Amendments Nos. 1, 2, 24, 25 and 42 to 44, inclusive, are related and will be discussed together.
Institutional Burials Bill 2022: Report and Final Stages
I move amendment No. 1:
In page 7, line 10, after “manner;” to insert “to provide for post-recovery analysis of recovered human remains;”.
I will speak to amendments Nos. 1, 22, 24, 25 and 42 to 44, inclusive, together.
Amendments Nos. 2, 24, and 25 are identical to those tabled by Deputies Funchion and Ward on Committee Stage. I agreed to consider changes to the Long Title to explore the relevant part of the director's functions and to consider whether the description of the post-recovery analysis report could make an explicit reference to the matter of evidence of a violent or unnatural death being shared with An Garda Síochána and the coroner. I have tabled amendment No. 1 in response to the issues the Deputies raised. Amendment No. 1 incorporates an explicit reference to post-recovery analysis in the Long Title, highlighting the significance of that part of the intervention. While the reference does not explicitly refer to the cause and circumstances of a death, this is because the matter is explicitly encompassed within the definition of post-recovery analysis. The definition in the body of the legislation places a clear obligation on the director to identify the causes and circumstances of death where possible as part of the post-recovery analysis.
Amendments Nos. 42, 43 and 44 provide that the director's post-recovery analysis report must document whether notifications of evidence of violent or unnatural death, or deaths of persons who were not resident at the institution concerned, have been made to An Garda Síochána and the coroner. I also considered whether it would be possible to amend the director's functions to include an explicit reference to identifying the circumstances and cause of death. However, the Office of Parliamentary Counsel advises that this is not possible from a drafting perspective as the term "post-recovery analysis" and the specific function to which this reference would need to be added is a defined term and part of the meaning should not be incorporated after using the term itself. I can clarify that the definition of post-recovery analysis in section 35(2) makes it clear that the post-recovery analysis includes establishing the circumstances and cause of death if possible. In other words, this is already covered in the director's functions, which were amended in response to the pre-legislative scrutiny process. I hope this goes a significant way to dealing with the issues Deputies Funchion and Ward raised on Committee Stage.
I thank the Minister. I am happy to withdraw our amendments on that basis. His amendment No. 1 is what we were looking for. I know there were many discussions. I thought there were many good, significant changes following Second Stage. We did not have many amendments after that. I am happy the Minister's amendment deals with this. I am glad it was taken on board. It was important.
I move amendment No. 2:
In page 7, line 10, after “manner;” to insert “to provide, if possible, the circumstances and cause of death during post recovery analysis;”.
Amendments Nos. 3, 47 and 54 are related, and can be discussed together.
I move amendment No. 3:
In page 9, line 14, to delete “niece or nephew” and substitute “niece or nephew (whether of the whole blood or the half-blood), grandniece or grandnephew”.
Deputies will be aware that I significantly expanded the list of family members who can participate in a DNA identification programme from the list set out in the original general scheme. The published Bill took account of the pre-legislative scrutiny, PLS, recommendations and provided for participation by a child, parent, sibling, half-sibling, grandparent, grandchild, aunt, uncle, niece or nephew of a person who is buried in the intervention site. I indicated on Committee Stage, in response to an amendment proposed by Deputy Canney, which we were not able to discuss on the day, that I would look at what he and Deputy Tóibín had brought forward. On foot of that, I have tabled amendment No. 3, to consider expanding the range of relatives who can participate in a DNA identification programme to include grandnieces or grandnephews. Amendments Nos. 3, 47 and 54, which is the set of amendments I am speaking to, provide for the expansion of eligible family members, to include half-nieces, half-nephews, grandnieces and grandnephews.
We engaged with Forensic Science Ireland. All our decisions about what family members can participate in the DNA programme are based on the scientific ability to get usable samples of DNA. As people become more distant relations, the amount of usable DNA will decrease. It is solely on that basis that we have made calls. It splits each time, from 50% to 25% then to 12.5%. We engaged with Forensic Science Ireland and it stated there is a scientific justification for the inclusion of half-nieces and half-nephews as well as grandnieces and grandnephews. The technology that Forensic Science Ireland will invest in to detect second order relatives is also capable of identifying this group of relatives, so I believe it is prudent to expand the list of family members in line with the scientific advice. I hope we will be seen to have been taking on board the points made by Deputies. I think Deputy Canney's original amendment included cousins too. That is a different situation because one is going down a different line of the family, so the amount of DNA is lower than with direct family. We were told by Forensic Science Ireland that the amount in cousins would probably be too small to undertake a successful DNA analysis. On foot of Deputy Canney's amendment, we are expanding it to include half-nieces, half-nephews, grandnieces and grandnephews.
I thank the Minister for taking on board the amendment that Deputy Tóibín and I tabled. The only issue I have is that some people who are first cousins of the babies are trying to trace their relations. They have been on a journey for a long time. Their concern is that if they want to give their DNA, if there are improvements in forensic science in a number of years to such an extent that identification could be possible, we should not exclude anybody who may have a desire to find out whether their cousin is buried here. There is no other living relation for this person. While the inclusion of a grandniece or grandnephew is welcomed, it does not sort out a case where the only living relative is a first cousin, who might have been on a journey for 20 years to find his or her cousin. I ask the Minister to consider it on the basis that if a cousin wants to voluntarily give a DNA sample, it should be accepted. Even if the chances are very slight, the particular person I am speaking with would love the opportunity. Even a 12.5% opportunity is better than no opportunity to find his cousin. The Minister might consider that. I appreciate what the Minister has done in tabling this amendment, but if he could take that extra step, it would be good to be inclusive rather than exclusive.
For clarification, is the change about half-blood relatives? Was that not in the Bill before?
I welcome this. It is a good, positive step. I see where Deputy Canney is coming from. Is there a way, if not in the legislation, to cover that in the guidelines? Science is always advancing. Could some reference be made to it in the guidelines even if it cannot be put in the legislation? It is good to see it being expanded. I see both sides of the argument. They say that one has less chance of knowing the relationship as one goes further down the chain, but when one knows people who are directly involved and want to see if they can be traced, it is very difficult. Could an addition to the guidelines afterwards be a solution?
It used to go as far as niece and nephew and stop there. Now it also includes nieces and nephews and clarifies that it applies whether they are of half-blood or full-blood, because the percentages are the same. It also includes grandnieces and grandnephews, a category which was not included before. I take on board what Deputy Canney is saying.
There are people who are at the relationship of cousins from a potential child who is buried in the Tuam site, for example, who are deeply concerned and want this ability. I am not going to be able to make a legislative change on it today. There will be an implementation group set up overseeing the application of this Act and we will also be reviewing the Act. There will be an opportunity then, especially if we have seen that advance in science, in respect of maybe making a change at that stage. Of course, people can get their own DNA taken and undertake a process to preserve that as well. We can give DNA at any point in our lives. The key concern for me right now is that the experts say there is not a capacity to link, with the degree of certainty we would need, a person who is at a cousin's remove from a child who is buried in this site. I do have to take that guidance. Where I have seen that it could be widened to usable effect I have done that.
Amendments Nos. 4, 33 to 39, inclusive, 55, 56, and 62 to 64, inclusive, are related and may be discussed together. It is necessary to seek a recommittal in respect of these amendments.
I move amendment No. 4:
In page 10, between lines 26 and 27, to insert the following:
“ “Oversight Committee” means the DNA Database System Oversight Committee;”.
On Committee Stage I signalled my intention to bring forward new provisions on Report Stage to provide a legislative basis for an oversight committee to perform an assurance role in respect of historic databases established under the Bill. Given the sensitive data to be processed and the risks associated with any potential breach, it is prudent to provide for a specific oversight structure with reference to the DNA analysis that will be carried out under this Act. I believe the provisions will strengthen the legislation and its operation.
Amendments Nos. 4, 55, 56, 63 and 64 provide for an oversight committee to perform this assurance role. The DNA database system oversight committee was established under the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014. The amendments provide that where the function of a director includes carrying out the identification programme and where that programme is continuing, the relevant Minister will, with the prior consent of the Minister for Justice, direct the oversight committee to oversee the management and operation of the databases established under the Act for the purposes of maintaining the integrity and security of the database. To simplify, there is an existing structure put in place for the monitoring of DNA databases recognising the acutely sensitive nature of that information. We are looking to ensure the databases for DNA that will be constructed in seeking to link relatives to children or remains found in these sites will be overseen in the context of the existing structures that are working and operating well. We have had significant engagement with the chairperson of the existing DNA database oversight committee.
Where the committee is performing its function, it will meet as the historic remains databases oversight committee. The amendments recognise that this is a distinct and temporary function which is best managed in a distinct and stand-alone way by the committee. They set out the functions of the committee in this regard as well as the arrangements for remuneration, expenses and secretarial support. The committee can review any matter related to the operation of the DNA databases and prepare a report on the review which will be laid before the Houses of the Oireachtas and published. The committee will prepare a final report within six months of the conclusion of the identification programme and provide a copy to the relevant Minister, the Minister for Justice and the director. The relevant Minister must then lay the report before the Oireachtas and publish it.
Amendments Nos. 37 and 39 are consequential amendments regarding the disclosure of confidential information. They specify that members of the oversight committee as well as contractors, consultants or advisers the committee has engaged cannot disclose confidential information at any time unless required or permitted by law or duly authorised in writing to do so by the oversight committee. Amendments Nos. 33 and 36 clarify that confidential information obtained by a specified person or members of staff of Forensic Science Ireland, FSI, shall not be disclosed at any time and not just while performing functions under the Act, unless such disclosures are required or permitted by law or authorised in writing by a director or the director for FSI. These technical amendments reflect the wording used in amendment No. 37 in respect of disclosure of confidential information by members of the oversight committee.
Amendment No. 73 is a further consequential amendment that provides for the oversight committee's functions to be performed by a suitably qualified person in situations where regulations are made to allow for further forensic testing in circumstances where there are developments in forensic testing after an identification programme is completed and the office of a director is dissolved.
Amendments Nos. 5, 10 and 46 are related and may be taken together.
I move amendment No. 5:
In page 10, line 36, to delete “ordinarily”.
This set of amendments is being brought in in response to amendments proposed by Deputy Cairns on Committee Stage that sought to delete the word "ordinarily" from the phrase "ordinarily resident at the institution" in the context of defining principal burial land. I understood the Deputy proposed the amendment because she was concerned that the term "ordinarily" could restrict the people whose remains would be covered by the legislation by implying that an individual was resident for a prolonged period. I clarified the intention that "ordinarily resident" would include a person who was a resident for even one night in an institution but indicated that the necessity of the term could be considered. We engaged with the Office of the Parliamentary Counsel which indicated that "ordinarily" was not necessary. It is hoped this is of assistance in terms of providing further reassurance and having it on the record that, subsequent to this amendment, someone who was resident for one night in one of these institutions will be covered. It was the case previously but to provide reassurance, we are deleting the term "ordinarily" in those three locations.
I welcome that. I remember that discussion during pre-legislative scrutiny. Particularly when one is sitting on this side of the House, it seems so simple to make one or two small changes that are really significant. That was one of those areas. It is really welcome and I am glad the amendments are being made. I thank the Minister.
I welcome the Minister's amendment on behalf of Deputy Cairns. It is very much welcome.
Amendments Nos. 6, 11 and 45 are related and may be discussed together.
I move amendment No. 6:
In page 10, between lines 36 and 37, to insert the following:
“(ii) of persons whose death may have occurred in a violent or unnatural manner, or suddenly and from unknown causes, or”.
While the Bill makes significant progress in providing a framework to address some of the horrific aspects of modern Irish history, it falls short of international transitional justice standards. The Bill currently only allows for interventions at sites in instances of manifestly inappropriate burials. This means that even though young women or children may have died in unnatural, unknown or suspicious circumstances, this is not in itself a reason for an examination. The Irish Human Rights and Equality Commission and the Irish Council for Civil Liberties recommended the use of the UN special rapporteur's definition of mass grave sites as including any burial site where the circumstances surrounding the death and-or body disposal method warrant an investigation as to their lawfulness. Similarly, the Adoption Rights Alliance noted the current imbalance in the Bill, with interventions based on the existence of inappropriate burials rather than suspicious or unlawful deaths. Witnesses such as representatives from the Tuam Home Survivors Network and the Guernica Group pointed out that we know about the practices of neglect, malnutrition and malpractice in these institutions. All deaths associated with these homes are already suspicious and need to be investigated. The international standard for transitional justice in this area is clear. The State should intervene in cases where either the cause of death or the method of burial is in question. This Bill falls short of reaching that standard and therefore fails to provide the justice the deceased, the survivors and their relatives deserve.
The Minister will probably repeat the objections he raised on Committee Stage regarding this amendment, particularly that any intervention or investigation in respect of violent or unnatural death should clearly come under the remit of An Garda Síochána and the coroner. It posits a false dichotomy to state these amendments represent an interference with the jurisdiction of An Garda Síochána and the coroner, and it is blatantly false. My amendment, following international human rights standards, alters the reasons to intervene, not what happens thereafter. The Bill has a clear architecture for how the director interacts with other relevant State bodies.
More significantly, however, this is the last chance for so many to obtain justice. For decades, known burial grounds have not been examined. Unless this Bill is changed, that will remain the case. Historically, State systems overlooked and even colluded in the human rights abuses and crimes in mother and baby homes and other institutions. More recently, under-resourcing and a lack of sufficient evidence are cited as reasons for non-intervention. Unless this Bill is amended, the status quo will remain, and given the age profile of survivors, mothers and living witnesses, including State officials and members of the religious orders, any hope of a rationale for intervention by An Garda Síochána or a coroner will simply fade away. Today, when faced with those realities and when my colleague Deputy Cairns and I know inaction perpetuates decades of injustice, we feel we must respond. Unless an intervention can be established because of suspected unlawful death, many sites of potentially horrific crimes and abuses will remain covered up or buried. For too long, this has been the State’s de facto policy. This Bill must align with international human rights and transitional justice standards. It must provide justice for the deceased, the survivors and their relatives.
I am going to speak to amendment No. 45 because it is also in this grouping. It states: "In page 35, line 8, after 'violent' to insert 'accidental, homicide, undetermined or suspicious deaths'.” The amendment seeks to expand the criteria in the section under which An Garda Síochána is alerted to evidence of human remains. We believe there is a genuine possibility that some deaths would not be adequately examined if they were to occur now. The amendment is to strengthen the section.
Amendments similar to amendments Nos. 6, 11 and 45 were discussed on Committee Stage. For the reasons I outlined then, I am not in a position to accept those under discussion. The purpose of this legislation is to provide for the excavation, recovery, analysis, identification and dignified reinterment of human remains buried in a manifestly inappropriate manner. This is the legislative gap that the Bill seeks to address so interventions can take place, initially at Tuam and subsequently at any other site should a similar set of circumstances come to light.
Amendments Nos. 6 and 11 seek to alter the definition of principal burial land and the conditions for making a Government order so that an intervention can take place that does not relate to burials that are inappropriate but, rather, to burials of persons whose deaths may have occurred in a violent or unnatural manner or suddenly and of unknown causes. As I outlined previously, this approach would fundamentally alter the scope of the Bill and would ultimately change the underlying objective of the legislation.
I disagree with Deputy Whitmore in that I believe these amendments would represent strong interference with the jurisdiction of both An Garda Síochána and the coroner. After the pre-legislative scrutiny, I took significant action to ensure the jurisdiction of the coroner would be maintained. That had been asked of the Government through the pre-legislative scrutiny process and directly of me by survivors I met. We were able to secure that. Any intervention or investigation in respect of violent or unnatural death should clearly come under the remit of the Garda or the coroner. This is why the Bill rightly provides upfront that an order may not be made if an investigation or inquest is already under way and the Garda Commissioner is of the view that it would be premature to make an order for intervention pending the outcome of the investigation. Similarly, the Bill rightly provides that where an intervention under this legislation is under way, a director of the agency must notify An Garda Síochána and the coroner of any evidence of a violent or unnatural death that comes to light during the intervention and then follow their directions. Moreover, it is unclear how, within this specific legislation, it would be established prior to an intervention that a death occurred in a violent, unnatural, sudden and unknown manner. This legislation seeks to complement existing law, including the Coroners Act. It is not seeking to replace it. By way of a major change to the general scheme, I have removed all restrictions on the jurisdiction of the coroner. Under the legislation, the director will have to try to identify the circumstances and causes of death of recovered remains and, if evidence of violent or natural death emerges, notify the coroner and An Garda Síochána immediately.
Deputy Funchion's amendment, No. 45, is related to changing the description of the type of death that must be notified to the coroner and a member An Garda Síochána. As I outlined on Committee Stage, the current wording, namely, “violent or unnatural”, would cover any suspicious death where there is potential evidence of same, including homicide. It is necessary to keep the wording aligned with the basis of exhumation in the Coroners Act. More broadly, the director will publish a full post-recovery analysis report in respect of all recovered remains, which will include the cause and circumstances of death where it is possible to identify them. The director will ensure it is brought to the attention of the relevant coroner. Amendments Nos. 42 and 44, which were discussed under the first grouping, will ensure that the post-recovery analysis report will document whether notifications of evidence of violent or unnatural death have been made to An Garda and the coroner. It is for those reasons that I am not in a position to support these amendments.
When the Minister first responded, he stated he was not in a position to accept the amendments. I took that to mean that he might consider accepting them at some point down the road, but his latest response would indicate they are not under consideration at all.
The mother and baby homes commission reported that at least 9,000 children died while in the State's care. Many causes of death are largely unknown, as are the locations of the remains. However, it is clear that the death rate was way higher than among the rest of the population. The children's relatives and the wider public want justice for the lost lives. From what we know of the conditions and treatment of babies, children and mothers in the institutions, a portion of the deaths were unnatural. However, that is not a reason for intervention under this Bill. Instead, the Government will act only in cases where there are substantially inappropriate burials. Therefore, I cannot conceive why the Government is doing what it is doing. The Bill allows for examinations only on the basis of inappropriate burial rather than the question of whether there is any suspected or alleged violent or unnatural death. References to other State bodies that usually deal with investigations are immaterial when what I describe has not happened, is not happening and will likely never happen, as we have seen across the country to date. The Government is clinging to technicalities when there are known sites with potential mass graves that will never be examined under this law. That is an insult to survivors, transitional justice and the will of the Irish people.
This Bill has been introduced to address the legal circumstances we are facing, whereby at one identified site, Tuam, we are unable under the current legislation to intervene. This Bill gives us the opportunity to do so. It places a mandate on us to intervene and to do so to an incredibly high standard in light of the international forensic standards that apply in the context of excavation, recovery, identification and the obligation on the director to attempt to identify the cause of death and inform the relevant bodies, such as An Garda Síochána and the coroner. It also establishes a very important obligation in respect of the identification programme, so we can reunite family members who are still alive with the remains of their loved ones, which remains were so inappropriately treated.
This Bill is a major advance but it is not restricted to Tuam. We made the determination not to restrict it to Tuam. It is legislation that can be used at other sites. We put forward provisions for reviewing the operation of this Bill. My fundamental belief in this regard is contrary to that of Deputy Whitmore. She suggests that the Bill limits or somehow interferes with our ability to examine activities, actions and the treatment of children in the institutions in the past.
I believe this Bill is essential to allowing us to intervene. This is the legislative device that will finally allow us to intervene in Tuam 80 years after the suspicion of the burials there, which were identified by Catherine Corless five years after what happened there was finally confirmed by the initial investigations by the commission. It is for that reason that I believe this Bill is worthy of support.
Amendments Nos. 7 and 8 are related and may be discussed together.
I move amendment No. 7:
In page 12, lines 32 and 33, to delete “A notice or other document that is required to be served on or given to a person under this Act” and substitute the following:
“Subject to subsection (3), a notice or other document that is required or authorised by or under this Act to be served on or given to a person”.
On Committee Stage, I signalled my intention to bring forward an amendment to section 4 to provide for the service of notices and other documents on owners and occupiers of land or premises where the name of the owner or occupier of the land or premises cannot be ascertained. Amendments Nos. 7 and 8 provide that where owners and-or occupiers of land cannot be ascertained by reasonable inquiry and notice, or other documents are to be served on or given to the owner or occupier of land under this Bill, it may be addressed to the owner or the occupier without naming him or her.
I move amendment No. 8:
In page 13, between lines 13 and 14, to insert the following:
“(3) Where a notice or other document is required or authorised by or under this Act to be served on or given to the owner or occupier of land and the name of the owner or of the occupier cannot be ascertained by reasonable inquiry, it may be addressed to “the owner” or “the occupier”, as the case may require, without naming him, her or it.”.
I move amendment No. 9:
In page 14, line 6, to delete “may” and substitute “shall”.
I move amendment No. 10:
In page 14, line 28, to delete “ordinarily”.
I move amendment No. 11:
In page 14, between lines 28 and 29, to insert the following:
“(ii) of persons whose death may have occurred in a violent or unnatural manner, or suddenly and from unknown causes, or”.
Amendments Nos. 12 and 13 are related and may be discussed together.
I move amendment No. 12.
In page 14, to delete lines 31 to 33.
I move amendment No. 13:
In page 14, line 32, to delete “20 meters” and substitute “10 metres”.
I recognise that the issue that is being addressed here in terms of how close to a residential house on land an excavation can take place was an issue we debated significantly in the original pre-legislative scrutiny, given a residential house was entirely excluded in the Bill as brought forward. We brought that to 20 m but as concerns were raised by Deputies Funchion and Cairns, we have brought that to 10 m within the curtilage of the house, which I think strikes a fair balance. I thank the Deputies for their input.
Amendments Nos. 14 to 16, inclusive, are related and may be discussed together.
I move amendment No. 14:
In page 15, to delete lines 24 to 27 and substitute the following:
“(5) The Government shall make every effort where a site proves problematic to resolve difficulties and thoroughly examine burials on the land, before it is determined that memorialisation of the burials on the land, is more appropriate.”.
The reason for the amendment is that memorialisation in the absence of excavation, exhumation and identification of remains to a certain extent can contradict the idea of transitional justice. It is impossible to memorialise something if we do not know or agree on what we are acknowledging. The report of the expert technical group states that in order to memorialise, it is essential to know what and whom are being acknowledged. Further investigation on behalf of the Government would be required in order to memorialise effectively in the absence of specifying what the substantive reasons are for not engaging or for intervention. It is impossible for this provision to be proportionate engagement with the rights and preferences of victims and survivors, including former residents of institutions and their families. I note Ireland's international obligations under relevant EU and UN conventions.
In regard to memorialisation, measures in lieu of a proper investigation as suggested would appear to allow any Government to basically go with memorialisation over an actual investigation. As I am saying this, I know it is not going to be the case in every situation but it is just to avoid that. The amendment states that “the Government shall make every effort where a site proves problematic to resolve difficulties and thoroughly examine burials on the land”. It is just to make sure that absolutely everything is being covered. That is the reasoning behind amendment No. 14.
Amendments Nos. 15 and 16 are linked and have the same rationale. There is no reason to restrict the functions of the director. It seems unnecessary and could foreseeably impact effective investigation and potential digs at sites. The director should report to the Government the issue of such sites but any decision not to proceed with the excavation of the suspiciously buried remains should lie at least with the coroner, families of the unidentified individuals and the advisory group, where the views of the wider survivor community would also be taken into account. That is the rationale for amendments Nos. 15 and 16.
I support amendment Nos. 14 in the names of Deputies Funchion and Ward. Deputy Holly Cairns and I believe that this wording represents much more proactive language designed to oblige interventions for justice. Where the Minister's Bill states the Government “may” refuse, the amendment states that the Government “shall” make every effort. We believe the latter is more committed to seeking justice to adequately respond to the horrors of our institutional past. Crucially, the amendment recognises the complex feelings and potential disputes that surround these sites, with some survivors, relatives and others having different perspectives on what should happen to the sites. A key part of the pre-legislative scrutiny was highlighting the need for structured and empathetic structures to deal with these matters. As a result, I strongly support the amendment.
I fully support the amendment and I thank my colleagues for bringing it to the House. It is impossible to memorialise something if we do not know or agree what we are acknowledging and it is not possible to properly memorialise a site if we do not know what happened there. On Sunday, I attended a commemoration at the site of the former mother and baby home in Bessborough in Cork. It was a very moving and emotional event. It was also a very insightful event and an excellent oration was given by Professor Conor O’Mahony, the special rapporteur on children's rights. He clearly and clear-sightedly identified the manner in which human rights were dealt with in the evidence gathered in the very flawed report and how there was clear evidence of human rights breaches that were very considerable.
I met many of the mothers and some of those who were born in Bessborough and their relatives. There is still a lot of anger, concern and uncertainty. Many people believe, not without basis - far from it - that some of the many children who died in Bessborough may be buried on the grounds in a site that is yet to be located. The report of the Commission of Investigation into Mother and Baby Homes found that 31 women died at Bessborough between 1922 and 1988, as well as 923 infants. The commission could find burial records for only 12 women and 64 infants, and the burial places of 19 women and 859 infants remain unknown. Their story needs to be told. The Government has a key role in establishing what happened at Bessborough. The Minister's Department has a key role in ensuring that the site is adequately investigated to find out where these mothers and children are buried.
There have been planning applications, which has stirred up a lot of emotion and anger due to the possibility there could be development on a site where children and women are buried. I want to put on record my own view that that should never happen. We must ensure such burial sites do not exist before anything like that is touched.
The recent applications were inappropriate and were rightly rejected by Cork City Council and An Bord Pleanála. However, it is not enough to leave this to the planning system. The Minister's Department needs to take a role here and establish what happened. The Government should commission a thorough investigation of the grounds at Bessborough. Survivors and relatives of those who lived and died at Bessborough deserve to have their concerns listened to. They must not be cast aside or ignored. That is why I fully support this amendment and hope the Government will also support it.
In regard to burials, the rules and regulations need to be looked at in a deeper manner. I contacted the Department not so long ago about a constituent in west Cork who wanted to be buried in their own home grounds. Nobody could give me the information. The local authority and two different Departments could not give me the information. The people were very upset at a very delicate time in their lives. That is an area that needs to be improved. There needs to be proper regulation in relation to burial grounds and where a person is to be buried, whether on their own lands or not. I would appreciate it if the Minister would take that opportunity because it is an upsetting and difficult time for people when deciding where their loved ones can be buried at a specific time. Someone needs to have proper regulation over that going forward.
I do not think I will be able to assist Deputy Collins as this legislation solely deals with burials relating to institutions such as mother and baby homes and county homes. Perhaps engagement with the Minister for Housing, Local Government and Heritage and his Department would be best. I am unable to help in terms of what this legislation, which is very specific, is about.
I tried and failed.
I am not in a position to support the amendments put forward by the Deputies for the same reasons I outlined on Committee Stage. It is important to recognise that excavation is not a desired option in every circumstance. I have met families and survivors and I am deeply aware that, for some family members, the graves of their loved ones, the site-----
On a point of clarification, I did not necessarily say excavation for all cases, rather investigation. I emphasised it just for clarification.
I was not specifically referring to-----
I do not think there was reference
I am not trying to be disorderly.
A number of contributions were made. I have met many families and survivors and, as I said, some of them regard these sites as a grave site and do not wish to see them disturbed at this stage. They would see it as a violation of the sanctity of the remains of their loved ones. In some circumstances, and I acknowledge that on certain sites the preferences are different among survivors, but in some circumstances the preference is a memorial recognising and marking the burial site. This legislation, which as we know is not site specific, has to be sufficiently flexible to allow Government to take account of different circumstances and differing views which may arise in the future. I have considered the pre-legislative scrutiny recommendations on this specific issue, and in light of these, the provision in the legislation has been amended to specify the Government must have substantive reasons to form the view that memorialisation of the burials on the land without further intervention is the more appropriate route to take. This provision is not designed to allow the Government to refrain from intervention. The Government will have to set out clearly the reasons for choosing memorialisation, and the rationale has to be sufficient with reference to some technical difficulties that would be such as to justify adequately the decision not to make an order.
In regard to amendments Nos. 15 and 16, section 7 specifies that the Government may establish the office for a specific period to allow it intervene at a site associated with an institution that contains manifestly inappropriate burials. To help ensure the office's effective operation and to adjust to the evolving situation at a particular site, the relevant Minister may need to alter the functions of the director. As such those proposals would need to be approved by Government.
I reiterate that the provision is not designed to prevent the director from undertaking a certain activity. In fact, any such proposal is based on information provided by the director himself or herself, which must be taken into account by the Minister. The provision. in effect, allows for adapting the work of the office in line with a request from the director. This in turn reflects the reality that, at the outset of an intervention, there is likely to be a high degree of uncertainty as to what the director and his or her office will encounter. If the provisions were removed as suggested the director may be legally required to perform a function that cannot in reality be implemented. For example, it is possible that the function of an identification programme is assigned to the director at the outset, but if there were no living relatives willing to come forward to participate in that programme, that programme would have no function. In this case an identification programme might no longer be feasible. However, if we had not the capacity to amend the range of functions that could take place, the director would still be legally obliged to undertake the DNA identification programme, even if it was no longer practically feasible to do.
Amendments Nos. 17 and 18 are related and may be discussed together.
I move amendment No. 17:
In page 16, line 7, to delete “at the time of such burial,”.
These amendments are linked. The rationale is the same. The crux of what we are trying to get at is that there is no principal reason to specify that contemporary burial practices from the 1940s, 1950s and either earlier or later should apply to any potential burial lands. An example of this would be that, in certain situations the practice at times was that babies, particularly if they had not been baptised at the time, had died in childbirth or were stillborn, were possibly buried in a different situation than would be acceptable now. We do not want any situation to arise whereby those burials might be seen as being acceptable for the time. I hope I am explaining that as I mean it and not in any disrespectful way to anyone who at the time felt that was appropriate. What we are trying to do is ensure that, if there is a suspicious situation, it would not be left undiscovered because somebody might say it was appropriate at the time. Obviously, that would not be appropriate and nobody would accept that now in the modern age. That is why we want to make these two amendments, to delete “at the time of such burial” and, in amendment No. 18, to delete “and would reasonably have been so considered at the time the burials took place”, to ensure there are no grey areas in that situation.
I will set out the full section as it is useful for understanding the position here. This is deciding on the issue of manifestly inappropriate burials:
The matters referred to in section 7(3)(a)(ii) are whether, in relation to the burials concerned, the human remains—
(a) are uncoffined,
(b) are buried in such a manner that they would not have complied with the requirements, at the time of such burial, specified in the Burial Grounds Regulations,
(c) are buried in a way that would not reasonably be considered to provide a dignified interment, or
(d) are buried collectively and in a manner or in a location that is repugnant to common decency and would reasonably have been so considered at the time the burials took place.
Those are the criteria under which that important determination of "manifestly inappropriate" is determined. Amendment No. 17 seeks to remove the phrase "at the time of such burial" from section 8(1)(b) of the legislation. In doing so it would undermine one of the criteria used to assess whether there were manifestly inappropriate burials at a burial site. It is important that the assessment of burials relates to the time when such burials took place and the agreed custom, practice and requirements of that time.
It is difficult to justify assessing burials with reference to requirements that were not applicable or perhaps did not exist at the time of such burials. Burial ground regulations have changed since 1922, which is the start of the period to which this legislation is applicable.
Amendment No. 18 aims to delete all words from and including "and" in line 12 down to and including "place" in line 13 from section 8(1)(d). One of the criteria that the Government must try to assess before deciding whether a burial site associated with an institution has manifestly inappropriate burials is whether most people at the time of the burials would have found the burial at a site, such as Tuam, acceptable. Without the phrase, "and would reasonably have been so considered at the time the burials took place", it is much more difficult to interpret what "repugnant to common decency" means. I do not believe we should undermine the rigour of the legislation by reducing clarity on this important and sensitive criterion. To do so would undermine what we are seeking to achieve here.
Everybody in this House agrees that the manner in which the remains of children were interred in the chambers at Tuam was and is not acceptable. That is patently clear. However, future circumstances cannot be ruled out in which the interpretation of "common decency" is more specific to the time when burials took place. The phrases the Deputies wish to have deleted support the clear interpretation of the respective criteria that define "manifestly inappropriate burials".
I move amendment No. 18:
In page 16, lines 12 and 13, to delete "and would reasonably have been so considered at the time the burials took place".
I move amendment No. 19:
In page 16, between lines 19 and 20, to insert the following:
"(c) any reliable evidence from a third party with knowledge of the circumstances and location of the burials concerned.".
The amendment seeks to expand the list of people who can provide evidence that the director will be obliged to take into consideration.
I am not proposing to accept this amendment because I believe what the Deputy is seeking to achieve is already covered within the provisions of the Bill. Section 8(2)(b) requires the Government to have regard to available evidence including "any reliable and corroborated statement made by a person with knowledge of the circumstances and location of the burials concerned." Amendment No. 19 aims to create an additional requirement that the Government consider any reliable evidence of a third party with knowledge of the circumstances and location of the burials concerned. However, it is, in fact, already covered by section 8(2)(b), which stipulates that the Government must have regard to "any reliable and corroborated statement made by a person with knowledge of the circumstances and location of the burials concerned." The reference to "person" includes third parties and the requirement that such an individual provide a statement is not onerous in the circumstance. I would like to make it clear that I agree with the importance of taking all reliable evidence into account but I believe the current provision sufficiently provides for that.
Amendments Nos. 20 to 22, inclusive, are related and will be discussed together.
I move amendment No. 20:
In page 16, to delete lines 20 to 32 and substitute the following:
"(3) In determining whether the making of an order under section 7(1), the Government shall consider whether the proposed intervention is proportionate having regard to the need to respect the views of the relatives of persons buried in the land.".
Section 8(3) sets out a general purpose interest which the Government must consider when establishing intervention. What it essentially does is restrict interventions based on several broad and ill-defined grounds, including public health, potential impact on archeological features and, most worryingly, the social and economic interests of the State. It would appear to be an arbitrary and unclear list that elevates matters such as archeological features to having equal parity with an obligation to examine a mass grave. The committee's pre-legislative scrutiny recommended the removal of barriers. Unfortunately, the inclusion of this list means that these limitations can be deployed to block any intervention.
This provision is not consistent with the transition justice principles as it gives the Minister, the Department and Government a multitude of reasons never to intervene in a site. This legislation should be doing the opposite - prioritising interventions and making it clear that every site should and will be examined.
Witnesses to the committee and the committee's pre-legislative scrutiny report called for a system and process that is founded on internationally-defined criteria, not ambiguous and restrictive approaches. This amendment seeks to remove all of these restrictions, except for the requirement to respect the views of the relatives of the persons buried at the site. This would be a transitional justice approach in which the need for justice and the perspectives of relatives are at the centre of the process, not Ministers, civil servants or economic interests.
I will speak to amendment No. 21. I will not move amendment No. 22.
Amendment No. 21 states:
In page 16, lines 21 to 32, to delete all words from and including "important" in line 21 down to and including line 32 and substitute the following:
"significant burial sites, the Government shall make every effort to thoroughly examine and make interventions using the full resources and powers of the Director.".
This amendment seeks to expand the remit under which the director can make an intervention at a burial site. The existing section 8(3) places unnecessary restrictions on the director and could preclude an effective investigation or excavation of specific sites. The provision could foreseeably impact the dig in Tuam and have the result that some and not all of the site is excavated.
I wonder whether this is dealt with to some degree in the earlier amendment on a 10 m versus 20 m distance. I know I am not supposed to ask that question but I am just wondering. If I could get clarity on the matter, I will withdraw the amendment. Maybe it is not addressed in the earlier amendment.
I am confident that the public interest test will in no way interfere with the proposal to intervene in Tuam.
Amendments Nos. 20 and 21 were put forward on Committee Stage and I cannot accept them for the reasons I outlined at that stage.
The Government has to balance the need to intervene with the need to respect the long-standing tradition of the sanctity of burials. It is important to recognise that the excavation and recovery of human remains is an extensive, complex and sensitive intervention.
Safeguarding the public interest is an important concept. It is used in other domestic and European legislation. It is necessary to set out a strong legal basis grounded in public interest to ensure the impact of the proposed intervention on constitutional rights is limited and proportionate to the aims of this particular legislation. It is on that basis that the Bill requires consideration of safeguarding public interest and sets out a number of factors the Government will take into account when determining if an intervention is proportionate. These include the need to accord dignity to persons buried in the land; the need to respect the views of relatives of persons buried in the land; public health; the impact of the intervention; and alternative options, if any, which may be available.
It is difficult to disagree with the importance of according dignity to persons buried in the land. Public health is also an important factor to have regard to given that public health considerations are one of the main reasons laws about the exhumation of remains are strictly controlled. We cannot disregard the impact on the wider public, including local residents. Furthermore, we all agree with the need to consider the views of relatives of persons buried in the land. In some locations - we spoke about this earlier - relatives may not be supportive of excavation and their views need to be respected.
I stress that I am confident that nothing in the test, as set out, would in any way intervene with the fact that the situation in Tuam meets the criterion of "manifestly inappropriate".
I move amendment No. 21:
In page 16, lines 21 to 32, to delete all words from and including "important" in line 21 down to and including line 32 and substitute the following:
"significant burial sites, the Government shall make every effort to thoroughly examine and make interventions using the full resources and powers of the Director.".
I move amendment No. 23:
In page 17, line 19, to delete "initial person" and substitute "initial period".
Amendments Nos. 26 to 31, inclusive, are related and will be discussed together.
I move amendment No. 26:
In page 30, between lines 25 and 26, to insert the following:
“(b) a religious order of the Roman Catholic Church,"
Amendment Nos. 26 to 29, inclusive, seek to ensure that the Church of Ireland and Roman Catholic Church are included this information sources, given the central role that they played in mother and baby institutions.
Amendment No. 30 seeks to include any possible person that was involved in the removal of remains, reburial, burial or any other such duties. As agreed, many of the records required by the director are held by religious orders operating as charities within the State and outside the State. This amendment seeks to expand the categories in which the various data controllers of churches, charities, benevolent groups, etc., fall.
Amendment No. 31 is the Minister’s amendment.
I did not mean to leave the Minister out.
Not at all.
We had a discussion about this. I made the argument on Committee Stage that the issues that the Deputy is seeking to include explicitly were already included. However, we went back to the Office of the Parliamentary Counsel. We have tabled an amendment that is quite similar to the amendments Deputies Funchion and Ward tabled.
Amendment No. 31 expands the list of information sources to explicitly refer to religious organisations and communities, including, but not limited to, a diocese or parish of the Roman Catholic Church and the Church of Ireland. I would like to highlight the importance of future-proofing this legislation, which is why I do not want to limit the reference to the Catholic Church and to the Church of Ireland. This hopefully addresses the issue and may even go a little beyond what the Deputies had proposed earlier.
If we discussed amendment No. 31 first, we would not have had to discuss the others. I will withdraw my amendments as we go through them.
I move amendment No. 31:
In page 30, between lines 31 and 32, to insert the following:
“(g) a religious organisation or community including but not limited to a diocese or parish of the Roman Catholic Church and a diocese or parish of the Church of Ireland,”.
I move amendment No. 32:
In page 31, line 25, after “Agency” to insert “and Adoption Authority of Ireland”."
The amendment seeks to insert “and Adoption Authority of Ireland” after "Agency". The reason for this is that the AAI also holds significant records and should be included in the remit of the Bill, along with Tusla.
I discussed this issue with Deputy Ward on Committee Stage. Section 29, which is proposed to be amended here, relates solely to the database and the related records that were compiled by the mother and baby homes commission of investigation. We passed legislation on that in October 2022. That legislation provided a copy of that database to Tusla, but the AAI does not have a copy of that-----
Yes, I actually remember that now.
We specifically mentioned Tusla. The amendment, therefore, is of no purpose.
I move amendment No. 33:
In page 32, line 11, after “not,” to insert “at any time,”."
I move amendment No. 34:
In page 32, line 15, to delete “and”."
I move amendment No. 35:
In page 32, line 16, after “not,” to insert “at any time,”."
I move amendment No. 36:
In page 32, lines 18 and 19, to delete all words from and including “obtained” in line 18 down to and including line 19 and substitute the following:
“obtained by the person while performing his or her functions as a member of staff of FSI under this Act,”."
I move amendment No. 37:
In page 32, between lines 19 and 20, to insert the following:
“(c) a person who is or was a member of the Oversight Committee shall not, at any time, unless he or she is required or permitted by law or duly authorised in writing to do so by the Oversight Committee, disclose confidential information obtained by the person while performing his or her functions as a member of that Committee under this Act, and
(d) a person who provides or provided services, or is or was engaged as a consultant or adviser to the Oversight Committee, in accordance with section 69 in relation to functions of that Committee under this Act, shall not, at any time, unless he or she is required or permitted by law, or duly authorised in writing to do so by the Oversight Committee, disclose confidential information obtained by the person while providing such services or being so engaged.”."
I move amendment No. 38:
In page 32, line 28, to delete “paragraph (b)” and substitute “paragraph (b) or (c)”."
I move amendment No. 39:
In page 33, line 18, after “Government” to insert “, the Oversight Committee”.
Amendments Nos. 40 and 41 are related and will be discussed together.
I move amendment No. 40:
In page 34, line 11, after “person” where it firstly occurs to insert “across a range of appropriate disciplines”."
The reason for the amendment is that there should be more emphasis in the Bill on an integrated identification approach involving a multidisciplinary response. For example, there is no mention of forensic anthropology in the Bill. Forensic anthropologists would be essential in the analysis of the human remains and in co-ordination with forensic geneticists to re-associate the human remains recovered. The absence of clearly stating their role in the process risks having unqualified and inexperienced professionals carrying out the work. Working with commingled remains is highly complex and will require experts with sufficient experience to carry out the work.
Amendment No. 41 is to insert "the Coroners Act 1962". It is important that any excavation recovery and post-recovery analysis of human remains is in line with that Act.
We discussed these amendments on Committee Stage. Again, I am not in a position to accept them.
With regard to amendment No. 40, following pre-legislative scrutiny, I significantly revised the part of the legislation that deals with excavations, which included the addition of provisions that specify that appropriately qualified persons will undertake excavation and post-recovery analysis in line with international standards and in accordance with professional rules and guidelines. It is clear that the work needs input from a range of disciplines. Only a multidisciplinary approach can meet international standards and can deliver specifically on the Government’s commitments in respect of the Tuam site.
Regarding amendment No. 41, it is not clear why excavation and post-recovery analysis under this legislation needs to be implemented in accordance with the Coroners Act, given that the Act does not regulate excavation. The Bill does provide that if evidence of violent and unnatural death emerges, the coroner will be notified.
I again highlight the definition at the beginning of the Bill, which specifies that forensic excavation and recovery means excavation and recovery in the manner sufficient to satisfy legal requirements regarding the use and storage of evidence in connection with the identification of remains, including in criminal proceedings. It is clear, therefore, that the legislation explicitly commits to applying forensic standards to ensure that any evidence gathered through the process can be used in proceedings, including criminal ones. This places a clear obligation on the director to apply forensic standards when arranging for excavations and recovery of remains under section 35.
I will press the amendment.
I move amendment No. 42:
In page 34, line 36, to delete “human remains, and” and substitute “human remains,”.
I move amendment No. 43:
In page 34, line 37, to delete “paragraph (b).” and substitute “paragraph (b), and”.
I move amendment No. 44:
In page 34, between lines 37 and 38, to insert the following:
“(iv) whether a notification was made under subsection (2) of section 36 to a member of An Garda Síochána and the coroner referred to in that subsection and, if so, whether the evidence related to subsection (1)(a) or (b) of that section.”.
I move amendment No. 45:
In page 35, line 8, after “violent” to insert “accidental, homicide, undetermined or suspicious deaths”.
I move amendment No. 46:
In page 35, line 9, to delete "ordinarily".
I move amendment No. 47:
In page 39, line 22, to delete "niece or nephew" and substitute "niece or nephew (whether of the whole blood or the half-blood), grandniece or grandnephew".
Amendment No. 48 in the names of Deputies Funchion and Ward is out of order.
Amendments Nos. 49 to 53, inclusive, are related and will be discussed together.
I move amendment No. 49:
In page 46, lines 34 and 35, to delete "relevant information" and substitute "relevant information and documents".
Amendment No. 52, which was also put forward by Deputies Funchion and Ward on Committee Stage, seeks to expand the definition of "relevant information" to be used by a director in establishing a familial link in an identification programme. I explained in committee that the intention had always been to facilitate the use of different types of documentation. In this regard, the definition of "relevant information" in the Bill is open-ended and provides only brief examples.
However, I committed to examining how the definition could be expanded to include more explicit and wide-ranging examples. Amendments Nos. 49 to 51, inclusive, and No. 53 provide for the broadening of the text of the definition of "relevant information" with due regard to the amendment put forward by the Deputies. The Bill continues to provide for an open-ended definition but expands on the examples given to include baptismal certificates, institutional admission and discharge records and information obtained in post-recovery analysis. I hope this addresses the Deputies' concerns.
I welcome these amendments, which negate our amendment No. 52.
I move amendment No. 50:
In page 47, line 18, to delete "paragraph" and substitute "paragraphs".
I move amendment No. 51:
In page 47, to delete lines 26 to 28 and substitute the following:
"(5) In this section and in section 54, "relevant information and documents" includes—
(a) birth, baptismal and death certificates and records relating to a person who resided in the institution concerned,
(b) records relating to the institution concerned including admission and discharge records, and
(c) information obtained through post-recovery analysis.".
I move amendment No. 52:
In page 47, line 27, after "certificates" to insert ", baptismal certificates and records, vaccine records and death notifications".
I withdraw the amendment on the basis of the Minister's amendment No. 51.
I move amendment No. 53:
In page 49, line 8, to delete "relevant information" and substitute "relevant information and documents".
I move amendment No. 54:
In page 51, line 26, to delete "niece and nephew" and substitute "niece and nephew (whether of the whole blood or the half-blood), grandniece and grandnephew".
I move amendment No. 55:
In page 55, between lines 34 and 35, to insert the following:
"(d) the facilitation of the performance by the Oversight Committee of its functions under Chapter 7 in relation to the management and operation of the Databases,".
I move amendment No. 56:
In page 57, to delete lines 35 to 37, and in page 58, to delete line 1 and substitute the following:
Oversight Committee and review of operation of Databases
Request that DNA Database System Oversight Committee perform functions under Act
66. (1) Where the functions of a Director specified in an order under section 7 include carrying out an Identification Programme and the relevant Minister has received a notification under section 46(7) that the Programme is continuing, the relevant Minister shall, with the prior consent of the Minister for Justice, and after the Minister for Justice has consulted with the DNA Database System Oversight Committee (in this Act referred to as the “Oversight Committee”), direct the Oversight Committee in writing to oversee the management and operation of the Databases for the purposes of maintaining the integrity and security of the Databases and the Oversight Committee shall, for those purposes, satisfy itself that the provisions of this Act in relation to the Databases are being complied with.
(2) Where the Oversight Committee is, pursuant to a direction under subsection (1), overseeing the management and operation of the Databases it shall meet and be known as the Historic Remains Databases Oversight Committee.
(3) Subject to this Chapter, the Oversight Committee shall be independent in the performance of its functions under this Act.
(4) In performing functions under this Act—
(a) the chairperson of the Oversight Committee other than a serving judge, and the ordinary members of the Committee other than the Director of FSI and the person nominated for appointment by the Data Protection Commission, shall be paid such remuneration (if any) as the relevant Minister may, with the consent of the Minister for Public Expenditure and Reform, from time to time determine, and
(b) the chairperson and ordinary members of the Oversight Committee shall be paid such allowances for expenses as the relevant Minister may, with the consent of the Minister for Public Expenditure and Reform, from time to time determine.
Functions of Oversight Committee
67. (1) Where directed to do so under section 66*, the Oversight Committee shall oversee the management and operation of the Databases referred to in the direction for the
purposes of maintaining the integrity and security of the Databases, and shall, for those purposes, satisfy itself that the provisions of this Act in relation to the Databases are being complied with.
(2) Without prejudice to the generality of subsection (1), the Oversight Committee shall oversee—
(a) the arrangements employed by the Director of FSI in relation to the receipt, handling, transmission and storage of samples taken under this Act for the purpose of generating DNA profiles for entry in the DNA (Historic Remains) Database,
(b) the procedures employed by the Director of FSI in relation to the generation of DNA profiles from the samples taken under this Act,
(c) the quality control and quality assurance of procedures referred to in paragraph (b) to ensure that the procedures comply with international best practice,
(d) the measures employed by the Director of FSI to ensure that the Databases are not improperly accessed by any person, that the DNA profiles entered in the DNA (Historic Remains) Database and information entered in the Personal Information (Historic Remains) Database are used only for the purposes permitted by this Act and that the profiles and information are not improperly disclosed to any person,
(e) the means by which the results of searches of the DNA (Historic Remains) Database are reported by the Director of FSI to the Director, and
(f) the practices and procedures employed by the Director of FSI to ensure that, in accordance with the requirements of this Act, samples taken under this Act for the purpose of generating DNA profiles are destroyed and the DNA profiles generated from those samples and related information are deleted.
(3) The Oversight Committee may, in the performance of its functions under this Act, make such recommendations as it considers appropriate in relation to the management and operation of the Databases to the relevant Minister, the Minister for Justice and the Director.
Meetings and Procedures
68. (1) The Oversight Committee shall, while performing functions under this Act, hold such and so many meetings as may be necessary for the performance of those functions and may make such arrangements for the conduct of its meetings and business (including the establishment of subcommittees and fixing of a quorum for meetings) as it considers appropriate.
(2) The Oversight Committee shall regulate its own procedure by rules or otherwise.
(3) At a meeting of the Committee—
(a) the chairperson of the Committee shall, if present, be the chairperson of the meeting, or
(b) if and for so long as the chairperson of the Committee is not present or if that office is vacant, the members of the Committee who are present shall choose one of their number to be chairperson of the meeting.
Administrative support and engagement of consultants or advisers
69. (1) The relevant Minister shall, with the consent of the Minister for Public Expenditure and Reform, provide the Oversight Committee with such funds, facilities and services
(including secretarial services) as the relevant Minister, following consultation with the chairperson of the Committee, considers appropriate for the performance by the Committee of its functions under this Act.
(2) The Oversight Committee may, with the approval of the relevant Minister, engage such consultants or advisers with scientific or technical expertise as the Committee considers necessary for the performance of its functions under this Act.
Cooperation with Oversight Committee
70. (1) The Director of FSI and the other members of the staff of FSI shall cooperate with the Oversight Committee in relation to the performance of its functions under this Act and shall, for that purpose, furnish to the Committee such information as the Committee may request and which, in the opinion of the Committee, is required for the performance of its functions.
(2) The Oversight Committee may, whenever it considers it necessary for the performance of its functions under this Act, request a Director to meet with the Committee or to furnish information to the Committee.
(3) A Director shall comply with a request made to him or her under subsection (2).
Review and report by Oversight Committee
71. (1) Subject to subsection (2), the Oversight Committee may, and if so requested by the relevant Minister where he or she has consulted with the Minister for Justice, shall, review any matter relating to the management and operation of the Databases, prepare a report in writing on the review and, as soon as practicable after the report is prepared, furnish a copy of the report to the relevant Minister, the Minister for Justice and the Director.
(2) A report under subsection (1) shall not contain confidential information (within the meaning of section 30(5)).
(3) Subject to subsections (4) and (5), the relevant Minister concerned shall, as soon as practicable after receiving a report under subsection (1), cause a copy of the report—
(a) to be laid before each House of the Oireachtas, and
(b) to be published in such manner as the relevant Minister considers appropriate.
(4) The relevant Minister concerned may, when laying the report before each House of the Oireachtas and publishing the report under subsection (2), omit any matter from the report where he or she is of opinion that the disclosure of that matter would be prejudicial to the security of the Databases.
(5) If a matter is, in accordance with subsection (4), omitted from a report laid and published under subsection (3), a statement to that effect shall be attached to the report when it is so laid and published.
Final report of Oversight Committee
72. (1) The Oversight Committee shall prepare a final report on the performance of its functions pursuant to a direction under section 66(2)** within 6 months of the conclusion of the Identification Programme to which the direction relates and shall, as soon as practicable after the report is prepared, furnish a copy of the report to the relevant Minister, the Minister for Justice and the Director.
(2) A final report prepared under subsection (1) shall not contain confidential information (within the meaning of section 30(5)).
(3) The relevant Minister concerned shall, as soon as practicable after receiving a report under subsection (1), cause a copy of it to be laid before each House of the Oireachtas and published in such manner as the Minister considers appropriate.".
Amendments Nos. 57 to 61, inclusive, are related and will be taken together.
I move amendment No. 57:
In page 58, to delete lines 7 and 8 and substitute the following:
"67. (1) Subject to subsection (2), FSI shall, at the request of a Director, destroy a sample, delete a DNA profile or delete related information in accordance with this Chapter.
(2) Subsection (1) shall not operate to require FSI to delete related information that it needs to retain in order to demonstrate that it has complied with the requirements of this Part.".
I signalled my intention on Committee Stage to bring forward amendments to sections 67 and 69 in regard to the process of deleting information associated with an identification programme. These technical amendments are proposed on foot of advice we received from Forensic Science Ireland, FSI. Amendment No. 57 provides that certain information can be retained by FSI to show how the process of obtaining samples and profiles complied with the provisions of the legislation. This amendment aligns the approach taken to the deletion of related information in situations where samples are destroyed and profiles are deleted with that which is in place under the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014, which FSI advised has worked well.
Amendments Nos. 58 to 61, inclusive, will facilitate a more direct way of linking a second or subsequent bone from a deceased person to a family member. The provisions authorise the retention of DNA profiles from relevant persons after there has been a notification of a familial link in order that any further remains from a deceased person who has already been linked to a family member can be more easily linked to that person again. This is important in a site like Tuam where individualising remains may be challenging and it is possible that more than one bone from the same person will be sent for analysis. The amendments will enable FSI to use the most direct way of comparing the DNA profile of such bones with the DNA profiles of family members.
These amendments do not seem to be included in the list of amendments I have to hand. I know from what the Minister said just now and what he has said before that we will accept the amendments. However, I wish to note, from a procedural point of view, that we do not have a copy of the wording.
I move amendment No. 58:
In page 58, lines 34 and 35, to delete "and delete a DNA profile generated from that sample".
I move amendment No. 59:
In page 59, between lines 9 and 10, to insert the following:
"(b) delete a DNA profile generated from a sample taken from a relevant person under section 60 not later than the expiration of 3 months after the date on which the following first occurs—
(i) that part of the Identification Programme set out in paragraphs (a) to (c) of section 46(2) is completed in respect of principal burial land and ancillary burial land, or
(ii) the Director makes a decision, under section 47(1), that the part of the Identification Programme referred to in subparagraphs (ii) and (iii) of section 46(2)(c) should cease,".
I move amendment No. 60:
In page 59, lines 26 and 27, to delete "and delete a DNA profile generated from that sample".
I move amendment No. 61:
In page 59, between lines 36 and 37, to insert the following:
"(b) delete a DNA profile generated from a sample taken from an applicable person not later than the expiration of 3 months after the date on which the following first occurs—
(i) that part of the Identification Programme set out in paragraphs (a) to (c) of section 46(2) is completed in respect of principal burial land and ancillary burial land, or
(ii) the Director makes a decision, under section 47(1), that the part of the Identification Programme referred to in subparagraphs (ii) and (iii) of section 46(2)(c) should cease,”.
I move amendment No. 62:
In page 62, line 12, to delete "and".
I move amendment No. 63:
In page 62, line 13, to delete "human remains." and substitute "human remains, and".
I move amendment No. 64:
In page 62, between lines 13 and 14, to insert the following:
"(m) the performance of oversight functions, equivalent to those to be performed by the Oversight Committee under section 67(2)(a)* to (f)*, by a suitably qualified person where the performance of such oversight functions is necessary having regard to any regulations made under this section to facilitate further forensic testing.".
Amendments Nos. 65 and 66 are related and will be discussed together.
I move amendment No. 65:
In page 63, line 5, to delete "A person" and substitute "Subject to subsection (2), a person".
Amendments Nos. 65 and 66 are technical amendments to clarify that an appeal against a determination of the director in regard to participation in an identification programme or a finding that the genetic and non-genetic data are not sufficient to suggest a familial link must be made within an eight-week period. The original text referred to "may" rather than "shall". It is important that there be a clear timeline within which an appeal can be made.
I move amendment No. 66:
In page 63, line 12, to delete "An appeal under subsection (1) may be made" and substitute "An appeal under subsection (1) shall be made".
Amendments Nos. 67 to 71, inclusive, are related and will be discussed together.
I move amendment No. 67:
In page 65, line 16, to delete "section 79(1)" and substitute "section 78(3), 79(1)".
I signalled my intention on Committee Stage to bring forward amendments on Report Stage relating to compensation in the context of assessing land. Due to reconfigurations and amendments to Part 5 of the Bill, there is currently no provision for a statement of compensation or notification of when works will commence to issue to public bodies where they are the owner or occupier of land. Amendments Nos. 67 to 70, inclusive, seek to address this.
Amendment No. 71 clarifies that the period of time for the calculation of the compensation is the period during which it is estimated that relevant works or related activities will be carried out, not the period specified in an order under subsections 82(2) or 84(2). The amendment is necessary because a statement of compensation will have issued before an order could be made under subsections 82(2) or 84(2).
I welcome these amendments, which are good additions to the legislation. In fairness, many of the topics we discussed at pre-legislative scrutiny and on Committee Stage have been taken on board. That is really welcome.
I move amendment No. 68:
In page 65, between lines 32 and 33, to insert the following:
“(3) A Director shall—
(a) where relevant works are to be carried out on principal burial land or ancillary burial land that is owned or occupied by a public body, by notice in writing inform the public body of his or her intention to carry out relevant works on the land,
(b) where related activities are to be carried out on ancillary land that is owned or occupied by a public body, by notice in writing inform the public body of his or her intention to carry out related activities on the land,
(c) specify in a notice under paragraph (a) or (b), the estimated duration of the relevant works or related activities, as the case may be, on the land concerned,
(d) where the public body is both the owner and occupier of the land to which a notice under paragraph (a) or (b) relates, state in the notice the date on which it is intended that the relevant works or related activities, as the case may be, shall commence on the land concerned,
(e) where the public body is not the owner and occupier of the land to which a notice under paragraph (a) or (b) relates, state in the notice that the Director may proceed with the relevant works or related activities, as the case may be, on the land concerned, in accordance with section 77(1)(b)(i) or (ii), and
(f) attach a statement of compensation to a notice under paragraph (a) or (b).
(4) A notice under paragraph (a) or (b) of subsection (3) shall have appended to it such maps and plans, on such scale, as are sufficient to enable the clear identification of the principal burial land, ancillary burial land or ancillary land, as the case may be, to which the notice relates.
(5) Where subsection (3)(d) applies, a Director may proceed with the relevant works or related activities, as the case may be, on the land which is the subject of the notice, at any time after the date referred to in that provision.”.
I move amendment No. 69:
In page 71, to delete lines 15 to 25 and substitute the following:
“(i) include an offer of compensation calculated in accordance with section 87 and state that the compensation may be accepted within a period of 28 days—
(I) where the statement issues to a public body under section 78, from the date of service of the notice, or
(II) in all other cases, from the later of—
(A) the date on which consent is given under section 79, 81 or 83, as the case may be, to the carrying out of the works or activities concerned,
(B) where consent is not given and a court order is made under section 80, 82 or 84, as the case may be, authorising the works or activities concerned, the date on which the period of time allowed for an appeal against the order expires where no appeal has been made, or
(C) where such a court order is made and an appeal has been made, the date on which the order has been confirmed on appeal,”.
I move amendment No. 70:
In page 72, lines 20 and 21, to delete “, if the offer issues after the date referred to clause (I) to (III) of subparagraph (i),”.
I move amendment No. 71:
In page 73, to delete lines 28 to 32 and substitute the following:
“(a) by reference to the period during which it is estimated the relevant works or related activities, as the case may be, will be carried out,”.
Amendments Nos. 72 to 75, inclusive, are related and will be discussed together.
I move amendment No. 72:
In page 75, line 8, to delete “Subject to subsection (2) and (3), a Director shall” and substitute “A Director shall”.
On Committee Stage, I signalled my intention to bring forward an amendment on Report Stage to remove the provision exempting the director from carrying out remedial works on a site where the owner or occupier planned to carry out the works or where the land is subject to development. This amendment is on foot of engagement with the Department of Housing, Local Government and Heritage, which advised that it would be appropriate for the director to remediate a site in circumstances where intervention at a site is exempt from planning permission.
I move amendment No. 73:
In page 75, to delete lines 13 to 27.
I move amendment No. 74:
In page 75, line 29, to delete “the relevant planning authority” and substitute the following:
“the planning authority (within the meaning of the Act of 2000) in whose administrative area the land in question is situate”.
I move amendment No. 75:
In page 75, to delete lines 31 to 37.
Amendments Nos. 76 to 79, inclusive, are related and will be discussed together.
I move amendment No. 76:
In page 76, between lines 23 and 24, to insert the following:
“(3) A relevant Minister shall, for the purpose of section 99(5), notify the Director concerned in writing of the dissolution day at least 6 months in advance of that day.”.
Amendments Nos. 76, 77 and 78 are mine, while amendment No. 79 is from Deputies Funchion and Ward. This was an aspect we discussed in some detail on Committee Stage. As we know, a report will be coming from an agency set up under this legislation and will be published. Deputies wished to ensure that the director of the agency would be able to come before an Oireachtas joint committee to discuss the report. Specifically, the concern was to ensure that the dissolution of the agency coinciding with the publication of the report would not mean that there was no director to come before a joint committee. I refer to a measure to enhance accountability. Therefore, we engaged with the Office of the Parliamentary Counsel and we have brought forward a mechanism we believe addresses this aspect.
Amendments Nos. 77 and 78 address Deputies' concerns by providing that a director will be required to submit a final report to the relevant Minister at least 12 weeks before the day on which the agency is dissolved. The relevant Minister will then be required to lay the report before the Dáil within six weeks of receiving it. This timeline will, at a minimum, provide for a guaranteed six-week window during which a director could be called before an Oireachtas joint committee to discuss the report prior to dissolution day.
Amendment No. 76 is a consequential amendment that provides that the relevant Minister must notify a director at least six months in advance of the day proposed to be the dissolution day. This will ensure the director will be given sufficient notice to prepare the final report. I hope this addresses the issues raised by Deputies.
I welcome this group of amendments. Everyone's concern in this regard was based on what happened in the aftermath of the publication of the report on the mother and baby homes. There was frustration and anger that there was no accountability in that instance. We wrote at least three times to invite representatives from the commission to appear before the Joint Committee on Children, Equality, Disability, Integration and Youth. They refused, so we thought this was an important provision to have in the legislation. The issue has been dealt with. We welcome that and I am glad the Minister took it on board.
I also thank the Minister for including this amendment. Accountability and the timelines are very important for all this work. It is important, and I thank the Minister for taking it on board.
I move amendment No. 77:
In page 79, line 1, after “Minister,” to insert “at least 12 weeks”.
I move amendment No. 78:
In page 79, to delete lines 12 to 14 and substitute the following:
“(7) A relevant Minister shall, within 6 weeks of receipt of a report under subsection (5), cause copies of that report to be laid before each House of the Oireachtas.”.