Amendment No. 115 has been ruled out of order.
Birth Information and Tracing Bill 2022: Committee Stage (Resumed)
Sections 52 to 56, inclusive, agreed to.
Amendment Nos. 109 to 112, inclusive, not moved.
Section 57 agreed to.
Section 58 agreed to.
Amendments Nos. 113 and 114 not moved.
Section 59 agreed to.
SECTION 60
Amendment No. 115 not moved.
Amendment No. 116 not moved.
Amendments Nos. 117 and 118 have been ruled out of order.
Amendments Nos. 117 and 118 not moved.
Section 60 agreed to.
Amendment No. 119 not moved.
Sections 61 and 62 agreed to.
Amendment No. 120 not moved.
Section 63 agreed to.
Section 64 agreed to.
SECTION 65
Amendments Nos. 121 to 123, inclusive, have been ruled of out of order.
Amendments Nos. 121 to 123, inclusive, not moved.
Section 65 agreed to.
Section 66 agreed to.
SECTION 67
I move amendment No. 124:
In page 64, line 14, to delete “may” and substitute “shall”.
Amendment, by leave, withdrawn.
Question proposed: "That section 67 stand part of the Bill."
I wish to highlight, with regard to this suite of sections, that there are concerns around what becomes an obligation and what becomes optional. The Minister will be aware of the concerns I had previously expressed about the issue of "may" and "shall" as it relates to the provision of important and relevant information. I intended my amendment to this section to highlight the need to ensure suitable and specific measures around the protection of the fundamental right of persons. I am going to engage further on that issue and I know the Minister has indicated to me that he is looking at certain areas of the Bill where I have highlighted there may be concerns with regard to the rights of persons under the Data Protection Act. There are sections of the Bill where there could be a perceived or actual incapability with certain of the rights that persons may be able to exercise under the Act. It is not constructive for anybody who has rights they can use under the Act and other measures are prescribed in other legislation. As the Minister will be aware, we particularly indicated one example relating to the question of those who may have visited.
There are a number of amendments on which we will return to these issues.
This relates to the general concern around persons not being put in a position where they have to rely on direct powers under data protection legislation as regards seeking appropriate information. I also note, since section 67 references the general data protection regulation, it is important to clarify such specified measures as the Minister may put in place. It is very important the Minister is extremely clear on the issue of immunity, in particular. I tabled a number of amendments that were unfortunately ruled out of order, which is a disappointing decision but so be it, on the question of the protection of persons from vulnerability to prosecution and immunity. It is very important we do not have a situation under this Bill whereby somebody is protected, and I am speaking specifically about those who have intentionally withheld information, and who we know in the past have a record of intentionally withholding, obscuring and, in some cases, falsifying information, in respect of those who have sought the kinds of information provided for in this Act that relates to their families, their personal health services, for example, and so on. This is a section around a relevant body and, in particular, certain religious orders and adoption agencies that have been found, in the past, to have intentionally misled or provided false information to any persons. It is important there is not a presumption of good faith on their part. That relates to section 65 on immunity. I will reserve the right to come back to that on Report Stage.
On the regulations for the purpose of data protection under section 67, which we are discussing, the Minister needs to be very clear that where there is a record of the failure to disclose information, or a proven record of the falsification, or intentional misleading or provision of false information on the part of a body, regulations for the purpose of data protection should specify limitations to immunity for those bodies. My amendments in respect of immunity have been ruled out of order, but I urge the Minister to think very carefully about this area and to ensure the Bill does not provide immunity for bodies that have, potentially, a previous record of intentional false action in respect of information.
As I said, I signalled my amendments to section 65 on this matter, but if it is not possible to deal with those issues through that section, there may be potential to do so through the regulations made under section 67.
I take on board the point the Senator made and will take it into consideration when, assuming the legislation is passed, the power of the Minister's role in regulation is bestowed on me under section 67.
On the wider points made by the Senator regarding the fact that an individual should not be put into a situation where he or she has to rely on GDPR, that is the preference and what we are trying to achieve. I have always said, throughout the discussion on this legislation, this is a twofold change. It is a change in the law to make sure the legal presumptions are completely different from what they were so there is a clear basis for the release of information and an openness to the release of that information.
There also has to be a change of culture that many Senators have referred to. Key to driving that is the power the Minister has to issue guidelines to the agencies and authorities that will implement this legislation to make sure they continue on a path of openness and transparency and a presumption of the release of information. Linked to that is the implementing body, which is the group led by my Department that brings key officials in Tusla, the AAI and my Department together, so there is a common understanding that the purpose behind this legislation is to release information. That is what all bodies and agencies should be working towards.
I take on board the Senator's point. We are seeking to bring about a legal change through this legislation, but we are also seeking to bring about a culture change. Work on that has begun in advance of this legislation being passed.
I have a last point as we are on Committee Stage. I will again indicate something that can perhaps be provided for under the regulations. This matter relates to the regulations under GDPR but I will address it more widely. The Minister will be aware I also had amendments that were ruled out of order in respect of what is a very basic suggestion, which is that information campaigns, for example, highlight the options open to persons under this Act, including their options under GDPR. As the Minister said, it is very important people know that their rights under GDPR are not negatively affected by the provisions of this Act. The idea is those provisions are meant to be supplementary and in addition to rights persons may hold under GDPR.
As I said, I had amendments that were, unfortunately, ruled out of order, which sought to require the information accompanying information campaigns that may arise from this would be in plain English. A separate issue, and one I will raise with the Committee on Parliamentary Privileges and Oversight, is the fact that an amendment to suggest an information campaign would be in plain English, something that is stated Government policy, was regarded as a charge on the Exchequer and not regarded as suitable for an amendment is outrageous. To simply have an amendment that states something could be communicated in a way people can understand regarded as an intrusion on the State's finances is a very serious question for the Seanad to solve in relation to the Committee on Parliamentary Privileges and Oversight.
Leaving aside that issue, which is for the Seanad to resolve, I hope the Minister will indicate, for example, as regards the regulations that he will set, the intention in those regulations to ensure that communication is in plain English, including communication on persons' rights under the general data protection regulation, so that people know and are given that information in plain English. That is even provided for within the general data protection regulation itself. Leaving aside the fact it is meant to be State policy to have plain English, there is within GDPR an actual specification that people should be able to understand their rights under that regulation. The Minister might indicate his intention to ensure all relevant information is communicated in a way that is in plain English and that is understandable to persons, regardless of their levels of education. I do not doubt the Minister's commitment in that regard but it would be useful to have that assurance given to the House.
Work has already begun on the information campaign because, as the Senator knows, once this legislation is passed, the three-month period kicks in immediately. We have been working to commence that. The AAI has engaged with the National Adult Literacy Agency on making sure the information and material produced as part of this campaign meets the criteria and is easily understood. We are acutely aware, and we know from our dealings in this House, that this legislation is highly complex.
As the Senator has noted, there are two sets of legislation, that is, the new legislation we are creating and existing legislation such as the GDPR. I have made this point previously. For some people, particularly parents who may wish to find out what is written about them, GDPR and the subject access request is their route towards that. That will be highlighted within the information campaign. I hope that reassures the Senator.
I appreciate the Minister's indication in that regard. I reserve the right to bring more amendments around that route to information for parents because that is still an issue. I understand GDPR is one of the important routes. I would like it if this legislation provided more routes in that respect but I appreciate the Minister's bona fides. I look forward to the campaign being communicated in a way that is accessible. I accept the Minister's indication.
Question put and agreed to.
Section 68 agreed to.
NEW SECTION
I move amendment No. 125:
In page 64, between lines 31 and 32, to insert the following:
“Rights under the General Data Protection Regulation
69. Nothing in this enactment shall be construed as infringing upon or limiting the right of a person to make a data subject access request under Article 15 of the General Data Protection Regulation.”.
Amendment, by leave, withdrawn.
SECTION 69
I move amendment No. 126:
In page 64, line 37, after “her” to insert “, to commence within 90 days of their request”.
Amendment No. 126 would insert a clause stipulating that the provision of counselling support should commence not later than 90 days after it is requested by a relevant person or parent. This amendment seeks to ensure the provision of counselling support to parents and relevant persons is not subject to inappropriate delays. This is important because these periods of time will involve extraordinary pressures for individuals who may be affected by the measures in this Bill. We need to recognise that timeliness has an impact in this regard. This is not about people choosing to address a long-standing issue but persons who are reaching out during a time of significant pressure or difficulty for them. In that regard, they should not simply have an entitlement to counselling and go to the end of a very long queue. This should be a timely measure. We would all like to believe people could access counselling support immediately but I have sought to be reasonable and have suggested that counselling sessions would commence within 90 days of being requested. If people were to seek counselling support, that would be guaranteed and they would know that, within three months, they would have that opportunity. Recent stories have highlighted that a large number of persons have had to wait well over three months to receive counselling from the HSE. It is important such delays do not become commonplace.
A number of my amendments on this issue have been ruled out of order but they relate to the same core principle of counselling. I encourage the Minister to take on board the importance of ensuring counselling is provided for as long as a person may need it. An amendment on that was ruled out of order. The idea was that people could access counselling within a timely period and be given it for the period of need, which may be different for different persons. Some persons may need counselling around a difficult decision or contact point. We only need to look to the mother and baby home reports and other reports to know there may be very difficult and complicated issues of trauma that may be unpacked by the provisions of this Bill. It is important those persons who need that additional support are given counselling for the period of time they need it.
The legislation suggests that counselling "may" be provided at the request of a relevant person or the parent of a relevant person. My amendment on that was ruled out of order but I hope the Minister will take on board that counselling should be provided. There should not be a question as to whether it will be provided.
This next issue is slightly outside the scope of the Bill but it relates to the principle of counselling. An interesting question arose around the future Minister and the adoption legislation. I acknowledge the former Minister, Katherine Zappone, who brought forward that legislation. I succeeded in bringing an amendment to it on open adoption. When we have dealt with the past, I hope we will have the opportunity to engage with the future and open or semi-open adoption. The previous Minister engaged with my amendment, held a consultation and conducted a legal review, which found there was a strong demand for open and semi-open adoption.
One of the issues we encountered was the gap in counselling in respect of adoption. Ireland has a mindset whereby when someone has been adopted, they are part of a new family. The family will no longer talk about the process of adoption because it is a "one family only" framing, which is out of line with the child and family relationship legislation. The person will be told he or she cannot talk about adoption because that person is a Smith now, for example, rather than having counselling. There has been a very ad hoc and informal relationship with counselling for those who have experienced adoption in Ireland. There is some support informally through NGOs for those who have been subjected to adoption from another country, but there is a gap in counselling supports from the State for those who have experienced adoption, many of them at an older age. I am just signalling that.
My focus in this amendment is on ensuring counselling is promptly provided for as long as it may be needed, but I also want to signal that there needs to be a general look at the wider question of counselling, including for children and those with experience of adoption. There is a little bit of a lacuna at the moment.
I echo the Senator on the issue of counselling. Nine months is crazy. It is not sufficient. When someone is in desperation or suicidal, with recurring anxiety, or is feeling threatened - that may be internalised and is not necessarily external - nine months is an unsatisfactory wait. We have a scandalous arrangement where people are waiting anyway in the HSE. I spoke to a man a few weeks ago who was abused within this State. He is well known and has reported it to the authorities. He is initiating legal proceedings through the courts and he cannot get services. I have made representations to various Ministers and Departments on this. I meet this man weekly in Dún Laoghaire. He is desperate, anxious and vulnerable. He has had experience of living in an institution and he cannot access supports. Due to their kindness, a neighbour pays for some limited private counselling services. It is all unsatisfactory. I do not need to spell that out the to the Minister because he is aware of it. There will be a need for counselling. That is clear from having spoken to and knowing many people who will be involved with the provisions of this legislation when it is enacted. It is to be hoped it will be enacted. It is not everything any of us wanted but it is progress and I acknowledge that. It is important that we, the Department and the health service start preparing to provide counselling services. They are critical.
In many cases, counselling services are the difference between life and death for people. That is the reality of it. There are many people who are constantly in and out of psychiatric services because of their trauma, experiences and vulnerabilities.
I thank Senator Higgins for raising this matter. It is a marker for us all that we now need to look at counselling services. There will be counselling services. There are people who will go on for many years without any form of anxiety or concern but then, suddenly, issues arrive and these things all come back up. Issues around these matters do not just go away, although they may go into abeyance for a while. I wish to flag genuinely that we need to look at counselling supports.
Initially, as this legislation is enacted, there will be a higher focus in terms of publicity. The usual old radio stations will conduct interviews and we will have the same people talking about their experiences ,describing how they were forgotten and lost, and all the stories that go with that, and genuine stories at that. The point is there will be a surge again, just like there is every time with issues like this, and therefore we need to be ready, in the short term by providing confidential phone services and things like that, which in turn could be an initial reception for people. At least we would be aware of them and we could give them a referral at some future date. It is important because I genuinely believe it will open up a lot of issues for many people.
I will address amendment No. 126 first and then I will speak to the general point. As it stands, section 63 provides specifically for a parent who is registering a preference of no contact to be informed of his or her entitlement to avail of counselling support. Counselling support for relevant persons is also covered in this section and is drafted to ensure those who need it most are prioritised. As such, I am not in a position to accept the amendment. In particular, I do not believe that placing a statutory timeline for the provision of counselling is necessary. I do not think it is useful either. My understanding is that counselling can take different forms depending on the expressed needs of the individuals, and that the type of counselling can evolve in how it is provided. Forcing a timeline for the provision of counselling in statute does not add to the value of making sure counselling is supportive and person-centred. My worry is that by putting a very strict timeline in the legislation, as proposed, it becomes more of a box-ticking exercise than a genuine attempt to support an individual and provide him or her with the type of support he or she needs, recognising that different people come to this with different experiences and have different needs.
In terms of the additional ask for counselling from the AAI and Tusla from people using this legislation, as Senators will know, both bodies have received additional funding from my Department, which will allow them to enhance their resources for the provision of counselling for people applying under this legislation.
On the wider point of counselling, I accept the points both Senators have made. I reiterate the point, as I have done whenever I have spoken on these issues in Seanad Éireann, we brought forward the national counselling service. We opened it to coincide with the publication of the report of the commission of investigation, we increased its hours, and we stated clearly that survivors of mother and baby homes and county home institutions are prioritised groups when applying for its services. Therefore there is a way for the survivors on whom we have placed so much focus in the context of this legislation to avail of that service.
In terms of the experience of Senators who have spoken to me, I am not sure whether people have tried to engage with this. If any Senator has encountered a situation where that service is not delivering, please tell me and we will look to improve that situation. That service is there and has been there. It is a free service and survivors of mother and baby homes and county home institutions are prioritised in terms of access to that service. It important for all of us to get that information out there because there are people who would benefit greatly from this counselling.
I do not believe our amendment is prescriptive in terms of what persons would need. In fact, it is the opposite. We have indicated, and Senator Boyhan has indicated very eloquently, that people may need longer periods of time. The key point is that if a person is requesting counselling, he or she should be provided with that counselling within 90 days of such a request. To be clear, and it is important, that is not prescriptive in terms of the amount of counselling required or needed. It simply says that if a person reaches out, he or she should be provided with counselling in a relatively timely manner.
It is important in terms of relevant persons, and that needs to be looked at. Specifically, as the Minister has indicated, it is also important for parents, for example, where they may have a situation whereby they are unsure whether they will be contacted. That may be the initial issue on the basis of which they seek counselling support. Of course, the very fact somebody has fears in that regard may unpack some of the other fears or concerns they have relating to the experience they may have had. I am thinking, in particular, of mothers, although it is not exclusively mothers, who have had experiences in mother and baby homes.
In that regard I note that my amendment is not prescriptive in terms of the period for which such persons may require care. My amendment is prescriptive in saying that, within 90 days of having sought counselling support, such persons should receive counselling support. Nobody should go longer than three months in limbo, having said, and it is a difficult thing for people to admit, they need psychological support, nor should they go longer than that without being given a guarantee they will receive that support within 90 days. If you know help is coming, that is something, whereas if there is not a set period within which you are going to receive counselling support, it could feel indefinite and create a situation whereby persons feel alone. The Minister may not be open to the 90-day period and maybe he is interested in a different period. What I want is that persons who reach out and seek counselling support have that assurance that, within whatever period of time, they know they will receive that support rather than simply sending a request for psychological support with no idea of whether or when they will hear back.
In respect of the obligation, we recognise the particular vulnerability of parents in situations. We discussed at length earlier today and at our previous debate the issues regarding striking a balance when it comes to privacy rights, and for some parents, and I believe they are in a minority, their concern about protection and their not being contacted. Earlier in this process we changed the obligation in terms of providing counselling and made it mandatory. The Bill states, "The Agency, on the request of a person referred to in subsection (1), shall arrange for the provision of counselling support to him or her." It is clear the legislation takes a particularly strong view of the need to provide that support for parents. I do not think putting in the timeline, as the Senator suggests, is an enhancement of that. It is important to recognise that the legislation itself shows that it sees the importance of providing counselling for parents while recognising that a group of them may be especially vulnerable in terms of fear and apprehension about the release of their name to the child who was given up for adoption. That is recognised by making this a mandatory obligation within the legislation. We have had that debate about "may" or "shall". I have disagreed in terms of situations where "may" or "shall" should have been used. Here is a situation where we have used "shall".
I recognise and appreciate the Minister's use of "shall" in that regard. I hope the legislation will be reconfigured in other situations where we debate the use of "may" and "shall". Nonetheless, I believe having a designated timeline is more constructive. In that regard, I will press the amendment.
Amendment put and declared lost.
Amendment No. 127 has been ruled out of order.
Amendment No. 127 not moved.
Amendment No. 128 has been ruled out of order as it represents a potential charge on the Revenue.
Amendment No. 128 not moved.
Amendment No. 129 has been ruled out of order.
Amendment No. 129 not moved.
Section 69 agreed to.
SECTION 70
Amendments Nos. 130 and 131 are related and may be discussed together, by agreement.
I move amendment No. 130:
In page 65, between lines 10 and 11, to insert the following:
“(2) A review under this section shall include meaningful engagement with relevant persons, groups representing survivors and families, persons with expertise in human rights and data protection, and other relevant persons or groups as the Minister deems appropriate.
(3) At the conclusion of the review, a report shall be prepared and laid before both Houses of the Oireachtas.”.
Amendment No. 130 specifies that, in a review of the operation of the Act, the Minister should consult with relevant stakeholders and affected persons and that, at the conclusion of the review, he should lay a report before both Houses of the Oireachtas. Again, I welcome the fact that there is provision for a review of the Act. That is important. Section 70 states that there will be such a review "not later than 2 years after the coming into operation of this section". That wording is a little strange. I mention that because I have had experience in the past of winning the insertion of new sections in legislation only for those sections not to be commenced. It would probably be better if it was worded as "after the coming to operation of the Act" but I am going to trust the Minister that he will commence this section along with the other sections, even though I have experience of that not happening. Again, this is just a technicality.
I welcome the fact that it is indicated that there will be a review of the operation of the Act but I believe we may need to go into a little more detail. It should be borne in mind that, even though I accept the bona fides and good intentions of the current Minister, it may be another Minister who is there in two years and it would, therefore, be useful to specify some provisions in respect of the review of the Act. Amendments Nos. 130 and 131 would specify that, in the review of the operation of the Act, the Minister would consult with relevant stakeholders and affected persons and that, at the conclusion of the review, he would lay a report before both Houses of the Oireachtas. Again, these amendments seek to specify who the Minister would consult. The current Minister will be very aware of the importance of consulting with those who are affected, the difference that has made and the changes in approach that have arisen from speaking to people about their real and specific experiences. Again, I believe it is appropriate that we specify that this same kind of thought and integrity would be reflected in the review. The Oireachtas joint committee also specified the importance of that sustained engagement with stakeholders and affected persons so this amendment reflects a recommendation of that committee in its pre-legislative scrutiny.
Amendment No. 131 seeks a specific report on how the Child and Family Agency has performed its functions in respect of this Act. It asks that, in preparation of such a report, the Minister would engage with the relevant persons. This is also complementary to the committee recommendation in respect of a stakeholder advisory group. It also addresses issues on which I can be frank because I know the Minister is very aware of them. I refer to the significant issues of trust in the Child and Family Agency. New provisions have been made and new mandates given but it would be appropriate to specifically look at how the agency has changed practices, engaged in different ways or applied different policies in recognition of the provisions of this Act.
We are coming to the end of the amendments and, therefore, I will take this opportunity to say that Senator Higgins makes a very good point, which touches on what I said earlier in my own amendment, No. 108. I will not go back there because we have been there, done that and made a decision. We will ultimately account for that as we go out from here in the next few weeks. It is right that we need to engage. We have talked about the business of trust and about engagement. Many of us have come in here and engaged through amendments. We are now wrapping up. There will have been 137 amendments and we know what happened to most of them. That does not instil a lot of confidence for me, but it is not about me. This is legislation going through these Houses of the Oireachtas and it is right and proper to have some form of review. The Minister has indicated that he is happy enough to have some sort of review. It is important that we engage with people and instil confidence. I, therefore, support amendments Nos. 130 and 131. They make sense. I will wait to hear what the Minister says before I respond further.
I will take amendment No. 130 first. When I spoke to Senator Boyhan's amendment No. 108 earlier, I indicated that I was open to reviewing the text of section 70. I am, therefore, a little disappointed in Senator Boyhan's comments suggesting this is all being railroaded through. I said I would respond to that and I have indicated to Senator Higgins that I will respond to some of her amendments on Report Stage. I have listened and taken points on board but, where I do not agree with proposals, I have also put forward clear articulations of why I do not believe they should be brought forward. I want to put that on record because we are coming to the end. This has been a lengthy process and a respectful one. There will be amendments to the legislation on foot of the hours we have put into Committee Stage over the past two weeks. I will bring forward a proposal to amend the text. In particular, I will propose that the report be laid before the Houses of the Oireachtas, as suggested by Senators Higgins and Boyhan, and that it be a broad report. It should be noted that I also changed the review provision in the Dáil. Originally, it was to occur after four years but that has been brought back to two years. It is important to strike a balance and not to leave it too long while also ensuring that there has been time for the Bill to operate so that, if there are problems, they will have been flushed out. There is not point doing it in a year because problems will not have been flushed out at that point.
I do not agree with amendment No. 131. The role of the Child and Family Agency will, of course, be assessed with regard to the operation of the overall Act. The agency also provides its own annual report. This will be part of that report. I meet with the chief executive and the chairperson of the agency on a quarterly basis. As long as I have been in this role, information and tracing has been at the top of the list of issues we discuss. The agency's role and, indeed, the role of AAI and other relevant bodies, will be looked at under the terms of the review. Singling out a separate report for the Child and Family Agency in the legislation would not be beneficial.
I thank the Minister for indicating openness with regard to the question of ensuring that any report be laid before the Oireachtas to allow for engagement in that way. It is a useful acknowledgment of the fact that there has been very constructive engagement from concerned individuals from parties across the Oireachtas. The evolution of our national discussion on this issue reflects the fact that there has been very constructive Oireachtas engagement. I welcome the Minister's indication on that with regard to amendment No. 130.
I understand his concerns regarding amendment No. 131. I suppose we will have to wait and see. I hope the review will address to an adequate level the operations of that agency but we need to very clear. We do not need to be afraid of acknowledging that there have been failings on the part of agencies in the past. That is important. Part of how we build confidence for the future is acknowledging where agencies have fallen short or where there have been particular cultural practices within them in the past that have been very narrow. The Minister will be very aware that many individual citizens' experience of engagement with the Child and Family Agency has not been positive or constructive.
I entirely understand and accept the potential and intention for change, reform and improvement in this regard, but it is also my view that citizens have a right to express the reality of their experiences. As Oireachtas Members, we all must become used to accepting criticism all of the time, in every forum and about everything we do. Similarly, our State agencies must be open to accepting criticisms and concerns and acknowledging citizens have had negative experiences and that those concerns need to be addressed. Recognising that and offering apologies is part of us all moving forward as a contemporary state.
I acknowledge the Minister's view that this issue can be addressed internally, as part of the general review. We must wait and hope the review will address the specific functions of specific agencies. I am confident that if it is he who is putting the terms for such a review in place, then that will be the case. We do not know whether it will be the Minister who does it but I hope it is. I welcome his indication in respect of the engagement with the Houses of the Oireachtas and, I presume, with relevant stakeholders on a future review.
I would not like the Minister to leave feeling disappointed. I say that genuinely. I want to put it on the record of the House that, as I have said all along, I believe he is absolutely committed to reform on this issue. There is no question about that. It is my intention to support the Bill. I made up my mind to do so because it represents major progress on what we had before. We can all be critical and we all can go outside the Chamber and suggest A, B and C. The Minister has a job to do and he takes advice on doing it. I am committed to supporting the Bill, given what I know now and have known for some time. There is no malice on my part and I will move on from this. We have new business and new challenges every day. There will be something else to deal with tomorrow.
There will be a post-enactment report on the legislation, whether I, the Minister or anybody else likes it or not. It is a requirement and it should cover off some of the issues we have discussed. It is important to have that. It is not the Minister's or anybody else's fault but it is quite frustrating to come in here and see that we are, to a certain extent, engaged in a numbers game. We have very small numbers in the Opposition, which is just the nature of this coalition Government. It makes it exceptionally difficult for us and it is frustrating at times. There is no surprise here. We know the outcome of all the amendments and it does not come as a surprise to anyone. One might begin to scratch one's head and wonder what one is doing wrong if what one is saying is not resonating with anybody and is not getting support. All parties will have their turns to be on the Opposition benches. I have always believed during my time in the Seanad that we need to be constructive. It is not about the Minister or me; it is about the policies.
I am supportive of the Bill and I look forward to the post-enactment report. I welcome the Minister's confirmation that he is working on something and will come back to us on it. I look forward to that and thank him for it. I acknowledge that he and the staff who are here with him have given more time than was originally scheduled for this debate. It brings us nicely to the completion of this work and enables us to move on to the next Stage. I genuinely acknowledge the Minister's absolute and enormous commitment on this matter. He has cracked something that no one else has done before. I wish him well and I will support the Bill.
I thank Senator Boyhan for his support and kind comments. On Senator Higgins's point, yes, there will have to be engagement. As she knows, the stakeholder reference group that is to be established will be a touchstone for the ongoing implementation of the Bill. I have always recognised that State agencies have failed, and failed hugely, in some of their engagements with citizens. Moving away from the legislation and the question of what certain agencies could or could not have done, how they did what they did was, too often, not right. The chief executive of Tusla, Mr. Bernard Gloster, has been very upfront on this matter. He has met with large numbers of adopted people, including those who were subject to illegal birth registrations. He has engaged not just by way of a once-off meeting but in a substantive and continuous way with individuals. He is, of course, accountable to the Oireachtas through the children's committee. There is a large range of mechanisms for the Minister, whoever that may be, and the Oireachtas to examine and question the implementation of this legislation by State bodies, particularly the Child and Family Agency.
Amendment, by leave, withdrawn.
Section 70 agreed to.
NEW SECTION
I move amendment No. 131:
In page 65, between lines 10 and 11, to insert the following:
"Report on operation of functions of Child and Family Agency
71. The Minister shall, within 12 months of the passing of this Act, lay a report before both Houses of the Oireachtas evaluating the manner in which the Child and Family Agency has performed its functions in respect of this Act and in the preparation of such a report the Minister shall engage with relevant persons.".
Amendment, by leave, withdrawn.
Sections 71 and 72 agreed to.
SCHEDULE
Question proposed: "That the Schedule be a Schedule to the Bill."
I give notice that I reserve the right to put forward further amendments to the Schedule. I have already indicated my concern that certain bodies, including the psychiatric institutions and others, may not be reflected here. Depending on how things evolve, I may seek amendments to the Schedule on Report Stage.
I thank the Senator for registering that point.
Schedule agreed to.
TITLE
Amendments Nos. 132 to 137, inclusive, have been already been discussed and cannot be moved.
Amendments Nos. 132 to 137, inclusive, not moved.
Question proposed: "That the Title be the Title to the Bill."
There is an opportunity for the Title to better reflect the debate we have had and the nuances that have emerged over the course of that debate. I will not rehash all the points already made in respect of amendments Nos. 132 to 137, inclusive, which were grouped with other amendments, including the question of whether "incorrect" or "illegal" should be used. That was an important debating point, however, as was the discussion on whether the Bill should refer to "all available" records or "certain" records. There was also a discussion around whether the provision of certain information should be limited to situations where persons are deceased or should be more widely available.
I have another concern in regard to the Title. It relates to a topic that has been debated and on which I will be pressing more strongly on Report State. The Minister is aware of the concerns in this regard and colleagues have spoken on my behalf. There is a limitation on certain rights under this legislation to next of kin and there is, moreover, a narrow definition of next of kin. For example, if there are persons who rightly have a concern in regard to access to certain information but those persons are not considered next of kin because another person is alive, then they may not be able to access relevant information under this legislation.
That is a real concern. For example, in the case of a living parent who may be considered next of kin, a sibling may not be able to access certain information under this legislation because that parent does not wish to exercise his or her next-of-kin entitlements. I think there is a real concern, and it is an excessive constraint, about persons who have the potential to be next of kin in that they are recognised as being a significantly connected relative, who may not be able to access their rights under this legislation because of another person who technically holds the status of next of kin. It is, certainly as set out in this legislation, a closed limitation. For example, a sibling may not be able to access information if one parent is alive. One parent may be deceased and a sibling alive. A cousin may not be able to access information because of a sibling who is choosing not to exercise his or her next-of-kin entitlements. It is out of spirit with the understanding of family we have in this State. It is out of spirit with the important legislation we passed, namely, the Child and Family Relationships Act. That Act recognised that there is a web rather than a hierarchy of familial relationships and that there is not simply a patriarchal tiering of rights from the head of the family down. Every child has both lateral relationships - that is, sideways relationships with siblings and others - and parental relationships. Again, the way in which next of kin is configured in this legislation is out of spirit with where we are in this State and out of touch with the kinds of provisions put forward in the Child and Family Relationships Act and the referendum on the rights of the child.
Senator-----
This is all relevant to the Title, a Leas-Chathaoirligh, so-----
I interrupt only to say that the Title reflects the Bill and, as such, is already discussed. I do not want to interrupt you, Senator, but if you could-----
That is why I am using this opportunity to highlight to the Minister that I believe there may be scope in both the Title and in the provisions dealing with next of kin and the question of a tiered series of deaths to strengthen and improve the Bill in that regard. That is not an indictment of the Minister but, rather, a reflection, as I have highlighted-----
Thank you, Senator.
-----in certain other areas of the Bill, of previous embedded approaches to the notion of family and the notion of relationship that are very persistent and come through again and again. They need to be tackled everywhere they are manifest. I urge the Minister to reflect on that matter as we approach Report Stage, on which I look forward to his engagement.
Thank you, Senator Higgins. I know how genuinely committed to this whole process you are, so I did not want to interrupt prematurely.
Question put and agreed to.
Bill reported without amendment.
When is it proposed to take Report Stage?
Next Tuesday.
Is that agreed? Agreed.
Report Stage ordered for Tuesday, 7 June 2022.
When is it proposed to sit again?
At 10.30 a.m. tomorrow.
Cuireadh an Seanad ar athló ar 8.47 p.m. go dtí 10.30 a.m., Déardaoin, an 2 Meitheamh 2022.
The Seanad adjourned at 8.47 p.m. until 10.30 a.m. on Thursday, 2 June 2022.