Dr. Fred Logue:

The Deputy mentioned the balancing of rights. It arises from an old case, the I. O'T v. B case, which is being misinterpreted. That was a different issue. I have written a paper with Professor Maeve McDonagh, Dr. David Kenny and a few others that some of the members may be aware of. It sets out why an individual balancing test is not required on a case-by-case basis in any access legislation. I would refer to that.

In nearly every other EU jurisdiction, there is a system of open access to adoption information under exactly the same legislation, namely, the GDPR. That included Great Britain and Northern Ireland before they left the EU. If there is a constitutional issue, the GDPR takes primacy; it does not matter what the Constitution says. The idea is that the Legislature will set the parameters for the balancing in the legislation. There is wide discretion for the legislators. The principle is that the legislators, the democratically elected people who pass legislation, are best placed to conduct that balancing test. That does not require to be done on a case-by-case basis. For example, as I said, we have open access to birth certificates. I am always baffled by the argument. Everyone knows who their mothers and fathers are, more or less. That is true in 99.99% of cases. We do not have privacy as between children and parents, so where does this right to privacy come from? That is the question I would ask. We have an open birth certificate register. I can go in and find out the names of all the members' parents. It is even more bizarre in the case of adoption because it is easier for people who live locally to somebody who gave up a child for adoption to find the birth certificate of the child because they will know the name and date of birth through local knowledge, whereas it is harder for the adopted person to find that information. If a right to privacy genuinely applied to the identity of a person's birth mother, those records would be secret, through legislation.

We must proceed from the basis that this legislation is to give full or further effect to the GDPR rights. We cannot start from a place that assumes this is a new right. If we do not start from that point of departure, there will be a massive conflict between this legislation and the GDPR.