Dr. Fergus Ryan:

I will make three points in response. First, I reiterate the point regarding privacy. There is something of a tennis match between the Judiciary and the Government on these issues. It is arguably open to the Oireachtas to determine the appropriate balance to be struck in these cases. The courts have consistently said, when these issues have arisen, that on sensitive social issues of this nature they will defer to the Oireachtas, and sometimes they defer very heavily. On the one hand the Government is saying it cannot do this because the courts will block it but, consistently, when the courts are asked they say it is up to the Oireachtas to make the call.

I agree with the point Dr. O'Mahony made. I believe the right to privacy must be taken into account and given due weight in these circumstances but the precise balance is for the Oireachtas to determine. To suggest somehow that only one type of balance is permitted and that the courts will strike out every other type of balance that might be achieved is not correct. In IOT v.B the court said there was a right to identity. It also said there was a right to privacy. The key point in the overall tenor of the decision is that neither the right to privacy nor the right to identity is absolute. The consistent message from the courts is that the precise balance to be struck is a question for the Oireachtas. They have consistently emphasised that the law-making role is for the Oireachtas, not the courts, and that they will not interfere lightly in that context. That is important and I have addressed it further in my written presentation. Dr. O'Mahony has addressed those issues much more effectively as well in his presentation.

Regarding the appropriate timeframe, I and others have raised the 14 day appeal window. It is very short. It is also important that the appeal window is not too long, but it should be long enough that somebody is able to access legal advice with a view to deciding whether to go ahead. I suggest 28 days at a minimum as 14 days is far too short.

Finally, with regard to compelling reasons it is worth noting that the concept of compelling reasons has been used in case law regarding custody, including custody in cases where a child has been placed for adoption but the adoption has not gone through. The use of compelling reasons by the courts has tended be about something that is quite pressing. It is only if there are very pressing circumstances, and the courts' interpretation of compelling reasons is something that is very pressing. The problem with compelling reasons is that what might appear compelling to one person might not appear compelling to somebody else. It is important not to be over-specific, because by doing that one could rule out a rare but compelling situation that we might not have contemplated, but it is also important to have at least some guidance as to what will and will not be considered compelling. Otherwise there is a risk that something that might be appropriately dealt with, for example, by a counselling or information session, might be used to block information being passed on, when in fact some other mechanism could be used to deal with it.