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Seanad Éireann díospóireacht -
Wednesday, 18 May 2022

Vol. 285 No. 5

Birth Information and Tracing Bill 2022: Committee Stage

Section 1 agreed to.
SECTION 2

Amendments Nos. 1 to 4, inclusive, are related and my be discussed together, by agreement. Is that agreed? Agreed. Amendments Nos. 1 and 2 are physical alternatives.

I move amendment No. 1:

In page 8, line 15, after “State” to insert “and placed for adoption outside the State”.

In the context of amendments Nos. 1 and 2, the concern is that, as currently constructed in the Bill, the definition of "adopted person" under the section seems to only include persons whose adoptions were facilitated by the Adoption Board, a registered adoption society, the Adoption Authority of Ireland, AAI, or Tusla. There are several reasons this is problematic. First, the Adoption Act 1952 came into force in 1953. At that time, the Adoption Board did not exist and the adoption societies were not registered. This means that any person adopted outside the State whose adoption was facilitated prior to 1953 might not be included under the provisions of the Bill as it stands.

The second concern is that this is not simply an unfortunate issue of timing. These adoptions were knowingly excluded from the adopted children's register even when adoption was legalised in 1952. In his contribution to the Seanad debate on the Adoption Act 1963, the then Minister for Justice, Charles Haughey, stated, "the Adoption Board have no function in regard to a child taken out for adoption in America". We know that many of the adoptions to America and elsewhere were illegal. There is a concern that there may be a large number of adopted persons who were subjected to illegal arrangements and whose rights may not be protected under the Bill. Amendment No. 1 is our attempt to rectify that and make it clear that the Bill would also cover those placed for adoption outside the State.

Amendment No. 2 is effectively an alternative seeking to address the same issue. In the context of speaking about adoption only coming onto a legal basis in 1953, it is worth noting there was heavy lobbying against it. The Minister will be very aware that there have been times when the State has tried to put things on a different, legal or State basis and those who were in relationships with the State for the provision of services have often lobbied against such changes. I refer to the mother and baby home report in that regard. Nonetheless, I think the Minister will agree that this is a serious omission. I hope he can address it.

As I understand it, amendments Nos. 3 and 4 are part of this grouping. Amendment No. 3 introduces a new paragraph (f) under section 2 that specifically includes all persons subject to an illegal birth registration as being listed under those defined as being adopted people born in the State. The legislation currently 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 illegal registrations ceased on 31 December 1980. Any person illegally adopted outside the 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.

Similarly, amendment No. 4 is a variation. It introduces a new subsection (1)(e). It is the same principle of ensuring that those who may have been subject to illegal registrations after 31 December 1980 are recognised properly under the Bill.

These are two different issues but both relate to the core principle that if we are trying to move forward and make redress, we need to ensure it is not a piecemeal approach and that all relevant adopted persons are able to access their rights under the legislation, explicitly including those who were adopted overseas and those who were illegally adopted or whose adoption involved an illegal birth registration after 1980.

I thank the Senator. At all times in the work that has been ongoing on the Bill, including prior to the initial drafting of the general scheme, the detailed work that took place during pre-legislative scrutiny and the detailed Committee and Report Stages in Dáil Éireann, we have sought to clarify and strengthen the definitions contained in the legislation to ensure that as wide a range of people as possible will be able to use the very important provisions of this legislation to get full and unredacted access to all their information. We are confident that we have achieved that in terms of the provisions of the Bill laid before Seanad Éireann. As such, we consider the four amendments in this grouping as unnecessary because these issues are already addressed within the Bill.

Amendments Nos. 1 and 2 propose changes relating to persons who were adopted outside the State. I assure the Senator that these scenarios are provided for in the existing definitions of adopted persons.

I specifically addressed concerns that were raised about this issue in the Dáil, including after previous iterations of the legislation through an amendment I introduced on Report Stage. That amendment was to insert section 2(1)(b)(ii), which states: "removed from the State by any other person for the purpose of the effecting of his or her adoption outside the State, and whose adoption was effected outside the State,". This amendment ensures that, in all cases, a child born in Ireland who was sent for adoption abroad is included. The person does not have to have been sent by the Adoption Authority of Ireland. The provision covers all children who were sent outside the State for adoption, so I believe we have covered the issue Senator Higgins has raised.

Amendments Nos. 3 and 4 relate to including a person subject to an illegal birth registration and illegal adoption in the definition of "adopted person". These amendments are unnecessary as the persons to whom they are relevant are already sufficiently provided for. They are provided for in the definitions of "incorrect birth registration" and "relevant person". Furthermore, seeking to include them in the definition of "adopted person" is counter to its meaning as, in the scenario of an illegal birth registration or illegal adoption, an adoption was not legally effected. Therefore, the person subject to it is not an adopted person.

I thank the Minister. I am glad. I recognise the change on Report Stage in the Dáil that relates to amendments Nos. 1 and 2. In light of that, I am going to consider the legislation again to determine whether I feel it satisfies what I am seeking to achieve in amendments Nos. 1 and 2. I believe it may. In that context, I will not press the amendments but reserve the right to reintroduce them. However, I would appreciate it if the Minister offered clarity on amendments Nos. 3 and 4. I accept his point that, technically, a person who was illegally registered is not adopted per se. The illegality makes the adoption incorrect but there is a genuine concern. I would like the Minister to elaborate on how he captures incorrect adoptions and illegal birth registrations and why he is confident the Bill will cover affected persons. Is it through the phrase "relevant person"? I would like clarity on how exactly I can be assured the various provisions and entitlements in the Bill will apply to an affected person.

Regarding the Minister's suggestion that the definition of "relevant person" does not just include an adopted person but also a person who has reasonable grounds in the scenario described, the problem concerns the reference "incorrectly adopted". The Minister will be aware that we are trying to clarify the difference between incorrect and illegal through amendment. I am trying to capture those who have been subject to illegal birth registration. Could the Minister elaborate a little more on that? I may be happy to withdraw the amendments on the matter also.

My amendments relate specifically to persons who were illegally adopted. I realise the Minister is saying that because the process was illegal, there was not an adoption. Nonetheless, many persons, especially those abroad, may have been considered as having been adopted and may have exercised rights in that regard. They may have been treated by their new state as having been adopted. I am aware that there are provisions to try to get at this, which we will consider later, and that it is a little messy, but I just want to be clear that people are covered.

I thank the Senator. They are covered. The people who can use this legislation are covered in the definition of "relevant person", which means a person who is one or more of the following: an adopted person; and a person who is or has reasonable grounds for suspecting that he or she is the subject of an incorrect birth registration.

There is a third category that is not relevant to this discussion. I am referring to someone in the second category who has reasonable grounds for suspecting he or she is the subject of an incorrect birth registration. That is very important. We kept the definition wide. One does not have to prove one is the subject of an incorrect birth registration to qualify under the definition of "relevant person" if one has reasonable grounds for suspecting one has been subject to an incorrect birth registration. At any stage, one will fall within the definition of a "relevant person" and be entitled to use the provisions of this legislation in accessing information, tracing etc. I hope I have reassured the Senator.

I accept the Minister's point on "relevant person", so I will not press amendments Nos. 3 and 4. However, I am not satisfied that, in the section on relevant persons, the concept of incorrect birth registration covers fully the concept of an illegal birth registration. I believe they are slightly different. I do not believe "incorrect" is a frame that can incorporate "illegal". "Illegal" needs to be named, but I am happy not to press these amendments and to try to tackle the issue of illegal registration when we come to the amendments on "relevant person". I reserve the right to reintroduce the amendments with the leave of the House.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 8, line 15, after "State" to insert "and placed for adoption outside the State and whose adoption was effected outside the State".

Amendment, by leave, withdrawn.

I move amendment No. 3:

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

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

Amendment, by leave, withdrawn.

I move amendment No. 4:

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

"(c) a person who was subject to an illegal birth registration,".

Amendment, by leave, withdrawn.

Amendments Nos. 5 to 7, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 5:

In page 9, between lines 24 and 25, to insert the following:

"(d) records of any vaccine trials in which the relevant person was a research subject,".

These amendments are on the care arrangements and other issues and relate to the kinds of information persons are accessing. I am seeking granular health detail. I am aware that there are provisions in respect of health information in the Bill but I am seeking provisions on "the records of any vaccine trials to which a relevant person might have been a research subject", "the relevant person's medical records from birth until the time of placement, including x-rays, tests, vaccines" and, with regard to the caring arrangements, "any institution, agency, organisation or individual involved in the care of children and mothers who were separated from each other". This is trying to widen the scope concerning who might be covered under the information provisions. Basically, the aim is to ensure that all information is covered, not simply the very minimal version. For example, amendment No. 5 is not about the simple fact of whether one has been vaccinated but about records of vaccine trials. I am trying to widen the scope. The Minister will be aware that the question of medical ethics and transparency involves a wider discussion, separate even from that on adoption. That is why I am seeking a provision not simply on the fact of whether one has been vaccinated but also on records of any vaccine trials.

The availability of information and information of different types on various issues is central to what this Bill is about. In discussing the first group of amendments, we referred to who may use this legislation. We are now talking about what they may look for and the type of information they may seek. As we know, there are rights to broad categories of information provided for in this legislation. These include rights to the birth certificate, birth information, care information, early life information, incorrect birth registration information and to provided items. As such, I argue that the amendments being suggested by the Senator are unnecessary. The information set out in the amendments proposed by her is already encompassed by the definition of "early life information" in the Bill as passed by the Dáil.

Paragraphs (e) and (f) of the definition of "early life information" contained in section 2 state in (e): "information on his or her health, physical or emotional development, " and in (f) "information on any medical treatments, procedures or vaccinations administered to him or her,". There is also a definition of medical information within which information about vaccines would fall as well. The information about vaccines is explicitly covered in the definition of early life, and it is also implicitly captured in the definition of medical information. I believe the amendment is superfluous.

It is unclear to us what is being proposed in amendment No. 7, and on that basis we cannot accept it. From listening to the Senator, I think what she seeks to include is already encompassed in the definition of "care arrangement". Paragraph (d) provides for "an arrangement under which a child was cared for as a resident of an institution specified in the Schedule". I believe that encompasses the sort of institutions that might be within the definition provided there, but I am not entirely clear on that. I hope that reassures the Senator on the issue of vaccines.

I agree with the Minister on the question of the vaccines in terms of the placing. The early life section or the medical section would be better than the care arrangements section. Again, we are adapting to the Bill as it changes. That is a better section, but I note that what I am seeking in terms of vaccines is slightly different. It is not simply a record of a person being vaccinated, but of having an entitlement to records of vaccine trials. If persons were one of 12 or 100 subjects in a vaccine trial, they would not simply be informed that they were vaccinated but if they were part of a vaccine trial they would be informed in relation to the records of the trial, what it was being used to develop and who was involved in it. Because the person was effectively being used-----

We could not get the names of other persons.

No, we could not get the names of other persons, but we could certainly have information in respect of the records of a vaccine trial. For example, if particular drugs or vaccines were bring trialled or developed. It is one thing to state in a record that a person was vaccinated and another thing to say a person was part of a vaccine trial and to outline the stage of development of the vaccine, what it was part of and who was being paid for it. There is a lot more information relating to a vaccine trial. I will not press the amendment now.

I accept that amendment No. 6 probably is not needed and is covered by what is in the Bill, but in amendment No. 5 there is something slightly different and it is just a case of clarifying the position. Simply saying one received X or Y vaccine would not be an adequate coverage of the fact that one was part of a vaccine trial, for example. I may introduce an elaboration of the amendment on Report Stage. We might even seek to have vaccination covered in the section on early life care and see if it is something that could be clarified. It is a very different thing to be vaccinated and to be part of a vaccine trial. I will not press the amendment, as I agree with the Minister on the placing.

Amendment No. 6 is probably adequately covered by the medical information and the other provisions the Minister has outlined. Regarding amendment No. 7, the problem is that the care arrangements, as currently described in the Bill, almost describe the formal care arrangements to an extent, in terms of the nursed out or boarded out arrangement. It is those institutions that may be part of the Schedule. The Minister will be aware that there are concerns around what is or is not in the Schedule. The purpose of paragraph (d) in the amendment was to capture the wider arrangement that might not be a formal nursing out or boarding out arrangement, a foster care arrangement or an arrangement under the Child Care Act. We know that there were informal arrangements that took place as well, that may not have happened under the particular Act, be it the Child Care Act or in relation to whatever limited organisation or institution or to a formal nursed out or boarded out arrangement. The amendment seeks to capture those informal care arrangements that we have heard of.

I am also conscious that one of the groups I will be talking about later in terms of the Schedule is psychiatric institutions. That is why we have included a reference to "care of children and mothers" in the amendment. We know there are a lot of cases, for example, of mothers being sent postnatally to psychiatric institutions, and in one case I am aware of a person spending the rest of her life there. I am trying to capture the wider spaces and ensure things do not fall through the cracks.

I know the Senator is not pressing the amendment, but on the point on the vaccine trials, we must recall that on the substantive provisions to do with the release of information, it is about the release of information and a copy of the records on all the different headings. For example, section 15 refers to "Relevant body or Authority to provide medical information". I know it is not care information, but they are mirrored. Section 15(2)(a) states: "shall, to the extent that it is practicable to do so, provide the relevant person with a copy of the records specified". That is repeated for the other provisions as well. It is not the bare information that a person was subjected to a vaccine trial, full stop. It is copies of records as well. I hope that offers some reassurance on that first point.

In terms of the definition of "care arrangement", we refined this as we went along and we feel that it now captures both the various formal nursed out or boarded out arrangements, fostering under the Child Care Act, and arrangements where someone was placed with an adoptive parent but an adoption did not materialise in the end.

Our approach to the catch-all is in paragraph (e), "an arrangement under which a child was cared for as a resident of an institution specified in the Schedule". We believe that is the most effective way. What Senator Higgins is putting forward is incredibly broad and it is hard to understand the remit of that. We have provided a remit. We have provided a Schedule and the Schedule can be amended to include additional institutions, as necessary. When concerns were raised about the Schedule or who falls within or falls without, I did ask for examples, as we added that because someone had given us an example of a person who was in an institution for a number of years and who eventually left and returned to their mother. They are not adopted, fostered or boarded out and they could not have used the provisions, so we did make a change to reflect the unique situation, but we believe we have captured those situations now and the matter is addressed under the current definition of "care information".

In terms of the record, again the danger might be that it is a record of vaccination, but we can come back to vaccination trials on Report Stage. There is something different in terms of the records of vaccine trials versus the records of routine vaccinations. That might need elaboration, but I am not going to press the amendment.

Because it is such an interlocking Bill, there are questions over where many of the amendments get captured. The provision as I outlined it is quite wide in terms of those involved in care, but it is because the Schedule is insufficiently wide, if the Minister knows what I mean. The other way that some of the concerns could be addressed, for example in the case of psychiatric institutions, is by addressing it in terms of the Schedule. I know the Minister sees the Schedule as the catch-all, but in its current incarnation it is not really a catch-all. I have given one example, but there are others that are not currently covered by the Schedule and we do not have a guarantee that they will be. That is where I am coming from. With a lot of the amendments, it is an attempt to come at it from one or two different places. I am very open to discussion. I do believe we are trying to get to somewhere similar and it is a matter of what tools will get us there. I am not going to press amendment No. 5.

Amendment, by leave, withdrawn.
Amendment No. 6 not moved.

I move amendment No. 7:

In page 9, between lines 24 and 25, to insert the following: “(d) any institution, agency, organisation or individual involved in the care of children and mothers who were separated from each other,”.

Amendment put and declared lost.

I move amendment No. 8:

In page 9, between lines 36 and 37, to insert the following:

“(b) records about the person, including correspondence and other records associated with the administrative process surrounding the relevant person’s care.”.

This is a consequential amendment. It follows from the committee’s pre-legislative scrutiny report, which recommends that the Bill be amended to provide for statutory right of access to administrative records, wherever they are held, of all adoption institutes, adoption agencies, institutions, State bodies and others involved in forced family separation for natural birth mothers, survivors, adopted people and other people placed in care.

On amendment No. 9-----

We are discussing amendment No. 8 only.

I am rummaging through my papers. I want to be very clear about what I am speaking to.

We are dealing with amendment No. 8.

Amendment No. 8 relates to "records about the person, including correspondence and other records associated with the administrative process surrounding the relevant person’s care". It proposes to extend some of the provisions relating to what information might be provided, including in the administrative process. That would include information on the correspondence between somebody who may have provided care and an institution, for example. In circumstances in which people were boarded out and did work, and in other examples, it would give a texture to what the arrangements were, not the mechanical arrangements for care but, rather, what the relationship was between those who were arranging for such care and those who were providing it. Those are the administrative processes that surround a relevant person’s care.

The amendment seeks to go a bit deeper. It is similar in a way to the question of vaccine trials, whereby persons would be able to access the information about them but also be able to see where they fit into patterns of arrangements. Much of the time people want to understand not just what happened to them but to have some understanding of why it happened to them. The amendment proposes a slight expansion of the kind of information to be provided in relation to care.

I thank the Senator. My response will be somewhat similar to my response to the point she made about vaccines. Much of what she is seeking to address in the amendment is covered under the definition of “early life information”. That is where the matter is most appropriately addressed. The various pieces of information provided for under early life information, include, in paragraphs (g) to (k), inclusive, information on any medical treatments, procedures or vaccinations administered to him or her; information on the duration of the period during which his or her mother remained with him or her; information on whether he or she left the place referred to with, or separately from, his or her mother; information on whether any person, whether a parent or other genetic relative, visited or inquired after him or her; information on whether any person made arrangements for the adoption of the person, whether or not an adoption was effected in respect of him or her; and, where an adoption was effected, the name of each of the adoptive parents.

There is therefore a substantial amount of information provided under the early life category that deals with those issues of care of the individual. It is worth remembering that in each of the information categories, namely, birth information and early life information, the term “and includes” is used in respect of list. As such, the list is not definitive but it includes those as categories under which information can be released.

As the Senator knows, I will be producing guidelines in respect of the application of the legislation by the various bodies. Central to these guidelines will be a presumption of release. The fact that one particular piece of information is not necessarily listed under early life information or care information does not preclude its release by a body in the future. I believe the vast majority of what the Senator proposes in her amendment on care information is already provided for release under early life information.

To clarify, there is a lot of information in relation to adoption under the early life definition. There is that kind of granular detail but there is slightly less information on care arrangements. One of the reasons it is relevant is that some of the care arrangements, including some of the boarded-out arrangements and others, included situations which were exploitative of child labour. Some of them were abusive and some were problematic in other ways. The names, details and mechanics are there. The reason we raised the question of the correspondence around the arrangements relates to whether there had been concerns, issues or wrongful expectations in relation to a child when he or she was being boarded out or fostered out. That kind of mechanical information about where a person went, when they went and for how long is present. However, I included that amendment around issues like correspondence to give texture to why this happened and what the experience was. That is what I was looking for.

The Minister said the list includes information but is not limited to that information. He will be aware, however, that a minimalist approach to giving people information has been taken for decades. People have felt that they are squeezing blood from a stone in trying to get information. Tusla, the Adoption Authority of Ireland and the various institutions should not be given the benefit of the doubt in terms of an assumption that there will be an expansive interpretation of this Bill. People's experience has been that they are given the absolute bare minimum and reasons are found not to even give them that. While some of these provisions may not seem necessary in a circumstance where the Bill is generously or widely interpreted, these are the reasons we are trying to copper-fasten them in the legislation. I agree with the Minister that this is a level of detail that we should not need to insert to a Bill. However, he will understand the reason people are looking for it.

The Minister noted that the Bill mentions the name, where the person was in charge, the time, the place and the dates. This is mechanical information about the care arrangement. There may be correspondence indicating where a child was found, how he or she was treated and what work the child was expected to do. People want to have that information as well. Does the Minister know what I mean?

This is similar to the previous discussion. Section 11 relates to the "Relevant body to provide early life, care information or incorrect birth registration information on application by relevant person aged 18 years or over". Subsection (2) states that, subject to subsection (3), a relevant body on application to it made under this section "shall, to the extent that it is practicable to do so, provide the relevant person with a copy of the records it holds". We are not just talking about the information. If the dates and care information are held in a letter, that is the record. It is not the case that people will be given a file saying, "You were in X or Y". They will be given a copy of the records as well. That was really important. The Senator has tabled an amendment that will be discussed later. In an earlier version of this Bill, we accidentally omitted the records. We replaced that on Committee Stage in the Dáil. It is not just information but also the copy of the records. By providing a copy of those records, we give that colour and texture of which the Senator speaks and a better understanding. It is not the bare information but the context as well.

The Senator made a wider point on the issue of release. I know from my engagement in the past two years with survivors and people who were adopted that there is deep distrust and deep dissatisfaction with how these issues were dealt with and the approach to the release of information. We are starting to change that through this very detailed Bill. We are not just leaving it there, however.

We have the implementation group led by my Department, which brings together my Department, Tusla and the AAI to bring a joint approach to how we deal with requests for information and ensure the principle of release of information is at the core of what the Department, Tusla and the AAI are all doing.

Similarly, we have the guidelines that I will be issuing. Again, the guideline central to that will be the release of information. Third, we have resourcing. We have additional resourcing for Tusla and the AAI in order that they have the people, techniques and new skills within them to undertake the application of both the release of information but also elements like tracing. Therefore, we are doing what we can both legislatively but also practically and administratively to bring about that much-needed change in approach to the release of information. What the Senator is saying is right, but we are not just leaving it to the law. There are actions being taken on a range of fronts to change that culture.

Maybe I will table an amendment on Report Stage to ensure that "records" is construed as including correspondence. I think that might be useful in that regard. I withdraw and reserve the right to reintroduce.

Amendment, by leave, withdrawn.

Amendments Nos. 9 to 13, inclusive, amendments Nos. 56 to 59, inclusive, and amendment No. 61 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 9:

In page 10, line 29, before “information” to insert “medical information, including”.

Amendment No. 9 is just a slight change-around with regard to medical information. At the moment, the line under subsection (f) says-----

Senator Higgins is speaking to the group. She is speaking to all the amendments.

What is the grouping?

I will go through the group again briefly. They are amendment Nos. 9 to 13, inclusive, amendments No. 56 to 59, inclusive, and amendment No. 61.

I do not think they are very appropriately grouped, to be honest.

It is agreed by the House now.

Fair enough. There will probably have to be a bit of back and forth because that clump actually deals with quite different topics. That is why I was surprised by the grouping.

In terms of amendment No. 9, at the moment under subsection (f) it refers to "information on any medical treatments, procedures or vaccinations administered to him or her." I am specifying that it should refer to “medical information, including” information on any medical treatments. It is just to get that wider definition of "medical information". I know at a later stage, the Minister defines medical information as "relating to his or her ... history" but in this section, in terms of early life information, I feel that medical information should be double referenced. That is more of a technical issue so that it does not fall between the gaps and we do not end up with a narrow version of medical information.

There are a couple of details in respect of amendment No. 10 that I think are really important. One is this idea of the "genetic relative". The Bill states:

(a) his or her mother or father,

(b) a child or parent of his or her mother or father,

(c) a sibling ... whether the relationship is of the whole blood or half blood, or

(d) a person to whom, but for the adoption of any person, paragraph (b) or (c) would apply;

Again, why are we narrowing this to "genetic"? We have the Children and Family Relationships Bill 2015, which recognises that there are different kinds of family relationships. There could be people who have married into a family, for example. There may be people who may not be blood relatives but are effectively relatives of a person and who are the relevant people. Given that we have the Children and Family Relationships Bill 2015 and we have moved on from that definition, I am concerned about going back to a kind of genetic definition of relatives in this regard. I know maybe there is a relevance for this with regard to the medical information side but in general, I think there is a narrowing of that definition of relative. I am uneasy about it. It also could end up excluding persons. It may be that it is being inserted with regard to how it may relate to medical records. That might have been what was in mind but it is nonetheless kind of the version of relatives that is going in. There is another in terms of a qualified relative, which I also have problems with, that comes in another later section of the Bill. However, I am concerned that this could actually end up excluding other persons who are relatives. It is out of sync with where we are in society and out of sync even with the tone of the Children and Family Relationships Bill 2015.

Amendment No. 11, and this will be one of the things that is most important for somebody in his or her record, relates to information about persons who may have inquired about someone when he or she was in an institution. One can imagine looking back and trying to figure out one's own early life, and how important it would be to see a record that said somebody visited or inquired. I think it is unacceptably narrow. This is probably one of the clauses I feel most strongly about in the Bill. I cannot imagine what it is to look at a record and see that somebody called, asked or inquired and not be able to find out who they were. Three amendments deal with this, namely, amendments Nos. 11, 12 and 13.

The Bill at the moment states, "whether any person, being a parent or other genetic relative of him or her, visited or inquired ..." Again, perhaps it was not a relative by blood who inquired but another relative or somebody else who was not in that blood or half blood framing. Amendment No. 11 would insert “or any other person”. Maybe it was a teacher who inquired about what happened. Maybe it was a person who cared or a friend who inquired. Maybe the person was, in fact, a partner or former partner who may not be a relative, or who may have been a former partner or new partner of a person's mother, for example. There are lots of people but it is this idea of narrowing. Why are we narrowing who gets reported in terms of having inquired about or visited a person? Again, I do not see why that is being narrowed. The wording of "any person, being a parent or other genetic relative" immediately shrinks what visits or inquiries are reported on.

The next section about which I am concerned is the deletion or replacement of the phrase "but does not include the name of the other person." I am suggesting in amendments Nos. 12 and 13 that the Bill either would say, “which shall include the name of the other person where that is known,” or else just delete the phrase that says, "but does not include the name of the other person." Again, this is that same narrow presumption. A person will get told in that case, even under the Bill as it is, that his or her father or sister called 15 times to the institution to try to inquire, but the person will not be told his or her sister or father's name. Again, these are not persons who have opted out based on even a no-contact preference. This does not even reference the no-contact preference in the register. This basically assumes that somebody who has inquired about a person or visited that person in an institution will not want his or her name shared, and that takes precedence over the person knowing he or she was visited or inquired about, in this case by a parent or genetic relative, or, if I have it in the wider definition, which I feel it should be, any person.

Perhaps it is a lingering from the old version of the legislation that needs to be untangled but given the changes that have taken place in other parts of the legislation and that we are now, as the Minister described it, going with this presumption of information, it seems like an anomaly and a double restriction that is embedded into finding out who cared and who inquired about the person.

I will speak again on the other amendments. I am not closing the debate.

I will speak to amendments Nos. 9 to 13, inclusive.

Amendment No. 9 seeks to include the words "medical information" in the definition of "early life information". What the Senator is proposing is not necessary. The information set out in this category gives clear direction to relevant bodies that health and medical information on the applicant can be released. The tripling or quadrupling down that the Senator is proposing is not necessary. It is very clear with regard to the release of medical information.

Amendments Nos. 10 and 11 seek to amend subsection (1) of the definition of "early life information". As currently drafted, the subsection provides for information on whether a genetic relative visited or inquired about the relevant person. While it includes the degree of relationship, it does not provide for the name of the person visiting. I do not agree with the proposal to remove the term "genetic relative". Genetic relative is broadly defined in the legislation. It includes a sibling, an aunt, an uncle or a first cousin, so there is a wide range of family members whose visit to, or inquiring about, the relevant person will be recorded and information about that visit can be released. It is also important that records of other people visiting can be released under other parts, so records of visits by persons who made arrangements for the child adoption or care arrangements, and there is a very broad interpretation of care arrangements such as social workers or personnel of adoption agencies, can be released under the category of care information, and names can be released there.

On amendments Nos. 12 and 13, the legislation seeks to allow an adopted person know that he or she was visited and lets the adopted person know the degree of relationship between him or her and the person who visited. If it was the mother or the father who visited, under the provisions of this legislation those names can be released. Under the legislation a relevant person is entitled to the name of his or her mother and father. However, there is a balancing mechanism provided in this section in terms of whether the release of other people's names should be allowed. What the legislation provides for is to identify that relative's existence and that relative's efforts to ascertain information about the relevant person, and the facility of the tracing mechanisms in this legislation can be used.to confirm that the relative, who is not a mother or father, wishes his or her name to be released to the relevant person.

Where, for example, a sibling has made an inquiry about a relevant person, the relevant person will be told that somebody who is a sibling made an inquiry about the relevant person and the relevant person can use the tracing mechanism in the legislation and the tracing service will inquire after the sibling. If the sibling is dead, his or her name can be released to the relevant person. If the sibling is still alive, the sibling is asked if he or she wants his or her name to be released to the person. In a situation where we are not referring to a parent, we have provided a means whereby a relevant person is notified of the existence of this person, is notified that this person sought information about him or her and through the tracing system is provided with a mechanism whereby that sibling or relative can give his or her consent to the release of his or her name to the relevant person.

Senator Higgins should speak to the group of amendments if she can.

It is a very large group and they are quite different topics.

I find the Minister's response unacceptable. The definition of "genetic relative", and the Minister did not address the question, includes full-blood or half-blood relative. That is not a very wide definition. I do not understand why there is still this lingering theme of how much it can be shut down. It is still there in that definition of "genetic relative". It is the sibling, uncle, aunt or first cousin of his or her mother or father. Is a cousin of the relevant person included, who is clearly related to the person? That is not clear. If it is a first cousin of the relevant person or if it is a first cousin who is an adopted first cousin who is not, in fact, a blood relative, are they covered?

As the Minister pointed out, genetic relative is not simply related to the medical area. It is being used in defining whether one gets told that somebody inquired. If a non-blood relative, who is not full-blood or half-blood, inquired, is it not worth informing somebody of that? The current framing is "a sibling, uncle, aunt or first-cousin of his or her mother or father, whether the relationship is of the whole blood or half blood" so it is not a cousin of the relevant person. That person cannot inquire. All these things might seem broad in the generality, but when the relevant person is looking at a record and if somebody has inquired about the relevant person, the relevant person perhaps would not be told, if that person was just a cousin, that the cousin had inquired about him or her. That is how it reads. One would not be told if another person had inquired. In fact, under the legislation the relevant person will not even be told if another person who is not related to him or her had inquired, even if the person might have inquired multiple times. Perhaps the person came 20 times to ask, and that will not be in the records the relevant person will get about his or her early life. The person might have visited the relevant person ten times and it will not be in the early records. I do not understand why. I do not know why we are trying to narrow it down. That is even leaving aside the releasing of the name. It is just being told one was visited or inquired about.

Then there is the Minister's point about these presumptions and the balancing act because there is another provision. We have been told there is information and tracing. They are separate. This is about information. Frankly, if somebody has inquired about or visited the relevant person, that is information that is relevant to the relevant person. Under a subject access request, one would be entitled to that information so I do not understand why this is in the Bill. I ask the House to bear in mind that one of my amendments simply deletes that. One amendment provides that one shall have the name but another amendment simply deletes what is a legislative prohibition on sharing the name, but does not include the name of the other person. This is saying that early life information will not include the name of the other person. If the Minister wants to leave it in a space where it will be determined in a balancing act, then he should simply remove that phrase and let it be determined on the balancing act in respect of each individual query. I have an amendment with provides that one shall be entitled to it. If that is too far, the in-between and balancing thing to do is to not have a prohibition and not have a mandatory entitlement. I have suggested an entitlement and the Bill as it is suggests a prohibition. I would remove reference to how the name of the other person would be treated altogether. That is the in-between piece which allows relevant laws, including general data protection regulation, GDPR, laws, to be applied. Otherwise, we are creating something that is in tension with that.

I have a question. Regarding the genetic relative, is it not very important for the illegally registered people who have no files that it is necessary to have the genetic link in the Bill? I am seeking clarity there. The genetic part is very important for the illegally registered.

I certainly think it helps and gives clarity in that circumstance of illegal birth registration.

In terms of the release of the name, this is something on which I and the team in my Department have engaged extensively with the Office of the Parliamentary Counsel.

It is something that has been raised at other stages of the debate on this legislation. We are talking about a balancing test that needs to be applied to the release of other people's names to an individual. The legislation provides that parents' names will always be released to individuals. That is essential for their understanding of their identity. With this legislation we are seeking to vindicate an individual's right to their identity. It is impossible for someone to know their identity without knowing the name of their mother and father. It is not impossible for them to know their identity when they do not know the name of a sibling. That sibling or cousin may have visited many times, as Senator Higgins outlined, but for whatever reason they may not wish their name to be provided to the person involved at this stage in the process. That is a balance. Particularly where families have been separated, there needs to be consent on both sides in order for a family reconciliation or some coming together of a family to take place.

This provision gives the relevant person the information that they have a sibling or a cousin. It gives them the information that that person visited them. Other provisions of this legislation provide a mechanism whereby if there is agreement on both sides, names can be shared, information can be shared or contact can be maintained. However, to vindicate the identity rights of the relevant person it is not essential that the name of someone other than their mother or father is provided to them. We have gone back and forth with the Office of the Parliamentary Counsel on a number of occasions to ascertain how far we could push this. We have been told that the existence of another relative and the nature of that relationship can be provided but the name cannot. However, we have a mechanism through tracing where, with consent, a name can be shared and contact potentially established.

I will be frank with the Minister; that is completely wrong. It is the same argument I had back in 2017 when I listened to the exact same discussions about birth certificates. I sat in ministerial offices hearing advice from Ministers. This was back when there was the assumption of a preference for privacy versus identity, with the assumption being made wrongly and, in fact, interfering with private life. This Bill wrongly assumes that someone who has made inquiries or visited somebody does not want their name released. It literally legislatively states that the name on that record would not be released at that point. That was the assumption back in the early iterations of this Bill in the previous Oireachtas which I thought we had moved past.

I listened to those exact same arguments at that time and we pointed out that it was wrong. It was found to be wrong and incompatible with GDPR. Measures needed to be put in place afterwards. We went through all these issues, as well as the fact that it needs to be treated on an individual case-by-case basis rather than making a blanket assumption. It is not simply about the right to identity. That is one part of this but there is also a person's right to personal information and subject access requests, for example. There is the full spectrum of what that covers. This is a line in the Bill which is at odds with what people are entitled to. It also makes assumptions about the other person. I have enormous respect for the Office of the Parliamentary Counsel and the Attorney General but in this area the advice has often been slow to reflect general data protection regulations. In respect of this matter, on at least three occasions I have been told things were not possible and it subsequently emerged that they were.

I will press one of the amendments. I will not press the deletion amendment. I urge the Minister to examine that again because I think it is a fundamental mistake and inconsistent with certain rights. The State is, in fact, prohibiting something. What if someone visited 20 times and asked for the person to be told they visited or inquired? Under the Bill they still cannot have that information shared unless they have a letter or other correspondence they submitted, which they may have, but they may have just inquired multiple times and requested it. They may not have sent in a letter. People should not need to jump through hoops to find each other.

With respect, the tracing service is a separate piece. This relates to information. It is not solely about identity; that is the birth certificates. It relates to information. Somebody visiting a person or inquiring about a person is information relevant to that person. To prohibit in legislation the name of the visiting person from being released as part of a record of the fact of them having visited the person is not appropriate and is simply wrong.

I have other matters to deal with because this is a very large grouping. Amendment No. 56 would delete the words “to the extent that it is practicable to do so” in respect of providing the relevant person with a copy of the records. The concern relates to how the term "practicable to do so" might be interpreted. I understand there are established uses of the word "practicable", but I would be concerned that this needs to be copper-fastened to ensure that "practicable to do so" does not become "might be quite difficult and would require resources". We cannot have someone saying, "We may not have access to those records and we will have to track them down somewhere because they were put in another location." We need to be clear on how the term “to the extent that it is practicable to do so” is to be interpreted. We need to ensure that time or financial resource constraints are not considered sufficient grounds for determining that an action is not practicable.

Amendment No. 57 seeks to insert the words “the personal data of the relevant person”. That just gives a slightly wider frame of personal data and puts it in line with the GDPR framework of personal data of the relevant person.

Amendment No. 58 inserts a requirement to "provide the relevant person with a summary of all relevant records it holds, including information to which the application does not relate, and shall offer to supply the relevant person with the additional records upon request". If they require something, they should get the specific thing requested but they should also be told the authority also has records A, B, C, and D. That would again prompt the person that they have the right to apply for those records. For example, in certain cases people believed each other to be dead. A person may be inquiring about something without knowing that they have a sibling who is alive. We should be letting people know that there are other relevant records. I am not suggesting that all those records would be released when a single record is requested but that people should be informed that these records exist and they are entitled to them. When people are making an inquiry, it is fishing in the dark. They do not always know what questions to ask. The purpose of the amendment is to avoid a minimalist interpretation and to provide people with the breadcrumbs they might need to seek out additional records.

Section 11(2)(b) states "may provide the relevant person with a statement setting out the early life information, care information or incorrect birth registration information to which the application relates". Amendment No. 59 proposes that it "shall" provide the relevant person with such a statement.

Amendment No. 61 relates to page 22, line 14. Again, it would require that the authority "shall" provide the relevant person with a statement.

In both these cases, the amendment is simply stating the authority "shall" rather than "may" provide the person with a statement.

I will be brief. We have a lot of work ahead of us this afternoon. I will follow on from Senator Higgins's point, especially in respect of amendments Nos. 56 and 57. In the context of all this, we have to remember there is perhaps not as much information held as we might like to think or wish for.

I will share some experiences. As I said to the Minister the other day, I am one of seven children, all from the same mother and father. I can tell him I have been on this road, as have others. It is important we do not assume there is a lot of information. The offices of many institutions were separate from their residential quarters. They protected themselves, in many ways. There were constant changes in staff and trustees, who were good and well-meaning people, but many of them thought it was easier to destroy documents. People told me over the years it was a terrible situation for that particular man or woman, whatever the circumstances were, and it was better to throw the information in the bin and let them get on with their lives, as we all have to get on with our lives. I do not necessarily agree with that but it was said many times. Many institutions were run by religious organisations, but there were also ones that were non-religious. The institution I grew up in was wholly and exclusively run by the Church of Ireland. It is not all about the Catholic Church. It was part of the culture at that time that so many documents were destroyed, and we cannot presume there is as much detail in some as others. That is important.

In many cases, our mothers and fathers made decisions, for whatever reason, because they carried a certain shame and guilt. I remember my mother when she was very elderly - I had a great relationship with my parents in the end and I am the youngest of seven - asking me a question not long before she died when she was sick in Tallaght hospital. She asked me if I had ever got the information I was looking for. I looked at the woman and thought, "You don't need to know that. It would be unfair to revisit it." It was empowering in itself for me to say this woman in her 90s does not need to know. What struck me, however, was that she carried that throughout her entire life, even though she lived into her 90s. She was somewhat relieved when I turned around and said I had seen and got all my correspondence, and it was an amazing discovery, but many things were missing too. I remember thinking about her absolute relief. Dare I say, in a way that was a gift from me in that I felt I had the right to say that to her and I said "No". I knew then that it was not too late, but it was not necessary. We had all moved on and we had all come to understand. Different sets of circumstances played for each and every one of us. I just wanted to make that point. Somehow, I thought it strange a woman in her 90s could think that all along. The fact she thought that was interesting, as was her anxiety. I wanted to share that emotional connection.

However, it is also important that people know. We talked the other day about identity but it is also about belonging. Who am I? Who are you? We all ask these questions. Some things do not make up. Every family has a story to tell. Many a family took in their cousin's daughter or niece, who became sisters, brothers and part of the extended family. One of the good things about Ireland, and we had many bad problems and hid a lot of issues, was that families were families. Blood was thicker than water and they rallied around. It relates to that description of many families being tribal in terms of their heritage and protecting one another, for many reasons, not all of which are right and good.

I will return to what Senator Higgins said. It is also important because I know of many cases, on journeys where I have taken people and assisted them in accessing information, where they discovered an aunt who did not marry, took a great interest in them and secretly visited them in an institution. It should be remembered that children lived in care right up to the 1970s. In 1961, I went from a mother and baby home to an institution in which I lived until I was 16. I was not adopted and was not living at home. I was in State care but there were not ten or 20 of us; there were 40 and 50 people. Five of these institutions were in Dún Laoghaire alone. That is how big it was. It was a huge organisation. There were many in the State who held back parents and would not let them in the door. Remember, the State had a role. There were many parents who denied to their families these children were in care. That was the other side of the story, which is important.

I remember speaking to a fella from a little farm in west Cork. He was a single person. It is much harder when someone is single - it is different when there are six or seven siblings - and many years after a long discovery, he got information. This is very important to the point I am making. Fifteen birthday cards that had never been opened were in the file. They had never been given to him or to the institution but were in the headquarters of the institution. There were some handwritten letters from his mother in the file written on pages that had been torn out of a jotter, a schoolbook she might have bought, and sent in secret to institutions. She sent €5 every year, knitted a jumper every year and said - I will not mention the man's name - "I hope you like the jumper. Boys like blue and green." I thought how real and vivid that was. She wanted to keep the connection. She did not give consent for him to be adopted. She wrote to the adoption society and other people to say maybe she would meet a fella and maybe she would get her son back. We can understand that. No two cases are alike, which is important. When he saw his file, he was angry initially but he said he knew his mother cared for him because she sent birthday cards, she wrote and she gave a little donation, even though she did not have a lot of money, she was not working and she did not have the support of her family. The treasure of knowing that a woman, his mother, never denied him, spoke about taking him back if circumstances changed, sent the little knitted jumpers and the little birthday cards and did her best, comforted him because he felt that actually she really liked him. As a result of all that, for a few years, because she did not live for many years after that, he got to know her and built a relationship with her.

We cling onto everything because of that sense of belonging. People had brothers, but let us not airbrush uncles, aunts, cousins and people out because sometimes they made an effort to keep in touch. It is reassuring to look back and say this unravels the story and tells someone a little more about it. This is about information. As Senator Higgins rightly said, every opportunity should be given and afforded to people because this is not about identity alone. It is about that belonging and understanding. Someone may never meet this person, but he or she might have a little photograph. I am sure we have seen television programmes such as "Who Do You Think You Are?", and when the interviewer asks, "Would you like to see a photograph of your mother or your father?", they all light up when they see it. What does that tell us? It gives a sense of "She is like me or not like me", but they take that photograph away. It is a prized possession. It is sometimes out of context, but when people have little, they cling onto it. It is their lineage, their heritage and their belonging. That is very important.

I will finish on that point. This Bill and legislation is only about tracing, not about redress or anything else. Let us keep the focus on what it is about. It is about that sense of connection and belonging. Let us go the extra mile to empower people, where at all possible. It is not always right for a mother to say a person cannot have information. I know mothers who said that and years later thought it was great. No, sorry. We talk about child-centred when we talk about young children. We never cease to be children in some ways. We all seek affection, love, affirmation and confirmation. These are bog standard things we all need all of the time throughout all our lives. If we do not, there is something wrong. We should support and err on the side of giving more information. Remember, time is moving on and people are getting older. This is less of a problem in the 1980s and 1990s. There was much more progressiveness around childcare in those later days. I wanted to share that story about clinging on to any sense of connection and belonging. It is also important because I know people have met a brother or sister they never knew they had, or an aunt or cousin, and have said they now realise that a particular aunt came every second week to see them and that meant so much to them. They did not know it then, but they know it now and that is important too.

I will speak to amendments Nos. 58 and 59. These relate to the proposal to delete "may" in section 12, to the extent it is practicable to do so, and replace it with "shall".

I agree with what Senator Boyhan has said and I thought he would say what I am going to say but I realise that perhaps we disagree. We need to be careful that the language in the statute does not promise material that is not there and that cannot be obtained. We should not be overly prescriptive and we should put in a caveat on expectation to the extent it is practicable to do so. The term "shall provide" puts a mandatory obligation on the provision of something that may not exist or be able to be obtained and in so doing it is reasonable we have a statutory limit on expectations for what can be provided. This is caring language and that is the right thing to do. Senator Boyhan began with this point but one of the features in the opening of the mother and baby home report is that there is considerably less information sitting on file than people may think. The Bill says it "shall provide" a person with a statement setting out his or her early life information. If we use the term "may" instead, that does allow for the fact it may be impossible to do so and that there are individuals for whom no information can be provided because the information was devious misinformation. We have to be careful in our language so that we are ready for that eventuality and so we do not set up an entitlement and expectation that can never be realised or honoured. I agree with everything else that was said. I thought that was what the Senator was about to say.

Senator McGreehan made a point about the genetic relative. I understand it is relevant in the medical area and in the question of illegal adoptions and that. There is a purpose to genetic relative in the Bill. The problem I have is there is no parallel definition of "relative" and that it is genetic relative that is applied as the limitation in terms of information on who has enquired. I have not really heard from the Minister why that limitation is being placed on being told who has enquired about a person. The Minster mentioned that, separately, those who have made arrangements for a person's adoption are covered but I do not understand why it is being limited to genetic relative in terms of who has enquired about a person. It may be a neighbour or that person's mother's best friend. I do not understand why that limitation is there. I understand genetic relative is relevant in tracking situations where people have been incorrectly or illegally registered or where information has been falsified and it is relevant in the medical area, but I do not know why genetic relative is still the frame in this area. I urge the Minister to consider that factor in the assumption on the non-release of the name.

I want to come back to the point Senator Seery Kearney made. I agree with her and she has articulated her point well. I was just touching on some examples but I agree with her that it is about managing that expectation and being responsible. In time, when this process starts to unravel, we will eventually know the institutions that kept forensic records. I could tell the Senator 20 of them off the top of my head that could tell you they bought a raincoat for a child in 1956. Some of them kept amazing records and they nearly made it a business. They had a lot of people in vocations who did not have a lot to do and they kept impeccable ledgers. In time, when we unravel institutions and look at many of their archives we will be fascinated when we start to list and set out all of this rich archive. It is a rich archive because it tells a story with many aspects.

I was able to go to the Department of Education some years ago and source roll books from the Church of Ireland Representative Church Body Library and they were able to dovetail. In those records they had an X where they identified the children from the local institution, so with a little bit of thinking, there is a lot of information out there. We were able to cross-reference those roll books with other records when we went to some other churches. There were some notorious churches in Dublin that en bloc christened a lot of these children and gave them different names or changed their names. Again you will see particular priests and clergy who did this and the same person appeared as the godmother of all of these children. There are common threads and when they are all pulled together, layers of information can be built.

I agree with Senator Seery Kearney because of my experience and I know and keep in contact with many people who grew up in institutions and who grew up with me. These people have been brought in and handed a little file with three bits of paper on their vaccines and they ask where the other records are only to be told there are none. We should be honest that many people arrived at the institutions, left a child outside the door, pressed the bell and ran away. That is a fact whether we like it or not and there is no information to be found in those cases. There is a process but in time we will see that particular institutions did or did not keep records. We cannot analyse or say for sure what the motives for that were. We can suggest or speculate but if the records are not there, they simply are not there. I agree we have to be careful in how we handle that and in how we manage that expectation.

I thank Senators for their contributions. I ask the Minister to respond on the group of amendments.

I thank all the Senators for their contributions on these amendments. Before I speak to amendments Nos. 56 to 61, inclusive, I want to say that Senator Boyhan is right to remind us all that, once this legislation is passed and operational and once adopted people are using its provisions, there are people who will be deeply disappointed because the information simply is not there. The Senator is right we have to be wary of raising expectations and the Senator knows far better than I do because of the many people he has spoken to who have done the journey and who have got so little information or none at all. We have to be cognisant of that fact. The Senator spoke eloquently about an example where the finding of items has been of such value to an individual in filling in a blank and providing knowledge of having been loved, cared for and thought of at all times. Everything the Senator spoke of there is provided for in this Bill. Those letters, jumpers and everything like that would be provided for under this legislation.

I refer to the issue of the release of the name when the name is not the name of the parents. I am happy to go back to the Office of the Parliamentary Counsel and discuss this further. I want to make it clear we have done that and that this provision has been discussed at length in trying to make broad provision. That is where we are and we are happy to go back there again. What is in this Bill is not a result of not considering this issue and I want to make that clear to all Senators.

I will talk specifically to the last set of amendments. Amendment No. 56 seeks to remove the term "to the extent that it is practicable". This is a term that is used in legislation and it means as soon as possible. It is reasonable to include this term but it is important to remember that, on Report Stage in the Dáil, I brought in amendments that set timelines for relevant bodies to provide records within one month, which is comparable to the timeline provided for subject access requests, and those were Government amendments on the timeline.

Amendment No. 57 seeks to replace the categories of information with the term "personal data". The current construction of the Bill provides for the full release of information and records to a relevant person and more than they would receive under a subject access request and with a guarantee of release. Amendment No. 58 places an obligation on relevant bodies to provide "a summary of all relevant records it holds, including information to which the application does not relate". This amendment is unnecessary as relevant bodies will already be providing a supporting statement. I refer again to the ministerial guidelines that will be brought forward and that will stipulate that an enabling approach should be taken, whereby bodies should release any information over and above the categories of information set out in the Bill, except when they would be prohibited by law from doing so.

Amendment No. 59 seeks to make it an obligation for a relevant body to provide a statement alongside the records. In almost all cases a statement will be provided and the ministerial guidelines will promote the provision of a statement. There may be certain circumstances in which a statement is not necessary and Senator Seery Kearney spoke to such situations.

If an applicant applies to the General Register Office to receive their birth certificate but nothing else, a statement is not necessary because the birth certificate is the birth certificate and in all circumstances speaks for itself.

On amendment No. 61, the Bill is placing obligations on relevant bodies to provide a summary of all relevant records it holds, including information to which the application does not relate. This amendment is unnecessary as relevant bodies will already be providing a supporting statement in cases where it is appropriate to do so. The ministerial guidelines are promoting the use of that statement. I believe that in the vast majority of cases, a statement will be provided but it is not necessary in all circumstances. I think we should give discretion as to the provision of the statement.

How stands amendment No. 9?

I have a question for the Minister. I appreciate he has indicated that he will go back to the Parliamentary Counsel and consider the release of the names of the persons. Going back can sometimes be fruitful and I know the previous Minister went back a number of times on these issues. In fact, the situation did eventually evolve. Will the Minister also go back and inquire as to why information in respect of a visit or inquiry having happened is limited to a genetic relative?

Will the Minister answer that question to help the Senator decide what she will do with this amendment?

An answer to that would make it easier for me. Will the Minister also go back to the question as to why a report of a visit or inquiry is limited to a genetic relative?

A detailed definition of "genetic relative" is set out in section 2. For other Senators, because Senator Higgins has asked the question, there is a detailed definition. "Genetic relative" means a full-blood or half-blood relative, which is a wide definition. I am happy to consider the question the Senator has asked.

The Minister has said he will consider the question. My concern does not relate only to the definition of "genetic relative". My question is why we would limit that information to genetic relatives. However, since the Minister is reviewing the matter, I will not press the amendment at this time.

Amendment, by leave, withdrawn.

I move amendment No. 10:

In page 10, line 36, to delete “genetic”.

Amendment, by leave, withdrawn.

I move amendment No. 11:

In page 10, line 36, after “relative” to insert “or any other person”.

Amendment, by leave, withdrawn.

I move amendment No. 12:

In page 11, lines 1 and 2, to delete all words from and including “but” in line 1 down to and including line 2.

Amendment, by leave, withdrawn.

I move amendment No. 13:

In page 11, lines 1 and 2, to delete all words from and including “but” in line 1 down to and including line 2 and substitute “which shall include the name of the other person where that is known,”.

Amendment, by leave, withdrawn.

Amendments Nos. 14 to 21, inclusive, 25, 29, 54, 60, 75, 76, 78, 86, 87, 89, 93, 94, 96 to 101, inclusive, 110, 113, 114, 132, 136 and 137 are related. Amendments Nos. 132, 136 and 137 are consequential on amendments Nos. 14 to 21, inclusive, 25, 29, 54, 60, 75, 76, 78, 86, 87, 89, 93, 94, 96 to 101, inclusive, 110, 113 and 114. Amendments Nos. 14 to 21, inclusive, 25, 29, 54, 60, 75, 76, 78, 86, 87, 89, 93, 94, 96 to 101, inclusive, 110, 113, 114, 132, 136 and 137 may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 14:

In page 11, between lines 30 and 31, to insert the following:

“ “illegal adoption” means an illegal adoption, where any of the following situations occurred:

(a) where a non-marital child was registered as the natural child of the adoptive parents without the mother’s knowledge or consent and no adoption order was made;

(b) where a non-marital child was registered as the natural child of the adoptive parents and an adoption order was made;

(c) where a marital child was registered as the natural child of the adoptive parents and no adoption order was made;

(d) where a marital child was registered as the natural child of the adoptive parents and an adoption order was made;

(e) where the adoptive parents were not resident in the state at the time of the adoption;

(f) where a relinquished child over a year old was sent overseas for adoption without the consent and knowledge of the mother;

(g) where informed consent was not given, as in the case of birth mothers who were minors who signed consents without a guardian or legal advisor present, without understanding the import of severing parental rights;

(h) any adoption arranged by a private person or private body, not regarded as a “registered Adoption Agency”;

(i) any adoption arranged by a registered adoption agency or other body for the purpose of financial gain;”.

I will speak to amendments Nos. 14, 15, 18 and 21. If I have done my homework right, those are my amendments in this group. These amendments, as the Minister will know, were discussed in the Dáil. The Minister has already seen and discussed them. My amendments relate to certain adopted people who have been subjected to illegal arrangements and who have no rights under this Bill. The use of the word "incorrect" should be avoided. We try to remove that word through amendments Nos. 15 and 18. The word "illegal" would, under those amendments, replace the word "incorrect". I know Senator Higgins has spoken to that issue. The use of the word "incorrect" should be avoided. It has been long established that the State has been aware of illegal adoptions and yet this fact is not reflected in the drafting of the Bill. This was one of the core issues that came up at the committee, I believe. Many people feel the State knew of the practice of illegal adoptions and it was not incorrect bookkeeping or record taking but illegal, deliberate and calculated. That speaks to amendments Nos. 14, 15, 18 and 21.

I thank Senators Warfield, Boylan, Gavan and Ó Donnghaile for amendment No. 14. The amendment is extensive and cuts to the very core of many of the issues with this legislation. I do not know how we can justify calling it "incorrect" rather than "illegal".

I will share an experience. I met a family last weekend. There were six children, all of whom were illegally adopted from thet institution the Minister has spoken about at great length. It is one of the institutions about which we have the most information. Two of the children, two boys, were eight weeks apart in birth. When the adoptive parents came to pick up one of the boys and saw another one, a nun said, "You might as well take him too", and they did. They stalled his birthday for one year to bring him into line with their designer family. All of those children had everything in terms of material provision. They lived in a lovely home. They were put on display and dragged to the front of the church every Sunday. The family were much admired by the congregation for their kind work in adopting these children.

However, it became clear after a short period of time that the children developed at different levels. None of the children were connected by blood; they were not related by blood. Those two boys joined the other members of that family. There was a certain amount of social engineering involved to reflect what the adoptive parents thought was right and correct for this family. Some of the children excelled academically and others did not do so well. They all went to the best private schools in this State. They were one of the wealthiest families in the State. They were assisted by the particular adoption society and guild. They were fitted out with Catholic certificates and baptismal certificates, and the State was fully aware of it. These people were in a powerful position within this State and it was not uncommon for politicians to sit at their table on a Friday or Saturday night and play cards. The children were brought in to entertain the politicians. I am completely satisfied as to the truth of the story. I know the people involved, who are personal friends of mine. How can we square all of that?

One of the children, at the age of 14, approached the mother and asked who they were and where they belonged. The mother gave them a slap across the face and told them not to ask questions and not to be ungrateful. That is the reality of it. They had access to the best of the material world. They went to the best schools. Some of them struggled and some of them excelled.

Returning to the core issue, all of these children say they were not facilitated by the agency.

All of them say they were not facilitated by the agency. Two of them arrived at the door of the agency, but they were not facilitated in any way. They were told that they were the most ungrateful brats in terms of the good care and the good family that had worked for them and supported them. This is not uncommon. I was telling them about the proposed legislation the other day. Some of them do not talk about it very much. Others verbalise a lot about it. I asked them what the biggest issue is for them. Two or three of them do not have passports. They have never engaged with the State. Two or three of them have never paid a penny to Revenue. They worked illegally on the black market. They are the sort of realities. They are paranoid about the State and the systems, and they do not have a sense of identity.

I am not going to lay the blame for all of that on anyone, because that would not be the right thing to do, but one of the recurring themes is that they say they were illegally adopted and they want that to be acknowledged. It was facilitated by the church and the State. I asked them what they would ask for if they could ask for one thing. If possible, they want to be connected to their families. The families may not even want to be connected with them. That is the reality of it and they are aware of that. They want it acknowledged by the State that the State was fully aware of it. For the past 30 years they have been banging on State agency doors telling them about it, and they have not had a lot of help or support. The word "illegal" as opposed to "incorrect" is important for these people. While it is only a word, it is very fundamental. It is very important, and it goes to the very core of this legislation.

I can attempt to suggest why the Government is resisting the use of the word "illegal" over "incorrect". Is it that there is potential litigation down the road? So be it, if there is. I do not have an answer. We know that drug trials were carried out on the kids in institutions and we know the State had reasons there. I am not going to go into that right now. If possible, could the Minister outline in two or three sentences what advice he has received about the option of using the word "incorrect" as opposed to "illegal"? That is very important for these people, and they need to understand it. How can we stand in Parliament and somehow agree to water down the impact of illegality? If it is illegal, it is illegal. Who gave consent? We can argue there was not a regulatory framework in place, but we now have an opportunity to address this issue. I would like to hear from the Minister what the advice is around all of that, because it is perhaps the most important aspect of this legislation.

Earlier in this debate, on Second Stage, the Minister began with an apology, in part, in respect of illegal adoptions. We have been speaking about these illegal adoptions but there is no reference anywhere in the Bill to "illegal". As Senator Boyhan says, it was illegal and to put in "incorrect" is insufficient. It simply does not cover everything and "incorrect" is not an umbrella under which "illegal" can fit. It is a different thing. It is giving an excuse and providing a new frame, which is "incorrect", that can be applied even to situations where we know the extent to which this was absolutely 100% intentionally done.

These are not situations where people are tiredly putting down a wrong detail or a wrong piece of information. These are situations in which we have intentional situations of deceit, where there is straight-up false information, which is different from "incorrect" as well, even leaving aside the illegal issue. That is not covered by the reference to "incorrect", which is a soft framing. There may be situations where there are incorrect records, but to somehow amalgamate false and illegal birth registrations under that same heading does not work. If it is not possible to amalgamate them under that, the question is why illegality is not specifically being identified.

There are two different approaches. There is a large volume of amendments. The amendments from Senator Warfield and others are trying to give a definition in respect of illegal adoption. They are looking to insert a specific reference to the personal data of a relevant person whose birth was illegally registered. In the case of my amendments, I primarily attached "or illegal" after "incorrect" so it would read "incorrect or illegal".

The question of "or illegal" arises throughout the Bill. It is in multiple places. "Incorrect" is used consistently throughout. It embeds a framing which is woefully inadequate for a large number of cases where we know that birth registration and other information has been intentionally and illegally falsified. The use of "incorrect" is a get-out clause. I do not mind the word being in the Bill. Some of the amendments suggest the removal of all references to "incorrect". I do not mind "incorrect" being there, but it needs to have "illegal" placed alongside it. That is very important because, as Senator Boyhan says, many of the illegal registrations are known about and that has been the case for a long period without being properly pursued.

We had the sampling exercises to see how widespread it was. I acknowledge journalists like Conall Ó Fátharta, who has been exposing these issues for years. It is not appropriate that the State would suggest that we have learned, we are apologising, and we recognise that these terrible things have happened and then have a Bill that explicitly does not include recognition of the fact of illegal birth registrations, and does not include that in the conversation about how people can access their relevant information.

I join with Senator Boyhan in asking if there is a reason it is not being inserted. We need to know why. If that reason is we are concerned that people will be afraid that they may implicate themselves on having committed a crime, then we can put caveats in around offences relating to the destruction of records that may relate to a crime. What we should not do is give an indirect implication of some kind of half indemnity or immunity by saying we will just treat the information as "incorrect" if it is given over to us. I know that is probably not the intention, but I worry that it could be the effect of how this is framed in the legislation.

I disagree with the amendments for the following reasons. In the apology the Minister gave to those affected, in this House, I did speak about the fact that illegality has an implication of criminality and that there needs to be a mechanism for assessment of that. On that basis, and following other discussions I have had around this, when the file is reviewed by the specialist entities that are being put in place on foot of the recommendations of Conor O'Mahony and the response to that, which is to implement his recommendations, at that point an assessment could be made as to whether to refer this to the Director of Public Prosecutions or the Garda for a criminal complaint. The issue then is who is the complainant. Is there a statutory footing? Is it a common law offence or a statutory offence? It has been illegal since 1874 to register adoptions in this country. It is not that there is not a provision in law for it and we suddenly need to create it. It has been there for more than a century.

We need to have a mechanism in place. In establishing the specialist tracing entity to look out for this, we will be putting specialists in place, which is one of the recommendations taken up by the Minister and now being implemented. This will provide a pathway to potential criminal proceedings, if necessary. The report of Conor O'Mahony, whom I hold in great regard, also makes a recommendation with regard to the possibility of a State inquiry into illegal adoptions. That is still on the table for consideration at some point but we need to get a birth information and tracing system in place and in action.

I do not agree with the characterisation of every misrepresentative or erroneous entry as being illegal. In these provisions, we need to make sure the bar is that an entry is incorrect because we need to have a statutory response to that. If people have got married, signed a mortgage or done a whole heap of other things in a name that is not their own and in an identity they believed to be theirs but which is not, a statutory response to that with regard to succession is required. Parts 8 and 9 of this Bill are a specific bespoke response to that issue so to say that these people have no rights under the Bill is blatantly untrue. There are two whole parts of the Bill that specifically address these issues and needs.

We need to consider where this is going. Who gets prosecuted? There is an issue with the Statute of Limitations. In other arenas where there have been long-running historical instances of abuse, we have managed to overcome that issue so it could potentially be overcome again. Post the case of the Cloyne diocese, we can deal with matters like that. Prosecution requires a criminal act but also a criminal intention. While the entities and homes had criminal intent, not every parent did. I know of an instance of the public health nurse showing up at the door of a house and telling a fantastic lady that she would make a fantastic mother. The woman assumed everything flowed from that and she loved those two children, who are her sons as far as she is concerned. How do we start prosecuting these cases? That needs careful consideration. I would rather that was done following an inquiry in which all of these matters were addressed.

Putting the word "illegal" into this Bill may address some of the anger and some of the needs but we must come back to what the Minister said in his speech last week. The response must be real and in-depth and must consider all of the ramifications, one of which might be that parents are prosecuted. How do you prove that parents had criminal intentions? There are individuals who do not want their parents caught up in this. This Bill puts in place a mechanism in place whereby files are reviewed along with birth information and tracing services and specialists. All of that is here and will be in existence as soon as we pass the Bill into law. If we have specialists in place who can refer files onward, a pattern will emerge just as it did with St. Patrick's Guild, where a particular marker was found. Some things are recurrent. In the case of files being referred, it is more appropriate to start with a threshold of incorrectness and a mechanism to address everything that flows from an incorrect entry. We know that there is a criminal statute and that this is an offence so we have a mechanism to refer cases for prosecution where appropriate but in many instances it is not appropriate. What is appropriate is to have a response to everything that flows from it.

While I understand why the amendment is being proposed, I do not support it. It is too dramatic and may potentially catch cases where mistakes were made. Not everybody is as fastidious as those cited by Senator Boyhan. Some are downright careless. Some of these entries were simple mistakes. Where these incorrect entries were criminally minded and on the level of an enterprise, there is a mechanism in the Bill to address that. I believe that is sufficient.

Following on from Senator Seery Kearney's comments, including the term "illegal" in the legislation would set a really high bar. All of us would love to see people being held to account for all of these wrongs. I do not believe anybody in this House would say that someone who illegally registered births should not be held accountable.

Amendment No. 14 proposes a list of cases that would be considered an illegal adoption. This would exclude an awful lot of the people involved because so many of those illegally registered were not the subject of an adoption order. They were never adopted. If we put in this amendment regarding illegal adoption, we would be excluding these people because an adoption did not happen. These people were not adopted. They were illegally registered. It would be misguided to accept this amendment and to include the term "illegal adoption". There were many possible reasons for illegal adoptions. They may have involved coercion or otherwise been carried out without consent but adoption orders were completed so they are considered adoptions. This amendment would conflate two different things: adoptions that were possibly illegal and illegal registrations. It is very important to clarify that these two things are separate. This amendment would combine two separate issues. It is very important to clarify that illegally registered children were not adopted.

A lot of the conversation has related to amendment No. 14 but I will point out that a very large suite of amendments are combined here. There has been discussion of the questions of prosecutions, a tribunal and an investigation. These are all things that should be considered but, to be clear, it is not simply a question of whether there should be prosecutions for everything. That is a separate conversation. The problem with the Bill as it stands is that access to anything it provides and people's route to any of the entitlements under it is constrained. To give one example, the Bill refers to a person who has "reasonable grounds for suspecting that he or she is, the subject of an incorrect birth registration". There is no provision for access to these things. People must say that they were incorrectly registered. That is their route in. Leaving aside the questions of the term "illegal", parents, who did what and the investigations, it is a matter of people effectively having to describe what happened to them as incorrect registration in order to access information on birth and early life and to get their records released. Again, relevant people include those who were subject to an adoption and those who have reasonable grounds to believe they were subject to an incorrect birth registration.

Somebody who believes, or may even know, that they have been subject to an illegal adoption is not really covered. This is because the definition of "incorrect" does not include "illegal", as I said. I suggest it would be awkward for it to do so. The definition in the Bill reads:

"'incorrect birth registration information” means, in relation to a person who is the subject of an incorrect birth registration—

(a) the circumstances under which the person became the subject of an incorrect birth registration, and(b) the name of the person who made arrangements for the incorrect birth registration;

The Senator might look at section 2, which states:

For the purposes of this Act, a person (“first mentioned person”) is the subject of an incorrect birth registration where—

(a) as a result of the giving of information that was false or misleading ...

That element of "false or misleading" that the Senator mentioned earlier on is directly included in section 2 and again in section 54.

However, it does not include "illegal" in the context of the reference to "false or misleading". It is relevant to those who have been affected by the St. Patrick’s Guild investigations, for example. For such a person, maybe his or her registration is in fact being investigated or is recognised as being illegal. Is the Minister suggesting that this is encompassed by the references to "incorrect" and "false or misleading"? Is he saying that the word "incorrect" fully encompasses “"illegal"? If "incorrect" encompasses "illegal", why not include with the consideration of the word "incorrect" not just "false or misleading" but also "illegal"? Why not specify the word "illegal"? I say this because there is a muddying of the waters where this "incorrect" frame is applied.

A person who was illegally adopted will have to say that he or she was subject to an "incorrect" adoption. It may be that it was "false or misleading", but if such a person suspects or knows that he or she was illegally adopted, he or she should not have to describe what happened to him or her in a way that does not reflect what happened to him or her. This is at the core of the debate because we talk about illegal adoptions. This is separate to it and I appreciate the nuances of investigations and the patterns.

In cases such as those that were revealed in relation to St. Patrick’s Guild, it is questionable that the State had to go on a long fishing expedition to look at potential patterns, rather than doing what it should be doing - investigating evidence of illegality and pursuing it in a proper way. The State should investigate illegal activities. That is one point. There is a separate question about what the State does in relation to illegality.

Returning to the matter of how somebody is described, a question remains regarding the description of an illegal adoption as "incorrect". The word "incorrect" includes "false or misleading", as you correctly said, but it does not include "illegal”. Are you saying that "incorrect" includes "illegal"? If it does, why not specify that "incorrect" can include "illegal"?

The Minister will come in again at the end. I thank Senator Higgins. I remind Members that all contributions should be made through the Chair.

I will pick up on some of the comments that have been made in the debate across the House. We can have "incorrect" and we can have "illegal". I think that is a good proposition. I do not think the terms are mutually exclusive. I think that is important.

We need to be careful here. We are legislators and we are dealing with this Bill, but there are many hundreds of people listening in, looking in and reading the transcripts of what we are saying here today. I am conscious of that. This is particularly the case for an issue like this, which will be documented and will be covered in the national press and in all various forms of social media. Let us be clear about the message we are giving here. I cited the case of the children of a particular family, all of whom said it was illegal. They are the people who matter. They are the ones who have lived this life. They are the ones who have had issues.

I wish to focus on amendment No. 14, which provides that ""illegal adoption" means an illegal adoption". That is pretty logical. I understand that the Government has a job to do. The Minister is putting his best foot forward in terms of his legislation. It is the Government’s Bill. I will not be critical of it because I think there is a huge amount of positivity in it. I would like to be in a position to support this Bill. I want to put that on the record. I want to be in a position to support this Bill. I think the Minister has taken responsibility and has led on what has been a very difficult issue, as I said at the outset. This is one of a suite of different measures regarding people in institutional care, issues around the family, issues relating to people who were outside the family and inside the family and issues around childcare. The Minister is hugely committed to the Bill, as are his officials. I thank his officials for being today, as well as all the officials who have supported him around this.

I am saying I do not think that we are that far off. However, this is also about empathy and about sending a message that we understand what people have experienced. People are saying to me that there was illegality around the issues.

I would like to read some of the lines from the amendment before the House, which seeks to define "illegal adoption". It refers to circumstances in which "a non-marital child was registered as the natural child of the adoptive parents without the mother’s knowledge or consent and no adoption order was made". That is simple and logical. It is in English here in front of us. The amendment also refers to circumstances in which "a non-marital child was registered as the natural child of the adoptive parents and an adoption order was made". It also refers to circumstances in which a "child over a year old was sent overseas for adoption without the consent and knowledge of the mother". They are illegal acts. I do not think we should get hung up on it. They happened; they are illegal. I cannot understand why there is an issue with this. What is the downside of including the word "illegal" in the legislation? Could somebody explain that? I know the Minister will come back in. He will have an opportunity to explain this. I am speaking about what I am picking up.

I want to acknowledge the work of the Irish Council for Civil Liberties. It has engaged extensively with all of us here on this issue. It has made some really strong points on this particular issue. I believe that this is the core. This is one of the core issues around this legislation. It is a fact that people had unfettered access into institutions and - I might add - into families. There were illegal - you can call it what you like, but they were illegal - arrangements made. They were supported by different faiths and different churches in terms of baptismal certificates, name changes and the falsification of documents that were required later in the State. There were many layers of people who were complicit in this illegality.

I am not in the business of laying blame with anyone at this point, but I am in the business of trying to equip people to understand what happened and empathising with them. It was an illegal act. It should not have happened. That is what we have to acknowledge. What would any of us in this House have to fear by accepting and acknowledging that it was illegal? It should not have happened. I understand the reasons it happened. These were different sets of circumstances, different times and different taboos. The Chair spoke recently about the issue of great shame, stigma and taboo. People did not know how to handle the situation. I am not going to try to apply today’s standards and understandings in retrospect to these issues as they arose in the 1930s, 1940s, 1950s and 1960s.

I believe that this Bill is going to start to unravel many of these issues. I do not think it is as complicated as some of us think, as I said earlier. I do not think there is as much information out there as people might think there is. I know where the Minister is coming from, but this issue of illegality is critical, and is one we have to grasp and acknowledge. It happened. It should not have happened, and it was illegal.

I would like to speak about the issue of illegality. In law, the term "illegal" is the end point. Something is deemed illegal at the end point in a court of law. To pre-empt something as illegal is to predetermine a judgment. Is it not the case that the term “false and misleading” is already in our legislation under the Civil Registration Act? That is just the term that is used. If something is deemed “false and misleading”, under a court of law it can be deemed illegal. This is because the judgment of illegality is the end point of a case. It is not to be pre-empted in a Bill. I wonder if the Minister could comment on that.

I wish to address what was done by people, such as in the example of St. Patrick’s Guild. We know it was illegal. It has already been clearly determined and identified as illegal. Under this legislation, however, a person who wishes to access their records will be describing this illegal act as being "incorrect", meaning "false or misleading". I would point out that we are putting in a definition of "incorrect birth registration information". We are putting that in as a frame that can be used, and is relevant for many different actions.

We are not putting in "illegal" as a definition. Regardless of the detail of the Sinn Féin amendment, there is an attempt to identify this as a consideration that could be placed alongside "incorrect". It means that when somebody is looking at a false record of themselves, which may have been done illegally, for an illegal purpose or gain, or may even have been found by a court to be illegal, it will be described as "incorrect". That is the frame that we put on it.

In the pre-legislative scrutiny report from the Joint Committee on Children, Equality, Disability, Integration and Youth, one of the explicit recommendations is that there would be reference to the terms "illegal" or "unlawful" adoption. My amendments do not seek to remove "incorrect"; they simply also add "illegal" as another category. Again, it is not simply about describing the records. It is important because these are the points of access. These are the entry points for the relevant persons in terms of accessing their records. That is why it is important how the relevant person is required to describe what has happened to him or her.

I do not disagree with Senator McGreehan on most issues but I cannot stress enough that for someone to take a child that does not belong to them without parental consent - someone who is not acting in loco parentis and is without any legal status - and then to arrange and facilitate the adoption of that child is not the end of game or a process but is simply illegal. Children have constitutional rights and it is clear that it is illegal.

I have been at several briefings and have sat with colleagues from all parties and none and have heard about the engagement and communication with people. I am sure many Members have boxes of files of correspondence from groups and they are clearly telling us the same the story. This is not about a blame game or about holding people to account at this particular point. Rather, it is about acknowledging that what happened was illegal. Let us not get tied up in this and be complicit in the denial. It should not have happened and it was illegal. Anyone with any sense of understanding of what happened to many of the people who lived in the institutions, as well as those who lived with families, could not but hear the cry of those who have taken the journey or been involved in these issues. They want it at least acknowledged that it was illegal and that it should not have happened. Yes, we must move on and there must be a statutory response, as Senator Seery Kearney said. There will be other opportunities down the line and other mechanisms for people in the context of justice and redress, as the Minister said. I do not understand the concept of redress in this context, because much of this is historical but we should accept that it was illegal. It will be very interesting to hear the Minister's explanation and the advice as to why that is not the case.

We need to be careful not to suggest that empathy is the preserve of any one individual. The fact is that the Minister stood up and apologised on behalf of the State and while I might have given out to him about bits of that apology, the fact of it should not be lessened. The fact is that he acknowledged the illegality of what happened to individuals and that is now on the record of this House and was widely reported.

I too have spent a lot of time with people who are affected by this Bill in various ways and who desperately need the provisions within it. We do not need to put "illegal" into this Bill in order for there to be a course down which we go because there is already an 1874 statute that does that. It is not that we have to create a criminal offence all of a sudden, to name it and be prescriptive. Indeed, I would be nervous about being overly-prescriptive about it because anything up to 20,000 people may have been affected. If we are very prescriptive now, God knows what we are going to come across. We need to go back to a very simple statute that holds that it was an illegal act to falsely register someone.

The terminology in the Bill as it stands is sufficiently prescriptive to provide a route. It has actions that are practical in the response to people who find themselves in this horrific situation. If we need to step that further and look for a criminal prosecution, that is already on the Statute Book. Even pre-Constitution, it had been on the Statute Book. That vehicle is already there. We do not need to create it. It is not wise to be too prescriptive because while we know a lot, there is still a lot to know. As we get in to the tracing aspect of this and as the provisions of this Bill come to life and into effect, we need to leave it open-ended and the terminology within the Bill already allows for that.

I wish to speak to amendment No.17. I am conscious that we have focused on the issue of "illegal" but amendment No. 17 and some of the other Sinn Féin amendments in this group simply suggest that the word "information" would be replaced by "records" so as to remove any linguistic ambiguity. The aim is to ensure that people's medical information is considered their personal data and that they have a fundamental right to access, not just the information contained in a record but the record itself. This has been addressed by the Minister. He has spoken about the fact that there is an effort to provide the original records. Another instance of it relates to line 17 and again, while I do not wish to dwell on it further, I wanted to speak to it in case we do need to return to it on Report Stage.

I thank all of the Senators for their engagement on this point. I will seek to address all that was said. First, I wish to respond to Senator Warfield's comment that some people who are illegally adopted have no rights under this Bill. As Senator Seery Kearney said, that is just wrong. The very centre of Parts 8 and 9 is about dealing with the situation of those who were the subject of illegal birth registrations. I need to put that on the record of the House.

I want to talk about the terminology we are using. The terms "illegal adoption" and "illegal birth registration" are being used a lot. I have always used the term "illegal birth registration" to deal with the situation of those who were in St. Patrick's Guild and to deal with those we suspect were in a similar situation. I say "illegal birth registration" because there the issue is the changing of the names but there are other ways in which an adoption could be illegal. There could be issues around consent, for example. There are other reasons and what Parts 8 and 9 are trying to deal with is the issue of illegal birth registration, so that is the term I am going to use. That is why I am very concerned about bringing in the term "illegal adoption" because in the case of the St. Patrick's Guild cases, adoptions did not occur. Adoptions did not occur so it is not correct to say "illegal adoption". They were never adoptions as recognised by Irish law. That is why all of those individuals, the people who joined us here in the Public Gallery last week, have so many questions, not just on identity but basic legal questions with which they must struggle and that is what we are seeking to address in this legislation.

Whereas I may disagree about the use of the terms "illegal adoption" or "illegal birth registration", there has never been any disagreement from me on the question of illegality. Senator McGreehan helpfully pointed out that when I spoke and gave the apology on behalf of the Government last week, I used the term "illegal" 44 times in my speech. There has never been any question for me as Minister, or for this Government, that this was an illegal act that was undertaken and an illegal act that has had enormous consequences for the individuals affected. I hope the actions we have taken reflect this. I include here the actions of my predecessor, the former Minister for Children and Youth Affairs, Dr. Zappone, who set up an independent review following the discovery of the St. Patrick's Guild files.

I published the review following the publication of the commission's report, but I felt that was not enough. I felt it was a good piece of work but there were no firm conclusions, so I looked for a further piece of work specifically on the issue of illegal birth registration. I asked the special rapporteur to conduct a piece of work. He did and acted very rapidly. He gave some detailed recommendations and I took a bit of time to consider those. He brought forward 17 recommendations and many of them are being implemented in this legislation. He also brought forward the recommendation of the apology, which I implemented. He has brought forward some other recommendations, one of which, as Senator Seery Kearney referenced, is still being considered.

I have spoken in both Houses many times on the issue of legacy and I have always used the term "illegal birth registration", recognising the illegality that took place in those situations. What is at question in this Bill and the section we are talking about today is not the question of illegality. The question of whether these registrations were illegal is not at question. There is legislation, as Senator Seery Kearney has referred to, that clearly shows that what happened in these situations was illegal. We are not questioning the legality or otherwise of what happened. What we are doing is providing a mechanism for people to access the provisions of this legislation, and primarily the provisions that will allow them get the information to confirm or finally clarify those questions as to whether the registration of their birth was illegal. That is the issue that we are trying to address.

The law we are bringing forward is to allow people access information, but particularly for those where it is shown a birth registration was illegal, it allows the rectification of their legal issues in terms of succession, the confirmation of contracts and their relationship with the family they were raised with and whom many believe were their birth parents. That is what we are trying to do here. That is the question we seek to address. It is for that reason I believe the definition of "illegal adoption" being proposed here is unnecessary because those who need to use this legislation and who need the benefits of it are already covered within the existing definitions. They are covered within the existing definition of either an "adopted person" or "incorrect birth registration" and I will come back to our understanding of that. I have heard, and throughout this process I have heard, the concern about illegality, and that is why we made that change to the definition of incorrect birth information. We have included a specific reference that it is as the result of the giving of information that was false or misleading. This legislation recognises the falsity. It recognises that misleading information was provided. That is explicit. It is referenced twice in the legislation. It is referenced in the definitions in section 2 and in section 54. The falsity is clearly recognised within the text of this Bill.

In terms of the definition and the approach we take, and again recognising we want as many people as possible who have questions, who do not have any certainty as to whether an illegal act took place but who have questions, to be enabled to access the provisions of this Bill. That is why we have the concern about the use of the term "illegal" or "illegal adoption". To include the term "illegal" rather than "incorrect" would require an additional criteria of illegality to be met. That would be such to establish that an illegal act lay behind the making of the registration. It would have to define what the illegal act was and, indeed, who perpetrated that particular act. It may be much more difficult to establish illegality or that an illegal act had occurred resulting in a false registration rather than establishing only that an incorrect registration had occurred, and that is because of the very secretive nature of the practices that we are doing here. I have gone back and forth with officials on this issue because it was in pre-legislative scrutiny, PLS, and it was brought up on both Committee and Report Stages. This issue has been teased out extensively with officials. They came back with the addition of the term "false and misleading" to ensure the falsity of what happened is recorded within the framework of this legislation. They were not able to provide me with an alternative that would not involve the restriction of the people who could use this particular legislation, and that is what I do not want to see. I do not want to see us putting language or terminology in the Bill that is not going to change the illegality of what happened, because its illegality has already been made clear from existing legislation, but could potentially lessen the pool of people who can use the provisions of this legislation. People need to be able to use this legislation because not only does it give them information but it also provides legal avenues to address very real problems and challenges they face as a result of finding out they were subject to an illegal birth registration. They are real challenges they have spoken about in Oireachtas committees and, indeed, in their engagement with many Senators directly. It is for that reason I believe the changes we made in the Dáil, the addition of the term "false and misleading", which recognises the falsity of what happened but also ensures there is a wide definition that people can use to avail of the provisions of this legislation, is the best way forward, notwithstanding the fact that I and the Government have always recognised, and recognised on the floor of this House and in the text of the apology provided, the illegal nature of these birth registrations.

I would like if the Minister would address my amendments. He spoke about the fact that substituting "illegal" for "incorrect" could be seen as narrowing, but he did not address my amendments that add the term "illegal". He mentioned that the term "illegal" would create a higher bar for access and so forth, but I do not believe that is correct in terms of my amendments where there is the term "incorrect" and I add the words "or illegal". Again, all of the provisions the Bill provides in respect of the term "incorrect" would still stand but would also insert the term "or illegal" as another basis. I believe my amendments are expansionary rather than narrowing. The Minister seems to have mainly addressed the amendment tabled by others that seek to substitute the term "illegal" for "incorrect" rather than my amendments, and there are a large number of them throughout the Bill, which seek to add the phrase "or illegal" after the word "incorrect". Perhaps the Minister could address those.

I thank the Minister because he set it out very well, and that is the great thing about debating these issues. I am a lot clearer following his explanation, and I want to acknowledge that. People in opposition are not always perceived to be supportive of Government, and I am in this case. The Minister has set out clearly some of the issues. However, Senator Higgins has made a point for inserting the term "or illegal" as part of it as opposed to "incorrect", because for many people it was illegal. The Minister has confirmed it was illegal in terms of birth registrations, and that is the message. It is about language and about words, and we always know it is, and people hang on every word, especially in the circumstances around this. There is a bit of a job for us all to communicate that issue around illegal birth registrations. I am thinking as I am going down to tea today of ringing up my colleagues - the family that I mentioned - who I know are listening to this debate and asking them if they are any wiser in terms of the issue of adoption as opposed to the illegal birth registration. Remember that organisations and institutions in this State facilitated that illegal birth registration. Even emphasising that in some way helps them to understand. That is important. I genuinely thank the Minister for teasing out this matter.

I thank Senator Boyhan. Since there are no other speakers, perhaps the Minister would like to respond.

I thank Senator Boyhan for his comments. I, too, welcome this opportunity, which is longer perhaps in this House than the Committee Stage was in the other House. It is useful to tease through the issues.

Specifically on Senator Higgins's point on using the word "or", I confirm that I specifically raised the issue of looking at "or" rather than having a pure substitution. Again, having engaged with the Office of the Parliamentary Counsel, it has not been possible to achieve what the Senator spoke about, that is, using the words "incorrect or illegal", in a way that is legally sound and that would not require the State to set the standard of illegality and burden of proof, even were we to use the phrase "incorrect or illegal". Since we were not able to find a way to do that, I looked for other mechanisms and that is the reason the Office of the Parliamentary Counsel came back with the insertion of the term "false or misleading". As I said, that term recognises the falsehood but in a way that does not risk excluding people from being able to use the provisions of this legislation. I believe it recognises that point. It keeps the definition of who can use these legislative provisions broad, which is the key point on which we are all in agreement.

None of that takes away from the very clear acknowledgment made in the apology, in the discussions on this Bill and in other debates related to legacy in both Houses, in the wider Government response to Professor O'Mahony's report and in the very real actions we are taking both in setting up a specialist tracing service in Tusla and making changes in this legislation that provide a much better legal basis for tracing where there is a suspected legal birth registration. I believe all those actions demonstrate the very real recognition by the State of the illegality of what happened. It is not only recognition, but also concrete and real efforts to address that to the extent to which we can address historical practices like this.

I appreciate the Minister's bona fides in terms of his apologies and the actions of the Government. Ministers and Governments come and go and legislation stays, however, unless it is changed. I have not sought to delete the word "incorrect". I still have concerns.

I am speaking not in terms of consequence or prosecution but in terms of access points again. It is that same issue of access points. The fact is that somebody seeking to use this Bill will be describing a birth registration in relation to them, which may have been illegal, as incorrect with false or misleading information. That is how they will be describing it and how they will need to describe it in terms of accessing what is in the Bill. It will not be open to them to describe it as illegal adoption. This is about having an additional access point for those who, as I said, believe or know they have been subject to an illegal adoption. That additional access point might be true for somebody. That is what I was saying.

The fact is that when the Minister, whose understanding is that this was illegal, and his Government are gone, the legislation and how people describe the birth registration, and the Minister is right to frame it as birth registration rather than adoption, will be as an incorrect birth registration. That is how they will describe it when it may have been illegal. They will need to do so in order to access their various rights and entitlements.

My amendments were not about narrowing but an attempt to broaden by having an additional, separate mechanism whereby as well as being able to choose "incorrect" as the description, people would have another route of describing it as "illegal" when accessing their rights. It is one thing to use the word "illegal" many times in a speech and have it on the record. There are many things on the record but it is a great gap in the Bill that "unlawful or illegal" is not recognised. I worry that we will have multiple instances arising from this legislation where things that may have been illegal will be described as incorrect. One could maybe say separately they may be pursued as illegal and all of that, but they will have been described in a way that is inadequate and untrue. That is why I will not press many of these amendments but I am going to have to press a couple of them because I cannot in good conscience let the Bill go through without attempt to have illegality become one of the ways in which people are able to describe their experience in terms of accessing their rights under this Bill.

I absolutely accept the sincerity in which all these amendments are offered. It is obviously any Senator's right to press an amendment. I think Senator Higgins and I are trying to achieve the same thing but whereas she is seeking to create two routes through the use of both "incorrect" and "illegal", I am seeking to broaden what we classify as incorrect by bringing in thee terms "false" and "misleading". I think they speak to what the Senator is seeking to achieve. She disagrees and I understand that.

I am not opposing the insertion of "false" or "misleading" under "incorrect", just to be clear.

I believe the inclusion of those words achieves the recognition of both being false and the fact that it is misleading where there is a deliberate effort to mislead. It speaks to the points the Senator raised. I accept that she does not agree.

Amendment put and declared lost.

I move amendment No. 15:

In page 11, line 31, to delete “incorrect” and substitute “illegal”.

Amendment put and declared lost.

I move amendment No. 16:

In page 11, line 31, after “incorrect” to insert “or illegal”.

Amendment put and declared lost.

I move amendment No. 17:

In page 11, line 31, to delete “information” and substitute “records”.

Amendment, by leave, withdrawn.

I move amendment No. 18:

In page 11, line 32, to delete “incorrect” and substitute “illegal”.

Amendment put and declared lost.

I move amendment No. 19:

In page 11, line 32, after “incorrect” to insert “or illegal”.

Amendment put:
The Committee divided: Tá, 10; Níl, 25.

  • Black, Frances.
  • Boyhan, Victor.
  • Boylan, Lynn.
  • Craughwell, Gerard P.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Ó Donnghaile, Niall.
  • Sherlock, Marie.
  • Warfield, Fintan.

Níl

  • Blaney, Niall.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Byrne, Maria.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Lisa.
  • Clifford-Lee, Lorraine.
  • Cummins, John.
  • Currie, Emer.
  • Daly, Paul.
  • Dolan, Aisling.
  • Dooley, Timmy.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • Kyne, Seán.
  • Lombard, Tim.
  • Martin, Vincent P.
  • McGahon, John.
  • McGreehan, Erin.
  • Murphy, Eugene.
  • O'Donovan, Denis.
  • O'Reilly, Pauline.
  • Seery Kearney, Mary.
Tellers: Tá, Senators Alice-Mary Higgins and Annie Hoey; Níl, Senators Seán Kyne and Robbie Gallagher.
Amendment declared lost.

I move amendment No. 20:

In page 11, line 35, after “incorrect” to insert “or illegal”.

Amendment put:
The Committee divided: Tá, 10; Níl, 26.

  • Black, Frances.
  • Boyhan, Victor.
  • Boylan, Lynn.
  • Craughwell, Gerard P.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Ó Donnghaile, Niall.
  • Sherlock, Marie.
  • Warfield, Fintan.

Níl

  • Blaney, Niall.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Byrne, Maria.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Lisa.
  • Clifford-Lee, Lorraine.
  • Conway, Martin.
  • Crowe, Ollie.
  • Cummins, John.
  • Currie, Emer.
  • Daly, Paul.
  • Dolan, Aisling.
  • Fitzpatrick, Mary.
  • Gallagher, Robbie.
  • Kyne, Seán.
  • Lombard, Tim.
  • Martin, Vincent P.
  • McGahon, John.
  • McGreehan, Erin.
  • Murphy, Eugene.
  • O'Donovan, Denis.
  • O'Reilly, Pauline.
  • Seery Kearney, Mary.
Tellers: Tá, Senators Alice-Mary Higgins and Fintan Warfield; Níl, Senators Seán Kyne and Robbie Gallagher.
Amendment declared lost.

I move amendment No. 21:

In page 11, between lines 36 and 37, to insert the following:

“(c) the personal data of the relevant person whose birth was illegally registered;”.

Amendment put and declared lost.
(Interruptions).

I am sorry, but could the sub-committee meeting at the back of the Chamber conclude, please?

Amendments Nos. 22, 55 and 62 to 67, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 22:

In page 12, line 3, to delete “information” and substitute “records”.

This is my only amendment in this grouping. It would delete the word "information" and insert "records" in its place. This would remove the ambiguity around language. People's medical information is their personal data and they have a fundamental right under EU law to access those data, and not merely information contained in a record for which a person may apply. GDPR law makes it clear that medical data should be released, not information contained in the data.

This amendment seeks to alter the definition of "medical information" to reference the word "record". This amendment is a response to an oversight in the Bill as originally published, which provided for the medical information of a relevant person to be released but not for the release of the record itself directly to the person. During the Dáil debates I brought an amendment to the Bill on Report Stage to amend section 15, which now ensures it is the record itself that can be released to the relevant person. This mirrors the release mechanism for other categories of information. I referenced this a number of times in the Dáil. For each category of information, including birth information, care information and early life information, we release the information but we release the record as well. The authority will not take the information, place it into a file and provide it. A copy of the record itself will also be provided. We have addressed the issue the Senator is raising in this amendment and as such I do not think it is necessary.

My amendment, No. 55, relates to the fact that, at the moment, the section requiring the relevant body to provide information on application by a relevant person aged 18 years or over, only provides for early life information, care information and incorrect birth registration information. As we discussed with regard to the definitions, medical information is categorised separately.

The Minister might recall I had an amendment where I tried to insert medical information into the definition of "care information" but it was regarded as separate. I am concerned that, as medical information is defined separately and is not encompassed within early life or care information definitions, it is not included in the areas where information can be applied for from a relevant body. It might just be an inconsistency so I ask the Minister to address that. Amendment No. 55 is quite simple in that it would insert "medical information" in the list of areas covered.

Amendments Nos. 62 to 67, inclusive, are about the same issue we addressed previously, that is, the "mays" and "shalls". The idea that these bodies may not be able to do something was mentioned but the word "may" is very wide. It simply means that someone might do something. There is not even a caveat. It could say "shall, so far as would be practicable", although I do not like that phrase. That way, if they were not in a position to provide that statement, in those circumstances that were outlined, that would cover it. Phrasing it as "may", leaves open the possibility of "may not". That is the concern.

The Minister has inserted time clauses elsewhere in the legislation so amendment No. 64 is another attempt to copper-fasten expedience in the provision of information. The way it is framed at the moment, information will be provided only where it relates to the application and where the body is satisfied with regard to the guidelines. With that framing, there could be a process where the body needs to satisfy itself of these things. It has a presumption of it being difficult. It frames it as going through these hoops before giving the information. These could end up being lengthy processes which constitute a bottleneck or delay for people accessing their rights.

I will let the Minister reply while I check my notes on amendment No. 65. This is Senator Ruane's amendment and I am speaking on her behalf so I just want to make sure I am faithful to her note on it.

We discussed a similar issue earlier. Amendment No. 55 seeks to amend the definition of "early life information" from what it currently is, "information on any medical treatments, procedures or vaccinations administered to him or her", to read "medical information, including information on any medical treatments, procedures or vaccinations administered to him or her". I cannot support this amendment. Examples that are provided for under this subsection of the definition of "early life information" are clearly medically related but they are not restricted solely to that information. In addition, medical information is covered as an entirely separate category of information available for release. The categories of information were purposely drafted to be as broad and as encompassing as possible, with overlap in several places, including medical information. I cannot accept this amendment as to do so could restrict the examples of information that may be made available under this definition.

Amendments Nos. 62 and 63 would replace "may" with "shall" in relation to the provision for release of a statement setting out the medical information. The statement released alongside the medical records is a flexible provision to allow the authority to accompany records with as much or as little additional information as is required to contextualise the information given. I do not believe this amendment is necessary.

Amendment No. 64 would delete the phrase "to which the application relates only" and insert "without delay". I cannot accept this amendment. It is similar to some that were introduced in the Dáil, which also sought to compel bodies to release records that the applicants did not ask for. My response is the same as it was then. I believe it is appropriate for people to have full agency in what they apply for and receive. This legislation seeks to empower relevant persons to have control over what information they choose to access and as such I would not support this amendment as I think it would undermine that process. If a person wishes to seek all the information that is available, it will be as simple as ticking a box on the application form.

On amendment No. 55, what the Minister described is a previous amendment of mine, where I sought to include and name medical information within the definition of "early life information". That is not what amendment No. 55 would do. As the Minister has said, he has chosen to list medical information separately in the definitions and it is not encompassed within the definitions of either "care information" or "early life information". As he has chosen to treat it separately, it is important that it be listed as one of the areas where a relevant body might provide information. Currently, it is not.

Section 11 reads:

A relevant person who has attained the age of 18 years may apply in writing to a relevant body for the provision by the relevant body to him or her of any or all of the following that is held by the relevant body and that relates to him or her:

(a) early life information;

(b) care information;

(c) incorrect birth registration information.

This does not include medical information, which is defined as being a separate category. I am concerned by this anomaly. I cited the example of an earlier amendment through which I sought to address this issue by having medical information named as a subsection within the early life paragraph. Given that it is a stand-alone category of information, however, it is important that it be included as one of the kinds of information for which a person can apply to a relevant body.

Amendments Nos. 62 and 63 have to do with “may” and “shall” and amendment No. 64 relates to “without delay”. The Minister might comment on the concerns about an excessively onerous process.

Amendment No. 65 is important and relates to a point that Senator Ruane has discussed, namely, an adoptive parent being able to apply on behalf of a child who is not yet 16 years of age for the provision of the relevant medical information. Section 15 deals with medical information, so the matter is dealt with separately to section 11. It is important that the adoptive parent of a child be able to apply for information on behalf of that child. Many adoptive parents have been supportive of, and advocates for, their children in accessing the relevant information. This is what amendment No. 65 addresses. It reads: "The adoptive parent of a child who has not attained the age of 16 years may apply in writing to the Authority for the provision by it to him or her of medical information". This could be significant and relevant medical information for health decisions in respect of that child.

Amendment No. 66 is another instance where I seek to substitute “shall” for “may”. The Minister might address this point. If it is not always going to be possible, why not use “shall” with a caveat rather than “may” with its implication of “may not”?

I cannot support amendment No. 65, which seeks to provide for an adoptive parent to apply for medical information for his or her adoptive child where that child is under 16 years of age. It seeks to alter the process through which the release of third-party medical information is provided. This issue is one that was subject to detailed consultations between us, the Office of the Parliamentary Counsel and the Data Protection Commission. Throughout my time in this role and in my engagements in the lead-up to the drafting of this legislation, I have always recognised that access to the medical history of someone’s family at birth is an important issue to many adopted people, but the release of other people’s information – third parties’ information – has to be surrounded with safeguards.

It is important to recognise that, under this legislation, there are mechanisms to secure a route to access information held by parents who gave their children up for adoption. Adoptive parents can undertake a trace to request information on behalf of their children, make an entry on the register to request information on behalf of their children, and apply for a provided item on behalf of their children. Therefore, the Bill allows opportunities for adoptive parents to seek and be provided with that contemporaneous medical information on behalf of their children.

Amendments Nos. 66 and 67 replace “may” with “shall”. I have been clear on this, in that an open approach to the provision of information will be taken in respect of this Bill. This approach will be set out in the guidelines and is the approach that has been indicated to the authority and the agency in terms of the inter-agency group that is operated by my Department. As such, I do not believe the proposed changes are necessary.

Turning to amendment No. 55, I take the Senator’s point. I was responding to a slightly separate earlier amendment from her. Nevertheless, I am satisfied that access to medical information is sufficiently covered under section 15, which is titled, “Relevant body or Authority to provide medical information relating to relevant person on application by relevant person”. This fully addresses the issue that the Senator flagged.

Amendment, by leave, withdrawn.

Amendments Nos. 23, 24, 103, 124 and 125 are related. Amendments Nos. 23 and 24 are physical alternatives to each other. Amendments Nos. 23, 24, 103, 124 and 125 may be discussed together by agreement. Is that agreed? Agreed.

I move 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.”.

This is my only amendment in this grouping. It may have been dealt with in the Dáil, so I apologise if it has been. Instead of establishing a mechanism whereby adopted people’s GDPR rights to their personal data can be clearly met, this longer amendment is non-exhaustive and attempts to prevent personal data from being withheld. These categories of information are open to a range of different interpretations. Given data controllers' role in how access is handled, it is a certainty that much personal data could be held back.

I might ask the Minister to respond to the amendment, after which I will contribute again.

I will focus on two issues and speak to amendments Nos. 23 and 24, which are extensive and cover many areas. I will focus on a recurring theme in both amendments, that of the details applicable in terms of vaccines. Amendment No. 23 reads: “the relevant person’s medical records from birth until the time of placement, including x-rays, tests, vaccines”. Amendment No. 24 reads: “records of any vaccine trials in which the relevant person was a research subject”.

This is an area I know quite a lot about. We know, and it is a fact, that these drug trials took place. They were the subject of a very comprehensive statement by the Taoiseach when he was the Minister for Health and Children all those years ago. He came to both Houses for exhaustive engagement and statements. He raised similar issues of concern and engaged Dr. Jim Kiely, who was the Chief Medical Officer at the time, to carry out some random samples. Bessborough was one of five institutions involved in the test case but there were many others. The scope of the inquiry was subject to litigation. It was found to be ultra vires, partly because it was tied in with the Ms Justice Mary Laffoy commission. It went on extensively and there were various inquiries in relation to it.

We know also that there was extensive documentation under discovery relating to the carrying out of these drug trials in institutions, including the one I lived in. I want to acknowledge that on the record of the House. GlaxoSmithKline wrote to a number of people, including me, to ask if we would like to avail of the idea of documentation. That is an ongoing process which I am not at liberty to discuss in any great detail in the House. It is not the only company involved. Having met many people involved in this matter on the journey they have taken, I am now 100% satisfied, as was the then Minister and then Chief Medical Officer, that vaccine trials took place on children in care. Who was acting in loco parentis is still questionable, but it happened. We secured some legal advice. The issue of bodily integrity is critical in the context of our constitutional rights.

There is a load of issues around this. I do not want to deviate too much but I will say that the people who were held in State institutions for whatever reason should have a right of access. From the engagement with a number of drug companies, we know they have substantial information. To be fair, they are co-operating in some respects. Under the motion for discovery related to the State's tribunal into these issues, which ran into the sand in the end, we know there was very substantial confirmation as to the nature and level of use of vaccines on these children. It is very interesting to see reference to vaccines in various proposals and amendments to the legislation. I just want to keep my focus on that.

It is important to acknowledge that a lot of people have struggled to get this information. From my experience and from talking to other people involved in this, I know they approached institutions and were told the institutions did not have information. When people started to initiate legal proceedings, these institutions were suddenly more forthcoming in confirming they were involved in the trials. I spoke with three people who were involved, one of whom was my GP with whom I retained a great friendship until he passed on some years ago. I also spoke with two of the eminent professors based at UCD who were involved in these trials. The trials were the subject of extensive coverage on "Today Tonight" and "Prime Time". I met people directly involved in these drug trials and in their co-ordination who were based in UCD. There is a lot of information about this. I want to acknowledge the Taoiseach in particular. Little did I think I would become a Member of this House and little did he think when he was the Minister for Health and Children that he would become the Taoiseach. There was a commitment, an engagement and an understanding by all sides in both Houses that we would get to the bottom of this issue.

The amendments deal with the right to know and the right to discover. I do not want to conflate the two issues, other than to say that the Minister will recognise the real importance of medical records for people in these situations, in particular records on the vaccine trials, which is an area I have a huge interest in and on which I have ongoing engagement with GlaxoSmithKline. I would be very interested in the Minister's views on that or any other mechanisms he might suggest.

I call Senator Seery Kearney.

I believe Senator Higgins is next.

According to the notes, you are the next speaker, Senator.

I will let Senator Higgins speak in my slot.

This suite of amendments largely relates to the question of GDPR and how it intersects with this legislation. The Minister will be aware that we have had lengthy discussions on the general data protection regulation. Some of my very first discussions on this were back in 2018 when that regulation had come into effect. There has been a very long journey of understanding the implications of the GDPR within all of the relevant bodies, including Tusla, the Adoption Authority of Ireland and the Department. The GDPR changed things and created a hierarchy where we have an EU directive in EU law, which is applicable and cannot be eroded. It is important that there is not even a perception that national legislation could give rise to a conflict with or limitation on GDPR. Amendment No. 23 is not my amendment but I recognise that it is an attempt to provide the widest possible definition of personal data and bring what constitutes personal data in line with the GDPR definition of personal data. It is trying to address the specific situation.

While not excluding other provisions that may be inserted - we cannot always be completely exhaustive - these amendments attempt to be more exhaustive than the Bill itself sets out to be. The desire to be as wide and comprehensive as possible arises from the experience that a minimalist approach has been taken to providing access to information. While I understand the Minister's experience and perspective and his desire in terms of culture, there is a very deep and long-established culture of taking a minimalist approach to information. The Minister will know this because we have encountered it again and again. Despite revelations and changes in terms of realisation, people still have the feeling that they are trying to get blood from a stone. That is shifting and having such a comprehensive list, as I understand it, is an attempt to help that shift. These are the starting points of things that must be considered.

My other amendments in this group are intended to copper-fasten. Amendment No. 103 seeks to ensure that among the information the authority is required to provide to people requesting information is information on their rights under GDPR. Not everybody would be aware of that. This would mean that persons accessing their rights under this legislation would also be made aware that they have rights under the GDPR. The amendment provides that when the authority is making an entry in the register and informing persons, it would inform the persons of the legal basis under which their personal data are being processed and would also inform people of their rights in relation to the general data protection regulation. This information would be included in the conversation the authority might be having with such persons.

As regards amendments Nos. 124 and 125, the Bill states that the Minister "may prescribe suitable and specific measures". The Minister should be prescribing suitable and specific measures around the process, especially in terms of safeguarding. Under the Data Protection Act, suitable and specific measures are a requirement when permissions such as those provided for in section 66 are being given, for example, where the Minister is authorising a number of bodies in relation to the processing of personal data.

Deletion is recognised as a form of processing. I am not suggesting that deletion would meet the necessity and proportionality standard, but the reason there are special regulations for the Minister in terms of suitable and specific measures is to copper-fasten it so it is not solely left to these bodies to interpret what is necessary and proportionate. Other suitable and specific measures are being put in place as a safeguard. I urge that the Minister would definitely do that rather than the Minister may do that.

Finally, regarding amendment No. 125, it should not really need to be stated but it is important to include: "Nothing in this enactment shall be construed as infringing upon or limiting the right of a person to make a data subject access request under Article 15 of the General Data Protection Regulation". We have already identified in the course of the debate areas where, in fact, people are entitled to information under the GDPR in terms of a subject access request and it would be very important that a narrower set of rights or concerns is not being substituted or even perceived as being substituted for that. I gave the example of the person who inquired about a relevant person. I believe that somebody would be entitled to that information in a subject access request. If the person makes a subject access request under Article 15, he or she would be entitled to have that considered directly under EU law in Article 15. The fact that there is national legislation which sets out a more constrained version and says the name shall not be given as a blanket provision, which one cannot do, would be subsidiary to the person's right to make a subject access request of that body under Article 15. As I said, there is a danger of a national law being potentially in conflict with the exercise of rights under GDPR.

I am concerned that section 66 may be seen as the process being the denying or redacting. What I want to be copper-fastened is that it is not an effect of section 66, combined with narrower provisions here and there, that effectively we have this legislation serving to constrain rights under Article 15 of the GDPR in terms of subject access requests. Of course, there are lots of other rights under GDPR, but it is because there is that danger that I am seeking to insert a reminder of it. Again, there is an argument for not simply mentioning Article 15 of the GDPR, but mentioning the GDPR more widely. I would be open to that because the Minister specifically mentions restrictions in respect of Articles 12, 14, 18 and 21. Those are explicitly restricted. Article 15 is not explicitly restricted but it could potentially come into conflict with some of the provisions in the Bill or what it provides for could be different and wider than what is allowed for. I mentioned the example of the redaction of a name of a person who inquired after a relevant person. That could be in conflict with the proper interpretation of Article 15.

Does the Minister see where I am coming from? I am a little concerned about us creating problems down the line. We have been getting things wrong in this area for a while and I want to ensure we do not set ourselves up for further conflicts and ambiguities, or even the perception of conflict between the two.

While the suggested amendments are certainly an extensive list of information to be provided, I do not believe it is necessary. It is dangerous to be prescriptive. Once we start getting into prescriptive categories to this extent, we run the risk of not including information that needs to be disclosed. The reason we need specific legislation with regard to a GDPR right is that GDPR is the interface of a number of people's rights specifically in the area of birth information. Heretofore, redacting information has been problematic because of the operation of GDPR or the interpretation of its operation, and this is to actually restrict that redaction in the case of individuals who have an entitlement to information about themselves. While the intent behind the amendments is laudable, I fear they would undermine the purpose by being so prescriptive.

As regards vaccination information, it is included in the Bill under the definition of "early life information" under subsection (f). It includes "information on any medical treatments, procedures or vaccinations administered to him or her". While that may be authorised and proper vaccinations-----

-----it should also include those the Senator is specifically addressing. There is no reason that a good barrister or arguer would not advocate for that to include those and the intention that we are including them, and rightly so. That information absolutely should be disclosed.

Senator Boyhan raised the important point of the information about vaccine trials that were done and, as we know now, done without consent and often in breach of what were the medical guidelines of the time, which I believe were the Nuremberg guidelines. It is a source of great concern for many people who were in mother and baby or county home institutions or other institutions. As Senator Seery Kearney said, vaccinations are explicitly listed in the definition of "early life information" and they are implicitly also covered by the term "medical information". Those definitions are in section 2, but there is a right to early life information set out in section 11 and a right to medical information in section 15. As we said previously, it is a right to the information and also the records. It is not just confirmation that somebody was subject to a vaccine trial and that is the end of it. The person is entitled to the records of that vaccine trial as well. We explicitly reference this on the face of the Bill so I hope that provides reassurance, and I hope the processes set out here will look to provide information from the bodies covered here. Separate processes are under way with some of the corporate bodies, the successors of companies that undertook these trials and may still have information.

With regard to the significant amendment proposed by Senator Warfield, I cannot support amendments Nos. 23 and 24 as they are seeking to insert a definition of "personal data" in the Bill. It is a lengthy definition and has 46 different elements. The vast majority of these examples of personal data are already encompassed in the definitions we have legislated for in the Bill. The vast majority of the items and the types of information covered in the list in the proposed amendment are covered in the definitions of "birth information", "early life information", "care information", "medical information" and "provided item". There are a couple of exceptions. The definition also contains a number of subsections that could not be considered the personal data of a relevant person. That includes personal information about the circumstances of a mother prior to the birth of a relevant person or after an adoption took place. That is not information directly relevant to the relevant person, so that is why we would be concerned about them.

Along with the list, it is also important, and Senator Higgins touched on this, that we are not even modelling but directly defining "personal data" in this legislation according to the definition in the GDPR. The definition section states clearly that the term "personal data" in this legislation is given the definition that is given in GDPR.

That is deliberate because that definition, as contained in the data protection regulation, will change and be enhanced and probably be broadened by rulings of the European Court of Justice. While this definition is lengthy, it will remain the definition until such time as it is changed by subsequent legislation, whereas if we use the definition of personal data as it is set out in the GDPR, as soon as the European courts change that definition, our understanding of that definition changes and broadens as well. I therefore have a concern that what is proposed here actually fetters the definition of personal data and could, in the medium term, lead to personal data being defined by the GDPR and European courts in one way and personal data as defined for this one piece of legislation not having moved with the times and not having broadened as the definition. That is not something we would like. All pieces of information that are listed in this amendment and are legally permissible to be provided are already provided within the Bill as it stands. I have a real reluctance to go down the route of giving a conclusive definition of personal data because that would result in a kind of bifurcation between the definition of personal data here and that contained in EU law.

Amendment No. 103 proposes that when a person makes an entry into the contact preference register, he or she is told he or she can make a subject access request for all data held by the authority. I have a concern this will cause confusion because there are many people who apply to the register who would not have any personal data held by the authority. For example, a sibling or family member looking to register his or her name on the contact preference register has probably had no other engagement with the Adoption Authority of Ireland, AAI, before. To start telling that person he or she can do a subject access request now at this point would not be the best place. We are very clear and will discuss later on that there will be major information campaigns about the new legislation to make people aware of it. We will be very clear that those people also have existing rights under GDPR. For certain categories of people, that is very important, especially mothers. We will be making them aware. From engaging with groups of mothers, I am aware many of them were not aware they could already apply to many of the institutions for information about themselves. That came up during the joint committee hearings. Making sure that route is clear will be one of the things we hope undertake in the context of the information campaign.

I am reluctant to accept amendment No. 124 in terms of the Minister being obliged to prescribe in regulations safeguards to the rights and freedoms of others. This is a forward-looking provision. It is enabling and allows me or a future Minister to make those regulations as they are required. We should give that degree of freedom. GDPR is taken seriously and where they are needed they will be undertaken.

I move finally to amendment No. 125. To be very clear, the Bill does not restrict in any way a person's right to apply for his or her information through a subject access request. Article 15 rights are in no way interfered with. Article 15 continues to exist as a pathway. That is probably something we will discuss tomorrow as well but it continues to exist. There are a very small number of GDPR rights limited. As we know, the GDPR allows for the limitation of rights but they have to be clearly set out in legislation, and that is the purpose of section 65. There are a small number of rights that are limited and they are set out there clearly. However, the limitation is done in a narrow way and it is only to ensure the full operation of this Bill and, in particular, the fact release of information takes place in all circumstances because, as we know, under the GDPR the release of information is not guaranteed in every circumstance. Even with a subject access request under Article 15 there is the balancing test of the rights and freedoms of others. In our legislation we are working on here, because this information is seen as so vital, the legislative intent is to ensure the full release of all information on every occasion, and that is why we are going this route rather than relying on the GDPR. We did not want even one situation left where somebody could be refused access to his or her identity information on the basis of the rights and freedoms of others.

I thank the Minister. I am not sure about tomorrow. I think it is next we week we are discussing it. I saw a few people questioning themselves and others and just wanted to allay their concerns.

I thank the Minister for many of the clarifications around that. Amendment No. 24 refers to "records of any vaccine trials in which the relevant person was a research subject". Senator Seery Kearney touched on it as well. I was not necessarily touching on medical vaccines or ones given by consent. I am talking about research, as does that amendment. The House should remember we now know children in State care aged up to seven years were being involved in research and we know something of the adverse reactions some of them had. That was a point I wanted to make.

I also inform the House the BBC has commissioned a documentary and I have been part of it. Indeed, it came to this House some weeks back. The documentary was to go out in June but will now go out in July. The BBC is covering this very extensively and quite a number of people are being interviewed for it and teed up for this. This is a programme that has been in the making for 12 months. It is important we are clear. I am not taking away from what the Minister has said but we cannot emphasise enough the difference between medically approved vaccines, and adverse reactions to those are a different issue, and the fact these were children in care or in institutions, with State involvement or not, who were gathered up and used for vaccine trials. We know this happened and it is factual. I think the Minister has made that clear. That is the reason I wanted to talk specifically on that, just so we were clear. It would be a pity if we do not really get that message out. Nobody but nobody is going to block their access to that information. There are other strands of investigation and court proceedings going on as we speak. We know there is a very substantial amount of information but we know also there is a very substantial amount of this information in the hands of institutions that are still operating, albeit historically a long time, are in receipt of State funds and are still very much part of the care system and the health system.

I thank the Minister for clarifying that. He might just reiterate that point. It is about communication. We have to get the message out that there is no hiding place for anyone who was involved and took advantage of children, with the support of some people who ran these organisations, because the medical crowd did not break the doors down. They were facilitated, they were invited in and in many cases they were paid. That is an important message to get out there.

To follow-up on Senator Boyhan's point, it relates to some of the earlier amendments we discussed. There is a difference between vaccination and the involvement in vaccine trials. Information that a person was vaccinated, be that as part of a trial or part of a medical procedure, is not itself the same as that information in respect of a process of exploitation, effectively, that the person was part of.

Again, with absolute respect to colleagues who referenced a barrister or legal representative, many people will not have legal representatives. That is why there is this attempt and this desire for these wider definitions. It is not to exclude other provisions but for more and more things to get named. People know they can battle for a phrase to say they believe it includes X, Y or Z, but they are not necessarily going to have that legal representation to make that battle for them, and they do not want to have to go that route. If there is a minimalist approach that says a person was given this or that vaccine, it is an explicit thing that is not in the Bill at the moment for a person to know he or she was part of a vaccine trial and to have some information or some record of what that person was part of, as might be appropriate. It obviously does not have to involve names of others who were subject to the trial.

It also comes to a question of where there was financial exploitation of children. That is part of the information people should be able to access in respect of themselves. They then may do what they wish with that in the form of any actions they wish to take, but financial exploitation is part of this and probably another part that is missing-----

I apologise, but I am going to have to ask the Senator to report progress.

Progress reported; Committee to sit again.
Cuireadh an Seanad ar fionraí ar 5 p.m. agus cuireadh tús leis arís ar 5.16 p.m.
Sitting suspended at 5 p.m. and resumed at 5.16 p.m.
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