Dáil debates

Thursday, 20 January 2022

Birth Information and Tracing Bill 2022: Second Stage (Resumed)


3:35 pm

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I want to thank everybody for their detailed contributions over the past two days and consideration of the Bill since it was published. I want to thank the Acting Chair and Deputy Costello, in particular, as members of the joint committee, for speaking about a number of recommendations we implemented in moving from the original draft of the Bill last May to the Bill published two weeks ago.

It has been said in the House and on the national airwaves that no recommendations were implemented. A significant majority of the recommendations of the joint committee were implemented in the Bill. Another body of recommendations cannot be implemented in the Bill but will be implemented in terms of how it operates. A small number of recommendations were not suitable for inclusion in the Bill as they dealt with other elements in terms of legacy issues. We respectfully disagreed on a small number of areas and those areas can be teased out further on Committee Stage.

We recognise that the Bill is complex. Deputy Funchion asked that my officials provide a detailed briefing on the Bill for Members of the Opposition, and I am happy to arrange that prior to Committee Stage.

There was discussion yesterday that the Bill should have been written in plain English. If all legislation could be written in plain English, I would happily embrace that but we know we have to legislate as we legislate. Our Department published a detailed plain English guide alongside the Bill. We also published a detailed FAQ document in plain English which answers questions individuals may have about the Bill. When the legislation is in operation, we will work to ensure that all of the relevant guides indicating how people can use the legislation are provided in plain English.

Some Deputies asked about the different categories and how that causes confusion, in particular in cases where people may not apply for all of their categories of information. Let me be very clear about how people can apply for this information, assuming the Bill is passed and becomes operational. People will be able to tick a single box and apply for medical and care information and birth certificates. We will also design the system so that if people only want certain parts of information they may only request that. We will make the system as simple as we can in order that people can get as much information held on them as is possible. That is what we are trying to do with the Bill, namely, give people all of the information that is there with no redactions and holding nothing back.

There was discussion during the debate today and yesterday about accessibility to medical information. I want to clarify the position. Adopted people and those who were boarded out are, under the legislation, fully entitled to all of their own unredacted medical files held by any of the relevant bodies. They can and will get those unredacted files under this legislation.

An issue arises when an adopted person is seeking information about the health records of someone who is in their family. In most cases, that will be about mothers and whether there are hereditary conditions in families that people need to know about. That is information they need, and we recognise that people need that information. Deputy Funchion said yesterday that as a non-adopted person she can get all of that information. I can get all of that information.

However, we do not have legal rights to that information. We get it because we have good relations with our parents, but none of us have a legal right to information about our parents. If my parents wanted to withhold medical information about themselves from me, they are entitled to do that, even it is information I need to know. Under the Bill, we are giving an adopted person a legal right to information about a third party. The third party is not able to consent to that information being given to a person; it will be a legal right. The information is provided through a GP because it is a significant broadening of the adopted person's rights in terms of being able to get information about somebody else without his or her consent. When I met a group of mothers, they were concerned about this and broadly wanted to provide information. Somebody else getting their medical information without their consent is a big deal, and there have to be protections put in place around that. That is why we are suggesting a process of going through a GP for that part.

In the case of adopted people who want to access their own medical records, such as vaccination records or anything like that, that information will go to them directly, unredacted and fully released. I hope that provides some clarity and reassurance on that point.

Some Deputies said they believe our definitions of birth information are too broad. I do not accept that. We have broadened them further, but we will continue to look at those definitions.

Several Deputies spoke about use of the term "incorrect birth registration". I know illegal birth registrations happened and I have acknowledged that. I have always used the term "illegal birth registration" in any of my communication on that issue. Our concern was that if we said something was an illegal registration, that category of information could only be accessed by those who could conclusively demonstrate that they were the subject of an illegal birth registration, therefore narrowing the number of people who could use that category. We want to create broad categories and Deputies have called for broad categories in all of this. That is why we were worried about using the term "illegal" and we used the term "incorrect" because it is a wider category. That is why we did not accept the recommendation in the JLC report to use the term "illegal".

One of the Deputies used the term "false or incorrect". We will consider making a change there to try to recognise that. The sole purpose was to get as broad a definition as possible so as many people could get as much information as possible. I have always recognised that illegal birth registrations were undertaken by institutions. A significant piece of this Bill is to address their situations, particularly the 151 individuals who were in St. Patrick's Guild. We have done a significant amount.

I have met groups and individuals seeking to provide them with a way to correct their incorrect birth registration and also to recognise the identity under which they have lived their lives. They have a real fear that because they were using a different name from the name that would have been on the birth register but for the illegal act, the contracts they have entered into all their lives may have been based on a false initial premise. This legislation deals with that. It provides a brand-new legal system to recognise their social identity which is so important. However, we will look at the definition of incorrect registration. I think Deputy Harkin also asked that we look at that.

We did not accept the JLC recommendation that a new agency be created to take on the functions of Tusla and the AAI as regards this Bill. I have always said that I wanted to provide information to adopted people as quickly as possible. My sense is that everyone across the House believes this needs to be done quickly. People have waited too long. We all know stories of survivors or adoptees who died before being able to get that vital piece of information.

If this Bill is passed, there will be a three-month period within which people can register their contact preference and then people can start to get their information. If we wait until the creation of a new agency, it will take 18 months or two years. We need to be upfront with people about that. A new agency would require a statutory basis and require people to be employed or perhaps be transferred from existing agencies. It will take a significant period of time. I am not prepared to ask adoptees for that. Deputy Funchion indicated she would table an amendment on that and we can discuss it further on Committee Stage. However, if this legislation is passed, after three months people can get their information. That would not be the case if we were to start a new agency.

Section 64 of the Bill calls for a review of the operation of the legislation after four years. If it is determined by me or whoever succeeds me in this office that the legislation is not working or that it is not being applied in a way that survivors or adopted people are satisfied with in terms of Tusla and AAI, a new body can be created. On Committee Stage, we can consider if the four-year period for review needs to be truncated somewhat and that we should look at the operation of this legislation earlier. We need to be very upfront with people. A new agency takes a long time, leading to a greater delay before adopted people get their information. That is why I did not accept that particular piece.

Regarding how we operate this legislation, there will be a stakeholder group, involving adopted people, to assist and guide the Department, the Adoption Authority of Ireland and Tusla. Just as the Oireachtas joint committee's meeting survivors influenced its report, my departmental officials and I have been meeting survivors, adoptees and persons whose births were illegally registered. That has assisted us significantly. The meeting with mothers convinced me that we needed to change the term from "birth mother" to "mother" in the legislation. Deputy Funchion will recall I asked the committee to meet them even though they were too late to make a submission. The committee kindly extended the time to allow that important voice be heard.

During this debate many people raised the issue of the information session. Deputy Jim O'Callaghan's speech was important in setting out what we are trying to achieve here. The focus of legislation is on the constitutional right to identity, which, as I said when I spoke yesterday, has been ignored and the State has failed to vindicate for adopted people for such a long period of time. However, another constitutional right is at play here: the right to privacy. In the legislation we have decided to give pre-eminence to the right to identity which is why everybody who makes an application under the provisions of this Bill will get all their information. Unlike in previous Bills where there were exceptions, even narrow exceptions like if the mother's life was at risk they would not get information, that is not the case in this Bill. Everybody who makes an application on this under the provisions of this Bill will get all their information.

In taking two constitutional rights and deciding to put one over the other, which is what we are doing here, we must demonstrate, primarily to the courts if the constitutionality of the Bill is challenged, that we have considered both sets of rights and that we are balancing them in a fair and proportionate way. It is our view that the system we have provided for in this legislation with an information session - no longer in person and no longer done by a social worker - where that no-contact preference is conveyed to the adopted person is the best way to ensure that the constitutional right to privacy is sufficiently present in this legislation. I believe this means that we do not risk it being challenged constitutionally and that we do not risk the Supreme Court at some point determining that there is not enough protection of privacy rights and declaring the legislation to be unconstitutional.

We know that there was a challenge to the issuing of information in the past - the I O'T v. B case. Therefore, I am concerned to ensure the Bill is constitutional. Obviously, every Minister wants to introduce legislation that is constitutional but there is a history of the constitutionality of legislation in this area being challenged. That is why it is so important to get the balancing of rights correct.

I believe Deputy Cairns said yesterday that a very small proportion of mothers will have a no-contact preference. I want to explore that because she is correct in that. The information session only takes place in circumstances where a parent has registered a no-contact preference. If the parent has registered a preference for contact or if the parent has not made any entry into the contact preference register, the adopted person seeks the information and the information is sent out to him or her. That will cover the vast majority of cases.

We have a contact preference register at present. It is non-statutory and run by the Adoption Authority Of Ireland. We will replace that with a statutory contact preference body. My understanding is that 4,500 birth relatives of adopted people have registered contact preferences on that register. Of those, 99 registered a no-contact preference. Of the 4,500 parents who used the existing system, only 99 requested no contact. Going forward, I think that will be the kind of ratio we will see between those who will register no-contact preferences versus contact preferences. Even if only one parent registers a no-contact preference, he or she will be actively setting out a privacy concern about the potential release of his or her information to the adopted person.

Yesterday, Deputy Martin Kenny spoke about the secrecy and shame when the adoptions took place and the pressure, be it moral, situational or actual, put on women to give their children up for adoption. He is absolutely right in that regard, but this will be a decision taken by parents, by mothers, that they wish to register a no-contact preference now. It will be something they consider they need in their life now. If they make a decision that they want to register a no-contact preference, it has to be conveyed and be part of the process of balancing those rights.

The Acting Chair spoke eloquently about a criticism of the approach recommended by the Oireachtas joint committee on the use of a registered letter. We can go into that in greater depth on Committee Stage. I believe the system whereby a face-to-face meeting or, importantly now, an online meeting or even a phone call is used to convey to an individual, in the very limited circumstances set out in the legislation, the constitutional preference of a mother is the way to ensure that if this legislation is challenged in the High Court or the Supreme Court, the court can say it considered both sets of rights and decided to elevate the right of adopted people to their identity and information but that it sufficiently considered the position of the right to privacy in making that call. We will no doubt discuss that further on Committee Stage.

The position we have reached is one that we have given significant consideration in the Department. Information sessions have been a feature of previous draft legislation, so it is has not come out of the blue. The use of a letter is a matter we considered and one that was raised with the Attorney General. It was thought not to be sufficiently protective of privacy rights. As I said, we will discuss that further on Committee Stage.

As the Minister responsible, I want to ensure we take every opportunity to strengthen this legislation. I will listen and be open to all amendments that come forward on Committee Stage. However, I am also conscious of the need to progress this legislation rapidly. I am somewhat surprised to learn that I am being criticised for the tight turnaround in respect of the time between the Oireachtas joint committee making its recommendations and this legislation being brought forward. Everybody has told us this legislation must be progressed quickly and it is progressing quickly. Officials in my Department have worked very hard because everyone wants to see this legislation passed in order that people get the information they deserve and need.

I will bring two sets of amendments forward on Committee Stage. Both attempt to provide further protections and guarantees to those who are subject to illegal birth registrations. First, the interdepartmental group on the St. Patrick's Guild incorrect birth registrations recommended to the Government that amendment be made to the Succession Act to provide that persons affected by incorrect birth registration should, in addition to their existing right of succession in regard to their birth parents, have succession rights in regard to their social parents as well. The Minister for Justice, under whose remit the Succession Act falls, is preparing a legislative amendment to the Succession Act 1965, which will give full effect to that policy. Subject to the approval of the Government, I hope to incorporate that amendment by way of a Committee Stage amendment.

Second, I plan to add a provision to the Bill that will afford assurances that any transaction entered into by a person in his or her social identity - again, in the case of someone who is subject to an illegal birth registration - will not be invalidated because the person was subject to an incorrect birth registration. This should provide certainly regarding a variety of transactions entered into in good faith of the fact that it was not known that the birth of the affected person was incorrectly registered or, as is often the case, illegally registered.

I will introduce those two amendments on Committee Stage. I will listen closely to and consider the discussion we have had in the House in the past two days. I will also continue to look at the analysis. I know there has been a lot of academic analysis of this Bill. I know a question has been asked as to the issue of consent under this legislation. My officials are already engaging with the Office of the Parliamentary Counsel to ensure we make every part of this legislation watertight.

I come back to the point I concluded on yesterday by recognising again that for such a long time - it is 70 years since the adoption legislation was first passed - successive Oireachtais have struggled with this issue and failed to bring about a result. They failed to conclusively provide adopted people, those who were boarded out and those were subject to illegal birth registrations with full access to all their information. This Bill finally does that. There are no exceptions. No information will be left out. Nothing will be redacted. Everyone will get his or her full set of information. That is an extremely positive advance in this field. I know many Deputies have recognised that.

We will work on Committee Stage to continue to strengthen this legislation. It is a good Bill, which has been needed for a long time. I look forward to bringing it through Committee Stage and, hopefully, passing it rapidly through this House and the Seanad and signed by the President, thereby finally allowing adopted people access to this vital information.


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