Email Newsletter – July 2013 – End of Term Roundup

 It’s been another incredibly busy term. There have been highs and lows, meetings of minds and divergences of opinion over contentious issues. Not least the Protection of Life During Pregnancy Bill 2013 and the 32nd Amendment of the Constitution (Seanad Abolition) Bill 2013. In this, my last newsletter before we resume in September, I would like to set out my thinking on these two Bills and give you some of my term highlights. The following hyperlinks will let you peruse the newsletter at your leisure:

Protection of Life During Pregnancy Bill

Seanad Abolition

International Women’s Day

Transparency and Accountability

Party Leaders Allowance

Childcare

Genealogical

Disability

LGBT Rights

My work does not stop when the Houses rise. I will be spending the summer researching, preparing and strategising for the important work ahead, including the Child and Family Agency Bill 2013, revised Heads of Children First Bill, and the Assisted Decision-Making (Capacity) Bill 2013.

I would like to thank my contributors and team, particularly my assistant Amy McArdle whose professionalism, human rights and legal expertise, helps me maximise my input and engagement.

I look forward to working with you into the future and if there are others who you feel would be interested in my work please forward them this newsletter or invite them to subscribe to it on my website www.jillianvanturnhout.ie

Best wishes,

Jillian.
Protection of Life During Pregnancy Bill:

As a member of the Joint Oireachtas Committee on Health and Children, I was privy to the 6 days of Committee hearings, 3 days in January and 3 in May, on the Government’s options following the Expert Group Report and the Heads of the Protection of Life Bill respectively.

The hearings provided a forum to discuss the legal, medical and ethical issues relevant to the Bill and heard from experts, often espousing very contrary views, from each of these disciplines. It was an extremely useful exercise for me and following serious thought, careful consideration and same examination of conscience I employ before making any decision as a legislator, I found I was able to support the Bill and its passage through the House.

My decision to support the Bill was notwithstanding a number of genuinely held concerns. I was not in favour of the Bill making a distinction between a risk of loss of life emanating from a physical or mental health condition. Aside from being unnecessarily legally, I believe in the wider public debate on mental health and efforts to destigmatise mental health illness is a regrettable and retrograde step. I argued that the threatened 14 year prison term and unlimited fine was barbaric and a wholly inappropriate means of appeasing opponents of the Bill who, let’s face it, would be opposed to the Bill however drafted because they are fundamentally opposed to the principal. Finally, I expressed my concern over the absence of distinct legislation to clarify issues of capacity and consent where the patient is under the age of 16 years. The Minister for Health has given me a commitment to bring forward legislation to address the capacity and consent for children. Click here to read my speech.

Seanad Abolition:

I take my role as a legislator very seriously. I am also a citizen, who is directly impacted by the legislation we pass and votes in referenda to change the Constitution, as will be the case when the question of Seanad abolition comes before the Irish people in the autumn.

As such, in coming to the Government’s 32nd Amendment of the Constitution (Seanad Abolition) Bill, I endeavoured to balance my Senator’s hat and private citizen’s hat appropriately and honestly and the truth is I haven’t arrived at a definitive position yet.

As an active Member of Seanad Éireann I see its flaws, I live the frustration and I understand the criticisms. On the other hand, I have seen and experienced the capacity of the Seanad to scrutinise Bills, to secure greater human rights proofing of legislation and policy, and to add a layer of expertise and consideration that is often lacking in Dáil debates. At the very least, the Seanad is in need of radical reform. So too is the Dáil if we are to resuscitate political democracy in Ireland. As it stands, I am not yet convinced about the Dáil’s ability to deliver the self-reform needed to plug the checks and balance gap that would be left by the Seanad’s abolition.

I went into some considerable detail on these points in my Second Stage intervention to the Seanad and made it clear that I would not impede the passage of the Bill through the House.

Arriving at my position on this incredibly important question is a journey that I am still in the process of taking. However, what I do believe, as reflected in my intervention and in my vote against a Motion tabled by my Seanad Colleagues to recommit the Bill back to Committee Stage and consequently delay the Referendum, is that this is a question for the people and the people alone to answer.

You can read my Seanad contribution in full here.

International Women’s Day:

To celebrate this year’s International Women’s Day, 8 March, I was delighted to host a lunch for participants of the Women for Election Programme. This innovative, non-partisan programme is designed to inspire, equip and inform women to run for political office. My guest of honour was Kirsten Gillibrand, United States Senator for New York. She gave us a unique insight into being a woman in US politics, the balancing of work/family/life commitments, childcare, and other issues identified as barriers to women entering into the political arena.

Transparency and Accountability:

I find Senator Gillibrand’s approach to politics very interesting. She is the first member of Congress ever to post their official daily meetings online every day, so her constituents can see who is lobbying their Senator and for what. I also feel strongly about lobbying and recently tabled a Private Members Motion calling on the Government, in addition to the planned Regulation of Lobbying Bill 2013, to introduce transparent and accountable regulations governing Parliamentarians in their engagement with lobbyists. Like Senator Gillibrand, I am committed to transparency and accountability. I believe that every Senator should publish an annual statement of the public money they receive and I invite you to view my statements for 2011 and 2012, which has been endorsed by Transparency International Ireland and can be viewed here.

Party Leaders Allowance:

Back in March 2012, during the debate on the Electoral (Amendment) (Political Funding) Bill 2011 myself and my fellow Group Senators tabled a series of wide-ranging amendments including one to ensure that allowances paid to Party Leaders and Independent Members of the Oireachtas are vouched. All of our amendments were rejected. I was therefore surprised and very pleased by the Government’s decision to introduce vouching to the party leaders’ allowance system.

Childcare:

In addition to initiating a Seanad debate following the broadcasting of Prime Time’s “A Breach of Trust” in May, which documented instances of maltreatment and emotional abuse at the three Irish Childcare facilities, I also hosted a special briefing session by Early Childhood Ireland on examples of good practice and quality in the provision of early childhood care and education, which was very well attended by Oireachtas Members.

Genealogical:

One of my hobbies is genealogy, and I am currently tracing my own family tree. The European Commission is set to consolidate data protection within the European Union and I am concerned that no mention was made of genealogical records. I was aware that the issue of data protection was on the agenda of an informal meeting of Ministers for Justice and Home Affairs in Lithuania and I tabled an Adjournment Motion to request that Minister Shatter raise the importance of ensuring the continuing availability of genealogical records at that meeting.

Disability:

I was delighted to host a briefing session for Oireachtas Members by the Disability Rights Coalition Ireland on the issues affecting young adults with an intellectual disability and/or autism leaving second level education, who need further support from disability services. I fully agree with the Coalition’s aim to promote empowerment of people with a disability rather than conforming to typical charity model. During an excellent debate on the tremendous work of Special Olympics Ireland, I also took the opportunity to put the spotlight on emerging social entrepreneurs who have started HeadstARTS, which endeavours to empower and enable people with intellectual disabilities through the arts.

LGBT Rights:

Along with Senator Fiach Mac Conghail, I was honoured to cosponsor the Legal Recognition of Gender Bill initiated by our fellow Group Senator Katherine Zappone, which seeks to introduce a Gender Recognition Register which would collate self-declarations of gender from transgender individuals. I will continue in the new term to ensure the human rights proofing of legislation and policy and to advocate on a multitude of issues from direct provision accommodation to stroke and heart heath awareness. I will also continue to maximise the Committee structure as a member of the Joint Oireachtas Committee on Health and Children by addressing real and pressing concerns in health and child related issues and through the quarterly meetings with Ministers Frances Fitzgerald TD and James Reilly TD, and Minsters of State Kathleen Lynch TD and Alex White TD.

Special Olympics Ireland: Motion

Wednesday, 17th July 2013

I welcome the Minister of State, Deputy Kathleen Lynch. I also welcome the publication of the Assisted Decision-Making (Capacity) Bill because it is historic in more ways than one, but I know we will discuss it on another day.

I wholeheartedly support the motion put forward by Senator Mary Moran and her colleagues in the Labour Party. Special Olympics Ireland is a tremendous organisation and I welcome people from the organisation who are in the Visitors Gallery. I read its mission, which I am surprised nobody mentioned yet. It states: “The mission of Special Olympics is to provide year-round sports training and athletic competition in a variety of Olympic-type sports for children and adults with intellectual disabilities, giving them continuing opportunities to develop physical fitness, demonstrate courage, experience joy and participate in a sharing of gifts, skills and friendship with their families, other Special Olympics athletes and the community.” That is wonderful. We often read the lofty missions of organisations but Special Olympics Ireland lives that mission in its work every day and it achieves exactly what it says.
There are 26,449 people with an intellectual disability in Ireland. Just shy of 9,000 are registered athletes with Special Olympics Ireland, which clearly demonstrates its reach and the huge range of activities. I read about Alpine skiing, gymnastics and football, which put any of my sporting attempts to shame. I thought I did well at hockey in school but I may have to revise my assessment, especially given athletes like James and Cillian who achieve so much, and that is multiplied throughout Ireland.
June 2003 was mentioned. I am so proud, as an Irish citizen, that we hosted what were the most successful games in Special Olympics history which reached into every community in Ireland. One only needs to mention it and it put smiles on all our faces.

I also take the opportunity to mention another organisation which shares many similarities with Special Olympics Ireland in its pursuit to enhance the quality of life for people with intellectual disabilities. The organisation is called HeadsARTS. It is a very young organisation and its mission is to empower and enable people with intellectual disabilities through the arts. I also welcome people from that organisation who are in the Visitors Gallery. I have been privileged to see its work as a start-up social entrepreneurial organisation. It wants to become Ireland’s leading service provider of arts for people with intellectual disabilities and wants to create a trustworthy and creative environment which encourages and enables its members. It has very much learned from and is borne out of experiences with Special Olympics Ireland. It is asking if there are other options it can offer young people and adults with intellectual disabilities who may not necessarily be sports-minded.

Where are the opportunities with which we can provide them? Both organisations rely very much on volunteers, carers and parents. People with intellectual disabilities are entitled to the same opportunities as all of us in society. They should have an equal opportunity to engage in the arts as well as sports, both of which are proven to enrich our lives. I want to commend the vision of HeadstARTS. It involves three young students in DCU who could choose to do other things. If one believed everything one read in the newspapers, one would think that students were doing other things. Instead, these students have given up their time to set up an organisation. They are funded through UStart, DCU, and many others are trying to support them. It is great to see students and young people showing this initiative.

I note the Sinn Féin amendment, but this is a positive day. I want to keep it positive. We must question, however, the type of society we wish to have. That society must include organisations like Special Olympics Ireland and HeadstARTS. Their values should be our values. The State must support these organisations. Senator Moran has set out the financial case for Special Olympics Ireland. I have no doubt that HeadstARTS also has needs. Support for them would demonstrate our values as a society. While I join with Senator Moran and her Labour Party colleagues and say “Well done” to Special Olympics Ireland, we will also have to put our hands in our pockets, not just applaud them.

Protection of Life During Pregnancy Bill 2013: Second Stage

Tuesday, 17th July 2013

I welcome the Minister to the House. I also welcome the opportunity to share my deliberations on the Bill.

As a member of the Oireachtas Joint Committee on Health and Children I attended the six days of hearings on the legislation. Over three days in January we discussed the implementation of the Government decision following the expert group report and over an additional three days in May, we considered the heads of the Bill before us. The hearings provided a forum to discuss the legal, medical and ethical issues relevant to the legislation and we heard from experts, often espousing contrary views, from each of these disciplines.

I fully support the Government’s decision to legislate to implement Article 40.3.3° as interpreted by the Supreme Court in the X case. However, I have concerns about the Bill. The principal point of contention is section 9 – risk of loss of life from suicide. Suicide in pregnancy is real. It is a real risk to the life of a pregnant woman and it happens. I am concerned about us drawing a legal distinction between a risk of loss of life emanating from a physical or mental health condition. No such distinction is enumerated in Article 40.3.3° nor was a distinction made by the majority of the Supreme Court in the X case. Separating physical and mental health in the wider public debate on mental health and efforts to destigmatise mental health illness is a regrettable and retrograde step. I fully agree with Senator Gilroy who spoke yesterday on this issue and endorse his view. During the hearings and my own research I encountered conflicting legal reasoning and argument around the suicide question. However, I remain unconvinced about the need to distinguish between the manner through which a “risk of loss of life” manifests. The conclusion of the expert group was that a differentiated treatment does not appear to be required for medical or practical reasons.

It is strongly my view that sections 7 and 9 should have been merged. I remind my colleagues of the examples we heard about how suicide can and does manifest in pregnancy: a woman with an eating disorder, who had taken three overdoses in the course of her pregnancy because she could not deal with the additional stress of the pregnancy on top of her psychological disorder; a woman who was pregnant as a result of paternal incest; and a woman who was in an abusive relationship, in which the level of physical violence and abuse had increased during the pregnancy – she was trapped, frightened for her safety and suicidal. Many contributors to this debate have stressed their belief that “abortion is never a treatment for suicide”. I refer to Dr. Anthony McCarthy who rightly points out that “abortion is never a treatment for suicide, but neither is counselling, psychotherapy, antidepressants or anything else. There is no treatment for suicide.”

Over the past few weeks we have heard much use of the word “conscience”, which is a “person’s moral sense of right and wrong, viewed as acting as a guide to one’s behaviour”. I assure the House that in each and every decision I take as a Senator I apply my conscience. I did so when I voted against the cuts to respite care, blanket cuts to child benefit, cuts to disability services and the targeting of lone parents in successive budgets. I do not reserve my conscience to be used only for specific legislation. I would like greater consistency on children’s rights issues in these Houses in the future.
Throughout this debate, the term “pro-life” is frequently used as a calling card to identify opponents to the Bill. I object to this terminology and its connotation. In supporting the Bill, is the upshot that I am not pro-life? I assure the House I am absolutely pro-life, both of babies and women alike. A delegation of so-called pro-life Senators and Deputies went on a “Search for Truth” trip to the US earlier this year. I believe others have gone on previous occasions. This trip was apparently funded by the Family & Life organisation, which, according to its own website, is opposed to the MMR vaccine. It suggests as an alternative that we wait for the development of a product that is outside the current limits of science. The MMR vaccine has been proven to save lives.

It is reprehensible that any Member could purport to be pro-life and yet associate with an organisation that is against the HSE vaccination policy which is about saving lives. I call on Senators who availed of the funding for the trip to state clearly whether they support the HSE’s vaccination policy.
I am extremely concerned about the scope and potential application of section 22 of the Bill. The penalty provided for is too severe and the scope of the provision is too broad. A penalty of 14 years in prison and an unlimited fine represent an extraordinarily onerous sanction. Presumably, 14 years is anticipated to be the starting point for a judge in deciding what sentence to impose in the event of a successful prosecution, which will be reduced on the basis of mitigating factors and circumstances. Some 152 years after their enactment, we will ensure the chilling effect of sections 58 and 59 of the Offences against the Person Act 1861 is carried forward into the Bill. Is this really what we want to do? I was struck by the implications of the section for young girls sourcing abortifacient tablets over the Internet, which potential scenario was hypothesised by several Deputies in the Dáil. I find it hard to envisage that any court would see fit to sentence a 15 year old child to 14 years imprisonment for bringing about the termination of an unwanted pregnancy. It would fly in the face of the sentencing principle of providing for light at the end of the tunnel. The penalty is highly unlikely to act as a deterrent, given the likely lack of capacity for reasoned and rational thinking of a terrified 15 year old pregnant girl.

Section 22 is not justified as a means of protecting society. Why are we, as legislators, proposing to enact it? Let us be honest. It is a way of appeasing people who are opposed to the Bill and would oppose it no matter how it was drafted. They are fundamentally opposed to the principle. The penalty suggests to them that they should not worry because where people deviate from the strict limits set out in the law, the State will bear down on them with an iron fist. This is no way to determine an appropriate sentence for a transgression of a law on a complex issue involving potentially vulnerable, scared and desperate women and girls. It is barbaric. If the potential imposition of a custodial sentence longer than that applied to most rape, incest, violent sexual assault, murder and manslaughter cases was required to allow some Members to support the Bill, I am disappointed. The provision is potentially very dangerous. Women and girls who have taken abortifacients and develop serious life-threatening complications will be extremely unlikely to seek timely medical help in the face of a 14 year prison sentence. Are we really purporting to introduce a law entitled the Protection of Life During Pregnancy Act which, by its own sanction, may put women’s and girls’ lives at risk?

I am concerned about the silence in the proposed legislation on children, particularly young girls. The X, C and D cases involved children under the age of 16 years, including children in State care. The Bill is silent on the complex issue of consent for minors for access to medical treatment. It does not distinguish between women over the age of 18 years who have the right to refuse or consent to medical treatment and under-age girls, for whom there are no clear laws governing issues of capacity and consent. I cannot imagine the unbearable situation of a child who has been raped by someone they trusted, is now pregnant and in the care of the State. Parents will normally be asked to give their consent to medical treatment on a child’s behalf. The law is unclear with regard to under-16s who seek access to medical treatment without their parent’s knowledge or permission. We must remember that consent also includes the right to refuse. We continue to bury our heads in the sand when it comes to the scenario I have outlined which, while unimaginable, occurs in Ireland. We are uncomfortable about facing up to this reality and dealing with it appropriately. We have a responsibility, as legislators, not to compound in the legislation the voicelessness of children in the care of the State. We need distinct legislation to clarify issues of capacity and consent where the patient is under the age of 16 years.

After careful consideration, much thought and despite the concerns I have raised, I support the Government’s decision to legislate as proposed in the Protection of Life During Pregnancy Bill which deals only with rare and complex circumstances. As some fear and have resisted, the legislation will be the starting point of a wider public and political debate in which are considered what others have argued, 21 years after the X Case ruling, are the contemporary issues which should be central to the present debate, including fatal foetal abnormalities, pregnancy as a result of rape and incest and wider reproductive health considerations. These issues will direct a spotlight on the eighth amendment of the Constitution. The people will no doubt be called upon to inform the Government of their wishes through a referendum. That is the beauty of a popular sovereignty. The will of the people will win out and inform the Legislature on changes, if required, to our legal arrangements. Debate around social change is to be welcomed and embraced if we are to evolve and grow as a society.

Email Newsletter – July 2013

I am delighted that my recent work on the Courts and Civil Law (Miscellaneous Provisions) Bill 2013 has secured three important wins towards increased protection for child witnesses in criminal proceedings. 

The text of the relevant sections of the Seanad debate can be found both at Committee Stage and Report Stage.

– Disclosure requests of children’s private and confidential therapy notes

– The therapeutic process

– Substantive Amendment

– Government responses

– Acknowledgements

I look forward to bringing you my next update soon.  Feel free to contact me if there are any issues you would like to discuss.

Best wishes,

Jillian.

Disclosure requests of children’s private and confidential therapy notes:

Disclosure of complainants’ confidential records in criminal proceedings, be they medical, psychiatric, or therapeutic, and indeed be the complainant an adult or a child, in the absence of any legislative guidelines is an issue of considerable and pressing concern to me.

The genesis of the Amendment I submitted to the Courts Bill was my heightened concern by reports from practitioners treating sexually abused children of increasing requests from the DPP’s office for access to therapy notes from children’s private and confidential therapy and counselling sessions over the last 6-12 months.

The therapeutic process:

To understand the difficulty thrown up by these blanket requests for disclosure, it is important to understand that the therapeutic process happens in two distinct phases. The first phase is the compilation of an Assessment Report, which records the baseline account, the who, what, where and when of the abuse the child is alleging. It is clearly material evidence relevant to a criminal investigation and trial and is rightly subject to disclosure. The second phase, the therapy and in turn the therapy notes, is concerned with documenting the child’s feelings, thoughts, hopes, fears, dreams and the like. If any information arises in the course of the therapy phase that substantively alters the account given in the Assessment Report, the practitioner will update the Assessment Report accordingly and make it available to the relevant parties. In effect, any information or material evidence relevant to a criminal investigation or trial for child sexual abuse is already disclosed as a matter of course. The information left, contained in counselling records and therapeutic notes has no material relevance but is the heart and soul of a damaged child and should not be subject to blanket disclosure.

Substantive Amendment:

I saw this Bill as an opportunity to introduce much needed legislative provision and clear practice for the disclosure of sexual assault counselling communications of children who are witnesses in a criminal trial whereby such disclosure would only be granted by the trial court if: the evidence sought has substantive probative value; there is no other evidence which could prove the disputed facts; and the public interest in disclosure outweighs the potential harm to the child.

In tabling my substantive Amendment I was acutely aware of the need to strike the proper and appropriate balance between the right of child witnesses in child sexual abuse cases to privacy as well as their right not to be re-victimised or unduly traumatised by the criminal justice system, the right of the accused to procedural fairness, and the public interest.

Following extensive research and legislative analysis around disclosure practices in other jurisdictions, I believe the legislative solution I proposed was wholly compatible with Irish Constitutional law, Ireland’s obligations under the European Convention of Human Rights, and in the best interests of the child.

Government responses

While the Minister for Justice and Equality, Alan Shatter TD, was not in a position to accept my Amendment at either Committee or Report Stages, I was extremely heartened by his support for my efforts and the extent to which he positively engaged with resolving what he accepts is a lacuna in the law.

As a result of my Amendment, Minister Shatter has decided that instead of awaiting the examination of the issue by the Law Reform Commission as part of its fourth programme, which would have seriously delayed legislative action, the issue will now be addressed in the forthcoming Sexual Offences Bill, to be published at the end of October at the latest.

In addition, and in direct response to a separate issue I raised at Report Stage about the traumatic and detrimental impact of repeated interviewing of child victims by separate agencies (most commonly in the context of a parallel Garda investigation alongside a child protection investigation), Minister Shatter agreed that repetitive interviews should be avoided and committed to raising the matter with the Minister for Children, Frances Fitzgerald TD, with respect to the approach taken by the HSE and new Child and family Agency, and the Garda Commissioner.

Finally, you will recall in my last newsletter that I raised my concern over reports of routine breaches of the Children Act in Children Courts during Second Stage of this Bill and secured a commitment from Minister Shatter to have his officials write to the Courts Service to raise the matters and to ensure any breaches are remedied.

All in all this Bill, originally introduced to amend the in-camera rules for representatives of the press in family law and child care proceedings, and to raise the monetary amounts that the District and Circuit Court can award, evolved into quite the vehicle through which to increase the protection of children in the criminal justice system.

It is at times like these that I fully appreciate the privilege of my Senatorial role, which allows me to directly input and effect positive change in the legislation we are developing.

Acknowledgements:

I would like to commend the stellar work that has been done on this issue over the past number of years. Particularly, the concerns raised by Dr Geoffrey Shannon, Government appointed Special Rapporteur on Child Protection, in a number of his annual reports, most recently his 4th Annual Report published in 2010.

I also note the calls for action by many children’s and human rights NGOs, civil society organisations and practitioners in the field of specialised assessment and therapeutic services for children that have been sexually abused. I am grateful in particular to the support and advice I received from the Rape Crisis Centre Ireland and Children at Risk Ireland in understanding the current lacuna in the protection of confidential therapy notes and records and developing the legislative solution I proposed.

Last but not least, I would like to thank my Seanad colleagues: Ivana Bacik (Labour); Averil Power (FF); Martin Conway (FG) and Trevor Ó Clochartaigh (SF) for the cross party support my Amendment received at both stages of this important debate.

Adjournment Motion – Revised EU data protection Legislation and the rights of citizens

Tuesday, 9th July 2013

Senator Jillian van Turnhout:

I welcome the Minister of State to the House.

I am aware that an informal meeting of Ministers for Justice and Home Affairs will be taking place at the end of next week in Vilnius and understand that the general data protection regulation is the agenda of that meeting.

I have been contacted by a number of people in the genealogical community who are concerned that the European Commission plans to unify data protection within the European Union with a single law, the general data protection regulation, which may have unintended consequences. I have specifically been contacted by Michael Merrigan, general secretary of the Genealogical Society of Ireland who, in turn, has been contacted by the Genealogical Society of Finland. I thank them for the information with which they have provided me.
I have a keen interest in researching my family history and have first-hand experience of accessing resources through my research. I realise the sensitivity of some data and so understand that we need to protect privacy. We have all welcomed the renewed focus on genealogy due to events surrounding The Gathering. In addition, the Government has proactively engaged in the provision of online access to genealogical resources through the national repositories and its genealogy web portal . I am also aware of the sheer dedication and work by genealogists such as Stuart Rosenblatt who has provided the State with an invaluable 16 volume archive spanning more than four centuries. He is a guiding example to us all.

The recent report published by the Joint Committee on Finance, Public Expenditure and Reform with regard to its hearings in relation to the draft general scheme of the Freedom of Information Bill highlighted the need to seek the inclusion in the proposed legislation of the following as a guiding principle by which record holders, the State and State agencies, would give public access to records with a genealogical potential by the inclusion of a section that states that the legislation endorses and fully supports the principle of public ownership and right of access to our genealogical heritage. Doing it in this way will allow statutory instruments and departmental guidelines to take cognisance of the principle when assessing public accessibility to records with a genealogical potential.

I am cognisant that an EU regulation must be observed by all member states. The impact of the inclusion of civil registration records in the scope of the data protection directive, if that is what is proposed, would have a very detrimental impact on genealogical, biographical and historical research. While such a measure would have no impact on existing public access to genealogical resources held by the National Library and the National Archives, it could create an atmosphere of fear of litigation on the part of custodians of records of genealogical potential.

Can the Minister ensure that the revised EU data protection directive-regulation does not impair the right of the citizen to engage in bona fide genealogical, biographical or historical research and that the principle of public ownership and right of access to our genealogical heritage will be enshrined as a guiding principle? I believe genealogy should be expressly mentioned in the regulation and hope that the Minister of State can give us assurances today.

On a specific point, Article 6, paragraph 2, of the regulation should be rewritten so that it makes an exception from the general principle for processing of personal data, namely, the data subject has given consent to the processing. As a result, it would not be necessary to request consent to processing of personal data when the purpose is historical research or genealogy.

I hope we can obtain assurances from the Minister of State that the access to genealogical, biographical or historical records will not be impaired and that we will be able to ensure public access for generations to come.

Minister John Perry:

I am here on behalf of my colleague, the Minister for Justice and Equality, who is unable to be present. I thank Senator van Turnhout for raising this important subject.

In the first instance, I will briefly set out the background to the European Commission’s proposals for reform of data protection law. The centrepiece of existing EU legislation on personal data protection is Directive 95/46/EC which seeks to reconcile the protection of personal data with the free flow of such data within the Internal Market and to countries outside the EU. It is widely recognised that the 1995 directive needs to be updated to take account of more recent developments such as increased use of the Internet, blogs and social networking sites and increasing globalisation of data transfers. In 2010, the Lisbon treaty introduced a new legal basis for strengthened data protection standards in the European Union, and Article 8 of the Charter of Fundamental Rights of the EU enshrines protection of personal data as a fundamental right.

In January 2012, following completion of an extensive consultation process, the European Commission tabled proposals for a radical shake-up of the current regulatory framework. These proposals are being discussed separately by the Council of the European Union and the European Parliament at present. Adoption of the reform package is subject to co-decision between both institutions. Article 5 of the Commission proposal for a general data protection regulation, which sets out the principles relating to personal data processing, recognises that it may be necessary to retain personal data for historical, statistical or scientific purposes. Article 83 sets out specific provisions for the processing of personal data for historic, statistical and scientific research purposes. While the Minister has until now not been made aware of the specific concerns of the genealogical sector, he is aware that concerns have been raised that the provisions in the Commission proposal are not sufficient to accommodate the processing of personal data for historical, statistical, scientific or archival purposes. The Minister shares these concerns.

As the Senator may be aware, achieving progress on the European Commission’s proposals to update the Union’s data protection standards was a priority of the Irish Presidency and I am pleased to say that substantial progress was achieved on key aspects of the reform package. In June, the Minister submitted a progress report to the Justice and Home Affairs Council, which identified key aspects of Chapters I to IV of the draft regulation. In addition, a draft revised text of Chapters I to IV, which reflects the view of the Minister, as the then President of the Justice and Home Affairs Council, of the state of play of negotiations at that stage, has been prepared. The Minister has arranged to have these documents laid before the Houses for the information of Deputies and Senators. The draft revised text includes a number of proposals, which have yet to be discussed in detail at expert level, to address concerns in respect of the implications of the draft regulation for the processing of personal data for historical, statistical or scientific purposes. I understand it is intended to discuss this issue at expert level shortly. The detailed discussions relating to these proposals will provide an opportunity to consider whether proposals to deal with the processing of personal data for historical, statistical or scientific research purposes are sufficient to cover archival purposes as well as bona fide genealogical and biographical research or whether specific provisions in this regard will be necessary.

The Minister believes that the concerns relating to the implications of the draft regulation for historical, statistical, scientific or archival purposes, including for bona fide genealogical and biographical purposes, must be examined further at expert level by the Council working party on data protection and exchange of information, DAPIX, and addressed, where necessary, by means of appropriate amendments to the regulation.

Senator Jillian van Turnhout:

I would appreciate it if copies of the Minister of State’s script could be made available. Traditionally, such scripts are provided to Members. It would be useful if we were able to examine its contents.
I thank the Minister of State for the assurances he provided. I reiterate the importance of including a specific reference to genealogy to ensure there will be public access to these records when such access is for bona fide purposes. I will correspond with the Minister for Justice and Equality on this issue because it is important that it be viewed in conjunction with the general data protection regulation.

Minister John Perry:

I will be happy to supply the Senator with a copy of my script. The European Commission tabled proposals for a radical shake-up of the existing data protection framework. Those proposals undoubtedly comprise one of the most important reform packages being discussed at EU level at present. Data protection affects all of us, whether in a private capacity as individuals, in a business or professional capacity or as users of personal data. It is for this reason that the Minister for Justice and Equality launched a public consultation process in March 2012 to seek the view and inputs of interested bodies and individuals in order to inform the negotiations on the proposal. The Minister continues to welcome such views and inputs on the implications of the draft regulation, particularly as discussions on this detailed and complex proposal are ongoing at European level. He would welcome the views and inputs of the Senator and others on the specific concerns which may exist in respect of the implications of the draft regulation for bona fide genealogical, biographical or historical research.

As stated, the protection of personal data is a fundamental right. However, the right to this protection coexists with other rights and this is recognised in the draft regulation. For example, Article 83 of the draft regulation sets out specific provisions for the processing of personal data for historic, statistical and scientific research purposes. The Minister is of the view that the draft regulation must be examined further to assess the implications of the proposals relating to the processing of personal data for historical, statistical, scientific or archival purposes. He would, therefore, welcome any specific amendments to the draft regulation which are considered necessary to accommodate bona fide genealogical, biographical or historical research or which take account of the need to provide high levels of data protection to individuals.

On behalf of the Minister, I again thank Senator van Turnhout for raising this important issue.

Senator Jillian van Turnhout:

I thank the Minister of State and I will communicate the information he has provided to the Genealogical Society of Ireland and the wider genealogical community.

The Politics of Direct Provision

 

My entry point into the issue of direct provision is from a children’s rights perspective. This perspective has been informed by my work on related issues as the former Chief Executive of the Children’s Rights Alliance; the recommendations of the Government appointed Special Rapporteur on Child Protection, Dr Geoffrey Shannon; the concerns raised by advocacy groups; and my own recent visits to two direct provision asylum accommodation centres as an independent member of Seanad Éireann.

It has taken me a long time to wade through the mire that is the political discourse on direct provision. It has been difficult to establish which features of the system belong to the remit of the Department of Justice and Equality, the Department of Children and Youth Affairs or indeed the Department of Social Protection. I have struggled to understand the distinction drawn between children “cared for by the State”, as is used to describe children in direct provision, and children “in the care of the State”. I have argued strenuously that firstly, children are children irrespective of status and secondly, that it is a stretch in credulity to claim that children in direct provision are in the care of their parents in circumstances where the parents’ autonomy to make even basic decisions about their children’s care, for example what and when to eat, is so limited as to render it absent.

My overwhelming concern is that the administrative system of direct provision, which has been operating in Ireland since April 2000, is detrimental to the welfare and development of asylum seekers, and in particular the 1,808 children currently residing in direct provision accommodation centres throughout Ireland . There are a plethora of difficulties, many of which I have raised under Adjournments of the Seanad including: the dubious legality of the direct provision system; the lack of an independent complaints mechanism for residents; the absence of independent inspections of direct provision centres where children reside; the decision by Ireland to opt-out of the EU Directive to allow asylum seekers to enter the work force if their application has not been processed after one year; the fact that there are no prospects for post-secondary education for young asylum seekers, which is like hitting a pause button for an uncertain and doubtlessly lengthy period of time; the fettering and erosion of normal family dynamics and functioning; and the lack of autonomous decision making.

But, the ultimate failing of direct provision is the length of time asylum seekers remain in the system waiting for their claims to be processed. It is important to remember that when first introduced 13 years ago, direct provision was viewed as a time limited system that would be for a maximum of six months. If this was the case, I could tolerate the inadequacies that would present in that time period rather than the outright failings that present in this system where the average length of stay is 4 years and a significant number have remained in the system for between 5-10 years.

And so, the long term solution has got to be a streamlined status determination system that will deliver a speedy, and robust, yet fair and transparent process. I hope this will be delivered through the Immigration, Residency and Protection Bill, which the Minister for Justice has committed to re-publish in revised form, but which ultimately been 8 years coming down the track.

In the interim, I call on the Government to take the following steps: conduct an examination to establish whether the system of direct provision itself is detrimental to the welfare and development of asylum seekers, in particular children, and whether, if appropriate, an alternative form of support and accommodation could be adopted which is more suitable for families and children; to establish an independent complaints mechanism; and to commence independent inspections of direct provision centres where children reside.

1Reception and Integration Agency, Monthly Status Report, February 2013: http://www.ria.gov.ie/en/RIA/RIAFeb(A4)2013.pdf/Files/RIAFeb(A4)2013.pdf

 

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Van Turnhout Calls for Increased Protection for Child Witnesses

Today, Wednesday 26 June 2013, Independent Senator and children’s rights activist, Jillian van Turnhout, has tabled a substantive amendment to the Courts Bill 2013 to introduce legal standards governing the disclosure of counselling communications and therapy notes of children in sexual abuse criminal proceedings.

“I am acutely aware of the need to strike the proper and appropriate balance between the right of child witnesses in child sexual abuse cases to privacy as well as their right not to be re-victimised or unduly traumatised by the criminal justice system, the right of the accused to procedural fairness, and the public interest. I believe my amendment has found this balance.”

The increasing commonality with which orders for disclosure, including counselling and therapeutic records, are made with respect to child witnesses, coupled with an absence of legislative guidelines and clear practice on the issue has lead Senator van Turnhout to seek this legislative solution:

“I believe with the legislative solution I am proposing, it is wholly compatible with Irish Constitutional law, Ireland’s obligations under the European Convention of Human Rights, and the best interests of the child to provide in law that the disclosure of sexual assault counselling communications will only granted by the trial court where: the evidence sought has substantive probative value; there is no other evidence which could prove the disputed facts; and the public interest in disclosure outweighs the potential harm to the child.”

The issue has never been subject to sustained analysis and consideration by the Superior Courts in Ireland or the Legislator. As such, today’s debate marks a significant juncture in the future alignment of these competing rights.

 

 

Courts and Civil Law (Miscellaneous Provisions) Bill 2013: Report and Final Stages

Tuesday, 2nd July 2013

Part 1:

I welcome the Minister back to the House on Report Stage of what has become a very comprehensive Bill. Last Wednesday on Committee Stage, I outlined in great detail the rationale and urgency behind my amendment, and I do not propose to do so again today because we are all here. I have conducted extensive legislative analysis on my proposal, which I believe strikes the appropriate balance between the right of the accused to procedural fairness and the right of the child witness to privacy and personal dignity. Without ready access to legislative drafters, it is difficult to translate a legitimate and necessary reform such as this into a legislative proposal, and I thank the Minister for his critique of my amendment on Committee Stage. It has given me this opportunity, albeit with an extremely short turnaround time, to revert with a more robust amendment that I urge him to accept today.

The Minister’s primary concern on core procedure is very valid. I have altered the wording to allow the matter to be considered pre-trial. I have also added a reference to the rule of court to allow for further regulation of the application process by way of an amendment to the rules of court, should the Minister or the court rules committee find it necessary to do so. For example, the rules could set out a prescribed form for such applications, time limits and so on.

I noted the Minister’s concerns in respect of the qualifications of a counsellor and clarity as to whom communication should be regarded as confidential. It is unwise to specify any particular credential for counsellors. This is partly due to the wide range of training and education approaches in the area. More important is the avoidance of a situation where communication made by a child in confidence is disclosed simply because the counsellor did not pass all the exams, or passed the wrong kind of exams. The regulation of the counselling profession is an important question, but there is a danger of allowing a preoccupation with credentials to distract from the purpose of this amendment. However, to address the Minister’s concern, I have added the following short provision which allows the Minister to refine, by way of statutory instrument, the definition of “counselling” and “counsellor”, while allowing the amendment to proceed.
The amendment I have proposed states that the Minister “may by order set out detailed criteria regarding the conduct of sexual assault counselling, and the training or qualifications of those who provide sexual assault counselling for the purposes of this Act.” I also noted the points the Minister made about the word “encouragement”. While I believe it is a remote concern, I have removed the word from the section.

I thank the Minister for his letter following the Committee Stage debate and I would like to address some of the points he raised therein. He said that any proposal should address the rights of an adult as well as child complainants, and that immediate action is required, and as such he has decided to deal with the issue in the forthcoming sexual offences Bill. In my Committee Stage intervention, I stressed the urgent to address the issue of third party disclosure of confidential records for adults complainants. I know that there is a considerable amount of work being done by interested members, including myself and Senator Bacik, and by advocacy groups, and I welcome the Minister’s commitment to act. However, I do not see any justification for not proceeding with a legislative solution for children immediately in this Bill, as opposed to the sexual offences Bill, for which the heads have not yet been approved by the Government. In February 2012 I brought forward a motion on child abuse material, and at that point I was promised it would be in the sexual offences Bill that would be published shortly. I hope the Minister can understand that this is a very real and pertinent issue that is being dealt with at the moment. Every child has the right to protection from harm, abuse and exploitation, including from criminal justice arrangements.

As an aside, I must raise the experience of child victims of sexual abuse and the criminal justice system about repeated interviewing by separate agencies, most commonly in the context of parallel Garda investigations alongside a child protection investigation. The attendant risk of further trauma and upset for a child in this context can be avoided by joint interviewing, which is done in other countries. From a legal perspective, limiting the number of times a child is interviewed will reduce the potential for the type of contamination of a child’s recollections of events which can lead to the failure to secure a conviction.

We need effective co-ordination and training of gardaí and social workers interviewing child victims of sexual abuse. I note the arrangements in place for this in our neighbouring jurisdictions, such as the UK, in achieving best evidence, video interviews and the detailed, recommended practice for interviewing child witnesses in the latest edition of “Achieving best evidence in criminal proceedings, Guidance on interviewing victims and witnesses, Guidance on using special measures” and “Guidance on joint interviewing of child witnesses in Scotland in 2011.”

I have already pointed out that there has been a notable increase in requests from the DPP’s office seeking access to therapists’ notes of children’s private and confidential therapy sessions over the last six to 12 months. That is a very real issue right now. As an independent office, I appreciate that the Minister cannot directly instruct the Office of the Director of Public Prosecutions to revise its practice in this area. There is no time to waste in introducing legislative guidelines. I also appreciate the need for a solution that is workable from both a prosecution and defence perspective, but the arrangements proposed do not affect in any way the disclosure of material evidence or evidence relevant to a criminal trial. The issue has been raised on a number of occasions, most recently in 2010 by Dr. Geoffrey Shannon, who is the Government appointed special rapporteur on child protection. He stressed the urgent need for legislation then. That was three years ago and no legislation has come forward.

I do not have the legislative drafters that the Minister has at his disposal and the advice that he receives. I do not need it for this amendment today in the Seanad, but it is not good enough that this will be promised in a Bill in the near future. This is about children at the moment whose records are being handed over. Parents have told me they are not sending their child to counselling because of this situation. We have an obligation to do something. I appreciate the Minister understands this issue as much as I do; probably more so from dealing with cases. I have put this amendment forward in good faith and I have tried to get the balancing right. I am willing to go back and work on this. If it has to be brought through in the Dáil, I have no difficulty with that. It is not about my name, but about the children in these cases. We have seen the increase in the DPP requests in the last six to 12 months. This issue is escalating rather than going away.

Part 2:

I thank the Minister. On the last point, the Cabinet Secretary on Justice at the Scottish Parliament has issued guidance notes on joint investigative interviewing of child witnesses. That could perhaps be done quite easily in co-operation.

With regard to the substantive amendment, perhaps in the consultations the Minister might, in addition to consulting the DPP, consult the NGOs and the victims’ units that deal with the cases at the moment, and discuss their relationship with the DPP. They are very conflicted over the role they play in counselling and how to ensure that people are brought to trial for the offences they have committed. They face an impossible dilemma. We need urgently to find a way to deal with it.

I am very happy to share the work I have done so far with officials to see if we can progress this issue. I take the Minister’s word on the sexual offences Bill. The only caveat I will enter is that if another miscellaneous provisions Bill comes along in the meantime I will back here and the Minister will remember that I said I would come back here.

If another miscellaneous provisions Bill comes along in the meantime, I will be back here and the Minister will remember that I said I would come back because we all know that we have good intentions to bring things forward. I know that the sexual offences Bill will be comprehensive and I would prefer it to be dealt with in a comprehensive manner, but for adults, there is a pressing urgency. Specifically for me, however, this involves the vulnerability of children and child witnesses; therefore, there is urgency with regard to child witnesses specifically.

Part 3:

Last but not least, I echo the thanks of the House to the Minister and his officials. The changes in family law and court proceedings are very important. I acknowledge not only the Minister’s engagement with us but also with NGOs. Perhaps in looking back later people might see that not only has he engaged in the House on his reforming agenda but he also has been willing to listen to views from all sides. I thank him for this engagement. I hope one day to succeed with an amendment I tabled. Therefore, I have set a challenge for myself. When the Minister comes to the House, it is very encouraging and worth the effort we put in as Senators knowing that he will engage robustly but also appropriately, as we should on all legislation. I thank him for this.

The Lancet

In July 2021, Jillian co-authored an article in the world-renowned medical journal “The Lancet”