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

The information session is about the balancing of two sets of fundamental rights. There is the fundamental right to identity information of adopted people, and it is a right we all know has been denied for so long. There is also the fundamental right to privacy of a parent. The information session would apply in a very small number of circumstances because it will only apply where a parent has proactively indicated on the contact preference register a "no contact" preference. There is an existing national contact preference register and we have discussed before the very small number of parents who have indicated such a choice. It is in double figures. Nevertheless, that small number of people have indicated a clearly demonstrated expression of their wish to exercise a right to privacy or anonymity.

Deputy Cairns spoke with great elegance about the system of secrecy that was developed here and she is right in all she says. It is not for me or any of us if a parent wishes to register a "no contact" preference to question that or dispute their desire. I do not dispute that anyway, although others may do so. If those parents, for whatever reason, believe they need some barrier to contact, it is not for the Oireachtas to dispute that view.

The question is then how to balance their desire to exercise their fundamental right to privacy with the desire for information. We have established in this legislation a system or process whereby in every case the adopted person will get the full right of access to information. In every case following this process, full information would be provided. Sometimes we forget what a sea change that is and the scale of the change this legislation is bringing compared with the current position, where the working assumption is one of restriction rather than release, and keeping the information hidden. That is because of constitutional reasons arising from the court case in the late 1990s. I know there have been disputes around its interpretation but that Supreme Court decision has had that restrictive effect. That court case indicates there are individuals who will go all the way to the Supreme Court because of their concern about their privacy rights. I do not question that judgment call but it is why so many of the attempts to legislate in this area have floundered. There is a worry about the constitutional balancing test.

In engaging with the Attorney General and in particular since the introduction of the GDPR, which is a much stronger recognition within EU law of privacy rights, we have been able to find a mechanism that seeks to balance those two sets of rights. It is a mechanism we did not invent and it has been brought forward before. It has been proposed by academics and advocacy groups in previous draft legislation. People can disagree with it but when it is described as insulting or degrading to people, I will make the point again that this mechanism has been proposed for use as a balancing of that incredibly difficult set of rights that are so fundamental to different individuals.

We have changed how we set about this balancing process, despite it being said that nothing has been done here. We brought forward a significant amendment on Committee Stage recognising that some of the language relating to the explanation of privacy rights - the language used in original drafts - was not okay and we should not talk about that. Now the information session, to be used in a very small number of cases, is to be purely factual. The relevant person - an adopted person or person subject to an illegal birth registration - would be told the parent has exercised an entitlement under section 38(11) of the Bill to state he or she is not willing to be contacted by the relevant person and the making of that statement by the parent constitutes an exercise by him or her of a right to privacy. After that has been conveyed, the full information would then be released.

We believe this must happen to ensure this legislation is constitutionally sound and protected. I strongly believe that at some point the legislation will be challenged. There is a very high likelihood that will happen. It is legitimate for someone to do that. We have waited 20 years for this legislation and seen four, five or six attempts at drafts of legislation not getting through this House because of an inability to resolve this matter. I do not want a result where the legislation, on which all of us in the House have worked very hard to get broad definitions and processes that are working well, would be at risk of constitutional challenge.

We went into the proposal of a registered letter. Notwithstanding the possibility of somebody signing to indicate receipt of the letter, there is the question of whether the point would be conveyed. The indication has been that the method set out here is the greatest restriction of the privacy rights of parents that we are prepared to bring forward as constitutionally valid. We have a duty to ensure this legislation is valid so the right to full information release provided can be delivered to adopted people.

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