On 27 April last, on behalf of the Government, the Minister for Justice, Equality and Law Reform signed an agreement with the Government of the United Kingdom to establish an independent commission for the location of victims' remains. The establishment of this commission followed signals from Sinn Féin that actions of the kind now being taken by both Governments would facilitate the recovery of the remains of victims of violence. This is an important and worthwhile development. For the Northern community as a whole, it represents another step in the ongoing process of healing within and between communities. It also brings us a step closer to ending the serious injustice which has long been endured by the families who have been denied information about the burial place of their loved ones.
Senators will recall that the Good Friday Agreement specifically provided that it was essential to acknowledge and address the suffering of the victims of violence as a necessary element of reconciliation. In this context, the Bill before the House will help to bring to an end another sad chapter in the troubled history of this island.
It is regrettable that it is necessary to bring such a measure before the House. The Bill has one purpose – to provide a framework to facilitate the location of the remains of victims. It sets out to do no more and no less than what is necessary to facilitate that process. It is important at the outset to say without equivocation, because there has been some confusion on this point, that the Bill does not contain an amnesty in respect of any offence. Instead, what is at issue is excluding the use by the prosecution of evidence resulting from the process for which the Bill provides.
I say to those who harbour misgivings about the limited immunities provided for that the road to peace and reconciliation is not an easy one and every section of society must be prepared to compromise if we are to achieve our objectives of peace, harmony and mutual respect on this island. It would have been preferable if the need for this legislation had not arisen. However, government often involves making difficult decisions in the face of competing concerns. Without this legislation and the agreement, the location of the remains of the victims might not be revealed and the families of the victims would be faced with the additional pain and suffering of not knowing where the remains of their loved ones are buried. Humanity and compassion surely dictate that if there is an opportunity to lessen that pain and suffering, we must do all we can to seize it.
The timetable for the passage of this legislation is, by necessity, relatively tight. I acknowledge in particular the co-operation of the Seanad in having the matter debated here this morning.
The Bill provides for an independent international commission, as established under the agreement between the Irish Government and the Government of the United Kingdom signed on 27 April 1999, to facilitate the location of the remains of victims of paramilitary violence killed prior to 10 April 1998. The date 10 April 1998 is appropriate given that it was the date of the Good Friday Agreement. Against this background, the Bill provides that the functions and membership of the commission shall be as set out in Articles 3 and 4 of the Agreement; it provides for a prohibition on the use of evidence resulting from the process and for the confidentiality of information provided to the commission in relation to the process and it provides for immunities and privileges, etc. relating to the commission.
The background to the Bill is as follows. At its meeting on 29 March 1999 the Government approved the draft text of a statement to be issued concerning an initiative to locate the graves of missing people from Northern Ireland. The statement indicated that the Government was prepared to facilitate a process in relation to locating the remains through introducing legislation to the effect that evidence resulting from that process could not be used in the prosecution of offences. Shortly afterwards the Provisional IRA issued a statement to the effect that it had succeeded in locating the remains of nine victims. Lengthy and detailed discussions have taken place with the UK authorities with a view to putting in place a framework for the process of locating the remains of victims. This culminated in the signing of the agreement on 27 April between the two Governments.
The Bill provides for the appointment of a commission and specifies that the objective of the commission shall be to facilitate the location of the remains of victims. The commission shall consist of not less than two members to be appointed jointly by the two Governments. There are standard provisions relating to appointments, procedures etc. and the provision to the commission of such moneys, premises, facilities and services, including the services of staff, as may be necessary.
The Bill provides that evidence resulting from the process shall not be admissible by or on behalf of the prosecution in proceedings for an offence. It also provides for a similar ban on forensic testing to that contained in the Decommissioning Act, but testing will be allowed to the extent that such testing is necessary, for inquest purposes, to establish the identity of the victim or how, when and where he or she died or to determine whether an item can be safely moved or otherwise dealt with.
The Bill places an obligation on the commission to maintain confidentiality in relation to the information disclosed to it. This is a central provision in the Bill. There is, however, a provision which would allow, at the discretion of the commission, the family of a victim to be told that information has been given to the commission relating to the location of the remains of the victim, and the place where, according to the information, the remains may be found. The Bill also provides for immunities etc. in relation to the commission. There is also provision for the issue of search warrants to an Garda Síochána on the basis of certificates provided by the commission that the remains of a victim are likely to be found at a particular place.
In relation to the Freedom of Information Act, it is envisaged, for obvious reasons, that there would be no question of the Minister for Finance making an order the effect of which would be to make the commission a public body to which that Act would apply. However, it is necessary to amend the Freedom of Information Act to ensure that information provided by the commission to public bodies, or from public bodies to the commission, can be protected fully.
The Bill also contains standard provisions relating to the submission of reports by the commission, the dissolution of the commission when it is considered no longer necessary for it to remain in being, expenses, short title and commencement.
Section 1 is a standard provision providing for certain necessary definitions. In particular, "victim of violence" has the meaning assigned to it in Article 3(3)(a) of the agreement, namely "persons killed before 10th April, 1998 as a result of acts committed on behalf of, or in connection with, an unlawful organisation". An "unlawful organisation" is defined in Article 3(3)(b) of the agreement as an unlawful organisation within the meaning of the Offences Against the State Act, 1939, in respect of which a suppression order has been made, or an organisation proscribed for the purposes of the Northern Ireland (Emergency Provisions) Act, 1996.
Section 2 provides that the commission will be independent in the performance of its functions and will have the legal capacity of a body corporate. This is in line with Article 2 of the agreement.
Section 3 provides that the objective and functions of the commission, referred to in section 1 as "the process", are as set out in Article 3 of the agreement. The objective of the commission is to facilitate the location of the remains of victims of violence. The functions of the commission are to receive information relating to the location of the remains of such victims, to disclose such information for the purpose of facilitating the location of remains to which the information relates and report on its activities to both Governments no later than one year after its establishment and annually thereafter.
The membership and terms of appointment of the commission and the appointment of staff shall be as set out in Article 4 of the agreement. The commission shall have not less than two members, appointed jointly by the two Governments. The two Governments may, if they so wish, jointly appoint one of the members to act as chairperson. The terms and conditions of the members will be determined by the two Governments. The commission may appoint staff to assist in the discharge of its functions on such terms and conditions as the commission, with the agreement of the two Governments, may determine. In line with Article 8 of the agreement, the commission will be required to keep proper accounts and, at the request of the two Governments, will appoint auditors who shall audit the commission's accounts.
Section 4 will enable the Minister to provide to the commission such moneys, premises, facilities and services, including staff, as may be necessary for the proper functioning of the commission. This is in line with Article 6 of the agreement.
Section 5 provides that any evidence obtained, directly or indirectly, whether inside or outside the State, resulting from the process, shall not be admissible on behalf of the prosecution in any criminal proceedings. Neither will any evidence be admissible which results from a test or examination carried out for the purpose of establishing for the purposes of an inquest the identity of a victim or how, when and where he or she died. In addition, any evidence resulting from a test or procedure the purpose of which is to determine whether an item found can safely be moved or otherwise dealt with, will also be inadmissible. Tests or forensic examinations on any human remains or other item found resulting from the process for any other purposes shall not be permitted.
Section 6, in line with Article 7 of the agreement, provides that no information provided to the commission in relation to the process shall be disclosed to any person, except for the purpose of facilitating the location of the remains to which the information relates. However, the commission may disclose or arrange for the disclosure to members of the victim's family the fact that information has been provided to the commission relating to the location of the remains of the victim and the place, where, according to that information, the remains may be found. Needless to say, ensuring the confidentiality of information provided to the commission is an essential requirement in the process.
Section 7 provides that the Minister may, by order, make provision to the effect that the commission, its property and certain persons, as set out in the section, shall be afforded certain immunities and privileges. This is in line with Article 5 of the agreement. Such provision is considered necessary given that the proposed commission will be an international body and the need to ensure that the commission can give absolute assurances about maintaining confidentiality in relation to information provided to it. There is a similar provision in respect of the Decommissioning Commission in the 1997 Decommissioning Act.
An order under this section shall be laid before each House of the Oireachtas as soon as may be after such an order is made. The order may be annulled if a resolution to that effect is passed by either House within the next 21 sitting days after the order has been laid before the House.
Section 8 provides that a search warrant may be issued by a judge of the District Court if satisfied that the commission has certified that the remains of a victim are likely to be found in a particular place or premises. A person who obstructs a Garda acting under the authority of a search warrant will be guilty of an offence and, if convicted, shall be liable to a fine of up to £1,500 and/or imprisonment for a period of up to six months.
Section 9 proposes an amendment to the Freedom of Information Act, 1997. The Freedom of Information Act would not apply to the commission itself as it is not intended that the Minister for Finance would make an order declaring it to be a public body under the Act. There is, however, a need to protect communications between the commission and public bodies.
Section 25 of the Freedom of Information Act allows, subject to certain safeguards, for the issue of a ministerial certificate to the effect that applications for disclosure of certain information may be refused because the record is exempt under section 23 or section 24 of that Act. The Bill provides that the same freedom of information regime would apply to communications between public bodies and the commission as applies to other sensitive information currently covered under sections 23 and 24 of the Freedom of Information Act. In effect, this would mean that such information will be subject to the same regime which applies to information, such as sensitive security information, and information affecting relations with Northern Ireland.
Section 10 provides that a member or a member of staff of the commission or a person performing functions assigned to him or her by the commission or an agent of the commission shall not be required to attend an inquest in relation to any matter within his or her knowledge resulting from the process. This provision is considered necessary in the context of assuring confidentiality in relation to information supplied to the commission.
Section 11 provides that the Minister may, by order, direct a coroner, other than the coroner in whose district the remains may be found, to conduct the inquest. This provision arises because it has been represented to the Minister that for practical reasons – related to specialised forms of forensic testing – it may be desirable for the inquests to be held in Dublin.
Section 12 provides that the Minister may, after consultation with the Secretary of State, dissolve the commission in line with Article 10 of the agreement. In doing so, the Minister may provide for such transitional or consequential provisions as appear to him or her to be expedient. Therefore, it would be possible to wind down the commission in a manner which would allow for the meeting of any liabilities and for the disposal of any remaining assets of the commission in an orderly manner. Sections 13 and 14 are standard provisions and provide for the payment of expenses arising under the Act, the short Title and commencement.
The troubles on this island over the last 30 years or so have given rise to thousands of victims and it would be invidious to compare the levels of suffering endured by any one group or community. However, there is widespread acceptance that the plight of the families of victims whose remains have not yet been recovered has been an especially harrowing one.
The Government is confident that the Bill, following the agreement signed last Wednesday and taken together with the similar legislation being put through the British Parliament, will encourage those who may have information about the secret burial places of victims to make the information known to the Independent Commission for the Location of Victims' Remains. It is my view and that of the Government that providing this information is no more than justice and basic humanity require and deserve.
There are understandable reservations about what is proposed in the Bill. These were expressed with some force in the House of Commons earlier this week when the UK Bill on the Location of Victims' Remains was debated. Some speakers went as far as to suggest that what the Bill represented amounted to a policy of appeasement of paramilitary organisations. It is no use to anyone to embark on a sterile debate, but it is useful to make it clear that the Bill is not in ease of paramilitary organisations; instead it is intended to be in ease of the plight of families who for too long have been denied the chance to say a last goodbye to their loved ones. I believe that neither the Government nor the House would do anything to deprive those people of that basic right.
I look forward to a constructive and informed debate. I thank Senators for their co-operation and I commend the Bill to the House.