Tuesday, 10 May 2022
Birth Information and Tracing Bill 2022: Second Stage
I want to thank all Members of the House for the considered contributions they have made in the context of this legislation and in relation to the apology that has been delivered to those who were the subject of illegal birth registrations. I want to thank the Acting Chairman for his insightful contributions, as ever. He focused his contribution on the importance of identity and that is fundamentally what the issues we are seeking to address in this legislation are about. It is the fundamental issue that those who were subject to illegal birth registrations were denied their identities. The depth of the denial of that identity for those subject to illegal birth registrations is particularly acute in light of the way that so many of them found out about their identities.Not only did they not know their identity, they were led to believe a completely different identity.
I hear and acknowledge what has been said by Senators McGreehan, Seery Kearney, Craughwell and those to whom I have spoken before tonight's meeting, who are in the Public Gallery, in terms of whether this was the best place to make the apology on behalf of the Government. In making the apology here and in doing it this evening, in particular in linking it with Second Stage of the Birth Information and Tracing Bill 2022, I wanted to demonstrate that this apology was being followed by meaningful action. I have always believed that this Bill is a meaningful response to those who have been subject to illegal birth registration. When I met a number of those present on a web meeting last year, I made the commitment that the delays that people had faced in terms of a resolution to the identity issues, but also those very real and practical legal concerns, would come through this legislation. That is why I have linked the apology today with this Bill. I hear what they and Senators have said. As I said, I will engage further with the Taoiseach in terms of ensuring there is full parity of esteem between the group who were subject to illegal birth registration and others who have received a State apology, in particular those who were in Magdalen institutions and those who were in mother and baby institutions.
A range of very important issues have been raised across the House. We will have the opportunity on Committee Stage to address these in more detail, but I would like to take this opportunity to discuss some of the issues at this point. The Acting Chairperson, Senator Boyhan, listed the key types of information to which this legislation will provide access. It is important to remember the breadth of what we are trying to achieve. The Bill provides for access to the birth certificate, the document that for so long has been denied to so many people; and access to birth information, which is information that could be on a birth certificate but on many birth certificates is not present. In that situation, it is usually the name of the father that is not present. That information may be elsewhere in a file of the individual but is not on the birth certificate. That is why we are including birth information as well. The Bill also provides for care information, which is information about the period during which an individual was in care. In response to Senator Higgins, where there is any file that discusses any element of the treatment of the person, that information will be available under care information. The Bill also discusses early life information as another source. Some of these areas cross over. It is a Venn diagram in terms of covering of information. We have put these successive definitions into the Bill to provide the broadest level possible of information. The Bill also provides for medical information, which is absolutely essential. This is an issue of the most urgent concern to many people, particularly people with a hereditary condition. It is important they can get any medical information about themselves. Importantly, this legislation also gives them a legal right to medical information about somebody else. That is something none of us have. We talk about knowing if one's mother had a hereditary condition. I know that information because my mother tells me it, not because I have a legal right to it. It does not happen but were any of our mothers or fathers to decide not to tell us about a medical condition, that would be their legal right. This Bill, for the first time, gives an adopted person a legal right to the medical information of a parent in order that he or she can know if a parent had a hereditary condition.
Incorrect birth registration information is a new category we entered by way of amendment in the Dáil, recognising that there may be information on the file that can tell us about how the incorrect or illegal birth registration came about, if there is any detail about who did it. That is a new category that we brought in which, again, is particularly important in terms of the accountability that a number of Senators talked about. The Bill makes provision for provided items. If a photograph or letter has been left on a file, that information is available as well. We specifically, again by way of amendment, we have set out that the term "provided items" includes photographs.
Senator McGreehan made a really important point about trust in institutions and how trust has broken down. Having spoken to many adopted people, but particularly in the context of those who were subject to illegal birth registrations, that the manner in which that information was conveyed to them was hugely inappropriate in many circumstances and has further eroded trust. We have to try to rebuild that trust as part of this legislation, but the work we are doing goes beyond this legislation. We are working with the agencies involved, namely, Tusla and the Adoption Authority of Ireland. A departmental implementation group works with these agencies in terms of ensuring that the culture in these institutions is a culture of giving rather than of withholding information. The default should not be to not give information; it should be to provide information. We are doing that through an implementation group. My Department, Tusla and the Adoption Authority of Ireland work together on how this legislation will work.
The legislation gives the Minister the power to draft guidelines in regard to how this legislation should be interpreted. There is also the matter of resourcing, which was raised by Senator Hoey. We need to resource these agencies better in order that they can undertake the very significant work that this legislation gives to them. In this year's budget, for example, we have given a significant €4 million additional allocation to Tusla, specifically to resource the Birth Information and Tracing Bill 2022 and an additional €1 million allocation to the Adoption Authority of Ireland specifically to resource the Birth Information and Tracing Bill 2022. Those two bodies have been hiring relevant staff with that range of competencies and they have been updating their knowledge base to be able to resource and implement this legislation.
Senator Seery Kearney raised the important point with regard to people with suspicions of illegal birth registration. As stated earlier by the Senator, what happened in the St. Patrick's Guild is just the tip of the iceberg. I agree. We made additional changes in this area during Committee Stage in the Dáil. We are resourcing a specialist tracing service. It can work in two ways. First, if an individual comes forward with a strong belief or a piece of information that suggests that he or she was the subject of illegal birth registration, he or she can engage with that specialist tracing team. It has the mission and the legal basis to inquire because other agencies or bodies now have the obligation to work with such a trace. While the GDPR has done many good things, it has been, whether correctly or not - I am sure Senator Higgins would have strong views in that regard - used as a reason for one agency not to share information with another in terms of tracing. This legislation gives that legislative basis. It also gives a legislative basis to Tusla. Where it sees markers or suspicions on a file, Tusla itself can proactively undertake a trace. That is important. It is a new power, one that does not exist at the moment. It is a significant power in terms of recognising that there is a wider body of illegal birth registrations out there and a process to try to reveal that information and give people a right to their identity.
Senator Warfield stated that there is no right to access files in Irish law. That is fundamentally what we are about here, namely, the right to access one's information as an adopted person or someone subject to an illegal birth registration, which does not exist. That is what we are seeking to do. It is important to say that this legislation does not supplant GDPR, which brings me to some of the points made by Senator Higgins. This legislation sits alongside GDPR.People retain their existing rights to put in subject access requests. This legislation conclusively determines that at the end of a process, everyone will get full access to all of their information. That is not guaranteed under GDPR because there is that balancing mechanism in GDPR where the data controller must make a call each time. There is no call in this. People are entitled to their birth information, their early life information, and all of those categories. They are entitled to them fully and unredacted. That is why we did not just rely on GDPR. We never wanted a situation where someone would be refused their right to this vital information.
I want to talk about the issue of balancing of rights, which has been a key theme in a number of the contributions, and the approach that this legislation takes to the issue of balancing of rights. I agree with Senator Craughwell's point. There is a group, how many we do not know but I believe it is a small number and the size does not matter. This is a group of parents, probably all mothers, who have never discussed with their families what happened to them because of the secrecy and the stigma that Irish society placed on women and girls who got pregnant outside of marriage. Their right to privacy and to keep that secret, and the right of an adopted person - who is their child - to know their identity, are two fundamental rights. Up to this point, Ireland has always prioritised the right of privacy over the right of identity. That changes with this legislation. It entirely flips and we give precedence to the right of identity.
I do not need to tell Senators that any time one balances two sets of constitutional rights and gives precedence to one over the other, the legislation that does this must explain the process and must show to the courts that both sets of rights were considered. This is why we must have a balancing mechanism. I believe there is general agreement that there has to be a balancing mechanism, and the question then becomes what that balancing mechanism will be. We believe in the idea of an information session. I must be clear that such an information session would not happen in every circumstance. It would happen in a small minority of circumstances where a parent has clearly registered a no-contact preference, and this can happen from now on, once this legislation is passed on. This preference will indicate a clear affirmative act demonstrating that they have a concern about their privacy. They cannot keep their identity secret any longer under this legislation but they have the right to register this no-contact preference. The question then becomes how to convey that to their child. The process of an information session was originally to be a physical meeting, under the original draft, but we have changed this to a phone call. Originally, we were going to have a social worker involved. We were coming from a mindset of the adopted person maybe needing support, but we must also recognise that this is the conveying of a piece of information. Many adopted people do not want such support and they do not want to be treated as though they are something delicate. They want to be given the information. This is why we moved away from the idea that the information session would be provided by a social worker. It is the conveyance of two pieces of information, namely, that the birth parent has asked that there would be a no-contact preference, and a recognition that this is an exercise of their privacy rights. Once that phone call has been made, the full suite of information, unredacted, is released. We believe this is the most constitutionally compatible way of balancing those two sets of rights.
We did examine the issue of the registered letter. This was examined but the advice we received was that the information session is the best way. This approach has been proposed in the past, as Members may be aware, with regard to the information session. I have heard the concerns raised by some adopted people about that information session. If it was something easy to change, then I would do that. We are, however, fundamentally balancing two sets of constitutional rights here. We are in a space where we know that issues have previously gone to the courts on the release of adoption information. The I. O'T case, which is the case that has caused so many of the difficulties we are experiencing, was someone objecting to the release of their name and adoption information to the child they gave up for adoption.
In my introduction I did not speak at length on, but I am very conscious of, how many efforts there have been to pass legislation providing for information for adopted people, and how all of those efforts have failed. Senator Higgins referred to what was said to Senator Ruane at a previous point. I will not get into that space but I am very conscious that we need to get this done. Having listened to the advice of the Office of the Attorney General on the terms of the balancing mechanism, I believe we have a balancing mechanism that gets us through constitutional balancing and delivers full access to all information, unredacted, with no more vetoes and no more are being held back, with everyone getting access to their full set of information.
I will make two further brief points on some of the wider issues. Senator Dolan spoke of the mothers who may be afraid. Under this legislation, counselling is provided for everyone who wishes to receive counselling. The person seeking information or the person who has lodged a no-contact preference will be provided with counselling as some element of the supports to them.
On the wider issue of the retention of information and where the information is, this has come up and it was discussed in the Dáil. Senator Warfield has also spoken on this. I was always very clear. Previous legislation had tried to bring everything together. It was to bring everything together and then allow for access to information. We must recognise, however, that this would take a number of years to do. It could be done, and this Bill allows for it to be done, but we want to be able to give people access to information as soon as possible. This is why we put an obligation on Tusla, the Adoption Authority of Ireland, and the various bodies, to provide information under this legislation. We also recognise the need for, and in the response to the commission of investigation we clearly set out the objectives for, a records and memorial centre. The Government recently announced steps it is taking to create a site where people can learn about and understand the tragedy of institutional abuse in Ireland in the 20th century, and be able to access appropriate records. There will be a physical building but we also know this must be available in a wider setting for those people living abroad. This is particularly important. That plan is being advanced. This legislation provides for the protection of all existing records and allows the Adoption Authority of Ireland to request and instruct bodies to provide their records to it as part of the work of collating information. This legislation does advance the achievement of that goal.
I thank Senators for their time today. I thank them for their engagement on this legislation. I look forward to continuing to engage with Senators as the Bill moves through the House. In particular, I thank those who are with us today in the Gallery. I hope the apology I have delivered on behalf on the Government has meaning to you. The Senators are right that this is your apology. How you understand it is not something that I or anybody else can seek to dictate. I hope that in discussing the Bill today, you see the efforts that are being made by the Government to provide you, and others in the same situation as yourselves, with a route to the access to your identity, while at the same time addressing those very real concerns that the fact of your illegal birth registration has created in your lives.