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

I thank Senators for their contributions. What we are discussing here gets fundamentally to the centre of what this legislation is trying to achieve, which is that for the very first time in Irish history, adopted people, people who were boarded out and people who were subject to an illegal birth registration would have an automatic right to their full birth, early life care, medical information and a birth certificate. For the first time, that cannot be denied to them. It will not be redacted and their right to that information will not be undermined in any way. That is what this legislation is trying to do.

In order to do that, this legislation recognises that in the provision of that identity information - the constitutional right to their identity for adopted people - it does in some circumstances involve a restriction on the right of another person, the right of parents who do not wish their identity to be known to the child that they gave up for adoption. These are two fundamental rights, both springing from Article 40.3.2° of the Constitution, both unenumerated rights - a constitutional right to privacy and a constitutional right to identity information. For too long, Irish law has prioritised the parent's right to privacy over the adopted person's right to his or her identity. This legislation seeks to reverse that, to almost entirely change it, and to put the protection of rights on the right to identity. Everyone in this House and in the other House is agreed that is the approach that should be taken.

In Irish law, when the Oireachtas takes a decision to balance constitutionally protected rights, in particular when the Oireachtas takes a decision to elevate one constitutional right over another, to give one constitutional right preference over another, a process must be undertaken in the legislation. That is what we are doing. We should be clear about that. We are prioritising the constitutional right of adopted people to their identity over the constitutional right of some parents to their privacy. We must understand that for some parents, perhaps a very small number, but that does not matter because even if it is just one, we are dealing with a parent's constitutional rights, that is a traumatic experience as well.

In order to do that, our legislation has to demonstrate that we have considered both sets of rights and that we have put a balance or mechanism in place in terms of how that prioritisation of the identity rights over the privacy rights is done. This is what we are seeking to achieve in this section. There are different views in terms of what is the best way of balancing the privacy rights and the right to identity in the legislation. In group 11 we will talk about some of the other options.

This speaks to some of the opposition to this section by Sinn Féin. Fundamentally, if there is not some element of balancing of the rights in this legislation, it is at high risk of being found to be unconstitutional and, as such, at risk of being struck down and we would be back in the same place again where adopted people have no rights to their information. This legislation guarantees the full release of information under the processes set out: the full release of unredacted information. It does so after a balancing process has taken place. That is why we are speaking of this issue.

What has been identified, after detailed analysis, is the idea of an information session or call, where in a very small minority of circumstances, where a parent has proactively sought to register a no-contact preference on the contact preference register, that will be conveyed to the adopted person via a phone call.Once that telephone call has taken place, the full release of information can take place. We believe this is the best way to vindicate the constitutional right to privacy of the parent who has sought to protect that right by entering a no-contact preference in the contact preference register. It is about how to balance that right, but at the same time ensure that every adopted person gets full access to all the information in an unredacted manner. We can perhaps speak later about the alternative methods others have brought forward on this issue.

Senator Hoey asked about what happens if an adopted person seeks not to use the provisions of this legislation, including the provision on an information call if a parent has indicated a no-contact preference. If someone chooses not to use the process of this legislation, he or she still has the option of using general data protection regulation, GDPR, and making a subject access request. In that situation, the data controller will make a determination on the release of the information. However, it is important to recall the reason we are bringing forward this legislation is that the answer to somebody using this legislation will always be the full release of all information whereas in a GDPR situation, the data controller must assess the rights of the person making the application and balance those against the rights of other persons. There could be circumstances in which the data controller prioritises the rights of other persons. Someone can continue to use the GDPR process, however, and those rights continue to sit alongside this legislation. We should reflect, of course, that this idea of the information session and information call is a process that was put forward previously by Senator Hoey's party in 2017 in terms of a good way to reach that balancing mechanism.

In terms of amendment No. 71 from Senator Higgins regarding a mechanism where somebody does not wish to take part in the information call, again, I find what she has put forward problematic in the context of one of the options that is being put forward in group 11, which is this idea that registered post can somehow indicate that the information has been successfully conveyed to the adopted person. I will speak to my concerns about that as an alternative when we come to discuss group 11, but that protection is not even provided in what the Senator has put forward in amendment No. 71. That is why I would be concerned about that and about the clarity of the no-contact preference, which is the exercise of the privacy rights being conveyed to the adopted person under the mechanism the Senator has set down in this amendment.

In terms of some of the other points, a range of issues are set out in this group and some of them are quite different. In terms of the use of "may" versus "shall" in the statement, which we debated during our previous discussion, again, we believe that the statement will take place in the vast majority of situations. However, there are situations, and I gave the example before of maybe the provision of a birth certificate or something like that, where one piece of information has been sought where a statement will not be necessary, for instance, where the piece of information being provided is self-explanatory and the statement is not needed. Again, however, clear guidance will be set out in the guidelines to the effect that where there any degree of explanation is needed, a statement should be provided.

Senator Boyhan spoke very eloquently last week to the case where a record is not found. There will be situations where records are not found. This is important for us in terms of honesty and not wishing to create unreasonable expectations for adopted people of what might be there. There will be situations where adoption records are not available for the AAI or Tusla to provide. We have mechanisms in place in terms of tracing and other methods to support people who perhaps have not been provided with a birth certificate, in how they can use the additional processes. This idea of the automatic consequence of no birth certificate being found resulting in a seizure and an investigation puts a huge burden on Tusla or the AAI in terms of undertaking this when they may not have the mechanisms to provide any conclusive answers to the adopted person as to why that is the case. It particularly puts a huge burden on them at a time when they should be undertaking the already very big job of implementing this legislation, providing for what will be the many thousands of people who will seek to use the provisions of this legislation to finally provide them with the information they require.

Fundamentally, what we are seeking is the full release of all information in every circumstance. That requires a limitation of the privacy rights of parents. We agree that this needs to be done and that the fact it has not been done for so long has entirely negated the identity rights of adopted people in this country. Because of the system in which we work, however, a severe limitation on the privacy rights of somebody must contain a balancing mechanism. We would argue that the balancing mechanism we are bringing forward has changed throughout this process. It has moved from an in-person meeting to an information telephone call and from being provided by a social worker to being provided by a relevant person. It has moved from a point where the language used referred to the adopted person understanding the importance of respecting the privacy rights of the parent to one where it solely states that the adopted person will be informed that the parent has exercised his or her privacy rights. This is a change. It has been amended to reflect concerns that have been raised. Fundamentally, however, if this legislation does not contain a balancing mechanism, we risk the overall goal, which is the full release of unredacted information in every circumstance.