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Seanad Éireann debate -
Tuesday, 14 Jun 2022

Vol. 286 No. 2

Birth Information and Tracing Bill 2022: Report Stage

Before we commence, I remind Senators that a Member may speak only once per amendment on Report Stage except for the amendment's proposer, who may reply to the discussion on same. Also on Report Stage, each amendment must be seconded.

Amendments Nos. 1, 2, 24 and 25 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 1:

In page 8, between lines 20 and 21, to insert the following:

“(c) a person who was otherwise illegally adopted,”.

I second the amendment.

This grouping of amendments seeks to ensure that illegal birth registrations are specified in the Bill along with incorrect birth registrations. Currently, the Bill only applies to people whose births were illegally registered before 31 December 1980. It is a deeply flawed decision to insert a date limit, as there is no evidence to suggest that illegal registrations ceased on 31 December 1980. Any person illegally adopted outside this date limit might not be able to access his or her rights under the Bill. The Bill should be amended to ensure that all affected persons subject to illegal birth registrations are included. This has to do with the core principle that, if we are trying to move forward and make redress, we need to ensure that we are not piecemeal in our approach and that all relevant adopted persons are able to access their rights under the legislation, including those who were adopted overseas and those who were illegally adopted or whose adoptions involved illegal birth registrations after 1980.

During our debate on Committee Stage, the Minister specified his concern that, if an adoption was illegal, then it was not a full adoption. Our amendment No. 2 seeks to address that concern by referring to someone who was "subject to an illegal birth registration".

That addresses one of the concerns the Minister raised on Committee Stage.

The Minister will be aware that at multiple points in the legislation "incorrect" is referred to. We have not sought to amend each instance of this but to address these amendments in the most efficient way, which is by doing so within the definition of "incorrect". Previously, at every point where "incorrect" was mentioned, we sought to add "or illegal". I still think that would be a good practice but we have instead sought to specify "illegal" under the definition of "incorrect". The Minister mentioned false information and so forth sitting under the definition of "incorrect" and the idea of illegal birth registration sitting under that definition would be a similarly efficient way to achieve that necessary goal.

Amendment No. 2 puts "illegal birth registration" within the definition of "incorrect". Amendment No. 25 is another attempt to do this. I am conscious of how long and arduous this process is so these amendments have all sought to find the most efficient possible way to achieve the desired change. Amendment No. 25 simply suggests that everywhere "incorrect birth registration" is referenced in the Bill, it shall be construed to also include "illegal birth registration". That might be an efficient way in a single amendment to address a concern which the Minister will be aware that many across the House had in relation to the apology the Minister began this Bill with in this House. He spoke about the illegality that people had been subjected to. The desire of all of us in this House is that the illegality be acknowledged and we do not end up in legislation smoothing it into something like "incorrect", which does not carry the same weight or heft. These would be simple ways to ensure the commitment to acknowledging and regretting illegality reflected in the legislation by the naming of illegality in relation to all provisions which relevant persons might access under this Bill.

I thank the Senators for their amendments. I will speak to Nos. 1 and 2 first, then to Nos. 24 and 25. Amendment No. 1 seeks to include illegal adoption in the definition of "adoption". The insertion of these words is not necessary. In any case where an adoption order issued, a person is considered to be an adopted person and therefore a relevant person under the Bill. Amendment No. 2 proposes to include a person whose birth was illegally registered in the definition of "adoption". This is unnecessary as such a person is already captured in the definition of a relevant person and can avail of all the services in the Bill.

Senators may be aware that I brought an amendment to the definition of an "adopted person" on Report Stage to ensure clarity that any child born in Ireland and adopted abroad is included in the legislation. I hope this clarification is reassuring to the Senators. The definition of "adopted person" is drafted more broadly to ensure inclusivity.

On amendments Nos. 24 and 25, we have had this discussion on Committee Stage. Since taking office, I have been committed to addressing the issues that arise for people who have been the subject of illegal birth registrations and I have been leading the Government effort in that regard. It has been a cross-Government effort. There is input to the legislation from the Department of Social Protection and the Department of Justice to try to address the wide range of serious issues that persons subject to an illegal birth registration have faced. We have brought forward some innovative and bespoke mechanisms to deal with that. I have always wanted to deal with the situation that those subject to illegal birth registration have faced but I have been clear in recognising the illegality of what they faced and I did so in the apology speech.

This Bill contains ground-breaking measures to ensure the release of comprehensive information, including details of persons involved in an illegal birth registration. It provides assurance on contracts entered into by affected persons and addresses inheritance and succession issues which arise for such persons. It provides for an accurate birth registration and ensures choice and certainty in terms of the identity by which an affected person chooses to live.

There is a good reason that I cannot accept these amendments which seek to alter the definition of "incorrect birth registration" to include the reference to "illegal". I understand the thinking behind the amendment and accept the Senators, in a similar approach to Deputies, have tried to work with the language in the Bill to find a way to include the term "illegal". It is a genuine attempt to reflect the experience of those impacted by illegal birth registrations and, in some cases, their expressed wishes. I asked my officials to engage with the Office of the Parliamentary Counsel on this issue but it has not been possible to achieve it in a legally sound and accurate way that would not require the State to set the standard of illegality and the burden of proof, even when we use the phrase "incorrect or illegal".

In my efforts to address these issues and concerns, I brought forward two changes in the Dáil to section 2, the definitions section, and section 54(11)(a). That was the insertion of the phrase "as a result of the giving of information that was false or misleading". I have made an effort to recognise the falsity and duplicity behind the provision of information in these cases. I do not believe we are smoothing over anything. We have looked at the issue of using the terms the Senators suggested and it has not proved possible. With all due respect and recognising what the Senators are doing, I am not in a position to accept amendments Nos. 24 and 25.

Amendment put and declared lost.

I move amendment No. 2:

In page 8, between lines 20 and 21, to insert the following:

“(c) a person who was subject to an illegal birth registration,”

I second the amendment.

Amendment put and declared lost.

Amendment No. 3 is out of order, as it does not arise out of committee proceedings.

Amendment No. 3 not moved.

Amendment No. 4 and amendments Nos. 9 to 13, inclusive, are related and may be discussed together by agreement. Amendments Nos. 10 to 13, inclusive, are physical alternatives to 9.

I move amendment No. 4:

In page 10, line 30, after “her,” to insert “including records of those administered for the purposes of a medical or medicinal trial”.

I second the amendment.

Amendments Nos. 4 and 9 relate to the definition of "medical information". Amendment No. 9 deals with it in the interpretation section of the Bill. This relates to medical information more widely and the crucial issue of vaccine trials. We had extensive discussion of this on Committee Stage, including engagement from Senator Boyhan and others.

Amendment No. 9 would amend the definition of medical information in the interpretation of the Act by specifying that "medical information" means all of the medical records and any information which relates to one's medical history. Again, medical information in this amendment is relating to a person's medical history but it is a little bit ambiguous. I am trying to look at strengthening it to make sure people are entitled to all their medical information and so that you do not get a piecemeal or selected piece of medical information coming through.

One place where this is important is addressed in amendments Nos. 10 to 13, inclusive, in specific cases of information as to whether a person was the subject of a vaccine trial. In the Bill there are references to whether one is vaccinated but it is quite a different thing to know whether one was vaccinated versus knowing whether one was part of a vaccine trial. That is different information. Vaccines are important and it is important to know what vaccines you have and what vulnerabilities you have but knowing you were part of a vaccine trial is an important part of knowing your story, what has happened to you and what you may have been subjected to. When we discussed this the Minister mentioned that he had concerns that other information cannot be shared which may be sensitive, including information on vaccine trials.

I was highlighting a particular point then and I want to highlight that again in these amendments, including in Nos. 11 and 13 in the way I have worded them. No. 11 is a material alternative to No. 10 and No. 13 is an alternative to No. 12. In the cases of both Nos. 11 and 13 I have added the phrasing of "relevant information in respect of any such trial". I am not saying that every single private record to do with a trial will be made available to every person who was subject to such a trial but it is relevant that you know, not just that you were vaccinated but that you were vaccinated as part of a trial. There could be key and relevant information. For example, if the institution in which you were resident formed a contract with a particular pharmaceutical company in its access to you and your peers for the purposes of a trial and if a particular medication was developed off the back of that, then that is relevant information. That information should be part of what is covered in letting people know their medical information. It is their human rights and personal story information.

The Minister will see that in good faith I have sought, in Nos. 11 and 12, to insert a phrase that makes this clear: "relevant information in respect of any such trial". If, in the case of No. 11, the Minister feels that including "relevant information in respect of any such trial" still proves to be an obstacle, then No. 10 simply states: "whether he or she was the subject of any vaccine trials". Amendment No. 10 will simply tell people if they were part of a trial and No. 11 will tell them, in more detail, the relevant information around that trial. Amendment No. 12 is on a medical or medicinal trial and it widens the scope from vaccine trials alone if other trials are issues. Amendment No. 13 is similar to No. 12. Amendment No. 4 states: "including records of those administered for the purposes of a medical or medicinal trial". In those amendments I am trying to widen the Bill so that we might capture things that might emerge that are not solely to do with vaccine trials but with other forms of trials that may have taken place. That seeks to provide the widest possible scope.

I hope the Minister can consider these amendments. I have listened carefully to the concerns he raised on Committee Stage and I have sought to alleviate them in these amendments. I again remind the Minister of the strong support that many in this House had for the desire to ensure there would be clarity and that persons would know if they had been part of a trial. I hope the Minister can find some of these amendments acceptable.

I have spoken at great length over many years on these vaccine trials and it would be remiss of me not to do so today. I shared with the Seanad in recent weeks that I have done an extensive interview with the BBC covering this issue that will be broadcast. There has been some update on it in the last two weeks and I understand it will be broadcast in early July, which the BBC has confirmed to me and I am conscious that the footage of these Seanad deliberations will form part of that.

I want to reiterate that where children were in State care and where the State or its agents were in loco parentis they had obligations. We know of extensive investigations and litigation, to which I am party, on these alleged drug trials. We know that the Taoiseach, when he was Minister for Health, commissioned Dr. Kiely, the then Chief Medical Officer, to do a preliminary investigation. We subsequently have sourced some additional information and a number of universities in Dublin were involved in that. We have no doubt that these drug trials took place; we are 100% satisfied of that and we have evidence to this effect. The British Medical Journal published the results of these vaccine trials so it is not news to the Department of Health or the Taoiseach, who was Minister for Health for some of the period when the investigations were ongoing, not when the trials were ongoing.

There has to be some mechanism where the State or its agents or institutions were aware and had on record that the vaccine trials took place on children, not necessarily because they were unwell but because there were many of them on the same diet in the same conditions in the same institution. In some cases many of them did not go out to school either so they had no access to the community. Where that happened it is imperative that there should be some record. Where records are held - and the Minister said before that there may not be records in certain places - that should form part of the information that is made available to those individuals or their families. It is critical that we do that. We do not know to what extent they may or may not have been damaged by these vaccine trials but we know for sure that they were commercial trials and that their results have been published extensively.

That is all I am prepared to say at this point and I would be interested to hear the Minister's response to that. I do not see why the Minister would be opposed to these amendments. There may be technicalities and good reasons why it cannot happen in this legislation and I am open to listening to that. I could not sit here in honesty and not raise the issue. We know and the Minister and his officials know that vaccine trials took place in institutions. Therefore, where the records clearly state that, I would like to see a situation where people, when they are accessing this information, can have sight of as much information as possible.

I agree with the Government, Senator Higgins and all Senators on the need for full access to all information on vaccines, vaccine trials and medical trials. There is no disagreement on that and it is for that reason that I cannot accept these amendments. They are unnecessary because the legislation before us provides comprehensively for the full release of medical records to an applicant. I note that amendments Nos. 9 to 13 all seek to add the specific term "vaccine trials" into the definition of "medical information".

We debated this important matter on Committee Stage and I am happy to do so again. Where someone was part of a vaccine trial, any information on that should and will, without doubt, be given to them under the existing draft legislation. This is an essential fact that people need to know and it is a matter of great importance to the people who have been impacted by it. I wish to put on record again that vaccine trials and vaccinations given are fully provided for under the definition of "early life" and are comprised in the definition of "medical information". Vaccinations are a person's medical history. These areas are captured under two headings: early life information; and medical information.

These areas are captured.

Some of the amendments also seek to include the word "records" in the definition of medical information. On Report Stage in the Dáil, I brought an amendment to the original Bill to ensure it is the record containing medical information that will be released to a relevant person. Section 15 is the substantive section for the release of medical information. Section 15(2)(a) states:

... a relevant body, on application to it

[...]

shall, to the extent that it is practicable to do so, provide the relevant person with a copy of the records ... that it holds that contain the medical information to which the application relates ...

Similarly, I cannot support amendment No. 4, which would amend the definition of early life information. The legislation already fully provides for the release of records related to medical treatment or procedure. Paragraph (f) of the definition of early life information ensures that records on any medical treatments and procedures are provided to the person. This will include medical or medicinal trials, which are the words this amendment seeks to insert into the definition. I would again draw the Senator's attention to paragraph (f), which refers to "information on any medical treatments, procedures or vaccinations administered to him or her". I hope Senators are reassured that the Bill already achieves a full release of medical records and that such records will include records of vaccinations, vaccination trials and any medical trials.

I do not doubt the Minister's sincerity on this, and I believe that release of information is certainly his intention. However, we have to look at legislation and imagine how someone else might interpret it. The paragraph (f) the Minister mentioned references vaccinations but it says "information on any medical treatments, procedures or vaccinations administered to him or her". There is a distinction between someone receiving a vaccine and being part of a vaccine trial. Many of the vaccines that were trialled went on to become successful vaccines that every child might benefit from but there is a difference between receiving a vaccination and being part of a vaccine trial. I do not doubt the Minister's intention as to how "vaccinations" should be interpreted. It is possible to interpret paragraph (f) to include information in respect of vaccine trials but I am concerned that it is also possible to interpret it in a way that would not include the information that that vaccination was received as part of a vaccine trial.

The Minister may not be able to accept this amendment today but when we come to the regulatory phase and putting the Bill into practice, this is the kind of thing that will need to be monitored. Perhaps greater clarity could be given through supplementary regulations or statutory instruments and so forth. At the moment, while paragraph (f) allows for the interpretation the Minister wants, and which I and everyone else expect and want, it also allows for a narrower interpretation where people would simply be informed they had been given a vaccination for a particular condition and would not be told that it was part of a trial or some of the other relevant information in respect of the trials. I accept the Minister's bona fides. I hope this provision will be interpreted in the widest possible way. If it proves not to be, I hope supplementary action will be taken through guidance to public bodies from the Minister if that is necessary. However, as I would prefer the legislation to be crystal clear, I will have to press the amendment. I am not suggesting that the Minister is seeking to cover this information up. I know he is not but I would like this definition to be there hard and fast in this legislation. I hope it will be there in the interpretation and the regulations.

To clarify, paragraph (f) refers to "information on any medical treatments, procedures or vaccinations". That would include any type of treatment the person would have experienced. That is extremely clear in the legislation we have in front of us.

At no stage would I seek to question the bona fides of any Senator here. Senator Higgins is making it look like I am wishing that this is what is going to happen, crossing my fingers and hoping. The clear reading of these provisions is that it includes all elements of vaccination, including vaccinations and vaccination trials. I accept that there is a difference between those things. A vaccination may have been a legitimate and existing vaccine at the time while a vaccination trial is something we would have deep concerns about. There are also medicine trial, where the medicine may not have been administered through an injection but orally or something like that. I cannot read this section in the way the Senator has suggested it could be interpreted to rule those things out. It would play havoc with the plain English reading of the Bill. I am fully convinced that all these things are covered.

Amendment put and declared lost.

Amendments Nos. 5 to 8, inclusive, are related and may be discussed together. Amendments Nos. 6 to 8, inclusive, are physical alternatives to amendment No. 5.

Government amendment No. 5:
In page 10, to delete lines 36 and 37, and in page 11, to delete lines 1 and 2 and substitute the following:
“(i) information on whether any person visited or inquired in relation to him or her, which information includes the name of the other person and, where applicable, the degree of relationship of the other person to him or her,”.

Amendment No. 5 seeks to ensure that, where a relevant person had visitors or inquiries made in relation to them, this information will be available to be released, including the name of the person and, where available, their relationship to the relevant person. This amendment comes on the back of intense engagement with the Office of the Parliamentary Counsel on this issue. It shows that I and my officials are willing to engage and make improvements to the legislation where it is necessary and legislatively possible. I am happy that this amendment will underpin the primary aim of this Bill to provide the release of as much information as possible to relevant persons. I acknowledge that Senator Higgins raised this issue and brought amendments to similar effect. I believe my amendment covers all the Senator's amendments, Nos. 6 to 8, inclusive. As such, I hope she is reassured that I have listened and engaged with her amendments and that this matter has now been comprehensively addressed.

I thank the Minister for this. I acknowledge that he has engaged with us. We had very extensive debate on this matter, not only on this section but as an example of a concerns regarding the general data protection regulation that came up in respect of other sections. This is not something anybody lobbied me about. From reading the Bill, I could see what the effect could be if people were told somebody had called and inquired after them, multiple times in some cases, but were not told their name. They would know somebody had cared and reached out or had concerns about them but would not know who that was. People take comfort from the smallest amount of information. I acknowledge that the legislation already had good provisions in place for situations where people had left letters, pictures, mementos or documents. For those who may not have left a physical memento, the fact of the call will be something. I thank the Minister for listening to me on this issue. It is the kind of thing that will give people a lot of peace, or even closure or understanding. It will give them a stronger picture of their story. The way the Minister has framed the amendment, the degree of the relationship to another person will be given where applicable, but that does not limit it solely to those who may be relatives. In some cases, it was people who cared, neighbours or others who made inquiries and sought to help. This amendment is good. It will spare people distress. I thank the Minister for bringing it forward and I will be happy to withdraw mine in light of it. The Minister's amendment captures the issue quite well.

I join with Senator Higgins in thanking the Minister. He has listened. I spoke about this issue on the Committee Stage.

Much of this is about belonging. It is a sense of who they are, where they have come from and the relationship or lack of it with extended family. It is always interesting when we see programmes on television tracing family history. The interviewer might ask if the person would like to see a picture of their mother, father or aunt. It is very powerful even though it might only be one picture, but it is so strong and important. If there is a resemblance to the person within the picture, they hang on dearly to it.

I have heard about and spoken to many people who were not in contact with their families for many years. Due to circumstances, a mother might have written and said she had to surrender her child and give it up. The person who wonders why he or she was in State care for 16 years then see the mother did not consent. There are files where a mother has been contacted many times by State agencies or the health board and said she was not prepared to surrender her child for adoption in the hope that her circumstances might change. In some cases, we see that someone is sending literally a few shillings a month. That demonstrates a commitment, love and affection on the part of the older person, yet circumstances kept these people apart. That is all it was – circumstances. If things had been different, they would have been very different. They were different times. I know so many people that have clung on to that little connection, the little gem that made them feel special and helped them many years later to understand and to overcome some of the reasons why they might have felt rejected, and also to help them understand the journey not only that they had to take but their parent or parents had to take.

The amendment is critically important. I thank the Minister for taking it on board. It is appreciated.

I thank the Senators for their comments.

Amendment agreed to.
Amendments Nos. 6 to 8, inclusive, not moved.

I move amendment No. 9:

In page 12, to delete lines 3 and 4 and substitute the following:

" "medical information” means, in relation to a person, their medical records and information relating to their medical history;”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 10:

In page 12, to delete lines 3 and 4 and substitute the following:

" "medical information” means, in relation to a person, their medical records and information relating to their medical history, including whether he or she was the subject of any vaccine trials;”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 11:

In page 12, to delete lines 3 and 4 and substitute the following:

" "medical information” means, in relation to a person, their medical records and information relating to their medical history, including whether he or she was the subject of any vaccine trials and, if so, relevant information in respect of any such trial;”.

I second the amendment.

Amendment put:
The Seanad divided: Tá, 5; Níl, 17.

  • Boyhan, Victor.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Ó Donnghaile, Niall.
  • Warfield, Fintan.

Níl

  • Ardagh, Catherine.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Conway, Martin.
  • Currie, Emer.
  • Davitt, Aidan.
  • Dolan, Aisling.
  • Gallagher, Robbie.
  • Hackett, Pippa.
  • Horkan, Gerry.
  • Kyne, Seán.
  • O'Reilly, Pauline.
  • O'Sullivan, Ned.
  • Ward, Barry.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Alice-Mary Higgins and Victor Boyhan; Níl, Senators Seán Kyne and Robbie Gallagher.
Amendment declared lost.

I move amendment No. 12:

In page 12, line 4, after "history" to insert ", including records of those administered for the purposes of a medical or medicinal trial".

I second the amendment.

Amendment put and declared lost.

I move amendment No. 13:

In page 12, line 4, after "history" to insert the following:", including whether he or she was the subject of any vaccine trials and if so, relevant information in respect of any such trial".

I second the amendment.

Amendment put and declared lost.

Amendments Nos. 14 to 21, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 14:

In page 12, line 27, to delete "genetic".

I second the amendment.

Amendment No. 14 deletes the provision that in the definition of a provided item, that an item, including a letter, photograph, memento, document or object held by a relevant person that was provided, whether to the agency, authority or any other person, may be provided to a person who only falls within the definition if it is from a parent or genetic relative. Specifically by deletion of the word "genetic", the items we talked about – the letter, photograph, memento or other object that may be of great sentimental importance - from non-genetic relatives would be included under this Act.

I know there is a reason for genetic relatives being specified by the Act in terms of medical information, for example, because that is very relevant, but there has been an extension of the use of the term into areas whereby there would not be scope for any relative, be it a relative by marriage, adoption or otherwise, who having given a person mementos, letters, photographs or other documents, to have them shared with a relevant person. That is the intention of amendment No. 14.

Amendment No. 15 is another way of coming at the same issue. I do not believe there is any bad intent in these aspects of the Bill, however, I think that it is more that a framing of "genetic relative" is being overextended.

I have suggested the addition of the phrase "or other qualifying" relative be part of the definition of provided items. We could delete the word "genetic" or add in the phrase "or other qualifying" relative".

Amendment No. 16 seeks to amend the definition of "relevant record" by deleting the provision that a relevant record "relating to a relevant person that contains birth information, early life information, care information or medical information" and so forth, including photographs or other images of his mother, father or genetic relatives should apply only to genetic relatives. I am suggesting that this provision should apply to all relatives. We had extensive discussion on the issue of the use of the term "genetic relative" as opposed to other relatives in this Bill on Committee Stage. As the genetic information is the relevant part, at the time I urged that wherever possible and where medical information is not concerned, we endeavour to be as close as possible to the spirit of the Children and Family Relationship Act 2015. The Children and Family Relationship Act is a seminal legislation which recognised that children have multiple relationships, and that the definition of family can be very wide. It recognises all the forms of relationship that a child might have. In respect of the cases relating to this Bill, we are talking about people who were children but are now adults. I have sought to expand the framing of the term "genetic relative" where I believe the narrow definition does not need to be there and in order to be more in the progressive spirit of the 2015 Act.

Amendment No.17 follows the approach that I outlined in respect of amendment No. 14. Instead of deleting the requirement for the relative to be a genetic relative, I am seeking to add the phrase "or other qualifying" relative. Amendment No. 18 seeks to amend the definition of a relevant record relating to communications from relatives by deleting the provision that it only applies to genetic relatives. I am seeking to broaden it in order that it applies to all relatives. Again, there may be cases where a non-genetic relative has communicated with a person in an institution or has exercised care in relation to a person in an institution. In discussions with Senator Boyhan and others, examples were cited such that of an aunt by marriage, who is not a genetic relative, taking interest in and engaging with a child. Amendment No. 19 seeks to do the same thing, namely, to add "or other qualifying" relative. Amendment No. 20 seeks to amend the definition of relevant record relating to communications from relatives by deleting the provision that it only applies to genetic relatives and to broaden it. Similarly, amendment No. 21 is an alternative to that. I had sought to remove the references to "genetic relative" in general as being narrow in how it was framed. The Minister made the case well and quite strongly on Committee Stage that, for example, in relation to medical information, it was very relevant. I have tried to go through those parts of the Bill where the phrase "genetic relative" is used as a frame. Where I think it is not necessary to confine something, I have proposed amendments. These amendments are all related to those other strands of the relationship, including the communications, relevant records and provided items, that are not tied to physical genetic information. I have sought to expand the definition in those cases. I acknowledge that there are cases in which the genetic relative limitation is an appropriate one but I believe that wherever possible, we should go for the more expansive understanding of relative. I hope the Minister can take on board these proposals.

The definition of provided items is inclusive and seeks to ensure that a broad range of items can be shared with a relevant person, including items such as letters, mementos, presents or photographs. It is central to ensuring clarity and consistency in facilitating the release of these items. It is important to note that the definition is specific that it covers items left by a genetic relative or another person involved in the provision of care of the relevant person. I am confident, having spoken to those familiar with the files, that this definition will cover all items left to the relevant person. While overwhelmingly these items will have been left by parents, there could be some from persons who cared for the child. I make that comment in relation to amendments Nos. 14 and 15.

On amendments Nos. 16 to 20, inclusive, on the relevant record, the definition of relevant record covers any record relating to the relevant person that contains birth, early life, care or medical information, or photographs. Administrative records, such as admissions and discharge registers, visitors books, baptismal and confirmation records, and any other records containing personal information on the daily life of an individual are also relevant records. Section 43 empowers the Minister to prescribe other classes of records as relevant records and bring them within the scope of the definition. There is a forward-looking element to the legislation contemplated within section 43.

The Senator is seeking to change the references in the definition from "genetic" to "or other qualifying [relative]". I cannot support that amendment, because the definition of the term "genetic relative" is expansive and inclusive. It is also clearly defined. The legislation requires a definition that is clearly defined. Following debates on Committee Stage in the Dáil and having listened to Deputies there, I brought an amendment to the definition, clarifying that any image of the relevant person, their parents or genetic relatives is to be safeguarded. At that point the definition was revisited. I am happy that the definition is fully encompassing and I do not believe that it needs to be amended further.

I recognise that the definition was somewhat expanded following the Dáil debate. I do not know that I share the confidence of the Minister's assertion. A person involved in caring for a relevant person and a person involved in the provision of care of a relevant person are quite different. Using the example I referenced earlier of the aunt by marriage, who may not be involved in the provision of care, but who cares for the relevant person. It is a slightly different thing. They are small nuances, but it is not quite the same thing. However, on the definition of relevant records, I take comfort from the fact that the Minister has provided that the definition can be further expanded in the future. I know that I seem to be looking to worst-case scenario in each interpretation, but that is because people have experienced the worst, the narrowest and the most obstructive and obtuse interpretations on their journeys to accessing information. While there is now discussion of a sea change, a change in attitude and so forth, we nonetheless must acknowledge that the experience that people have had is getting the minimum. That is why, with every amendment, I am proposing to try to expand definitions. It is because we want to ensure that people are armed with legislation that enables them to access information, rather than them having to rely on goodwill and on a positive and expansive interpretation of the legislation by whatever individual they may be engaging with. As I said, I am not fully convinced on the issue of a person who has cared for a relevant person and a person who has been involved in the care of a relevant person. However, I note the Minister's point on the provision for the potential expansion of the definition of relevant records. I ask the Minister to indicate if that is something he will be monitoring.

Does the Minister plan to come back on that question? Does he intend to review and watch for any patterns of obstruction that may arise where persons are not getting things? It is sometimes hard to know what one is not getting. Does the Minister have that scope?

Will relevant records cover an expansion, if it were needed, with regard to mementos and objects if we take a narrower interpretation of the provision of care or caring for? Does the Minister have enough power through supplementary powers to address that issue? That would reassure me to an extent.

With respect to the monitoring of any potential blockages, the implementation group, comprising the Department, Tusla and the Adoption Authority of Ireland, AAI, will be working to understand how the implementation is taking place. We also have the stakeholder reference group that is being brought together. It will include people who were adopted, parents and people who were the subjects of illegal birth registrations. That will be a group of people who will have a sense of the implementation of this legislation.

The Senator asked about the capacity under section 43(1). That section states:

The Minister may, for the purposes of paragraph (e) of the definition in section 2 of "relevant record" prescribe a record, or a class of record, to be a relevant record, where the Minister is of the opinion that—

(a) it relates to the care of a child or of children,

(b) were it not to be prescribed under this subsection, it or a part of it would be at risk of being destroyed or otherwise lost, and

(c) having regard to its historical or social value, it is in the public interest that it be prescribed under this subsection.

There are significant powers under section 43(1).

Amendment put and declared lost.
Amendment No. 15 not moved.

I move amendment No. 16:

In page 13, line 23, to delete “genetic”.

I second the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 17:

In page 13, line 23, after “genetic” to insert “or other qualifying”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 18:

In page 13, line 24, to delete “genetic”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 19:

In page 13, line 24, after “genetic” to insert “or other qualifying”.

I second the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 20:

In page 13, line 28, to delete “genetic”.

I second the amendment.

Amendment put and declared lost.
Amendment No. 21 not moved.

Amendments Nos. 22 and 23 are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 22:

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

“(j) a religious order as deemed relevant by the Minister;”.

I second the amendment.

This amendment aims to ensure that relevant religious orders would be included in the list of secondary sources. This is again about the definitions of what might constitute a secondary source under the legislation. The current list of secondary sources includes registered adoption societies or accredited bodies, but we know that many religious orders played a key role in the facilitation of adoptions. Indeed, when we look at some of the other issues we have discussed, such as, for example, vaccine trials, and some of the economic exploitation sadly associated with Ireland's history in this area, there may be relevant information within religious orders.

The Bill provides that the Minister may prescribe additional sources as secondary sources where he believes those sources may have a relevant record in their possession. This again relies on the understanding that future Ministers will share the same position, understanding or orientation in that they will want to access information. That is the case with the current Minister. However, there is no guarantee that future Ministers will invoke their powers in that way. In fact, Ireland has a history of indemnity and of shielding religious orders from accountability, public pressure and public outrage. In many cases, there has been a failure in that regard. We see it still in the ongoing issue arising from the fact that many religious orders have failed to contribute their portions under the necessity to make proper and appropriate reparation or contributions to redress. There is a lack of confidence here. It is too weak a measure for us to rely on the discretion of future Ministers in respect of ensuring that relevant religious orders are brought under the remit of secondary sources. That is why I believe relevant religious orders should be named in the legislation as a secondary source. There may then be a discretion for the Minister as to which bodies constitute relevant religious orders but at least it creates a greater pressure in that regard.

The Minister expressed concern that a similar amendment we submitted on Committee Stage was too specific because I included in it particular religious orders. This updated amendment gives a degree of discretion to the Minister in determining which are relevant religious orders. It does not give discretion to the Minister as to whether religious orders may be considered secondary sources.

The Minister is aware that I feel strongly about amendment No. 23. It states that relevant psychiatric institutions should be included in the list of secondary sources. The current list of secondary sources only includes registered adoption societies and accredited bodies despite the fact that we know psychiatric institutions were part of an architecture of control. Those institutions were one of the means through which mothers were disappeared in order to stop them potentially obstructing adoptions and so forth. We know that psychiatric institutions were part of the set of dangers, threats and pressures visited upon women by the State. I have previously given distressing examples of women who were effectively institutionalised in post-natal distress and left in certain psychiatric institutions in this State for the rest of their lives. Relevant psychiatric institutions should be included in the list of secondary sources.

I have included the phrase "deemed relevant by the Minister" in the amendment and have thereby given discretion to the Minister in that regard. I know he may not accept these amendments but I am continuing to mark these points because as I said, I am not satisfied with what is included because we cannot see what may happen down the line. Frankly, I do not believe that another Minister will bring these institutions into the fold. This has been a difficult area on which to engage. The Minister has engaged in this very difficult discussion. We need to be as strong and clear as possible to ensure that every potential source of information is named. If they are not named in this legislation, we need them named and identified by the Minister during his term in office so that we have as comprehensive and extensive as possible a reach into the sources of information.

The Minister will be aware of the age of many of the people affected by these issues.

If he cannot accept these amendments, I urge the Minister, subsequent to the passing of the legislation, to review the issue of secondary sources and not leave it to individuals to have to force the issue of making their case and having individual battles for information, and, in fact, ensure that the State will take the lead in trying to proactively identify such sources. For example, if other institutions and religious orders emerge and are named in documentation that will come through the already named secondary sources, and if psychiatric institutions are named on a regular basis in the kinds of documentation that will come from the already prescribed secondary sources, I ask that the list of secondary sources is appropriately expanded as quickly and as promptly as possible.

I ask for clarification on whether the types of institutions Senator Higgins referred to are included under the HSE. Are those areas covered in those parts of the section that relate to the Minister for Health and the HSE? This is something that should be included as part of that.

I am not in a position to accept these amendments, which seek to add to the list of secondary information sources provided for within the legislation, because I do not believe they are required. It is important to note the list of secondary information sources already includes a person prescribed under section 43(2). That is something that can be done through statutory instrument. There are also wider mechanisms within Part 7 which provide that even where a person is not designated as an information source, records can still be taken in by the State. I am confident that where relevant records are held by a religious order or psychiatric institution, they can be transferred to the AAI.

The Bill has been carefully drafted with certain overlaps to ensure all scenarios we can envisage are catered for. It has been my determined approach in progressing this legislation that it should be flexible and should support timely release of the records of which we are aware, with the ability to capture additional records that we become aware of over time. It is very important that the legislation is feasible in the context of rapid implementation and allows for the further processing of information sources through ministerial powers in a future-focused manner. The section that empowers a Minister, present or future, to prescribe additional information sources is section 43(2). The list currently included in the published Bill was carefully considered through consultation with stakeholders and organisations currently operating in the area of adoption, information release and tracing.

Section 46 already provides a catch-all requirement for any person or organisation in possession of a relevant record to safeguard it and to inform the authority that it holds the relevant record. Section 48 is also very relevant in this regard. It clearly sets out to whom and in what circumstances the adoption authority can issue a direction and, importantly, section 48(1)(b) states that a direction may issue to: "a person, other than an information source, who is in possession of a relevant record (whether [or not] such [a] person made a request under section 47 or not)." Again, that is a broad provision. This means the authority can direct the transfer of a relevant record from any person, regardless of whether that person wants the record to be transferred. That point is particularly important in respect of the Senator's allusion to the potential for bad faith actors. In addition, section 48(6) obliges the authority, when issuing a direction, to give consideration to any indication that a record may be at risk.

Should the authority become aware of a relevant record held by any person, I am confident that it can take that record. In particular, if the authority considers the record to be at risk, for example, of being lost or destroyed, it can take that record. These sections will work in tandem with the Minister's ability to prescribe information sources to guarantee the relevant records will be safeguarded and can be transferred. Therefore, I believe what the Senator is seeking to do can already happen within the provisions of the Bill.

As I said during our previous discussion, if it is in any way helpful, mechanisms are there to understand and get an assessment of the practical implementation of the legislation. It is there through the implementation group, although that could be a little high level in the context of what the Senator talked about, but the stakeholder reference group is also important. These will be people who will look for information, use it, and will probably be very well networked in with others who are in the same situation. Certainly, as long as I am in this role, if I believe a clear blockage has been identified, I will act and use the powers under secondary legislation.

I thank the Minister. I am glad those flexibilities have been built in. I would like the Bill to be stronger and have flexibility, but I recognise that at least the capacity is there within the flexibilities to strengthen things. I will add that in addition to the ongoing mechanisms, and engagement with stakeholders and others over the next period, that myself and others in the Oireachtas will also want to know what patterns have emerged and how things have moved. I am sure the Minister will be willing to engage with us, for example, in 12 months' time so we can see what we hope will only be a very small number of bad scenarios we have outlined as potential scenarios that may unfold and, if they have, can be identified and addressed.

Senator Dolan's point is very interesting. It would be worth clarifying if institutions are covered by the HSE. It is something I might follow up on, separate to this debate, because it would be useful to persons who are affected by that issue. In that context, I will probably not press the second amendment. However, I will go ahead and press the first.

Amendment put and declared lost.
Amendment No. 23 not moved.

I move amendment No. 24:

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

I second the amendment.

Amendment put and declared lost.

I move amendment No. 25:

In page 14, between lines 21 and 22, to insert the following:

“(3) For the purposes of this Act, references to “incorrect birth registration” shall be construed to include illegal birth registrations.”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 26:

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

I second the amendment.

This amendment relates to the provision for any additional institutions in the Schedule in the context of relevant institutions. I have a concern I indicated to the Minister, which is that the Bill at present provides that the Minister may: "provide for the insertion in the schedule of any institution that was established or operated for the purpose of providing care to children in which children were placed and resident and in respect of which a public body has or had a regulatory or inspection function." Again, I just want to ensure that nothing falls out.

For example, there were gaps during those periods when there were not proper legal practices in adoptions. Informal bodies operating between institutions were also involved in adoptions. I do not believe that the provision in this amendment will be needed much, but I wish to ensure that everything is in place. My amendment seeks to clarify that the Minister can provide for the insertion in the Schedule of any institution regardless of whether a public body had a regulatory or inspectorial function over it. This is meant to ensure that there are no gaps and that bodies that were involved in the care of children but were not subject to regulation or inspection by a public body do not fall outside the remit of this legislation or that the Minister might be blocked from addressing them.

The Minister indicated his confidence that there would almost always be a situation where a public body had a regulatory or inspectorial function regardless of whether it exercised that function effectively, but I wish to expand this provision. It is better to have it and not need to use it than to need it and not have it. I am leaving the section largely as is and only adding the simple phrase "regardless of whether". I do not know why we should not insert a more expansive framework to give us that scope. The layers of the architecture involved are only coming out into the light now. They were around for a long time. Consider how long it took us from the point that cases of illegal adoptions from St. Patrick's Guild were flagged to when we began dealing with the issue. Neither the Minister nor I have a full sense of the architecture that existed in the illegal adoption and inappropriate care of children. This amendment would widen the Bill a little and give the Minister, or a future Minister, the powers instead of having to seek them at later point.

I am not in a position to accept this amendment because it would introduce a broad and sweeping power to the Minister beyond the agreed policy intentions underpinning the Bill. When drafting this legislation, I wanted to ensure that it was as broad and encompassing as possible while ensuring that the definitions and parameters included in it were strong enough to be sound legislatively and would not inadvertently introduce sweeping powers.

Section 5 reads: "The Minister may ... provide for the insertion in the Schedule of any institution that was established or operated for the purpose of providing care to children". This term was carefully considered at the time. The section requires that the institution must have been subject to a regulatory or inspectorial function by a public body. I was assured by the drafters that this was sufficiently broad and that, regardless of whether an inspection took place, the institution would still have been subject to a regulatory or inspectorial function.

The question of broadening this provision was raised at a technical briefing that I delivered earlier in the process and to which Members were invited. I made the point that, if someone could provide me with an example of an institution that was not covered by this definition, I would be happy to examine the matter again, but I have still not been provided with a concrete example of what is missing. Senator Higgins has speculated that something like that could or would be the case, but if we are to move towards the very broad power that she is proposing, which carries little constraint on what sort of body could be registered in the Schedule by me or future Ministers, then we need at least some indication of what is being talked about. I have not heard any yet. While I accept the Senator's point about the architecture being revealed, I believe that the specific institutions are known at this stage and that the term "regulatory or inspection function" covers them.

It is important to remember what the Schedule is about. It is a catch-all for someone who was in an institution for a time but who does not fall within the broad definition of "relevant person" because he or she was not adopted from the institution, subject to an illegal birth registration from it or subject to a boarding out from it. We did not have this provision in the Bill originally, but some came forward and gave the example of a person who was born in a mother and baby home, spent a number of years there with his or her mother and subsequently left with her. The person was not boarded out, subject to an illegal birth registration or ever adopted. But for this Schedule, that person would not be able to use the provisions of this Bill. We included it to catch such cases. Being a "relevant person" - an adopted person - is enough to qualify someone under this Bill. A person does not have to have been in one of the institutions listed. There was some confusion in this regard, so I wish to put the situation on the record a final time.

A future Minister or I can add to the list types of body that are subject to a "regulatory or inspection function". This encompasses all relevant institutions within the architecture that we have discussed to date.

I thank the Minister for his answer. He is right, in that including a Schedule that could be expanded was a step forward. There was considerable frustration about which institutions were being examined or reviewed. We recall the battle fought by those who had been in Bethany Home to get acknowledgment from the State of their experience and to have their circumstances examined properly. I acknowledge the Schedule and the fact that it can be expanded to deal with other circumstances, which is a step forward.

In light of the Minister's response, I will not press the amendment. He has made the case and I do not have the examples for which he asked. However, I know that I do not have a full sense of the situation either. This is generally why I am pushing for the expansion, but I acknowledge the potential for expansion by the inclusion of a Schedule that can be added to. It is a big step forward from the very frustrating discussions on how only a handful of institutions were covered previously. I hope that nothing falls through the cracks but that, if it does, it will be identified through the mechanism that the Minister outlined.

Amendment, by leave, withdrawn.

Amendments Nos. 27, 28 and 32 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 27:

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

“(5) Where no birth information is available, the Authority shall, in so far as practicable, provide the relevant person with a written statement which explains the absence of information within its possession in respect of their adoption and/or illegal birth registration, and provide information to the relevant person regarding the recourse and supports available to them in locating and interpreting this information.”.

I second the amendment.

This inserts a new subsection on circumstances in which persons have sought birth information but that information is not made available to them on request. Under the Bill, where a relevant body receives an application seeking a birth certificate but it does not hold that certificate, it would in writing and without delay inform the applicant of that fact.

My amendment No. 27 would slightly expand that. One must imagine the physical experience of being written back to and told "We do not have your birth certificate". I believe it would be appropriate and constructive if when people receive the information that their birth certificate was not available “…the Authority shall, in so far as practicable, provide the relevant person with a written statement which explains the absence of information within its possession in respect of their adoption and/or illegal birth registration, and provide information to the relevant person regarding the recourse and supports available to them in locating and interpreting this information.”.

The same things happens in amendment No. 28 whereby if a person is told that the authority does not have the information then he or she would be told what to do next, and that this is not the end of the line. We discussed this on Committee Stage and I have tried to narrow it down a bit by saying "in so far as practicable" to provide written statements around the absences: was it a fire or was it that the authority never had it, for example.

The Minister rightly made the point that in some cases there will be no knowledge as to why that information is not there. This amendment suggests that where there is knowledge a written statement would be provided. The really crucial part of it is that a person would get information about the next steps available and what further recourse or supports are available. If people have gone down the route of seeking the relevant birth information from the body they believed held the information, and if they hit a wall, where do they go next? This amendment is so it is not simply "No". It is about making sure that people have that arrow. The recourse they have may simply be access to go back to whatever other birth information may exist to them in another realm, or it may simply be recourse around counselling supports. I do not know what other recourse there might be, and I have tried not to be prescriptive because I am aware that circumstances may be slightly different. I want to ensure that people do not just get a disappointing letter that tells them there is no information about them, and if they are not getting the information they would also get a letter with some arrow to supports that might be available to them. This is why I included "further recourse and supports" when dealing with the fact that there is no information about the person.

The other amendment in the grouping under discussion is amendment No. 32, which is the Minister's amendment. I had not seen these amendments. I was quite pleased with the other one. The Minister is, in fact, addressing it. That is great. Let us see. I thank the Minister for looking to this. I will let the Minister explain his amendment. I am looking at "the right of a person to make an application under Part 5". The Minister is giving two of the very specific next steps that may be available to a person. This goes some way towards the concerns I have addressed. I am delighted to see they are addressed. My apologies. I am afraid that I have only just seen the Minister's amendments now.

I welcome the Minister's amendment. I want to touch on something Senator Higgins said. We have said this all along, and in fairness to the Minister he has also said this continuously, that we must be terribly careful about how we manage people's expectations. I heard Senator Higgins talk about information not being there. If there is nothing there, there is nothing there. We must just be upfront.

There is a suggestion that there is information somewhere for everybody who was in institutional care. There is not. There are many reasons the information is not there. In some cases it was destroyed. Places moved on and people got rid of the stuff. There was all sorts of motivation, good bad and indifferent. That is the critical thing. It is about the truth and it is about belonging. We must meet it head on.

The Bill is important, but also is how it is managed. In fairness, the Minister has also said this. How we manage this and the genuine expectation that people have is important. We cannot, in any way, hype up some expectation and then say, "There was nothing there and now you need services". Of course people need ongoing support. By the very nature of their experiences there is a need for ongoing support and counselling services. This must be tempered by a really upfront and honest approach. In many cases there is simply nothing there.

I have travelled this journey with so many people and they have found nothing there. That is just a matter of fact. This is one of the things that will ultimately be managed when the legislation comes into effect for how we manage that. The Minister has said this and I have said it on a number of occasions. We must be mindful of this.

Amendment No. 32 seeks to ensure that in a scenario where a person has applied to a relevant body for birth, early life care, or medical information, and no records exist, as well as informing the applicant of this fact - which was provided for already under the legislation - the relevant body will also advise the applicant of the right to make an application through the contact preference register and to the tracing service. I am confident that, in a scenario where records do not exist, strong supports will be made available to the person.

Section 63(1)(b) already provides that the agency and the authority will support persons by helping to identify for them a relevant body that may hold records for them. That provision is there already. What I am proposing is in addition to that. Amendment No. 32 builds on that spectrum of support and ensures that where records are not found, an applicant will be signposted to the other avenues to information provided for under this Bill.

I did reflect on what Senator Higgins had said when we discussed this previously. I am not providing for a statement of why there is not information because I do not believe this would be doable in the vast majority of situations. I take on board the Senator's point that a message of "No information. The end". is not satisfactory. This amendment provides for signposting to both the contact preference register and the tracing service. I know that very little will remove the disappointment for some people when they find that there is no information, but with regard to our obligations to people and the best that we can do to help, notwithstanding the other provisions in the legislation, this at least shows them an ability to place themselves on the contact preference register, where there may be a potential for someone else to reach out to contact the person, and to use the basic service where proactively the person may be able to use that to start to re-establish those lost family links.

There are two pieces, as the Minister has said. There is a piece around what happened and why the information is not there, and there is the piece around what happens next for the individual. I believe that what happens next for the individual is probably the most important part. I acknowledge that the Minister has at least given one route forward for the individual who receives that letter, with regard to the contact register and the tracing services. This is a very positive measure.

With regard to the other part as to what happened and why the information is not there, I understand that it may be difficult to say where it is in each individual case. It is however important to note - and I say "note" because I am trying to put markers down for what we track in the next 12 months - that if certain bodies are repeatedly coming back to persons and saying, "We do not have the record and we do not have your records", and if certain people were in particular institutions, if there are multiple cases, and even for those who get referred by this mechanism to the contacts preference register or the tracing service, then there would be some investigation again, based on a collective concern.

Senator Boyhan said some information may have been lost due to accidental reasons, good, bad or indifferent, but for those situations where there is a bad pattern in relation to information not being provided, there could be some gathering again. The stakeholder forum and others is one way that this could be identified. I just want to make sure that where we get the flag, it does not just happen for the individual and that patterns are identified and followed up.

In that context, the mechanism may be there in the review mechanisms the Minister has already indicated for monitoring, if particular bodies are failing to a higher degree than others to provide persons with the relevant information. As I have said, however, of the two halves of my amendments, the one that gives the individual somewhere to go next is probably the most important part. In recognition that the Minister has provided for this to some degree in amendment No. 32, I will not press my amendment No. 27.

Amendment, by leave, withdrawn.
Amendment No. 28 not moved.

Amendment No. 29 is in the names of Senators Higgins and Ruane, and arises out of Committee proceedings. Amendments Nos. 29 to 31, inclusive, are related. Amendment No. 31 is a physical alternative to amendment No. 30. Amendments Nos. 29 to 31, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 29:

In page 25, between lines 27 and 28, to insert the following:

“Information relating to contact preference

17. In every case where an applicant is provided under this Act with a birth certificate or copy of the records that contain the birth information to which the application relates, or with a statement setting out the birth information contained in those records, the Authority shall send to the applicant, by prepaid registered post or other recorded delivery, a statement by the Authority setting out, in so far as it has established in relation to each relevant parent, whether—

(a) he or she has not made a statement under section 38(11),

(b) he or she has made a statement under section 38(11) that either of the following applies:

(i) he or she is seeking to have contact with the applicant;

(ii) he or she is willing to be contacted by the applicant,

(c) he or she has made a statement under section 38(11) that he or she is not willing to be contacted by the applicant,

(d) he or she is deceased,

(e) he or she is not willing to be contacted by the applicant.”.

We have had a very extensive discussion. I am sure that the Minister will be aware that the committee, including my colleague, Senator Ruane, and others, have had very extensive discussion on the provisions around information relating to contact preference.

Amendment No. 29 seeks to delete section 17, as drafted, and substitute a new section, which would replace the mandatory information session with a registered letter that sets out the information regarding the contact person preferences of each relevant parent. I am aware that similar amendments were put forward by the Labour Party on Committee Stage and discussed at that point.

Amendment No. 29 seeks to make it clear that access to birth certificates and other relevant information by relevant persons should be unconditional. Again, unconditional because of this being their personal information in this context. Section 17 currently provides that an applicant or relevant person must attend an information session with a designated person prior to certain information being released to them. The nub of this matter for many people is that the information includes birth certificates. Every other person in the State can access their birth certificate without an information session but persons who have experienced adoption, who are "relevant persons" under this Bill, must go through the extra tier of an information session while every other person does not. People feel very frustrated as an extra obstacle has been placed in their way. Having already been poorly treated by the State in many ways, people feel that the provision is a sustained inequality for them.

Compared with where we were a few years ago when I debated this legislation with the previous Minister there has been progress, which I acknowledge. We have moved passed the presumption of a non-sharing of information and the idea of an automatic veto. The current Minister has talked about replacing a physical information session with a phone call session but people still have a philosophical and fundamental concern about the idea of having access to one's personal information being conditional, and the fact that nobody else in society has that conditionality attached to their birth certificate. There are questions concerning a phone call. For example, how can we be certain that it is an authorised person and how does a person satisfy themselves about that aspect? The registered letter was a solution suggested by members of the Oireachtas joint committee during pre-legislative scrutiny. The suggestion has the advantage of ensuring that the information has arrived and been received, which to me is a constructive proposal. As the Minister will be aware, this section is just a red line for many of the stakeholders and survival groups.

Amendment No. 31 states: "Where a relevant person refuses, or is not in a position, to attend an information session" and information regarding the contact person in terms of preferences of relevant persons "shall instead be provided to the relevant person in writing through a registered letter". The Minister did make a point about a similar amendment that I tabled. In this scenario it would be a situation where the first measure is for persons to be asked "to attend an information session".

For a person who has a very strong objection to taking part in an information session, he or she could request this as an alternative. So in this scenario one has the engagement of the person in that sense and he or she requests that the information "shall instead be provided to the relevant person in writing through a registered letter". In my previous amendment on Committee Stage, the provision was not for a registered letter and the Minister pointed out that the amendment was inadequate. Subsequently, I have combined the idea of a registered letter with a narrower pool of people covered by amendment No. 31, who are just those persons who specifically and explicitly state that they do not attend. In that scenario, one would leave the information session as the main route but have an alternative that persons could seek, by request, which would be "a registered letter". The amendment includes the registered letter mechanism but as an option that must be sought. So this amendment just addresses those who have a huge personal objection.

I hope that the Minister will consider amendment No. 31 as it is a constructive attempt to reflect some of his concerns and some of the ideas of the committee. The amendment gives some option to those people who have particular reservations while leaving the proposal set out in the Bill as the norm in most cases. Again, it would only be the people who have a principled objection or, indeed, have physical constraints who would seek to use this mechanism.

I second the amendment.

Like Senator Higgins, I appreciate the importance of this provision. It is contact with the person involved, which is so crucial. As the Minister has previously referenced here, there are concerns about whether one speaks to the correct person, and that the registered letter is not opened by someone in the house who may not be the person that the letter is directed to, which is the essence of why a phone call is crucial as a first step. We must ensure that this matter is handled in a way that makes the person and his or her family feel that this method is being used to accommodate them as well.

Amendments Nos. 29 to 31, inclusive, relate to the information session. Amendment No. 30 entirely removes or deletes it whereas amendments Nos. 29 and 31 seek to alter the mechanism. At this point we have debated this Bill for 30 hours across the two Houses and a very significant proportion of that time has been spent on discussing this issue. I recognise the very strong and deeply held views on this point.

In terms of what I advocate, I must return to the points that I made in previous debates. Irish law has for too long prioritised the privacy right of a parent over the right of an adopted person to his or her identity and this legislation seeks to reverse that approach. In fact, this legislation entirely changes that approach by putting the protection of an individual's right to his or her identity at its very core so is a right to full and unredacted access to information in every circumstance. I think everyone in this House has agreed that this is the right approach to take.

Let me explain what happens in any situation when the Oireachtas decides to balance sets of rights of individuals and citizens, and in particular when it decides to balance constitutional rights, then a clear decision is taken to elevate one constitutional right over the other. Let us be very clear that we are elevating the constitutional right of an adopted person to his or her identity over the right of a parent to retain his or her privacy by retaining anonymity.

However, that process of balancing needs to be set out in legislation. The mechanism must be clear and must not entirely negate the right that is being made subordinate. In this case the right to privacy of the parent is being made subordinate, but that right cannot be entirely negated from the process. We are seeking to balance the two rights. We are seeking to prioritise the identity right of the adopted person, but we must ensure that the privacy right of a parent is not entirely negated because if we were to do that, the legislation risks being unconstitutional. I do not believe I am scaremongering when I say there is a likelihood of challenge here. We have seen constitutional challenges on this specific issue previously with the I. O'T case, the case that got us into this situation over the past 23 years where so many adopted people are being refused access to their information.

Regarding sections 29 and 31, there are different views on the best way to balance the privacy rights and the right to identity in the legislation. The proposal to use a registered letter 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 to secure and protect the privacy rights and ensure that the privacy rights of the parent though diminished, though subordinate, were still present and still part of this process.

A great deal of consideration has gone into this. I have engaged on this issue and have heard the concerns people have raised about what is being proposed. I have also made very significant changes to the balancing process. Originally, the engagement was to be an in-person engagement and I have now changed that to simplify it to just a phone call. Originally, the engagement was to be undertaken by a social worker. However, recognising the concern some adopted people expressed that having a social worker leading this meeting suggested they needed social work and needed some sort of counselling, we moved away from that and now the relevant person undertaking the meeting can be any official of the relevant body.

Importantly we changed the language of what was conveyed in that phone call. It moved from referring to the adopted person's understanding the importance of respecting the privacy right of the parent, something that some adopted people regarded as patriarchal and condescending. We listened to that and acted. We moved it to the relevant person's simply informing the adopted person that the expression by the parent of a no-contact preference is an exercise of that parent's privacy rights and that is all that is conveyed. These changes have all been made to reflect the concerns raised in this process. We have gone as far as the legal advice my Department has received will let us go. If the legislation does not contain the appropriate balancing mechanism, it is at risk of being found unconstitutional thereby risking the overall goal which is the release of full unredacted information in every circumstance. I am not willing to risk that goal and that is why I recommend this approach to the House.

I thank the Minister for his engagement. I understand he is in a difficult position in this regard. Because it is such a core issue of principle, I need to press the amendment. I believe it has progressed but that additional obstacle in respect of a birth certificate is symbolic. However, I acknowledge the Minister's sincerity in his engagement on it.

Amendment put and declared lost.

I move amendment No. 30:

In page 25, to delete lines 28 to 40, and in page 26, to delete lines 1 to 19.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 31:

In page 26, between lines 9 and 10, to insert the following:

“(4) Where a relevant person refuses, or is not in a position, to attend an information session, whether in-person or electronically, information in accordance with subsection (2) shall instead be provided to the relevant person in writing through a registered letter.”.

I second the amendment.

Amendment put and declared lost.
Government amendment No. 32:
In page 27, between lines 27 and 28, to insert the following:
“(6) A relevant body, when complying with section 9(9), 10(7), 11(3), 12(3), 15(5) or 16(8) shall, in addition, inform the applicant concerned, as relevant and appropriate, of his or her right or, in the case of an applicant who has not attained the age of 18 years, the right of a person to make an application under Part 5 and under section 38(3).”.
Amendment agreed to.

As it is 9.57 p.m., the debate on this Bill must now be adjourned in accordance with the order of the House today.

Debate adjourned.
Cuireadh an Seanad ar athló ar 9.57 p.m. go dtí 10.30 a.m., Dé Céadaoin, an 15 Meitheamh 2022.
The Seanad adjourned at 9.57 p.m. until 10.30 a.m. on Wednesday, 15 June 2022.
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