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Seanad Éireann debate -
Tuesday, 24 May 2022

Vol. 285 No. 7

Birth Information and Tracing Bill 2022: Committee Stage (Resumed)

SECTION 2
Debate resumed on amendment No. 23:
In page 12, line 21, 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;
(xii) the circumstances surrounding the relevant person’s adoption or informal care arrangement;
(xiii) 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.”.
- (Senator Fintan Warfield)

We resume the discussion on amendment No. 23. Amendments Nos. 23 and 24 are physical alternatives. Amendments Nos. 23, 24, 103, 124 and 125 are related and may be discussed together by agreement. Is that agreed? Agreed. Senator Higgins was in possession. Does she wish to continue?

We had an initial discussion on this in which I highlighted my concerns regarding amendment No. 23. I said that while I knew there were concerns within the specifics of the proposal put forward by Sinn Féin colleagues, I explained the understanding and reason people have for not wanting it to be limited, but wanting to name many forms of personal data. It is from a long record of a minimalist approach to what gets shared, and that is where that very long and comprehensive definition comes in. I would perhaps urge the Minister, if he is not accepting that amendment, to consider and review the forms of personal information. It is worth checking that they are, in fact, all covered under the other provisions because I do not believe all of them might be.

The other amendments were in respect of the question of the Minister putting in place suitable and specific measures. At the moment, it is suggested that the Minister may, but there are quite significant powers for processing under the Bill, which I know is necessary for the agency and the Adoption Authority of Ireland, AAI. Indeed, there are specific clauses in the Bill in terms of curtailment of some of the specific rights under general data protection regulation, GDPR.

It would be appropriate for suitable and specific measures to be set out, as is usually the case. As I highlighted, one form of processing is deletion so it is important that the Minister, in empowering the authority and the agency to process data, sets out suitable and specific measures to safeguard the rights of data subjects. One example of what might go into such measures is a specific provision preventing anything that might constitute excessive redaction, deletion or so forth. I know that is the Minister's intent but it is important that it be set out in the Bill.

On amendment No. 125, the Minister has been very clear that it is not his intention that Article 15 rights be constrained by the Bill. As he has rightly stated, Article 15 does not grant an automatic right to information but a right to request information. However, as I identified, there are provisions within the Bill that seem a little at odds with that intention. One I consider important relates to the name of a person who has inquired about someone. That is the kind of thing a person might make a data subject access request, SAR, about but the Bill explicitly prohibits sharing the name of a person who has made inquiries. Rather than balancing being done around that request from an individual, the Bill is saying one thing while GDPR rights under Article 15 say a different thing. This amendment would avoid any lack of clarity by stating that in such a situation a person's right under Article 15 would not be in any way constrained by the provisions in this Bill. I appreciate that Article 15 is not one of the articles of the GDPR named as being constrained but there are provisions in this Bill that could potentially be at odds with the exercise of Article 15. That is why it would be appropriate to clarify this, possibly by attaching a simple clause where curtailment has been indicated stating that no other article of GDPR would be constrained by any aspect of this Bill. We do not want people to have to duke it out between national legislation and European law. It would be better if that were clarified and the precedence of European law in that case were made clear.

We had a lengthy debate on this matter the last day. I spoke in detail about my concerns regarding amendments Nos. 23 and 24 and the rigidity they would build into the legislation by creating a definition of personal data rather than using one that develops according to the European Convention on Human Rights, ECHR. I also made known my concerns about amendments Nos. 103, 124 and 125. I do not have anything else to add.

Is the Minister confident about the conflict I identified previously whereby somebody would have the right to make a data subject access request under Article 15 when seeking information about who may have made inquiries about them? Is he sure there is no danger of a clash or curtailment in that regard?

I am. We have been very clear about the GDPR rights that are restricted. They are set out clearly within the legislation, with the minimal possible restriction that is allowed, and Article 15 is not listed among them so I am confident that the SARs can continue to operate without impingement.

I apologise if I am delaying matters but we will not have the chance to clarify this in the same way on Report Stage. If somebody is to make a data subject access request on information and they seek information on who has made inquiries into them during a period of time when they were a child in an institution, is it the case that the provisions of this legislation would not in any way impinge on that person having access to that information so that decision is balanced and made separately? That is one example but it is an example where the Bill specifically states that the name shall not be shared, whereas under the GDPR people are entitled to seek that information and I am worried that the provisions in the Bill could lead to a blanket interpretation of Article 15 of same. Is the Minister clear that some of these Article 15 rights for people to request information about themselves, including information on who has made queries about them when they were children in institutions and the names of such, will be looked at under their Article 15 rights and in no way will be referenced or curtailed by the provisions in this Bill? I see a tension there.

As the Senator knows, under Article 15 the data controller makes an individualised decision. I cannot speak to individualised decisions but I can speak to the fact that there is no provision within this legislation to place limitations on Article 15. Article 15 is not one of the GDPR articles that is listed as being limited by this Bill. My understanding is, and it is the intent of the Bill, that Article 15 and the processes thereunder, are not limited.

We may as well move on to the other sections but it is not really about whether Article 15 will be limited. The question is whether there will be a danger of Article 15 being interpreted in relation to this Act, which is slightly different. There is an Article 15 process but you do not want an Article 15 process which does not look to each data subject access request but in fact looks to a set of guidance from this legislation. I addressed this point in that specific section earlier and I will be coming back to that area on Report Stage. I am extremely concerned by that provision, as I have made clear. I do not need to put forward all of these amendments but I will probably still look for clarification on Article 15. We carry that debate on to Report Stage.

Amendment put and declared lost.

I move amendment No. 24:

In page 12, line 21, to delete “Regulation;” and substitute the following:

“Regulation. For the avoidance of doubt, personal data as defined under the Regulation includes, in relation to a relevant person under this Act, all records relating to the adoption or informal care arrangement of a relevant person, regardless of whether that data is shared with another person, including 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;

(xii) the circumstances surrounding the relevant person’s adoption or informal care arrangement;

(xiii) 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;”.

Amendment put and declared lost.

I move amendment No. 25:

In page 13, line 14, after “incorrect” to insert “or illegal”.

Amendment put:
The Committee divided: Tá, 8; Níl, 23.

  • Boyhan, Victor.
  • Craughwell, Gerard P.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Ruane, Lynn.
  • Sherlock, Marie.
  • Wall, Mark.
  • Warfield, Fintan.

Níl

  • Ahearn, Garret.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Chambers, Lisa.
  • Clifford-Lee, Lorraine.
  • Conway, Martin.
  • Cummins, John.
  • Currie, Emer.
  • Daly, Paul.
  • Doherty, Regina.
  • Dooley, Timmy.
  • Fitzpatrick, Mary.
  • Hackett, Pippa.
  • Horkan, Gerry.
  • Kyne, Seán.
  • Murphy, Eugene.
  • O'Reilly, Pauline.
  • Seery Kearney, Mary.
  • Ward, Barry.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Alice-Mary Higgins and Fintan Warfield; Níl, Senators Seán Kyne and Lisa Chambers..
Amendment declared lost.

Amendments Nos. 26 to 28, inclusive, are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 26:

In page 14, between lines 9 and 10, to insert the following:

“(j) any person or organisation involved in facilitating adoptions, or family separation;”.

Amendments Nos. 26 to 28, inclusive, all refer to expanding the definition of "secondary information source". Currently, there is a list of various Departments, registered adoption societies and other accredited bodies included and there is provision for the Minister to prescribe separate persons, but I believe there are wider categories that should be considered.

Amendment No. 26 suggests, "any person or organisation involved in facilitating adoptions, or family separation" should be defined and should be considered as a secondary information source. The reason it is better to do that in the legislation rather than by prescribing is that it would be potentially over-onerous for the Minister to be expected to prescribe under section 43(2) every time and in every instance of where there are persons who have played a role in facilitating adoptions or family separation. We know, for example, that there were persons who were not in a formal role with a registered adoption society but who effectively acted as brokers in respect of incorrect or illegal adoptions and, indeed, there were those who facilitated the separation of families. The fact of those actions should be sufficient to be considered a relevant information source, rather than simply the fact that one has been designated as such. The actions themselves make the person relevant in terms of the information the person may hold.

Amendment No. 27 is very important. Relevant religious orders should be considered as secondary information sources. At present, it is only registered adoption societies or accredited bodies, but many religious orders played a key role. It is the case that while one branch of a religious order may have been in a particular role in running an institution, the religious order as a whole may hold very important information including, potentially, financial information that is relevant. In that context, relevant religious orders or religious orders that have been in any way involved in the processes of adoption, regardless of whether they are registered adoption societies or accredited bodies, should be included.

Amendment No. 28 is also quite important. It proposes "relevant psychiatric institutions" to be included in the definition of "secondary information source". In some cases, children who ended up in these institutions had mothers who were incarcerated in psychiatric institutions. We know many cases of this where women, especially those women who may have strongly resisted or fought back against certain processes that were under way in institutions, faced a threat in respect of psychiatric institutions. It was one of the parts in the very large architecture of control that the State exercised against women.

One of the worst stories I have heard is of a woman, who is now living in the UK and who came back here and spoke to me about it, discovering that her mother had been attributed as having post-natal depression and had been put into an institution - I think it was Grangegorman - and had stayed there for the rest of her life. Her daughter was not even aware that her mother was alive but, in fact, that mother had been incarcerated in a psychiatric institution ever since that woman's birth. The woman had come to talk about the memorials. It is an example of where we cannot have sections of an architecture of control where the information trail would dry up in terms of secondary information sources. That is why relevant psychiatric institutions should be identified as relevant secondary information sources for the purposes of the legislation.

I cannot accept these amendments, which seek to add to the list of secondary information sources provided for in the legislation, primarily because they do not define what they are intended to cover with the clarity and specificity required in the legislation.

I will draw attention to the secondary information sources currently included in the Bill, which are: the Minister for Children, Equality, Disability, Integration and Youth; the Minister for Education; the Minister for Foreign Affairs; the Minister for Health; the data controller of the access to institutional and related records project, AIRR, archive; the Health Service Executive; a registered adoption society; an accredited body; and a person prescribed under section 43(2). That last category is incredibly important because, as broad as those initial categories are and while they have been designed to cover those sources we know to hold information at the moment, section 43(2) gives the Minister of the day an additional degree of flexibility and allows him or her to prescribe additional information sources. As I have said, the list currently included in the published Bill, which I have just cited, was carefully considered following consultation with stakeholders and organisations currently operating in the area of adoption, information release and training. In progressing this legislation, it has been my goal for it to focus on where we know records are at the moment to ensure access can be provided to those records as quickly as possible. However, the legislation also provides an avenue to allow access to other sources of information, should any be identified.

In light of that, it is important to also recognise section 46, which is another catch-all provision requiring any person or organisation in possession of a relevant record to safeguard that record and to inform the authority that it holds it. This allows the record to either be taken over immediately by the authority or for that person to be designated as a secondary information source. The Bill therefore obliges individuals or bodies holding relevant information to come forward and identify themselves, allowing use to be made of the designation element of section 43(2).

With regard to the broad ambit of information, I looked into the issue of the application of the GDPR and freedom of information legislation to psychiatric and other health institutions and these do apply. A subject access request can be made to a psychiatric institution or an organisation that now holds records, including the HSE. Where records are held by the HSE, they are also subject to freedom of information requests.

In the context of this legislation, of knowing, as we do, where those key sources of information are, of wanting to provide access to that information now, and of having those catch-all elements, including the obligation on holders of relevant records to identify themselves to the authority, and the ability of a future Minister to designate a body or individual as a secondary information source under section 43(2), I believe that the architecture in place to ensure access is given now to information is sufficient and that we have mechanisms available to us should other sources be revealed in the future.

I appreciate that the Minister has the power to designate but I am concerned that he, or whichever other Minister down the line, may choose not to use that power. There is no guarantee for the Oireachtas or the Seanad that the Minister will, in fact, designate religious orders or psychiatric institutions. I am concerned that the tone of the Minister's response seems to suggest a kind of prioritisation with regard to the sources we know are relevant and so forth. There is going to be a large volume to deal with and it may well be the case that there is so much to be engaged with in respect of the secondary information sources named that those other information sources, which are important, fall down the list. In that context, I am conscious that time is pressing in respect of some or many of these records.

We cannot afford a staggered or tiered approach. We need to get as much information from as many sources into the public domain as quickly as possible. In terms of the psychiatric institutions, we know that they were used in that regard. The wording I have proposed may be too loose. I accept that the wording of amendment No. 26 is quite wide, but I tried to be quite specific in amendments Nos. 27 and 28. What guarantee do we have that the Minister will designate religious orders or psychiatric institutions as relevant secondary sources? Effectively, by putting the word "relevant" in the amendment, I tried to give a discretion to the Minister, but if he believes it needs to be worded differently so that it gives an explicit direction, then the reference could, for example, state that the Minister shall designate religious orders and psychiatric institutions as relevant on an ongoing basis. He could bring in something like that, because what we need is a guarantee that these parts of the puzzle will not fall out and disappear. With absolute respect in terms of the obligation to let the authority know it has records, that is a very sweeping provision, but which does not really have consequences. We are absolutely aware that people - I will not mention any individual religious order - but religious orders specifically have been very careful in the guarding of their information. In many cases they have been very reluctant to share it. I do not see a rush for them to transfer any records that they may have without good cause or without being in fact required to do so. That is why it is important that there would be a reference to them.

We know, for example, that a significant number of adoptions were not through registered adoption bodies. The whole concern is that so much of it was done in an informal way and by persons not qualified or properly doing so. I am worried that there are going to be holes in terms of the secondary information. We should be using the tools that are in this Bill, which are quite good tools, in terms of clearly requiring secondary information services to engage and making clear what the relationship between the authority and the agency is with those secondary information services. I believe that religious orders that were involved in adoption, whether as registered bodies or not, formally or informally, legally or illegally, should be considered secondary information sources. I also believe that psychiatric institutions, insofar as psychiatric institutions engaged with other parts of that architecture, be it mother and baby homes or similar institutions, should be considered as secondary information sources. For example, it is not everything relating to a psychiatric institution, but it is relevant psychiatric institutions insofar as they hold relevant records. That is appropriate. I accept that amendment No. 26 is worded quite broadly. That was an attempt to capture that informal space, the brokers and those who were not employed by anybody but nonetheless facilitated family separations in local areas around Ireland. Amendments Nos. 27 and 28 are quite specific. I would like to know if the Minister intends to designate religious orders and psychiatric institutions as secondary sources of information.

The impression could be given here that religious orders involved in the provision of adoption are not somehow covered. It is important to be absolutely clear here. A registered adoption society and an accredited body are both covered, so any religious institution or organisation that is either an accredited body or a registered adoption society is fully covered by this legislation. I would hate for the impression to go out, based on the tenor of this debate, that there is some great gap here. There is no great gap here.

Those religious organisations that were accredited, and those involved in those institutions that were accredited organisations, are covered by this legislation. That is important.

In terms of what I, or any other Minister, might do in the future, I can say that if at any point it is shown to me that there is a gap in the coverage of the legislation and that it is denying people access to relevant records, I would be very happy to act and to use the provisions of this legislation to fill that gap. Where it is clear that there is a gap, I will act to fill it.

I made it quite clear that my concern is where it is informal and where people are not registered, etc. That is the concern about where gaps arise. It is in relation to those who are not in the space of the registered adoption society or of accredited bodies. I would put it to the Minister that there is a gap, even in the example of psychiatric institutions that I have given to him. It is in that context that I suggest, rather than waiting to address such a gap under section 43(2), and rather than putting a burden on those who are seeking relevant information to have to identify what they do not know, it would be better for the Minister to provide for such in the legislation.

I am happy to reserve my position in order for it to be clarified whether all religious orders are to be covered under the accredited body provision. If the Minister has further information on that, I would be happy to wait and to address that on Report Stage. However, it is my understanding that they would not all be fully covered by that. It may be the case that the majority is.

In the case of the psychiatric institutions, the Minister asked where there are gaps and I am informing him that it is a gap. In that context, I may reserve my right to come back to amendments Nos. 26 and 27, if the Minister can provide information to clarify how religious orders are covered under section 2(1)(g), "a registered adoption society", and section 2(1)(h), "an accredited body", where they are not covered by section 2(1)(g) and section 2(1)(h) and what aspects of their work are not covered by section 2(1)(g) and section 2(1)(h).

In relation to the psychiatric institutions, I will have to press that amendment because I really believe this is a gap. It was part of a whole architecture of fear and control that women faced in Ireland. It was not only women who were in these institutions, but also women in other parts of Irish society. These institutions were one of the ways that it was ensured that choice and options were removed from women. It was one of the tools in relation to forced adoption.

Amendment, by leave, withdrawn.

I move amendment No. 27:

“In page 14, between lines 9 and 10, to insert the following:

“(j) a relevant religious order;”.”

Amendment, by leave, withdrawn.

I move amendment No. 28:

“In page 14, between lines 9 and 10, to insert the following:

“(j) relevant psychiatric institutions;”.”

Amendment put:
The Committee divided: Tá, 9; Níl, 25.

  • Black, Frances.
  • Boyhan, Victor.
  • Boylan, Lynn.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Sherlock, Marie.
  • Wall, Mark.
  • Warfield, Fintan.

Níl

  • Ahearn, Garret.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Chambers, Lisa.
  • Conway, Martin.
  • Crowe, Ollie.
  • Cummins, John.
  • Currie, Emer.
  • Daly, Paul.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Dooley, Timmy.
  • Fitzpatrick, Mary.
  • Hackett, Pippa.
  • Horkan, Gerry.
  • Kyne, Seán.
  • Lombard, Tim.
  • Murphy, Eugene.
  • O'Reilly, Pauline.
  • O'Sullivan, Ned.
  • Seery Kearney, Mary.
  • Ward, Barry.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Alice-Mary Higgins and Annie Hoey; Níl, Senators Seán Kyne and Lisa Chambers..
Amendment declared lost.

I move amendment No. 29:

In page 14, line 13, after “incorrect” to insert “or illegal”.

I withdraw the amendment and reserve the right to reintroduce it.

Amendment, by leave, withdrawn.
Section 2 agreed to.
Sections 3 and 4 agreed to.
SECTION 5

I move amendment No. 30:

In page 14, line 36, to delete “in respect of which” and substitute “regardless of whether”.

This amendment is around the insertion of additional institutions. I am slightly widening the provision by replacing "in respect of which" with "regardless of whether" a public body has or had a regulatory or inspection function. The Minister's powers to add an additional institution should not be constrained by whether a public body had a regulatory or inspection function. There may be institutions the Minister deems appropriate to add even though they did not have that function.

I am concerned that there is at present a constraint on the Minister's powers in respect of the addition of institutions. Our amendment would widen it out.

During the discussions on this, including some of the informal consultations my officials and I did, this issue was raised. At the time, we in the Department said we were confident that all institutions that we know to have been involved in adoptions, touching on the issue of illegal birth registrations, were subject to regulation or inspection by a public body and, as such, would be covered within the existing definitions. At the time, we asked whether there were specific examples and whether there was X or Y institution that would not fall within this definition and, to my knowledge, no clear example of the existing definition failing to cover an institution involved has been provided. I am of the view, therefore, that we have a clear definition that covers all bodies involved in this area. If Senator Higgins has a clear example of something we are missing, I am open to considering it, but I think this is a solid and all-encompassing definition.

The concern is that, in the past, if an institution or public body did not adopt or perform a regulatory or inspection function, it could end up slipping out. I will reserve the right to come back to this on Report Stage. In general, it would be better to provide in the Bill the widest possible scope rather than relying on persons having to prove the exceptions to the rule because we have had many years of that. That is why in many of the provisions we are putting forward we are going wide. Yes, there is the risk of going slightly wider than is necessary, but it is a lesser risk than the risk of going more narrowly than is necessary. That is why we should err on the side of an encompassing power. Again, this does not bring in every institution; it just gives the scope to a Minister to provide for institutions to be brought in. The Minister mentioned people bringing cases to him but, at the moment, under the legislation, if people bring an example to him or a future Minister whereby the institution or public body did not have a regulatory or inspection function, the Minister is not empowered to bring in that institution. Therefore, if an example emerges, the legislation does not empower the Minister to include it on the list of institutions. It is to be hoped that that gap will not emerge, but the Bill as drafted constraints the Minister. Again, in these amendments we are seeking as wide a provision as possible. If that wider provision were not required by a Minister, that would be fine, but it would be better to make a wide provision. Again, it is a matter of the maximalist versus the minimalist approach and the culture shift around the whole process.

Amendment, by leave, withdrawn.
Section 5 agreed to.
NEW SECTION

Amendments Nos. 31 to 46, inclusive, 49 to 53, inclusive, and 71 are related. Amendment No. 32 is a physical alternative to amendment No. 31. Amendments Nos. 42 to 46, inclusive, are physical alternatives to amendment No. 41. Amendments Nos. 31 to 46, inclusive, 49 to 53, inclusive, and 71 may be discussed together by agreement. Is that agreed?

It is not agreed. Amendments Nos. 33 to 39, inclusive, 43 to 46, inclusive, and 49 to 51, inclusive, are all consequential on and related to amendment No. 69. I wonder, therefore-----

I am working from the information that I get from the Bills Office.

We are discussing amendments that are consequential on an amendment that has not been discussed yet.

That is not the opinion of the Bills Office clearly because it would not suggest that grouping otherwise. Everyone else is in agreement with the groupings. We can revisit amendment No. 69 later but are we happy to take the grouping as it is for now?

Okay. I thank the Senator. We move to amendment No. 31 in Senator Warfield's name. He is in a position to discuss his own amendment and also the others in the group.

The process does not get any easier, does it?

I acknowledge that it is quite a big group.

I move amendment No. 31:

In page 15, between lines 8 and 9, to insert 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.”.

We propose a new section 6, that would replace sections 6 to 8, inclusive. The amendments would ensure that when an application is made to the Minister, the Minister would furnish a person with information as necessary to enable that person to obtain a certified copy of the record of his or her birth.

We are opposing section 7. It relates to restrictive timeframes. We believe it is arbitrary and contradictory. The Bill defines early life and care information as the information gathered from birth up until 18 years but section 2 states that a person's early life and care information only covers the period after the birth until the time that he or she was adopted. One might say that early life and care information will not be available on files from the time that the child is adopted but we believe this is not the case. Records were created long after adoption. The same points would apply to section 8.

The Labour Party's substantive amendment is amendment No. 68 which Senator Higgins mentioned. That will be dealt with separately. We tabled amendments Nos. 33 to 40, inclusive, which precede amendment No. 68 which is the substantive amendment. These deal with the mandatory information session which is the big sticking point for the Labour Party. We are disappointed that we did not see progress made on this in the Dáil. My colleague, Deputy Bacik, had a full debate with the Minister on Committee Stage and on the floor of the Dáil. I want to acknowledge how much progress was made on other issues on Committee Stage and in the Dáil. We all appreciate the improvements that have been made to the Bill but this is still a difficult area for us and for those seeking information. It means that access to birth information remains conditional in certain cases on the holding of this information session.

The Minister has spoken at the committee and in the Dáil of the need to balance information rights and privacy rights but we feel the retention of the mandatory information session means that privacy rights continue to trump identity rights. During pre-legislative scrutiny the committee unanimously recommended an alternative to a mandatory information session as a safeguard to ensure the balance of rights would be to send an appropriate statement by registered post. Amendment No. 68 crafts a mechanism whereby such a statement could be sent by the authority setting out the relevant matters in writing to a person seeking information. We believe this would be a sufficient safeguard along with other safeguards in the legislation such as the information campaign, the contact preference register and the age limit to ensure that these constitutional rights are balanced. We think it would be a more practical mechanism because it would ensure that there could be no dispute as to what was said and whether a Zoom call or another type of meeting had in fact taken place. It would also show trust in the people who were seeking this information that they would receive this statement and that it would be sufficient.

We looked at section 17 to see what the Government proposes as a safeguard.

The information session need not be in one place, but it requires that each participant be able directly or by means of electronic communications technology to speak and to be heard by the other participants. Section 17(2) sets out the relevant information about which the designated person is to inform the adopted person seeking the information.

We are not entirely clear why this information could not be simply set out in a written statement and be sent by registered post so that there is proof that it has been received, particularly when section 17(4) requires the designated person, on completion of the information session, to confirm that it has taken place and to provide notification. As the Government has already proposed a mechanism for a written statement, I do not understand why we do not just bypass the mandatory information session and bypass this condition on access of information as the committee recommended. We should end this rather paternalistic approach that requires an information session and instead simply send it by registered post. We do this with summonses and other important legal documents. I believe there is general cross-party agreement that this would be a far preferable method of informing somebody and it would mean that there would be no condition on access.

I ask for clarification on a point. What happens if adopted persons will not take the Zoom call or meet the designated person? My understanding is that they would not get access to information. I believe that they would need to go through a request via GDPR. I ask the Minister to verify that. If it is the case, it seems extremely onerous that they would need to use separate legislation to access their information. This is a condition upon access to information which I believe is against the spirit of the Bill. Otherwise, the provisions of the Bill are very inclusive. We would like to see a change to the stated patriarchal culture. We think the required information session is a hangover of that. Amendment No. 68 is the substantive piece. There was cross-party agreement on this during the pre-legislative scrutiny and in the Dáil. We think it is patriarchal and unnecessary. If it is good enough for court summonses and other legal requirements, I do not understand why this information needs to be by a phone call or in-person as opposed to by registered post.

This grouping contains a few amendments. I think I support the amendment on age proposed by Senator Warfield. It relates to other amendments we have discussed to ensure that information can be accessed as early as possible. Persons who are 16 years of age should be able to have those records. That could be very important to a person coming up to that age of 18 when people make many choices about their lives. It also allows them to access that relevant information at a time when they have access to various relevant supports. I believe it is a constructive amendment.

Our amendment No. 32 relates to section 6(4) which simply provides that if the body finds no entry on the register of births, it shall in writing inform the applicant of that fact. Our amendment suggests that that is not good enough as an ending point to state it does not have the birth certificate. The amendment proposes:

Where no birth information is available, the Authority shall seize all records relating to the relevant person’s adoption and/or illegal [I am open to having that changed to "incorrect or illegal"] birth registration and open an investigation into what transpired. The relevant person will be kept informed and will be consulted throughout the course of the investigation.

We have set out a process there, but I am open to other versions of the process that the Minister might propose. To simply get a note saying "We do not have a birth certificate for you" is inadequate. If there is no birth certificate, that is an issue which requires investigation. We have suggested one version of follow-up action. I would like the Minister to outline what should happen next if the relevant body does not have the birth certificate. It is not enough to just be told that.

The State has a responsibility to investigate and follow up.

I will speak now to a number of the other amendments - Senator Hoey has already spoken on them - that are consequential on amendment No. 69. The latter seeks to reflect the recommendation of the committee and the concerns that many had addressed in the context of the information session, as required. I acknowledge that there has been some evolution from where matters stood in 2017. At that point, far worse proposals had been put forward. However, there is still the issue of this information session, which would only apply to persons who had been subject to adoption, as well as in the context of persons about whom relevant entries had been made in the contact preference register. Effectively, this means that these individuals are being treated differently from any other person in the State who is entitled to get his or her birth certificate. It is their right and they are the same as any other person. A different obstacle is being put in their way, however. They are being treated differently. This is treating differently the people who will seek access to their birth certificates under the Bill.

The proposals tabled by Deputy Bacik and others in the Dáil were very constructive. I say this because it moved to a situation whereby people were being given the information as to the purposes for which the information was being given to them. However, they were not being given an information session. The information was to be provided to all applicants. It was simply a case that information was to be delivered. It was not the case that there was to be a session or even a phone call. The Minister has stated that this is now to be done via a phone call and that it will not be an in-person session. However, this feeds into a feeling that many people who have been adopted have had about the perception of them that has been reflected back by the State and its institutions, including Tusla and others, over many years. This reflection is that they are somehow dangerous, that they are less capable of understanding the normal laws of the land than anybody else and that they need to be treated differently. It sends the message that they are to be treated differently. That is why I thought that there should be simple provision of information.

Information and tracing are two different concepts. One person might seek just their birth certificate information. However, another might have preferences in respect of tracing or contact. That will involve slightly different information. Anybody who gets his or her birth certificate will be getting it as information. It will not be a ticket to contact or to tracing. That is the norm already under the GDPR. In that context, I do not see why this additional provision would be needed. It muddies the waters. We will come to amendments Nos. 68 and 69, which propose different approaches to how that might be addressed, later.

A constructive amendment has been tabled by the Labour Party Senators regarding the use of registered post. We have also tabled amendments to section 17 which would make persons aware of the fact that when they get information for particular purposes - that is, as for a person's information about their identity - it does not automatically mean that this information can be used for other purposes. That is a general provision which could be applied to anybody.

Amendments Nos. 33 to 37, inclusive, are related to amendment No. 69. The latter would remove section 7, which provides for the information session. Amendments Nos. 33 to 27, inclusive, are consequential because they would remove from the Bill other references to an obligatory information session.

Amendment No. 37 is slightly different. It is another consequential amendment to amendment No. 69. It relates to section 8, however, which makes provision for birth certificates to be provided to relevant applicants who are aged between 16 and 18 years old. It also specifies that access to certain kinds of information, including birth certificates, is conditional on the information attending the mandatory information session.

Amendment No. 38 is also consequential to amendment No. 69. It addresses these provisions in section 8. Amendment No. 39 is another consequential amendment, which seeks to address the provisions in sections 7 and 8. These amendments are consequential from the provisions in those sections and from the amendments that we propose to make to those sections. Amendment No. 40 is similarly a consequential amendment.

Amendment No. 42 would replace the word "may" with "shall" in respect of the release of a statement. This refers to where a relevant body may release a statement to a relevant person that would set out his or her birth information. I appreciate that the word "shall" is used in relation to records in the previous provision. I appreciate that and it is good that the word "shall" is used. However, although the word "shall" is used, the caveat of "to the extent that it is practicable to do so" is attached. We will come back to that issue when it comes up again. The word "shall" is used in terms of the release of the records, but the word "may" is used in relation to the release of a statement. The Minister might clarify why that is. In general, our preference is for the use of the word "shall" throughout the Bill, wherever that is possible.

I apologise that my contribution is long, but this is a large grouping of amendments. Amendment No. 43 is another consequential amendment to amendment No. 69. There are numerous references to this "information session" throughout the Bill. It has been a piece of work to remove it. We believe that there are multiple better ways of addressing these issues and that there should not be discriminatory treatment of persons who have been adopted when they seek to access their birth certificates.

Amendment No. 44 is similarly a consequential amendment. Amendment No. 45 is a consequential amendment which seeks to amend the current provision around access to birth information. It also relates to section 9. Amendment No. 46 is a consequential amendment. Amendment No. 49 is a consequential amendment and it relates to section 10. Amendment No. 50 is also a consequential amendment and it also relates to section 10. Amendment No. 51 is a consequential amendment to amendment No. 69 that also relates to section 10.

Amendment No. 53 proposes to insert a new section that would seek to create a mechanism whereby a relevant person could request all of his or her relevant records from a body. This is one example of what we believe would be a more constructive approach to persons being able to access their information. It would address an issue that is present in the Bill with how the mechanism for requesting records is set up. It seems at the moment that a high threshold of specificity and knowledge is required on the part of the applicant when he or she is requesting their records. In the past, the burden has been placed on individuals to navigate a difficult and sometimes hostile system. This Bill is meant to be the sea change. Yet, at the moment, there still is quite an onus put on the person who is seeking the information to know almost exactly what it is he or she is looking for. It is almost the old thing of, "If you do not know, then I will not tell you". That should not be the case for persons who are seeking information, if indeed we want to take a maximalist rather than a minimalist approach.

The Bill as it stands sets out specific categories of information that may be requested. That is fine when the applicant is familiar with the legislation and when he or she knows what to request. However, there is the potential that an applicant would not know what to ask for, that he or she might not be subject to legal advice and that he or she may not be experts in legislation. They could effectively end up not getting access to records that are extremely pertinent to them.

Currently, the Bill has a distinct section to deal with applications for birth and early life information. It has another distinct section on the application for medical records.

Within these sections, it is stipulated that a relevant body may provide information to which the application relates: that is, if people request their medical information, they will be provided only with that, despite the fact that the relevant body may hold additional records and the applicant may not be aware of that. However, there should be a mechanism whereby applicants can simply request any and all records that a relevant body holds on them, which is again realistic because many applicants will not be familiar with the terminology or definitions of "early life information" versus "care information" and may not know what to ask for. In that case, there should be a provision whereby persons can just ask for all records available to them without having to specify the categories. It should be sufficient that applicants can indicate their desire to receive all records held about them, and that request should be granted by the relevant body in the widest interpretation.

This amendment would insert a new section which would say a person can apply for any and all records and that a relevant body on an application made should, to the extent practicable, provide the relevant person with all relevant records. Where a relevant body receives an application and does not hold relevant records, it shall inform the person of that fact. This is a wide provision piece.

I will come to amendments later whereby if people apply for one strand of information about them, they should be at least informed that there are other strands of information about them, which they can then seek to access as well. That is another way we try to come at this same problem. This is the wide, all-encompassing provision and the other is to create arrows that would guide people if they applied under one of the strands, so that they would know there are other strands of information. What we do not want is that people simply tick the wrong box and do not get the full information. I know that is not what the Minister would want either. That was amendment No. 53.

Amendment No. 71 deals with a caveat in the Bill if section 17 is to be maintained. We have provisions which remove the information session and replace it with a written communication. Amendment No. 71 states that if the information session is maintained, relevant persons should be able to elect to receive written correspondence in its place. Section 17 currently provides that in order to access certain information, an applicant must attend an information session with a designated person. The provision is hugely problematic. As we have heard, it makes access to certain information, including birth certificates, conditional. It is a red-line issue for many of the survivor and stakeholder groups. The Minister will be aware of that, as it has been debated extensively both in the committee and in the Dáil. However, if the Minister does not prove amenable to the removal of the information session from the Bill, we believe there should at a minimum be a provision where a person can decline to attend an information session and can instead receive information in the post. It is slightly different from the registered post, which again is just sent out and somebody receives it. This would be a situation whereby there is engagement from the relevant persons. They have shown that they are engaging, and they have said they would prefer to receive the information in this different format. The very fact of that engagement and request being given a proper weighting, means that there is confidence that people are going to receive the information in a written form because they have requested to receive it in a written form.

I do not think amendment No. 71 is ideal, but it is a provision which at least does not put persons for whom this is difficult, people who feel very upset about how they have been treated, in a position where they are obliged to attend the information session or not access the information. There is some way that they can register that they want to receive it another way. We do not want to have a position where people are refusing to attend an information session on principle and, as a consequence, they would not get access to the information, in particular in terms of the birth certificate, given that it is something every other person in the State can access freely.

I do not think amendment No. 71 is ideal, but it at least provides an option for persons for whom attendance at an information session could potentially prove somewhat traumatising.

I thank Senators for their contributions. What we are discussing here gets fundamentally to the centre of what this legislation is trying to achieve, which is that for the very first time in Irish history, adopted people, people who were boarded out and people who were subject to an illegal birth registration would have an automatic right to their full birth, early life care, medical information and a birth certificate. For the first time, that cannot be denied to them. It will not be redacted and their right to that information will not be undermined in any way. That is what this legislation is trying to do.

In order to do that, this legislation recognises that in the provision of that identity information - the constitutional right to their identity for adopted people - it does in some circumstances involve a restriction on the right of another person, the right of parents who do not wish their identity to be known to the child that they gave up for adoption. These are two fundamental rights, both springing from Article 40.3.2° of the Constitution, both unenumerated rights - a constitutional right to privacy and a constitutional right to identity information. For too long, Irish law has prioritised the parent's right to privacy over the adopted person's right to his or her identity. This legislation seeks to reverse that, to almost entirely change it, and to put the protection of rights on the right to identity. Everyone in this House and in the other House agrees that is the approach that should be taken.

In Irish law, when the Oireachtas takes a decision to balance constitutionally protected rights, in particular when the Oireachtas takes a decision to elevate one constitutional right over another, to give one constitutional right preference over another, a process must be undertaken in the legislation. That is what we are doing. We should be clear about that. We are prioritising the constitutional right of adopted people to their identity over the constitutional right of some parents to their privacy. We must understand that for some parents, perhaps a very small number, but that does not matter because even if it is just one, we are dealing with a parent's constitutional rights, that is a traumatic experience as well.

In order to do that, our legislation has to demonstrate that we have considered both sets of rights and that we have put a balance or mechanism in place in terms of how that prioritisation of the identity rights over the privacy rights is done. This is what we are seeking to achieve in this section. There are different views in terms of what is the best way of balancing the privacy rights and the right to identity in the legislation. In group 11 we will talk about some of the other options.

This speaks to some of the opposition to this section by Sinn Féin. Fundamentally, if there is not some element of balancing of the rights in this legislation, it is at high risk of being found to be unconstitutional and, as such, at risk of being struck down and we would be back in the same place again where adopted people have no rights to their information. This legislation guarantees the full release of information under the processes set out: the full release of unredacted information. It does so after a balancing process has taken place. That is why we are speaking of this issue.

What has been identified, after detailed analysis, is the idea of an information session or call, where in a very small minority of circumstances, where a parent has proactively sought to register a no-contact preference on the contact preference register, that will be conveyed to the adopted person via a phone call.

Once that telephone call has taken place, the full release of information can take place. We believe this is the best way to vindicate the constitutional right to privacy of the parent who has sought to protect that right by entering a no-contact preference in the contact preference register. It is about how to balance that right, but at the same time ensure that every adopted person gets full access to all the information in an unredacted manner. We can perhaps speak later about the alternative methods others have brought forward on this issue.

Senator Hoey asked about what happens if an adopted person seeks not to use the provisions of this legislation, including the provision on an information call if a parent has indicated a no-contact preference. If someone chooses not to use the process of this legislation, he or she still has the option of using general data protection regulation, GDPR, and making a subject access request. In that situation, the data controller will make a determination on the release of the information. However, it is important to recall the reason we are bringing forward this legislation is that the answer to somebody using this legislation will always be the full release of all information whereas in a GDPR situation, the data controller must assess the rights of the person making the application and balance those against the rights of other persons. There could be circumstances in which the data controller prioritises the rights of other persons. Someone can continue to use the GDPR process, however, and those rights continue to sit alongside this legislation. We should reflect, of course, that this idea of the information session and information call is a process that was put forward previously by Senator Hoey's party in 2017 in terms of a good way to reach that balancing mechanism.

In terms of amendment No. 71 from Senator Higgins regarding a mechanism where somebody does not wish to take part in the information call, again, I find what she has put forward problematic in the context of one of the options that is being put forward in group 11, which is this idea that registered post can somehow indicate that the information has been successfully conveyed to the adopted person. I will speak to my concerns about that as an alternative when we come to discuss group 11, but that protection is not even provided in what the Senator has put forward in amendment No. 71. That is why I would be concerned about that and about the clarity of the no-contact preference, which is the exercise of the privacy rights being conveyed to the adopted person under the mechanism the Senator has set down in this amendment.

In terms of some of the other points, a range of issues are set out in this group and some of them are quite different. In terms of the use of "may" versus "shall" in the statement, which we debated during our previous discussion, again, we believe that the statement will take place in the vast majority of situations. However, there are situations, and I gave the example before of maybe the provision of a birth certificate or something like that, where one piece of information has been sought where a statement will not be necessary, for instance, where the piece of information being provided is self-explanatory and the statement is not needed. Again, however, clear guidance will be set out in the guidelines to the effect that where any degree of explanation is needed, a statement should be provided.

Senator Boyhan spoke very eloquently last week to the case where a record is not found. There will be situations where records are not found. This is important for us in terms of honesty and not wishing to create unreasonable expectations for adopted people of what might be there. There will be situations where adoption records are not available for the AAI or Tusla to provide. We have mechanisms in place in terms of tracing and other methods to support people who perhaps have not been provided with a birth certificate, in how they can use the additional processes.

This idea of the automatic consequence of no birth certificate being found resulting in a seizure and an investigation puts a huge burden on Tusla or the AAI in terms of undertaking this when they may not have the mechanisms to provide any conclusive answers to the adopted person as to why that is the case. It particularly puts a huge burden on them at a time when they should be undertaking the already very big job of implementing this legislation, providing for what will be the many thousands of people who will seek to use the provisions of this legislation to finally provide them with the information they require.

Fundamentally, what we are seeking is the full release of all information in every circumstance. That requires a limitation of the privacy rights of parents. We agree that this needs to be done and that the fact it has not been done for so long has entirely negated the identity rights of adopted people in this country. Because of the system in which we work, however, a severe limitation on the privacy rights of somebody must contain a balancing mechanism. We would argue that the balancing mechanism we are bringing forward has changed throughout this process. It has moved from an in-person meeting to an information telephone call and from being provided by a social worker to being provided by a relevant person. It has moved from a point where the language used referred to the adopted person understanding the importance of respecting the privacy rights of the parent to one where it solely states that the adopted person will be informed that the parent has exercised his or her privacy rights. This is a change. It has been amended to reflect concerns that have been raised. Fundamentally, however, if this legislation does not contain a balancing mechanism, we risk the overall goal, which is the full release of unredacted information in every circumstance.

I thank the Minister. Before I invite Senators back in, I want to welcome all our guests to the Gallery on behalf of all the Senators, ministerial staff, officials and ushers. We always like to see people here. As our guests can gather, we are discussing Committee Stage of the Birth Information and Tracing Bill 2022. I hope they enjoy the rest of their day.

I accept that matters have moved on with regard to the provisions, but I was here in 2017. I want to acknowledge former Senator Bacik, who, along with me and a number of others, spent many hours with the then Minister. We were told at that time that a veto was required by the Constitution. We were emphatically told that the Constitution's interpretation of privacy at that time, which, again, we argued was not even consistent with the right to the private life of a person, was of a desire for the non-sharing of information on the part of a parent. There was a framing of two rights versus another when, in fact, there was a question of the right of privacy being quite nuanced and the right to private life actually being an across the board consideration on the question of identity. There was an undervaluing of the provisions in respect of the changes that came about through the insertion of the rights of the child into the Constitution. There was an undervaluing of the obligations in terms of the GDPR in European law in respect of the seeking of rights. I appreciate that the Minister set out that the GDPR rights will still be there, but that will be subject to an individualised balancing in each case.

I understand that the Minister feels this has moved to where it can. I urge him to consider that suite of proposals that have been put forward by others, however, including the committee and ourselves, in respect of other ways to address that concern and in particular, to look at the issue of birth certificates. It is one thing in terms of birth information, but that differential treatment of adopted persons in terms of birth certificates gives rise to a particular concern.

I have these concerns. I say this not to dismiss, but we were told in 2017 that, by looking for any requirement for birth certificates or any non-assumption of veto, we were delaying the benign purposes of the legislation. At the time, it was woefully inadequate legislation. As such, I will not apologise for seeking better. Even at this late stage, we can do better.

Contact is different from information. The assumption built into the Bill is that there is a desire for contact on the part of the adopted person, which is why that person needs to be informed that people do not want to hear from him or her. Instead, general information could be given to all persons and they could be told that, if they were thinking of contacting people, there was a contact preference register or a tracing service. They could be directed to that separate suite of provisions in this way instead of attaching something on tracing and contact preferences to an information provision. Those are the two parts. It would be good to inform persons that there was a contact preference register and that, if they were thinking about trying to make contact, they could check it, but a large number of adopted people just want to get their birth certificates and do not want to contact anyone. They will not be given that option, though. It may not be appropriate for the information on contact preferences to be provided at the point where persons are simply accessing their birth certificates. Instead, such information and balancing might be provided in a relevant way when persons are considering making contact.

The Minister addressed a number of the other issues that I had highlighted. Our amendment is wide. When a relevant record is not found, for example, a birth certificate, we suggest a strong measure, that being a seizure and immediate investigation. If the Minister does not wish to accept this, I encourage him to table something on Report Stage. If people are being told that their records no longer exist, there needs to be some provision whereby the State at least recognises a pattern. For example, if a particular adoption agency or relevant authority is consistently telling people that such records are not available, there needs to be some follow-up as opposed to each individual just getting an email to that effect. The Minister stated that a large volume of work needed to be done. My concern is that, in that large volume, evasions and loopholes will be created whereby, if there is a pattern of records not being available in a particular situation, it might not get identified. We suggested that it would require an investigation in almost every instance. If the Minister cannot accept that, then he should consider whether there needs to be some other mechanism to flag if there have been multiple instances of persons being told that their records are not available. What can be put into the system to identify or address a pattern rather than just having a set of many disappointed individuals?

In his reply, the Minister did not get a chance to address an amendment that was buried in the midst of this grouping. I am referring to the amendment on “all relevant records”. Rather than requesting records and needing to be sure to use the exact title, for example, “early life information” or “medical records”, and instead of having to engage in separate application processes, I am requesting that there be a provision whereby persons can just say that they would like “all relevant records” and they would then be given all of those strands of information.

Perhaps that is already allowed for, but I am concerned that persons might not know what to ask for or they may ask for one set of information and not be aware that it will only be partial. Will the Minister address this amendment?

I am seeking clarity. The Minister stated that we have moved on since 2017 and that there have been conversations. Was he given an explicit reason for why it cannot be by registered post? Was that legal advice or was it just the preference? I am not clear on that. We initially suggested that it could be done via phone call instead of in person, but our own thoughts on this have evolved. Is there a specific reason that it cannot be done in this way? Is it a legal reason or is it just the preference of the Minister and his Department?

Regarding Senator Higgins’s query on the phrase "all relevant records", the manner in which the application form for information will be designed will be clear on the fact that a person seeking information under the legislation may choose certain types of information. We must recognise that some adopted people may wish to do this. It will be as clear as a box that reads, "For all records, tick here". We will make it as easy as possible. While I understand what Senator Higgins is asking for, her amendment is not necessary. We want to make this process as simple and clear as possible while also respecting the agency of individuals who may wish to pick and choose types of information. I suspect, and I am sure the Senator does as well, that the majority will wish to choose all of the information. That will be as clear as possible on the application form.

Regarding section 32, I am not fully clear about what the Senator wishes to achieve in terms of an investigation. If illegality has taken place, there are mechanisms for that to be investigated by An Garda Síochána. I am not sure how the Senator’s amendment, which would place the obligation for a large-scale investigation on Tusla when the answer could be that, for example, a fire at a particular agency had destroyed the records, would advance the process. The obligation would be on Tusla, not recalling that Tusla’s job in this context is to try to provide information to people where that information exists.

On Senator Hoey’s question, the idea of using a registered letter approach was specifically canvassed during our engagements with the Office of the Attorney General and advisory counsel. It was advised that the information phone call was the best way of securing and protecting the privacy rights involved. A great deal of consideration has gone into this. I have heard people’s concerns, which is why there have been significant changes to the information phone call, but the advice that I have received is that this is what is necessary to achieve the constitutional balance that ensures that this legislation is not deemed unconstitutional, which would undermine all that we are seeking to achieve.

As the Minister requested, I will clarify the position. Amendment No. 32 relates to a situation where someone makes an application to the register of births but no entry is found. Where a relevant body has received an application and does not hold the birth certificate, it will inform the applicant of that fact in writing and without delay. A person being told that there is no record of him or her is significant, and we suggested that this should trigger an investigation in each instance.

I had asked that if the Minister felt it would be onerous to trigger it in every instance, could there at least be some mechanism to deal with a pattern. He mentioned there may be some reason like a fire or something, but the Bill does not even require the authority to outline a reason for not having a birth certificate. People are simply told it does not exist. If there are fires, files lost, swathes of records from a particular institution that never filed them properly or whatever, we want those issues to be addressed rather than it being the luck of the draw as to whether someone gets a birth certificate.

At the moment section 4 simply provides that persons are just informed that a body does not hold a birth certificate for them. However, there should be a clear next stage even if it is just information about what they can do next. In addition, if the State sees a pattern of relevant bodies informing a large number of people that they do not hold birth certificates, that should be identified and investigated in some way. As we are on Committee Stage, I am open to suggestions and thoughts the Minister might have. However, he might agree with me that to simply get a letter indicating that there is not a birth certificate should not be the end of that process.

Amendment put and declared lost.
SECTION 6

I move amendment No. 32:

In page 15, between lines 35 and 36, to insert the following:

“(5) Where no birth information is available, the Authority shall seize all records relating to the relevant person’s adoption and/or illegal birth registration and open an investigation into what transpired. The relevant person will be kept informed and will be consulted throughout the course of the investigation.”.

Is the amendment being pressed?

I do not see any alternative as there seems to be no engagement on the matter.

Amendment put:
The Committee divided: Tá, 12; Níl, 25.

  • Boyhan, Victor.
  • Boylan, Lynn.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Keogan, Sharon.
  • Moynihan, Rebecca.
  • Ó Donnghaile, Niall.
  • Ruane, Lynn.
  • Sherlock, Marie.
  • Wall, Mark.
  • Warfield, Fintan.

Níl

  • Ahearn, Garret.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Lisa.
  • Conway, Martin.
  • Crowe, Ollie.
  • Currie, Emer.
  • Daly, Paul.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Dooley, Timmy.
  • Hackett, Pippa.
  • Horkan, Gerry.
  • Kyne, Seán.
  • Lombard, Tim.
  • Murphy, Eugene.
  • O'Reilly, Pauline.
  • O'Sullivan, Ned.
  • Seery Kearney, Mary.
  • Ward, Barry.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Alice-Mary Higgins and Lynn Ruane; Níl, Senators Seán Kyne and Lisa Chambers.
Amendment declared lost.
Progress reported; Committee to sit again.
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