Amendments Nos. 1, 3 and 10 to 13, inclusive, are related and may be discussed together, by agreement. However, there is no one present to move amendment No. 1.
Birth Information and Tracing Bill 2022: Report and Final Stages
Amendments Nos. 2, 4 and 77 are related and may be discussed together, by agreement.
I will speak to a number of the amendments.
I have tabled amendments Nos. 10 to 13, inclusive. We skipped ahead. It will be very brief. Are we coming back to those amendments?
Amendment No. 1 cannot be moved.
That is fine. I saw amendments Nos. 10 to 13, inclusive, were grouped with other amendments.
When we come to amendment No. 3, we will deal with them.
We are coming back to that. That is fine.
I move amendment No. 2:
In page 7, line 15, after “persons;” to insert the following:
“to amend the Succession Act 1965 to make provision in respect of persons who have been the subject of incorrect birth registrations;”.
I will speak to amendments Nos. 2, 4 and 77. To clarify, if the Deputy comes back in will amendment No. 1 be dealt with?
We will not be going back to it. We will look at amendments Nos. 3, 10 and 13 as we go forward.
That is fine. This set of amendments deals with the issue of terminology used in the Bill, in particular the use of the term "illegal birth registration". In all of my communications and discussion of these issues I have always sought to very clearly understand the significance of illegal birth registrations and place the proper emphasis on it.
I am pleased to bring forward these very important amendments to the Succession Act. As the House knows, in the context of addressing the issue of illegal birth registrations my Department engaged significantly with a group of people who were impacted by illegal birth registrations in St. Patrick's Guild. One of the key issues was whether they could succeed to the estates of their parents, namely the people they had grown up with, knowing them as their parents all of their lives, but who were not their biological parents. People wondered whether they could succeed to those estates. When people discovered they had been subject to an illegal birth registration, it was an issue of very real and significant personal and legal concern for those affected.
We have worked closely on this issue. I thank the Minister for Justice and her team because the Succession Act is something addressed under the Department of Justice. We have worked very hard to address the issue. I am pleased to bring forward an amendment to the Succession Act 1965. The amendment provides that, subject to section 27A of that Act for the purposes of succession, the relationship between an affected person and his or her social father and mother, that is, the person he or she has grown up understanding is his or her father or mother, will be deemed retrospectively to be the same as the relationship between the affected person and his or her birth father and mother. In addition, it provides that all other relationships shall be deemed accordingly.
The effect of this is that affected persons will have the same rights of inheritance vis-à-vis their social family as they have vis-à-vis their birth family. This amendment also provides definitions for the purposes of succession, transition arrangements, assurances in regard to distributions received by affected persons, the shares of birth and social parents in the event an affected person dies intestate without a spouse, civil partner or issue and the distribution of shares on intestacy where a person may stand to inherit based on the social family relationship with the deceased and the birth family relationship with the deceased.
A significant number of important changes are being made that will provide real legal assurance to people who were subject to illegal birth registration in terms of their right of succession into the future. This will also legally copper-fasten any succession they have received from their social parents up to this point. This is something I flagged on Committee Stage that I would bring forward. It required significant engagement with the Department of Justice and the Office of the Attorney General, but it is an important element and one of the key legal questions that those subject to illegal birth registrations have raised since the fact of their illegal birth registrations was first revealed to them. I hope this amendment can receive the support of the House.
I move amendment No. 4:
In page 7, line 24, to delete “Part 8” and substitute “Parts 8 and 9”.
I move amendment No. 5:
In page 8, to delete lines 13 to 15 and substitute the following:
“(b) born in the State and—
(i) placed for adoption outside the State by An Bord Uchtála, a person who was at the time a registered adoption society, the Authority or the Agency, or(ii) removed from the State by any other person for the purpose of the effecting of his or her adoption outside the State, and whose adoption was effected outside the State,”.
This is an amendment that flows from the discussions we had on Committee Stage and some issues raised by the Opposition which I committed to examine. This amendment specifically ensures that we have the greatest possible clarity in terms of the definition of an "adopted person". I am bringing forward this amendment to ensure absolute clarity that any child born in Ireland and adopted abroad is included in the Bill. While this was always the intention, I understand that, in some cases, private arrangements were made without the involvement of an accredited body or an adoption authority. I want to ensure that, in all cases, a child born in Ireland who was sent for adoption abroad is included.
Therefore, I propose the definition of an "adopted person" be amended to include a person removed from the State by any other person for the purposes of effecting his or her adoption outside of the State and whose adoption was effected outside the State. The amendment seeks to recognise the many informal types of arrangements that may subsequently have been formalised and may not have been operated through a body like the Adoption Authority of Ireland, or An Bord Uchtála, as it was then, and other agencies. I am trying to keep the definitions broad so that as many people as possible may use the Bill. The broader we keep the definitions, the more people who can use the provisions of the Bill and subsequently get the various types of information provided for in it.
I thank the Minister. I want to speak to this amendment because we had this discussion on Committee Stage. I welcome that this has been included. An important point was made about different arrangements. We have all heard various stories over the years. There were very formal arrangements, but there were also informal arrangements. It is important to be as inclusive as possible in the Bill. I welcome this amendment.
I welcome the amendment. As Deputy Funchion said, it reflects the discussion we had on Committee Stage to ensure the Bill will be as inclusive as possible. I very much welcome the fact that, as the Minister said, this provision will ensure that persons who were the subject of what he described as more informal adoption arrangements, in particular those effected outside of the State, will be covered by the Bill. It is welcome and I thank him for that.
I move amendment No. 6:
In page 9, between lines 19 and 20, to insert the following:
“(d) an arrangement made under section 36(1)(d) of the Child Care Act 1991, under which a child was placed with a relative,”.
This amendment amends the definition of "care arrangement" to include records of relevant foster care. It was an issue that arose on Committee Stage and I committed to working with my officials to determine whether we have the definition right. I am pleased to be able to bring forward an amendment which further expands the definition of "care arrangement" to include former foster care by a relative. Records related to a relevant person foster care placement have always been included in the definition. This amendment will ensure that where a relevant person was fostered by a relative, the records relating to that placement will also fall to be released.
The amendment slightly broadens the definition, recognising that foster care arrangements, while predominantly with non-relatives, on occasion did happen with relatives and it is right that those relationships should be encompassed within the definitions. I am pleased to be able to respond to the points raised by the Deputy on Committee Stage.
I do not want to end up saying the same thing, although I am sure there will probably be more contentious issues later, but it is welcome to see some of the issues discussed on Committee Stage being addressed. It is good to see points raised in the discussions during pre-legislative scrutiny and on Committee Stage and the other Stages being taken on board. As I stated, there have been many different situations, examples and stories from the time of the mother and baby institutions and it is really important that we have as wide a reach as possible for people to be able to access this legislation. As such, I welcome the amendment.
I, too, am glad the amendment has been tabled and that it reflects a discussion we had on Committee Stage. We need to acknowledge where progress was made on Committee Stage and thank the Minister for taking on board comments made. Obviously, we will be critical where those comments have not been taken on board, but it is worth acknowledging where comments are taken on board and the legislation is improved as a result.
Amendments Nos. 7, 8 and 17 are related and may be discussed together.
I move amendment No. 7:
In page 9, line 25, to delete “, subject to subsection (2),”.
This is another amendment that springs from the discussions on Committee Stage. Collectively, this grouping of amendments removes the time limitation placed on early life information and care information. When first published, the Bill provided that the definitions of early life information and care information were subject to a limited time period that was deemed to end, in the case of an adopted person, at the date of his or her adoption, or, in the case of a person subject to an illegal birth registration, the date on which his or her social parents assumed their role as parents. Amendments Nos. 7 and 8 remove the reference to early life and care definitions being subject to subsection 2(2), while amendment No. 17 deletes subsection 2(2) completely, thus removing that limitation. I know that Deputies brought forward similar amendments on Committee Stage and, in response, I stated that I would seek to have this timeline removed, subject to consultation with the Office of the Attorney General. Following that consultation, I am happy to be in a position to remove subsection 2(2), which means the definition of early life and care information for all relevant persons will now extend all the way up to the age of 18. Deputies Bacik and Funchion both raised this on Committee Stage. We did say we would go back and look at it. I listened to the arguments made and we are making this change on foot of that.
I am delighted to see this amendment because we had several amendments that were similar and all kind of saying the same thing in respect of the timeframes and being restrictive. It is good to see it. A later amendment that I tabled can now be withdrawn on the basis of this amendment. We will see when we get there. It is good. I am glad the Minister has tabled the amendment because one of the things about which we were anxious was that there would not be any limitations. The amendment is welcome.
I, too, welcome the amendment and thank the Minister for acknowledging the debate on Committee Stage.
I move amendment No. 8:
In page 10, line 3, to delete “, subject to subsection (2),”.
Amendment agreed to.
Amendments Nos. 9 and 16 are related and may be discussed together.
I move amendment No. 9:
In page 10, between lines 20 and 21, to insert the following:
“(d) a photograph or other image of him or her,”.
This is another positive amendment that we are able to make, again following on from the discussions on Committee Stage. This is an amendment to the definitions to include specific reference to photographs within the materials that can be released. We felt, and still do, that the definitions we provided would have included photographs. This relates to the items that can be left for people but, importantly, can be protected as well. Within the Bill, there are the release provisions and there are the protection provisions. At times during the debate on Committee Stage, those two elements got conflated. We want to ensure documents can be released, such that a person seeking his or her photograph can get it released, but we also want to make it clear that if a photograph is in a file and no one has asked for that file, the photograph is still protected, along with all the other information.
Amendment No. 9 provides for the inclusion of a photograph in the early life category of information and amendment No. 16 includes a new text in the definition of a relevant record to ensure clarity that photographs and images are to be safeguarded and protected where they exist within files. I signalled to Deputies on Committee Stage that I would review this definition to see if it required any expansion and I am happy that the amendment will now provide further clarity and certainty for information sources to safeguard such images. In addition, relevant bodies will be clear that such images should be released to a relevant person. Photographs can now, without any question, be released and they will be protected. There will be an obligation in that regard.
The amendment is welcome because so many adopted persons made the point to us that the legislation needs to be as inclusive as possible. We had a lengthy debate on that issue on Committee Stage and, in the same spirit of inclusivity, it is welcome to see the amendment.
I move amendment No. 10:
In page 11, between lines 21 and 22, to insert the following:
“ “illegal adoption” means an illegal adoption, where any of the following situations occurred:
(a) where a non-marital child was registered as the natural child of the adoptive parents without the mother’s knowledge or consent and no adoption order was made;
(b) where a non-marital child was registered as the natural child of the adoptive parents and an adoption order was made;
(c) where a marital child was registered as the natural child of the adoptive parents and no adoption order was made;
(d) where a marital child was registered as the natural child of the adoptive parents and an adoption order was made;
(e) where the adoptive parents were not resident in the State at the time of the adoption;
(f) where a relinquished child over a year old was sent overseas for adoption without the consent and knowledge of the mother;
(g) where informed consent was not given, as in the case of birthmothers who were minors who signed consents without a guardian or legal advisor present, without understanding the import of severing parental rights;
(h) any adoption arranged by a private person or private body, not regarded as a “registered Adoption Agency”;
(i) any adoption arranged by a registered adoption agency or other body for the purpose of financial gain;”.
This amendment relates to the whole issue of terminology and the usage of "illegal" compared with "incorrect".
I am sorry to interrupt. In case there is any misunderstanding, amendments Nos. 10 to 13, inclusive, are related and may be discussed together.
That is fine. They are all related, so the same argument applies. I take on board the point that the argument for not using the word "illegal" is that the person has to prove it was illegal and there might be difficulties in that regard, so I am a bit conflicted on it. However, does amendment No. 2, to which the House has agreed, make any changes to the whole issue in respect of the use of "incorrect" or "illegal"? Many people feel strongly about this, and rightly so. When we are discussing this, we all reference it as being illegal; nobody goes around saying it is incorrect. It is an important point for people who are affected by it that it is called out for exactly what it is. I do understand, however, that it may cause difficulties. I am not sure whether amendment No. 2 relates to this issue. It would be interesting to hear the views of the Minister on that.
As Deputy Funchion stated, this is an issue that came up extensively on Committee Stage. Indeed, we submitted an amendment to make a distinction between falsely or otherwise incorrectly. The Minister took that point on board. I, too, would welcome clarification on how amendment No. 2, tabled by the Minister, as well as his later amendments which I am delighted to see he has brought forward in respect of a review of incorrect or apparently incorrect birth registration, affect the point we made. We wanted to ensure there was a distinction between inadvertent false information and deliberately falsifying the information. It is that distinction between deliberate and inadvertent that we were trying to capture in our amendments. I know Deputy Funchion has tabled amendments on this. To some extent, the Minister stated on Committee Stage that he had brought forward an amendment similar to the one I tabled that addressed the issue.
What Deputy Funchion and I welcome is that the Government amendments, taken together, would recognise the basic illegality of what has occurred. I did not submit my previous amendments on this point because I think that if all the Government amendments on this issue are accepted, the legislation will address this point. If I may look ahead to amendment No. 70, it provides that the Minister can authorise the agency and authority to conduct a review or trace, particularly in order to investigate whether there is evidence that a person has been the subject of an incorrect birth registration. It seems that some of the issues we raised have been addressed but we are seeking confirmation of that.
To clarify, amendments Nos. 10 to 13, inclusive, are being discussed together.
We have had significant discussions about the definitions used in terms of what we all know, recognise and speak of as illegal birth registrations - there was illegality involved in many such adoptions - and the use of the word "incorrect" in the legislation. I made the point that in my communications and those of the Government, in which we have engaged extensively with groups of people who have been subject to illegal birth registrations, we have always used that language of "illegal birth registrations". I also made the point that we want to ensure people who were subject to illegal birth registrations can use this legislation and that they are defined within the category of those to whom it applies. We want to make sure people who believe they were subject to illegal birth registration are included. Tusla identified 141 such persons from St. Patrick's Guild but we know there are others who have very good reasons to believe they also were subject to an illegal birth registration. We want to ensure as many people as possible can fit within the criteria and definitions of people who can use the provisions of the Bill, including both the existing provisions and some new ones I am introducing via Committee Stage amendment today, particularly the tracing amendment to which Deputy Bacik referred.
As we have said throughout this debate, the concern is that putting the phrase "illegal birth registrations" in the legislation creates a very high bar to reach. It would require someone to demonstrate that he or she was the subject of such an illegal registration. That is why we use the word "incorrect", which is a broader term. I know this has caused concern and, in my communications on it, I always have tried to show that the sole reason for this is to ensure the definition is wide in order that as many people as possible can fall within the provisions of the Bill and be able potentially to use them to identify finally and conclusively whether they were the subject of an illegal birth registration. One of the provisions we are bringing in today, as referenced by the Deputy, will strengthen the ability of an individual to look back and see whether he or she was subject to an illegal birth registration and also will enable the Minister to direct Tusla or the Adoption Authority of Ireland to undertake such a trace-back. That is really important and it is a significant change both for individuals and for the Minister.
Deputy Funchion spoke about amendment No. 2. The amendment does not change a specific definition, to be upfront on that, but by bringing in this very substantial change to the Succession Act 1965, there is, I hope, a further demonstration by the Government of our recognition of what was done to people who were subject to illegal birth registration and of the need to make extensive and novel legal changes to address their very difficult situation. It goes beyond the absolutely traumatic emotional impact of the revelation to which they have been subject, encompassing the very difficult legal situation in which people subject to illegal birth registration have been put.
On Committee Stage, recognising there was concern about the use solely of the word "incorrect", which might somehow be seen as a diminution or a glossing over of what happened in terms of illegal birth registrations, we brought forward an amendment, which was similar enough to an amendment brought forward by Deputy Bacik and others. The proposed section 54, as per our amendment No. 77, provides that the 1965 Act will be amended to state that, "[for] the purposes of this Act, a person is an affected person" where there has been the "giving of information that was false or misleading" in respect of the naming of the mother. We have added the term "false or misleading" to the definition of the people who are affected, thereby recognising that there was falsity and, in many cases, a deliberate effort to misrepresent the relationships involved.
We looked at the issue again since Committee Stage and I asked my officials to examine whether any of the changes Deputies are bringing forward today could be made. The response from the Office of the Attorney General and the Parliamentary Counsel was that the proposals put forward would act to undermine the clarity and inclusivity of the Bill. Much as I would like to take these amendments, we believe they would undermine the clarity and inclusivity of the Bill. I want the Bill to be accessible to as many people as possible who have questions on their identity. We want the wrongness of what happened to people to be recognised. I believe we have gone a significant way to do that in the amendments I brought forward on Committee Stage. I accept that some people who have been subject to this treatment do not agree, but I have looked at this and have gone as far as I believe can go to address the language used while, at the same time, in every thing I have said and everything the Government has done, we have recognised the illegality of what happened.
The next speaker is Deputy Cairns. She was down to speak on amendments Nos. 1 and 3, which have already been discussed. We are currently discussing amendments Nos. 10 to 13, inclusive.
Is it possible to speak on amendment No. 13?
I am just pointing out that all the amendments were grouped and we have moved on to amendments Nos. 10 to 13, inclusive. The Deputy has an opportunity now to speak and she has seven minutes to do so.
I thank the Leas-Cheann Comhairle and apologise for not being here earlier. The schedule arrived late.
That is okay. I just wanted to clarify matters for the Deputy.
Amendments Nos. 1 and 3 in my name, as the Leas-Cheann Comhairle noted, seek expressly to include reference to illegal adoptions in the Bill. Currently, it does not feature the term "illegal adoption", which erases the realities and experiences of many adopted people. The Minister talks about illegal adoptions, to which reference is made in the explanatory memorandum, but the Bill itself does not contain this vital term.
On Committee Stage, the Minister outlined that "illegal birth registration" cannot be used in place of "incorrect birth registrations" as it may create a barrier in terms of proving illegality. That argument was accepted. However, in response then and now, my amendments and those of others, including amendment No. 13, seek purposely to retain the broader category of incorrect birth registration and allow acknowledgment of what people went through and its lasting impact on their lives. I was disappointed on Committee Stage that the Minister refused to accept those amendments as the addition of wording around false or misleading information was seen as sufficient. Affected people do not refer to their adoptions, or the legislation governing them, as being false or misleading; they rightly call them illegal. The Bill needs to respect their experience.
The Minister has assured us the Bill is technically correct on this matter, but it is not morally right. It is incredibly important that the terms "illegal adoptions" and "illegal birth registrations" feature alongside reference to "incorrect registrations". I fail to see why the Minister and his Department refuse to include a reference to illegality in the Bill. It not only would be accurate but it would provide an acknowledgement for survivors of some of the worst abuse in the State's history.
As I said, the reason we are not accepting this set of amendments is that to do so would narrow the pool of people who potentially may use this legislation. It would mean that a requirement or threshold of illegality would need to be met in order for people to be able to use its provisions. This is something neither I nor any Deputy wants to see. I have been very clear on my recognition of people's experience, as has the Government in terms of the range of measures we are taking both in this and other legislation to address what was done to people who were subject to an illegal birth registration.
There are a number of additional amendments coming forward today. These are the succession amendments we spoke about earlier and those tracing amendments that specifically address issues raised by the special rapporteur in his detailed piece of work on this legislation.
We are asking for both to be included alongside each other rather than just illegal adoptions to be included so both are acknowledged in-----
You have a further two minutes, Deputy, so we will let the Minister finish first.
The key element in all this is to ensure the legislation is as inclusive as possible. That is what we are seeking to do, to ensure that as many people as possible can benefit from this legislation.
For the hundredth time, what we are asking for is that illegal adoptions be included alongside the other types of adoption. It is not fair to say that that would limit this to illegal adoptions. We are asking for illegal adoptions to be included alongside the other forms of adoption. Just pretending we have not said that every time is frustrating to the people watching this as well as to the Deputies who have made time to table amendments. The Minister should at least say the Government does not want to include illegal adoptions alongside the other forms and explain why that is, rather than just saying that this would limit it. We all know it would not. It is frustrating to hear that over and over again. If the Minister could explain why he will not include illegal adoption alongside the other definitions of adoptions, that would be incredibly helpful.
I think all of us share that frustration about the language. We will have an opportunity, I think, to debate this issue further when we come to the later group of amendments concerning the new mechanism for the Minister to authorise the agency or authority to conduct a review or trace where a person believes he or she has been the subject of an incorrect birth registration. I hope we can revisit that point then. I think the concern we have is that, without being clear as to what is meant by incorrect birth registration, it may not capture the full experience of somebody who believes there has been a deliberate falsification of records. Our concern, in a nutshell, is to ensure that that experience can be captured, while appreciating, as the Minister says, that we do not want to set the bar too high and inadvertently exclude persons from the scope of the legislation. It is a matter of finding that balance of ensuring that people's real experiences are reflected in the legislation without creating any problems for the coverage that the legislation can afford to individuals.
In response to Deputy Cairns, we looked at whether we could include definitions of both. I specifically went to the Office of the Parliamentary Counsel and inquired on that point because I know it is an issue people feel strongly about. The concern was that the definition of illegal adoption that was proposed in some of the amendments would not sit with the existing definition of relevant person or the existing definition of adopted persons, that the two definitions, as proposed, sitting together would clash and that that would create a difficulty with the use of the legislation. I asked about that, we looked to see what we could do and we were not able to resolve that concern. I would have liked to have been in a position to do so. As we have seen already this afternoon, I have made a number of amendments on foot of relevant and valid points that were raised on Committee Stage, where I felt that by doing so we would leave the legislation strengthened. In this case, we did not feel we could do so.
As to what Deputy Bacik said and the point about the importance of capturing the experience of people, she is right. I think there was a concern that just using the term "incorrect information" would not perhaps cover that. That is why, like the Deputy, the Department uses the term "false and misleading". That term has been placed in the legislation now, so somebody who has an incorrect birth registration due to false or misleading information being provided is provided for in the legislation now. I therefore think we have addressed that to the extent that we can, working with the advice we have received and ensuring that definitions are inclusive and that nothing we do interferes with the wider actions of provisions within this legislation.
Are those words, "false and misleading", in the legislation now?
Yes, "false or misleading".
I am happy to withdraw the amendment on that basis.
Amendment No. 14 is grouped with quite a number of amendments. Amendments Nos. 14, 29 to 58, inclusive, and 63 are related and are to be discussed together. Amendments Nos. 30 to 58, inclusive, are physical alternatives to amendment No. 29. Amendments Nos. 21 to 40, inclusive, are physical alternatives to amendment No. 30. This is quite a grouping for one reason or another.
I move amendment No. 14:
In page 11, line 32, to delete “information” where it firstly occurs and substitute “records”.
I will speak to amendment No. 14 and then I might come back in on amendment No. 29. I think amendment No. 29 is the one to which I was referring earlier that we can withdraw now on the basis that the restrictive timeframe has been removed. Amendment No. 14 is exactly as it says. It aims to capture the wider range by the use of the word "records" rather than the word "information". I suppose we all know - it was discussed on all Stages, on this Stage but particularly on Second Stage and Committee Stage - that there is distrust, understandably so, on the part of people who have survived these institutions. I suppose there is a feeling that the word "records" encompasses everything rather than the word "information", which could be subject to being picked and chosen.
I will come back in on amendments Nos. 29 to 58, inclusive, if that is okay. I want to check that I am right in what I am thinking about them.
This is a large group of amendments, as the Leas-Cheann Comhairle said, and some of the amendments in it are mine - I think I am right in saying amendments Nos. 35 to 38, inclusive, 45 to 47, inclusive, and 49. However, the amendments that are mine in this group in fact relate really to my substantive amendment No. 59, which is on the mandatory information session, so it may be better to address my comments when we come to that grouping as I know that this is a substantive point on which, again, we had a good deal of discussion on Committee Stage. Some of the amendments I have tabled that are in this grouping are technical amendments that would be consequent on the passage of my amendment No. 59, which would insert a new provision on effectively replacing the mandatory information session with a provision requiring the sending of a prepaid registered post or recorded delivery statement to a person seeking information. I want to put on record that there seems to be some crossover between the two groupings.
We will discuss amendment No. 59 separately when we come to it.
Yes. I will reserve my fuller comments until then.
Do I speak to amendment No. 58 now or do I wait-----
Yes. Amendment No. 14, this amendment, is grouped for discussion with amendments Nos. 29 to 58, inclusive, and 63.
Deputy Bacik is waiting-----
No. Deputy Bacik has tabled a separate amendment, which we will deal with later, amendment No. 59, which is entirely separate from this group.
Sorry. I will speak to amendment No. 58 now then. The amendment states: "When a relevant person applies under sections 11 and 12 for information and/or when a relevant person applies for their personal data, the relevant body or the Authority will make available all medical records to the relevant person regardless of whether they have explicitly requested those items." This amendment is important to ensure that all medical records are made available to the relevant person.
A key theme of the pre-legislative scrutiny was that relevant people would be empowered to access as much of their information as possible. As currently worded, the Bill may be interpreted by the Adoption Authority of Ireland, Tusla or other bodies to provide only information that has been explicitly sought rather than all information, which, in the case of medical records, may have incredibly important details for the person's health. Given the draconian approach of State bodies and other entities to releasing information, it is necessary the Bill includes this type of explicit obligation. There is a well-founded distrust of the State on these matters and, in particular, of the Adoption Authority of Ireland and Tusla. As legislators, we need to guarantee that no one will be denied access to their information and that information will not be merely withheld without being denied.
When discussing this on Committee Stage, the Minister presented the spurious argument that this amendment seeks to force medical detail on people who have not requested it. Nowhere, at any stage, did any group or stakeholder even raise the prospect that they would ever be concerned by receiving too much information. Each and every affected person is continuing to fight for access to information. This amendment provides some assurances regarding their medical information.
I ask for the Leas-Cheann Comhairle's guidance. I will move a number of Government amendments that are in this grouping. These are amendments Nos. 31 to 34, inclusive, 39 to 44, inclusive, 48, 50 to 57, inclusive, and 63.
A Leas-Cheann Comhairle, should I have moved amendment No. 58?
We will discuss them in relation to amendment No. 14, which Deputy Funchion has moved. The grouped amendments are related to that amendment and they can be moved in due course.
Okay. Apologies, a Leas-Cheann Comhairle. In the context of amendment No. 14, which was tabled by Deputy Funchion, this issue was raised on Committee Stage. We acknowledge that the assurance about the release not just of the information but of the documents that was repeated in other parts of the legislation had not been continued on there. We recognise that was an error in the drafting.
Amendment No. 14 seeks to amend the definition of medical information to read medical records. The intention of this amendment is similar to the intention of my own amendments Nos. 56, 57 and 63 in that it seeks to ensure the release of medical records to a relevant person as opposed to the information contained within a record. My own amendments No. 56, 57 and 63 seek to remedy an oversight in the originally published Bill, which provided for the medical information of a relevant person but not for the record itself to be released directly to that person. I know this was an issue of concern on Committee Stage, and I signalled I would table this amendment. The Government amendment will ensure it is the record containing medical information that will be released to a relevant person. I therefore think I am addressing Deputy Funchion’s amendment No. 14 in the context of those three amendments. I will speak to her other amendments a little later.
In terms of the amendment that was tabled by Deputy Cairns, we debated extensively about whether relevant persons and people who are seeking this legislation should be given all information, irrespective of whether they apply for it, or whether they should have a choice about information when making an application. As we have made very clear, a person will be able to tick a box and apply for all information. We have also made it clear that people can select which types of information they wish to receive. I think it is a good thing we give people agency over their determination about what information they can receive. There may be reasons - and I do not know what those reasons are - people do not wish to receive medical information. There may be something about their history they do not want to know. If they wish to make that choice, that is a choice they should make, and the legislation should not constrain or compel them to receive information that they may not wish to receive.
Deputy Cairns is right this issue did not arise in pre-legislative scrutiny. However, we have to recognise there are a substantial number of survivors in this area. Different survivors, as we all know from our engagements, have different views. Therefore, leaving the legislation as it is and giving people choice on that matter is the best way to proceed.
I move amendment No. 15:
In page 12, line 12, to delete “Regulation;” and substitute the following:
“Regulation. Under this Act, all records relating to the adoption or informal care arrangement of a relevant person are considered to be that person’s personal data, regardless of whether that data is shared with another person. Personal data in relation to a relevant person, includes but is not limited to:
(a) personal data in terms of the relevant person’s physical, mental, and physiological identity, including but not limited to:
(i) the relevant person’s place of birth;
(ii) details, if applicable, of whether the relevant person was carried to full term, and if not, what precipitated early delivery and at what stage in the pregnancy;
(iii) the relevant person’s health status at birth;
(iv) details regarding the circumstances of the relevant person’s birth, e.g. was it a normal birth or if there were complications;
(v) the relevant person’s birth weight;
(vi) the relevant person’s physical condition and circumstances during their early months and years;
(vii) records concerning the relevant person’s early-life care;
(viii) records concerning the relevant person’s health from birth until the time of placement;
(ix) the relevant person’s medical records from birth until the time of placement, including x-rays, tests, vaccines;
(x) the relevant person’s family medical history;
(xi) records of any vaccine trials in which the relevant person was a research subject;
(b) personal data in terms of the relevant person’s genetic identity, including but not limited to:
(i) the relevant person’s name at birth;
(ii) the relevant person’s birth certificate;
(iii) the relevant person’s mother’s forename and surname, as held in the public Register of Births or equivalent if the relevant person’s mother was born outside of Ireland;
(iv) the relevant person’s father’s forename and surname, as held in the public Register of Births or equivalent if the relevant person’s father was born outside of Ireland;
(v) the relevant person’s genetic relatives’ names, as held in the public Register of Births or equivalent if the relevant person’s relative was born outside of Ireland
(c) personal data in terms of the relevant person’s economic, cultural and social identity, both before and after their adoption or placement in informal care, relating to their economic, cultural and social identity both around the time of their birth and after their adoption or placement in informal care, and which relate to how the relevant person acquired their adoptive identity, including but not limited to:
(i) the relevant person’s name at birth, as held in the public Register of Births;
(ii) the relevant person’s date of birth;
(iii) the relevant person’s place of birth;
(iv) the relevant person’s mother’s forename and surname, as held in the public Register of Births or equivalent if the relevant person’s mother was born outside of Ireland;
(v) the relevant person’s father’s forename and surname, as held in the public Register of Births or equivalent if the relevant person’s father was born outside of Ireland;
(vi) the relevant person’s relatives’ names, as held in the public Register of Births or equivalent if the relevant person’s relative was born outside of Ireland;
(vii) the relevant person’s county/country of origin at the time of their birth;
(viii) the occupation of the relevant person’s parents and family members at the time of the relevant person’s birth;
(ix) the relevant person’s parents’ ages at the time of the relevant person’s birth;
(x) the relevant person’s grandparents’ occupations at the time of the relevant person’s birth;
(xi) the number of siblings in the immediate family of the relevant person’s mother;
(xiii) the circumstances surrounding the relevant person’s adoption or informal care arrangement;
(xiv) correspondence about the relevant person, including correspondence associated with the administrative process surrounding the relevant person’s adoption or informal care arrangement, and correspondence from the relevant person’s mother enquiring about the relevant person;
(xiv) the assessment process associated with the relevant person’s adoption or informal care arrangement;
(xv) the administrative process surrounding the relevant person’s adoption or informal placement, including records about the decision-making process around the placement, correspondence with the adoptive parents and others, and how the relevant person acquired their adoptive/new identity;
(xvi) the names of the people responsible for the relevant person’s care during the relevant person’s early weeks, months and years;
(xvii) the place at which the relevant person resided and the individual who was in charge of that place;
(xviii) where applicable, the date and place of the relevant person’s baptism or any other ceremony of a religious or spiritual nature performed in the period in respect of the relevant person;
(xix) where applicable, any person, agency or organisation who made arrangements for the relevant person’s adoption, whether or not an adoption was effected in respect of the relevant person;
(xx) where applicable, the date on which the relevant person was made the subject of a foster care arrangement or placed with prospective adopters;
(xxi) information regarding whether the relevant person’s mother was resident in any other institution offering social care/support either prior to or subsequent to the adopted person’s birth;
(xxii) information regarding whether the mother stayed at the institution with the adopted person prior to their placement with the adoptive parents;
(xxiii) any anecdotal information regarding the adopted person’s stay in the institution
(xxiv) if applicable, whether the relevant person’s mother was transferred from the Mother and Baby Home to a Magdalene Laundry or other institution, and if so, details of the circumstances;
(xxv) if applicable, whether the relevant person’s mother was transferred from a Magdalene Laundry or another institution, to the Mother and Baby Home prior to giving birth and if so, details of the circumstances;
(xxvi) whether the relevant person’s mother gave informed consent to the adoption;
(xxvii) whether the relevant person’s mother was made aware of or offered any other choices apart from adoption;
(xxviii) whether the relevant person’s mother received support after their adoption;
(xxix) any letters, cards or other materials placed on the adoption file(s) by the relevant person’s mother;
(xxx) any letters, cards or other materials placed on the adoption file(s) by the relevant person’s father or other relatives;
(xxxi) any letters, cards or other materials placed on the adoption file(s) by the relevant person’s adoptive parents.”.
This amendment relates to some of the discussions we had about people’s data, as well as the fact that the list is non-exhaustive, which will not prevent personal data from being withheld. These categories of information are open to a range of different interpretations. Given the experience people have had to date in trying to access information, there is a fear and distrust, as has been mentioned already, that personal data might be held back. The process is also likely to be extremely confusing for applicants. Instead of requiring data controllers to provide data subjects with a full schedule of records held, several sections of the Bill state the relevant body may provide the relevant person with a statement, setting out the information that is contained in the records it holds. However, this is not equivalent to what must be provided to a data subject who makes a subject access request. We had a discussion about some of those subject access requests, which have been quite successful. A similar process would be welcome.
Amendment No. 15 ensures the Bill includes the broadest possible definition of personal data. This comes back to guaranteeing beyond a shadow of a doubt that adopted people and their relatives will be entitled to access information. Given the manner in which this access has been denied and continues to be, as well as the levels of distrust in how this Bill will be interpreted by State bodies, I think we are obliged to include extensive and explicit definitions of information relating to adopting and care arrangements. There cannot be any ambiguity at this time. State bodies, institutions and the church need to have no room whatsoever to continue to deny people access to their information.
The Minister referenced in the discussion on amendment No. 14 how a person could request all information or some of the information. If that is to make sense, then when somebody ticks that box to choose all information pertaining to him or her, we need to go as far as we possibly can in this legislation to ensure all of that information is provided to that person. There reason I tabled the other amendment is because, for example, if you requested information about your parents, and that was the only thing you were setting out to look for, if there was potentially information there about you relating to, for example, an illegal vaccine trial carried out on you or anything like that, you could find that out without knowing to ask for it. If we are to accept that, as discussed in amendment No. 14, a person has to pick either just the information requested or all information, we have to ensure that when that person says he or she wants all information, that person absolutely gets all of that information.
This amendment can be described as being in that spirit of ensuring the legislation will be as inclusive as possible and that all information an adopted person seeks will be supplied to him or her and there will not be anything missing from the list of items that may be sought.
I agree with the three speakers and with the Minister. This was probably one of the most important issues that we raised on Committee Stage. Again, all information was crucial here. That is the one issue we were all firm on, as the Minister was himself. He has given that commitment, that people who access their information can get all their information or, as the Minister said, if they tick a box to choose whatever information they want, they can to get it. This is good. I know the Minister has listened to us. It is about inclusiveness and making sure people get their information.
I do not for a minute question any Deputy’s view about the spirit of what we are trying to achieve here. We all are trying to achieve, as Deputy Murnane O’Connor just said, the full access to and the full release of all information. However, I do not believe the change being proposed in this amendment furthers that goal. I think it actually restricts that goal.
Deputy Funchion spoke about the broadest definition of personal data but here we are providing a definition of personal data. It is a lengthy one and I will talk about its length in a moment, but the amendment is providing a definition that will be in this legislation and the only way that definition can be changed is if this legislation is amended. What the legislation currently does is include a definition of personal data which is defined as the EU defines it, as the European Court of Justice cases evolve the definition of personal data. We are referring to the use of personal data in the GDPR and that is interpreted by the European Court of Justice. If that court changes the definition through its case law, the definition of personal data that we use changes as well. What this amendment seeks to do is to provide a definition of personal data for this legislation and while it is lengthy, it is conclusive and the only way of changing it is to bring forward amending legislation. This means that the definition of personal data in this legislation may start to diverge from the most up-to-date interpretation of personal data as per decisions of the European Court of Justice. I do not think that is a position we want to be in. We do not want to see Irish law start to diverge from European Court of Justice jurisprudence, particularly when it comes to a definition of personal data that is central to what the GDPR is all about. That is why I am opposing this amendment. I do not believe this particular change should be made.
As I said, the definition in the amendment is lengthy, with 46 different sections but the majority of these are already covered by the definitions contained in the legislation. The definitions of birth, early life, care, medical information and provided items cover the majority of those 46 listed types of personal information proposed in the amendment. However, the list of 46 also contains items of information that do not pertain to the relevant person. As Deputy Cairns said, this is all about ensuring that information pertaining to the relevant person is available to them but some of those points are not pertaining to the relevant person. They are pertaining to others and that is not something we can include in the definition of personal data.
We want our definition, the definition we use in this legislation, to be able to expand as the definition from the European Court of Justice expands as well but this amendment would restrict that. I do not think that is something any of us wants to do and on that basis, I will be opposing the amendment.
The amendment states that "Under this Act, all records relating to the adoption or informal care arrangement of a relevant person are considered to be that person’s personal data, regardless of whether that data are shared with another person. Personal data in relation to a relevant person, includes but is not limited to" and so on. The Minister has said that we are better off sticking with the definitions that are most up to date and in line with the European Court of Justice and the GDPR. The problem is that this Government and previous governments have form in terms of not having the most open interpretation of the GDPR. The reason for this amendment is to ensure that information can be accessed. The aim is to strengthen the approach the Minister is talking about in relation to the most up to date interpretation of the GDPR. That is not the way Ireland has interpreted it so far and the whole purpose of this amendment is to ensure that finally that actually happens.
As we discussed on Committee Stage, we now have these very broad definitions of categories set out in legislation with which Tusla, the Adoption Authority of Ireland, AAI, and other bodies have to comply. That is now a legislative obligation that was never on them previously. We also have in this legislation the power to draw up ministerial guidelines on the implementation of those interpretations. If it is seen that a body is seeking to implement them in a restrictive way, a Minister can issue guidelines that make it very clear that is not the way to do it and indicate the direction in which to implement. Finally, we have our implementation group whereby officials in my Department are engaged directly with Tusla and the AAI in making that culture change that we all recognise is necessary in these institutions.
We are using the most up to date definition of personal data, linked to the GDPR and as it is defined by the European Court of Justice. We have the very extensive categories of information that relevant bodies must release. We have the ability to write and clarify guidelines as we go ahead and we have the ability to engage directly with the agencies through the implementation body. These four measures will enable us to ensure the spirit of openness, the spirit of release that we spoke about at the start of this section is maintained.
The Minister just spoke about the need for a culture change in the context of releasing information to adopted people. We all know the history of that not really happening and of bodies trying to keep it hidden under the carpet. The Minister then said that his Department will be tasked with trying to change that culture not only within the Department itself but within organisations like Tusla and the AAI. I do not know on what planet it makes sense to task the very organisation that has potentially created that culture with trying to change it. It is not a practical approach to effecting the kind of change about which the Minister is talking. The very institution that has created a culture is bound to have an inherent aversion to changing it and it is really important to note that. If we need a change in culture, we should not ask the institutions that have that culture problem to implement that change.
Fundamentally, my Department and my officials have engaged in a huge amount of work to bring about that culture change, as demonstrated by this very substantial Bill that we have worked on and prioritised to bring about those changes. I have seen and I believe there is a culture change beginning in those organisations. If the Deputy does not accept my view she should, as a committee member, invite Mr. Bernard Gloster, the chief executive of the AAI and engage with him. I am extremely confident that those bodies are changing and that they see the need for change. I believe they will see themselves as being empowered by this legislation to change their approach to the release of information to people who were adopted and people who were the subject of illegal birth registrations. Change has to begin somewhere and I believe we are beginning it in our Department. When one looks at my Department's approach to subject access requests, for example, more than 500 people have received information from the archive of the Commission of Investigation following on from subject access requests. An issue came up about the release of medical information and we looked for a work-around. We brought in amending regulations that have addressed that issue. Now there is no question of going to a GP. We brought in regulations to do that. We could have held off because that is dealt with in this legislation but the principle of the barrier the statutory instrument from 1989 caused was offensive, it had to go, and we did change it. There is a culture change that is exhibited in Government and which is feeding through the agencies involved but it will be up to all of us, in Government and in Opposition, to police that and make sure it is being delivered on.
I move amendment No. 16:
In page 13, line 14, to delete “him or her,” and substitute “him or her, or a photograph or other image of his mother, father or other genetic relative,”
I move amendment No. 17:
In page 14, to delete lines 4 to 11
Amendments Nos. 18 to 28, inclusive, 59 and 60 are related and may be discussed together.
I move amendment No. 18:
In page 15, to delete lines 7 to 36, to delete pages 16 and 17, and in page 18, to delete lines 1 to 3 and substitute the following:
"6.An tArd-Chláraitheoir shall on an application made by a relevant person, a record of whose birth is kept by an tArd-Chláraitheoir and who has reached the age of 16 years, supply to that person on payment of the prescribed fee (if any) such information as is necessary to enable that person to obtain a certified copy of the record of his or her birth.".
This is the group of amendments that primarily deals with the information session, which is always going to be a contentious issue for us. I see some very positive changes that have been made since Committee Stage but this remains. This is the make-or-break section. If somebody registers a no-contact preference and the person seeking information does not adhere to attending this meeting, he or she will not get his or her information. I cannot look past this. It is so wrong. It means we cannot say that everybody has access, guaranteed access or a right of access. It does not matter if it affects only one or two people. Sometimes the argument is used that it is envisaged it will affect a small number of people. The number of people affected does not matter. It is the principle of it. People feel very exercised about it. They feel really strongly. On Second Stage a number of Government representatives shared this view and asked that it be looked at.
When the committee looked at this, we worked very well together. We came up with the alternative of a letter by registered post. This has since been dismissed by the Government. We discussed it for a long time. With the exception of the Minister, all of us here are members of the committee. I do not want to speak for anyone but we agreed it was a good alternative. One reason it is such a good alternative is that it protects the State because there is a record that a letter went to a specific person and nobody can dispute it. We will be going into "he said, she said" scenarios if we have this type of meeting, whether it is on Zoom or Teams, in a phone call or in person. People will misinterpret information. This would protect everybody. There has been huge progress on the Bill and I acknowledge this. I was very critical on Second Stage. I like to acknowledge progress where I see it and to be welcoming of that which we can welcome. This will be the issue that ultimately will see us unable to support the Bill and I am sorry to say this. We feel this strongly about it.
I have tabled a number of amendments in this grouping. Most of them are technical. My substantive amendment is No. 59, which deals with the issue of the mandatory information session. This is the big sticking point for us with the Bill. I am very disappointed we did not see progress made on it on Committee Stage. We had a full debate with the Minister and I acknowledge how much progress was made on other issues on Committee Stage and since then. We all appreciate the improvements that have been made to the Bill.
This is still a difficult point for us and for those seeking information. It means access to birth information remains conditional in certain cases on the holding of this information session. We all accept, as the Minister said on Committee and Second Stages, the need to balance information rights and privacy rights. For us the retention of the mandatory information session means privacy rights continue to trump identity rights. During the pre-legislative scrutiny the committee put forward a unanimous recommendation that an alternative to a mandatory information session as a safeguard to ensure the balance of rights would be sending an appropriate statement by registered post. In amendment No. 59 I have crafted a mechanism whereby such a statement could be sent by the authority, setting out the relevant matters in writing to a person seeking information. In my view this would be a sufficient safeguard, along with the other safeguards in the legislation such as the information campaign, the contact preference register and the age limit, to ensure these constitutional rights are balanced. It would be a more practical mechanism because it would ensure there could be no dispute as to what was said and whether a Zoom call or a meeting had in fact taken place. It would also show trust in the people seeking information that they would receive this statement and it would be sufficient.
Since Committee Stage I looked again at section 17 to see what the Government proposes as a safeguard. The information session need not be in one place but it does require that each participant is able, directly or by means of electronic communications technology, to speak to and be heard by the other participants. It sets out in subsection (2) the relevant information about which the designated person is to inform the adopted person seeking the information. Why can this information not simply be set out in a written statement and sent by registered post so there is proof that it has been received? This is particularly so when section 17(4) requires the designated person, on completion of the information session, to confirm it has taken place and to provide notification. There is already in the Government's proposal a mechanism for a written statement. Why not bypass the mandatory information session and bypass this condition on access to information and, as the committee recommended as an ending of a rather paternalistic approach requiring an information session, simply send a statement by registered post? It is what we do with court summons and other important legal documents. We think this would be a far preferable method of informing somebody. It would mean there could be no condition on access.
I asked the following on Committee Stage and still do not have a response. What if the adopted persons will not take the Zoom call or meet the designated person? It would mean they would not get access to the information, as I understand it. It is a condition upon access to information. This is against the spirit of the Bill, the otherwise inclusive text in the Bill and the great improvement the Bill makes to the very dated and patriarchal culture we all want to see changed. It has changed so much in so many other provisions of the Bill. It is most regrettable we have not seen movement on the information session. Amendment No. 59 in particular seeks to make this change and put into effect what the committee unanimously recommended during pre-legislative scrutiny.
I want to advise the House that this debate was supposed to stop after two hours but I understand the Chief Whip will come to the Chamber prior to 6.40 p.m. to read out a proposal that the debate continue until 8.30 p.m.
The amendments tabled by Deputy Bacik seek to address one of the most significant barriers in the Bill, which is the mandatory information session. The committee's pre-legislative scrutiny report was unambiguous in recommending that the mandatory information session should be removed from the legislation and that alternative appropriate safeguards should instead be provided for, such as the sending of correspondence by registered post. The Irish Human Rights and Equality Commission stated the information session presented an obstacle and potentially a complete barrier to individuals accessing long-sought information. The Council of Irish Adoption Agencies described it as contradictory to the spirit of the Bill. Others classified it as insulting, discriminatory and restrictive. That it is still in the Bill in its current form is deeply concerning. It is ignoring the wishes of people affected and human rights experts. If we accept the Minister's argument that some mechanism is necessary to address balancing the rights to accessing information and privacy, then the registered post option should be pursued rather than the paternalistic and insulting requirement for an adopted person having to sit down with a State agent who explains what the person already knows. Adopted people are already very knowledgeable about access to information and privacy. They have been forced to be so by this and previous governments.
The Minister's position fails to acknowledge that the secrecy was imposed by State agencies and religious orders on adopted people and parents. There was a systematic and highly organised process to arrange illegal adoptions, falsify records and cover up the whole thing. The refusal to allow people access their personal information was always about this system protecting itself. Unfortunately, the ongoing restrictions with the general data protection regulation, GDPR, and the most conservative possible interpretations by State bodies continues. If the Minister insists on retaining this barrier, then in line with the discussions of the committee on children, Deputy Bacik's amendment would ensure that at least it is non-invasive and considered.
The information session is about the balancing of two sets of fundamental rights. There is the fundamental right to identity information of adopted people, and it is a right we all know has been denied for so long. There is also the fundamental right to privacy of a parent. The information session would apply in a very small number of circumstances because it will only apply where a parent has proactively indicated on the contact preference register a "no contact" preference. There is an existing national contact preference register and we have discussed before the very small number of parents who have indicated such a choice. It is in double figures. Nevertheless, that small number of people have indicated a clearly demonstrated expression of their wish to exercise a right to privacy or anonymity.
Deputy Cairns spoke with great elegance about the system of secrecy that was developed here and she is right in all she says. It is not for me or any of us if a parent wishes to register a "no contact" preference to question that or dispute their desire. I do not dispute that anyway, although others may do so. If those parents, for whatever reason, believe they need some barrier to contact, it is not for the Oireachtas to dispute that view.
The question is then how to balance their desire to exercise their fundamental right to privacy with the desire for information. We have established in this legislation a system or process whereby in every case the adopted person will get the full right of access to information. In every case following this process, full information would be provided. Sometimes we forget what a sea change that is and the scale of the change this legislation is bringing compared with the current position, where the working assumption is one of restriction rather than release, and keeping the information hidden. That is because of constitutional reasons arising from the court case in the late 1990s. I know there have been disputes around its interpretation but that Supreme Court decision has had that restrictive effect. That court case indicates there are individuals who will go all the way to the Supreme Court because of their concern about their privacy rights. I do not question that judgment call but it is why so many of the attempts to legislate in this area have floundered. There is a worry about the constitutional balancing test.
In engaging with the Attorney General and in particular since the introduction of the GDPR, which is a much stronger recognition within EU law of privacy rights, we have been able to find a mechanism that seeks to balance those two sets of rights. It is a mechanism we did not invent and it has been brought forward before. It has been proposed by academics and advocacy groups in previous draft legislation. People can disagree with it but when it is described as insulting or degrading to people, I will make the point again that this mechanism has been proposed for use as a balancing of that incredibly difficult set of rights that are so fundamental to different individuals.
We have changed how we set about this balancing process, despite it being said that nothing has been done here. We brought forward a significant amendment on Committee Stage recognising that some of the language relating to the explanation of privacy rights - the language used in original drafts - was not okay and we should not talk about that. Now the information session, to be used in a very small number of cases, is to be purely factual. The relevant person - an adopted person or person subject to an illegal birth registration - would be told the parent has exercised an entitlement under section 38(11) of the Bill to state he or she is not willing to be contacted by the relevant person and the making of that statement by the parent constitutes an exercise by him or her of a right to privacy. After that has been conveyed, the full information would then be released.
We believe this must happen to ensure this legislation is constitutionally sound and protected. I strongly believe that at some point the legislation will be challenged. There is a very high likelihood that will happen. It is legitimate for someone to do that. We have waited 20 years for this legislation and seen four, five or six attempts at drafts of legislation not getting through this House because of an inability to resolve this matter. I do not want a result where the legislation, on which all of us in the House have worked very hard to get broad definitions and processes that are working well, would be at risk of constitutional challenge.
We went into the proposal of a registered letter. Notwithstanding the possibility of somebody signing to indicate receipt of the letter, there is the question of whether the point would be conveyed. The indication has been that the method set out here is the greatest restriction of the privacy rights of parents that we are prepared to bring forward as constitutionally valid. We have a duty to ensure this legislation is valid so the right to full information release provided can be delivered to adopted people.
All of us want to see the fundamental right to identity of adopted persons recognised and given effect in this legislation. That is absolutely the spirit in which I bring forward this amendment, supported by my colleagues.
The Minister indicates this will only apply to a small number of persons but that is precisely the point. It will apply to those adopted persons who seek their birth information and whose birth parent has entered a "no contact" preference, as is their right. In such a case an adopted person who does not participate in this mandatory information session will not have access to the birth information, so it places a condition on access and it is discriminatory against a small number of adopted persons.
I look again to what was said when the Bill had pre-legislative scrutiny. We said then that adopted people whose parent registers a "no contact" preference would under the Government proposal be singled out for differential treatment in a targeted warning about privacy rights. We also said that the mandatory information session was seen by some witnesses as compounding misguided fears about adopted people and perpetuating the injustice they have suffered for years, and that an alternative should be sought.
It is clearly not for us to dispute or undermine a birth parent's right to enter a "no contact" preference but that entry should not then lead to a scenario where those adopted persons are singled out for particular treatment. My amendment seeks to give effect to our alternative safeguard proposal of a registered post letter and to apply it to all adopted persons. It would set out whether the birth parent's desire was to have contact, so it would not be discriminatory, but it would supply the information. It would supply it in a way that could be proven to have been received. For us this is about trust in adopted persons and trusting that an adopted person informed that the birth parent has entered a "no contact" preference will not seek to contact that parent.
The reality is that under the Government's proposal an adopted person in such a case who participates in an information session will receive the information. There is no block on the information and the process does not safeguard the birth parent's privacy to that extent. We are all agreed on that.
As the Minister has said, we have moved on. I proposed a somewhat similar version of this some years ago when working with the Minister's predecessor, former Deputy Katherine Zappone, to try to achieve workable legislation that would finally give effect to adopted persons' identity rights.
At that point, the Attorney General advised that even that was not possible, and that a statutory declaration would have to be signed by an adopted person, because there was so little trust in adopted persons. The Minister is right in saying we have moved on from that. Our culture of "restrict, do not release" has happily changed. However, section 17 of this Bill remains a last vestige of that outdated culture and lack of trust. I know the Minister has tried to move it on. We tried to move it on on Committee Stage. We believed we had achieved a compromise that would provide a safeguard for respecting privacy rights and a proven mechanism for saying the information was received by the adopted person, without singling out adopted persons whose birth parents had entered a particular no-contact preference. We have all moved on. We believe the registered post option is now the best option, and should be acceptable in our new culture in which we know a lot more about identity rights, in which EU law has moved on, and in which we are better achieving mechanisms for the balancing of rights. It is in that vein I say I still have no response to my question. What if an adopted person in this small category, whose birth parents entered a no-contact preference, does not wish to participate in an information session? They will not have access to birth information, and that is unfair.
I think Deputy Bacik has articulated the position very well and eloquently. I must say at the outset, for clarity, that nobody has any issue with a birth parent who wants to register a no-contact preference. It is the parent's right to do so. Everybody would respect that. Some of us believe this mandatory information session, the information session or whatever people want to call it, is not actually necessary. It was in the spirit of accepting that it is necessary that we looked at alternatives. We are not saying we should get rid of it and have nothing. We are willing to state that there is an issue or difficulty in the balancing of the privacy rights and people's right to their information and identity. I cannot understand how the suggestion of the registered post option is not acceptable. I cannot get my head around it. I think it is the perfect alternative. In fact, as I said earlier, I think it gives greater protection to the State, because there is clearly a record. If that is what we are trying to achieve, with the registered post option there would be a very clear record. I do not see why the option cannot be looked at. I think it is much more respectful for people. Again, I do not think it matters if there is only one person who is affected by this. We are still potentially leaving out one person. I feel very strongly about it, as I know others do. In fairness, at the start of this debate, we welcomed all of the improvements and changes. I do not think anybody here is being critical just for the sake of it. There has been good progress made. However, this remains a serious sticking point. As I said, I do not think I can support the legislation if it is not changed. I really hope that Deputy Bacik's amendment, in particular, is supported. We cannot have a situation where people are being called into these information sessions. We have gone way past that. We have improved in so many areas in relation to the whole mother and baby situation. We need to have the registered post option.
Firstly, the Minister's insinuation that I dispute parents being able to register a no-contact preference is ridiculous. That is evident in the fact that we are not debating amendments to remove the no-contact preference. We are debating amendments on removing a mandatory information session for adopted people. The Minister bringing that into it is evidence of the non-existence of legitimate argument in keeping a mandatory information session. If we accept the Minister's argument that some mechanism is necessary to address the balancing of rights of accessing information and privacy, then the registered post option should be pursued rather than the paternalistic and insulting requirement for an adopted person to have to sit down with a State agent who explains to them what they already know. As I said previously, adopted people are already very knowledgeable about access to information and privacy. They have been forced to be knowledgeable about it by this Government and previous Governments. They do not need a mandatory information session.
I thank Deputy Bacik, in particular, for tabling amendment No. 59. It is certainly a key issue for me, and a breaking point. First of all, I acknowledge the tremendous work that has been done by the committee and the Minister. However, all of that work was done on the backs of the suffering of women. We have to acknowledge that. All of these changes were forced, every step of the way in the whole process. I think the Minister would acknowledge that. I could pick any one of a number of examples, including the Commission of Investigation into Mother and Baby Homes, the discovery of the Tuam site, the delays, leaks, misinformation, and the case of the Northern Irish woman who asked for her name to be removed. I could go on, but I will not, because it is out of context, except to say that trust is of the utmost importance when we are discussing this Bill. The absence of trust did not come proactively from the Minister. It is no reflection on him; he has done tremendous work. It did not come proactively from the Government or from the committee, that has worked very hard on this legislation, as most committees do. It is important to reiterate the point that it has come from scandal after scandal, leak after leak and tremendous suffering. The absence of trust with people on the ground in relation to the system is palpable. The Minister will recall when there was a webinar and people were not given copies of the report, even though it was reported in every news bulletin that they would be briefed beforehand. We are back to this legislation to provide for a right to records about one's identity. We are in the 21st century and the year 2022, and we have to bring forward legislation on this issue. We can imagine what women, and children who are now grown up, have gone through in relation to it.
What is happening under section 17 of the Bill is perfunctory. It sounds very serious when we say we have to balance the rights of the parents who do not want any contact. If the exercise in relation to the balancing of rights is necessary, it would be much more effective and in keeping with that obligation, if that obligation exists, to do what Deputy Bacik's amendment is proposing, namely, to send a registered letter to everyone. Without a doubt, what the Government is doing here is, once again, infantilising women. I note the Minister is shaking his head. However, that is exactly what the Government is doing. In his contribution, the Minister talked about the sea change that has come about, and the movement away from the working assumption that documents should not be released to the assumption that they should be released. That is nothing to do with a proactive system. I can think of people, straight off, as all Deputies can, who today are still struggling through the courts to get basic information. I can think of a person who has gone to practically every length to make it public, much and all as he did not want to. I know, on every level, professionally and personally, of the struggle and the difficulties that people have on the ground. We are continuing here, as if this balancing of rights is something positive, after much struggle and debate, when it is perfunctory in the extreme. It can happen on Zoom or it can happen on a partly connected phone call, given the way that our phones are interrupted on a constant basis. It is simply perfunctory, insulting and unacceptable. For me, it is key that this requirement is dropped from the Bill. Unfortunately, my name is not on the amendment. Otherwise, I would certainly be pushing it to a vote. I cannot accept this. It has been pointed out by those who will suffer the most, and who have suffered the most. It has also been pointed out by the Irish Council for Civil Liberties and other human rights organisations. This is not a proper balancing of rights, if that is what needs to be done. We cannot set up the fundamental right to know one's identity against privacy in this manner. Deputy Bacik's amendment has gone a long way to balancing that right, within the Government's framework, which I do not accept. I accept it for the sake of the argument. I fully support this amendment. I hope it is pushed the whole way.