Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I thank all of the Senators for their engagement on this point. I will seek to address all that was said. First, I wish to respond to Senator Warfield's comment that some people who are illegally adopted have no rights under this Bill. As Senator Seery Kearney said, that is just wrong. The very centre of Parts 8 and 9 is about dealing with the situation of those who were the subject of illegal birth registrations. I need to put that on the record of the House.

I want to talk about the terminology we are using. The terms "illegal adoption" and "illegal birth registration" are being used a lot. I have always used the term "illegal birth registration" to deal with the situation of those who were in St. Patrick's Guild and to deal with those we suspect were in a similar situation. I say "illegal birth registration" because there the issue is the changing of the names but there are other ways in which an adoption could be illegal. There could be issues around consent, for example. There are other reasons and what Parts 8 and 9 are trying to deal with is the issue of illegal birth registration, so that is the term I am going to use. That is why I am very concerned about bringing in the term "illegal adoption" because in the case of the St. Patrick's Guild cases, adoptions did not occur. Adoptions did not occur so it is not correct to say "illegal adoption". They were never adoptions as recognised by Irish law. That is why all of those individuals, the people who joined us here in the Public Gallery last week, have so many questions, not just on identity but basic legal questions with which they must struggle and that is what we are seeking to address in this legislation.

Whereas I may disagree about the use of the terms "illegal adoption" or "illegal birth registration", there has never been any disagreement from me on the question of illegality. Senator McGreehan helpfully pointed out that when I spoke and gave the apology on behalf of the Government last week, I used the term "illegal" 44 times in my speech. There has never been any question for me as Minister, or for this Government, that this was an illegal act that was undertaken and an illegal act that has had enormous consequences for the individuals affected. I hope the actions we have taken reflect this. I include here the actions of my predecessor, the former Minister for Children and Youth Affairs, Dr. Zappone, who set up an independent review following the discovery of the St. Patrick's Guild files.I published the review following the publication of the commission's report, but I felt that was not enough. I felt it was a good piece of work but there were no firm conclusions, so I looked for a further piece of work specifically on the issue of illegal birth registration. I asked the special rapporteur to conduct a piece of work. He did and acted very rapidly. He gave some detailed recommendations and I took a bit of time to consider those. He brought forward 17 recommendations and many of them are being implemented in this legislation. He also brought forward the recommendation of the apology, which I implemented. He has brought forward some other recommendations, one of which, as Senator Seery Kearney referenced, is still being considered.

I have spoken in both Houses many times on the issue of legacy and I have always used the term "illegal birth registration", recognising the illegality that took place in those situations. What is at question in this Bill and the section we are talking about today is not the question of illegality. The question of whether these registrations were illegal is not at question. There is legislation, as Senator Seery Kearney has referred to, that clearly shows that what happened in these situations was illegal. We are not questioning the legality or otherwise of what happened. What we are doing is providing a mechanism for people to access the provisions of this legislation, and primarily the provisions that will allow them get the information to confirm or finally clarify those questions as to whether the registration of their birth was illegal. That is the issue that we are trying to address.

The law we are bringing forward is to allow people access information, but particularly for those where it is shown a birth registration was illegal, it allows the rectification of their legal issues in terms of succession, the confirmation of contracts and their relationship with the family they were raised with and whom many believe were their birth parents. That is what we are trying to do here. That is the question we seek to address. It is for that reason I believe the definition of "illegal adoption" being proposed here is unnecessary because those who need to use this legislation and who need the benefits of it are already covered within the existing definitions. They are covered within the existing definition of either an "adopted person" or "incorrect birth registration" and I will come back to our understanding of that. I have heard, and throughout this process I have heard, the concern about illegality, and that is why we made that change to the definition of incorrect birth information. We have included a specific reference that it is as the result of the giving of information that was false or misleading. This legislation recognises the falsity. It recognises that misleading information was provided. That is explicit. It is referenced twice in the legislation. It is referenced in the definitions in section 2 and in section 54. The falsity is clearly recognised within the text of this Bill.

In terms of the definition and the approach we take, and again recognising we want as many people as possible who have questions, who do not have any certainty as to whether an illegal act took place but who have questions, to be enabled to access the provisions of this Bill. That is why we have the concern about the use of the term "illegal" or "illegal adoption". To include the term "illegal" rather than "incorrect" would require an additional criteria of illegality to be met. That would be such to establish that an illegal act lay behind the making of the registration. It would have to define what the illegal act was and, indeed, who perpetrated that particular act. It may be much more difficult to establish illegality or that an illegal act had occurred resulting in a false registration rather than establishing only that an incorrect registration had occurred, and that is because of the very secretive nature of the practices that we are doing here. I have gone back and forth with officials on this issue because it was in pre-legislative scrutiny, PLS, and it was brought up on both Committee and Report Stages. This issue has been teased out extensively with officials. They came back with the addition of the term "false and misleading" to ensure the falsity of what happened is recorded within the framework of this legislation. They were not able to provide me with an alternative that would not involve the restriction of the people who could use this particular legislation, and that is what I do not want to see. I do not want to see us putting language or terminology in the Bill that is not going to change the illegality of what happened, because its illegality has already been made clear from existing legislation, but could potentially lessen the pool of people who can use the provisions of this legislation. People need to be able to use this legislation because not only does it give them information but it also provides legal avenues to address very real problems and challenges they face as a result of finding out they were subject to an illegal birth registration. They are real challenges they have spoken about in Oireachtas committees and, indeed, in their engagement with many Senators directly. It is for that reason I believe the changes we made in the Dáil, the addition of the term "false and misleading", which recognises the falsity of what happened but also ensures there is a wide definition that people can use to avail of the provisions of this legislation, is the best way forward, notwithstanding the fact that I and the Government have always recognised, and recognised on the floor of this House and in the text of the apology provided, the illegal nature of these birth registrations.