during the social welfare Bill, was rejected by the Minister for Social Protection. The Minister needs to look at the two issues in tandem in terms of the rights of Oireachtas Members.

Roderic O'Gorman (Dublin West, Green Party)
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I move amendment No. 7:

In page 6, between lines 30 and 31, to insert the following: “Amendment of 5. The is amended— (a) by the insertion of the following section after section 14A:

“Non-disclosure agreements

14B. (1) Subject to this section—

(a) an employer shall not enter into a non-disclosure agreement, and

(b) where such an agreement is entered into, it shall be null and void.

(2) Subsection (1) shall not apply to—

(a) a non-disclosure agreement entered into under—

(i) the terms of a settlement referred to in section 24(4) of the or

(ii) the terms of a resolution referred to in section 39(4) of the

or

(b) an excepted non-disclosure agreement that is entered into in accordance with subsection (3).

(3) An employer may enter into an excepted non-disclosure agreement with an employee only where—

(a) the employee requests the employer to do so, and

(b) prior to entering into the agreement, the employee has received independent legal advice in writing from a legal practitioner in relation to the legal implications of entering into the agreement.

(4) The employer referred to in subsection (3) shall discharge the reasonable legal costs and expenses of the legal practitioner who provides the legal advice referred to in paragraph (b) of that subsection to the employee.

(5) An excepted non-disclosure agreement shall—

(a) be in writing,

(b) be of unlimited duration, other than where the employee elects otherwise,

(c) in so far as possible be in—

(i) clear language that is easily understood, and

(ii) a format that is easily accessible, by the parties to the agreement, including by any party with a disability,

(d) provide that the employee has a right, where he or she so elects, to withdraw from the agreement without penalty no later than 14 days from the date on which the agreement is entered into, and

(e) include a provision stating that the agreement does not prohibit the making by the employee of a relevant disclosure in accordance with subsection (7).

(6) Where an excepted non-disclosure agreement is entered into, the employer shall provide, or cause to be provided, to the employee a copy of the executed agreement.

(7) An excepted non-disclosure agreement shall not prohibit the making by the employee concerned of a relevant disclosure to—

(a) one or more of the following persons where, at the time of the making of the relevant disclosure, the person concerned is acting in the course of his or her office, employment, business, trade or profession:

(i) a member of the Garda Síochána;

(ii) a legal practitioner;

(iii) a registered medical practitioner within the meaning of the

(iv) a mental health professional;

(v) an officer of the Revenue Commissioners;

(vi) an officer of the Ombudsman;

(vii) an official of a trade union, or

(b) such individual, or a member of such class of individuals, as may be specified in the agreement as a person to whom a relevant disclosure may be made by the employee.

(8) The Minister shall—

(a ) not later than 5 years after the date on which this section comes into operation, conduct a review of the operation and effectiveness of the section,

(b) not later than 6 months after the end of that period of 5 years, or on the completion of the review, whichever is the earlier, prepare a report, in writing, of the findings of the review and of the conclusions drawn from those findings, and

(c) cause copies of the report to be laid before each House of the Oireachtas.

(9) In this section—

‘Act of 2005’ means the

‘employee’, in relation to an employer, includes, where appropriate, a prospective or former employee;

‘excepted non-disclosure agreement’ means a non-disclosure agreement that is entered into in accordance with subsections (5), (6) and (7);

‘harassment’ and ‘sexual harassment’ shall be construed in accordance with section 14A(7);

‘legal practitioner’ has the same meaning as it has in the

‘mental health professional’ means—

(a) a psychologist who is a person—

(i) who practises as such,

(ii) who holds a qualification listed opposite the profession of psychologist in the third column of Schedule 3 to the Act of 2005 or a qualification that is a corresponding qualification, within the meaning of section 90 of that Act, to that qualification, and

(iii) following the establishment under section 36 of the Act of 2005 of the register of members of the profession of psychologist, whose name is for the time being entered in that register,

or

(b) a counsellor who is a person who—

(i) practises as such, and

(ii) has the requisite skills and judgement to provide counselling to a person to resolve or better cope with personal and interpersonal problems or difficulties;

‘non-disclosure agreement’ means an agreement, or provision thereof, whether or not in writing and howsoever described, between an employer and an employee that purports to preclude the making of a relevant disclosure by the employer or the employee, or both;

‘relevant disclosure’ means a disclosure of information relating to either or both of the following:

(a) the making by the employee of an allegation that he or she was discriminated against, or subjected to victimisation, harassment or sexual harassment, in relation to his employment (or prospective employment) by the employer;

(b) any action taken by the employer or employee in response to the making of the allegation referred to in paragraph (a), including any action taken in relation to any complaint made, or proceedings taken, by the employee in relation to the subject matter of the allegation;

‘victimisation’ shall be construed in accordance with section 74(2).”,

and

(b) in section 17, by the insertion of the following subsection after subsection (1):

“(1A) In relation to discrimination on the disability ground, nothing in this Act shall render unlawful any act done in compliance with any provision of section 14C of the ”.”.

Amendment No. 7 inserts a new section 14B into the Employment Equality Act 1998 in order to introduce measures to limit the use of non-disclosure agreements, NDAs, where an employee has allegedly experienced discrimination, harassment, sexual harassment or victimisation. The proposals provide that any such NDAs may only be entered into if first requested by the employee and with legal advice provided at the employer's expense. The amendment lays out a list of conditions that must be met in order for such a NDA to be enforceable. It must be set out in writing, be in accessible format, have a 14-day waiting period to allow the employee to draw from the agreement, be of unlimited duration unless the employee elects otherwise, and include information about who the employee may make a disclosure to. This includes a garda, legal practitioner, registered medical practitioner, mental health professional, officer of the Revenue Commissioners, the Ombudsman, a trade union or such individual or member of such class of individuals as may be specified in the particular NDA. These NDA proposals were included in the general scheme and have been considered by the committee during pre-legislative scrutiny. The amendment further proposes to exempt NDAs that are agreed through the Workplace Relations Commission's mediation service. These proposals build on the previous Private Members' Bill sponsored by Senators Ruane, Flynn, Black and Higgins, which passed all Stages of the Seanad. My Department's public written consultation as part of the review of the equality Acts, which I published a report on last year, invited submissions on NDAs and it was noted that there was very significant support for this particular reform in those public submissions.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Acceptance of this amendment involves the deletion of section 3 of the Bill.

Roderic O'Gorman (Dublin West, Green Party)
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I move amendment No. 8:

In page 6, between lines 30 and 31, to insert the following: “Amendment of

6. Section 47 of the is amended by the insertion of the following subsection after subsection (7):

“(7A) Regulations may provide for the postponement of the payment of maternity benefit in the event of the person who is entitled to that benefit having a serious health condition within the meaning of section 14C of the subject to the conditions and in the circumstances that may be prescribed.”.”.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Amendments Nos. 9 to 14, inclusive, are related and will be discussed together.

Roderic O'Gorman (Dublin West, Green Party)
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I move amendment No. 9:

In page 6, between lines 30 and 31, to insert the following:

“PART 3

PRESERVATION OF CERTAIN RECORDS

Definitions (Part 3)

7.(1) In this Part—

“Act of 1986” means the

“Act of 1991” means the

“Act of 2022” means the

“adopted person” has the same meaning as it has in section 2 of the Act of 2022;

“boarded out arrangement” has the same meaning as it has in section 2 of the Act of 2022;

“care arrangement” means— (a) a nursed out arrangement,

(b)a boarded out arrangement,

(c)an arrangement under which a child was placed with a foster parent—

(i)subject to subparagraph (ii), within the meaning of section 36(2) of the Act of 1991, or

(ii)where the arrangement concerned was made before the coming into operation of the provision referred to in subparagraph (i), in accordance with the law in force in the State at the time the arrangement was made,

whether or not the foster parent became the adoptive parent of the child,

(d)an arrangement made under section 36(1)(d) of the Act of 1991, under which a child was placed with a relative,

(e)an arrangement under which a child was placed as a resident of an institution, or

(f)an arrangement under which a child was placed with a prospective adoptive parent, whether or not the prospective adoptive parent became the adoptive parent of the child;

“civil partner” shall be construed in accordance with section 3 of the

“cohabitant” shall be construed in accordance with section 172(1) of the

“County Home” means an institution specified in column 2 of Part 1 of Schedule 1 of the

“Director” means the Director of the National Archives;

“family member”, in relation to a person, means a spouse, civil partner, cohabitant, child, parent, sibling, half-sibling, grandparent, grandchild, aunt, uncle, niece or nephew (whether of the whole blood or the half-blood), grandniece or grandnephew of the person;

“industrial school, reformatory or related institution” means an institution that is specified in the Schedule to the

“information source” means a person in possession of a relevant record, but does not include—

(a)a relevant person, in so far as he or she is in possession of a relevant record that relates solely to himself or herself,

(b)a family member of a person referred to in paragraph (a) in so far as the family member is in possession of a relevant record that solely relates to the person concerned, or

(c)a public body;

“institution” means any of the following:

(a)a Mother and Baby Home;

(b)a County Home;

(c)a Magdalen laundry;

(d)an industrial school, reformatory or related institution;

(e)an orphanage;

(f)an institution designated by order of the Minister under section 8(1)*;

“local authority” has the same meaning as it has in the

“Magdalen laundry” means an institution specified in the Schedule to the

“Minister” means the Minister for Children, Equality, Disability, Integration and Youth;

“Mother and Baby Home” means an institution specified in column 2 of Part 2 of

Schedule 1 to the

“nursed out arrangement” has the same meaning as it has in the Act of 2022; “orphanage” means a residential premises that accommodated children whose parent, parents, guardian or guardians were deceased, unable to care for them or perceived to be unable to care for them;

“person who was the subject of an incorrect birth registration” shall be construed in accordance with section 2(2) of the Act of 2022;

“possession”, in relation to a relevant record, includes control over the relevant record;

“public body” means— (a) a Department of State,

(b)a local authority,

(c)a body (other than a company) established by or under an enactment, or

(d)a company established pursuant to a power conferred by or under an enactment, and financed wholly or partly by—

(i)moneys provided, or loans made or guaranteed, by a Minister of the Government, or

(ii)the issue of shares held by or on behalf of a Minister of the Government; “record” includes:

(a)a book;

(b)a map;

(c)a plan;

(d)a drawing;

(e)papers;

(f)a file;

(g)a photograph;

(h)a film;

(i)a microfilm and other micrographic record;

(j)a sound recording;

(k)a pictorial record;

(l)a magnetic tape or disc;

(m)an optical or video disc;

(n)a machine-readable record;

(o)documentary or processed material;

(p)a copy or part of any thing which falls within any of the preceding paragraphs (a) to (o);

“relevant body” means a person—

(a)who operated or was responsible for the running of an institution,

(b)who was involved in the placement of a relevant person (within the meaning of paragraph (a), (b), (c) or (d) of the definition of “relevant person”)— (i) for adoption,

(ii)into a care arrangement,

(iii)in the case of a relevant person who is a person that was the subject of an incorrect birth registration, with the person or persons who assumed the role of a parent or parents of the relevant person, or

(iv)in an institution, or

(c)designated by order of the Minister as a relevant body under section 8(2)*;

“relevant person” means—

(a)an adopted person,

(b)a person who was the subject of a care arrangement,

(c)a person who was the subject of an incorrect birth registration,

(d)a person who was a resident in an institution, or

(e)the mother (within the meaning of the Act of 2022) of a person referred to in paragraph (a), (b) or (c);

“relevant record” means, subject to subsections (2) and (3), a record relating to an institution or a relevant body and includes a record— (a) relating to—

(i)a relevant person,

(ii)a member of staff or management of a relevant body or a person working in an institution,

(iii)the financial records, accounts and commercial activities of an institution or a relevant body,

(iv)the administration, regulatory compliance activities and governance matters, including any inspection records or reports of an institution or a relevant body,

(v)contemporaneous or periodical accounts of activities of a relevant body or in an institution (including records commonly known as “house annals”),

(vi)any burials overseen, or carried out by or on behalf of a relevant body on a premises in which the relevant body operated or elsewhere,

(vii)the establishment or management of a relevant body or institution, or

(viii)the buildings and grounds associated with an institution, or

(b) designated by order of the Minister as a relevant record under section 8(3)*.

(2)For the purposes of this Part, a record is not a relevant record if it relates to—

(a)anything that occurred in, or in relation to, an institution, or

(b)an activity of a relevant body, at any time after 31 December 1998.

(3)In this Part, a reference to—

(a)a “record” includes a reference to a class of records, and

(b)a “relevant record” includes a reference to a class of relevant records.

(4)In this Part, a reference to the “public interest” in preserving a record shall be construed as a reference to the public interest in ensuring the preservation of the record for purposes including the following:

(a)ensuring, having regard in particular to the purposes referred to in paragraph (b), that the record does not become incapable of being accessed; (b) enabling future access to the record, so that—

(i)persons, in particular relevant persons, may obtain information contained in, and avail of education and undertake research in relation to, the record, and

(ii)society in general, and in particular relevant persons, may obtain an enhanced understanding of the systems and experiences of

institutionalisation, and placement in care arrangements, of persons;

(c)facilitating the archiving and memorialising of the record concerned; and

(d)ascertaining the quantity and nature of relevant records in the possession of information sources.”.

The amendments in this group introduce a new Part to provide for the preservation of defined categories of records held by private actors so that they are preserved in the public interest. The private actors would include anyone who holds records with regard to mother and baby and county home institutions, Magdalen laundries, industrial schools and reformatories and orphanages as well as the bodies that ran or oversaw these institutions.

They would also include those who hold records relating to adoption agencies and those who were involved in placing people for adoption, into a care arrangement, into an institution or with the persons who assumed the role of parents to them in the case of illegal birth registration.

Amendment No. 9 defines the key terms used in the new Part 3, including "relevant record", "institution", "relevant body", "information source" and "public interest".

Amendment No. 10 provides that the Minister for Children, Equality, Disability, Integration and Youth may designate by order an institution, a relevant body or a relevant record. While the legislation aims to be as encompassing as possible, this section is included to ensure that any relevant institution, bodies or records that come to light and which are not covered can be added as needed.

Amendment No. 11 places an obligation on any private holder of a relevant record to preserve it, making it an offence to destroy, mutilate, falsify or fail to maintain relevant records or to export them from the State. It also provides that the director of the National Archives may direct a person or body to provide a statement outlining the relevant records in their possession.

Amendment No. 12 provides for offences under the legislation. The offences mirror those set out in the Birth Information and Tracing Act 2022, namely, on summary conviction, a class A fine or imprisonment for a term not exceeding six months, or both, or on conviction on indictment, a fine not exceeding €50,000 or imprisonment for a term not exceeding three years, or both.

Amendment No. 13 sets out standard provisions for the service of a notice under the legislation.

Amendment No. 14 amends the National Archives Act to include the new functions assigned to the director under the legislation.

Legislation of this nature has been called for by survivors and former residents, affected persons, their families and advocates. They want to ensure that records which support understanding of their identity and the institutional systems which shaped their life experience in such significant ways are preserved. While the Birth Information and Tracing Act 2022 provides for some safeguarding of records in private hands, its scope relates to identity information for those who were adopted or who have questions in relation to their origins. This legislation is broader in scope and will cover administrative and other records related to those institutions and bodies. I am bringing forward this Committee Stage amendment to this Bill to allow this urgent and important legislation to travel quickly through the necessary Stages in the Oireachtas.

Catherine Connolly (Galway West, Independent)
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I wish to speak briefly to those amendments on the preservation of records. I am on record for welcoming this and saying it has to be done. I do not appreciate the way it is being done. I understand the Minister is under pressure now and it has to be done. In relation to the preservation of records, it is urgent. When the mother and baby home report was published in 2021, I was critical of its recommendations, which were mixed up with conclusions and not very clear. The one that jumped out was that the religious orders should be asked to hand over their records and that never happened. That was 2021.

I thank the people on the ground who have pushed for this. I understand where the Minister is coming from. I appreciate that there is urgency and that we must have legislation that allows for the preservation of records. It sets out what they are. It is not exclusive. Other records might come to light that are not included here, and I welcome that. Also, it would seem, the list of institutions is not limited. I welcome that institutions may be added, if I understand correctly. In his reply, the Minister might tell me if I am correct in that regard.

This is simply preservation. It is incredible in the 21st century that we need to bring in emergency legislation now to ensure the preservation. We know from Dr. Mark Coen in Dublin about documents that were just left there, among other situations. My question is around what will happen if they do not co-operate. How do we know? If the various religious orders and the various bodies do not co-operate, what happens then? How do we know if they do not co-operate? What mechanism is there? Are we reliant on their goodwill? We have been reliant on their goodwill and it did not work. There is any amount of examples of documents not being preserved or just thrown in the scrapheap. That is where I am a little confused. The Minister has my total support on it, but what happens if they do not co-operate? There are offences there, but how do they come into being?

In relation to the director of the archives, what provision will be made? Perhaps the Minister would talk me through that. They are being given new powers and they will be able to issue a statement. How will that work? What will trigger that statement?

Seán Sherlock (Cork East, Labour)
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In a similar vein to Deputy Connolly, first of all I acknowledge the need for this. I appreciate that we had a briefing on this last week. I am old school in that I hate rushing legislation. We need a little more time on these matters, but we are where we are.

I acknowledge the work of Dr. Mark Coen, Dr. Maeve O'Rourke, Dr. Clare McGettrick, Professor James Smith and Professor Katherine O'Donnell and the press release that they issued on 15 October in relation to the need for this legislation.

I speak for people who are the subject of a record but are very protective about that record - their own personal information. Now that record will be onboarded to a national archive or, as I understand it, can be accessed by the National Archives. If a person recognises the need for a record to be preserved but they do not necessarily want it accessed by people inappropriately, are there protections for them to ensure their personal information is protected, remains private and cannot be accessed by another entity beyond the entity where it is stored at present? I hope that makes sense. I am anxious to ensure that when people want to preserve the privacy of their own records, there is no risk that the onboarding of that personal information will risk causing that information to become accessible to other parties inappropriately.

Roderic O'Gorman (Dublin West, Green Party)
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First of all, I thank the Deputies for their support for this amendment and for their engagement with me over recent weeks when we were able to provide briefings on what we are doing here and the reason for the speed at which we are doing it, which I acknowledge. I also thank Dr. Maeve O'Rourke, Dr. Mark Coen and the special advocate for survivors, Ms Patricia Carey, for their engagement with me and with my officials in terms of supporting this section.

I will take a step back from the particular proposals here. As Deputies will be aware, in 2022 we voted to protect and allow access to the personal records of individuals - people who were adopted, were boarded out or were the subject of illegal birth registration. We made it an offence to destroy those personal identity documents and we gave people rights of access to them. What we are dealing with today is not the personal identity documents, but the wider institutional documents, such as financial records. We are not dealing with people's individual names but with documents such as those pertaining to the wider flows of money within institutions, ledgers and staff handbooks. We are talking about a wide range of documents that would have been crucial to the recording of how these institutions operated but did not list the names of individual survivors and former residents. These documents are extremely important in terms of understanding how these institutions operated. We have to recognise that they are the property of these institutions and that property rights are protected within the Constitution. We are placing a very significant restriction on what these institutions can do with these records. I will not make comparisons, but they cannot throw them out. They will no longer be able to decide that a box of files is in the way and that they want to get rid of it. It will be a criminal offence for them do to that. We are putting a very clear restriction on them.

I believe much of the information on those files will be hugely valuable for understanding the structures and how these institutions operated. I would like to see those files accessible through the national centre for research and records that we are working to develop at present. My Department is working closely with the National Archives. With Dublin City Council, we will build on the site on Seán MacDermott Street and allow access there. That will require legislation. It will require legislation if we decide that the State involuntarily takes ownership of all of those records.

It will require access rules in regard to the access of researchers and individuals. It is really important, in response to what Deputy Sherlock said, to say that in all our work, access to a person's individual, personal information is regulated by GDPR and the birth information and tracing legislation. There are strong protections there. When the national centre is opened, those strong protections will be continued and it will require legislation. If it is necessary to do so, I am sure whoever succeeds me in this role will work to enhance those provisions. We are absolutely focused on the information rights of individuals, survivors and former residents of these institutions and ensuring they are cental. What they want accessed or not accessed is a priority over research, over everything else. In fairness, any academic I have spoken to fully recognises and stands to that point. That is the higher level. I hope it describes where this legislation is in terms of the steps. We protected and provided access to personal information. Now we are protecting the more generalised information. It will be for future legislation to talk about access to that more generalised information. There is a balancing there. I am in favour of as much State control as possible but that discussion will require a more detailed piece of legislation and indeed a more detailed process than we have done for the present Bill.

In terms of the specifics of Deputy Connolly's questions, amendment No. 10 allows the Minister designate by order an institution, a relevant body or a relevant record. It allows an institution be added, a body be added, or a relevant record. That is quite a significant power to broaden out the application of what is here. The power given to the director of the National Archives is a power to demand an inventory of the files held by a holder of private records. If that is not provided, there is a criminal sanction as well. The criminal sanction is not just for the destruction, falsifying or exporting of the records. The criminal sanction is also for failing to comply with the action of the director of the National Archives. I would maybe draw a comparison with what was done in Northern Ireland. We are closely mirroring the provisions that have been used there. Those provisions have actually encouraged private record holders to go to the state archives and say they have something and they want to hand it over. Maybe they are not confident they can maintain the records to the degree necessary. There has been a significant transfer of records to the state records in Northern Ireland on foot of similar legislation. It is also worth noting that since we brought in the birth information and tracing legislation, it has also encouraged private record holders here. The ISPCC, for example, has handed over a significant amount of records to the Adoption Authority of Ireland voluntarily, and there is provision under law for that to happen. We resource the AAI in terms of the archive it controls and curates, and obviously the National Archives as well. This is another step towards the protection of and subsequently the access to these privately held records that deal with the wider institutional operations.

Catherine Connolly (Galway West, Independent)
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I thank the Minister for giving some clarification on that. I note that they have had success in Northern Ireland in encouraging people to come forward. Unfortunately that is not our experience in Ireland. It is not the experience of Dr. Mark Coen and what he found on the grounds of the laundry in Dublin. I know from the McAleese report that the Magdalen laundry in Galway distinguished itself by an absence of documents, along with another laundry, the name of which I cannot remember. The two were singled out for an absence of documents. The documents will provide invaluable information and they would have provided invaluable information to Senator McAleese at the time as well, so he might have formed a different opinion as to whether the laundries were making money. He decided they were not there to make money but there were no documents. The documents had gone to the Bishop of Galway. Does the Minister understand? I do not know how many reports I have read at this stage in my political life in respect of this: the Ryan report, the McAleese report, the mother and baby homes report, not to mention all the others. I have not seen any religious organisation come forward on a voluntary basis and say "these are our records." Clearly, those records will give us a much better understanding of what was happening and whether money was being made, just to mention one aspect.

The clarification for the national director - he or she can issue a request for a statement. How do they issue that? What leads them to making that request? What are the circumstances or criteria that will lead to that? When this is passed, does the Minister expect the various bodies, not just the religious organisations but the other bodies, to come forward with their hands up and say "we have all of these records, we need help here from the director or the Government"? Is that what he is expecting? I am certainly not expecting that but maybe I will be surprised. If that does not happen, how do we know they are not being destroyed or are not already destroyed? That might be an impossible question for the Minister to answer. I am trying to tease around it. If the records are there and available, would it not surprise the Minister that they have not come forward in the meantime, particularly after the mother and baby homes report with its recommendation and conclusion, however delicately put, that we might ask them to give us the records? What resources will be given to the national director, and can the Minister provide clarity about when that request might be given and to whom? How will they know who to give it to? Will they work from a list? What are the criteria? Will there be regulations?

Roderic O'Gorman (Dublin West, Green Party)
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In the situations the Deputy describes which have pertained previously in respect of the records of laundries, Dr. McAleese was told there were no records and then they were found in the abandoned Donnybrook Magdalen laundry. I suppose the difference between then and what will pertain after this legislation is that it will now be a criminal offence. It will be a criminal offence to leave records mouldering in a building, not to look after them or guarantee their safety and integrity. Dr. McAleese put down questions to organisations to ask them if they had records and he was told "no". If the director of the archives puts that question and is told "no", and it is found they are lying, that will be a criminal offence. I absolutely share the Deputy's concern about what has happened in the past. We are taking action now so we can address these issues going forward and do it with quite a robust level of sanction. I think that is important.

The National Archives are represented on the working group that is bringing together the national centre for records and research. They are part of that operation there. They would have advised on this legislation. They will advise on the legislation that will anchor the new national centre. They are aware of where there are gaps in our information. They will be aware of where there are institutions in respect of which there is a question mark about whether there are any files or where files are. The director of the National Archives is not operating in a vacuum. The director of the National Archives is part of this work. As I said, certain materials have already been handed over since the birth information and tracing legislation came through. There is a provision under the National Archives Act for organisations to hand over material to the National Archives. Now there is a much stronger onus on holders of records to maintain the records that they have. It is not in an organisation's interest to neglect their records any more because it puts them at risk of committing a criminal offence.

Roderic O'Gorman (Dublin West, Green Party)
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I move amendment No. 10:

In page 6, between lines 30 and 31, to insert the following: “Power to designate institution, relevant body, relevant record

8. (1) The Minister may, where it is necessary and proportionate for the purposes of this Part to do so, by order designate an institution as an institution for the purposes of paragraph (f) of the definition of “institution” in section 7, where the Minister reasonably believes that—

(a) the institution was established for a purpose comparable to any of the purposes for which an institution referred to in paragraph (a), (b), (c), (d) or (e) of that definition was established, and

(b) a record exists in relation to the institution that there is likely to be a public interest in preserving for the purposes of this Part.

(2) The Minister may, where it is necessary and proportionate for the purposes of this Part to do so, by order designate a person as a relevant body for the purposes of paragraph (c) of the definition of “relevant body” in section 7, where the Minister reasonably believes that—

(a) the person was involved in an activity comparable to an activity of a relevant body referred to in paragraph (a) or (b) of that definition, and

(b) a record exists in relation to the body that there is likely to be a public interest in preserving for the purposes of this Part.

(3) The Minister may, where it is necessary and proportionate for the purposes of this Part to do so, by order designate a record as a relevant record for the purposes of paragraph (b) of the definition of “relevant record” in section 7, where the Minister reasonably believes that there is likely to be a public interest in preserving the record for the purposes of this Part.

(4) Every order made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House sits after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done under it.”.

Roderic O'Gorman (Dublin West, Green Party)
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I move amendment No. 11:

In page 6, between lines 30 and 31, to insert the following:

“Duty to preserve and furnish statement of relevant records

9. (1) An information source shall, subject to subsections (8) and (11), in respect of a relevant record in his or her possession—

(a) retain the relevant record,

(b) maintain the relevant record, and

(c) where the relevant record is in the State, prevent the removal of the relevant record from the State.

(2) The Director may, where he or she is of the view that—

(a) a person is in possession of a relevant record, and

(b) it is in the public interest to preserve the relevant record for the purposes of this Part,

and where it is necessary and proportionate for the purposes of this Part to do so, direct, by notice in writing, the person concerned to furnish to the Director within such period, being a period of not less than 3 months, as may be specified in the notice, a statement, in such form as may be specified by the Director, of the relevant records in the possession of the person concerned on the date on which the statement is made.

(3) A person who receives a notice under subsection (2) shall, subject to subsection (5), furnish to the Director within the period specified in the notice—

(a) where he or she is not in possession of a relevant record, a statement that he or she is not in possession of a relevant record, or

(b) where he or she is in possession of one or more than one relevant record, a statement of the relevant record or relevant records concerned.

(4) Where an information source who has furnished a statement in accordance with subsection (3)—

(a) becomes aware that a relevant record was in his or her possession on the date on which the statement was furnished but was not specified in the statement furnished in accordance with paragraph (b) of that subsection, or

(b) comes into possession of a relevant record after the statement is furnished,

the information source shall, subject to subsection (5), as soon as practicable but not later than 6 weeks after the date on which the information source becomes so aware or comes into such possession, as the case may be, furnish to the Director a statement, in such form as may be specified by the Director, of the record concerned.

(5) The Director may extend the period specified by him or her in a notice under subsection (2), or referred to in subsection (4), on application to him or her in that behalf in writing by the person concerned before the expiration of the period concerned, if the Director is satisfied that there is good and sufficient reason for the extension—

(a) due to the volume or complexity of the relevant records concerned, or

(b) where it is otherwise likely that it will not be possible for the information source to furnish the statement concerned.

(6) The Director may, subject to subsection (9), certify on application to him or her in writing by a person who is in possession of a relevant record, that the record concerned does not warrant preservation for the purposes of this Part.

(7) For the purposes of providing certification of a relevant record in accordance with subsection (6), the Director may do either or both of the following:

(a) inspect and examine the record which is the subject of the application under that subsection;

(b) request further information in relation to the record concerned from the person making the application.

(8) Subsection (1) shall not apply in respect of a relevant record where the Director certifies, in accordance with subsection (6), that the relevant record does not warrant preservation.

(9) The Director shall certify that a relevant record does not warrant preservation in accordance with subsection (6) only where—

(a) he or she is satisfied that the relevant record is already in the public domain, or

(b) he or she is of the view that—

(i) the condition of the relevant record is such that the record does not warrant preservation,

(ii) the relevant record has no archival value, having regard to this Part, or

(iii) there is no historical or public interest in preserving the relevant record for the purposes of this Part.

(10) The certification of a relevant record in accordance with subsection (6) shall not affect any obligations on a person to preserve the record for a purpose other than a purpose under this Part.

(11) Nothing in subsection (1) shall prevent—

(a) compliance by an information source with his or her obligations under section 48(5) of the Act of 2022,

(b) compliance by an information source with his or her obligations under the Commissions of Investigation Act 2004 relating to the work of a commission established under that Act to investigate any matter related to an institution or an activity of a relevant body, or

(c) the sale, donation, bequest or loan by an information source of a relevant record in accordance with section 4(1)(f) of the Act of 1986.

(12) The Director may prepare and publish guidelines, in such form and manner as he or she considers appropriate, on any matter to which this section relates.”.

Roderic O'Gorman (Dublin West, Green Party)
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I move amendment No. 12:

In page 6, between lines 30 and 31, to insert the following:

“Offences

10. (1) An information source or a person acting on behalf of an information source who, without lawful authority or reasonable excuse, knowingly in relation to a relevant record other than a relevant record certified in accordance with section 9(6)—

(a) conceals, destroys, mutilates, or falsifies the relevant record,

(b) fails to maintain the relevant record, or

(c) removes the relevant record (where, on the coming into operation of this section, the record was in the State) from the State,

shall be guilty of an offence. (2)A person who fails to comply with a direction of the Director under section 9(2) shall be guilty of an offence.

(3)A person guilty of an offence under this section shall be liable— (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months, or both, or

(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 3 years, or both. (4)Where an offence under this section is committed by a body corporate and is proved to have been so committed with the consent or connivance of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.”.

Roderic O'Gorman (Dublin West, Green Party)
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I move amendment No. 13:

In page 6, between lines 30 and 31, to insert the following:

“Service of notice

11. (1) Subject to subsection (3), a notice under section 9(2) to be served on or given to a person shall be addressed to the person concerned by name and may be so served on or given to the person in one of the following ways:

(a) by delivering it in person;

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address;

(d) by electronic means, in a case in which the person has given notice in writing to the Director of his or her consent to the notice being served on, or given to, him or her in that manner.

(2) For the purposes of this section, a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.

(3) Where a notice is required or authorised by or under this Part to be served on or given to the owner or occupier of land and the name of the owner or of the occupier cannot be ascertained by reasonable inquiry, it may be addressed to “the owner” or “the occupier”, as the case may require, without naming him, her or it.”.

Roderic O'Gorman (Dublin West, Green Party)
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I move amendment No. 14:

In page 6, between lines 30 and 31, to insert the following:

“Amendment of Act of 1986

12. Section 4(1) of the Act of 1986 is amended by the insertion of the following paragraph after paragraph (f):

“(fa) the performance of functions assigned to the Director under Part 3 of the Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024,”.”.

Roderic O'Gorman (Dublin West, Green Party)
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I move amendment No. 15:

In page 3, line 8, after “Oireachtas;” to insert the following: “to amend the Employment Equality Act 1998; to amend the Social Welfare Consolidation Act 2005; to provide for the preservation, in the public interest, of certain records relating to certain institutions and bodies;”.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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I thank Members and congratulate everybody involved.