Thursday, 20 January 2022
Birth Information and Tracing Bill 2022: Second Stage (Resumed)
I welcome the Minister for Children, Equality, Disability, Integration and Youth, Deputy Roderic O'Gorman, to the House, and I welcome the opportunity to speak on this important Bill. I recognise and acknowledge the hard work done by my colleague Deputy Kathleen Funchion in ensuring that the Bill and the process has been thorough, efficient and the best it can be.
Since the formation of the State, the routes available for accessing of information by adopted people in Ireland have provided little support and few answers. As a result, adopted people seeking information on their birth and early life information files have been left with no clear legislative framework. Sadly, the Birth Information and Tracing Bill 2022 brings little hope of change. I acknowledge that the Bill will make some slight progress on the current situation, but it is very slight. Crucially, I believe that it fails to take on many of the recommendations contained in the report of the Joint Committee on Children, Equality, Disability, Integration and Youth. In fact, it has failed to take on board the most important recommendations. Yes, it has taken on some recommendations, but given that the report was only published on 14 December 2021, it seems that the Minister had already decided what he wanted to do with this particular legislation. With that in mind, we in Sinn Féin cannot support the Bill in its present form. We cannot have legislation that leaves some adopted people behind. We need inclusive legislation that provides all adopted people with the support and information to which they have a right.
We have many concerns on what we view as major weaknesses within this legislation. The Bill fails to provide unrestricted access to birth certificates, adoption files and early life information. The definition of personal data is not clear. This weak definition leaves the door open to various interpretations. The narrow definitions used in the Bill are very concerning and they need to be expanded to include individual agencies and institutions involved in forced family separations. We need stronger definitions put in place.
The method provided in the Bill for accessing records is hugely problematic. It allows only for part of the files to be released as opposed to the whole file. Applicants are expected to apply for several different categories of information. This will add completely unnecessary complications to the process. Perhaps the Minister will clarify why he is nodding his head. We need the process simplified to allow greater access to files, not unnecessary complications put in the way of adopted people that make it more difficult for adopted people when seeking their information.
I am glad that finally we have a Bill before us on birth information and tracing, the stated objective of which is to end the shameful situation where, for decades and decades, people were adopted and their mothers were, in effect, forced to give up their children even if sometimes it was technically consensual. In reality, the stigma that was imposed by church and State on women who had children outside marriage created the general culture that was anti-women. A culture of shame was perpetuated by church and State so that in reality the vast majority of adoptions in that environment were, in effect, forced adoptions and forced separation of mother and child. A Bill that attempts, or sets out as its objective, to end that denial of identity, history and heritage to adoptees is to be welcomed.
Unfortunately, while the stated objective of the Bill is to address the long battle that adoptees and mothers who were forcibly separated from their children have experienced regarding the information they are entitled to about themselves, it does not come up to the mark in terms of achieving that aim.
Before I go into the provisions of the Bill, I wish to state that I met some of the Tuam families yesterday. As well as commenting on the issues addressed in the Bill, they wanted me to impress upon the Minister their continuing anger, which I share, at the insulting form the redress scheme has taken. I refer, for example to the arbitrary six-month date relating to availing of the redress scheme. In other words, people have to have been in an institution for more than six months in order to avail of the scheme, as I have said previously. The league table of financial compensation is, frankly, insulting and dehumanising for the people to whom we are supposed to be providing redress. The use of a league table format to assign a particular monetary value to the trauma, hardship and suffering people went through and arbitrarily exclude many people on the basis of the six-month line simply beggars belief.
Despite the verbal acknowledgements we have had about the wrong that was done to adoptees, mothers and so on in mother and baby homes and other institutions of various sorts, there is a failure to approach the issue from a human point of view when it comes to redress. It is precisely that dehumanisation which lies at the heart of the wrong that was done to children and mothers for decades in this State. I ask the Minister to seriously reconsider the position in respect of all of that.
Another issue the families asked me to raise is the exclusion of many institutions from the redress scheme. It is not acceptable. As the Minister knows, I am an adoptee. Generally speaking, my situation has turned out to be a lucky one in that a wonderful family adopted me . My birth mother, with some considerable difficulty, which I will come to in terms of the provisions in the Bill, was later able to find me. I have had a happy outcome. For many people, however, that is not the case. Some have suffered terribly. They suffered abuse and have never found out the full details of their history. They have not experienced reunification. Their mothers may have died in the interim. Terrible suffering continues to be endured by many people. That is not limited to the institutions that are named in the redress scheme. As far as I know, Temple Hill, which is one of the mother and baby homes I was in, has been excluded from the scheme. Many people went through Temple Hill. That is not a major issue for me, but it is for many others. One such person was outside yesterday with the Tuam families asking why they have been excluded. The person also asked me to impress upon the Minister the urgency of getting the redress scheme right and getting it up and running. Another point the person made was that many of those affected are very elderly and it may be too late for them unless we get this right, establish the scheme and deliver redress as a matter of absolute urgency.
On the Bill, what is required is probably best summed up by the Clann Project when it said, "What we want is the file, the whole file and nothing but the file". The Bill does not achieve that. I will listen. I know the Minister has genuinely engaged on this issue and has put considerable effort into the Bill. As I have said all along, we have to the needs and hopes of survivors, namely, the mothers and children who went through the institutions and suffered forced separation, at the centre of our approach if we want to get this right. The latter was lacking in the context of the mother and baby home commission report. Many feel it is not happening.
When I look at the provisions of the Bill, I can see that it is lacking in many respects. I am not disputing that it is an improvement. As I said, despite the happy outcome I have largely had there are gaps in my history that I would like to fill and information that I still would like to know. I will certainly be making an application for my information to, if nothing, test whether the system works as soon as it is up and running. I will be doing that not only on my own behalf but also as somebody who is a public representative and who wants to see whether the legislation will actually deliver what the Government said it wants to deliver.
Survivors groups, adoption groups and others have requested that there be a stakeholder group, involving survivors, to oversee the implementation of the Bill and they want it to be allowed to have input into an ongoing review of the legislation in order to improve it, fill in the gaps and make sure it actually delivers for the people it is supposed to deliver for. That request needs to be taken on board. Not having an approach that involves stakeholders, survivors and so at the centre was most egregiously manifested in the failure to attribute the proper weight in the report of the commission to the testimonies of survivors. As a result, the summary and recommendations were, quite frankly, insulting because proper weight was not given to the testimonies of survivors. In a similar manner, the voices that have emanated from survivor groups, groups like the Clann Project and various other campaign groups representing survivors reflected the recommendations of the joint committee to a large extent, but have not found their way into the Bill.
The Bill should be about accessing the file, the whole file and nothing but the file, something that is required under the general data protection regulation, GDPR. People should have access to all information relevant to them, including their history, their heritage, the history of their care and any files, administrative or otherwise.
Some of those rights are subject to the caveat of a requirement to have an information session if the mother expresses a no-contact preference. That is not acceptable. It assumes, as one should not assume, adoptees necessarily want contact; they do not necessarily want contact. The Minister is bringing something into the equation. When people are simply looking for their birth and medical information, and trying to fill the gaps in their history, heritage and identity - things that have been taken from them which they are entitled to under the GDPR and entitled to morally in any event - why would we then import into that the assumption that they need to be lectured to about seeking to contact their birth mother or their birth parents?
Why would we make it in any way conditional on their accessing the file, the whole file and nothing but the file, receiving a lecture or warning about not contacting somebody when a no-contact preference has been expressed. It is wrong, insulting, unnecessary and should be removed from the Bill.
Even though the Bill makes references to the GDPR, it then - some are suggesting this is illegal - inserts the caveats, conditions and obstacles in the way of people having all the information that they are morally, and I would say legally, entitled to. While that is obviously critical, there are other issues.
The question of plain English is also critical. I still have not fully got my head around the Bill. I have more work to do on it before Committee Stage, when we will be tabling amendments. It is complicated and difficult legislation. I know legislation sometimes needs to be, but extra effort needs to be made to help all survivors and anybody who is seeking to get their birth information or to trace their parents and so on. Information on how to do that must be accessible to them. The Bill refers to illegal and unlawful adoptions as incorrect registrations rather than as falsely or incorrectly recorded where we know there was falsification of records. I do not see why the Minister would not concede that point which is very important given that it was a crime to falsify records. It is not just a mistake; it is a crime. That needs to be acknowledged in the legislation as illegal or unlawful adoption.
The other point is about people's right to access all the information from religious organisations or other institutions directly rather than having to go through the gatekeepers of Tusla and the Adoption Authority. That needs to be included. People should have the right to go directly to the religious orders or to the bodies or individuals who were in charge of their adoption, in charge of these institutions, to get all records, information and items that may relate to their adoption and their care.
We need clarity on the training for the people who will be overseeing this in assisting people with tracing and providing people with the information. We need to ensure we have the staff resources and the proper training. That training must include full knowledge of compliance with the GDPR with no caveats, restrictions or obstacles to people's rights under the latter.
I could raise other matters, but I simply refer the Minister to the failure to include many of recommendations of the joint committee. Organisations such as the Clann Project are very concerned and dissatisfied at the failure to put their requests into this legislation.
I will listen intently to the Minister's response to all these things and will do so with an open mind. However, there are major gaps, as has been rehearsed by other speakers. I hope the Minister will respond positively to the calls to amend the legislation to make it better than it is.
One very important issue I forgot to mention is the question of mothers' rights to all the information regarding their children. This relates to the first point about forced separation for most mothers. The Bill does almost nothing to enhance the very limited rights of mothers to access the information about the children they were effectively forced- sometimes actually forced, but more generally culturally forced - and pressured into giving up their children to adoption. The only additional thing the Bill does is to allow them to get that information if their child died in the institution, which is not good enough.
I know this from personal experience and from many stories I have heard. Mothers who were in effect forced to give up their children and the new environment are seeking information, history, etc., on their children have encountered severe difficulties. They have also been wronged and this legislation should remove those obstacles denying them the information about the children they were forced to give up. That also needs to be included in the legislation.
I eagerly await the Minister's response. I look forward to the further discussion and, hopefully, amendment of the Bill on Committee Stage.
I am grateful for the opportunity to discuss this important legislation, which has been long awaited by many people. It follows years of repeated attempts over decades to legislate for information rights for adopted people, all of which ultimately failed. The critical need for this legislation has been recognised by all political parties, by stakeholder groups and by professionals working in the area. I welcome the work the Minister has done in making progress on this legislation such a key priority of the Government. It is clear to me from the volume of messages, emails and letters I have received from my constituents how important this matter is for many people. That is why it is even more important that we get this right. We need to use this as an opportunity to right the many wrongs of our past.
The Bill will provide the much-needed, long-awaited access to birth and early life information for people who have been adopted or for those who have questions about their origins. Previous iterations of this legislation allowed for information to be withheld or entailed adopted people being forced into arguing for their birth certificates.
This legislation is different. It is different because it guarantees access in all cases. For the first time, legislation will enshrine in law a clear right to a full birth cert and to early life, care and medical information for all those who have questions on their origins.
We have heard the testimonies. We have heard the horror stories. We have heard evidence of Ireland's long and dark history of illegal and forced adoptions - babies being ripped from their mother's arms, children growing up with no knowledge of their origins or their family history. This Bill is about giving people access to that and access to the much needed sense of self that they deserve and treating their birth records with the dignity they deserve. This Bill went through lengthy pre-legislative scrutiny and the committee heard from numerous stakeholders, officials and, most importantly, those with lived experience. I welcome that the Minister has accepted the committee's recommendations around the advisory group, specific terminology, information campaigns, procedures for passing on information and records, among a number of other recommendations made by the committee, and those who have lived through the adoption process. We need to use this as an opportunity to highlight their voices, because it is their voices that matter the most. For some directly affected, they feel the provision of an information session in order to access records is particularly problematic. They feel, be it in person or by phone, it is a step that should not be required. The message I have got from constituents is that is seems like an enforcement of power where no enforcement should be necessary or that it fits awkwardly in a Bill that aims to right the wrongs of the past. I understand why those who seek their birth information may feel this provision reinforces the narrative that those requesting adoption information cannot be trusted or do not deserve access to their history, and that is so far from true. However, I do not believe for one minute that these are the intentions of the Minister or the Department.
As I have said, the Bill went through intense pre-legislative scrutiny and many people sat in their homes, on their computers and phones, taking in every moment of these broad discussions and lengthy debates, which I am sure felt very personal to an awful lot of people. That is why it is vital that we honour as many of the expert recommendations as possible and honour the people at the heart of this legislation, because growing up with unanswered questions about who you are or where you came from is an agony that some people can relate to. On a practical level, this creates a range of difficulties from a medical history and early-life records perspective. We have heard valid criticism from campaigners and survivors of forced and illegal adoptions and we need to listen carefully to those concerns. I ask the Minister to validate these criticisms and address them sufficiently as the Bill goes through various stages before it becomes law.
While this Bills seem like a step forward, it takes several steps back, unfortunately, and I am getting a huge response from people who have said that it does not go far enough. They have said that they find the Government spin that this Bill is a win for adoptees as most disappointing. I welcome the Minister's attempt to change antiquated adoption regulations and bring us in line with international norms. Unfortunately, it seems this Bill does not go far enough. Unrestricted access to birth certificates and information have not been provided for in this Bill, a redline issue for adoptees, which the Minister and the Government are well aware of. It is also missing a raft of recommendations from the report of the Oireachtas Joint Committee on Children, Equality, Disability, Integration and Youth, as has been stated time and again by Deputies.
From the formation of the State, Governments, hand in hand with religious orders and others, have treated adoptees, single mothers and women in general as second-class citizens. They portrayed those who fell into the clutches of the mother and baby homes as having some sort of dirty secret. As we know, many of these stories of the women are absolutely heart breaking and it is time we stopped stigmatising these citizens and their children. I wish to ask the Minister, and I will follow up with him on this, about access to birth certs and birth information.
Is it being considered on a 32-county basis? I was sent an email by a gentleman whose mother was from the South. They were moved to another institution in the North and then back down South again. How will that information be obtained? I note reference in section 36 to applications by certain adopted persons for tracing services in another jurisdiction. From reading this, it seems to pertain to people from outside the State who are looking for information because they were adopted outside of the State and are seeking information in the Twenty-six Counties. There are anomalies between people who were in institutions in the North and South and moved between two institutions, who live in the North and the South. How will that be addressed?
In the case of adoptees who seek their birth information record on medical grounds relating to a possible hereditary illness, it is wrong to deny or tie in red tape the information they seek. I am concerned with wording "relevant information". Who decides what is relevant or not? That is something that needs to be addressed. I understand it is a very emotive subject. I have already outlined in the Chamber my family's personal experiences in regard to this, in that my wife was adopted. I understand the Department has to work within general data protection regulations, but it is important that we make it accessible to all and let the Department deal with individuals on a compassionate basis. Let us heal the hurt as best we can.
I thank all those who were in contact with my office and commend all the adoptees, survivors and their families and advocates for their unending and relentless pursuit of justice over the 20 years since the first legislation was introduced.
Some of our citizens have gone to their graves without finding their families or ever receiving from the State the most basic information many of us take for granted, such as knowing the family of our birth, heritage and medical history, which can literally save a life. I am happy to take the opportunity to speak on this important Bill. Survivors from the Tuam Mother and Baby Home Alliance who contacted me are anxious that all persons are treated with the same dignity and respect afforded to all other citizens.
Access to records, as the Minister knows, is not as straight forward as it might appear. In circumstances where a mother does not wish any contact from her son or daughter, a mandatory information session is triggered whereby the adoptee engages with a third party who explains the mother's request for privacy. Adoptees and boarded out children are adults. Some are parents and some are grandparents. They perceive the State is treating them in a paternalist fashion as it decides how their birth information should be provided. This is a problem and it is not an easy one to solve.
We know from the independent review by Marion Reynolds into incorrect birth registrations that some adoptions were falsely registered - I have seen at first hand some of them - with long-term consequences for those affected. Not only were names changed but birth dates were also changed, making it virtually impossible via documentary evidence, if it were available, to find one's birth family. There seems to be little appreciation by the State of the impact of such illegal adoptions and various explanations that sanitise such practices as incorrect birth registrations do not capture the illegality or the extent of trauma inflicted on the adoptee and their birth family. Therefore, it is necessary to insert the text in the applicable section to read "illegal birth registrations", that is to make things precise and to make them truthful.
One of the first things a consultant asks anyone who presents with a medical condition is about family medical history as there may be a genetic component or predisposition to a disease. This is particularly true of cardiac disease and cancers, both of which are life threatening. As stated earlier, regarding the mandatory session for assessing birth care information, the necessity to engage with a third party, be it a general practitioner or a medic, is not treating the adoptee with the dignity and respect afforded to all other citizens. Survivor groups that I have spoken to are unhappy that information which could literally save their lives is conveyed by a third party or not conveyed at all.
The committee on children chaired by Deputy Funchion presented a detailed report and suggested a total of 83 amendments to the Bill.
One of these involved the insertion of an appeals process or oversight mechanism and appears to have been dismissed. It is important to all of us that those affected have the right and the opportunity to challenge and appeal the decision if they do not agree with it and if they wish to do so. I mentioned previously the children's committee, which submitted no less than 83 amendments. It appears that, in certain instances, these were disregarded. The committee laboured for months and sought expert views and opinion to enable the production of a comprehensive report, which was presented just last month. Adoptees and survivors of institutions are dismayed that their contributions, and those of the experts and the committee, have been discounted. No legislation is better than bad legislation that ends up in judicial review proceedings in the domestic courts or in international courts. Concerns relating to the general data protection regulation and data protection rights have been expressed by advocacy groups involved. It is incumbent on all of us to work to ensure that the legislation enacted is robust and effective. We owe it to those who are central to the process. I urge the Minister and the Department to put human rights at the centre of the legislation. The motto of the Minister's predecessor, Katherine Zappone, was "nothing about us without us". She adopted this motto to ensure that nothing was decided about adoptees' rights, entitlements and truth without the adoptees themselves.
I thank the Minister for bringing forward this legislation. It is not the easiest of Bills to bring forward. It is intricate and adversarial. We need to make amendments to allay the fears of the adoptees and mothers.
This legislation is long-awaited and seeks to right significant wrongs. People were let down by people in authority, by religious institutions, by caregivers and, it must be said, by their own family members in some cases. It is to be hoped that this Bill will deliver full access to birth and early life details to people who have been the responsibility of the State in any capacity in order that they can fully understand their origins. This information can be made available to any person aged 16 years or older. We have a wonderful county but, as much as we laud it, we must also recognise that we have a shameful past in respect of how we dealt with mothers and children and how the State victimised some of these people who found themselves faced with unplanned pregnancy, separation, rape or incest. Part of that shame relates to how the State and religious actors colluded to hide pregnancy and how, having hidden pregnancies, some institutions, religious and otherwise, financially profited from forced adoptions and forced labour. In a final ignominy, records detailing family relationships were destroyed or hidden, heaping further distress on many children, who felt abandoned, and on young mothers who were denigrated as fallen women and left with no opportunity to challenge the State or to be involved in their child's upbringing. In some cases, this shameful abuse extended to the under-reporting or failure to report to the deaths of children in institutional homes. This is a significant stain that can never be fully washed away. I know the Minister and the Government have fully committed to addressing these issues as an ongoing priority.
Enactment of this Bill is designed to secure the release of the birth certificates, birth information, early life information and care and medical information of all persons who were adopted, boarded out or subject to an illegal birth registration. They are referred to within the Bill as "relevant persons". There are still concerns regarding the availability of information where parents of adopted people have decided to adopt a position of refusing future contact and how these relevant persons may get access to full information in those cases. I align myself with calls for amendments regarding how that process is to be observed, which have been previously discussed in the House.
I welcome the fact that relevant persons will be able to access their details in the event that parents named on the birth certificate are deceased and, additionally, that information can be released to the next of kin of a relevant person who died as a child in one of the institutions specified in the Bill. The Minister has included in the Bill provision for the setting up of a statutory tracing service for persons wishing to make contact or to share or seek information. Perhaps he can highlight how the development of this statutory body is to come about.
The legislation seeks to bring about a vital development that should allow both parents and their children to gain increased access to their information where it is held by a number of State agencies. It has been known for many years that information was available in religious institutions and State agencies but that it was kept under lock and key, away from those wished to access it. This deprived many parents and their offspring of any opportunity to develop future relationships with their blood relatives. It deprived many of any meaningful redress for what befell them in their early lives and childhood.
The Minister's Bill also provides for a contact preference register, to be established in law, through which people can register their preference in respect of contact from a child or genetic relative. It will also allow personal communications to be lodged. These provisions within the Bill must be lauded. It also provides for protection by statute for the safeguarding of future relevant records. This has been cited previously and is also to be welcomed.
One of the key provisions of the Bill that stands out relates to the information versus privacy debate. Under this Bill if enacted, for the first time, even if biological parents say that they do not wish their children to have access to a birth certificate or related information, such children will still have access. That is a significant step forward.
On the face of it, this Bill appears to pave the way for a greater degree of transparency for those who, up to now, have been largely kept in the dark as to their family origin or what blood relatives they may have. A question still remains as to whether this Bill will deliver totally unrestricted no-holds-barred access to full birth and origin information for relevant persons. There is no doubt that, for some people, the passing of this Bill will create a high degree of discomfort. Some such people are mothers who, for whatever reason, had to give up their children. The wishes of mothers who have expressed a desire to stay anonymous, possibly because the birth in question remains a secret in their present family circumstances, must be balanced against the rights of those who are desperately trying to understand their origins and the details of their birth. This legislation will go a fair way towards that.
The balance here is to be restricted. For some parents and children who are both still living, reconciliation may now be an impossible task, even if desired. A further relationship may not be possible or desirable from the perspective of one or both parties. For some people, the search for their history may be motivated purely by a desire to understand any congenital medical issues they may have concerns about rather than any wish they harbour to pursue a family lineage from which they feel permanently excluded. For many, understanding their origins is at the heart of this question. People are asking who they are and they have been asking for too long.
As I have said, many people who wish to have their true origins or identities revealed to them have suffered at the hands of State-supported actors. For a large number, this has coloured their lives. It has led many to harbour feelings of confusion, doubt and anxiety and to engage in soul-searching. It must also be said that many mothers suffered forced adoption, not knowing where their children were in later life or how they were developing. This has also taken an extreme toll. I align myself with Deputy Boyd Barrett in saying that further information and securities must be provided for mothers who are trying to pursue details of where their children have finished up in the case of forced adoptions.
We can never truly wipe the slate clean with regard to how so many mothers and babies were treated so cruelly and inhumanely in and by our State. It is incumbent on us all, as legislators, to do everything possible to draw a line under our savage contemporary history and to ensure, in this new century, that those who were failed in the past will now be fully supported, that those who were victimised receive recognition and adequate redress and, most of all, that those for whom every day brought feelings of loss and abandonment will now feel found, valued and recognised for what they have endured.
I welcome the introduction of this legislation to the Houses of the Oireachtas and commend the Minister, Deputy O'Gorman, on bringing it forward. This legislation is extremely important because it engages with some of the fundamental rights enjoyed by Irish citizens under the Constitution. Bringing legislation that involves giving statutory effect to a constitutional right through the House can often be easy because all you have to concern yourself with is one fundamental right. However, it is very challenging here because the Minister has to deal with two conflicting fundamental rights.
On the one hand, we have the right to identity, while on the other hand we have the right to privacy. It is important that the House consider what the law is now regarding each of these rights before we give effect to this legislation.
In respect of the right to identity, in 1998, in the case of IO'T vB, the Supreme stated that one of the unenumerated rights under our Constitution is the right for people to know who they are and who their parents are. In that judgment, the Supreme Court pronounced that right. It was on foot of an application by an applicant under the Status of Children Act 1987 to try to get a declaration that the applicant's mother was the respondent in the case. Although the Supreme Court recognised the right to identity in that case, it also stated that there was another, conflicting right. As is always the case, no right appears to be absolute. The Supreme Court said the conflicting right in that instance was the right of the mother to privacy and confidentiality. That is how the Irish courts have dealt with this issue in the context of the 1998 case heard by the Supreme Court.
The right to identity is also a major issue in a European context. In 2003, the European Court of Human Rights, ECHR, gave a judgment in the case of Odièvre v. France, where a French woman challenged the very strict laws that operated in France to prevent individuals from gaining information about the identity of their mother or parents. The ECHR looked at the case and said that under Article 8 of the European Convention on Human Rights, one of the rights we have is the right to identity and to know who we are. Similar to our Supreme Court, though, the ECHR stated in 2003 that the right to identity was one that had to be balanced with the equally strong right of a mother to preserve her privacy and her confidentiality. In that case, the ECHR stated that the Article 8 right did exist, but that it was not breached in that instance because the French Government was operating within the parameters when it decided to have laws that were very protective of the mother's privacy.
Therefore, in introducing this legislation, the Minister is in the difficult position of trying to balance these two conflicting rights. At some stage this legislation is going to be appraised by a court. When that court comes to look at this legislation, it is going to examine the way the Houses of the Oireachtas balanced these rights and how weight was given to the right to identity, but also to the right to privacy. That is why it is so important for us to not just ignore the other right which exists in this context when we are balancing them up. I remember speaking to the Minister's predecessor, Katherine Zappone, and I said to her that my opinion when we have these two conflicting rights was that the right to one's identity should trump the right to privacy. That is a big statement, but I believe it is correct. I believe the Minister has done that in this legislation.
The right to privacy, however, does not become completely forgotten or eliminated. It is important that we recognise that the right to privacy still exists in respect of other individuals. If I wanted to find out information as to whether a woman had a child 20 or 30 years ago, and if I had no relationship with her, then I would not be entitled to the information because it is private to her. The circumstances would obviously be different, though, if I was the child of that woman and I was trying to find out that information. Therefore, it is very important that we balance these conflicting rights. When a Supreme Court looks at this legislation in future and asks whomever represents the State where the Oireachtas considered or gave effect to the right of privacy, it will be important to be able to point to where that happened. Section 17 deals with the information sessions and, in that context, the State will at least be able to state that consideration was given to the right to privacy in the Oireachtas, and that it was not acting irrationally or without any consideration of the right to privacy. The inclusion of information sessions in this legislation recognises that the Oireachtas did take into account the right to privacy.
The right to identity is one of the growing rights around the world. It is fundamental as we go through life that we recognise the importance of knowing who we are. That is why the Minister deserves to be commended for this legislation giving statutory recognition to the right to identity and, in circumstances where it conflicts with the right to privacy, giving supremacy to it. It must also be recognised that the right to identity does not begin and end in the area of adoption. We are going to introduce legislation on surrogacy at some stage this term. Again, in that context, it will be necessary for us to ensure that the right to identity, which is recognised as a right in the Constitution and under Article 8 of the European Convention on Human Rights, is given proper protection and recognition in any such legislation.
Many people have suffered badly because they have not been able to extract information about their own identity. For many years, in the context of the decision in the case of the Supreme Court in the case of IO'T vB, and the judgment of the ECHR, the State acknowledged the need to balance the right of the mother and to give equal recognition to that right to privacy along with the right to identity. Not only do I commend the Minister in this context, but, equally, the legal advice has changed in recent times and the Attorney General also deserves to be commended on giving what is broader and braver political advice concerning what is permissible under the Constitution. I believe he is correct in his assessment that a court which may come to look at this legislation, provided we give recognition to the right to privacy, will respect that as policymakers we have made the decision that we wish to ensure, notwithstanding that right to privacy, that the right to identity supersedes it in this type of situation.
I welcome the opportunity to speak on this issue, and particularly in a week when the nation is so closely examining the wrongs done to our women. I am also glad to see that the Bill has given up hurtful language, such as "birth mother" and "natural mother". Even so, it persists in being patronising and patriarchal, based on privacy, oddly. This is not about privacy, but kind of about secrecy and about maintaining it. We all have secrets. It is part of being a human and we all value our privacy. Equally, we know that life is complicated and messy. This legislation needs to get into the messiness and the complications of life. We should not try to hold ourselves at a remove from those aspects and I believe the contribution from Deputy Jim O'Callaghan went into that.
We are talking about flesh and blood here. The right to know who we are and who we come from and our medical history is the same for adopted people as it is for the rest of us. It is basic information that is being sought by people in the context of this legislation. It is not the "The Waltons" or anything like that. This Bill concerns information that the rest of us take for granted, and this legislation will not give it to them. There is no unrestricted access to birth certificates, files on adoption or early life information. There is no clarity regarding what constitutes "personal data", leaving adopted people to depend on luck, chance or kindness to access their own information. In certain circumstances, information can still be withheld. To get vital medical information, it will be necessary to get a GP to intervene. This infantilises the adopted person and diminishes us as legislators and as a State.
The Minister has the duty and the opportunity to right the wrongs perpetuated on innocent people, including the incarceration of our women and the removal of children from their mothers. I ask the Minister to please listen to what adopted people are telling him. They are the experts in their own lives and on what they need from the State, nobody else. It is up to the Minister. He should listen to the activists and the campaigners. We have all heard them on the radio, and they are mainly women. They are another generation seeking rights, recognition and justice. Sinn Féin will be tabling amendments to this legislation but I have been here long enough now to know how that process goes. The Bill is certainly an improvement, but adopted people really need and deserve so much better. They are depending on the Minister to give them that. I hope he will please look after them.
There are many provisions in this Bill but there are also parts of it that need to be amended. The legislation provides a right of access to birth certificates and to birth and early life information to all persons who were adopted or boarded out, the subject of an illegal birth registration or who otherwise have questions about their origins. It also includes provisions for care and medical information for those who have questions about their origins.
The Bill provides that the information session where a parent has expressed a "no contact" preference will no longer be a physical meeting with a social worker. The information session will include recognition of the identity rights of the applicant and their right to access their birth information and birth certificate. Next of kin will be able to avail of the legislation to access information about a family member in specific circumstances.
The Bill also expands the definition of early life information to provide for release of baptismal certificates and entries on the baptismal register, and uses the term "mother" instead of "birth mother". It also establishes a new statutory contact preference register. This offers a means for people to register their preference for contact with family and also a mechanism to lodge communication and contribute medical information which can be shared with family members.
The State's regulator for adoption services and custodian of over 70,000 adoption files and records including all adoption files from 1953 has welcomed the Bill's publication. The Adoption Authority of Ireland said it was correct to give adoptees their original birth certificates, all of their early life and care information and, critically, their medical information. The co-founder of the Adoption Rights Alliance said she would welcome changes to the legislation but warned that if any sort of mandatory information session remains in the legislation, it would be extremely discriminatory as no other Irish citizen making a similar application would be obliged to go through with an information session with a social worker. Susan Lohan, co-founder of the Adoption Rights Alliance, said that in addition, many of the definitions within the Bill are unnecessary, limiting or extremely vague. These include care and early birth information, which had suggested time limits in a Bill that was published last year. While the Bill is to be welcomed, concerns remain especially around the fact that adopted people would still have to hold an information session with officials by phone where a parent has expressed a "no contact" preference.
Some 83 key recommendations from the report of the Oireachtas joint committee on Children, Equality, Disability, Integration and Youth have not been included in the final Bill. The extensive work undertaken by the committee, the hours and hours of testimony from adoptees, mothers, survivors and their advocates, the significant and all-encompassing report and comprehensive consultation all appears to have been in vain.
Most of us grow up knowing everything about ourselves and take for granted those precious details such as our time and place of birth. Compassion demands that adopted people should be entitled to the same sense of their own identity. Unfortunately, adopted people had to engage in a fight they never should have had to engage in in the first place. This was due to the State for years repeatedly failing to vindicate the most fundamental right of adopted people, the right to know their origins.
It is seldom I get to watch TV but I do watch programmes about families who have been separated for whatever reasons getting together decades later. This could be a mother or father with their son or daughter and the joy it brings to all parties. It brings an end to decades of pain and opens up doors to new family members. Maybe it is easy for me to say this but surely so much joy should not be denied to anyone. Yes, questions will need to be answered in all these reconciliations and there is pain in that in some cases but the benefits far outweigh the negatives. Watching these programmes I wonder how their adoptive parents feel, something we never really see much about. They are people who have taken a child into their care and shown love and affection to that child as if one of their own and the child is one of their own. They have done so much and sometimes must feel a little hurt in their own right. They have reared and loved the children. They were their parents, their carers. They must now also be protected in some way going forward.
While talking about carers, and it is a different issue, I may add that I got so many calls today from carers and home helps on their omission from the €1,000 recognition payment. It is shocking but it is an issue for another day. They should be treated equally.
Today we must concentrate on this Bill. While it looks like it is one step ahead, it is also two steps back for some people. It has to be amended before it comes into force. Hopefully we can end the pain that has been applied to so many people for decades and at least let them have some peace and happiness. As I said earlier, each and every one of them would love an opportunity to meet their loved one and bring an end to this mess that has been in our society for so long.
The Minister is genuine in efforts to deal with this very sensitive issue. We all have come across people and know people and families and trauma over the years and decades. It is long past time that we tried to deal with it. As Deputy Jim O'Callaghan made very clear in his speech, and he is a legal person himself and probably has a better understanding of it and of the history of different court cases than I have, it is necessary to try to balance the two rights in any issue. Even a referee on a field - I am not making little of the situation - has to make judgment calls. It is necessary to try to balance the right to privacy of the mother and the right to information and knowledge of the adopted person. It is a very sensitive and difficult, challenging area.
I am disappointed to hear that although the committee on children gave long consideration to it and made so many recommendations, 83 I think in number, none of them was accepted. That is fine if that is not the case but too often it happens. We can have robust debates in politics but this is one for us all to come together to try to be united and to try to deal with this situation. On the number of people who came forward and testified, I want to thank them from the bottom of my heart. It is not easy for them to come and testify and talk in a quasi-public arena. I refer to the pain and heartache and the years of trauma and loneliness and desperation. Many of them feel now that they were not listened to.
We are all getting floods of emails in the last days about this legislation. Some of us who are not on the committee and were not at the meetings would not have been aware of the extent but nobody seems to be happy with it. It is kind of rushed. No legislation is better than bad legislation. Delaying it for another couple of months might be better because they are not happy with it. They are very concerned about it. We know where it will end up, namely, across the river with the wigged gentlemen. We know what that entails and the challenges and delays. It may go to Europe and whatever. Make haste slowly.
I am not diminishing the importance of the situation one bit when I say that we had a forestry Bill brought in here two years ago which I voted against because it was just pure useless and we would have been better off having no legislation than what it was. It is a difficult topic to introduce when we are talking about people's lives but I am just giving that experience because I knew it was going to be no use and it is no use. This is too sensitive. Too many people have been hurt and damaged. We need to be able to have it right and give solace to those people it is meant to give solace to.
The joy and we all have of being parents, knowing our parents and having our siblings through life is a privileged experience and is thanks to our parents and everybody else. The trauma is there. I know some of them. I meet them. There is one particular gentleman who I meet regularly and he is so desperate to find his mother. He actually did at the finish but she chose not to meet him. It is so harrowing and traumatic.
In the Minister's press release it all sounds great, referring to landmark legislation and stating that there will be for the first time enshrined in law a clear right to full birth, early life care and medical information for all those with questions of their origins. That is lovely on paper and the spirit of it is lovely but when people are so unhappy with the Bill it really undermines the Minister's ambition. The Attorney General has to give advice and the Minister has to deal with the draft of this legislation and so on. I do not know.
However, those in the organisations who are championing this cause are not happy with the Bill. I know that doing this is not easy and is challenging, but many people are unhappy with the Bill. Will it end up in the courts? If it does, where will we go then? I appeal to the Minister to consider the issue again. He has denied that a number of amendments were rejected. Perhaps he will outline in his reply how many were rejected. I am unsure and am only going by what I have been told.
We all have experiences and are all in the Dáil to do our best. Ní neart go cur le chéile. We need to get this right and work together to see if we can ease the pain and suffering on both sides of this sensitive issue. There has been trauma and agony for many mothers as well. This is about where the twain shall meet. We want to get it right. I appeal to the Minister to be as responsive as he can, accept some amendments and return to the drawing board with this legislation so that he gets it right.
I welcome the Bill that has been introduced by the Minister because there is at long last a voice for those who have gone unheard for decades - the voice of a mother or father trying to find a son or daughter and the voice of a child unable to discover his or her birth family, access health information or just get a birth certificate that is accurate. Within this legislation, there will be opportunities to share information, especially for adoptive parents seeking information that would explain something that they were unaware of concerning their children, be it medical issues or otherwise, and allow them to help. I have spoken to many people over the past year who were affected by the outrage that was the mother and baby institutions. It was a shame that people had to tell their stories in public for this legislation to be made a priority and introduced.
I am heartened to see that baptismal information that had once been redacted will now be available and that the details of birth parents and godparents will be visible. Equally, I welcome the support offered to young people in dealing with information that was hidden from them until the present. I welcome that relatives of deceased children will be able to access information on how and when those children died and what was recorded at the time. The legislation could go much further but I welcome what is being proposed.
I have many friends who are adopted. I grew up with them. They were lucky with the families they were adopted by and they have had great a upbringing and great lives but while they view their adoptive parents as their parents, they have always wanted to find out about how they came into this world. I saw the heartache on their faces when they went to find their birth mothers, brothers or sisters. In one case, a man and I spent an hour chatting about his whole life. He was ten miles away from his sister. He had passed her many a time over 40 years without knowing she was his sister. That is heartbreaking.
I am from a family of 11. My mother, God rest her, died when I was young. I wanted to find out about my family tree. I had dealt with people whom I knew could not find out about their family trees. I was able to go back generations through my mother's side - the Devanes, Rycons and Englishes. Recently, I was in Newcastle West when a man sitting across from me at a vehicle testing centre told me that we were related. I had never met him before. He was a Collins. He was related through my mother's first cousin. He was my second cousin. That is why I was investigating our family tree and going through all the different records. When I was sitting down over Christmas and telling my story to people who were in my company, I knew they could not do that, so I was uncomfortable even discussing it with them.
I welcome what the Minister has brought to the table but why did it take people having to tell their life stories before the those in government listened? It was about protecting other agencies and other people and not about protecting the vulnerable people who had been adopted or lost their lives in mother and baby homes.
Yesterday, we spoke about poor Ashling Murphy. It took an outcry over what happened to that girl for things to change in this country and for Members of the Dáil to unite and move forward. Everyone in the Dáil is united on ensuring that we look after the most vulnerable. For decades, there were mistakes as well as cover-ups to protect institutions and people's names and families. Our job is to protect the people of this country. Our job is to protect those who cannot protect themselves. We have failed. Previous Governments have failed. This Government needs to fix the wrongs done by previous Governments. Be they female or male, Ministers must be strong in their Departments, dig in and make sure this happens. They should not do it for the sake of populist vote getting. They must do it for the right reasons and for the people of this country whom we represent. There is always political propaganda flowing around this Chamber but there is also the difference between right and wrong. The Bill is a move in the right direction and will help to right a wrong caused by the State.
Nothing should be put in the way of these people getting every support and benefit regardless of who or what institutions we used to try to protect. We must stand up and say we are sorry for what happened and will do our best to fix this without having any political motive for doing so. I feel so sorry for the people who had to tell their life stories and bring up again what happened in their families for this Bill to be introduced.
I look forward to working with the Minister on the Bill, as do many other Deputies. If amendments must be made for the betterment of those who have suffered enough, the Minister should please take into account the information from all parties and none inside and outside the House so that we get matters right this time and these people can look forward and back, put everything together and live into the future.
I welcome the opportunity to speak on this important Bill. Yesterday, the Minister laid out the long history of legislative false starts on this issue and the litany of legislation that tried to address this issue in what were often difficult or dangerous ways. Previous legislation proposed criminal penalties for attempting to contact mothers who did not want to be contacted.
This legislation does none of that. It is important to acknowledge that we are taking, as Deputy Jim O'Callaghan said, that unenumerated right to one's identity and placing it on a legislative footing, not trying to fetter it as previous legislation has attempted to do. I acknowledge the work the Minister has done on this sensitive and difficult area, tied up as it is with the history of abuse in the mother and baby homes, kidnapping, forced adoptions, illegal birth registrations and the abuse mothers received in those institutions. I also acknowledge the Minister's widespread engagement with survivors and families, which is essential to the success of any legislation such as this. It is also a mark of his commitment to trying to do his best on this issue for the people who most need this legislation, those whose right to their identity is most vulnerable and most needs to be enshrined in legislation.
We have heard some of the previous speakers say that none of the recommendations of the pre-legislative scrutiny report were taken on. I will talk about those recommendations in a moment, but there has been a lot of talk about the pre-legislative scrutiny report from the committee and a lot of praise for the report and the work of the committee. It is natural with any sort of group project or committee that some people do more work than others. On that note, I thank Deputy Funchion - I see her sitting in the Chamber - as Chair of the committee for herding the cats, marshalling the committee, which is a difficult committee at times, and getting out that robust report.
The Minister has taken on many of the committee's recommendations, including on the use of plain English. A plain English guide and frequently asked questions, FAQ, document have been published alongside the explanatory memorandum. I know the Minister is preparing to propose the establishment of a stakeholder advisory group. These are, therefore, recommendations that have been taken on.
There are recommendations on changing the terminology used in the Bill and on the need to add more institutions. The Minister has acknowledged there is a need to add more institutions than those already scheduled in the Bill. Creating a mechanism to do that, as the Minister has committed to do in the Bill, is really important because it allows us to do so not just now as we pass the Bill but into the future. That flexible approach is positive and to be commended.
There are recommendations in the pre-legislative scrutiny report looking for a wider definition of care information. The new draft of the Bill reflects a wider definition and provides a more open-ended definition. There are recommendations looking for access for more than just parents and immediate relatives. Two new Parts of the Bill were added to provide access to next of kin. There are recommendations in the report on sharing of medical information. Again, the Bill provides greater clarity on how that medical information can be shared and what can be shared, all of which is very important.
As I said, the Bill will put on a legislative footing a clear right of access to a full, unredacted birth certificate. Access to birth certificates is welcome but not enough. We have heard many speakers say that yesterday and today in the debate. We have to acknowledge that the Bill will also provide access to wider information, not just a birth certificate. Baptismal certificates were mentioned yesterday. There is early-life information, care information, medical information and any letters or items left by parents. These will all be made available to people as part of the Bill. As I said, this is taking an unenumerated right, one that has been found by the courts to exist in the Constitution, and making it stronger by putting it on a legislative footing. As Deputy Jim O'Callaghan said, this will likely end up in the courts. I did not hear his full speech so I do not know if he said this, but it will also likely end up being challenged in the court in Luxembourg. We need to do what we can to recognise, vindicate and support that right to one's identity.
I acknowledge that to do this will cost money. I look at what happened in the budget, where the Minister provided money for Tusla and the Adoption Authority in order that this right to one's identity can be facilitated and vindicated, with provision for training, staff and the adequate resources that the committee's report said would be necessary. I hope the Minister will continue that budgetary commitment to ensure that those who seek to vindicate their right to identity are supported, not just in the legislation we hope to pass but also with financial supports to ensure that the services are fit for purpose, well resourced and able to do that. I thank the Minister for his commitment to doing that in the most recent budget and hope he will continue to do it in the next one.
Listening to the contributions on this legislation, I think there is a sense of sombreness but maybe a sense of weightiness too. I think everyone is taking the Bill very seriously. I do not believe it is being treated in a partisan way. I think people understand the weight of what is involved here. It is also worth acknowledging that this is an advance on previous iterations of this legislation. That shows the importance of robustly challenging sometimes conservative advice that can be given to Governments and pushing back against it.
The Bill is not there yet. We have some concerns about it. It does not provide for unrestricted access to birth certificates, adoption files and early information files. There is a bit of an issue with the information sessions and the impact they could have on those who were adopted. The definition of "personal data" is not clear. There are a number of issues with the legislation that we wish to address on Committee Stage. This is so important. It is undoubtedly the case that the right of someone to know who they are and who their parents and birth parents are is one to which people should absolutely be entitled. They deserve their truth, their story and their history.
There are issues connected to this that the Department needs to explore. We talk about people's history and story. There are relatives of those who were born, lived and died in Bessborough who are very concerned about the Bessborough site. I call on the Department in this regard. A planning application for the site was refused by An Bord Pleanála. Many people believe that some of the many children who died in Bessborough - far too many children - may be buried on that site. The Minister's Department has a responsibility in that regard. Of course there is a planning process and so on, and the application was refused. In State policy terms, however, the Minister and his Department need to identify the best way these sites - and Bessborough is not the only site like this - can be treated, preserved and investigated in a way that is sensitive and finds out exactly what went on. This is an issue of concern to the people of Cork generally, but particularly to those who were born in Bessborough or who had people belonging to them in Bessborough and, as I said, who died in Bessborough. That story needs to be told. The Minister's Department has a role in that. There needs to be an investigation. We need to establish what happened there and where those children are. That goes to the ethos of this legislation and the ethos of everything that should be happening regarding the mother and baby homes, the county homes and all the various institutions that were part of this infrastructure of, in some ways, incarceration and significant cruelty and hardship to both mothers and children. It was all part of the same infrastructure, and we need to acknowledge that as well.
Fáiltím roimh an deis píosa cainte a dhéanamh ar son na reachtaíochta seo. Ar dtús báire, ba mhaith liom a chur in iúl don Cheann Comhairle nach bhfuil leagan Gaeilge den Bhille ar fáil. Tá sé thar a bheith deacair an Bille a phlé trí Ghaeilge gan é a bheith i nGaeilge. Chuir mé ceist ar oifig an Aire agus níl sé ar fáil fós agus níl a fhios agam cén fáth. Baineann sé sin le ceist níos ginearálta ó thaobh Billí de. Tá sé tuillte ag daoine le Gaeilge ó dhúchas nó Gaeilge mar theanga chumarsáide go mbeadh leagan Gaeilge den Bhille acu.
Aithním go bhfuil dul chun cinn déanta anseo. Don chéad uair riamh tá sé leagtha síos, sa Bhille seo, go mbeidh ceart uathoibríoch ag gach duine lena mbaineann an reachtaíocht seo eolas bunúsach a fháil. Tá sé dochreidte go bhfuil gá le reachtaíocht chun cearta a thabhairt do dhaoine atá uchtaithe a sonraí pearsanta a fháil nuair nach bhfuil aon ghá le reachtaíocht domsa, mar shampla. First, I deplore the fact that there is no Irish version of this Bill available. We have gone beyond excuses. I do not blame the Minister personally. This is a continuous and everyday occurrence in relation to Bills. It is extraordinary that we do not have an Irish version. In Europe, Bills and other legislation are handed out automatically in the Irish language, yet we cannot do that in the national Parliament. Second, I welcome this legislation and acknowledge the work the Minister has done to bring it this far. He said he would bring it before the Dáil and he kept his word. I acknowledge and appreciate that.
The Minister stated that the legislation is groundbreaking. It really is. I am going to go around in circles and come back again to the legislation in relation to why it is groundbreaking. Am I satisfied with the legislation? No, I am not, because we have not quite got there. We have not quite broken the chains of the patriarchy that tell us that they know best, including about how to protect a mother or somebody who gave up their child for one reason or another, or was forced to give up their child for adoption. They tell us that we need to protect them in some way, as opposed to giving them maximum information and letting them make up their own mind and, equally, letting the child who was adopted and has grown up do the same. We are still holding on to the chains of patriarchy. They are a little bit weakened, but they are still there. They are telling us what is best for us.
I welcome the progress made in the Bill in relation to the schedule of the organisations affected. I am not sure why a schedule was necessary. I would have thought every entity that had children in its care, with their mothers or without their mothers, in whatever circumstances, would come within the ambit of the Bill. I welcome that there is provision to extend the schedule of the organisations affected. I welcome the change in language and the fact that we have dropped the idiotic, terrible distinction between birth mothers and adoptive mothers. I welcome other matters in the Bill as well.
It is a very extensive Bill. It consists of 59 pages, ten Parts, which we are very familiar with, and 60 sections. I would be telling an untruth if I said that I had gone into it in detail. I was not on the committee, an issue to which I will return shortly. I have done my best understand and to be fair in relation to the progress being made, but we are still operating within a framework where the patriarchy knows best, as opposed to one where there is parity of respect and equality. We have not got there yet.
The Bill has many origins. The Minister inherited all of it and he is operating within that. That is why became a Minister. On the question of the origins of the Bill, I will focus on the latest development, namely, the Commission of Investigation into Mother and Baby Homes. I have been quite critical of the commission of investigation and I hope have done so constructively. Every time I have spoken on the issue I have recognised the enormous work that was done in the various chapters of the report of the commission of investigation. However, the executive summary of the report, which is the main part that everybody reads, is written in a very sloppy manner. I have said it previously, so I will not waste my time on the issue today. It is there. The work on the various sections is good and they are useful for the future. The recommendations in the report are all mixed up, with recommendations, conclusions and opinions all put in together, which does not make for easy reading. However, the recommendations set out clearly that the right to identity is a fundamental right. It is stated that "a person’s right to his or her identity is an important human right and should only be denied in exceptional circumstances." According to the report, "The Commission considers that there should be such a right even though it is acutely conscious of the concerns expressed by some birth mothers about this." It is one of the report's clearest recommendations. The commission has recognised that there is a right to identity.
On the question of where this report came from, I think it is worth using my time to go back over it. Our memories are becoming dimmed and we are under media pressure to react all the time, as opposed to read and consider. It is important to consider where this report came from. The commission has acknowledged the work of Catherine Corless was a catalyst. That much respect has been shown. Over Christmas, I had the privilege of reading a number of books while I was isolating for many reasons. One of them was Catherine Corless's book. I recommend that everyone read it. Among many issues, what jumped out at me was what Catherine Corless went through, even up to very recently, when she was in the county council buildings doing research, finding the records on the burial of babies, or noting their absence. There are 796 names. She was supervised in the county council office, the door was locked and an official sat with her. She outlines this in her book, among many other issues. As the Minister will be aware, Ms Corless is not given to any sort of exaggeration. Indeed, I would call her the personification of an understatement in the way she has proceeded. It really is worth reading her book in relation to an ordinary woman doing extraordinary things in a manner that is an example to us all. She was the catalyst for the report. Her work was done on a shoestring budget for a magazine of the local historical society. I probably have the name wrong. She wrote an article for that publication, then continued her work and discovered that there were 796 missing babies and records. That is probably the best way to put it. The bodies of infants and babies were found in what appear to have been containers for sewage. We know all that. That eventually led to the establishment of the commission of investigation. We must put it into perspective. I will come back to the point.
There were eight interim reports, along with the final report, some which were published and some of which were not. The last report was published along with this report. The Minister probably did his best to get it published. What was never explained was why there was a delay. I am talking about trust here. Coming back to the Bill, there is a huge issue in relation to trust. We are not trusting people who come forward to seek information. An information session is being arranged. We are dissembling and being disingenuous here. We are saying that the information session is not mandatory, but it is a requirement. I will return to that point later.
As the Minister well knows, trust is huge in this process. There were many times when one could have easily lost trust in the process, particularly when the end result was published. There were many time extensions. We should note that the final report was with the Government from October 2020. It was not published until January 2021. The penultimate interim report was also published then, with no explanation as to why it was not published earlier, why the report sat in the Department until January 2021 and why there has been no end result in relation to the leaking of the report. The Minister will recall that we were promised that.
I do not wish to personalise the issue. I am putting it all into context. I am only highlighting a handful of issues. I could speak for two hours on the many issues that have arisen. When the Government announces an investigation into a leak and then nothing happens, we question why there is such a distance between the people on the ground and politicians. We increase that distance at our peril, because democracy is all we have. Whether I agree with the Minister or the Minister agrees with me, the important point is that I can have trust and disagree with the Minister and know what we are disagreeing about. That is vital for people who are watching and looking at democracy. I deplore what has occurred on social media with politicians being insulted and abused. I have no time for that. However, if we make language meaningless, as has been done repeatedly, with an investigation into the leak being announced and no conclusion to the investigation, and when the Taoiseach of the country participates in the interview following that leak, it is difficult to have trust.
I am speaking about the interview in the Sunday Independent. He is part of it. We have to have trust and it is very difficult to have it. We then had the debacle over the tape recordings.
In my opinion, the Department knew for a very long time about illegal adoptions and illegal birth certificates. I mentioned Mike Milotte whose book was published in 1997. I want to mention Conall Ó Fátharta who has written in the Irish Examiner. There are many others who strove to bring this information out into the open. On many occasions I have referred to the memoranda. If I had more time, I would come back to them. The Department was fully aware. This is in the context of the McAleese report.
We then had St Patrick's Guild, when Tusla suddenly discovered that there were a number of irregularities and another report was commissioned. I will rephrase this because I see the Ceann Comhairle cringing. Tusla made us aware of a number of irregularities in more than 100 records. Another report was commissioned, this time from a woman from Northern Ireland. I will not mention her name because I understand that when the report was published, she was unhappy with some issues and asked for her name to be removed from it. If I am wrong, I ask the Minister to correct me. I will be the first to put up my hand and apologise. I understand her name remained on the report even though she did not want that to be the case. That report was never discussed in the Dáil. This is with regard to illegal records. If it was never discussed in the Dáil, how can we be fully informed about legislation? The report has cast a long shadow. On 9 March 2021, the Government had been in possession of it for approximately two years. It took almost two years for it to be published.
There was a sample of 1,496 records out of a total of 74,350. It was 2% sample. Of course, what the author of the report did was to supervise or monitor the two agencies involved, which were Tusla and the Adoption Authority of Ireland. I will not go through the minutia. She said the existence of markers that alerted Tusla, and anybody reading the file, that something irregular was occurring which needed further investigation raised concerns that between 4,900 and 18,900 records could potentially be related to incorrect or irregular birth registrations. What did we do with this report? Did we discuss it? Did we get an explanation as to why that lady wanted her name removed? Will we ever discuss it? What is the point in commissioning reports if we do not do so?
I understand that report has gone to the special rapporteur for children and a report was promised on 31 October 2021. The report is with the Minister and is yet to be published. We have repeatedly asked for this, just as with violence against women and all of the reports. Language has begun to mean nothing. We are told things will be published shortly or will be published in the coming weeks but it does not happen. We are all reduced to giving out as opposed to implementing the policies. What did we learn from the woman who wants to remain nameless who produced a very moderate report? How did it feed into policy? How do we know it fed into policy if we have never seen it.
With regard to the mother and baby commission, a group of specialists compiled a report on the Tuam site but action was not taken. The group has come forward publicly, which I understand is most unusual. The professional archaeologist stated that they went in for a short period and left the place in a temporary protective condition that they thought would be for weeks or months but that can now be counted in years. Nothing has happened. Can we imagine what this does? It creates a vacuum in which there is no trust.
I welcome the Minister's detailed contribution. He quite correctly set out the background from the Adoption Act 1952 forward. That Act became operational in 1953. It was passed by the Dáil in 1952. It was clearly a closed-loop system designed to tell us what was best for children. The regulatory impact analysis for the Bill before us states, in a nutshell, that there is no legislation governing the release of birth information to adopted persons and others seeking to know their origins. It also states that the Adoption Act that came into effect on 1 January 1953 placed adoption on a statutory footing in Ireland, and that all adoptions have been required to comply with that legislation. It further states that the Adoption Act 1952 contained no provisions regarding access to information or tracing. This is what I find significant. The authors of the regulatory impact analysis tell us that at the time society believed that closed adoption was preferable, whereby a child was legally transferred to another set of parents and the bond with the original parents was severed.
The society I belong to never accepted that breaking a bond between a child and a mother was acceptable. When we get a regulatory impact analysis that perpetuates this narrative from the mother and baby homes to the effect that it was society's view, I take exception to it. It was not the view of the society that I belong to. We were fully aware of the importance. I lost my mother, which is immaterial. I never wish to bring personal matters into it, but every family has something. The importance of bonding cannot be underestimated. Here we have a document in the 21st century telling us that it was society. It was not society; it was the powerful against the powerless, which, unfortunately, continues in the Bill.
We now have unconditional access to information but, in an Irish fashion with an Irish solution to an Irish problem, we have included a little hurdle. People no longer have to meet a social worker but they do have to meet a designated person. I do not know who this person will be or what qualifications he or she will have. A designated person will meet people seeking or have a virtual meeting. An example might be that person saying to me, "Hello, how are you Catherine. I have information here for you.", and I would look up to heaven and ignore everything. That is what I would be doing if I were subjected to this hurdle. What is the purpose of it? Will somebody assess the quality of the interaction? Is that what the Minister will do? I would go through the motions. Perhaps on another day I would decide not to go through the motions. In the case that I did go through the motions and I did not interact in any way but just listened, would this not bring home the idiocy of what the Minister is doing with this extra hurdle? It is adding to the insult of another Irish solution.
I do not wish to be dramatic but we have to put it in a picture. A designated person will be speaking on the phone or in a virtual meeting while the person who has been called will have their eyes up to heaven as they go through it. The obligation, supposedly under the Constitution, which I find difficult to understand, to treat that mother with delicacy will have been complied with by speaking to the adopted person who does not have to do anything about it. It is mind-boggling and not understandable. I have put it as absurdly as I can to bring home what is happening while at the same time recognising the tremendous work that has gone into this.
Let us go back to the 83 recommendations from the committee. I have read the 83 recommendations. I have gone through them and looked at what has been said on alternative ways of communicating the information, including the use of registered letters. Those recommendations have been utterly ignored. There are many other recommendations. Some of these the Minister has taken on board and others, which are very practical, have not been looked at. This was after intensive engagement with all of the witnesses who came before the committee. I pay tribute to the Chair and the members. This is the way to deal with legislation. It is to tease out issues in the committee and then come before the Dáil with further amendments having been made. We will now be in the position of having amendments to the Bill. The irony is that more than likely I will be in the Chair in the Dáil Chamber bringing down a guillotine on the debate. This is not the way to deal with this, and certainly not after our history and certainly not as a woman Deputy and a mother. Information as of right must mean just that.
Gabhaim buíochas leis an Teachta. D'ardaigh sí ceist mar gheall ar leagan Gaeilge den Bhille. Tá mé tar éis comhairle a fháil chun an cheist a shoiléiriú beagáinín di. Tuigim gurb é an nós atá againn anseo ná go bhfoilsítear Billí a bhaineann leis an nGaeilge nó leis an mBunreacht i mBéarla agus i nGaeilge ar dtús. Ach i gcás Billí nach mbaineann leis an dá chás sin, ní fhoilsítear iad i nGaeilge ach i mBéarla amháin agus nuair atá an reachtaíocht rite, is ansin a fhoilsítear an tAcht i mBéarla agus i nGaeilge. Níl sé sin sásúil agus ba chóir go mbeadh an dátheangachas ann ón tús, ach toisc an deacracht agus na fadhbanna atá i Rannóg an Aistriúcháin, is mar sin atá sé faoi láthair agus bhí sé mar sin le tamall maith anuas. Tá brón orm faoi sin agus déanfaimid iarracht rud éigin a dhéanamh faoi sin.
Gabh mo leithscéal but we move to our next contributors who are Deputy Devlin sharing time with Deputy Carroll MacNeill.
Gabhaim buíochas leis an gCeann Comhairle. I welcome the publication of the Birth Information and Tracing Bill 2022. At the outset I thank the Minister and his officials for progressing this important legislation. It has been discussed many times in this House, has been demanded not only by Members but by the public, has been long-awaited by many and follows decades of attempts to amend the Adoption Act 1952, which in many ways copper-fastened a culture of distrust and secrecy around adoptions in our society.
This legislation will provide a clear and guaranteed legal right: the right to a birth certificate; the right to birth, early life and care information; the right to medical information; and the right to documents like baptismal certificates to everyone who was adopted, boarded out, subject to those illegal adoptions or who resided in a mother and baby or county home, which I hope will also be addressed in time.
I was contacted by a constituent not too long ago who told me a story of where in school, she dreaded every time a baptismal certificate was requested because of the rigmarole she had to go through and of the fear that it instilled in her. In fact, the publication of the Final Report of the Commission of Investigation into Mother and Baby Homes prompted her to make contact with me to tell of her story and the trauma that it all brought back to her as a child.
The Bill establishes a statutory tracing service, a statutory contact preference register and, importantly, provides for the safeguarding of adoption and related records. The legislation also addresses the issues facing people who are the subject of an illegal birth registration, providing a legal mechanism for the registration of accurate information. I know the Minister has accepted many of the recommendations proposed during the pre-legislative scrutiny process, which is very welcome. There are, however, still a number of points I would like to raise in the time available.
The text and language around “illegal adoptions” is less than satisfactory and I hope the Minister would consider recognising the reality of the situation and strengthening the language. A number of issues have been highlighted, by people who were adopted and representative groups, including around the need for mandatory information sessions before details can be released in circumstances where a birth mother has expressed a no-contact option.
Speakers have noted that the General Data Protection Regulation, GDPR, provides a right to access to personal information and they have suggested that a legislative framework may be unnecessary. As noted by some speakers, including my party colleague Deputy O’Callaghan, the courts have upheld the right to identity but they have also noted the rights to privacy.
In my view the right to identity is a principal right, particularly the right to medical information. While I accept GDPR may vindicate this right, it also creates a situation where individual data controllers are assessing applications and interpreting rights. I have personal experience of constituents who were adopted being passed from the institutions to Tusla and back to institutions, time and again. This is very frustrating given the ordeal that these people have already had to endure.
There are other cases, such as that of another constituent, Susan Kiernan - I raise her name because it is in the public domain, a Cheann Comhairle - who was illegally adopted. She and her daughter Lisa Kiernan had dreadful difficulty establishing information. Their case has been well-highlighted to date. This situation is completely unsatisfactory and I welcome the standard legislative format established by this Bill.
Speakers from across the House have raised many other important points. In the general spirit of cross-party support for the legalisation I ask the Minister to give these suggestions detailed consideration as this Bill progresses. Gabhaim buíochas.
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.
I thank the Minister for bringing this legislation forward, despite its many flaws. Many Ministers before him made promise after promise but failed to deliver, so I must give credit where its due. The Bill is far from perfect, but if we all work together it can be improved.
The treatment of adopted people seeking access to personal information has been well documented in the last few years. It is shocking that in 2022 they are still fighting for their rights. Many of the issues were discussed in detail during pre-legislative scrutiny. The committee made 83 recommendations, but it appears that many of the concerns it raised have fallen on deaf ears. Every person deserves a right to his or her private and sensitive information. This Bill must be amended to reflect the views of adopted people, instead of putting up further barriers to prevent people accessing information to which they are entitled. It should not be partial access, but full access to all information relating to them that is held by the State. People are entitled to know their background, and the Government should not be in a position to prevent them knowing more about themselves.
The notion of an information session, in whatever form it is put forward, is patronising. It must be scrapped. It is insulting to adopted people. In addition, the idea that a person needs the permission of a GP to access the person's medical information needs clarity. It is as if the Department is inventing unnecessary barriers. There is no logic in putting up hoops for these people to jump through to get information to which they should be entitled. The need for one agency to hold all adoption records was discussed at length. That makes sense, even if it is only to provide oversight of the bodies that hold the records at present. Adopted people feel that they cannot trust the agencies currently holding their records, and that must be recognised by the Minister.
The Bill goes some way to address issues that were raised in previous debates over the years, but it still falls short. We cannot leave people behind, and the opportunity must be taken by the Minister and his Department to get this right. My colleague, Deputy Funchion, has engaged with the bodies representing adopted people and they are not happy with what is being proposed. Their voices have to be heard. Deputy Funchion will table a number of amendments on Committee Stage to address the pitfalls. We need a proper definition of personal data. In addition, all institutions must be included in this legislation. Otherwise, it will be undermined from the start. This is an opportunity to deliver justice to adopted people once and for all.
We need to ensure their rights are realised.
The history of access to information for adopted people in Ireland has been fraught over decades with inaction and indecision. This has ultimately resulted in no clear legislative framework for adopted people seeking information about their past and accessing their birth and early life information files. I listened to the Minister's opening remarks last night and it was like a box set of "Reeling in the Years" as he went through the history of the Bill and the failures of previous Governments led by Fianna Fáil and Fine Gael to legislate for adopted people. I commend the Minister on getting it this far.
I am also a member of the Oireachtas joint committee that undertook pre-legislative scrutiny of the Bill and, again, it is welcome it has come to this Stage. It has, however, been a rushed process from 14 December to now in getting it this far. I also believe it is a failed opportunity. There was a chance to finally put adopted people front and centre in a human rights-based approach. The State has consistent failed adopted people in this country. The recent mother and baby homes report has brought the matter into sharp focus again but we must be cognisant that this issue affects all adopted people and not just people in mother and baby homes. I am very mindful of this but I always go back to the heartbreaking testimonies of some of the people affected by the mother and baby homes. I have said that before in this Chamber to the Minister.
The committee of which I am a part made 83 recommendations to the Minister. I still call myself a relatively new Deputy and it struck me that the process was very collegial, involving all parties and none, including the Acting Chairman. It involved people of all parties and none, the Government parties and the Opposition. I really felt it was not about party politics, which were instead set aside. We came together to make these 83 recommendations and I was disappointed not all of them were taken on board. I acknowledge that some have been taken on board but this is nonetheless a missed opportunity.
This is a missed opportunity to develop a new agency, for example. This could have been done in a way that would not delay the process because we do not need any more delays. We recommended an ombudsman-type body for appeals and oversight of Tusla and the Adoption Authority of Ireland in the meantime. This recommendation was also not taken on board. Given that redress is the next matter we will debate in a few months' time, a new agency would have been appropriate and perhaps it is even necessary.
The question of information sessions has been brought up numerous times and I have been getting constant emails - I am sure the Minister is getting them too - from people affected by the matter. They feel this is offensive to adopted people and the concept of privacy should not have to be explained to any applicant in any proposed format. Basically, the provisions for mandatory information sessions have not been removed, although they have been changed slightly. There is still an information session and it explicitly states in the legislation that part of the reason for it is to explain to the relevant person the importance of the privacy rights of parents.
My colleague, Deputy Funchion, is the Chair of the committee and I commend her on the way she steered us through this highly emotive legislation. The children's committee features legislation heavily and much emotive legislation has gone through it, including this Bill and the burials Bill. The assisted decision-making (capacity) Bill is coming up this term as well. I commend my colleague on steering us through it.
I was listening last night and Deputy Funchion spoke about clarity for Part 4 of the Bill, relating to hierarchy of next of kin. There is a hierarchy in the next of kin, starting with the mother or father and then on to siblings. I will ask the same questions that were asked last night. What happens in a case where somebody has died in care where the parent does not want to get the information but a sibling does? Is he or she entitled to get it or must the parents have passed away? Is there a hierarchy for siblings and are older siblings given more consideration than younger siblings? I genuinely seek clarity on these matters.
I have other areas of concern. The Bill as it stands does not provide unrestricted access to birth certificates, adoption files and early life information. Institutions have been excluded and the definition of personal data is not clear, which leaves the door open to various interpretations. Information can be withheld in certain circumstances and definitions in the Bill are extremely narrow; this must be expanded to include individuals, agencies and institutions involved with forced family separation. The provisions for accessing records are very problematic in the Bill. Rather than whole files being provided, partial files will be issued.
I acknowledge that some advances have been made in the current Bill but I cannot support the legislation in the current form. We had the opportunity to produce a Bill that would not require amendments but now we will have to come back to debate this all again, dragging out the process further by submitting amendments. The Bill has many weaknesses and, crucially, it does not take on most of the recommendations contained in the children's committee report.
Proposals to legislate in this area must not leave any adopted person behind. This is a human rights matter. Successive Governments, in my opinion and that of Sinn Féin, have been in breach of adopted persons' human rights dating back right to the foundation of the State. As I said, we will submit a significant number of amendments to the Bill to ensure no adopted people are left behind.
I am thankful for the opportunity to speak on the Birth Information and Tracing Bill 2022 today. I start by making it absolutely clear that this Bill does not provide unrestricted access to birth certificates for adopted people and I, along with many others, see through the narrative that this Government is trying to push that this is a fantastic Bill that gives adopted people exactly the access they want. This Bill does not give adoptees full and unfettered access and any suggestion that it does is wrong and intentionally misleading. As has been said, the devil is in the detail of this Bill and I acknowledge adoptee groups, and in particular Dr. Claire McGettrick, for combing through this legislation and shedding light on the hidden details in this Bill that are very problematic.
I will first address section 17, which is incredibly discriminatory. It states that in a case where a natural parent has lodged a no-contact preference, a birth certificate will only be given after the adopted person has completed an information session. Part of the purpose of this information session is to explain to adoptees the importance of respecting the parents' privacy. We should make it very clear that adopted people do not need assistance in respecting people's privacy. It does seem, however, that this Government needs assistance in respecting adopted people's rights. Birth certificates are public documents and every citizen in this State has a right to them. Under the 2004 Act, all born in this country have a right to obtain a copy of their original birth certificate on application to the chief registrar. To deny adopted people the right to their birth certificate without a mandatory information session is clearly discrimination and there is no dressing it up. This is completely unacceptable and it needs to be addressed immediately. The discrimination against adopted people must end now.
I will also address the issue of the interpretation of "personal data" throughout this legislation. When my colleague, Deputy Catherine Connolly, and I introduced our Adoption (Information) Bill 2021 last year, the Minister, Deputy O'Gorman, told us his Government would ensure that "full and unredacted birth certificates, access to birth, early life and medical information and a robust statutory basis for tracing and safeguarding of relevant records" would be delivered "through a single, integrated and comprehensive Bill that enables all of these matters to be dealt with in a way that is compliant with GDPR and the Constitution". Despite this, the Birth Information and Tracing Bill 2022 that he has put forward redefines personal information under various different categories such as medical information, care information and early life information.
Some of these categories even have timeframes on them, such as care information. In doing this, the Minister runs the risk of personal data falling through the cracks and this threatens to compromise EU GDPR rights. Under the GDPR, one should have complete and unfettered access to personal data and this Bill is introducing restrictions to that, which I believe to be a serious breach of EU GDPR rights.
The definition of personal data should have been left alone and the fact that the Government sought to redefine what privacy means and what that information comprises is just insulting. The idea that the Government would even consider compromising its citizens' GDPR rights is incredibly concerning.
As Dr. Claire McGettrick continually states, what these people are looking for is "the file, the whole file and nothing but the file". I do not know what is so hard to understand about this. After introducing our Adoption (Information) Bill 2021, we were told by Ministers that our Bill had not considered the many complexities associated with access to records. I do not see what complexities need to be considered or discussed and I cannot understand the lengths to which the Government has gone to make this so complex. I believe it is very simple: give access to the file, the whole file and nothing but the file, as Claire McGettrick has said.
The Government has once again missed the mark on this, just like it has done with the redress scheme for survivors of mother and baby homes. I wish to point out that it is completely disingenuous for the Government to keep referring to this scheme as the €800 million scheme. Why do the Taoiseach and his Cabinet insist on continuously calling it the €800 million scheme as if this is something to be proud of? It does not matter whether this scheme costs €800 million or 2,000 million euro. The focus should be completely and wholly on the survivors and not on the cost. Every time this scheme is referred to in terms of monetary value and not in terms of human life, one takes away from the survivors and from their experiences. The entire system of forced family separation and the institutionalisation of women and their children in this country is nothing to be proud of. The fact that this redress scheme is necessary in the first place should only be a cause of serious shame to us.
Deputy Connolly and I introduced our Adoption (Information) Bill last March. The Bill would have given adopted people complete, untampered, unredacted and unconditional access to their records. The Minister, Deputy O’Gorman, spoke to the Bill at the time and said that the Government did not oppose it but that it was going to bring forward its own comprehensive legislation that would serve the needs of adoptees and survivors. The legislation was to deal with all of the issues pertaining to this sensitive and complex issue in a robust and comprehensive way. We were led to believe that the Government would bring in legislation that was full and comprehensive but as I read this Bill today, I cannot help but feel disappointed. I am disappointed at the missed opportunity and, most of all, disappointed for the survivors and for the adoptees who have been fighting so hard and waiting so long on this Bill, only to be let down by the State once again.
I acknowledge all of those survivors and adoptees today, because I know it has not been easy. This Government has been dragged kicking and screaming to bring them this legislation. After all that work, I am very sorry that they have been left with this substandard Bill. While we stand here and debate this legislation, we must remember who it affects. Most of us will never understand what it feels like to not have access to our own information. I stand with all the adoptees affected by this legislation and I will continue to fight alongside them until we get this right.
After Deputy Connolly and I introduced our Adoption (Information) Bill, I asked how much longer must we continue to let these people down, how much longer must we continue to deny adoptees rights to their own information and how can we justify continually asking them to fight this fight when they have already been through so much. I put those questions to the Minister yet again today. What exactly will it take for this Government to do the right thing?
This Bill does nothing but give a continuation to the system of forced family separation and the institutionalisation of women and their children in this country. When will it end? What will it take? How many times will we require people to share trauma for the Minister to listen? I ask that the Government would stop putting pressure on these people and on groups to accept this substandard legislation. Adopted people know exactly what they want and what they need. They do not need the Government telling them that this is great legislation or that it should be welcomed. They see this for what it is. They see the Government trying to steer the narrative on this and they see the State, once again, providing far too little far too late. It is not good enough. This legislation will not be shoved down our throats or touted as a win, because it most certainly is not.
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.
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.