Alice-Mary Higgins (Independent) | Oireachtas source

I concur as this is an opportunity to make better law. It is also an opportunity to genuinely engage on and shape the Ireland in which we want to live by addressing the many injustices that occurred in the past. I again acknowledge in the Minister's statements the principles to which she spoke. We are living in an Ireland that has acknowledged a child's rights by popular mandate. It is an Ireland in which the understanding of the common good is very different. We are recognising a systematic injustice that was done to women for decades and trying to change it. I hope the introduction of open adoption might be another way of reflecting the new Ireland of openness, without stigma and discrimination.

I will respond specifically to the question posed by the Minister in the limited time I have available. It is welcome that progress seems to have been on the first part of Senator Bacik's proposal. It may end up nuanced, but there is the idea that we do have deep concern for people and their ability to trace their birth mother and father. The Minister said there must be some mechanism, but we have the seeds of such a mechanism. That mechanism is set out in data protection legislation and reflected in EU Regulation No. 2016/679, the general data protection regulation, GDPR. It is EU law and recognised in the Constitution just as much as any other constitutional provision about which we have sometimes spoken. In some case it has supremacy. The GDPR is either compatible or incompatible with the Constitution and it seems that we have determined it is compatible. The issues of privacy and the pre-eminence of the right to an identity are reflected in Article 15 of the general data protection regulation which enumerates the right of persons to their data and personal information. It also mentions that consideration should be given to the rights of others. A process has been set out in the Data Protection Act 2018 which transposes the regulation into Irish law. This is not incompatible with the information session idea or proposals put forward by Senator Bacik. We might need to be clear that there would be a moment for the consideration of rights that would be reflected in the way an information session might be conducted, for example. It is the case in other areas - there are many areas in which such balancing occurs in the GDPR - that "suitable and specific measures" or "proportionate actions" should be prescribed or set out in law. For example, it is a fundamental principle that the denial of a birth certificate to somebody is not a proportionate action and should not be recognised as such in any case. There might be other measures that are proportionate and appropriate that could be reflected within an information session. That is perhaps one way of making the mechanism or consideration visible and it can be in line with this process.

The GDPR is important for another reason, that is, the deep concern reflected in the Bill, as it stands. Every individual, whether he or she is seeking information or another party, already has legal recourse or a pathway set out by the GDPR and the Data Protection Act 2018 if he or she is concerned that the balancing was not made appropriately in terms of protecting his or her rights. The mechanism involves going to the Data Protection Commissioner and the path to be followed is set out. I know that it is no longer the proposal, but I am deeply concerned that the Bill, as it stands, seeks to actively confer jurisdiction on the Circuit Court, with the process being at odds with that undertaken by somebody concerned about personal data under data protection legislation. There is a conflicting process.

One of the concerns of the individuals affected about which they feel passionately is that they want to move past a climate of distrust where people feel they really have to fight for vindication of their rights. It is about moving to a position where the State will seek to make reparations and see what it can do to deal with that deep sense of justice of the citizens affected, something that was spoken about eloquently. There are tools in place to do this. We can move forward in a constructive way. I look forward to further engagement with all stakeholders, including birth mothers and others affected by this issue, as well as those people who have been adopted.