Tuesday, 10 May 2022
Birth Information and Tracing Bill 2022: Second Stage
Others have spoken of how some feel the apology was too soon as it came without sufficient notice. There is also a strong case that it has also come very late from the State. I do not think that this will be the only apology. We are in a period when there cannot only be indications from the Government, the State and its institutions of a message of apology and regret but also a determination to act and change and that it will act both forwards and backwards in the delivery of justice. An apology is not the same thing as accountability and accountability is still badly needed in this area. It could be the truth commission recommended by Mr. John O'Mahony or the investigation of systemic practices that could be illegal or practices that were criminal, and known to be criminal, at the time.
I say the apology is a little late because it is regrettable that it has been such a battle at every single stage to get every small improvement. I glanced back today at an old headline in a newspaper. It was 2017 or 2018 when myself and Senator Ruane, who was a member of the joint committee on children, were accused of terribly delaying something badly needed because we raised the idea of the veto and the idea of an automatic assumed opt-out on contact. It was an assumption of non-contact, not even a veto, that was stated before. We were told that we were questioning the Attorney General's advice at the time and it was wrong. It was post-GDPR and it was wrong. That is why it is difficult for us. We have been speaking about GDPR and the Minister has probably grappled with it more than most by now. It has been painful to have to push it again and again on each piece and to say "No"; people have rights. Those rights are there in European law. Yes, the State needs to vindicate, support and deliver those rights but it must also ensure that in no way does it ever attempt to dilute, supplant, corral or limit them. The Minister will be aware that there is still considerable concern about those areas. The fact that only certain bodies are being named as having to give subject access requests and are information sources means we must ask where it leaves all the other bodies which have information that individuals may wish to seek an access request and to which they are entitled to access under the GDPR Act under subject access requests. There has to be absolute clarity in the Bill as it leaves this House that there is no question but that this is a cul-de-sacing of people's rights to information into limited areas.
There is some regret around the Minister's power to designate new relevant bodies under the Act. We know there are a lot of very relevant bodies but at the moment there is a very limited list of relevant bodies and in terms of primary and secondary sources. It is quite a narrow list and there are obvious omissions and entities that clearly should be there. The Minister will understand that while we may have faith in him that he intends to designate all the relevant bodies, as legislators and people who have been waiting a long time, we want to see as much of that as possible in the legislation at the outset, while making it clear that the list is not exclusive or closed.
Others have noted that it is good that it has moved from the very closed system and the assumption of non-contact and the kind of stigma that was in the rationale as was evident even from the officials who spoke on it at the time. It is good that we have progressed beyond that but equally it is still the case that persons who are adopted face a different obstacles to getting their birth certificate than any other person in the State. That remains a concern. The registered letter was put forward but the Bill should really say that everyone should get information. If you are getting a birth certificate, that is a person's information. In a way, it is not related to contact. There is a question about general public information. If a person is seeking contact, there is a register where they can inquire as to whether a relative has requested non-contact but that is a discussion that is relative to the point about contact. There is still an argument as to whether it is relevant at all to someone's personal information.
There are still some gaps and concerns around relevant records definitions that the Minister will be aware of. Take care information, which is very blunt. It is just what the arrangements were. It does not have that texture about what was the care. Were there reports? Were you one of the children who, say, inspectors identified? Were you treated well or badly? Is there a record of concern about your care? It relates to all the texture of that care information. Then there is early life information. I have raised a point with the Minister and I am disappointed to see that it is still in the Bill. I know there is information about medical treatment and so on but I find it extraordinarily cruel that in the "early life information" that the section includes "information on whether any person, being a parent or other genetic relative of him or her, visited or inquired in relation to him or her, which information includes the degree of relationship of the other person to him or her, but does not include the name of the other person". To learn that someone inquired about you at this point and to not know who that person was seems cruel. There is not even the proviso that the person might have put themselves on a register of not wanting contact. That element is unacceptable and goes back to the drip-feeding of tiny clues about people's lives that they have had to struggle with as they get these little scraps of information to try to put together a picture of their early lives and maybe the lives of their parents.
I am concerned about the definitions of qualifying relatives and genetic relatives. There is a definition of genetic relatives in the Bill. However, where a relative wants to access information, they are limited in many cases to accessing information in relation to a relevant person who is deceased. There is a qualification that they be the next of kin. It seems that under the Bill a sibling would not be able to seek information if there was a parent still alive who was not seeking such information.These are the nuances that matter hugely. It is fundamental that we do not place people into a labyrinth and that we recognise that error. The immunity points are very important. I know that it is immunity going forward, but it must be made very clear that there is no immunity retrospectively. However, I am concerned that relevant bodies which may omit information can claim not to have acted in bad faith, because we know that some of these bodies have systematically hidden and blocked information in the past. I would not want anything to allow them to have a potential immunity in the future if they continue to block access to important information. We must ensure there is no defence for those actions going forward.