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

I thank Senators for their detailed contributions and consideration on this, which is an important issue. It is central to this legislation and central to that balancing of rights that we are seeking to achieve in this Bill and which has eluded previous Oireachtais over the last 22 years. I take what we do here very seriously and I take on board the contributions and concerns raised.I hope it is accepted that that is the case.

Amendments Nos. 68 and 69 are the same and propose a mechanism of communication of a contact preference through registered post as an alternative to a meeting or phone call. I have noted the suggestion in the pre-legislative scrutiny report that the function of the information session could be fulfilled by registered letter. Amendments to the same effect were brought on Committee and Report Stages in the Dáil. However, I do not believe the use of a registered letter instead of a phone call resolves the central issues. We are trying to balance EU and constitutionally protected rights, namely, the right to identity of the adopted person and the right to privacy of a parent. This legislation gives significant priority and preference to one set of rights over another. It elevates the right to information of adopted people over the right to privacy of their parents. That is right and we all agree with that. It has not been done for too long and has been a deep denial of the right to identity of adopted people. However, when constitutional rights are being balanced, there has to be a balancing mechanism. I think we all accept that. The question is how we do that. For the Government, the central issue is the conveying of the contact preference of the parent. How do we convey that in the best way possible to the adopted person, while recognising that the identity of the parent will now be provided to the adopted person?

In a small number of cases - and I believe it will only be a small number - the identity of the parent will be conveyed to the adopted person against the parent's wishes. We need to achieve that so the adopted person can enjoy their identity rights. How do we convey that in a meaningful way? The idea of the registered letter was considered during the drafting process and rejected as being insufficiently protective of the privacy right because it did not sufficiently guarantee the conveying of the preference. The conveying of the preference is not a tick-box exercise but a genuine effort to protect the privacy right and make sure it is recognised in this process, taking account of the fact that that right has been pared back significantly. With registered post, there is no guarantee that the individual receiving the post will receive or read it. There is every possibility that someone else in the house may receive the registered letter. In that situation, the preference is not directly conveyed. There are wider circumstances about the individual's preference if somebody else in the house receives the registered letter but, putting that aside, is the preference conveyed? Senator Seery Kearney focused on the evidence of the call versus the evidence of the letter. I am focused on the conveying of the information. How do we ensure to the best of our ability that the vital information, which may or may not be difficult information depending on the individual's circumstances, that the parent does not want to be contacted is conveyed to the adopted person? We believe the best way is through a call, an online communication or a meeting, whatever is the view of the adopted person. It cannot be guaranteed through a registered letter.

A point was made about a call and is right. It depends on the circumstances of the adopted person. There may be situations where this call or letter is easy or difficult. We spent time earlier in the session talking about what an adopted person feels like if they get a letter saying, as it were, "No information – full stop". It could be argued that getting a letter saying the parent does not want contact could be regarded as cold and unsatisfactory. At least with a call, there is the opportunity for some engagement and further information about tracing services. I am conscious that adopted people do not want to be spoken about as if they are delicate and need counselling in all situations. Different people's situations are different.

The central concern in the context of this legislation is the conveying of the information concerning contact preference and looking at how to best secure that. I believe a call, meeting or online engagement better guarantees the direct conveying of the information than a registered letter and gives us greater security that the information will be conveyed. The adopted person will do with that information what they decide.

Senator Seery Kearney made a point about the subject access request and she is right that such a request can be made. The difference is that such a request does not guarantee access to all information in every circumstance, whereas the legislation we are bringing forward does. We could have relied on GDPR but we know there is a decision-making process where the data controller reviews the matter and makes a consideration in every case. That does not happen in this legislation. Where the process set out in this legislation is followed, every person will receive all of the information.

On the use of the term "mandatory information session", where someone seeks access to records, be it birth information or early life information, the person make the application and the authority or agency looks at the contact preference register. Where there is a preference for contact expressed by a parent or it is blank and no preference has been expressed, the full information will be provided to the adopted person immediately. That will occur in the vast majority of cases. I am confident of that and will explain why in a moment. In the vast majority of cases, the idea of the phone call or information session will not be relevant to the engagement. The person will make an application and receive in the post all the information unredacted. In a case where the authority or agency identifies that a clear no-contact preference has been made, that means that at some time after this legislation is passed a parent has, for whatever reason, indicated concerns about their privacy right and proactively gone to the effort of contacting the contact preference register and asking that a no-contact preference be recorded. This is someone clearly expressing concern about that issue. Where that is the case, that piece of information the parent has seen as vital for the protection of their privacy rights will be conveyed to the adopted person in a phone call, an online meeting or a physical meeting, whatever is the preference of the adopted person. After that, all the information will be released. That is the essential point. This is a mechanism to ensure that, unlike in all previous efforts to legislate in this area, all information will be released and nobody will be left behind.

A significant focus has been given to how we do this. As Senator Moynihan knows, the mechanism I now propose was proposed by her party previously, in terms of how we get this balance. I know people have concerns but it is about getting this constitutional balance right and, for the first time ever, ensuring the result is always the full release of information. I believe we have got the balance right and we are guaranteeing the vindication of the constitutional right to identity in every situation, while maintaining some protection of the constitutional privacy rights of a parent who has clearly expressed a desire for such protection. I hear the concerns of Senators as I heard the concerns of Deputies but we have gone as far as we can constitutionally to achieve that difficult balance. The outcome will always be, where the processes under this legislation are followed, the full and unredacted release of all information. That is essentially where we want to be.