Assisted Decision-Making (Capacity) Bill 2013: Report and Final Stages

I move amendment No. 3:

In page 10, between lines 24 and 25, to insert the following:” “best interpretation” means the interpretation of the relevant person’s past and present communication (using all forms of communication, including, where relevant, total communication, augmented or alternative communication, and non-verbal communication, such as gestures and actions) that seems most reasonably justified in the circumstances;”.

The Minister of State is extremely welcome to the House. Before I speak to this amendment, I want to congratulate her on her work on the mental health (amendment) Bill which seeks to remove the use of coercion in the application of ECT. I acknowledge that a Bill was published by the former Senator, Dan Boyle, as she knows, and I would particularly like to pay tribute to my cousin John McCarthy, God rest him,I can almost hear him using wonderfully colourful language and including words “about time” but it is great that this Bill will be progressing and well done to the Minister of State for doing that.

In association with my colleague, Senator Katherine Zappone I want to acknowledge the support of NUIG Centre for Disability Law and Policy and Tallaght Trialogue. While most people simply require recognition of their legal capacity and support to express their will and preferences there will still be a small minority of individuals who are not expressing a will and preference in a manner that others can understand. The Bill must establish the lawful response to such circumstances. However, I do not believe that a functional assessment of a mental capacity, and a subsequent denial of legal capacity, is the correct response to these difficult situations. A person in a coma or in a minimally conscious state, for example, will not be communicating their will and preferences to others and may not have made their wishes known in advance through an advanced health care directive or granted a power of attorney to anyone in respect of their relevant decision.In these circumstances decision making assistants, co-decision makers, decision making representatives, attorneys or designated health care representatives may need to make a decision on the relevant person’s behalf in accordance with their best interpretation of his or her will and preferences. While the Bill does require all interveners to respect the person’s will and preferences as part of the guiding principles included in section 8, further reference to the concept of best interpretation of will and preferences is needed for the hard cases in which it is very difficult to tell what a person’s wishes are.

The term “best interpretation” needs to be defined in section 2 of the Bill to guide those in the supportive roles I have outlined. Best interpretation of a relevant person’s will and preferences means taking into account past express preferences, where known, and includes knowledge gained from family and friends and other evidence available. Best interpretation can also be arrived at in seeking to communicate with the person in every possible way, including by using, where appropriate, assisted and augmentative communication, facilitated communication, signs, gestures and total communication, all of which are noted in the regulations and code of practice.

The use of best interpretation will rarely be an easy task. However, the best interest determinations used currently are similarly difficult in these circumstances. The provisions of Article 12 of the UN Convention on the Rights of Persons with Disabilities are merely shifting these difficult decisions from focusing on judgments existing outside the individual to the individual’s own will and preferences. That is why I am trying to insert a definition of best interpretation. We do need to deal with the hard cases, too.

I move amendment No. 6:

In page 15, to delete lines 10 to 36 and substitute the following:“3. (1) Legal capacity may be exercised:
(a) by the relevant person with decision-making supports as needed (including a decision-making assistant) and/or reasonable accommodation; or

(b) by the relevant person and their co-decision maker, acting jointly; or

(c) in a situation of last resort, where all efforts to ascertain the relevant person’s will and preferences have been made and the relevant person’s will and preferences remain not known, legal capacity may be exercised by the person(s) selected to represent the relevant person in exercising the relevant person’s legal capacity (i.e. decision-making representative, attorney, or patient-designated healthcare representative in advance healthcare directive).
(2) Where legal capacity is exercised with the support of a decision-making assistant, codecision-maker, or is being made by a person selected to represent the relevant person (decision-making representative, attorney, or patient-designated healthcare representative), and where the relevant person’s will and preferences are not known, the decision shall be guided by the individual’s best interpretation of the relevant person’s will or preferences and how these are to be applied to a specific decision(s).

(3) In applying subsection (2), decision-making assistants, co-decision-makers and persons selected to represent the relevant person must be able to provide a reasonable account of how this interpretation was arrived at.”.

I propose this amendment to change the definition of “capacity” in the Bill and to move away from a functional test of mental capacity which is used in the current text of the Bill to deny the legal capacity both of adults with disabilities or mental health experiences and of older people. The amendment would replace the definition of “mental capacity” in the Bill with a recognition of the legal capacity which all adults enjoy.

This amendment is based on the explicit recognition of legal capacity and the principle set out by the UN Committee on the Rights of Persons with Disabilities that a functional assessment of mental capacity should never be used to restrict or deny a person’s legal capacity, even in respect of a single decision. The amendment draws on a proposal contained in A Statutory Framework for the Right to Legal Capacity and Supported Decision-Making by the Canadian Association for Community Living, CACL, which was published in 2012. The CACL was a key actor in the reform of Canadian adult guardianship law in the 1990s.It resulted in innovative statutory mechanisms such as co-decision-making and representative decision-making agreements, which influenced the Assisted Decision-Making (Capacity) Bill here.

Functional assessments of mental capacity are now understood to violate human rights. In the terms of the United Nations Committee on the Rights of Persons with Disabilities, functional assessments of mental capacity are “discriminatorily applied to people with disabilities”. In April 2014 the committee stated:

[The] functional approach is flawed for two key reasons. The first is that it is discriminatorily applied to people with disabilities. The second is that it presumes to be able to accurately assess the inner-workings of the human mind and to then deny a core human right – the right to equal recognition before the law – when an individual does not pass the assessment. In all these approaches, a person’s disability and/or decision-making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law. Article 12 does not permit such discriminatory denial of legal capacity, but rather requires that support be provided in the exercise of legal capacity.

Instead of requiring a person who needs support with decision-making to undergo an assessment of his or her mental capacity, these supports should be provided for the person to avail of at his or her own discretion. The availability of supports should also be combined with a parallel process to explore the person’s will and preferences, something we have debated quite a lot on the floor of the House, so that the decision the person wishes to make becomes clear. This approach avoids any need for an assessment of mental capacity.

Section 3 of the Bill makes a person’s ability to enter into different support arrangements contingent on the individual’s mental capacity. This is quite a high standard for an individual to reach and will mean that some people will not be found eligible to make assisted decision-making agreements and co-decision-making agreements, even where this is the form of support the individual and his or her supporters would most likely use.

Under the Bill in its current form, the term “presumption of capacity” is used to try to prevent discriminatory application of functional assessments of mental capacity. However, two international human rights scholars, Oliver Lewis and Michael Bach, stated at a meeting in Belfast in April 2014 that a presumption of mental capacity is meaningless as it does not help to protect the individual’s human rights. They argue that the right to equal recognition before the law, from which the right to legal capacity stems, is a guarantee, not a presumption. In contrast, a presumption can be rebutted if evidence is provided to demonstrate that a certain individual is not worthy of equal recognition before the law.

This amendment is required to ensure Ireland meets its obligations under international human rights law and will, upon ratification, comply with Article 12 of the UN Convention on the Rights of Persons with Disabilities, which we all wish to do. This is why I have tabled the amendment.

Full debate

Motion: Direct Provision

The Minister of State is welcome to the House. I avail of the opportunity to welcome to the Visitors Gallery Dr. Bryan McMahon, chairman of the working group which is to report to the Government on improvements to the protection process, including direct provision accommodation and support for asylum seekers.

I am pleased that the last motion to be debated during Private Members’ business in the 24th Seanad looks at the living conditions of children and young people in the direct provision system. Our group has used its time to consider this issue and I have spoken about it at every available opportunity, including in numerous Adjournment debates and debates on legislation, in an effort to bring the plight of children to the fore. This is the critical issue of our time. In fact, Dietrich Bonhoeffer has said the test of the morality of a society is what it does for its children. I fear our failures and the treatment of children in the direct provision system will be the subject of a Ryan report in the future, but we have an opportunity to make changes now. All too often we look back in shock at what happened in the past and say how desperate it was, but what we do now with that knowledge is on what we should be judged.

My entry point to the issue of direct provision is from a children’s rights perspective. My perspective has been informed by my previous work in the Children’s Rights Alliance, the recommendations of the Government appointed special rapporteur on child protection, Professor Geoffrey Shannon, the concerns raised consistently by advocacy groups, my visits to two direct provision asylum centres as an independent Member of the Seanad and the recommendations of the working group. It has taken me a long time to wade through the mire that is the political discourse on the direct provision system. I have struggled to understand the distinction drawn – I still do not agree with it – between children cared for by the State, as children in the direct provision system are described, and children in the care of the State as those in foster care and other care systems are described. I have argued strenuously that children are children, irrespective of their status, and that it is stretching credulity to claim that children in the direct provision system are in the care of their parents in circumstances where their autonomy to make even basic decisions about their children’s care, for example, on what and when to eat, is so limited as to render it absent.

The direct provision system is detrimental to the welfare and development of asylum seekers and, in particular, the 1,225 children residing in direct provision accommodation throughout Ireland. There is a plethora of difficulties, including the dubious legality of the direct provision system, the lack of an independent complaints mechanism for residents, the absence of independent inspection of centres in which children reside, the decision by Ireland to opt out of the EU directive to allow asylum seekers to enter the workforce if their applications have not been processed after one year and the fact that there are no prospects post-secondary education for young asylum seekers. It is like hitting the pause button for an uncertain and, doubtless, lengthy period.

I appreciate that we have made some moves, but for most of the children, there is this cliff, the fettering and erosion of normal family dynamics and functioning, the lack of autonomous decision-making and the negative impact on the mental health of adults and children in the direct provision system. The ultimate failure lies in the length of time people remain in the system waiting to have their claims processed. I note the efforts the Government has made to reduce the length of time involved through the International Protection Act 2015 by introducing a single procedure to deal with international protection applications, but the reality is that the average length of stay is four years. However, a significant number have remained within the system for five to ten years. Some 55% have been on the waiting list for more than five years. I ask the Minister of State to think of all the things we have achieved in the past five years when he is on the election trail. There are people who have been in the direct provision system for that period of time. What a substantial loss of time it has been for the individuals, families and, particularly, children who have spent their entire childhood in direct provision centres. They are waiting for their lives to resume.

I was saddened to read in the final report on the child care law reporting project by Dr. Carol Coulter and her team, presented in November 2015, that children born in 2007 were still in the direct provision system. The only time they spent outside it was when they were placed in foster care while their mother received treatment for a mental illness.

There are more than 17 recommendations in the report of the working group which are specific to children and young people. I take the opportunity to thank the Children’s Rights Alliance and its member organisations for ensuring the unique vulnerability of children in the direct provision system was not lost in the process. I will cover briefly the first of those recommendations that we have cited in the motion. My colleague, Senator Fiach Mac Conghail, will speak to the others.

There is a need for child-friendly materials containing relevant legal information. The reality for all of us in full health is that the system is very legalistic; as it can be intimidating, people need support, particularly children who are unaccompanied and seeking guidance on how to pass through the system and for what they need to apply. We need to ensure the material is in a language they can understand in order that they can appreciate the ramifications of the decisions they will take.

The remit of the Office of the Ombudsman for Children should be extended to include complaints about services provided, transfer decisions and so on. Ireland ratified the third optional protocol to the UN Convention on the Rights of the Child which involves a communication procedure. It allows individual children, groups of children and their representatives, including those in the direct provision system, to submit a complaint to the UN Committee on the Rights of the Child about specific violations of their rights under the UN Convention on the Rights of the Child. I had the privilege of attending the hearing on Ireland before the UN Committee on the Rights of the Child. The question was rightly asked how Ireland had in place a system that allowed children in the direct provision system to make a complaint to the UN Committee on the Rights of the Child but yet they had no right to make it to the Ombudsman for Children. How can this be the case? Technically, the recommendation that the remit of the Ombudsman for Children be extended is supported in the Child and Family Agency Act 2013 which in section 69 includes a provision on the referral of complaints to the Office of the Ombudsman for Children. Technically, it requires nothing more than a ministerial order or a statutory instrument similar to the one made in 2012 when the decision was made to extend the remit of the Ombudsman for Children to receive complaints from children in prison. It is a question of political will. It is absurd that one can report to a UN body based in Geneva but not to the Ombudsman for Children. I know that the Ombudsman for Children is ready and willing to receive these complaints and wants to be there for all children in Ireland.

The lack of an independent complaints mechanism is completely out of step with the jurisdiction conferred on the office of ombudsman across the Continent. In November 2014, in CA and TA – a minor – v.the Minister for Justice and Equality, the Minister for Social Protection, the Attorney General and Ireland, Mr. Justice Colm Mac Eochaigh found that the RIA’s complaint procedure was deficient, not sufficiently independent, owing to the fact that it was the final arbiter in the process and that some elements of its house rules were unlawful. I do not care what anybody says, I trust the system, yet I would not be comfortable in making a complaint to those who I perceive as being part of the asylum system. We need to develop a welfare strategy and ensure all children have a named social worker based within the Child and Family Agency, not within the system in which a decision will be made on an application. I have argued for the application of the HIQA national standard for the protection and welfare of children, for the involvement of the Health Service Executive’s child and family services, particularly where a referral is made by the child and family services unit in the RIA to the HSE of a child. It is shocking that there is still no independent inspection regime or national standards for direct provision centres, given that we know that there is a significantly higher referral rate for child protection and welfare cases from direct provision centre than among the general population. In one in four cases at least one parent is from an ethnic minority or an asylum seeker or Traveller. I implore the Minister of State to be cognisant of the consistent findings in child care law reporting projects that social exclusion, poverty, isolation, mental health issues and disability are common features of mothers and fathers facing court proceedings and the acknowledgement that minority groups, including asylum seekers, are particularly vulnerable.

My colleague, Senator Fiach Mac Conghail, will speak in greater detail about the issues related to the weekly allowance. There is also the issue of those seeking jobs.Ireland and Lithuania are the only two EU member states that apply a blanket prohibition on asylum seekers entering employment or setting up a business in the state. In conclusion, I wish to quote the words of Bill Frelick, the refugee programme director at Human Rights Watch. He said: “Ireland should recognise work not only as a source of dignity, but as providing a livelihood that is integral to sustaining asylum seekers in the pursuit of their right to seek asylum.”


I thank, in particular, Senator Fiach Mac Conghail who worked with me on this issue, on which we have been at one. I also thank Senators Brian Ó Domhnaill, Martin Conway, David Norris, Marie Moloney, Trevor Ó Clochartaigh and Ivana Bacik. It is great that the House is united on the issue.
Senator Trevor Ó Clochartaigh is correct to ask what we have achieved. For me, what is most depressing is that we can unite on an issue, but the question is whether we can really bring things forward. Senator Fiach Mac Conghail is correct – as we have the working group’s report, we do not need to have long discussions; we need to move to its implementation. I would like to see the progress reports of high level groups published in order that the process is transparent.
I have listened to the debate on the importance of cooking facilities for families. There is the issue of costs because people need materials in order to be able to cook. We can have that debate, but I will go home tonight and decide the time at which I want to eat and what I will eat. I do not have to depend on a service that provides for me to eat at a specific time. How many of us eat at the same time every day? That alone is institutionalisation. Friends have told me how difficult they find it when they are in hospital for one week. I cannot imagine what it is like to be in a direct provision system.
On the issue of tenders, why are we allowing people to profit from the misery of others? I have a fundamental problem with this. Why is the State not providing the service? Why do we not ask an NGO to do it? There are some really excellent NGOs working in this area. I am thinking of Crosscare, but I am sure there are others. I have seen first-hand the work they do.
On the remit of the Ombudsman for Children, I believe it could be done by statutory instrument or ministerial order. It is, therefore, an issue of political will. If one goes back to the debate in the Houses of the Oireachtas on the Ombudsman for Children Act 2002, this issue was raised. Would we leave an especially vulnerable group of children and young people outside the scope of the Ombudsman for Children’s investigatory remit? In response the former Minister Mary Hanafin said, “The children of asylum seekers and refugees will have access to the Ombudsman for Children in the same way as every other child in Ireland.” That is what the Houses were told. The only thing excluded is the administration of the law, that is, the procedures for defining and determining whether a person is entitled to a particular status. She also explained:
If, however, there are problems in relation to delays, the provision of accommodation, nutrition, housing, etc, those issues are covered. This provision is only to ensure there is not a duplication of the actual process of the administration of the law.
Why does the Ombudsman for Children not have a remit to look at the application? We live on an island, but we really are an island as far as the rest of Europe is concerned because children in other countries can go to their ombudsman for children. It is enshrined in the Constitution that all children are equal, yet now we say we will interpret it slightly differently and that children in direct provision centres do not have the same rights. The Ombudsman for Children and Mr. Peter Tyndall made a joint submission to the working group which clearly explained the benefits, from their involvement in the direct provision system, that their experience could bring and the ease with which they could move into that space if allowed to do so.
The Minister of State has talked about the additional resources that would be needed. It makes me more fearful because it means that he believes there would be lots of complaints and resources needed. What is happening if we know that we will need all of these additional resources? We would need some resources. He goes on to say it is also important to recall that the working group looked specifically at the possibility of setting up a separate complaints procedure but rejected the idea in favour of extending the remit in order that the established offices could take on this role. It is welcome that the Minister for Justice and Equality will meet the Ombudsman for Children next Wednesday. I hope we will move on this issue because it is about giving people hope.
I explain that my job is about nudging. When one is in a direct provision system, it is difficult to understand the nuances in things moving forward and progressing. People need hope and we need to see some big changes. We need to see an increase in the amount of money given to those in direct provision centres in line with the working group’s report. Although a figure of 60% makes for a good news day, it has not risen in 15 years. The people concerned cannot afford to do the normal things children do. I want to be happy that we are moving forward and have a great report, but we are not doing enough. I hope that when the House comes back, Senators will again unite and push firmly for change.
I thank the cross-party group and all Senators who have united on this issue. In particular, I thank the working group’s members, the secretariat, the different Departments that have come together on the issue and, in particular, Dr. Bryan McMahon. We now need to stop the discussion and begin implementation. We need to ensure hope for all citizens and that children are children first and foremost.

International Protection Bill 2015: Second Stage, 2 December 2015

Senator Jillian van Turnhout: It is almost ten years since the last substantive legislation was introduced in this area. I am cognisant of what we are trying to do today. It is complex. It has been difficult for Members and the civil society organisations specialising in the areas of refugees, asylum and children’s rights issues – from whom many Members, including myself, seek guidance and advice in advance of parliamentary debates – to analyse the intricacies of this Bill in the time that has been given to us. On the other hand, I appreciate the effort on the part of the Government to bring this important Bill to fruition before the Christmas recess.

I intend to focus my intervention and my engagement on this Bill to issues relevant to children and children’s rights, because I believe this is the area where I can add my expertise. In this regard, I thank the Children’s Rights Alliance for its support in helping me to understand the complexities of the Bill.

Article 22 of the UN Convention on the Rights of the Child obliges Ireland to ensure that children seeking or holding refugee status, whether unaccompanied or not, should receive appropriate protection and assistance in the enjoyment of the rights of the convention and other applicable human rights treaties. The State is further obliged to assist a child in the tracing of his or her family and in obtaining information relevant for reunification. In circumstances where the child’s family cannot be found, the child is entitled to the same protections as other children deprived of their families under the convention.

In 2006, the UN Committee on the Rights of the Child called on the State to “take necessary measures to bring [its immigration] policy, procedures and practice into line with its international obligations, as well as principles outlined in other documents, including the Statement of Good Practices produced by the United Nations High Commissioner for Refugees and Save the Children”. As the Minister is well aware, Ireland will be examined before the UN Committee on the Rights of the Child in January 2016, in other words, in a few weeks’ time. It would be very disappointing if the provisions for children in this Bill were found by the committee to be wanting in respect of our convention obligations. My concern in this regard is further heightened by the fact that the key recommendations of the working group on direct provision in respect of children are not implemented in this Bill. It is disappointing that there have been no positive reforms for the 1,600 children currently in the direct provision system – they are the most vulnerable group of asylum seekers – despite a HIQA report in May 2015 identifying serious child welfare and protection concerns in a number of children and family services areas.

I realise it is outside the scope of this Bill, but the Minister knows of my view on the importance of having an independent complaints mechanism similar to that afforded to the Ombudsman for Children. I have raised the issue with the Minister for Children and Youth Affairs as well.

I am also concerned about payments, particularly payments to children. They have not changed in 15 years. At the least, the payments should be brought in line with the qualified child increase as referenced in the working group report. I imagine that is a decision for the Minister for Social Protection but perhaps the Minister for Justice and Equality could advise the Seanad on the matter.

I welcome the provision in the Bill for the new single application procedure to streamline and speed up the application process. It is long overdue. Even ten years ago people were talking about the establishment of an independent protection appeals tribunal and the inclusion of child-specific forms of persecution as grounds for protection. These are referenced in section 7(2).

One substantive area I have difficulty with relates to the notion of the best interests of children and how this is dealt with in the Bill. I thank the Minister and her officials for their engagement in the past 24 hours to try to see how we can strengthen the relevant provisions and work together. Let us consider the provisions relating to the best interests of the child in Irish legislation. It was the current Minister for Justice and Equality, Deputy Fitzgerald, who, during her previous role as Minister for Children and Youth Affairs at the time of the passage of the Child and Family Agency Bill as well as recently with the Children and Family Relationships Bill, put the key provisions relating to the best interests of the child into Irish law. I am keen to ensure we progress that legacy with this Bill.

Article 3 of the UN Convention on the Rights of the Child as it relates to the best interests of the child is clear. My difficulty is that the Bill only refers to the best interests of the child in a limited way, for example, in cases where international protection has been granted upon recognition of a child’s status in the application of a medical examination to determine the age of an unaccompanied minor or in certain aspects of the conduct of protection interviews for unaccompanied minors. The working group report recommendation stated that the International Protection Bill 2015 should reflect the general principle contained in the Convention on the Rights of the Child to the effect that the best interests of the child should be a primary consideration in all actions concerning children.

I submitted an amendment yesterday, but I have since redrafted it to ensure that in introducing the idea of the best interests of the child as the primary consideration, nothing in this legislation shall affect any provisions that are more conducive to the realisation of the rights of the child contained in other enactments or international law. For example, the European Court of Human Rights has asserted the importance of the child’s best interests. It also stressed the importance of reuniting the child with his or her family unless it is not in the child’s best interests. I have submitted an amendment to ensure that the best interest principle is subject to the obligations under the European Convention on Human Rights and the UN Convention on the Rights of the Child.

Another area I have concerns over relates to training for authorised officers on children’s rights. The working group report made clear that there should be a provision requiring decision-makers who take decisions in respect of children and those who interview children have received appropriate procedural and substantive training. This could be specific training on children’s rights and certified qualifications in interviewing children. Perhaps that is something the Minister could address. I have not tabled an amendment on the matter at this point but I will do so on Report Stage if I believe it is not being dealt with. Section 34(8) relates to how personal interviews by authorised officers may be dispensed with where the applicant is under the age of 18 years and he or she is of such an age and degree of maturity that an interview would not usefully advance the examination.   Will the Minister to look at the Children and Family Relationships Act which includes the provision for a court to appoint an expert to determine and convey a child’s view? I agree with the recommendation by the Children’s Rights Alliance that the Bill should include a provision that section 34(8)(b) can only be exercised upon the appointment of an expert on the views of children. Perhaps that is something we can look at.

Article 37 of the UN Convention on the Rights of the Child is very clear on the issue of child detention: “The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”. It was of great concern to me when I read section 20(1)(c) in conjunction with section 20(7). The latter provides that a child under 18 years can be detained as an adult if there are reasonable grounds for believing the person is not under 18 years. I believe this is a breach of the UN Committee on the Rights of the Child’s general comment No. 6 which provides that in cases of uncertainty as to the individual’s age, the individual should be given the benefit of the doubt and should be considered a child. I realise that the Bill’s provision has been inserted to protect a Garda who, using reasonable presumption, makes such a decision. In response, I have submitted an amendment that I hope will provide protection for children’s rights and provide balance. I thank my group colleagues, Senators Fiach Mac Conghail, Marie-Louise O’Donnell, Averil Power, Katherine Zappone and Mary Ann O’Brien, who have supported the two amendments I have tabled for Committee Stage.

Protecting Childhood: Motion on the Marriage Age

Wednesday, 25th June 2014

“That Seanad Éireann:

– notes the need to ensure adequate protection of children and of children’s rights in our laws, and in particular to ensure that children are not coerced or forced into ‘arranged’ marriages;
– notes that sections 31 and 33 of the Family Law Act 1995 allow exemptions from the normal rule that parties to a legal marriage must be over 18; and that the possibility of seeking this exemption by way of court order was retained in section 2(2) of the Civil Registration Act 2004;
– notes further that this exemption was criticised by the High Court in a judgment in June 2013 in a case concerning an ‘arranged’ marriage; and
– proposes that the Government would consider whether to remove or amend the statutory provision allowing minors to marry on the basis of a court exemption.”

Senator Jillian van Turnhout:

I welcome the Minister of State to the House. I would like to thank Senator Bacik, who like me has worked on this issue, for initiating the motion before us. I am very happy to second the motion and thank her for her co-operation.

I raised this issue back in May during the Seanad debate on the abducted schoolgirls in Nigeria that Boko Haram had threatened to sell into forced marriage. Like many people, I felt helpless looking on at the situation and it made me wonder if there was anything we could do. For me, this is one area that we can do something about. We can send the clear message that the age for marriage is 18. That is something that we must take responsibility for doing. During the debate I made the worrying correlation between Nigeria and Ireland because, in certain court ordered special circumstances, exemptions to the ordinary legal age for marriage of 18 years can be made. That means Ireland does not currently prohibit all child marriages.

It is important to note that Ireland is bound by a number of international human rights laws and standards, the provisions of which are profoundly incompatible with child marriage, for example, the International Bill of Human Rights, the UN Convention on the Rights of the Child, CEDAW, the Supplementary Convention on the Abolition of Slavery, the slave trade, and institutions and practices similar to slavery.

In September 2013, Ireland, with its fellow EU member states, supported the United Nations Human Rights Council resolution, Strengthening Efforts to Prevent and Eliminate Child, Early and Forced Marriage: challenges, achievements, best practice, and implementation gaps. The European Union as a negotiating block at the international fora condemns the prevalence of child marriages yet makes provision for it in a number of its own jurisdictions, for example, in Germany and Italy. In Germany, if one of the parties to be wed is at least 16 years old, but not yet 18 years old, the German age of emancipation, that party needs to seek approval from the family court in order to be wed. Consent of the concerned party’s parents is not sufficient. In Italy, a sworn statement of consent to the marriage is required by the parents or legal guardian if the child is under the age of 18.

Exploitation of young girls through violence and abuse, including forced and arranged marriages, is a global problem. According to Girls not Brides, every year, approximately 14 million girls are married before they turn 18 across countries, cultures and religions. They are robbed of their childhood and denied their rights to health, education and security. According to UNFPA, by 2030, the number of child brides marrying each year will have grown from 14.2 million in 2010 to 15.1 million, a 14% rise if the current trend continue.

In March 2014, the Iraqi Justice Minister tabled a Bill to allow girls as young as nine years old to marry. While reports have indicated that it is unlikely that the law will pass, it represents a worrying trend toward religious tendencies usurping girls’ human rights. In response to the Bill, prominent Iraqi human rights activist Hana Adwar said: “The law represents a crime against humanity and childhood. Married underage girls are subjected to physical and psychological suffering.” This contention is known to be true. The more than 60 million girls married under the age of 18 worldwide have a higher risk of death and injury during childbirth, fewer marketable skills, lower lifetime income, a higher rate of HIV, exposure to domestic violence, and illness for themselves and their families than their unwed peers.

It is inappropriate and, frankly, contradictory that we in Ireland speak out against child marriage in countries such as India, Nigeria, Malawi, Iraq, Nepal, Ethiopia and Bangladesh while our Statute Book still allows for exemptions to the normal marriage age, and fails to specify a minimum age for such exemptions. As outlined by Senator Ivana Bacik in 2012, some 28 marriages were registered under the exemption. As stated by the Senator, the exemption threshold is very broad and it uses standard language giving the court wide discretion. This means that decisions pertaining to allowing children to marry are made behind closed doors, often subject to the in camera rule since the parties to the application are children. Yet, from the moment they are married, they become adults and are outside all the child protection laws. We never hear about those decisions and those vulnerable children. In this regard, the Family Law Reporting Project has come across many of these cases, and may be able to shine a light on the prevalence and general circumstances in which they occur.

There is no written judgment in the High Court case referenced in this motion. The case concerns the annulment of a 16 year old girl’s marriage to a 29 year old man on the basis of the girl’s lack of capacity to give true consent. How can a 16 year old girl give consent to a marriage to a 29 year old man? I am not speaking of a case in Iraq but in Ireland. This happened in Ireland. However, Mr. Justice MacMenamin felt the case raised concerns of such a magnitude that it warranted his making a general comment about the danger of the legal loophole to children. We are faced with a choice. As the Legislature, we must provide guidance for the courts to implement the statutory provisions as intended or, and this would be my preference, we can lead by example and remove or amend the statutory provision currently allowing minors to marry. I believe Ireland should send a clear signal to children here that we protect childhood and that the age for marriage is 18 years. We have had excellent debates here on protecting childhood. We are talking about consent, the age for which should be set at 18 years. That would mean that Ireland, as part of the European Union as a negotiating block, is not saying that it can understand cultural differences and our courts can adjudicate, but we do not trust the courts in other countries. We need to send out a message that we are setting the age at 18 years without exemption.

Link to full debate here.

Making the Case For a Right to a Home: Joyce Loughnan

 story-kevinIt is over 75 years since the Irish people approved a new Constitution in 1937 with Bunreacht na hÉireann replacing the 1922 Constitution of the Irish Free State. The Constitution is of course a vital, living document which seeks to reflect the values at the heart of Irish society.

As we all know, societies develop and change over the years and it is important for a Constitution to reflect this. Indeed, over the past 75 years our Constitution has been amended a number of times by the people, to reflect historical and societal change. The current Programme for Government included a commitment to establish a Constitutional Convention and this work is underway.

This year already, the members have voted in favour of lowering the voting age to 16 and to amend the clause in the Constitution which emphasises the central role of women in the home. Some of the other key issues for the Convention to examine in the first stage of its review this year include: reform of the Dáil electoral system; giving Irish citizens abroad the right to vote in presidential elections and the provision for same-sex marriage.



Focus Ireland has always believed in a rights based approach to tackling housing need. Our vision is that “Everyone has a right to a place that they can call home.” We work through our support services and housing programmes to help people to secure a home and to prevent many others from losing theirs in the first place.

Housing is a basic human right and Ireland should honour its international obligations that guarantee a right to housing and act to remove the inequalities in the Irish housing system. We believe that if a right to housing was enshrined in our Constitution, this would help to ensure a more effective response by the State in dealing with the issues of homelessness and housing need.

Unlike other EU countries, Ireland has no established right to housing or accommodation for its citizens. Indeed housing rights in Ireland are historically weak by way of comparison to our European neighbours. Homelessness on the other hand is perhaps the most extreme denial of housing rights in society. It is a phenomenon directly resulting from poverty and social exclusion.

Without a right to housing the extent, nature and experience of homelessness in society is deepened, exacerbated and prolonged. Focus Ireland believes that the absence of a right to housing in Irish society means that previous governments, officials and administrators have responded in a lesser way to the challenge of homelessness and housing need.

Focus Ireland has called for a legal right to housing for all citizens in need of a home and for this right to be enshrined in our Constitution many times over the years. This belief is supported by the public as a survey carried out for our charity found that a massive 80% of the public support a Constitutional right to housing for Irish Citizens.




Focus Ireland launched a fresh campaign last year calling for a Right to a Home which included writing to the Taoiseach and the Tánaiste on this matter. We believe it was a mistake by the government not to include the right to a home as one of the issues for the Convention to examine as part of its first phase of work.

The finding of our survey show the public wants action on this issue. However, we welcome the Taoiseach’s commitment to add further topics to the second stage of this process and strongly believe that the Right to a Home should be one of these issues.

There has been good work carried out across housing and homeless services for many years – yet Ireland is still failing to provide adequate housing for some of our most marginalised citizens. If we are to effectively tackle major problems in society it must be impossible to view housing as a stand-alone issue. Failure by the State to provide housing leads to people becoming homeless or remaining trapped in low standard, insecure accommodation. We have sadly seen this in recent years as the previous government failed to meet the agreed deadline to end long-term homelessness and the need to sleep rough by 2010.

However, there have been positive developments already this year as Minister Jan O’Sullivan has recently launched a new Homelessness Policy Statement which sets a new deadline of 2016 to end long-term homelessness. Focus Ireland fully supports this policy and will be working in partnership to implement it – but we also still firmly believe that a right to a home is required in our country.

We are still very much focused on working to secure the “Right to a Home” as one of these issues for the second phase of the Constitutional Review.

I hope readers of this piece will support this campaign as we look to continue it this year to keep this important issue on the agenda.

To find out more about the work of Focus Ireland and how you can support our work go to

Email Newsletter March 2014

Prize Giving Ceremony for Irish Girl Guides Competition Winners

UCD Human Rights Network: Direct Provision

Model Council of the European Union Debate

Launch of “Living with a Neurological Condition in Ireland”

YouTube Safety Lab

I greatly appreciated all the support I received from civil society, parents, grandparents and concerned members of the public around my recent Seanad Motion condemning the holding of child beauty pageants in Ireland. It was extremely heartening to see the Upper House united across political divides and ideological differences in support of children and protection of childhoods from sexualisation and undue gender stereotyping. I welcome Minister Francis Fitzgerald’s response to the Motion by commissioning an international review of other countries’ responses to child pageants to help inform the Government’s response and future actions. I am hopeful that a legislative prohibition will not be necessary, but rather that the environment will be so unfavourable to child pageants that they simply won’t succeed here. Should that prove not to be the case, I am prepared to pursue a legislative route. I invite you to read the Motion, my statement and find the link to the full Seanad debate here ( on my website.

This February, the Joint Oireachtas Committee on Health and Children held a series of hearings on the Public Health (Standardised Packaging of Tobacco) Bill 2013. I am strongly in favour of plain packaging for many reasons including: 78% of smokers start before the age of 18; children in Ireland begin smoking at an earlier age than in any other country in Europe; the tobacco industry’s biggest growth area is amongst children; and attractive packaging is used to target young people so that they become addicted from an early age. I could go and on. Suffice to say the evidence is clear and I hope I can count on your support as this important Bill progresses.




So much of my work as a Senator is done off the Seanad floor and I would like to draw your attention to a number of wonderful events I have had the privilege of hosting, attending and contributing to over the last few months:

I have received some very interesting guest blog ( proposals in recent months. The guest blog section of my website is designed to give an additional space for adults and children alike to share their experiences, raise issues of importance to them and voice their concerns. If you, or a young person you know, would like to contribute a piece please email my assistant Amy for further details

Best wishes,


Prize Giving Ceremony for Irish Girl Guides Competition Winners
As a committed Girl Guide, I was immensely proud to welcome the three category winners of the Irish Girl Guides article/photo competition: Sarah Condren; Lauren Mooney; and Charlotte Dougherty to Leinster House on Monday 17 February. Through their winning submissions these young and aspiring journalists have captured the fun, adventure, and challenge of Girl Guiding and have brought the incredible experience of being an Irish Girl Guide to life. After a tour of the Oireachtas and lunch we had a prize giving ceremony with myself, author Sarah Webb, who judged the competition and who was an IGG leader for 15 years, and Jonathan Sultan from Canon Ireland.



UCD Human Rights Network: Direct Provision

I remain deeply concerned 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 1,666 children currently residing in direct provision accommodation centres throughout Ireland. I raise my concerns at every available opportunity in the Seanad, most recently here (

While there has been very little movement on the issue politically, I am very pleased to see it appearing much more frequently in media and public discourse. I must commend Dr Liam Thornton, Lecturer in Law and member of the UCD Human Rights Network, for his unwavering commitment to ending Direct Provision and his determination in educating the public and student body about the injustice. It was my pleasure to chair and speak at the recent seminar hosted by the UCD Human Rights Network, Direct Provision in Ireland: A Challenge for Law, A Challenge for Rights. In addition to Liam’s own expertise, Sue Conlon from the Irish Refugee Council and Kirsty Linkin from the Northern Ireland Law Centre gave excellent and thought provoking presentations to the students in attendance.

On 10 April 2014, Direct Provision will be in operation for 14 years. To mark this event, the academic blog Human Rights in Ireland ( will dedicate 14 hours to discussion on the law, politics, policy and experience of direct provision. I will be contributing a blog spot and I encourage you to visit the site and learn more about the issues.

Model Council of the European Union Debate

As a Parliamentarian and vice-chair of European Movement Ireland, I was delighted to chair the Model Council of the European Union debate in Dublin Castle on 4 March, which was organised by the European Commission Representation in Ireland. Students from 30 schools debated hydraulic fracturing (fracking) in the 28 Member States of the European Union.  It was a lively and very well informed debate and I suspect I had the pleasure of seeing many of our future Parliamentarians and MEPs in action! The winning team from Loreto Secondary School in Kilkenny, their classmates and teachers will now participate in the European Parliament’s Euroscola event in Strasbourg this September. I wish them the very best of luck.

Launch of “Living with a Neurological Condition in Ireland”

On 11 March I took part in a panel event to launch the Neurological Alliance of Ireland’s national survey Living with a Neurological Condition in Ireland. The survey examines many aspects of living with a neurological condition, such as access to services and the impact of health cutbacks and the overall recession, and makes for very interesting reading (

I will be seeking a Seanad debate to draw attention to the need for community services. I have previously noted the deficits in community rehabilitation services facing stroke survivors after their hospital treatment has been completed. The Economic and Social Research Institute has calculated that the direct annual cost of stroke is as much as €557 million, of which approximately €414 million is spent on nursing home care, while only €7 million is being spent on rehabilitation in the community.

YouTube Online Safety Lab

I was thrilled to give an opening address at YouTube’s Online Safety Lab on 6 March 2014. The event was attended by young people from a number of secondary schools and universities and online safely was the order of the day. The event was a tremendous success with YouTube personnel remarking on how impressed they were with the tech savvy students and their ability to engage responsibly with online media.

Internet safety, cyberbullying and inappropriate content for children are legitimate concerns for parents and policy makers. I will be very interested to read to the outcome of the Internet Content Advisory Group, which was established by Minister Rabbitte in November 2013 to provide expert advice on Internet Governance. As part of their open consultation process I sent the Advisory Group a copy of my report “Online Child Abuse Material: Effective Strategies to Tackle Online Child Abuse Material”, published in September 2013. My report and its findings can be read in full here (

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




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

Best wishes,

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.


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.


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.


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.

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.

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.



Order of Business, 17 April 2013

Wednesday, 17th April 2013

I am disappointed the matter I wished to raise on the Adjournment was not taken as it was lodged before some of the others that were accepted.

I welcome the Government’s acceptance of the cross-party Private Members’ Bill, along with Senator Ivana Bacik, to set aside the Statute of Limitations for the survivors of symphysiotomy. I am aware from the debate in the House last May that many Senators advocated this position. It is a horror story which I have followed closely as a member of the victims of symphysiotomy all-party support group. I pay tribute to the survivors, their families and supporters and those who advocated and campaigned tirelessly on their behalf. I pay tribute to Deputy Caoimhghín Ó Caoláin, convenor of the all-party group, whose determination and commitment to seek justice for the survivors has kept the issue firmly on the Oireachtas agenda. While I do not condone the length of time it has taken to get here, this is how things should be done. It has restored my faith in consensus politics and how we can work together to achieve good. While the agreement by the Government to support the Bill through Second Stage is welcome, I ask the Leader to urge the Government to begin actively engaging with the survivors and their representative groups to address their immediate health and support needs and, in parallel, to put a structure in place that will ensure redress.

I wish to raise the plight of the 32 thalidomide survivors. At an Oireachtas briefing they shared some of their specific support needs. Regrettably, they are being shunted between Departments. I ask the Leader to urge the Government to engage with them and their representative groups at the earliest opportunity.

On Monday, in response to the publication of the European Commission’s report on trafficking in human beings, I called on the Government to transpose immediately the EU anti-trafficking directive into national legislation. This was due to be done by 6 April. The directive has the potential to impact significantly on the lives of trafficked victims and will help prevent others from falling victim to this heinous crime. I welcome the publication yesterday of the criminal law human trafficking Bill to give effect to certain provisions of the EU anti-trafficking directive. I look forward to comparing the Bill against the directive and hope to find all the necessary elements incorporated. Significantly, the Bill defines forced labour in accordance with ILO convention 29. This is something I have called for in the past and I welcome its inclusion. I ask the Leader to commend the Government for initiating the Bill in this House.

I welcome the appointment of the members designate of the new Irish Human Rights and Equality Commission. They are of fine calibre and will bring extensive expertise to their role. I hope a suitable chair can be found at the earliest opportunity.