President Michael D. Higgins, having given careful consideration to all constitutional and other aspects of the ‘Commission of Investigation (Mother and Baby Homes and certain related Matters) Records, and another Matter, Bill 2020’, and having considered all the options available to him, has signed the Bill, one of four Bills submitted to the President late last week.
The President has followed the passage of this Bill through both Houses of the Oireachtas, and has listened carefully to the debate and the issues raised as to the rights of access to information submitted to a Commission.
While noting that important concerns were raised in the discussion on this Bill which are serious and must be addressed, the Bill itself did not directly raise a constitutional issue suitable for an Art 26.1.1 referral.
When considering any piece of legislation, the President must also be cognisant of Art. 34.3 of Bunreacht na hEireann, which provides that no Court can question the validity of any legislation following a referral by the President to the Supreme Court. The President’s decision to sign this legislation leaves it open to any citizen to challenge the provisions of the Bill in the future.
Meanwhile, Roscommon / Galway Fianna Fáil Senator Eugene Murphy has emphasised that the Bill around the Mother and Baby Homes Commission is being brought forward to preserve invaluable information, not to put it beyond reach.
“I understand that this is an extremely sensitive and difficult situation and there is so much grief and sorrow surrounding the issue but I think it is important to point out that if the database was to remain under the 2004 act then large parts of it would be lost. The Legislation is being brought forward to provide urgent and critical legal clarity surrounding the future use of a database compiled by the Mother and Baby Homes Commission.
“The bill is being brought forward to preserve invaluable information, NOT to put it beyond reach as has been reported.
“The bill will make it possible for the database that has been compiled by the Commission to be accessible under current legislation, and to make it available for use under future birth information and tracing legislation.
“It is important to state that the purpose of this legislation is also to preserve all of the records, which the Commission has compiled in the course of its work, and it does not otherwise alter the governance of the Commission’s archive under the Commissions of Investigation Act 2004.
“The Government is absolutely committed to advancing that wider legislation in due course, and in doing so provide the chance for all those with a clear stake in this process to contribute.
“It is critically important that we acknowledge here that the Commission received testimony from individuals who were former residents of Mother and Baby Homes under a guarantee of absolute confidentiality. That is a commitment to many people with real lived experiences of past trauma, which cannot be reneged upon. We must not forget that this is not simply just a historical or legal matter; it’s a real living issue for many people.
“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,” concluded Senator Murphy.