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Select Committee on Children, Equality, Disability, Integration and Youth debate -
Tuesday, 3 May 2022

Institutional Burials Bill 2022: Committee Stage

We will begin consideration of the Institutional Burials Bill 2022. I welcome the Minister for Children, Equality, Disability, Integration and Youth, Deputy O’Gorman, and his officials to the meeting today.

I will now read the note on privilege. Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.

I would also like to remind members of the constitutional requirement that members must be physically present within the confines of the Leinster House complex in order to participate in public meetings. I will not allow a member to participate where they are not adhering to that constitutional requirement. Therefore, any member who attempts to participate from outside the precincts will be asked to leave the meeting. In this regard, I would ask any member partaking via MS Teams that prior to making their contribution to the meeting they confirm that they are on the grounds of the Leinster House complex.

Please note that in order to limit the risk of spreading Covid-19, the Houses of the Oireachtas Service encourages all members, visitors and witnesses to continue to wear face masks when moving around the campus or when in close proximity to others.

In relation to the arrangements for taking the Bill, I would remind all members that should a vote be called, members must physically come to the committee room in order to vote. They will be notified of a vote. We are now going to commence consideration of the Bill. I would also like to say that any of the amendments that have been tabled by Sinn Féin will be moved and taken by Deputy Mark Ward. I will not be partaking in the debate so that I can chair the meeting.

We will get straight into it. There are no amendments on section 1.

Section 1 agreed to.
SECTION 2

Amendment No. 1 is in the name of Deputies Canney and Tóibín, who are not present, so that amendment cannot be moved. This amendment has been grouped. Amendments Nos. 1, 54 and 62 are all in the names of Deputies Tóibín and Canney. We cannot discuss any of those amendments.

For the record, I was going to say to the Deputies that I would look at the point their amendments had made about grandnieces and grandnephews. We spoke to Science Foundation Ireland, SFI, and we may be able to do something on Report Stage. We will do that irrespective of them not being here to move the amendment.

Amendment No. 1 not moved.

I move amendment No. 2:

“In page 9, line 20, to delete “may be, and a person whose human remains have been recovered” and substitute “may be, on the one hand and a person whose human remains have been recovered on the other hand”.”

This is a small, technical amendment which seeks to provide clarity in relation to the definition of familial link. It is a small clarification.

Amendment agreed to.

I move amendment No. 3:

“In page 9, line 24, after “means” to insert “, in relation to recovered human remains or samples taken from those remains,”.”

Again, this is a minor technical amendment that aims to clarify the final arrangements related to “recovered human remains”, as well as any samples taken from them for the purposes of forensic testing. Those arrangements, which I know are important to many people, include all remains that are in the custody of the State.

Amendment agreed to.

Amendment No. 4 is grouped with amendment No. 14. We will take discussion on amendment Nos. 4 and 14 together.

I move amendment No. 4:

“In page 10, line 36, to delete “ordinarily”.”

As an opening, I want to say that it is extraordinary that in this discussion that concerns the legacy of Church-run institutions for their control of pregnant women and their children, the Government is simultaneously handing over a €100 billion maternity hospital to a religiously directed body. This Bill deals with the most horrific of outcomes of a misogynistic system, where the State and the Church conspired to incarcerate and abuse women, many of them who were still children. Surely a glaring lesson from this system is the danger of allowing any form of religious control to shape medical decision making. The only thing that practitioners should be guided by is best practice and the wishes of the people concerned. Our horrific past links these two issues and it is important to note that.

Amendments Nos. 4 and 14 address the two main problems of the inclusion of the word “ordinarily”, in terms of being ordinarily resident at an institution. First, this restricts the people whose remains are covered by this legislation. The term "ordinarily resident" implies that an individual was a resident of an institution for a prolonged period of time. The length of time that a person was in an institution should not determine whether this Bill applies to them or not. For example, if a young woman was only in a home for one night and she died of potentially unnatural causes, she should be included in this legislation.

Second, this ambiguity arises because the term “ordinarily” is not defined in the Bill. During pre-legislative scrutiny, the Irish Human Rights and Equality Commission, IHREC, and the Irish Council for Civil Liberties and other submissions, identified this non-definition as being an issue. It is unfortunate that the Minister did not resolve that matter. The definitions of the word “ordinarily” vary within Irish legislation. It is unclear what “ordinarily resident” means. I am suggesting the removal of the word “ordinarily” to clarify this restrictive ambiguity. In the Minister’s reply, I ask him to clarify if the understanding of “ordinarily resident” means an individual who spent any time, even one night, at the time of their death?

Yes, it does. That is our understanding of the use of the term “ordinarily” here. It can refer to a person who was resident for one night in an institution. Indeed, unfortunately, considering so many of these children are children who died very shortly after childbirth, the term would have to encompass that in order to ensure that they fell with the remit of this legislation. That is our understanding.

We have engaged with the Parliamentary Counsel on the use of the term “ordinarily” in other legislation. It is our understanding that it is sufficient to indicate that this relates to residents, as well as to distinguish someone who was resident for a short time, even for one night, from someone who was not resident in the place and who was visiting.

It is an important point, so we will touch base with the counsel again to get absolute clarity there. Just so the record is very clear, we intend that the term “ordinarily resident” will include someone who was resident for a period of one day in an institution.

I appreciate that. However, to most people, if you stayed one night in a hotel or anywhere else, you would not in normal language consider that that person is ordinarily a resident there. Clarification on that would therefore be great. I thank the Minister for looking into that. If the term is to be included, perhaps a definition would be useful, so as to be clear that it does include people who were there for potentially one night.

We will touch base with the Parliamentary Counsel about it. I will engage with Deputy Cairns about what their clarification was. If either side feels that an amendment is necessary on Report Stage, such an amendment can be brought forward.

I thank the Minister.

Amendment put and declared lost.

Amendments Nos. 5 and 15 are related and will be discussed together.

I move amendment No. 5:

In page 10, line 36, to delete “and” and substitute “or”.

These amendments stress another restriction in the Bill. Currently, interventions are limited to situations where a person died while ordinarily resident in an institution and where the person was buried in a manifestly inappropriate manner. There are two criteria: the person must have died while a resident; and must be buried before the State may act. The requirement to meet both criteria is potentially a barrier and one should be sufficient. That a young woman, baby or child died in a home should be enough to trigger an intervention or that a young woman, baby or child is inappropriately buried should be enough to trigger an intervention. I am amazed at the principle that either of these circumstances alone is not serious enough to warrant potential interventions. The first recommendation of the committee's pre-legislative scrutiny report states that the Bill should not limit the extent to which the various sites can be investigated. The requirement to meet both criteria is a restriction that must be removed.

I cannot accept these amendments. If they were accepted they would fundamentally change the legislation in what it is trying to achieve. Based on these amendments, if a person dies while resident in an institution, and that is any residential facility in respect of which a public body had or has a relevant role, that alone would be sufficient reason for the Government to consider making an order to intervene. These amendments will allow for interventions in cases where inappropriate burials had not been discovered. That is at odds with the original Government decision for bringing forward this legislation. It would result in major changes to the Bill and would change the underlying objective of the legislation.

The intention was to create a lawful basis for a forensic excavation, recovery, analysis and identification of remains at an institutional site where manifestly inappropriate burials had occurred. The site at the former mother and baby institution in Tuam is an example of one such site. What is proposed here is a fundamental change to what this legislation would do, and it is not one that we should endorse at this stage or within this Bill. I would also have a concern, and it is a concern that I will repeat in responding to other amendments, that these amendments could impact on other legislative measures and particularly interfere with the jurisdiction of the coroner and An Garda Síochána. For those reasons, I cannot accept the amendments.

The amendments seek to delete "and" and substitute "or" so it would not have to be the two requirements. It could be one or the other. How is it restricting it? It would not be the case that one would have to have been ordinarily resident and there was a manifestly inappropriate burial. It could be one or the other. If one is not ordinarily a resident in the site but there is a potential manifestly inappropriate burial, there cannot be an intervention because one was not ordinarily a resident. For example, we hear reports of somebody who had a stillbirth in the hospital and the remains are potentially in Tuam. Those remains are not of somebody who was ordinarily resident there but they are perhaps manifestly inappropriately buried there, as the Bill puts it. Why does it have to be both? My amendment is to change "and" to "or" so it does not have to be the two. One or the other could trigger an investigation.

Central to what this legislation is trying to address is the issue of manifestly inappropriate burials, and they have to be centrally linked to an individual's ordinary residence, which is residence for one day within that particular institution. To do as the Deputy is proposing would mean that somebody would only have to be ordinarily resident in the institution. That removes the central tenet of what this legislation is designed to address, which is concern about manifestly inappropriate burials within an institution of this type.

For many people this Bill is also about intervention where what the Bill might not see as manifestly inappropriate is still a suspicious or unlawful death. There might be a mass grave. It is not like the situation in Tuam with the septic tank. It is not just about manifestly inappropriate burials; it is about suspicious or unlawful death.

If there is a burial that is inappropriate in another site, this legislation can apply. The legislation is not site-specific. It can apply to any situation where a manifestly inappropriate burial is located. However, we also must recognise that the scale of what we are doing here, the scale of the exhumation and recovery of human remains, is a very significant intervention. In the context of Tuam, everybody recognises that there is no question but that it is necessary. In the context of other institutions, there are differing views among relatives of family members buried there as to whether they would like to see a similar intervention. That is why the standard before the State can propose to intervene is set at manifest inappropriateness.

And ordinarily resident.

Yes, and ordinarily resident. With regard to ordinarily resident, in the situation the Deputy described where a child was born and it was a stillbirth in the hospital, that child would fit within the criteria of the legislation. There would not be any concern that a child in that situation would be excluded from the ambit of the legislation.

Is that even if it never spent one night in the institution?

My understanding is that a child of a mother who was institutionalised in that institution and was stillborn there would fall within the criteria of this legislation.

The conversation about what is manifestly inappropriate arises under later amendments, so I will not get into it now. This amendment relates to the two criteria, and my argument is that it should be one or the other.

Amendment put:
The Committee divided: Tá, 3; Níl, 5.

  • Cairns, Holly.
  • Funchion, Kathleen.
  • Ward, Mark.

Níl

  • Costello, Patrick.
  • Crowe, Cathal.
  • Dillon, Alan.
  • O'Gorman, Roderic.
  • Phelan, John Paul.
Amendment declared lost.

There are a number of amendments in this group. Amendment No. 6 may be discussed with amendments Nos. 16, 38, 52 and 78. If any of the earlier amendments in the group is lost then No. 78 cannot be moved. Is that agreed? Agreed.

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”.

These amendments respond to one of the most worrying aspect of the Bill as drafted. As the Minister mentioned on the previous amendment, the Bill is designed to interfere only in instances of manifestly inappropriate burials. This means that even though a young woman or child may have died in unnatural, unknown or suspicious circumstances, that is not, in itself, reason for intervention. This Bill, as my previous amendments outline, always requires inappropriate burials, and there is extensive definition of what constitutes such. Suspicious or unnatural deaths or deaths in unknown instances, are not enough to warrant an intervention. This is simply wrong. Several recommendations in the committee's pre-legislative scrutiny report support this including:

5. The scope of the General Scheme be revised to include any burial site where the circumstances surrounding the death and/or body-disposal method warrant an investigation as to their lawfulness.

6. That intervention should give due consideration to suspicious or unlawful deaths as well as the existence of inappropriate burials.

The Bill currently ignores these recommendations and the extensive evidence on which they are based. Several witnesses highlighted international human rights and transitional justice standards should be adopted. I found the general scheme to be lacking in this regard. Unfortunately, the Bill as drafted also fails to meet these standards.

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 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 intervention based on the existence of inappropriate burials rather than suspicious or unlawful deaths.

Witnesses such as the representatives from the Tuam Home Survivor Network and Guernica 37 pointed out that we know about practices of neglect, malnutrition and malpractice in institutions. All deaths associated with these homes are already suspicious and need to be investigated. My amendments have attempted to address the concerns of witnesses by including unnatural death or death by unknown causes as stand-alone reasons to intervene at a site. I have drawn on language from the Coroners Act in this regard.

Is the Minister supportive of the broader principle rather than specific wording? If that is the case, I will consider withdrawing the amendment if he can commit to changing the criteria for intervention to include suspicious or unnatural death as a stand-alone rationale. The Bill has to align with international human rights and transitional justice standards.

I will speak on amendment No. 52. On page 35, line 8, it seeks to insert “accidental, homicide, undetermined or suspicious deaths” after "violent". It seeks to expand the criteria in this section in which An Garda Síochána is alerted to evidence of human remains. The current requirements are too limited. There is real possibility that some deaths would not be adequately examined if they were to occur now.

The purpose of this legislation is to provide for the excavation, recovery, analysis, identification and dignified reburial of human remains buried in manifestly inappropriate manner. This is the legislative gap that the Bill seeks to fill in order that these interventions can take place at Tuam and at any other site or similar circumstances come to light. For that reason, I am not in a position to accept this group of amendments.

Amendments Nos. 6 and 16, as well as No. 78, seek to alter the definition of principal burial land and the condition for making the Government order so that an intervention can take place which does not relate to burials which are manifestly inappropriate but rather, relates to burials of persons whose deaths may have occurred in a violent or unnatural manner or suddenly and of unknown causes. Amendment No. 38 seeks to alter the function of the director in order that he or she would have to arrange for forensic excavation and recovery of human remains where death would have come about in a violent or unnatural manner or suddenly, or from unknown causes. This approach would fundamentally alter the scope of the Bill and would ultimately change the under lying rationale of this legislation.

There are a number of difficulties with what are proposed. First, these amendments would represent a strong interference with the jurisdiction of An Garda Síochána and the coroner. Any intervention or investigation in respect of violent or unnatural death should clearly come under the remit of those two bodies. This is why the Bill rightly provides up front 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 will be premature to make an order for intervention pending the outcome of the investigation. Similarly, the Bill also rightly provides that where an intervention under this legislation is under way, the director of the agency must notify both An Garda Síochána and the coroner of any evidence of violent or unnatural death that comes to light during the intervention and then follow their directions in terms of what to do next. Moreover, it is unclear how within this specific legislation it would be established prior to intervention that a death occurred in a violent, unnatural, sudden and unknown manner. I have stated before that this legislation seeks to complement existing law including the Coroners Act. It is not seeking to replace it. It does not seek to set up a new system. When we moved from the general scheme to this full draft we made a major change and that we moved all restrictions on the jurisdiction of the coroner and that was significant. Furthermore, under this legislation, the director will have to try and identify the circumstances and causes of death of recovered remains and if evidence of violent or natural death emerges the director must then notify the coroner and An Garda Síochána immediately.

Amendment No. 52 is concerned with changing the description of the type of death that must be notified to the coroner and An Garda Síochána. The current wording of “violent or unnatural” would encompass any suspicious deaths where there is potential evidence of same including homicide. In practical terms, it is important that the language that we use in the legislation is aligned with a basis of exhumation in the Coroners Act. More broadly, the director under this legislation would publish a full post-recovery analysis report in respect of all recovered remains and will ensure that it is brought to the attention of the relevant coroner. For that reason, I cannot particularly support that amendment. I believe that the vast majority of what is encompassed in amendment No. 52 is already covered in the text of the legislation.

The Minister is saying that it will alter the scope of the Bill. I tabled these amendments because the scope of the Bill is to blatantly only intervene at Tuam. The entire nation thinks that there should be intervention where there are suspicious or unlawful deaths. Therefore, absolutely, we are trying to change the scope of the Bill because it is very narrowly framed. The Minister says that this might restrict the Garda or the coroner in what they are doing. This is an age-old problem. The Garda and the coroner have not intervened. I agree that this should have happened a long time ago, but it has not, and here we are making legislation for something that we never should have needed. The Garda should have intervened, the coroner should have intervened and all of this should have been dealt with but it has not been. That is precisely why we want to include it in the Bill.

During the course of the pre-legislative scrutiny debate, we went back and forth on this in terms of where jurisdictions begin and end. At that time we were concerned to draw clear distinction between the actions of this agency and the actions of the coroner. At that time, there was fear that this was an attempt to limit the coroner's role and in particular, undermine the scope for potential investigations. We sought to address that. I think we have been able to address that in the context of this legislation. The agency being established here is an agency designed to deal with situations have manifestly inappropriate burials. That is what the goal is to create here. We want to create the legal infrastructure around that to deal with the incredibly complex situation of both excavation, recovery and detailed post recovery analysis, DNA identification and the respectful reburial of remains. It is to try and create an agency that in addition will also undertake investigative functions in terms of moving into the role of the coroner and An Garda Síochána. I do not believe that is wise. It goes against the tenor of what we were discussing earlier in that An Garda Síochána and the coroner have their set roles and remits. The role of this agency is to deal with situations of manifestly inappropriate burial, be it in Tuam or elsewhere.

That is why the extensive scope has been given there. We have made changes to ensure that, in creating this agency, nothing interferes with the role of the coroner. I do not believe it is wise to go further in terms of giving those types of investigative powers to this agency. That is not what it is designed to do.

How stands the amendment? Is it being withdrawn or pressed?

Under Standing Orders we are obliged to wait eight minutes or until the full membership is present before proceeding to take the division.

Deputy Murnane O'Connor is going to be absent from the voting.

Unfortunately, we did not get any apologies or substitutions, so we have to wait for the eight minutes.

Amendment put:
The Committee divided: Tá, 4; Níl, 5.

  • Bacik, Ivana.
  • Cairns, Holly.
  • Funchion, Kathleen.
  • Ward, Mark.

Níl

  • Costello, Patrick.
  • Crowe, Cathal.
  • Dillon, Alan.
  • O'Gorman, Roderic.
  • Phelan, John Paul.
Amendment declared lost.

Amendments Nos. 7, 17, 39, 72 to 74, inclusive, and 77, which are all in the name of Deputy Holly Cairns, are related and may be discussed together. If amendments Nos. 7, 17, 39 and 72 to 74, inclusive, are lost, amendment No. 77 cannot be moved.

I move amendment No. 7:

In page 10, line 37, to delete “manifestly”.

These amendments are designed to remove “manifestly” as a restriction for interventions. We see it throughout, for example, in the term “manifestly inappropriate burials”. The criterion of “manifestly inappropriate” disregards sites that are potentially or suspected to be inappropriate. Again, this goes back to the issue of human rights standards. The State is obliged to act in all cases of suspected unnatural deaths and associated burials, not in the few known cases where there are mass graves. Again, I refer to the international definition of “mass grave” as sites where the circumstances surrounding the death and-or body disposal method warrant an investigation as to their lawfulness. Currently, the Bill does not include suspicious or unlawful deaths as a major reason for interventions but instead focuses on inappropriate burials. Not only that, it further restricts interventions based on extensive criteria for "manifestly inappropriate burials".

These are limitations on top of limitations. I keep coming back to the conclusion that this Bill is designed only for intervention at Tuam. Tuam must be investigated, of that there is no doubt, and the Government and the Department know this, but only a tiny percentage of the hundreds of other potential sites across the country meet the Bill’s standard for intervention. These restrictions need to be removed. Justice for the deceased, for survivors and for relatives, as well as the moral principles of human rights law and transitional justice, require the fullest possible remit for examination of sites.

I reiterate that this Bill is not site-specific to Tuam. We all recognise the need to excavate the site in Tuam and that process will begin as soon as this legislation is passed. A specific decision was taken that this legislation is not site-specific. The issue that is being addressed here brings us back to that question of at what point the Government and the State make the very significant intervention that we propose to make with Tuam, which is the excavation of human remains. We have to recognise in our culture the importance of leaving the dead undisturbed, and balancing that with circumstances where the burial is manifestly inappropriate, like in Tuam, there is the question of whether an intervention should take place. As we have said before with regard to other sites, there are differing views as to whether this sort of intervention, or an intervention of this scale, is the correct action for the State to take, which is why that term “manifestly inappropriate”, defined around having regard to a number of points, is set out.

This Bill is designed to allow for that lawful right for the State to intervene where a manifestly inappropriate burial has taken place. Under existing law, the State does not have the power to intervene with the level of depth and comprehensiveness that is set out in this Bill. There is not just the question of excavating and recovering the remains, but the question of that detailed analysis afterwards, leading to a DNA process and leading to reburial at the end. As such, in light of the scale of this intervention, we do use this term “manifestly inappropriate” and that is defined having regard to criteria set out in section 8(1), as follows:

[T]he 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.

These criteria are included in this legislation to ensure sufficient consideration is given to key factors before any intervention can take place at a burial site. They are there for a reason. They are there to recognise the scale of what is proposed within this legislation. As such, I cannot accept this set of amendments.

The Chair said that unless this set of amendments is pressed to a vote, I cannot move amendment No. 77. Is that correct?

If amendments Nos. 7, 17, 39 and 72 to 74, inclusive, are lost, amendment No. 77 cannot be moved because they are contingent. Does the Deputy wish to come back in on this set of amendments?

Amendment put and declared lost.

Amendments Nos, 8, 9, 70 and 71 are related and may be discussed together.

I move amendment No. 8:

In page 11, lines 20 and 21, after “section 48” to insert “or section 75(7)”.

These amendments seek to clarify in the legislation the actions that an adjudicator or the director must undertake following an appeal. Amendment No. 70 provides for circumstances where an appellant dies or becomes incapacitated before an adjudicator has made a decision on an appeal against a finding that the genetic and non-genetic data are not sufficient to suggest a familial link and there is no other relevant person in respect of that deceased person. If such a situation arises, the amendment provides that the adjudicator will inform the appellant’s nominee of the decision and the reasons for it.

Similarly, amendment No. 71 sets out the actions that a director must undertake to give effect to a decision of an adjudicator to overturn a determination that a person is not eligible to participate in an identification programme. The amendment provides that where this does occur, the director must notify the appellant that he or she can participate in the programme. The Bill currently contains no provision for how a director should give effect to an adjudicator's decision in this regard and the amendment sets out and clarifies that process.

Amendment agreed to.

I move amendment No. 9:

In page 11, line 22, to delete “that section” and substitute “section 48”.

Amendment agreed to.
Section 2, as amended, agreed to.
Section 3 agreed to.
SECTION 4
Question proposed: “That section 4 stand part of the Bill.”

I want to flag that I will be bringing an amendment to section 4 on Report Stage 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.

Question put and agreed to.
Sections 5 and 6 agreed to.
SECTION 7

I move amendment No. 10:

In page 14, line 6, to delete “may” and substitute “shall”.

Although this amendment is very simple, it speaks to the foundational issues of the Government's approach to this legislation. It currently states that intervention "may" be established. That is the legislative language to mean "might". It is an option if there is the political will and public pressure. My proposal is that the Bill would instead compel the Government to establish an intervention when the criteria are met. There should be no doubt or ambiguity that this is the standard of transitional justice. I propose the insertion of the word "shall".

It is unbelievable that after all we know about the abuse and neglect in institutions such as Tuam, and other potential sites, that the Bill states the Government might act, not that it should. There is no appreciation of what that type of language says to survivors and relatives. All witnesses called for robust legislation that would ensure timely interventions. Saying "may" instead of "shall" undermines everything they have said. If the Minister is being true to his stated commitment in this area then he should please accept this amendment.

We are bringing forward robust legislation. We have gone through a detailed process. We have strengthened the Bill, listened and made changes along the way to try to strengthen it. Later in this session we will indicate further changes to ensure that this legislation is as robust as possible and that it can create a process to bring some relief and succour to relatives, such as those in Tuam.

This specific amendment proposes that the legislation will direct the Cabinet to do something. It takes away any discretion from the Cabinet. I am not sure if legislation can constrain the decision-making power of the Executive in that way. It basically says that as soon as the Minister brings forward a proposal, the Cabinet must approve it. We cannot have legislation that directs the Cabinet to take a particular decision on an issue, so I am not in a position to accept the amendment.

When speaking about it, the Minister used words such as "ensure", but when it comes to the Bill he will put in "may" and not "shall". It is not reasonable to say that we cannot use that kind of language in the Bill. We often see that kind of language in a Bill regarding anything to do with the Cabinet. It is not unusual to have "shall" rather than "may" in legislation.

While some legislative provisions do have "shall", I am not aware of any where "shall" is used to direct the Cabinet to do something. In terms of this specific recommendation, section 7(1) currently states: "Subject to subsection (2), the Government may, from time to time, having considered a proposal made by a relevant Minister" and Deputy Cairns is saying it should be "shall" rather than "may". She is removing the discretion of the Cabinet in terms of a proposal that is being made. That is the Legislature trying to bind the Executive, another arm of the State. I would have severe questions as to whether that is constitutional in terms of the separation of powers.

I will say a final word on this. We know that a coroner is obliged to act when somebody dies in State care or custody or when remains are found in their district. The Garda is obliged to act when there is a missing person. Nobody has ever acted on these sites. The fact that there now has to be discretion and that the Government might act just adds to how people will feel about the long list of inaction.

This Government has acted, including to bring forward this piece of legislation. It has engaged-----

It might act in some situations where there is manifestly inappropriate burial and someone was ordinarily a resident, but there are so many restrictions. It is a case of limitations on top of limitations, and nobody is obliged to act on anything.

If I could conclude my point, this Government has acted by bringing forward this legislation and making a very clear commitment that it will undertake investigation in Tuam. In this year's budget, it has brought forward a very significant allocation to my Department so we can begin that work. That money is available now. I am not looking to get it in budget 2023. It is available to begin the work as soon as the legislation is passed. That combination demonstrates the determination of this Government and my determination as Minister to make sure we do act on what has happened in Tuam.

Is the amendment being withdrawn or pressed?

It is being pressed.

Amendment put:
The Committee divided: Tá, 4; Níl, 6.

  • Bacik, Ivana.
  • Cairns, Holly.
  • Funchion, Kathleen.
  • Ward, Mark.

Níl

  • Costello, Patrick.
  • Crowe, Cathal.
  • Devlin, Cormac.
  • Dillon, Alan.
  • O'Gorman, Roderic.
  • Phelan, John Paul.
Amendment declared lost.

Amendments Nos. 11, 23, 33, 35, 37 and 76 will be discussed together. If amendments Nos. 11 and 23 are lost, amendment No. 76 cannot be moved.

I move amendment No. 11:

In page 14, line 6, to delete “, from time to time,”.

These amendments relate to the Government's approach to establish a separate director and office to intervene in each site rather than establishing a standing body which has the capacity to examine any known or potential site. This is a key barrier to justice for the deceased. A separate office for each site will obviously create obstacles. It means that survivors, families and campaigners will be forced to advocate for interventions at each and every known or suspected site. It vastly reduces the chances of a site ever being investigated and once again places the responsibility on survivors to seek justice.

Practically, it is also a wasteful and nonsensical approach. A well-resourced office could build up knowledge and expertise in dealing with these highly sensitive matters. It could foster relationships with all stakeholders, especially with survivors, survivor groups, advocates and family members. It would be more effective and reassuring for those affected.

This Bill is designed for the necessary intervention at Tuam and nobody is arguing against that for one second. However, we must also be honest. The only reason the site will be excavated is due to public and international pressure. The then Government and Department resisted calls until the public outcry became too loud. Similarly, that is the only reason we had the Commission of Investigation into Mother and Baby Homes. This Bill is structured to ensure it is highly unlikely that any other site will be examined. It is designed to intervene at Tuam because it has to but what about the other mother and baby homes? What about industrial schools, psychiatric hospitals and other institutions that also have a deeply troubled past? Under the Bill, it is extremely unlikely that any other site will ever be examined despite all we know about the systematic abuse and neglect in those institutions.

I ask the Minister to outline the rationale for not providing a standing office which is empowered to intervene in qualifying sites. Why must a separate office be set up for each site? Does the Minister consider it likely that he will seek intervention at any other site apart from Tuam?

As Deputy Cairns said, these amendments aim to transform what the legislation is seeking to do by setting up an agency for a finite duration to examine a site where manifestly inappropriate burials took place. It is for that reason I cannot accept this set of amendments. The Deputy is right that no one is questioning the need to intervene in Tuam. We know that manifestly inappropriate burials have taken place there and when that was discovered, the Government of the day was advised that bespoke legislation was required to respond to that discovery. While the intervention that will be initiated later this year will take a long period of time, likely years, it is a discrete piece of work and will come to an end once all excavation, recovery, post-recovery analysis and identification have taken place and the remains have either been reinterred or returned to relatives. If no similar manifestly inappropriate burial site has been ascertained at that point, it is difficult to see what the purpose of having a standing agency would be.

Amendment No. 11 would remove the words "from time to time" from section 7. That enables the Government to establish an office of a director of authorised intervention for a specific period and it also enables the Government to establish a new office on each occasion that an intervention is required. The aim of this section is to establish an office of a finite duration, as I say, to intervene at a given burial site associated with an institution where there are manifestly inappropriate burials. One of the reasons we have taken an approach that includes a site-specific agency and a site-specific director is that it ensures the work of that agency is fully geared towards and focused on the excavation at that particular site. It ensures that the advisory board that is set up will include family members or survivors of that specific institution so that survivors and former residents of the institution can influence the actions and work of the agency. I think that represents the best way of responding to the unique situation in Tuam and any such situation that may exist at a future site.

Similarly, amendment No. 23 seeks to remove the phrase "from time to time" from section 7(6). That section enables the Government to amend the functions it has assigned to the director in an area of land. The words "from time to time" are included because of the potential for multiple organisations carrying out multiple interventions over time and the finite duration of each intervention.

Amendments Nos. 33, 35 and 37 are closely related. Amendment No. 33 would prevent the office being established for the initial period required to undertake the intervention at the Tuam site and would prevent the extension of such a period. It would also stop the office being identified with the Tuam burial site. Amendment No. 35 would result in the appointment of a director without any period of appointment being specified. We do not believe that is the right direction to take. We believe that a dedicated agency focused on a particular site is the best way to go and, as such, we cannot accept this set of amendments.

It is like saying we should establish a different coroner's agency for every crime it will investigate or that we should set up a new branch of the Garda every time a crime is committed. Why would we not set up a stand-alone body to deal with every case instead of setting up a new agency each time? It does not make any sense. We would not do it for any other body that is investigating matters such as this. Why do it for this one? The Minister's response further reinforces my opinion that this legislation is only geared towards investigating Tuam and no other known sites. Why would separate bodies be set up every time? That will cost the State more. It will result in survivors having to engage and potentially relive trauma more than once because they will be required to engage with the different bodies every time they are set up. It does not make practical sense. Will the Minister try to explain again why he thinks it is a good idea to set up a different body every time there is an investigation at a site?

Irish legislation makes provision for situations where a similar investigative approach may be needed but where we do not know if it will be needed. For example, tribunals of inquiry legislation enables us to set up tribunals when a specific issue needs to be addressed but it does not create a standing tribunal that is there in case a particular issue needs the process of a tribunal. Similarly, commissions of investigation legislation again allows for a commission to be set up when one is required. That is what we are doing here. We know the site at Tuam requires the establishment of an agency but we do not know if there will be other sites where there have been manifestly inappropriate burials. We have made provision. I understand that the initial legislative proposal from the previous Government was that this would be a once-off, Tuam-only agency. That is not the approach that is being adopted. The approach that is being adopted is to allow for other interventions using the agency and director model set up under this legislation.

If a manifestly inappropriate burial area is found in the future, this legislation provides a mechanism to intervene there. I believe that is the right way to go. It allows us to ensure there will be an intervention in Tuam. It ensures there is a legislative provision that allows us to move swiftly in future if any similar manifestly inappropriate burial area is discovered.

I think the Minister made a really good point about the Government continually setting up tribunals, which is an enormous waste of taxpayers' money. It costs an extortionate amount of money and rarely results in any kind of justice or accountability. Ultimately if we have something like a stand-alone body for corruption, that would probably be more effective. The Minister made a really good point, but he has just reinforced the arguments I made.

I apologise for the confusion, Chairman. I do not understand how, when I do not press one amendment, the other ones fall. Do I need to call a vote on this one to ensure the other ones go through?

It is not a question of whether a vote is called. Once the amendment is pressed, if it is lost at that stage, it will have the same effect as the Deputy calling a vótáil.

It does not make a difference.

Correct.

Amendment put and declared lost.

Amendments Nos. 12, 24, 34 and 36 are related and will be discussed together.

I move amendment No. 12:

In page 14, lines 7 and 8, to delete “with the consent of the Minister for Public Expenditure and Reform”.

The specific inclusion in multiple sections that an intervention is only possible with consent of the Minister for Public Expenditure and Reform is a clear and disgraceful indication of the priorities with this legislation. It shows that financial issues are given consideration equal to if not greater than justice issues. This feature contradicts the committee's recommendation that there should be no attempt to avoid action at sites for financial reasons. Cost or economic impact should not be a basis not to intervene. Human rights and transitional justice standards require the interventions should take place when the criteria are met, not if a Minister is prepared to fund it. This Bill appears to be about money and not justice.

Any intervention at a site must legally get the consent of the Minister for Public Expenditure and Reform and as I said during the debate on Second Stage, this hurdle is deeply troubling given what we have discovered about that Department's position on the mother and baby homes redress scheme. Officials in the Department were central to the requirement for individuals to have spent at least six months as a child in a mother and baby home and for the highly insulting €5,000 redress for survivors. The Department has already made clear that money is its main concern, not justice. It also delayed the progress of the scheme. This Department will now be given a veto on intervention at every site.

Transitional justice and an obligation for truth are clearly not priorities for the Department. Survivors and campaigners have been scared enough through interactions with the Department of Children, Equality, Disability, Integration and Youth and other Departments and bodies. Now they will also be required to jump through hoops with the Department of Public Expenditure and Reform. The veto of the Minister for Public Expenditure and Reform must be removed.

In this year's budgetary allocation, my Department has already been given €4 million to begin the work on the creation and resourcing of the agency to commence the work in Tuam. Once this legislation is passed, we can rapidly move to establishing the agency. I know that family members and those in Tuam particularly welcome that.

Every Minister who wants to do anything under any legislation requires funding. Funding requires engagement with the Department of Public Expenditure and Reform. That is a reality for all Ministers. Virtually every piece of legislation with a funding requirement requires engagement with the Minister for Public Expenditure and Reform and his Department. This is a phrase used across legislation, recognising that no Department funds itself; we are funded through the Department of Public Expenditure and Reform. This phrase does nothing more than reflect the reality of a budgetary process whereby all financial decisions I seek to make are initiated with the Department of Public Expenditure and Reform through the Estimates process. It is nothing more than that.

Amendment put and declared lost.

Amendments Nos. 13 and 27 are related and will be discussed together.

I move amendment No. 13:

In page 14, to delete lines 17 and 18.

This amendment seeks to address the restriction of limiting an intervention to a specific area rather than empowering the director to intervene in any location as the evidence presents itself. Currently when establishing the office, the director will be given a particular location to work within, with the provision that the Minister may adjust this. However, at each stage there are multiple criteria and restrictions. Instead of this complicated process, why not ensure the director operates according to agreed protocols instead of having the geographical range of their work limited by legislation?

We are giving very significant powers to the director and the agency. It is appropriate and necessary that where they may use those powers is delineated by a map to be brought forward in the initial proposal. That map can be changed. As the Deputy indicated, if attention is brought to a site extending further, the director may inform the Minister and the map may be changed by a subsequent decision of Government. The initial map is not an absolute barrier to further work taking place. Considering the very significant powers the director has, there must be some sense of where the director is or is not entitled to exercise these significant powers.

Amendment put and declared lost.

I move amendment No. 14:

In page 14, line 28, to delete “ordinarily”.

Amendment put and declared lost.

I move amendment No. 15:

In page 14, line 28, to delete “and” and substitute “or”.

Amendment put and declared lost.

I move amendment No. 16:

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”.

Amendment put and declared lost.

I move amendment No. 17:

In page 14, line 29, to delete “manifestly”.

Amendment put and declared lost.

I move amendment No. 18:

In page 14, to delete lines 31 to 33.

This amendment concerns the restriction based on proximity to a residence or the property around a residence. Is the Minister saying that intervention in one site can occur in one area because it is 21 m from a residence, but justice would be denied to people on another site because it is 19 m from a residence? Is that what we are looking at?

As Deputy Cairns is aware, in the original heads of the Bill that were discussed during the pre-legislative scrutiny, PLS, process, there was a provision that stated if there is a private residence on the land on which a proposed intervention is to take place, the intervention could not take place. We discussed the impact digging up and excavating the site would have on the owner of the private residence. Following on from the PLS process, that provision was removed, and it was stated that if a private residence is on the land on which an intervention is to take place, the intervention can take place up to 20 m from the curtilage of the residence. At some point there is a balance between how close we get in terms of these very significant interventions to the private residence of an individual who has been in no way responsible for what has happened on the site or for the deaths and manifestly inappropriate burials that have taken place. I recognise that 20 m is still a considerable distance from the private residence, so we will take the amendment away and discuss it with the drafter again and look at bringing a piece forward that can seek to reconcile the strong desire to ensure that where a site has been identified there are not overly onerous restrictions on the parts of the site that can be excavated, but also recognising that the interventions are significant on someone's residence. We will bring an amendment forward on Report Stage.

That would be very much appreciated. I do not know how to explain it with respectful language, but it is profoundly insulting to people that somebody's property rights would be considered above the right to find out the fate of a disappeared relative or lost child. That it is being considered in this legislation just shows us how differently these kinds of deaths are treated by society and the Government compared to other suspicious or unlawful deaths. If someone's remains were found, in the event of a suspicious or unlawful death near anybody's property, consideration would not be given to the property owner by the police, a coroner or anybody. That is the reality. The fact that these remains are seen so differently is profoundly insulting and unfair. It just shows the difference in how the Government and the Department views these suspicious or unlawful deaths versus other ones.

How stands the amendment? Is it being withdrawn or pressed?

It is being pressed.

Amendment put and declared lost.

Amendments Nos. 19, 31 and 32 are related and may be discussed together. Is that agreed? Agreed. Amendment No. 32 is a physical alternative to amendment No. 31.

I move amendment No. 19:

In page 14, to delete lines 34 to 36.

The amendment covers similar issues to those addressed by amendment No. 18. The amendment refers to subsections concerning what is called "general public interest", which in this Bill is a euphemism for a list of further restrictions. It restricts interventions based on several broad and ill-defined grounds including "public health", the potential impacts on "archaeological features" and, most worryingly, "the social and economic interests of the State". The State, not society or the survivors.

I cannot articulate how wrong, insulting and concerning these restrictions are. Again, I return to the insistence of witnesses that interventions are based on internationally defined criteria, not ambiguous and restricted approaches. The committee's pre-legislative scrutiny recommended the removal of barriers, yet the Minister has included a list of limitations to be deployed to block any intervention. An intervention could be refused because of potential cost or depending on the budget situation in any given year. This is ambiguous and is a relational standard that is not in compliance with human rights standards and transitional justice and has no place in law.

The history of injustice surrounding this issue, the refusal of State bodies to engage with survivors and give them basic information or recognise their rights at all combine to indicate that these criteria can and will be used to refuse interventions. This is also another case of the Minister ignoring the committee's recommendation that there should be no attempt to avoid action at sites for financial reasons. The cost and economic impact should not be a basis for not intervening.

We must be clear that any of these interventions are potentially not in the economic interests of the State. They could all lead to liability and potential court actions. At all stages, Departments and State bodies act to limit that possibility, and we have here a perfect example of that. The inclusion of public health is another ambiguous criterion. It is an ironic one given our chronic underinvestment in that area. Similarly, archaeological features, which are regularly paved over for infrastructural projects, are being elevated in significance to potentially prevent the examination of sites.

My amendment seeks to remove all of these restrictions, except for the requirement to respect the views of 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.

This amendment seeks to expand the remit in which a director can make an intervention at a burial site. The existing section 3 places unnecessary restrictions on the director and could preclude an effective excavation of specific sites. This provision could foreseeably impact on the potential dig in Tuam and have the result that some but not all of the site is excavated and some but not all of the remains are recovered and identified.

In making a decision to intervene in any site, the Government must balance the need to undertake the intervention, recognising the manifest inappropriateness of a particular set of burials, with the need to respect the long-standing tradition of the sanctity of burials, which is something we have discussed previously. As we know, the excavation and recovery of human remains is a very significant act. It is complex and that is why we have this very complex piece of legislation. The desire and need for that must be balanced with the manifest inappropriateness of the particular areas. The legislation therefore sets out a number of factors the Government should take into account in determining if an intervention is proportionate. That includes the need to accord dignity to the persons who are buried at the particular site; the need to respect the views of the relatives of the persons buried on the piece of land; public health issues; and alternative options, if any is available.

Safeguarding the public interest is an important concept that needs to be present within legislation. In the context of this legislation, which is significantly impacting on constitutional rights, it is important that the legislation itself sets out a very clear legal basis grounded in the public interest for the impact that it has on constitutional rights. Looking at the factors that are listed here, that will be deleted, it is safe to assume that no one would question the importance of according dignity to the persons buried on the particular site, but public health is an important aspect of intervention and that is one of the reasons why issues around the exhumation of remains are so tightly circumscribed in law already. We cannot disregard the impact on the wider public.

I know we all agree with the need to respect the views of relatives of persons buried on the land. I have met with relatives of families connected to various mother and baby homes and there are strongly differing views in terms of the need to intervene in other sites and in particular on the need to exhume remains on other sites.

Everyone recognises the uniqueness of the Tuam site and the need to intervene there. That is why it is so important that the legislation is not site-specific. It will allow for intervention at Tuam but it also sets out criteria that would be considered in terms of potential interventions at other sites.

These amendments remove the important concept of safeguarding the objectives of public interest and the various factors that underpin it, with the exception of one factor. This would weaken the protection of constitutional rights of which the legislation must take account. For that reason, I cannot accept the amendments.

Amendment put and declared lost.

I move amendment No. 20:

In page 15, lines 9 to 18, to delete line 9 down to and including "1922," on line 18.

This amendment seeks to remove the restrictions in subsection 7(4), which are ambiguous and constraining. First, an intervention will not be permitted if any of the area concerned is a legitimate burial ground or if an excavation would disturb appropriately buried human remains. We had extensive discussions in this committee on the sensitivities around excavations and the potential impact on proper burials. These are nuanced issues that should be overseen by experts who can respectfully understand and respond to each case as it arises. Instead, the Minister is proposing a blanket ban that ignores those nuances. Second, the Bill prevents the removal of human remains where it is unreasonably difficult to do so. What does that mean and who will decide whether it is the case? Third, the subsection also disallows interventions if the last known burial at the site was before 1922. Even if there is a suspected burial at such a site, it may be disregarded.

These are very sensitive and complex issues that we, rightly, spent considerable time poring over. They are better dealt with by experts in context rather than through broad legislative restrictions.

I will seek to deal with the three elements laid out by the Deputy. I would argue there is a strong rationale for excluding official burial grounds and retaining the time period applicable in the legislation. It is important to ensure appropriately buried human remains are not disturbed unnecessarily. In addition, we need to take into account health and safety considerations. Section 44 of the Local Government (Sanitary Services) Act 1948 specifies where burials can appropriately take place. Where this legislation applies, there is an existing provision for an exhumation licence to be issued by the relevant Minister for a body or bodies in that location. An intervention under this Bill would, therefore, not be warranted if the provisions of the 1948 Act are applicable to the burial ground in question.

In response to the pre-legislative scrutiny process, which raised concern about the 70-year restriction that was contained in the original heads of Bill, the legislation now encompasses burials dating from the foundation of the State. We identified the date of 1922 to align with the investigation period within which the commission was investigation was operating. Removing any time restriction would create significant challenges that would expand the scope of the legislation significantly and could result in investigations of institutions that were operating in the 19th century or even earlier. It would be extremely difficult to assess burials that took place such a long time ago. It would also be very difficult and probably very unlikely that we would be able to bring together family members around whom to base an identification campaign, as provided for in the legislation. It is reasonable not to disturb remains that were buried appropriately unless there is a very clear rationale for doing so. The 1948 Act makes provision for specific circumstances in which there can be an intervention in inappropriate burials.

Another issue is that there may be situations - again, this is a potential scenario - where an excavation is unsafe for individuals to undertake. The health and safety of those undertaking the investigation must be considered. This probably would only arise in extreme situations. Even in terms of the excavation that will take place in Tuam, there is a range of actions that will have to be taken, for example, to ensure the very large wall that is right beside the chamber remains safe. Those actions will be taken to ensure the investigation can take place. However, there may be circumstances in which an excavation could not take place without endangering the health and safety of individuals. This would be in extreme circumstances but the legislation must at least make provision for such a situation.

Amendment put and declared lost.

Amendments Nos. 21 and 22 are related and will be discussed together. Amendment No. 22 is an alternative to amendment No. 21.

I move amendment No. 21:

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.".

Memorialisation in the absence of exhumation and identification of remains is maladaptive with justice ideals. 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:

In order to memorialise, it is essential to know what and whom are being acknowledged. Further investigation on behalf of Government would be required in order to memorialise effectively.

In the absence of specifying what the substantive reasons are for not engaging an intervention, it is impossible for this provision to be a proportionate engagement with the rights and preferences of victim-survivors, including former residents of institutions and their families. Ireland's international obligations under the relevant EU and UN conventions should be checked because this memorialisation measure, in lieu of proper investigations, as suggested, would appear to allow any Government literally to bury the truth in order to avoid international embarrassment.

This section is in place to recognise that there may be circumstances in which, irrespective of the manifestly appropriate nature of a burial, the relatives of those buried at the site may feel, for whatever reason, that an intervention involving the excavation of remains is not necessary. As I have said, excluding the Tuam site, there are differing views on the appropriateness of interventions. This issue was discussed during the pre-legislative scrutiny process. Contrary to what Deputy Ward suggested, this provision is not a route to avoiding an intervention taking place. The term "substantive reasons" has been added to the legislation to make it clear that any Government that seeks not to undertake an investigation on a site that was identified as being manifestly inappropriate would need to bring forward substantive reasons for its decision to undertake memorialisation rather than intervention. I do not think reference just to technical difficulties or anything like that would be sufficient to justify the requirement of substantive reasons.

The provision has been changed to include the additional requirement of substantive reasons. It provides the Government with a capacity to recognise that even if manifestly inappropriately buried remains are discovered at a site, there may be a view among relatives that the scale of intervention this legislation can permit is not desired in that particular situation.

The Minister mentions a view among relatives around preferring memorialisation. There is not 100% agreement between relatives as to what happens in such a case.

That is when the Government or the Minister of the day would have to engage with relatives, ascertain views and seek to make its decision and justify its substantive reasons. My sense is that if there was a strong view among a significant proportion of relatives that there was a need for intervention, it would it be difficult not to do that. Again, we are talking in the abstract here, but if there is a situation where there is near unanimity among relatives that they do not want this site touched, and they have their view on the importance of leaving remains untouched, the legislation has to allow for that situation as well.

Amendment put and declared lost.

I move amendment No. 22:

In page 15, to delete lines 24 to 27.

Amendment put and declared lost.

I move amendment No. 23:

In page 15, line 28, to delete “from time to time”.

Amendment put and declared lost.

I move amendment No. 24:

In page 15, lines 29 and 30, to delete “with the consent of the Minister for Public Expenditure and Reform”.

Amendment put and declared lost.

Amendments Nos. 25 and 26 are related and may be discussed together.

I move amendment No. 25:

In page 15, to delete lines 33 and 34.

With regard to both amendments, there is no need to restrict the functions of the director. It seems unnecessary and could foreseeably impact on effective investigation and potential digs at sites. We strongly oppose that the Government would be given this unilateral power through legislation. The director should report to the Government the issue of such sites but any decisions not to proceed with the excavation of the suspiciously buried remains should at least lie with the coroner, the families of the unidentified individuals and the advisory group, where the views of the wider survivor community would also be taken into account.

This amendment proposes to delete the power of the relevant Minister to alter the functions of the director and any such alteration would require agreement from the Government. I make it clear that the purpose of the existing provision is not to prevent the director from undertaking certain activity. Any such proposal that the Government would have to alter the scope of the director's role would be based on information provided by the director and that must be taken into account by the relevant Minister. The provision allows for adapting the work of the office in line with the request of the director. This in turn reflects the reality that, at the start of any intervention, there is probably often going to be a high degree of uncertainty in regard to what the office or the director are going to encounter at the site. We have an idea of what is happening in Tuam because there has already been an intervention but at other sites, we might not have that degree of certainty.

By removing these provisions, the director may be legally required to perform a function that, in reality, cannot be implemented. For example, if the initial order gave the director the power and the duty to undertake a DNA sampling process but, let us say, no relative came forward to provide DNA, in that situation the director has a legal duty to undertake a role that he or she cannot undertake. In that situation, it would be legitimate to give the Government the right to say the director should continue with the excavation and recovery, but that the director does not have to undertake that part of it and does not have that duty any more because he or she is not in a position to do so. It is just to give a degree of flexibility in terms of the unknowns a director and an agency will face.

Amendment put and declared lost.

I move amendment No. 26:

In page 15, to delete lines 35 and 36.

Amendment put and declared lost.

I move amendment No. 27:

In page 15, to delete lines 39 and 40.

Amendment put and declared lost.
Section 7 agreed to.
SECTION 8

Amendments Nos. 28 and 29 are related and may be discussed together.

I move amendment No. 28:

In page 16, line 7, to delete “, at the time of such burial,”.

On amendment No. 28, there is no principled reason to specify that the contemporary burial practices from the 1940s and 1950s, and-or earlier or later, should apply to any potential burial lands. Public awareness and perception of common decency and dignified burial have evolved and matured in the intervening years. These burials should be viewed as being in compliance with burial requirements now. It was common practice that babies were buried with others who were not known to them and this is something that would be unacceptable now. Children who died in childbirth and without baptism were also not considered in the same way as baptised children would be.

The position on amendment No. 29 is similar. Any consideration of burial grounds and their contents should be considered to be in compliance with contemporary practices.

My concern with these two amendments from Deputy Ward is that they would interfere with the definitions that are necessary to aid the clear interpretation of the criteria that define “manifestly inappropriate burials”. In regard to amendment No. 28, that would remove the phrase “at the time of such burial” from subsection 8(1)(b) and would, therefore, undermine one of the criteria used to assess whether there was a manifestly inappropriate burial at a burial site. It is important that the assessment of burials relates to the time that 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 which were not applicable or perhaps did not exist at the time of such burials. Of course, the burial ground regulations have also changed since 1922, which is the start of the period from which the legislation is applicable.

I will also not be able to accept amendment No. 29, which would, on page 16, delete all words from and including “and” in line 12 down to and including “place” on line 13 from subsection 8(1)(d). One of the criteria that the Government must try to assess before we decide if a burial site associated with an institution has "manifestly inappropriate burials" is whether most people at the time of the burial would have found the burial site at a site like Tuam acceptable. Without the phrase, "would reasonably have been so considered at the time the burials took place", it is a lot more difficult to interpret what “repugnant to common decency” means and there is a risk of incorrectly applying present-day customs or values.

We cannot undermine the rigour of the legislation by reducing clarity on these important and sensitive criteria. As such, I am not in a position to accept these two amendments.

Amendment put and declared lost.

I move amendment No. 29:

In page 16, lines 12 and 13, to delete all words from and including “and” in line 12 down to and including “place” on line 13.

Amendment put and declared lost.

I move amendment No. 30:

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 purpose of this amendment is to expand the list of people who can provide evidence that the director will be obliged to take into consideration. The bar to be met to corroborate evidence is high and may, in some circumstances, rule out pertinent local knowledge and-or evidence.

I looked at this amendment earlier. Section 8(2) of the Bill states:

For the purposes of subsection (1), regard shall be had to available evidence including—

(a) any expert technical reports or other reliable information in respect of the condition, location and age of the burials concerned, and

(b) any reliable and corroborated statement made by a person with knowledge of the circumstances and location of the burials concerned.

Deputy Ward's amendment proposes to insert the words, "any reliable evidence from a third party with knowledge of the circumstances and location of the burials concerned.” I believe section 8(2)(a) and section 8(2)(b) are not exclusive. They are two examples of types of evidence that can be used because the subsection clearly states "regard shall be had to available evidence including" both. It is not necessary to bring in the Deputy's particular provision. It is already encompassed in the type of evidence that section 8(2) allows.

Amendment put and declared lost.

I move amendment No. 31:

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.”.

Amendment put and declared lost.

I move amendment No. 32:

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.”.

Amendment put and declared lost.
Section 8 agreed to.
SECTION 9

I move amendment No. 33:

In page 16, in line 38, to delete “and the order shall specify—”and in page 17 to delete lines 1 to 11.

Amendment put and declared lost.

I move amendment No. 34:

In page 17, lines 17 and 18, to delete “, with the consent of the Minister for Public Expenditure and Reform,”.

Amendment put and declared lost.

I move amendment No. 35:

In page 17, lines 18 and 19, to delete “for such period not exceeding the initial person”.

Amendment put and declared lost.

I move amendment No. 36:

In page 17, lines 21 and 22, to delete “with the consent of the Minister for Public Expenditure and Reform”.

Amendment put and declared lost.

I move amendment No. 37:

In page 17, to delete lines 23 to 26.

Amendment, by leave, withdrawn.
Section 9 agreed to.
SECTION 10

I move amendment No. 38:

In page 18, between lines 15 and 16, to insert the following:

“(ii) arrange for the forensic excavation and recovery of human remains where death may have occurred in a violent or unnatural manner, or suddenly and from unknown causes,”.

Amendment put and declared lost.

I move amendment No. 39:

In page 18, line 17, to delete “manifestly”.

Amendment put and declared lost.

Amendments Nos. 40, 41 and 79 are related and may be discussed together. If amendment No. 40 is lost, amendment No. 79 cannot be moved.

I move amendment No. 40:

In page 18, between lines 24 and 25, to insert the following:

“(vi) to ensure that the circumstances and causes of death are considered in the Post Recovery Analysis and that these are noted in the Director’s report to Government;”.

Amendments Nos. 40 and 41 relate to the director's obligation to report to the Garda and the coroner evidence gathered from post-recovery analysis of people who appear to have died in violent or unnatural circumstances. We believe this should be included in the director's functions. Amendment No. 79 provides for this vital step in the investigation of burials to be added to the preamble to the Bill. Lines 10 and 11 of section 36(2) currently include the director's obligations to report to the Garda and the coroner evidence gathered form the post-recovery analysis of people who appear to have died in violent or unnatural circumstances. It should, therefore, also be referenced in the preamble.

I cannot accept these amendments in their current form but I understand and welcome the intention behind them. I am particularly supportive of the spirit of amendment No. 40 and I am willing to consider a revision to section 10(b)(iii) to explicitly refer to identifying the circumstances and cause of death, where that is possible. I will also look at whether the description of the post-recovery analysis report in section 36 could make more explicit reference to any evidence of violent or unnatural death that should be shared with An Garda Síochána and the coroner. I can also look at whether changes can be made to the Long Title. I will have to engage with the Attorney General's office and the Office of the Parliamentary Counsel, but we will examine the points the Deputy brought forward.

I thank the Minister for that response.

Amendment put and declared lost.

I move amendment No. 41:

In page 18, between lines 24 and 25, to insert the following:

“(vi) to report without delay to a member of An Garda Síochána and the Coroner, any evidence of violent, unnatural or suspicious deaths, discovered during the Post Recovery Analysis and that these reports are noted in the Director’s Report to Government;”.

Amendment put and declared lost.
Section 10 agreed to.
Sections 11 to 13, inclusive, agreed to.
SECTION 14

Amendments Nos. 42 and 43 are related and may be discussed together.

I move amendment No. 42:

In page 22, line 4, after “chairperson” to insert “with expertise in transitional justice”.

This amendment adds a requirement that the chairperson have expertise in transitional justice. A person with knowledge of transitional justice should be placed to chair the board and deal with the complexities that arise. Given the general lack of reference to transitional justice in the Bill, this would be a minor measure to help address that deficiency.

Amendment No. 43 seeks to remove the requirement for a member of staff of the relevant local authority to be on the board. This is an extraordinarily insensitive requirement. In many cases, including that of Tuam, local authorities were involved in the running of these institutions. The Bill provides for these bodies to now have a role on the advisory board. It is especially inconsiderate that a former resident of an institution will be forced to work with a representative of a body involved in his or her incarceration and possible abuse. The same goes for the relative of a person buried on a site.

Amendment No. 50 is not mine but I welcome it because it reflects the committee's discussions of, and recommendation for, the inclusion of a multidisciplinary approach to ensure excavations and recoveries are dealt with in line with best practice.

We are not on amendment No. 50 yet.

Sorry, I thought they were being discussed together.

The Deputy cannot wait to speak on that.

Will the Minister respond regarding amendments Nos. 42 and 43?

As the Deputy knows, the idea of the advisory board was introduced following the pre-legislative scrutiny process to ensure a wider degree of views would feed into the operation of the director and the agency. It was introduced in particular to ensure expertise not directly commissioned or hired by the agency and independent of it would be able to exert influence on decisions on the undertaking of the DNA identification programme, for example. It would also ensure the views of relatives would have a direct means of influencing the determinations of the agency. It is something my Department and I brought forward.

We would have this chaired by someone with coronial expertise, again recognising the importance of having the work being done here in a way that is fully compliant with coronial practice. We removed the restriction relating to the jurisdiction of the coroner within the legislation but this was a further element to ensure coronial practice would be well reflected in the legislation.

My concern with the proposal from Deputy Cairns is about having a chair that has both coronial expertise and experience of transitional justice, which is quite a specific discipline. It would narrow incredibly the scope of people who could potentially be a chair. I do not even know if we could be guaranteed to have somebody with both elements of expertise. That is my concern and why I do not feel I can accept the provision.

There is also the question of having a representative of the local authority. It is important that there be a mechanism whereby the work done by an agency can operate in a wider context of the performance of services in that area. For example, a local authority would clearly relinquish any role related to burials under the 1948 legislation. It is important that a wider sense of the locality be reflected in the actions of the agency. That is reflected to the director and the agency through the advisory board and although it is only one position within the advisory board, it is important that it is reflected. It is one position among a wider group of people on the advisory board.

I welcome the removal of the restriction on the coroner and I acknowledge the work of the Minister in that regard. I understand what he means on the need for the chair to have coronial expertise. I wonder if we could consider another criterion so another member of the board could have expertise in transitional justice instead of the chair.

I recognise why the local authority element is included. Given the reality of what I have explained, with local authorities playing a role in the experience of many people who suffered abuse and all of that, often in county homes, perhaps we could look at having somebody separate from the local authority liaising with them in regard to the board. That would at least give acknowledgement to the fact that abuse that many people experienced was very much facilitated by a local authority.

I take the Deputy's point about the local authority role. We have seen some local authorities make apologies and I would like to see more make apologies.

I hope we will see that. It is difficult. The Deputy and I have served in local authorities and all those I worked with - and I assume the Deputy's experience is the same - were by and large good people who could in no way be associated with some of the practices done in the name of local authorities by agencies. At the same time, there is the link that the Deputy points to. It is one of the cases where we must try to balance what happened in the past with the realities of our current structures. It is difficult.

Of course, everyone in a local authority now would have had nothing to do with these actions. Ultimately, however, it was not that long ago and it is quite likely that staff could still be in place who were there when these institutions were still open. The last one closed in the early 1990s. It is very likely there still could be an overlap of staff and it is something we must consider.

There was a part of the report of the Commission of Investigation into Mother and Baby Homes that I remember which detailed a county manager going into one of the county homes and deciding who was going to the Magdalen laundry from the mother and baby home. The involvement of some of the local authorities in the running of those institutions and making those kinds of decisions was more than one might imagine. We need to acknowledge that the events were not that long ago, even in consideration of whether the local authority should be consulted on matters. It is worth looking into the possibility that there would be somebody to liaise between the two parties. It would be only fair given the reality and these events were not that long ago.

I cannot commit to changing this but we can have a look at it. I am not sure how exactly we could ensure that element of connection with the local mechanisms could be reflected on the body. We will consider it further and the Deputy may also bring forward an amendment on Report Stage if she feels it is necessary.

Amendment put and declared lost.

I move amendment No. 43:

In page 22, to delete lines 6 and 7.

Amendment put and declared lost.
Section 14 agreed to.
Sections 15 to 26, inclusive, agreed to.
SECTION 27

Amendments Nos. 44 to 48, inclusive, are related and will be discussed together.

I move amendment No. 44:

In page 30, between lines 25 and 26, to insert the following:

"(b) a religious order of the Roman Catholic Church,".

These amendments seek to ensure the Church of Ireland and the Roman Catholic Church are included as information sources, given the central role they played in the mother and baby homes. Amendment No. 48 further seeks to include any possible person involved with the removal of remains, reburial, burial or any such other duties. As a great many of the records required by the director are held by religious orders operating as charities within and outside the State, this amendment seeks to expand the categories in which the various data controllers of churches, charities, benevolent groups, etc., fall.

I will speak to amendments Nos. 44 to 48, inclusive, together. As Deputy Ward states, the proposal is to more broadly define the definition of "information source". We are confident the provisions under section 27(5)(c) already include the bodies listed by Deputy Ward as potential sources of information.

Under section 27(4), the Minister also has power to designate a person as an information source if the Minister considers that he or she may have documents. The legislation already provides for the inclusion of the bodies listed in this set of amendments. However, we are happy to consider a more explicit approach to listing additional bodies, such as religious institutions, in the definition of information sources. In respect of these five amendments, we will ask the draftsperson to come back and see if we can get something more explicit. Hopefully, that will satisfy the Deputy.

Amendment put and declared lost.

I move amendment No. 45:

In page 30, between lines 25 and 26, to insert the following:

"(b) a religious order of the Church of Ireland,".

Amendment put and declared lost.

I move amendment No. 46:

In page 30, between lines 25 and 26, to insert the following:

"(b) a diocese or parish of the Roman Catholic Church,".

Amendment put and declared lost.

I move amendment No. 47:

In page 30, between lines 25 and 26, to insert the following:

"(b) a diocese or parish of the Church of Ireland,".

Amendment put and declared lost.

I move amendment No. 48:

In page 30, between lines 25 and 26, to insert the following:

"(b) any person or organisation involved in the administration or management of concerned institutions, or performed any work paid or unpaid on behalf of concerned institutions,”.

Amendment put and declared lost.
Section 27 agreed to.
Section 28 agreed to.
SECTION 29

I move amendment No. 49:

In page 31, line 25, after "Agency" to insert "and Adoption Authority of Ireland".

The Adoption Authority of Ireland also holds significant records and should be included in the remit of this Bill, along with Tusla.

I hope I can provide some clarification here. Section 29 solely relates to the archive of the Commission of Investigation into Mother and Baby Homes. As the Deputy will be aware, in the database legislation from 2020, we preserved that archive and ensured it was not deleted. We also sent a copy of it to Tusla and that archive copy resides with Tusla only, not the Adoption Authority of Ireland. As this section only refers to information contained in the archive, there is no need to make reference to the AAI, which does not have a copy of the archive. Tusla has the copy. For information in respect of other parts, the AAI is also referenced.

Amendment, by leave, withdrawn.
Section 29 agreed to.
Sections 30 to 34, inclusive, agreed to.
SECTION 35

Amendments Nos. 50 and 51 are related and will be discussed together.

I move amendment No. 50:

In page 34, line 11, to delete "person and shall require the person" and substitute "persons, across a range of appropriate disciplines and shall require such persons to".

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 will be essential in the analysis of the human remains and, in co-ordination with forensic geneticists, in re-associating the human remains recovered. The absence of a clear statement of their role in the process risks having unqualified and inexperienced professionals carrying out this work. Working with commingled remains is highly complex and will require experts with sufficient experience to carry out the work.

In relation to amendment No. 51, it is important that any excavation, recovery and post-recovery analysis of young remains is in line with the Coroners Act.

I cannot accept these two amendments. Deputy Ward is absolutely right as regards the complexity of the work that will have to take place for the recovery of these remains. Following on from the pre-legislative scrutiny process where this issue was flagged extensively with us, the provision in the general scheme was significantly revised to ensure that appropriately qualified persons deliver excavation and post-recovery analysis in line with international standards and according to professional rules and guidelines.

It is clear that the work needs input from a range of disciplines and only a multidisciplinary approach can meet the international standards and deliver the required work. The Government has made a commitment to a multidisciplinary approach. I reassure the Deputies that in my mind that is the only way we can achieve what is required, particularly in the Tuam site.

The Coroners Act does not regulate investigation. For this reason, it is unclear to me why investigation and post-recovery analysis under this legislation needs to be implemented in accordance with the Coroners Act. Of course, it is critical that if evidence of violence and unnatural death emerges, the coroner is notified and that is permitted under this legislation but I also highlight the definition at the start of the Bill, which specifies that forensic investigation and recovery means excavation and recovery "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". Therefore, the legislation commits to applying forensic standards so that any evidence gathered through the process can be used in proceedings, including criminal ones. This places a clear obligation on the director when arranging for excavation and recovery of remains under section 35.

These proposals do not strengthen the Bill but weaken it and slightly confuse the range of roles.

Amendment put and declared lost.

I move amendment No. 51:

In page 34, between lines 13 and 14, to insert the following:

"(b) in accordance with the Coroners Act 1962,".

Amendment put and declared lost.
Section 35 agreed to.
SECTION 36

I move amendment No. 52:

In page 35, line 8, after "violent" to insert "accidental, homicide, undetermined or suspicious deaths".

Amendment put and declared lost.
Section 36 agreed to.
Sections 37 and 38 agreed to.
SECTION 39

I move amendment No. 53:

In page 37, line 2, to delete "A Director may resume relevant works on the land concerned" and substitute "A Director may resume relevant works on principal burial land or ancillary burial land, or both, as the case may be, after a suspension of such works under section 36 or 37".

This is a technical amendment that aims to ensure the section is interpreted as intended.

Amendment agreed to.
Section 39, as amended, agreed to.
Sections 40 to 42, inclusive, agreed to.
SECTION 43

Amendment No. 54 cannot be moved as the proposers of the amendment are not here.

Amendment No. 54 not moved.
Section 43 agreed to.
Sections 44 and 45 agreed to.
SECTION 46

I move amendment No. 55:

In page 42, line 35, to delete "A Director may," and substitute "Where human remains of more than one person have been recovered, a Director may,".

This is another minor technical amendment. It aims to support the correct interpretation of the section regarding directing the taking of samples from human remains. It is unlikely that remains of only one person will be recovered. However, if this was to be the case, a director would not have to direct taking samples from a proportion of human remains.

Amendment agreed to.

As Deputy Ward is not present, amendment No. 56 cannot be moved.

Amendment No. 56 not moved.
Section 46, as amended, agreed to.
Section 47 agreed to.
SECTION 48

I move amendment No. 57:

In page 44, line 34, to delete “on the land” and substitute “in the land”.

This is a minor amendment to correct a grammatical error.

Amendment agreed to.
Section 48, as amended, agreed to.
Section 49 agreed to.
SECTION 50

Amendments Nos. 58 to 60, inclusive, are related and will be discussed together.

I move amendment No. 58:

In page 47, line 2, to delete “and”.

I will discuss amendments Nos. 58 to 60, inclusive, together. While the Bill provides for an appeal to an adjudicator against the finding that on the balance of probabilities the genetic and non-genetic data available are not sufficient to suggest a familial link, there is currently no provision that requires a director to inform a person that he or she may appeal this finding. These amendments provide that a director is required to inform a person of his or her right to appeal when issuing such a finding.

Amendment agreed to.

I move amendment No. 59:

In page 47, line 15, to delete “recovered.” and substitute “recovered, and”.

Amendment agreed to.

I move amendment No. 60:

In page 47, between lines 15 and 16, to insert the following:

“(iii) that he or she may appeal the finding in subparagraph (i) in accordance with section 75.”.

Amendment agreed to.

I move amendment No. 61:

In page 47, line 25, after “certificates” to insert “, baptismal certificates and records; vaccine records and death notifications,”.

The amendment proposes to insert after the word “certificates” the words “baptismal certificates and records; vaccine records and death notifications.” It is important that all possible records are sourced and used in the identification process because many county council records include death notifications where an operator of an institution was legally obligated to notify the funder of a death within the institution within 24 hours of its occurrence.

The intention has always been to facilitate the use of different types of documentation in the context of the identification programme. The definition of relevant information in the Bill is relatively brief in providing examples, but it is open-ended and facilitates consideration of various types of documents that may support the identification of a deceased person. This can be seen in Part 3, which provides for the director to obtain documents, or in earlier sections of Part 4, which underpin the submission of documents by relatives. I appreciate the intent behind the proposed the amendments and I am aware of the importance of documents other than death and birth certificates in this regard. I will, therefore, commit to examining how the definition of relevant information may be expanded and I will look to bring forward an amendment on Report Stage.

Amendment, by leave, withdrawn.
Section 50, as amended, agreed to.
Sections 51 to 56, inclusive, agreed to.
SECTION 57

Amendment No. 62 cannot be moved because the proposers are not present.

Amendment No. 62 not moved.
Section 57 agreed to.
Sections 58 and 59 agreed to.
SECTION 60

Amendments Nos. 63 to 69, inclusive, are related and will be discussed together.

I move amendment No. 63:

In page 52, line 19, after “comparison” to insert “under this Act”.

I will discuss amendments Nos. 63 to 69, inclusive, together. These amendments are minor and they seek to provide clarification or ensure consistency within the Bill. Amendment No. 63 ensures that it is clearly stated that the samples and profiles taken from relevant persons are only used for the purposes of this Bill. This in line with advice from the Data Protection Commission, DPC.

Amendment No. 64 seeks to clarify that consent is not sought collectively from staff of FSI and persons who took a sample pursuant to administrative arrangements. Essentially, it is proposed to replace the phrase following "persons" with "member of staff or person".

Amendment No. 65 has been tabled to ensure alignment between section 48(3) and section 68(1), in terms of describing the withdrawal from the programme. Amendment No. 66 is necessary to ensure consistency in the use of the word “notice” in that sentence.

Amendment No. 67 provides that the relevant Minister must consult the Data Protection Commission prior to making regulations to facilitate in the identification programme. This is on the foot of advice from the DPC that further consultation should be undertaken with that organisation prior to the enactment of regulations under the Bill.

Amendment No. 68 is proposed to ensure alignment between section 74(2)(d) and section 48(2)(a)(iv). The latter specifies that applicants will confirm participation in an identification programme in a form specified in regulations. Section 74(d) needs to be updated to remain consistent with that formulation of wording. Alongside this update, it is important to ensure that section 74(2)(d)(ii) still retains the reference to consent regarding the taking of samples. This is why amendment No. 69 has been tabled.

Amendment agreed to.
Section 60, as amended, agreed to.
SECTION 61

Amendment 64 has already been discussed with amendment No. 63.

I move amendment No. 64:

In page 53, to delete lines 13 to 16 and substitute “(Historic Remains) Database from a member of staff of FSI or from a person who took a sample referred to in section 52 where the member of staff or person concerned consents in writing to having that sample taken.”.

Amendment agreed to.
Section 61, as amended, agreed to.
Sections 62 to 65, inclusive, agreed to.
SECTION 66
Question proposed: "That section 66 stand part of the Bill."

I wish to signal my intention to table an amendment to section 66 on Report Stage. The amendment will reflect positive engagement I have had with my colleague, the Minister for Justice, Deputy McEntee, and the chair of the DNA database oversight committee. On the foot of this engagement, I plan to table amendments to provide further oversight and accountability mechanisms within the legislation. The DNA database oversight committee was established under the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014. The committee is independent in its function and has an oversight role in the management and operation of the existing DNA database system for the purposes of maintaining the integrity and security of the system and ensuring compliance with the 2014 Act.

The intended amendments will provide a legislative basis for the existing oversight committee to provide the same important assurance role in respect of historical databases established under the Institutional Burials Bill. It is intended that, where the committee undertakes this role, it shall meet as the historical remains database oversight committee for this purpose and shall hold dedicated meetings in respect of this specific role and its associated functions.

The theme of assurance and accountability was an important one raised by affected families, as well as by this committee in its pre-legislative scrutiny of the legislation. This intended amendment is further responding to this issue and building on the important accountability mechanism already provided for within the proposed legislation.

Question put and agreed to.
SECTION 67
Question proposed: "That section 67 stand part of the Bill."

I also intend to table an amendment to section 67 on Report Stage. Forensic Science Ireland advised that the current provisions in the Bill may make it more difficult to link any additional remains from the same deceased person who may be tested. This can arise in situations like in Tuam where there may be difficulties in fully individualising remains and more than one bone is sent from the same person for forensic testing. I am considering an amendment that would facilitate a more direct way of linking a second and subsequent bone from the same person of a family member.

Question put and agreed to.
SECTION 68

I move amendment No. 65:

In page 58, line 17, to delete “his or her consent to participate” and substitute “from participation”.

Amendment agreed to.

I move amendment No. 66:

In page 58, line 19, to delete "notification" and substitute "notice".

Amendment agreed to.
Section 68, as amended, agreed to.
SECTION 69
Question proposed: "That section 69 stand part of the Bill."

I wish to signal my intention to bring forward an amendment to section 69 on Report Stage to ensure that certain information can be retained to show how the processing of samples and profiles have complied with the provisions of the legislation.

Question put and agreed to.
Sections 70 to 73, inclusive, agreed to.
SECTION 74

I move amendment No. 67:

In page 62, line 22, after "FSI" to insert "and the Data Protection Commission".

Amendment agreed to.

I move amendment No. 68:

In page 62, to delete lines 30 to 36 and substitute the following:

"(d) the form to be completed by an eligible person for the purpose of confirming his or her decision to participate in an Identification Programme;".

Amendment agreed to.

I move amendment No. 69:

In page 62, between lines 36 and 37, to insert the following:

"(e) the form of consent to the taking of a sample from a person under section 60;".

Amendment agreed to.
Section 74, as amended, agreed to.
SECTION 75

I move amendment No. 70:

In page 64, to delete lines 1 to 3 and substitute the following:

"(6) An adjudicator shall make his or decision under subsection (5) within 12 weeks of being appointed and shall, as soon as practicable thereafter—

(a) inform the appellant and the Director of his or her decision and the reasons for it,

and

(b) where the decision relates to an appeal under subsection (1)(b) and the appellant dies or becomes incapacitated before that decision is made, inform a nominee of the appellant in accordance with paragraphs (a) and (b) of section 50(4) of that decision and the reasons for it.".

Amendment agreed to.

I move amendment No. 71:

In page 64, between lines 3 and 4, to insert the following:

"(7) Where an adjudicator makes a decision under subsection (5) to overturn a determination under section 48 that an appellant is not eligible to participate in an Identification Programme, the Director shall, as soon as practicable after being informed under subsection (6) of that decision, notify that appellant in writing that he or she may participate in the Programme.".

Amendment agreed to.
Section 75, as amended, agreed to.
Sections 76 and 77 agreed to.
SECTION 78
Question proposed: "That section 78 stand part of the Bill."

I wish to indicate that I will bring forward an amendment to section 78 on Report Stage to provide for the issue of a notice of intention to commence works and a statement of compensation to public bodies.

Question put and agreed to.
SECTION 79

I move amendment No. 72:

In page 66, line 11, to delete "manifestly".

Amendment put and declared lost.

I move amendment No. 73:

In page 66, line 30, to delete "manifestly".

Amendment put and declared lost.
Section 79 agreed to.
SECTION 80

I move amendment No. 74:

In page 67, line 14, to delete "manifestly".

Amendment put and declared lost.
Section 80 agreed to.
Sections 81 to 86, inclusive, agreed to.
SECTION 87
Question proposed: "That section 87 stand part of the Bill."

I wish to signal my intention to bring forward an amendment to section 87 on Report Stage to clarify that the period of time for the calculation of compensation is the period during which it is estimated that relevant works or related activities will be carried out and not the period specified in an order under section 82(2) or 84(2)

Question put and agreed to.
Section 88 agreed to.
SECTION 89
Question proposed: "That section 89 stand part of the Bill."

I wish to signal my intention to introduce an amendment to section 89 on Report Stage to remove the provision exempting the director from carrying out remedial works on a site where the owner-occupier planned to carry out the works themselves or where the land is subject to development.

Question put and agreed to.
Sections 90 to 99, inclusive, agreed to.
SECTION 100

I move amendment No. 75:

In page 79, between lines 20 and 21, to insert the following:

"(3) Upon publication of the final report, the Director and or other Agency officials shall make themselves available to appear before the relevant Oireachtas Committee.".

Given the controversy relating to the publication of the final report, this amendment provides that the director or other officials of the agency shall make themselves available to appear before the relevant Oireachtas committee. Given the controversy that seems to follow this issue and any reports or investigations stemming from the discovery of remains at Tuam, it is important that the director appear before the relevant Oireachtas committee to discuss his or her final report. We have seen in the past how the chair of the commission declined to appear before the Joint Committee on Children, Equality, Disability, Integration and Youth. We were asking about language and methodology at the time.

Amendment No. 75 proposes to require the director and-or agency officials to make themselves available to appear before the relevant Oireachtas committee. Section 25 already provides for the director to appear before Oireachtas committees. The concern is that it would not be possible to call the director before a committee once the office of the director is dissolved at the end of the process, which is when the final report would emerge. I appreciate the Deputy's concern. How we resolve it is complex so we must go back. I am not sure if we will be able to resolve it but I commit to checking with my officials whether there is a mechanism whereby we can ensure at least one attendance is possible following the dissolution of the agency so that the final report can be discussed with the director of the agency to ensure a full degree of accountability. We will work to see what we can do there and if we can do something, we will bring an amendment forward on Report Stage.

While I take on board the Minister's response, I will still press the amendment.

Amendment put and declared lost.
Section 100 agreed to.
Section 101 agreed to.
Schedule agreed to.
TITLE

Amendments Nos. 76 to 79, inclusive, cannot be moved.

Amendments Nos. 76 to 79, inclusive, not moved.
Title agreed to.
Bill reported with amendments.

I thank everyone for their co-operation. I thank members for attending and for their input. I also thank the Minister and his officials for attending. I thank the staff in the Bills Office and the secretariat for all the work that goes on in the background.

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