I am pleased to present to the House the Institutional Burials Bill 2022. This is crucial legislation which, if enacted, will allow us to finally afford the children in Tuam the dignified burial that has been denied to them for such a long time. It will provide a lawful basis for a full-scale forensic excavation, recovery and analysis of the children's remains at the site and will enable a DNA-based identification programme to be undertaken to help answer questions affected families may have about their loved ones.
This legislation is a priority for me. The people of Tuam, and, indeed, people throughout the country and across the world, have been deeply affected by what transpired there. The horror of the initial discovery has been compounded by a frustration that the children have still not been given the appropriate reburial. The Government has committed to a full-scale forensic excavation of the site, and this legislation is essential to delivering on that.
The Bill was published in February and completed its passage through Dáil Éireann last week.
I am committed to starting the excavation at the earliest opportunity and that is why I am seeking to advance the Bill through all Stages in this legislative session. I realise that this is an ambitious timeframe, but I sincerely hope we can work together to achieve it so that the work necessary to implement the legislation can get under way during the summer recess. The families have waited far too long.
The version of the Bill before the House has undergone extensive changes since the general scheme was published. The general scheme was scrutinised by the Joint Committee on Children, Equality, Disability, Integration and Youth and other stakeholders. I made some very significant changes to the published version of the Bill in response. I thank those Senators who sat on the committee for their valuable contributions to this process. I also made significant changes to the Bill as it passed through the Dáil that have further strengthened it.
I will now outline the key parts of the Bill as passed by the Dáil, highlighting the key amendments made since the Bill was passed and the initial draft published. In this regard, I note upfront that the restriction on the jurisdiction of the coroner, which was provided for in the original general scheme, has been removed. This was a key concern raised by the committee and other stakeholders nationally and internationally. There is now no such restriction in the legislation.
Part 1 contains the standard Short Title, commencement and interpretation provisions. Section 2 provides definitions of key terms used in the Bill. A central term is "forensic excavation and recovery." This means the excavation of the land, and the recovery and treatment of human remains, in a manner sufficient to satisfy legal requirements regarding the use and storage of evidence in connection with the identification of human remains, including in criminal proceedings. The term "eligible family member" is another key term in this section. It sets out the family members who are entitled to participate in an identification programme. In fully responding to the relevant pre-legislative scrutiny recommendations, I significantly expanded the family members eligible to participate to include all second-order relatives. As the Bill passed through the Dáil, and following consultation with Forensic Science Ireland, I further expanded the definition to include half-nieces, half-nephews, grand-nieces and grand-nephews.
Part 2 provides that the Government can consider a proposal by a relevant Minister to intervene at a site where manifestly inappropriate burials have taken place of persons who died while resident at an institution. Where the Government is satisfied that an intervention is necessary for the purposes of safeguarding important objectives of public interest, it can direct that Minister to establish an office of a director of authorised interventions. The Minister will appoint a director to oversee the intervention, as well as an advisory board to support and guide the director in the role. The role and functions of the director under the legislation were significantly strengthened in the published Bill. A director is now required to conduct a forensic-standard investigation and recovery of remains in line with the definition in Part 1, and a new function of arranging for post-recovery analysis has been added. He or she will be empowered to employ or contract the range of expertise and disciplines needed to discharge these functions to international best-practice standard at a particular site. The director will also provide updates on the work of the office to relatives of persons believed to be buried at the site, other stakeholders and the general public. The director may also be required to undertake a DNA programme of identification, which is intended to be the case in Tuam.
The advisory board will provide advice and guidance to the director. The board will be chaired by a former coroner or someone with coronial expertise and will include scientific experts, former residents and-or family members. Consultation with the advisory board will be required at regular intervals, including at key decision points in the intervention. The addition of an advisory board responds to a number of recommendations to enhance transparency and accountability that came from pre-legislative scrutiny, as well as to ensure meaningful engagement with families and survivors.
Part 2 also provides that a director can obtain information and documents from publicly funded bodies and other persons to assist in the performance of his or her functions. These provisions were enhanced in response to pre-legislative scrutiny recommendations to give the director the power to compel, rather than simply request, the production of the information or documents concerned. As the Bill passed through the Dáil, the list of information sources was also expanded to include an explicit reference to religious organisations and communities, including, but not limited to, a diocese or parish of the Roman Catholic Church or the Church of Ireland.
Part 3 provides for the forensic excavation, recovery and post-recovery analysis of human remains to be carried out by appropriately qualified persons in accordance with international standards and best practice. It provides that remains that are recovered will be sorted into individual sets as far as possible, that forensic testing will be carried out to establish as much information about the individuals as possible, including the circumstances and cause of death, and that the director of an intervention will publish a general report on the findings. Part 3 is a significant addition to the general scheme, which responds directly to issues raised during pre-legislative scrutiny about the need to address how people died. A director of an intervention will be required to inform An Garda Síochána and the relevant coroner where evidence emerges of a violent or unnatural death or where remains are not those of a person who died while ordinarily resident at the institution. As a result of an amendment made in the Dáil, the director's post-recovery analysis report must now also document whether any such notifications were made to An Garda Síochána and the coroner.
Part 4 provides the legal basis for a DNA-based programme of identification to be carried out in respect of remains recovered from an intervention site. The aim of an identification programme is to establish the likelihood that there is a familial link between people who believe they have family members buried at a site and the human remains that are recovered from that site and where a familial link is established, to identify those remains. In response to concerns raised by family members and other stakeholders, the provision for a pilot identification programme in the general scheme was removed in the published Bill. Instead, the Bill now provides that an identification programme will proceed where there are living family members of persons believed to be buried at the site who wish to participate in a programme and where DNA of sufficient quality is available from the remains to enable DNA profile comparisons.
DNA testing is a very powerful tool, which may reveal information about familial relationships to persons other than to the deceased relative a person believes may be buried at a site. The legislation, therefore, has to balance the public interest of identifying remains buried in a manifestly inappropriate manner with the privacy rights of close living relatives. The general scheme sought to do this by limiting participation in an identification programme to parents, children, siblings and half siblings of deceased persons, and providing that the highest ranking of those relatives had to provide consent or a person would be blocked from participating in a programme. The Bill provides for a much more inclusive and flexible approach. In summary, the Bill now provides that family members eligible to participate are; children, parents, siblings, half siblings, grandparents, grandchildren, aunts, uncles, nieces, nephews, half-nieces, half-nephews, grand-nieces and grand-nephews of deceased persons.
As a necessary balancing mechanism, the Bill allows the closest living relatives, namely, parents, children and siblings, to object to the participation of other, less closely related, persons. In this context, it is important to note that an objection does not automatically mean that a person cannot participate in an identification programme. Any objection will be considered by a director in conjunction with the closeness of the genetic relationship of the person who wishes to participate and the public interest of identifying human remains.
The final arrangements for recovered human remains are also considered in Part 4. The provisions in the Bill have been amended from those in the general scheme in response to a number of recommendations in the pre-legislative scrutiny report. The Bill now provides that, once identified, remains are returned to family members or final arrangements are made in line with their wishes. Where identification is not possible, final arrangements are similarly undertaken in line with the wishes of those who consider they are family members.
A significant change made to Part 4 during its passage through the Dáil was the addition of chapter 7 to provide a legislative basis for an oversight committee to perform an assurance role in respect of the historic databases to be established under the legislation. Given the sensitive data to be processed, and the risk 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.
Part 5 provides for a director to acquire temporary rights of access to land required to undertake an intervention, with an obligation to provide reasonable compensation and to restore land to its original condition and use upon completion. The primary access provided for in the Bill is to a principal burial site, described as principal burial land. Where the principal burial land is on residential land, access can extend up to the curtilage or 10 m, whichever is the lesser, of any dwelling on the land. This provision is a key change to the general scheme, which specified that the Government could not make an order in respect of land on which there was one or more dwellings. In response to the pre-legislative scrutiny recommendations, I provided that principal burial land can include residential land but that the site could not come within the curtilage or 20 m, whichever is the lesser, of the dwelling.
As the Bill passed through the Dáil, I further reduced the distance from a dwelling property where works can take place down to 10 m, where the land in question is considered to be within the curtilage of a property. The legislation must balance the rights of property owners with the need to intervene on land. I am satisfied that removing the absolute restriction envisaged in the general scheme and allowing works to be carried out within 10 m of a dwelling represents a more just balancing of those rights.
I wish to be clear that the land in Tuam is residential land. That land is public land and therefore the provision I just outlined does not apply to it. While it has been the subject of debate recently, I wish to reiterate that all the land in Tuam - the garden and the wider site, including the car park and playground - is open for examination and investigation. In dealing with this legislation, I wanted to put that on the record of the House.
Part 6 contains provisions related to the dissolution of an office of a director. It provides that a director will prepare and submit a final report prior to dissolution day. In response to concerns raised in the Dáil that the provisions may not allow for a director to be called before an Oireachtas committee to discuss their final report, I have provided that the final report must be submitted at least 12 weeks before dissolution day and must be laid before the Houses within six weeks of receipt, providing a minimum six-week window for a director to be called before a committee.
Following submission of the final report, the relevant Minster shall, within 12 months, undertake a review of the implementation of the legislation in regard to that particular intervention. A report of the review will be published. The review mechanism is included in the Bill in response to a pre-legislative scrutiny recommendation.
As I have said before, what happened in Tuam is a stain on our national conscience. This Bill will allow us, at long last, to afford the children interred there a dignified and respectful burial. I have carefully considered the concerns raised by Deputies and Senators in the pre-legislative scrutiny process. I have listened to families, survivors and independent experts. On foot of that we have made significant changes to the legislation, following the pre-legislative scrutiny report and as the Bill progressed through Dáil Éireann. The Bill is significantly enhanced and strengthened as a result of that process. I again express my gratitude to Members of the Oireachtas and particularly to the survivors and family members who engaged with me, leading to strengthening the Bill which better vindicates the dignity of these children.
If and when the Bill is enacted, I will be in a position to establish an office of the Tuam director and start that excavation as soon as possible after that. My sincere hope is that Bill this will finally bring some sort of closure to the families and survivors who have been so deeply affected by the abhorrent situation in Tuam.
