Clodagh Finn: Unless amended the birth information bill will do more harm than good

The Birth Information and Tracing Bill 2022 erects rather than removes barriers

In January, Children's Minister Roderic O’Gorman published a bill that does not provide automatic access to birth certificates and does not open the personal files held by the State, religious orders, and adoption agencies. Picture: Gareth Chaney/Collins Photos

I read the first paragraph of the Birth Information and Tracing Bill 2022, which is up for scrutiny before the Oireachtas children’s committee on Wednesday, four times before I felt I knew what it was saying.

It runs to 14 lines, contains almost 200 words and seven semi-colons. Even as a fan of the semi-colon, the sentence gasps for air at about line four. The campaign for plain English has clearly not filtered through to the circumlocution office at the Department of Children.

Part of you has to wonder if that is a ploy to put off the ordinary Joan Soap. Given that so much of daily life is governed by laws, surely a lay person should be able to read a piece of legislation and understand it without having a law degree.

Plain English does not mean dumb-downed English. It means expressing complex ideas — and all the permutations they may entail — in an intelligible, accessible way. Doing so benefits everyone; the judiciary, those enacting the legislation and — most importantly, in my opinion — the people affected by the legislation.

Let me declare my own interest here because, as an adopted person, I fall into the last category. Like tens of thousands of others, I have struggled to get my own records. 

I had hoped this bill would change that but, if you plough on through the labyrinthine sentences, you’ll find it does anything but.

I’m declaring my own interest from the off because, too often, things that purport to be impartial are not. 

You might expect to find objectivity in a law or a draft law, but scrutiny of this bill reveals a definite bias, perhaps unconscious, to maintain the secrecy — and I might add, the shame — of the past.

It’s difficult to reach any other conclusion about a bill that erects rather than removes barriers. It not only makes it more difficult to access personal information, it also excludes many from the process.

The many difficulties have been noted, at least. Today’s scrutiny of the bill was delayed because politicians and other concerned parties tabled some 1,200 amendments. To put that into context, about 4,500 amendments are tabled yearly on all bills.

If you are not directly affected by this bill, it is easy to switch off and think this has nothing to do with you. However, it does — or it should — because, in my view at least, the progression of this piece of legislation through the Dáil suggests a stubborn bias at the heart of the legislature.

Promising start was undone

Let me backtrack to explain. Things got off to a promising start as the cross-party joint Oireachtas children’s committee did what you would expect any committee to do: It talked to those most affected, it talked to the experts, and it debated how best to draft a piece of legislation that could right a fundamental wrong and provide access to information to those who have been denied it for so long.

That committee recommended 83 changes which, if implemented, would have put this bill on the road to being the “ground-breaking” legislation Roderic O’Gorman, the children’s minister, says it is.

What happened next undid all of that positive, progressive work.

In January, shortly after the committee issued its report, Mr O’Gorman published a bill that does not provide automatic access to birth certificates and does not open the personal files held by the State, religious orders, and adoption agencies.

If adopted people want to get their birth certs — public records since the 19th century — they must attend a mandatory information session on privacy if a parent has said they don’t want contact.

In the last 17 years, some 156 parents have said they do not want contact with their adult children, according to available figures.

I have deep sympathy for those parents. Who can say what they suffered in a system that facilitated forced and unlawful family separation and stripped those within it of their dignity, identity, and human respect.

However, the thinking that allowed that system to prevail still persists. 

The idea that mothers and their now-adult adopted children are somehow on opposing sides of some notional line is threaded through the warp and weft of this discriminatory bill.

Let me provide one personal example. 

In October, buoyed up by the talk of transparency and openness, I requested my birth information from the Department of Children by making a subject access request. As it happens, I’m one of the lucky ones who knows my birth name and my mother’s name, and was able to provide both. Some weeks later, I got a sheet of paper that redacted my mother’s name, even though I had provided it.

I wrote to the department to ask who redacted that information and why. I am still waiting for a reply, but I would like to know who sat down with their notional red pen and struck out a name that I had provided. Who made that decision and on what basis?

In the same way, I would like to know why so many of the recommendations from the children’s committee were discarded; recommendations that were welcomed by adopted people, parents, people subjected to illegal birth registration, and experts in the field.

What informed those decisions?

From this remove, it looks like the same thought process that silenced the experience of survivors in the final report of the Mother and Baby Homes Commission of Investigation. That supposedly impartial report described adopted people’s criticism of information and tracing arrangements as “vitriolic”.

In plain English, vitriolic means bitterly harsh or caustic. It is a loaded term and a pejorative one. Not an ideal choice for an objective report.

It is difficult to be impartial. That seems clear in the Birth Information and Tracing Bill 2022. For reasons, as yet unspecified, it blocks rather than provides.

Lawyers, information rights organisations, and advocates including Simon McGarr, Maeve O’Rourke, and Claire McGettrick of the Clann Project and Adoption Rights Alliance and Loughlin O’Nolan of Article Eight Advocacy have pointed out that the bill proposes “a range of unlawful restrictions on the right of access to personal data under EU law”.

They warn: “If enacted, this system will be unnecessarily intrusive, will breach affected people’s rights under EU law, and will cause long delays. There is no mechanism to appeal decisions on the release of records or complain about poor service or discrimination.”

Ms McGettrick put it in the plainest English when she tweeted: “Don’t buy into the dept’s spin… Unless amended this Bill will do more harm than good.”

It is not possible to go into the many issues with the bill here, but it would be instructive to hear how a potentially ground-breaking piece of legislation was hobbled on its journey through the Dáil.

There is still time to rectify it. Those directly affected will be watching what happens next very closely. Join in because the process is central to the functioning of democracy.