Katherine Zappone (Dublin South West, Independent) | Oireachtas source

I will start by saying that now, perhaps more than ever before, I feel that this is a great Chamber in which to debate these issues. Having come from this House myself and believing in the power of what we can do here, I really mean that. The Senators are demonstrating that here this evening in the context of that Bill. I say that most sincerely. It is really great to be back here. I appreciate the Senators' demonstration of their passion and commitment to getting the best Bill possible. I also appreciate that this is rooted in the representations they are receiving from the people this Bill impacts most. Witnessing that makes me feel an even deeper desire to bring forward the best Bill we can possibly get in the context of our foundational document, the Constitution. That is very much at the heart of my efforts and those of my officials over the last couple of years. We have worked with the Office of the Attorney General and the Attorney General himself to bring the Bill we are discussing before the House.

In that regard, we attempted to do everything we could to represent the interests, concerns and desires of adopted people. As Senator Bacik pointed out, this Bill also provides for access to information and tracing for birth parents and other people related to the adoption process. Our efforts to come forward with various amendments, which I will address in a few moments, took account of the depth of representation insofar as we could in the context of the advice we received.I would very much like to find a way to have a Bill which would allow unfettered access to information for those adults in the way Senator Bacik and other colleagues have proposed which echoes the desires of the advocates who represent the people who have been adopted. If we could find that way together and it was acceptable to the Attorney General in the interpretation of the Constitution in reforming this legislation, that would be amazing.

This is probably one of the most significant Bills that will ever be brought before the Seanad. Many Senators will be aware that it is almost 20 years since the former Minister of State Mary Hanafin brought forward the Adoption (Information and Tracing) Bill. Why has it taken 20 years since that time to bring forward legislation? Other parties have brought forward other Bills. We are dealing with complicated issues. I accept and acknowledge the comments made by Senators Bacik and Norris. We are in 2019 and a very different context. Even since we began the debate on this Bill, our consciousness and awareness have changed in the light of several events, many in the context of my ministry.

Having said all of that, I come before the Seanad to say also that we have no legal basis on which to support information and tracing services in Ireland today. I believe Senators are aware of this, but it is worth noting. Ireland also does not have a legal basis on which to protect and preserve the 150,000 adoption records for people who have been adopted, to bring them together under one roof - that is an integral part of the Bill - and to raise the standards for how the records are cared for, catalogued and accessed, which is also an integral aspect. As that has been the situation for 20 years, including the three years I have been Minister, yes, I am a woman in a hurry. Believe it or not, the desire to get this done has been behind the work of my officials and that of the Office of the Attorney General for the last couple of years. Regardless of whether we are on the right or the wrong side or just in the present moment of history, as Minister, I want to be able to bring forward a Bill that will work in a way that is really satisfactory to those on whom it will impact the most, that will protect the right to information on identity and ease the process to do it with the support of the State. I am standing firm in that regard and trying to face a future where we will bring in a law to initiate a culture of openness more than ever before.

I shall address some of the differences in this legislation in the light of the amendments we will be bringing forward. They are an integral aspect of the advocacy of adopted people subsequent to the publishing of the Bill which we have heard and listened to. Senator Higgins, among other Senators, has referred to some of them. One of the key phrases we heard from the groups was, "We want access to our information, not simply the summary of the information an agency would give to us." This will inform the amendments we want to bring forward to provide access to information, not just a summary of it. The advocacy groups have also stated the persons affected do not want to have to sign an undertaking which they say would be offensive. It would take away or deny them disproportionately their right to identity and information. That will no longer be in the Bill if our amendments are accepted. People have also said they want to be able to get their birth certificates if they are on the files of the agency being applied to. In this context it will mainly be Tusla. People have said they do not want to have to get permission or something to bring to the General Register Office. Those affected have told us that this is what they want. Such a provision is part of a Government amendment that we will recommend.

Some may ask, "What is the big deal and why is it not simple to deal with issue?" Perhaps the Senators do not think this as they are law makers, but, believe me, it was not straightforward to have it accepted in terms of the release of birth certificates. There has been a lot of movement back and forth and, with the interpretation of the Office of the Attorney General, we are trying to ensure we will balance appropriately the rights of the birth mother. The Constitution provides for a right to privacy which in this context applies to the birth mother and it needs to remain. People might wonder why that was the case and we may have an opportunity to discuss and debate some of the issues involved as we go through the Bill. These parts have been exceptionally challenging, but I am grateful that we have this work to put before Senators in the form of amendments. One amendment will propose that we call it the register of adoption inquiries, not the register of adoption contact inquiries. Again, this is after listening to the people who have advocated. These are just a few examples to which I wanted to point for Members, given that we are speaking about the Title and the beginning of the Bill. In the context of looking for information and the capacity to trace and support the tracing process, these things are important and will form part of the amendments the Government will bring forward.

Even with the changes to be proposed by the Government in the light of the process we have gone through in listening to the advocates, Senators are saying it is not good enough. I hear them. In response I again ask why has it taken so long. It is not just because we had to identify the number of amendments to be proposed and make sure they were all fine with the Office of the Attorney General. There were several other processes and options that we tried in order to balance the right to privacy in a way that would be acceptable but which we could not get through and which were stronger than the rights to information and an identity of the people who were adopted. We were not successful in that regard, but if there is another way forward and it can be done in a way that is acceptable to the Attorney General's understanding of the Constitution and that meets in a better way the desire for information, particularly because most Senators are speaking in the context of adopted people, that will be fantastic and I will be open to it. If we can, let us do so.

I have had the opportunity to have a brief conversation on this issue with Senator Bacik and have listened to her very carefully. At the end of this process we need a law that will not ignore and shove aside the constitutional protection of the right to privacy of birth mothers. We simply cannot do that. The Constitution puts us in a different position from the United Kingdom, including Wales, or other jurisdictions identified by Senators where there is unfettered access to the right to information in this context. Ireland is in a different position and we have to pay attention to it. If it is completely and utterly unacceptable, we have to find a way to balance it differently. I will be open to it. We have, however, worked exceptionally hard on the process to ensure to the best of our ability that it will tilt as much as possible in favour of the adopted person. As I said, I am a woman in a hurry, something for which I am not going to apologise as people have waited too long.We are lawmakers and this is our job. If this Bill needs a large amount of time in a short period, so be it. Part of the reason I say I am open on this matter is that it is important to find an interpretation of the Constitution in a way that we recognise that it is a living document. The social context now is different from the social context of 1937 or of two years ago, and I hear that. If we can find another way, so be it.

I appreciate that Senators have not much time to consider these amendments. I respect the democratic mandate expressed by the vote in the House and that Senators want and need more time. I offered a briefing before we had the amendments completed, one which would have been based on the principles involved given that we knew where we were going with them. We did not give the amendments to the Members because they were not completed. It was not as if we had not been working consistently on this for a long period. As Senator Bacik identified, I have offered another briefing for lawmakers tomorrow. I am also happy to meet advocates, one of whom I met this morning as we were preparing to appear on "Morning Ireland" together. Disappointment has been expressed about a lack of consultation on the amendments. I, too, have only received the amendments. At the same time, I do not apologise for coming to the Seanad to try to move this process forward by debating the amendments because that will help. This opportunity is helping right now to find a way of achieving the best possible outcome for a Bill that is constitutionally permissible.

I can outline in detail how we have pushed the boundaries of this Bill in some ways that are not related to Part 5, the arena in respect of which there are most objections. I want to do that but as Senators pointed out, there are possibilities and perhaps other ways. I am open to those. The Bill does not provide for all of the change that we need. I knew that before I came to the House and heard Senators' responses to it.

To respond to Senator Boyhan's question, this was my call. I wanted more time this evening and I will not apologise for that. This is an opportunity to tease through the amendments. I will to start to explain them to Senators. We may not have reached the section with which people have the greatest difficulty. The Senator asked me a question and I admit it was my call. I appreciate we may have a different view on that but I need to hear what Senators think about what we are doing. We have the opportunity to do that now. Members have said they want more time to consider them and I hear that. They have made a decision on that and we can consider the Bill now in the Chamber. We have more time to offer Committee Stage amendments before moving to Report Stage. I am conscious, however, that we are nearing the end of term and the legislation has not yet been before the Dáil. I want time to tease out these matters, especially with Senators, so that was my call.

If Senators have another way, let us begin the process of examining that. We will move through the Bill as well but let us begin the process of examining that. Senator Bacik knows as least as well as everyone else that this means we have to go back and forth to an office which will indicate whether that is acceptable. If it is acceptable, hallelujah. I have been speaking to my officials. In sentiment and in our hearts, we are with the Seanad on this and we have been working in that regard.

If we do not get this legislation through before we rise for the summer recess, I am concerned that we will place in jeopardy the time required to allow the people concerned to finally get the rights that are due to them. For this reason, I ask Senators to come with me on this as quickly as possible. As I said, there is no law in place to ground the current information and tracing service.

I listened to the comments made about Tusla, on which I could speak at length. Tusla does not have a legal foundation for what it does. One of the reasons it is becoming increasingly difficult for Tusla to provide the support and service people want from it is that the general data protection regulation or GDPR is now in operation and prevents other bodies from sharing with it information which it is seeking to help to support the adopted person. Tusla cannot move beyond that restriction until we enact this legislation. The absence of a legal basis for Tusla's role in this area is the reason for many of the difficulties people are experiencing in trying to secure the supports they need from Tusla, which many of the organisation's staff want to provide. I note the comments that Tusla will require more resources to perform this function.

We will not have time this evening to deal with transitional arrangements, which are one of the areas on which we want to put forward amendments. There are approximately 150,000 adoption records. Some of them are in Tusla, some are in the Adoption Authority and others are in other agencies or bodies. We are saying they should all come under one roof. Some of the amendments refer to how that will be done. Will the records have to be physically brought to this place or could they be scanned and brought there more quickly until eventually they will be in one place? All of that needs to be done to offer the appropriate support to which people have a right. That is another reason I am in a hurry with this Bill. If Senators have another way or other ways of moving forward, let us get to work on them as soon as possible to advance this Bill which people, including me, want and desire.

Perhaps we can move to some of the earlier amendments that may not be as problematic as many of the issues Senators have raised. That is what I thought we would be able to do this evening.