Dr. Conor O'Mahony:

Deputy Troy raised the point that some of the legal analysis presented by me and Dr. Ryan is at variance with some of the points made by the Department's legal advisers and asked how we could move forward in that situation. The analysis I presented to the committee, particularly in the written submission, is publicly available. I have circulated it widely and am happy to stand over it. It has been noted that Dr. Ryan and Dr. Geoffrey Shannon take a similar view. It is regrettable that the advice that comes through Government Departments is not so widely available, because it is difficult therefore to engage with it. There is a culture of secrecy around legal advice on draft legislation. That is regrettable as it stifles debate and proper analysis. I do not expect that the culture will change just because I have said that, but on this issue I would be more than happy to engage with the Department on a less public basis to discuss its analysis and compare it to mine. In the event the Department has identified something I have missed, I would be happy to hold up my hands and say that. However, I would be somewhat surprised if that turned out to be the case.

That said, my basic point was not that the right to privacy has no role to play here but that there is a balance to be struck between the two rights, and that the courts want the Oireachtas to deal with that balance and not to have to get involved or step in and legislate instead of the Oireachtas. The privacy interest of the natural parent grows stronger the more information is provided. When one starts with the basic level of the birth certificate the privacy interest is less strong than it is when one progresses through to files and contact information. The Bill acknowledges all of that by providing progressively more protection for the birth parent as more information is requested. That is appropriate. However, the Bill tilts too far in the direction of the privacy right of the natural parent by creating a situation where access to the basic level of information of the birth certificate, which does not give rise to any contact information, is subject potentially to exceptions and qualification. In that sense it is not my argument that privacy does not have a role to play here, but simply that if one is to balance the two, as the Bill seeks to do, that balance leads too far in one direction at present. However, my key point is that whatever balance is struck, that balance is for the Oireachtas to strike and it is one that the courts are very unlikely to second-guess.

Regarding compelling reasons, there was a question about how to ring-fence that and make it as narrow as possible. The basic level of access to the birth certificate is at such a minimal level that the compelling reasons argument is not persuasive in that context. My preference, as I submitted in my earlier presentation, is that it would be better to remove it altogether rather than seek to define it. Compelling reasons are more relevant when one reaches the point of contact information but, of course, the birth parent is given an absolute veto over contact information anyway. They do not have to prove compelling reasons; they get to veto for whatever reason. At the basic level of access to the birth certificate, I am unconvinced that there is any such thing as compelling reasons. Including the possibility of an exception in that regard might run into difficulty with respect to international human rights law in the future. If it is to remain there, and I would prefer if it did not, it must be defined as narrowly and precisely as possible.