Thursday, 20 January 2022
Birth Information and Tracing Bill 2022: Second Stage (Resumed)
How often, in recent times, have we heard the phrase "Do not let the perfect become the enemy of the good"? In many ways, I believe that this applies to the legislation we are discussing today. Much of what is in this legislation is good, and in that context I commend the Minister on bringing forward the legislation. I listened carefully to the Minister's contribution yesterday. One of the things I appreciated was the fact that the Minister gave credit to many others who had worked on this legislation before him, and he named them. The Minister's own contribution indicates his determination to ensure that the legislation we end up with is fit for purpose. That much I welcome. This Bill, however, which I would call good, is good only in the context of the current, totally unsatisfactory situation. I believe, however, that amendments are needed to improve this legislation so that a good Bill can become a better one, even if not a perfect one.
Because the Minister gave credit to others for their work on this legislation up to now, I hope that the Minister will show the same flexibility in the coming weeks when it comes to taking on board at least some of the more important recommendations from the Joint Committee on Children, Equality, Disability, Integration and Youth in its report on the general scheme of the Birth Information and Tracing Bill. The work of the committee, and all who made submissions to it, is hugely valuable in that it adds to the legislation and refines it in such a way as to make it fully fit for purpose. There are 83 recommendations in the report and I have gone through it. The Minister has taken some of the recommendations on board but many others he has not. I ask the Minister to take those into consideration on Committee Stage. Some of the more important outstanding recommendations include the removal of the mandatory information session requirement. It is important to note that the committee puts in place a positive and reasonable alternative to that requirement in cases where a mandatory information session is required. The report states:
The mandatory information session should be removed from the legislation. An alternative appropriate safeguard should instead be provided for, such as the sending of correspondence by registered post.
I put it to the Minister that this would vindicate the right to privacy just as well as any mandatory information session. A letter that clearly sets out the situation and the circumstances would be as legally sound as an individual delivering the same information. One could also include, for example, the possibility for an adopted person to request further information where he or she thought it necessary.
The right to identity trumps the right to privacy but we know and agree that consideration must also be given to the right to privacy. I believe that the consideration and the right can be vindicated, and does not require attendance at a mandatory information session. Other colleagues have said it, and I hate to repeat it, but it is true that the requirement for a mandatory information session shows a paternalistic approach. Perhaps it will be a lecture by somebody employed by Tusla, or some other person, rather than information provision. In other words, it is a case of "Listen to me and what I am saying" rather than "these are circumstances that we want you to take into consideration". If a letter or short document is given to a person then he or she is much more likely to read it carefully and pay attention. One hardly remembers half of what people say to you. If we really want to vindicate the right, then I honestly believe that a written document would be more powerful and perhaps more legally sound than anything an individual might or might not say at an information session. Whether the Minister likes it or not, the truth is that many people feel demeaned by this requirement. Basically, they feel that they are being told "Sit down and listen to what I have to say". The Minister must find an alternative. I believe and hope that he will.
I have read the committee report. I am not on the committee and I do not pretend to be an expert. I have read what the Clann Project has said, and there has been some excellent analysis of the situation and the legislation. I have also received emails on the issues from many constituents and other people throughout the State. I have time to raise only some of the more important issues.
The issue of the false registration of births has to be recognised in the Bill. There is a huge difference, in terms of a criminal offence being committed, between deliberately falsified and incorrectly recorded details on birth certificates. Illegal and unlawful adoptions must be fully recognised and acknowledged. I can see that the Minister is taking notes. I hope what he says in his reply to the debate will make me feel better about that particular issue. As I said, I am not an expert in this but I have gone through the report.
The Minister is in charge of the Bill. That is a great responsibility. It is very difficult for him to right all of the historic wrongs but now is the time, because many will not live to see further legislation vindicating their rights. Changes must be made to ensure that the Bill allows unconditional access to birth certificates and birth information for everyone and a clear statutory right to access one's own care or adoption file. Many colleagues have quoted the Clann Project's request for the file, the whole file and nothing but the file. There can be no discrimination when accessing personal data. There has to be a strong presumption towards openness.
There must also be a statutory right of access to administrative records. It does not matter who holds that information, whether they are adoption agencies, institutions, State bodies or others. We all recognise that the Bill must be robust. One or two colleagues have spoken about the fact that it may be tested in the courts. We understand all of that. While the legislation must be robust, it also has to be fit for purpose. In this case, the purpose of the legislation is to, for once and for all, deal with the many historical wrongs imposed on many adoptees who have had no access to their information.
I agree with Deputy Pringle. I know the Minister feels the same as we do. We must fully understand who is affected by this legislation. That cannot take away from its robustness. At the end of the day, there are only a few sticking points. I believe that the report from the joint committee offers the Minister alternatives and possible solutions to ensure that the legislation remains robust, while taking into consideration its impact on many people throughout the country who are eagerly awaiting it. He has probably read the report many times. I ask him once again to look at it and use the flexibility that he has. I believe Committee Stage will also help to ensure that, as I said at the beginning, while this legislation may not be perfect it can be better than it is right now.