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Seanad Éireann debate -
Wednesday, 12 Jun 2019

Vol. 266 No. 2

Adoption (Information and Tracing) Bill 2016: Committee Stage

Question proposed: "That section 1 stand part of the Bill."

I welcome the Minister for Children and Youth Affairs, Deputy Zappone, and welcome the opportunity to again debate the Bill, which has been a long time coming. As some of us pointed out on the Order of Business this morning, Second Stage of the Bill was taken on 22 March 2017, which is over two years ago. We had awaited the amendments and I know we will now have a full debate on those amendments.

Section 1 gives the Short Title of the Bill as the Adoption (Information and Tracing) Bill 2016. There was huge expectation and hope that the Bill, as amended by the Government on Committee Stage and Report Stage, would represent a really historic step forward, in particular in terms of information rights for adopted persons, and a break with the past and the old practice whereby this was an issue shrouded in secrecy.

Unfortunately, the publication of the Minister's amendments so late on Monday night has not given us sufficient time to have a very measured debate on them. I welcome the fact we will adjourn at 6 p.m. I also welcome the fact the Minister has called a further briefing session with Senators tomorrow, which I will attend.

Things have moved on in the more than two years since Second Stage was debated. There is now a very strong and clear case for unfettered access to information, as suggested by the Title of the Bill contained in section 1. We have moved beyond the position where adopted persons or other stakeholders might have accepted conditions on access to information, and I stress the word "information". The Bill is very clear. Section 1(1) mentions information and tracing. These are two separate matters. If any colleague was listening to my colleague, Deputy Joan Burton, on the radio this morning, she made a passionate case for separating the right to information from the right to contact or trace one's birth parents. Clearly, persons who are adopted should have a right to information. At this point, we need to look more clearly and lucidly at why we simply cannot provide for an unfettered right of access, in particular to birth certificates, which are publicly available documents, without conditions.

On Second Stage, we debated at length the need to ensure some protection of rights to privacy for birth parents. I absolutely accept this and I know the Minister has had legal advice on it. Any reading of the IO'T case and other case law will show these rights must be balanced in such a way that privacy does not trump the right to information and the right to know one's identity. I have read the flood of emails we have had from adopted persons, the Adoption Rights Alliance, which expressed serious concern about these amendments, and other stakeholders, such as the Irish Association of Social Workers and the Council of Irish Adoption Agencies, which have also expressed concern about what they see as a flawed Bill, even with the amendments.

Having read all of these, it seems a preferable means of ensuring protection for privacy rights while giving precedence to the right to information would be to do something like we did with the redress scheme. I have been privileged to represent survivors of institutional abuse before the redress board many times. When the State established the residential institution redress scheme there was a need to ensure people who might not have ever disclosed to their close family and friends that they had been a resident in an institution or had been abused in that institution would be able to come forward. Sensibly, the State then placed a prominent series of advertisements which reached out to NGOs and groups representing survivors. It was a comprehensive reaching out process over a period of time to ensure all those who might have been resident in institutions would be made aware of the existence of the scheme and would be able to come forward.

What I suggest, in order to balance rights to privacy and ensure the Bill is truly a right to information Bill, is that the State undertake to advertise that a right of access to birth information will be introduced at a point in future for all those adopted prior to the commencement of the legislation. In the time prior to the introduction of an unfettered right of access I suggest an extensive advertising campaign be undertaken by the State to inform all birth parents who might be concerned about the disclosure of their identity through the provision of birth certificate information that they could come forward and participate in a process to articulate and raise their privacy concerns. This would be a way in which the State could, therefore, clearly address the privacy concerns of what Deputy Burton described as a small but, nonetheless, important group of birth parents who may never have disclosed previously. It would also mean the State would clearly articulate that the rights to information and to know one's identity would take priority and would be pre-eminent.

Very helpfully, Susan Logan of the Adoption Rights Alliance has supplied us with a table of legislation elsewhere. If we look at Northern Ireland, Scotland, England and so on, we see the unfettered right of access to birth certificate information once an adopted person reaches the age of majority is now the norm in many countries. We have moved on. It is two years since Second Stage was debated. We need to address the Title of the Bill and state it should be a Bill about information rights. Tracing, access and contact comprise a separate issue and the Adoption Rights Alliance has made this point. In the Bill itself, section 1 details information and tracing as two different things. If one looks at the different Parts of the Bill, Part 4 is about tracing and Part 5, the most contentious Part, is about the provision of information. They are two different issues. Not all of those who have been targeted and who have been provided with information will go on to contact their birth parents. These are separate issues.

The Title of the Bill is crucial. This is also about information for birth parents who may be very anxious to be contacted by the children they gave up for adoption. As we know, shamefully in the history of the State many young women gave up children for adoption without full access to information or protection of the rights we now recognise as absolutely essential in those cases. In many cases, they were not assured of confidentiality and hoped beyond hope their children would contact them later. There is a very important group of persons waiting to be traced. I have met birth parents who are desperately sad the children do not want to contact them. There are very complex issues as to what persons will or will not do with information or what they want in terms of contact. We should not conflate information and contact, nor should we let privacy trump a right to information and identity.

I welcome the Minister to the House with some reservation because I must say it was most unwise to let us have these complex amendments late on Monday night and then, after a two-year gap, try to stuff this through in five hours. I made the point this morning on the Order of Business that it is the same two or three people speaking on every Bill here and it is abusing us to try to stick us here for five hours in a rush to get this over. It was most unwise. I am delighted it was defeated on the Order of Business.

By one vote but a victory is a victory as the Minister knows.

The Senator is right.

Yes, I was trying to think of that phrase but I could not quite find it.

I agree wholeheartedly with my distinguished colleague, Senator Bacik, that there is a distinct difference between information on the one hand and contact on the other. They are two separate issues. A little later, I will put something on the record from one of the adoptees who makes this point very clearly. Yesterday, a woman on the wireless spoke about how she had been trying for a number of years, perhaps four or five years, to get information but was refused. Subsequently, she discovered her mother had been trying to contact her for seven years. The agency was acting as a block between these two people, both of whom wanted to meet. That is profoundly disgraceful.

The inclusion of Tusla is not a good idea. It is a pretty discredited operation by now, I am sorry to have to say. I do not believe it has the competence, capacity or skills to take on this massive undertaking. When we have these enormous overruns and the consequent impact on the funding of other services I do not believe for one second that the Minister will get sufficient money to arm Tusla for this situation. I have considerable reservations about involving Tusla.

I mentioned I had contact from a woman who is an adoptee. She told me none of the research supports the hypothesis that adoptees will turn up on birth families' doorsteps and pose a risk. She states that from her experience she has yet to meet an adoptee who would run the risk of jeopardising any potential relationship with his or her birth family by being anything less than respectful in his or her approach or dealings. I believe this is the case. If people want to be in touch with their birth parents, the last thing they will do is alienate them by popping up at the doorstep. Nobody likes unexpected and unsolicited calls, whether it is people canvassing at election time or whatever else.

I echo what Senator Bacik said about other European governments. I was contacted by Dr. Maeve O'Rourke, a lecturer in human rights law at the Irish Centre for Human Rights at NUI, Galway. She argues that the Government's proposals are completely out of step with Northern Ireland, Scotland, England and Wales, not to mention numerous other European jurisdictions where adopted people receive their full information in adulthood. Our three nearest neighbours, namely, England, Scotland and Wales, have a completely different regime and are much freer in this regard. Dr. O'Rourke accepts that privacy is not an absolute right but that it should be respected. I wonder to what extent it is respected by involving Tusla in this? Here we have an agency that will not be fuelled by the same motivation as the adoptee getting involved. The more people who are concerned and involved, the greater the risk.

This Bill has been on the back boiler for two years but I understand that the Minister has yet to meet the Adoption Rights Alliance. I note that the Minister is shaking her head so perhaps my information is wrong. If it is true-----

I have not met the alliance about the amendments, which have only been published. I have not met that group to discuss the amendments but I have met it over those two years.

I am glad to hear that. Will the Minister be meeting the alliance to discuss these amendments?

I am happy to do that.

I thank the Minister. That is good news.

The alliance has said that anything less than unfettered access to birth certificates which are already public records and unredacted early life and adoption records is deeply discriminatory to adopted people and those born in mother and baby homes. Particular reference is made to access to medical information which is extremely important. Adoptees should have an automatic right to such information.

I have in front of me only part of the enormous volume of emails that I have received from adoptees urging me to vote against this legislation. They have called on me to vote "No". As adoptees, they are begging me to vote against this Bill. These voices must be listened to.

My apologies but I should have repeated something that I said on the Order of Business earlier today, namely, that given the lateness of the publication of the Minister's amendments on Monday night, Labour Party Senators had not tabled any amendments. We wanted to wait and see what the Government amendments would contain and did not want to submit duplicate amendments. That said, I reserve the right to table amendments on Report Stage. Indeed, one of the amendments that we may table, once we have had time to review everything, is to section 1(2) which currently provides for the coming into operation of the legislation. That is the provision that could usefully be used to provide for a time period within which the State could conduct an extensive advertising campaign to alert all interested parties to the coming into effect of an unfettered right of access to birth certificates and other information about a person's adoption. The provision as it stands would give space for that to be done by the Government. As I said, that is just one mechanism that might be used as an alternative approach to the one proposed in the Government's amendments to ensure that there is some recognition of privacy rights but not at the expense of individuals' right of access to their own information.

I would add, in terms of what Senator Norris has said, that it is unfortunate that we have rushed straight from the publication of the amendments on Monday night into the commencement of Committee Stage now. It appears that groups like the Adoption Rights Alliance, the Association of Social Workers and others have not had an opportunity to consult with the Minister or with Senators, other than in the very short period of time since we had sight of the amendments and the start of this debate 20 minutes ago. That is unfortunate timing and it is just as well that we are not going to have a five-hour debate this evening in that sort of vacuum. As a result, we are going to see more amendments tabled on Report Stage than might otherwise have been necessary. Ms Susan Lohan of the Adoption Rights Alliance, in an email I received earlier today, referred to the labyrinthine nature of the new processes provided for in the Government's amendments. There is no doubt but that these are complex technical amendments and the new processes that would be provided for are as cumbersome and unwieldy as those that pertained previously. This is something that I said on Second Stage over two years ago, that the process provided for in Part 5 of the Bill seems to be unnecessarily cumbersome. I do not think that has changed with the new provisions in the amendments which we will be debating individually. I just wanted to make that general point about timing and to reserve the right to submit amendments on behalf of Labour Party Senators on Report Stage.

I wish to point out to Senator Bacik that the facility exists for Senators to submit further amendments on Committee Stage to those elements that are not dealt with today.

I am quite well aware of that and thank the Acting Chairman for the reminder.

I would make that point to all Members of the House; they do not have to wait for Report Stage.

The Acting Chairman is quite right. I thank him for that and reserve the right to submit additional lists of amendments on Committee Stage. It is in everyone's interest that this Committee Stage debate will adjourn at 6 p.m. because that will give us more time to consider the Government's amendments and consider our own position in terms of whether we wish to submit additional amendments.

I welcome the Minister to the House. I know that she is committed to this issue and has put a lot of work into it. It is important to acknowledge that but also to acknowledge the presence in the Public Gallery of some people who are directly affected by this issue. This is a really important day for adoptees in the context of their right to their identity, their right to know where they have come from, to whom they belong, their lineage, history and connections. Everyone has that right. It is very easy if one has been brought up in so-called "normal" family circumstances, whereby one does not have those questions. I have personal experience of this and have many valuable friends who have had these experiences. I understand the constant searching and questioning. Where do I belong? Where do I fit in? It is very important. A lot of this is symbolic. One cannot necessarily crystallise this in words. It is a sense or a feeling and is much more nuanced than simple sentences, which is an important point.

I am disappointed that there was an attempt by the Government to push through five hours of debate. I do not know whether the Minister had any input into that but ultimately, she is the Minister. We were presented with a situation whereby we were expected to stay here for five hours today and I would like the Minister to comment on that. Did she have any knowledge of it? Did she support that proposal? It was a misjudged proposal in light of the short timeframe provided to study and engage with the Government's amendments. I know some of the people who have been in the House in the last day or two, interacting and engaging with Senators on these issues. This situation is disappointing and I do not think the Minister should allow it, particularly given the great expectations people have of her.

Somebody said to me yesterday that this is about legacy for a lot of people. The Minister has a good track record in this area and I expect that she will listen and take all of this on board. This is a process that we are working through here. It is a legislative process and while the Minister has amendments, so too do Senators. I also want to put down a marker that I reserve the right to table further amendments. I do not want to just duplicate amendments in order to appear interested. I want to engage and work on this in a collaborative way in order to produce the best possible legislation. I urge the Minister to go back to the powers that be and to the Leader of this House and tell them that if more time is needed, more time will be provided. We need more time to go back and engage with and talk to people who have been directly affected by these issues. The Minister must give us that time. We should not push this through just for the sake of having legislation. We need good legislation. I do not doubt the Minister's commitment or that of anyone else.

I ask the Minister to address my question about the five-hour debate, to clarify her position on that and to tell us who is driving the pressure on this House to do this work. This is important because it is about identity and much more. We should listen to others and we should have enough time to share the Minister's amendments with people outside this House, to seek their advice based on their personal experience. At the end of the day, we all want good legislation that addresses everyone's needs.

Obviously, we welcome all of our guest in the Public Gallery but I would particularly like to welcome Deputy Anne Rabbitte, who is the Fianna Fáil spokesperson on children. I see that Senator Marshall is also in the Gallery.

I will let the Minister for Children and Youth Affairs defend herself. It is the Leader's office that schedules the business of the House but it does so in consultation with Ministers.

The pressure came from the Minister.

I will let the Minister speak for herself.

That is the point.

That is perfectly fine. I will let her address the matter. I have given everybody latitude and will continue to do so but we are discussing section 1 and whether it should stand part of the Bill. Senator Bacik's point is completely valid because it relates to the Short Title to the Bill, which contains the phrase "Information and Tracing". However, I would prefer if people would stick to dealing with section 1 if that is possible.

The Title encompasses the heartbeat of the Bill. That is what we all want to speak to now. The specifics can come later. The Bill confuses the right to identity and giving adoptees their information with whether they desire to meet their biological parents. Senators Bacik and Norris mentioned this question of information as opposed to contact. Rights to identity and information are fundamental to equality. Why should a birth parent's objection deny the adoptee his or her birth certificate or information about his or her early life? There is no equality there. Forcing adoptees and birth parents into a quasi-legal process, which this Bill is doing, to argue their cases for or against release of information is fundamentally flawed, unfair and costly and it will cause extraordinary delays. A total of 15,000 people, birth parents and adoptees, are already on a contact register with the Adoption Authority of Ireland. Why set up a new register within Tusla? If this is going to be done, I hope the Minister will have both enough money and the 50 to 200 social workers necessary to carry out the kind of work and information seeking required in terms of the tracing process.

All the current information that the Adoption Authority holds on the 15,000 people in question will be lost or dormant as people are forced to re-register, as per the Bill, with Tusla. If the current register was placed on a statutory footing, active tracing and provision of information to those who request it could begin immediately. Natural parents - birth mothers - signed consent forms at the time of adoption. There is no evidence that they were given assurances of secrecy and privacy. This is a very important legal point. The Minister is very good at her job but I must point out to her that Tusla is not regulated for adoption services by the State regulator - namely, the Adoption Authority of Ireland - and, as a result, its adoption service would be unregulated. The Bill presumes that when adoptees receive information, this automatically leads to contact and reunion with their birth families. That is not the case. They will be seeking medical and social information but not necessarily contact, although that may happen. Adoptees must be given full access to their information, not a summary or a redacted version compiled by social workers.

I spent a long time in my office trying to telephone as many of the people who emailed me as possible. Those individuals put their hearts and souls into their emails about their lives and seeking their tribes. These people are not children; they are adults and they are not, as has been stated, simply going to rock up to others' front doors. They are in a state of crisis that has been ongoing for years. I do not want to read out all the emails I received. I have a file box full of them. This is a very important matter.

The Minister is one who defines equality in a thousand different ways in our society. I need her to define it in this instance because, at present, it is not defined correctly in the Title to the Bill. We need to find a balance. People have rights. We are talking here about the delicate nature of human beings. In that context, there is a need to reconsider what is proposed. As matters stand, I cannot vote for the Bill, especially in the context of section 5. The Title to the Bill, which I have tried to decipher, cannot be allowed to stand. There will be specific objections later, but those are my general objections. The Bill does not favour the adoptee. There must be a balance and no such balance exists at present. People have a right to know of their tribe. That is all I have to say at this point.

I will speak to the section but I first want to acknowledge that there have been attempts to move forward on certain aspects of this Bill. The removal of the undertaking is important and should be acknowledged. I know that this was difficult to achieve and that the concession was hard won. There are also attempts to make the process more functional but there are principles and points of principle in respect of which there is division. When we look to information and tracing, some of the points raised by Senator Bacik could potentially be compatible with the requirements the Minister is trying to meet, and with the principles and objections. The Minister referred to an attempt to minimise and streamline this process, recognising that, in his or her private life, a birth parent may be for or against contact. No assumption should be made in that regard. As I understand it, a six-month time limit applies to the process. This is regarded as a reasonable period and it gives those in very particular circumstances and others involved in a case the opportunity to go the Adoption Authority of Ireland.

A general advertising scheme such as that which Senator Bacik proposes to put forward may have the potential to meet the collective requirement for a period of notice, particularly as, in the context of the Bill, future adoptions will occur under a different set of criteria. There is an assumption of access built in so we are dealing solely with a set group when it comes to historic access. A general advertising scheme by means of which people who wish and choose to can self-identify and then seek a process of whatever kind to vindicate their rights may be more appropriate than an ongoing process in which, for time immemorial, any adopted person seeking his or her information will trigger a set of specific queries about his or her birth mother and father. In the past day or two many adopted people have stated that they do not necessarily want the fact that they have looked for their birth information to go to the birth mother or birth father. They may not wish them to know they are in the country. Who knows what they feel? Providing an adequate collection solution would address those individual privacy issues. Senator Bacik was not able to propose this scheme without sight of the Government amendments but it may address the process or kind of process the Minister is proposing and could be worth considering. It could take us forward in leaps and bounds. Once a set period has been undergone, unless particular objections have been raised, it would be generally assumed that people would access their information in a more natural way at a time of their choosing. We must bear in mind that people sometimes seek this information for specific and time-sensitive reasons.

I rarely talk about resources in this regard, except when talking about getting rid of tax reliefs. In this instance, rights must take precedence over resources. Nonetheless, an approach such as that set out by Senator Bacik would free up resources for those who are using that second half of the Bill, which deals with tracing, where birth parents and adoptees are seeking each other. It would allow for a bigger allocation of resources to ensure support for those situations where two or more parties are actively seeking one another.

Perhaps this is the advantage of finishing the debate at 6 p.m. I would like the Minister to seek advice and test the potential of a collective time band solution. That relates to section 2(1) and the timeline by which measures are put in place. A certain section of the Bill may be commenced before others to facilitate those other sections coming into effect. It may affect the timing. We may need to bake that into the Bill.

I know the Minister is very keen for this to move forward but there is another general issue. In a situation where another Minister inherits this Bill after its passing, there may be a question around section 1 and whether we want to build in time caveats. We do not want this Bill to move through this process and be substantially improved to better reflect the concerns the Minister is hearing today only to sit on a shelf and not move forward. I have outlined some thoughts on section 1. There is scope to fulfil what I know the Minister is trying to fulfil and, crucially, to address the one point that arises more than any other. We will address it later in the definitions of "personal" and "early". I refer to the birth certificate specifically. Even with the advertising campaign, we should ensure that birth certificates will be available. That particular crucial document should become immediately available or there must be a collective consultation. I thank the Minister.

I wish to say one thing very briefly. Adoptees have made the very valid point to me that what they are seeking is their own information. It belongs to them. It is directly relevant to them. It is not the possession of the birth mother alone. That is a very important point to make. This information belongs to the adoptee. That is all I wanted to say.

I welcome the Minister to the House. Before we proceed, I want to add my voice to those who have expressed disappointment. Sometimes this place is like the Stone Age. Yesterday we were given amendments with stars beside them. We went through them one by one, collected our thoughts on them and put them down on paper. We were given a list and we addressed them as we received them. We were then given a list of numbered amendments and groupings. This dictates that we will take amendments Nos. 1 and 2 first, and in the second grouping we will take amendments Nos. 3 and 150, which is on the last page of amendments. Going through that is a mammoth effort. I would have proposed during the Order of Business that we would not take the Bill today so that we had more time to go through its provisions. I welcome the fact that at least we have a short period in which we can go through it today.

I also welcome the Minister's commitment to meet with the organisations and the campaigns involved in this issue. I know she has come from a background of activism; nothing about us without us and all of that. I welcome the fact that she has committed to meeting those groups which represent the people affected and those with lived experience of the issue.

The Short Title and commencement relates to the Bill's provisions. I wanted to take the chance to note that this is not that common in Ireland, or at least in this State, apart from what has been introduced in Britain and the North. According to an email I received, these proposals are completely out of step with the North, England, Scotland, Wales and many other European jurisdictions where adopted people receive their right to information at adulthood or at the age of 18. In England and Wales when a person reaches the age of 18 he or she has access to his or her birth records. That was introduced under the Children Act 1975. In the North, people who have reached the age of 18 have had access to their birth certificates and adoption files since 1987. In Scotland, adopted people over 16 years of age have been able to access their birth certificates and adoption records since 1930. It is not common that we are out of sync in this State. Sometimes we follow the British example, which is not for the greater good. In this case we are departing in entirely the opposite direction years later. In discussing the commencement of the provisions I wish to ask why they are so different from international best practice.

I will not delay proceedings any longer because we have a lot of amendments to get through. I welcome the Bill. I acknowledge the issues that many colleagues have raised with it, but it is an important first step. That is all it is. It addresses a very dark history in this country. For many years there were attempts to sweep that history under the carpet and pretend it never happened, but the people affected are alive, as are their sons, daughters and grandchildren. They deserve this information. They deserve to have their identities.

I have particular issues around the funding of Tusla. I would like the Minister to comment on how Tusla will operate. In a previous life I had a lot of interaction with Tusla and I know the good work it does, but in recent years there have been several problems in Tusla. There is chronic underfunding and understaffing. Making sure this operates correctly will be a major issue. I would also like to mention that further amendments are needed to deal with situations where incorrect birth details are registered. I have dealt with people who were wrongly given birth certificates that named their adopted parents. We need to address that. It is a very real issue.

I will start by saying that now, perhaps more than ever before, I feel that this is a great Chamber in which to debate these issues. Having come from this House myself and believing in the power of what we can do here, I really mean that. The Senators are demonstrating that here this evening in the context of the Bill. I say that most sincerely. It is really great to be back here. I appreciate the Senators' demonstration of their passion and commitment to getting the best Bill possible. I also appreciate that this is rooted in the representations they are receiving from the people this Bill impacts most. Witnessing that makes me feel an even deeper desire to bring forward the best Bill we can possibly get in the context of our foundational document, the Constitution. That is very much at the heart of my efforts and those of my officials over the last couple of years. We have worked with the Office of the Attorney General and the Attorney General himself to bring the Bill we are discussing before the House.

In that regard, we attempted to do everything we could to represent the interests, concerns and desires of adopted people. As Senator Bacik pointed out, this Bill also provides for access to information and tracing for birth parents and other people related to the adoption process. Our efforts to come forward with various amendments, which I will address in a few moments, took account of the depth of representation insofar as we could in the context of the advice we received.

I would very much like to find a way to have a Bill which would allow unfettered access to information for those adults in the way Senator Bacik and other colleagues have proposed which echoes the desires of the advocates who represent the people who have been adopted. If we could find that way together and it was acceptable to the Attorney General in the interpretation of the Constitution in reforming this legislation, that would be amazing.

This is probably one of the most significant Bills that will ever be brought before the Seanad. Many Senators will be aware that it is almost 20 years since the former Minister of State Mary Hanafin brought forward the Adoption (Information and Tracing) Bill. Why has it taken 20 years since that time to bring forward legislation? Other parties have brought forward other Bills. We are dealing with complicated issues. I accept and acknowledge the comments made by Senators Bacik and Norris. We are in 2019 and a very different context. Even since we began the debate on this Bill, our consciousness and awareness have changed in the light of several events, many in the context of my ministry.

Having said all of that, I come before the Seanad to say also that we have no legal basis on which to support information and tracing services in Ireland today. I believe Senators are aware of this, but it is worth noting. Ireland also does not have a legal basis on which to protect and preserve the 150,000 adoption records for people who have been adopted, to bring them together under one roof - that is an integral part of the Bill - and to raise the standards for how the records are cared for, catalogued and accessed, which is also an integral aspect. As that has been the situation for 20 years, including the three years I have been Minister, yes, I am a woman in a hurry. Believe it or not, the desire to get this done has been behind the work of my officials and that of the Office of the Attorney General for the last couple of years. Regardless of whether we are on the right or the wrong side or just in the present moment of history, as Minister, I want to be able to bring forward a Bill that will work in a way that is really satisfactory to those on whom it will impact the most, that will protect the right to information on identity and ease the process to do it with the support of the State. I am standing firm in that regard and trying to face a future where we will bring in a law to initiate a culture of openness more than ever before.

I shall address some of the differences in this legislation in the light of the amendments we will be bringing forward. They are an integral aspect of the advocacy of adopted people subsequent to the publishing of the Bill which we have heard and listened to. Senator Higgins, among other Senators, has referred to some of them. One of the key phrases we heard from the groups was, "We want access to our information, not simply the summary of the information an agency would give to us." This will inform the amendments we want to bring forward to provide access to information, not just a summary of it. The advocacy groups have also stated the persons affected do not want to have to sign an undertaking which they say would be offensive. It would take away or deny them disproportionately their right to identity and information. That will no longer be in the Bill if our amendments are accepted. People have also said they want to be able to get their birth certificates if they are on the files of the agency being applied to. In this context it will mainly be Tusla. People have said they do not want to have to get permission or something to bring to the General Register Office. Those affected have told us that this is what they want. Such a provision is part of a Government amendment that we will recommend.

Some may ask, "What is the big deal and why is it not simple to deal with issue?" Perhaps the Senators do not think this as they are law makers, but, believe me, it was not straightforward to have it accepted in terms of the release of birth certificates. There has been a lot of movement back and forth and, with the interpretation of the Office of the Attorney General, we are trying to ensure we will balance appropriately the rights of the birth mother. The Constitution provides for a right to privacy which in this context applies to the birth mother and it needs to remain. People might wonder why that was the case and we may have an opportunity to discuss and debate some of the issues involved as we go through the Bill. These parts have been exceptionally challenging, but I am grateful that we have this work to put before Senators in the form of amendments. One amendment will propose that we call it the register of adoption inquiries, not the register of adoption contact inquiries. Again, this is after listening to the people who have advocated. These are just a few examples to which I wanted to point for Members, given that we are speaking about the Title and the beginning of the Bill. In the context of looking for information and the capacity to trace and support the tracing process, these things are important and will form part of the amendments the Government will bring forward.

Even with the changes to be proposed by the Government in the light of the process we have gone through in listening to the advocates, Senators are saying it is not good enough. I hear them. In response I again ask why has it taken so long. It is not just because we had to identify the number of amendments to be proposed and make sure they were all fine with the Office of the Attorney General. There were several other processes and options that we tried in order to balance the right to privacy in a way that would be acceptable but which we could not get through and which were stronger than the rights to information and an identity of the people who were adopted. We were not successful in that regard, but if there is another way forward and it can be done in a way that is acceptable to the Attorney General's understanding of the Constitution and that meets in a better way the desire for information, particularly because most Senators are speaking in the context of adopted people, that will be fantastic and I will be open to it. If we can, let us do so.

I have had the opportunity to have a brief conversation on this issue with Senator Bacik and have listened to her very carefully. At the end of this process we need a law that will not ignore and shove aside the constitutional protection of the right to privacy of birth mothers. We simply cannot do that. The Constitution puts us in a different position from the United Kingdom, including Wales, or other jurisdictions identified by Senators where there is unfettered access to the right to information in this context. Ireland is in a different position and we have to pay attention to it. If it is completely and utterly unacceptable, we have to find a way to balance it differently. I will be open to it. We have, however, worked exceptionally hard on the process to ensure to the best of our ability that it will tilt as much as possible in favour of the adopted person. As I said, I am a woman in a hurry, something for which I am not going to apologise as people have waited too long.

We are lawmakers and this is our job. If this Bill needs a large amount of time in a short period, so be it. Part of the reason I say I am open on this matter is that it is important to find an interpretation of the Constitution in a way that we recognise that it is a living document. The social context now is different from the social context of 1937 or of two years ago, and I hear that. If we can find another way, so be it.

I appreciate that Senators have not much time to consider these amendments. I respect the democratic mandate expressed by the vote in the House and that Senators want and need more time. I offered a briefing before we had the amendments completed, one which would have been based on the principles involved given that we knew where we were going with them. We did not give the amendments to the Members because they were not completed. It was not as if we had not been working consistently on this for a long period. As Senator Bacik identified, I have offered another briefing for lawmakers tomorrow. I am also happy to meet advocates, one of whom I met this morning as we were preparing to appear on "Morning Ireland" together. Disappointment has been expressed about a lack of consultation on the amendments. I, too, have only received the amendments. At the same time, I do not apologise for coming to the Seanad to try to move this process forward by debating the amendments because that will help. This opportunity is helping right now to find a way of achieving the best possible outcome for a Bill that is constitutionally permissible.

I can outline in detail how we have pushed the boundaries of this Bill in some ways that are not related to Part 5, the arena in respect of which there are most objections. I want to do that but as Senators pointed out, there are possibilities and perhaps other ways. I am open to those. The Bill does not provide for all of the change that we need. I knew that before I came to the House and heard Senators' responses to it.

To respond to Senator Boyhan's question, this was my call. I wanted more time this evening and I will not apologise for that. This is an opportunity to tease through the amendments. I will to start to explain them to Senators. We may not have reached the section with which people have the greatest difficulty. The Senator asked me a question and I admit it was my call. I appreciate we may have a different view on that but I need to hear what Senators think about what we are doing. We have the opportunity to do that now. Members have said they want more time to consider them and I hear that. They have made a decision on that and we can consider the Bill now in the Chamber. We have more time to offer Committee Stage amendments before moving to Report Stage. I am conscious, however, that we are nearing the end of term and the legislation has not yet been before the Dáil. I want time to tease out these matters, especially with Senators, so that was my call.

If Senators have another way, let us begin the process of examining that. We will move through the Bill as well but let us begin the process of examining that. Senator Bacik knows as least as well as everyone else that this means we have to go back and forth to an office which will indicate whether that is acceptable. If it is acceptable, hallelujah. I have been speaking to my officials. In sentiment and in our hearts, we are with the Seanad on this and we have been working in that regard.

If we do not get this legislation through before we rise for the summer recess, I am concerned that we will place in jeopardy the time required to allow the people concerned to finally get the rights that are due to them. For this reason, I ask Senators to come with me on this as quickly as possible. As I said, there is no law in place to ground the current information and tracing service.

I listened to the comments made about Tusla, on which I could speak at length. Tusla does not have a legal foundation for what it does. One of the reasons it is becoming increasingly difficult for Tusla to provide the support and service people want from it is that the general data protection regulation or GDPR is now in operation and prevents other bodies from sharing with it information which it is seeking to help to support the adopted person. Tusla cannot move beyond that restriction until we enact this legislation. The absence of a legal basis for Tusla's role in this area is the reason for many of the difficulties people are experiencing in trying to secure the supports they need from Tusla, which many of the organisation's staff want to provide. I note the comments that Tusla will require more resources to perform this function.

We will not have time this evening to deal with transitional arrangements, which are one of the areas on which we want to put forward amendments. There are approximately 150,000 adoption records. Some of them are in Tusla, some are in the Adoption Authority and others are in other agencies or bodies. We are saying they should all come under one roof. Some of the amendments refer to how that will be done. Will the records have to be physically brought to this place or could they be scanned and brought there more quickly until eventually they will be in one place? All of that needs to be done to offer the appropriate support to which people have a right. That is another reason I am in a hurry with this Bill. If Senators have another way or other ways of moving forward, let us get to work on them as soon as possible to advance this Bill which people, including me, want and desire.

Perhaps we can move to some of the earlier amendments that may not be as problematic as many of the issues Senators have raised. That is what I thought we would be able to do this evening.

I was afraid the Minister’s sense of urgency was prompted by the prospect of an early general election. I sincerely hope that is not true.

I hope we will rise in the summer and come back in the autumn and continue our work.

I completely welcome some parts of the Bill. It is an advance, of that there is no question or doubt. The removal of certain obnoxious sections is welcome, as is the compiling of archives to which the Minister referred. The idea of centralising and controlling these archives and making sure they are not subject to arbitrary or capricious decision by third parties and so on is extremely welcome. However, the Minister might take back to the Attorney General something that no Government has ever acted on, even though I have continuously promoted it. The Constitution respects the right to privacy but it also puts the public good into the fundamental document of our democracy. That is something of which we should be aware. In these cases we have an individual mother and a class of people who make up a very large group. Surely to God the public good is on the side of this large class of people as opposed to the rights of a mother. I am not suggesting the right to privacy of the mother should be extinguished. I am saying there is a valid reason for us to go along the same route as our neighbouring island has gone. We have this provision for the public good and the public good is best served by acknowledging the rights of the adoptees. I would like the Minister to take that message back to the Attorney General and say, for God's sake, that we should, for once, have a Government that acts in the light of the provisions of the Constitution for the public good.

I thank the Minister for her very comprehensive reply and her openness to the debate. I wish to acknowledge the spirit in which the Minister always comes to the Seanad and it is great to have her back here to debate this. The strength of Seanad Committee Stage debates is that they take place in the House. That is very important. I accept, as we all do, that there is an urgency to this Bill in the sense that people have waited so long for it. On the other hand, we have had two years and three months between Second Stage and Committee Stage and the Government amendments are coming in now, one month before the end of the session. There could have been more haste earlier, not to mix metaphors. We acknowledged the need to bring this forward which is why we did not oppose it. Senator Warfield said that we would have been entitled on the Order of Business to say that we did not want to proceed at all with Committee Stage, but we did not do that. We simply said we would like to start Committee Stage because we recognise the importance of bringing the legislation forward but we do not think we should have a five-hour debate with so little time available to be able to consider the amendments and, indeed, to consult with others on the amendments.

As the Minister said, given that we have had two years and three months since Second Stage, time has moved on and our awareness collectively has changed about the nature and the way in which adoptions were carried out in Ireland for far too long, with this culture of secrecy and of shamefulness that shrouded so much of mother and baby homes. We have learned dreadful things about the practices in these homes.

Over that period expectations built up that there would be a greater recognition of the right of identity and information. The difficulties that many have with the Government amendments to the Bill is that they still appear to come to us from a fundamental presumption against an unfettered or unconditional right of access to information. Many of us are now saying that we should turn this around. Let us have a presumption in favour of a culture of openness and information and then work out a process that enables privacy rights to be asserted and protected as against that presumption. The difficulty I and others have with the provisions is that they have reversed it. They are coming from a presumption that there should not be unconditional access.

The Irish Council for Civil Liberties, ICCL, said today in response to the proposed amendments, that it welcomed the removal of the obligation on adopted persons to sign an undertaking before seeking information about their identity. Senator Higgins and others have also pointed this out and the Government amendment which seeks to do this is very welcome. However, the ICCL point out that the proposed amendments would establish instead a process of searching for, notifying and giving a right to object to any natural parents of that adopted person, before any information can be disclosed. That is one way that the Government has chosen to protect privacy rights of birth parents who do not want their information disclosed.

There are alternative ways that could be put forward which would come from a presumption in favour of a right to access to information. I have suggested one, which I still have to flesh out, and I will be putting forward amendments to do this, including an amendment to section 1(2), to provide for a process to enable birth parents to assert privacy rights but against a provided for timeframe where there would be, by default, a right of access to information at the end of the six months. It is not so far from what the Minister is proposing but is a less unwieldy method and one that is more trustful of adopted persons. It gives a better balancing to the right of information and identity to say that we are going to make a general appeal to anyone who wishes to assert a privacy right to come to us and make their objection, otherwise we will be disclosing to anyone who comes forward, and there will not be a condition placed on the access to information.

My suggested proposal would have the very practical advantage in that it would not have the consequence that so many stakeholders have identified of the unwieldy and costly procedures which are going to be required of Tusla to go out searching for natural birth parents. The Council of Irish Adoption Agencies say that these amendments are unworkable, given the burden they would place on Tusla. The Minister has acknowledged the cost and resource implications for Tusla. Both the Council of Irish Adoption Agencies and the Irish Association Social Workers have expressed serious concerns about the cumbersome, costly and resource-intensive nature of the processes.

We all acknowledge the need to move forward with information on tracing legislation and the need to ensure, as the Minister said, that statutory basis is given for the procedures and so on. I do not want to prolong this but we are advocating alternative ways of balancing rights that are preferable in 2019 and that recognise, primarily, a right of identity and information.

I accept what the Senator is saying. To be perfectly clear again, what the Senators have before them is not the only process or option that we have tried over these last two and half years, with great haste I may add. I appreciate what the Senator said but it is not that there has been a delay within that period. We have been trying various other ways, going back and forth. What we have before us is what we managed, effectively, not only to get through, but what is better than what was there before. I appreciate that this may be disputed. I am not saying there is not possibly a better way but what I am saying to the Senator is that if she thinks that there is one, and Senator Bacik put forward a very interesting proposal we did not try-----

I was going to ask that. That was my next question.

We could call it whatever we want in the end. We need to do that work with a sense of urgency and with a full understanding and cognisance of the complexities that it will entail. The Senator is aware of that more than most because of her law background.

We need to engage and to get into that work, if the Senators insist that this is not workable. We have not even had a full discussion on it yet or put forward the argument that it does not allow for that right to identity or access to information. At the same time, there has to be something in that alternative - if there are others, that is fine - that offers a form of protection of the privacy because that is part of our constitutional make-up.

Question put:
The Committee divided: Tá, 23; Níl, 14.

  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Clifford-Lee, Lorraine.
  • Coffey, Paudie.
  • Conway, Martin.
  • Daly, Mark.
  • Daly, Paul.
  • Feighan, Frank.
  • Horkan, Gerry.
  • Lawlor, Anthony.
  • Leyden, Terry.
  • Marshall, Ian.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • Ó Domhnaill, Brian.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Reilly, James.
  • Richmond, Neale.


  • Bacik, Ivana.
  • Black, Frances.
  • Boyhan, Victor.
  • Conway-Walsh, Rose.
  • Craughwell, Gerard P.
  • Humphreys, Kevin.
  • Kelleher, Colette.
  • Mac Lochlainn, Pádraig.
  • Norris, David.
  • Ó Donnghaile, Niall.
  • Ó Ríordáin, Aodhán.
  • O'Donnell, Marie-Louise.
  • Ruane, Lynn.
  • Warfield, Fintan.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Ivana Bacik and Lynn Ruane..
Question declared carried.
Progress reported; Committee to sit again.

When is it proposed to sit again?

Ar 10.30 maidin amárach.

The Seanad adjourned at 5.33 p.m. until 10.30 a.m. on Thursday, 13 June 2019.