Thursday, 20 January 2022
Birth Information and Tracing Bill 2022: Second Stage (Resumed)
Gabhaim buíochas leis an gCeann Comhairle. I thank the Minister for bringing this Bill forward to enable us to discuss it. I also acknowledge Deputy Funchion and her work as Chair of the committee which did such significant work to analyse where and how this Bill should go. She will be returning to the Chamber shortly as she has been here all along. I am not a member of that committee and have not been part of that same level of detailed process but I wanted to reflect upon this Bill from slightly different perspectives on how far it has come, what that means since 2011 and 2012 when the Government was talking about this initially and what that means for the constitutional dial and the scope that gives us for imagination for the future.
I had the good fortune and privilege to work in the Government, in the Department of Children and Youth Affairs, in that period of 2011, 2012, 2013 and 2014. That was a very interesting and difficult period. We created the first Department of Children and Youth Affairs precisely because of how many issues of real challenge there were in child protection services and historically in respect of sexual abuse, right across the State, the church and the social architecture. There were so many issues to be addressed and a dedicated Department of Children and Youth Affairs was established to do that.
I recall when I to started work there that the first thing I was given was the Cloyne report to read and prepare for publication. That was one of the most difficult reports I had ever seen, obviously at that stage in my career, and the preparation for the reaction to it was very important. Excuse me for taking the time to say this, but I say it by way of context building in seeing quite how far the work that the current Minister has done has come and where this work came from.
At the time, if the House can recall, the reaction to the Cloyne report was around a different architecture for the reporting of child sexual abuse and, in particular, the creation of mandatory reporting and what that meant. I recall the then Minister, Frances Fitzgerald - I know that she will not mind me saying this - and the background and the challenge that she had within the Department but also within the church, and the ideas and reaction from the church even then about mandatory reporting.
Mandatory reporting, as a concept, was already well-established in law. It had been there in the white-collar offences legislation some time previously so I do not know why it was an issue. It became one, however, in the context of the response to the sexual abuse issue from a legislative perspective. As the idea was there, why not then just have equivalent legislation?
Of course, it had a different context and tone. I remember thinking that the church might respond with questions around freedom of religious expression and I was surprised when the argument that was advanced at that time by the people who were there at that stage was in respect of the seal of the confessional, which was to my mind such a weak legal argument to advance against the strong constitutional position that could be taken by the Government of protecting the primacy of the public good. I was very surprised that, A, they advanced any argument against mandatory reporting and, B, that the argument would be so weak. I remember taking great confidence at that time in the Government’s position and the position of the then Minister, Frances Fitzgerald, in being able to press ahead against what was a cultural difficulty but not a perceived constitutional difficulty and she did press ahead. I remember one interview, in particular, with Pat Kenny where she just said that she was doing this, it was in the public good, irrespective of the seal of the confessional and the ideas of mandatory reporting which were already in law. This was what she was going to do. It was an important constitutional moment for the Government in the context of the Department of Children and Youth Affairs.
Similarly, the children’s referendum at the time came through this process of evolution. The House may recall that back in the period up to 2007, a cross-party committee was established to look at the rights of the child and the Constitution. It came up with wording which was a phenomenal piece of work. From a constitutional perspective it was difficult to put forward as a referendum because there were so many constitutional phrases in it which did not have constitutional standing, which meant that there was a read across which was problematic with many of the different ideas, concepts, new words and so on. I remember before the 2011 election, the then Attorney General, who is actually the same Attorney General now, produced new wording under the Minister of State with responsibility for children at that time, former Deputy Barry Andrews, and it did not come up to the mark of what the people on the committee had hoped for and expected. It went away. There was an election and the new Government was formed with a mandate to implement either the 2007 wording or something akin to this wording.
A great amount of work was done for many years about shifting the constitutional dial from what had been advanced by the then Minister, Brian Lenihan, in 2007, what was advanced then by the Barry Andrews wording at the end of 2010 and the beginning of 2011, to what we ultimately reached.
It could not reach the ideals and the words of the 2007 committee wording, but it was where we got to. I do not want to say it was a tortuous process because it was not. It was a careful, important process but it was one that created challenges between a new Government and a new idea about children as rights-holders in and of themselves, as opposed to deriving rights from their parents. The arguments there were about the words "may" and "shall" are debates the Minister has been through as well, but the political decision-making and drive, accommodated within the Attorney General structure, ultimately won the day on that matter. We came up with a wording which at least gave us the basis for the establishment of the rights of children, the capacity to intervene in family circumstances in a way that had not been considered constitutionally permissible previously and the basis for articulating rights such as the voice of the child and the best interests of the child as being absolutely of primacy as opposed to being something that was derivative.
The reason I mention all that is because this legislative measure was also there at the time, and it was one we just could not get through. We just could not do what we wanted to do, which was put through this Bill. It was about identity. We came up against the challenge that is well documented - I believe Deputy Bacik was involved at the time - involving the balance between the rights of the birth mother and the right to identity. Interestingly, the right to identity came up shortly afterwards through the legislation in respect of assisted human reproduction. Birth identity, health identity and all those concepts were around at the same time. However, this was a barrier that could not seem to be overcome. There were a few reasons for that. One is that it was ten years ago and it was closer to the time when, perhaps, there were more people who were able to articulate, or were closer to, the experience. I am not sure why. However, the political will was very strong. I went back through the comments of the then Minister, Frances Fitzgerald, and her replies to parliamentary questions regarding the things she wanted to do. I could see her expressing her frustration - obviously, I had seen her frustration in to a greater extent because she was not able to express it publicly - with regard to this balance between privacy and identity.
Of course people have come to this debate from different perspectives. Of course there are those who left behind a very difficult time in their lives, moved away from it and chose to or were socialised to move away from it in a particular way, which was to protect a secret. We respect their experience in every way. However, the right to identity, to know who one is for a baby born in circumstances where he or she did not know where he or she came from and being able to establish contact are the principles the Minister has been able to include now. I am very glad he has. I am glad he has been able to do this work and bring it to this balance instead of that balance. I respect the comments made by Deputies on all sides of the House who asked the Minister to go further, to do better and to do more, recognising that he is operating within a particular constitutional structure and within the rights structure that we have.
I respect all that, but I must comment on how far the constitutional dial shifts and can shift. One might ask why that happens. It is the same Constitution. Okay, it is a living Constitution and there are some judgments by the courts which point the dial this way or that, but it is largely about public sentiment as represented by the public's political representatives and how far they can push ahead through the architecture at any given time, having regard to the broader context. Unfortunately, much of where the constitutional dial gets pushed to comes from a place of difficulty. We managed to do the mandatory reporting because of the Cloyne report. Absent that report I do not know if we would have been able to get it through. Now we have an architecture for child protection across every sports club in the State where it is simply accepted. There is no question about it and there is no difficulty. That is the cultural norm now. In the same way, with regard to any outstanding pieces where the Minister can do more and can create more imaginative solutions to the practical problems that Deputies correctly throw up on Second Stage, because that is our opportunity to tease the Bill out, I hope he will push ahead with confidence and take the experience of the past. The Minister has delivered a Bill which delivers the constitutional dial that we tried to deliver. Much has happened in between. The Minister has been able to do this because of the desperate experience of the people in the mother and baby homes and others, including all the people who had been articulating this long before with regard to adoption rights. There are many people who have contributed to this development in legislation or to the impetus for the development of this legislation.
I recognise the constitutional architecture in which the Minister is working but I ask him, where he can, to be pushy and imaginative and to take the opportunities, because it will always happen eventually in some way. I commend him on his work to date and ask him to be imaginative, where possible, as the Bill progresses through both Houses.