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

Amendments Nos. 29 to 31, inclusive, relate to the information session. Amendment No. 30 entirely removes or deletes it whereas amendments Nos. 29 and 31 seek to alter the mechanism. At this point we have debated this Bill for 30 hours across the two Houses and a very significant proportion of that time has been spent on discussing this issue. I recognise the very strong and deeply held views on this point.

In terms of what I advocate, I must return to the points that I made in previous debates. Irish law has for too long prioritised the privacy right of a parent over the right of an adopted person to his or her identity and this legislation seeks to reverse that approach. In fact, this legislation entirely changes that approach by putting the protection of an individual's right to his or her identity at its very core so is a right to full and unredacted access to information in every circumstance. I think everyone in this House has agreed that this is the right approach to take.

Let me explain what happens in any situation when the Oireachtas decides to balance sets of rights of individuals and citizens, and in particular when it decides to balance constitutional rights, then a clear decision is taken to elevate one constitutional right over the other. Let us be very clear that we are elevating the constitutional right of an adopted person to his or her identity over the right of a parent to retain his or her privacy by retaining anonymity.However, that process of balancing needs to be set out in legislation. The mechanism must be clear and must not entirely negate the right that is being made subordinate. In this case the right to privacy of the parent is being made subordinate, but that right cannot be entirely negated from the process. We are seeking to balance the two rights. We are seeking to prioritise the identity right of the adopted person, but we must ensure that the privacy right of a parent is not entirely negated because if we were to do that, the legislation risks being unconstitutional. I do not believe I am scaremongering when I say there is a likelihood of challenge here. We have seen constitutional challenges on this specific issue previously with the I. O'T case, the case that got us into this situation over the past 23 years where so many adopted people are being refused access to their information.

Regarding sections 29 and 31, there are different views on the best way to balance the privacy rights and the right to identity in the legislation. The proposal to use a registered letter was specifically canvassed during our engagements with the Office of the Attorney General and advisory counsel. It was advised that the information phone call was the best way to secure and protect the privacy rights and ensure that the privacy rights of the parent though diminished, though subordinate, were still present and still part of this process.

A great deal of consideration has gone into this. I have engaged on this issue and have heard the concerns people have raised about what is being proposed. I have also made very significant changes to the balancing process. Originally, the engagement was to be an in-person engagement and I have now changed that to simplify it to just a phone call. Originally, the engagement was to be undertaken by a social worker. However, recognising the concern some adopted people expressed that having a social worker leading this meeting suggested they needed social work and needed some sort of counselling, we moved away from that and now the relevant person undertaking the meeting can be any official of the relevant body.

Importantly we changed the language of what was conveyed in that phone call. It moved from referring to the adopted person's understanding the importance of respecting the privacy right of the parent, something that some adopted people regarded as patriarchal and condescending. We listened to that and acted. We moved it to the relevant person's simply informing the adopted person that the expression by the parent of a no-contact preference is an exercise of that parent's privacy rights and that is all that is conveyed. These changes have all been made to reflect the concerns raised in this process. We have gone as far as the legal advice my Department has received will let us go. If the legislation does not contain the appropriate balancing mechanism, it is at risk of being found unconstitutional thereby risking the overall goal which is the release of full unredacted information in every circumstance. I am not willing to risk that goal and that is why I recommend this approach to the House.