Dáil Éireann díospóireacht -
Wednesday, 14 Sep 2022

Vol. 1026 No. 1

Institutional Burials Act 2022 (Director of Authorised Intervention, Tuam) Order 2022: Motion

Minister for Children, Equality, Disability, Integration and Youth (Deputy Roderic O'Gorman)

I move:

That Dáil Éireann:

— having regard to the enactment and subsequent commencement of the Institutional Burials Act 2022; and

— noting that a draft order to be made by the Government, prepared in accordance with section 7(1) of the Institutional Burials Act 2022, has been duly laid before Dáil Éireann on 26th August, 2022, together with a Statement of Reasons for establishing an Office of Director of Authorised Intervention, Tuam; and

approves the draft Institutional Burials Act 2022 (Director of Authorised Intervention, Tuam) Order 2022 for the purpose of establishing an Office of Director of Authorised Intervention, Tuam.

I am grateful for the opportunity to bring this motion before the House. This motion is before the Houses following approval by Government, on 27 July last, of my proposal to establish an independent office to lead an intervention at the site of the former mother and baby institution in Tuam. The proposal was made following the signing into law of the Institutional Burials Act 2022 earlier that month.

The Act, which provides the underlying legislative basis for the intervention, allows the Government, by order, to direct an intervention at a site where manifestly inappropriate burials of people who died in residential institutions have taken place. An order can be made when the criteria in the legislation are met and where a resolution approving the draft order has been passed by each House of the Oireachtas.

The draft order for approval this evening directs me, as Minister for Children, Equality, Disability, Integration and Youth, to establish an office of director of authorised intervention, Tuam. It sets out the functions to be performed by the director and the land in respect of which the director may perform those functions. The functions assigned to the director provide for him or her to oversee a phased forensic-standard excavation, recovery, analysis and reinterment of remains across the full available site in Tuam. The order also provides that the director will carry out an identification programme as an additional function for the intervention.

The situation uncovered in Tuam is truly horrifying. It has shocked people across the country and the world. The interment of children's remains at the site is clearly manifestly inappropriate and the statement of reasons for making the order, which has also been laid before the Houses, sets out how the site meets the requirements in terms of the legislation. As I said before, what happened in Tuam is a stain on our national conscience. It is incumbent on us to address the situation as soon as possible now that the necessary legislation is in place. I am grateful for this early opportunity to bring the motion before the Houses.

Subject to a resolution this evening, a resolution in the Seanad next week and the completion of environmental screening requirements for the site, the Government can make the order and the office can be established. I am committed to appointing a director and starting the excavation at the earliest opportunity. In order to ensure that work can start promptly, preparatory works have already commenced in my Department. Environmental screening of the site is under way. My officials have been seeking sanction from the Department of Public Expenditure and Reform and liaising with the Public Appointments Service on the recruitment process for a director. Officials are engaging with the Office of Public Works in relation to sourcing a suitable premises for the new office. Preparations are under way for the appointment of an advisory board to support and guide the director in his or her role. It is anticipated that the recruitment of a director will take a number of weeks. Once appointed, the director will need to engage a range of appropriately qualified experts to undertake the excavation, recovery and post-recovery analysis processes. Engineering works and the construction of onsite facilities will also be required in advance of excavation of the site, which it is expected can begin in early 2023. I commend this motion to the House.

Deputy Holly Cairns

The excavation of the Tuam site, the identification of victims and the dignified burial of remains will happen only because of the work of Catherine Corless, survivor groups, campaigners and their relatives and allies. Any attempts to intervene at Tuam and other locations have been resisted by governments and the State for decades. A rotten partnership between the State and the Roman Catholic Church perpetuated these abuses and actively opposed any form of accountability and justice.

The Tuam mother and baby home alliance was forced to protest again outside the Dáil today due to its disgraceful treatment by the Minister. It reiterated its call for the role of the coroner as prescribed in law to hold an inquest to establish the cause of death in compliance with international law. It is highlighting how the Act intentionally does not meet international human rights standards. It only applies in circumstances of inappropriate burial, but not in cases of unnatural or unexplained death in these institutions. Despite pleas from survivors and human rights experts and amendments from me and others, the Minister has created a law that would limit the number of possible interventions and the scale of any intervention.

The Minister told me this Act should not cover examinations based on unnatural death as that is the responsibility of the coroners and An Garda Síochána. He knows well this has not happened and will not happen. Coroners have still not been directed to investigate known mass graves by this and previous governments. Only public and international pressure at the horror of Tuam forced the then Fine Gael Government to act.

The uncovering of the truth, no matter how uncomfortable, must happen. The long history of abuse, forced incarceration, family separation, illegal adoptions and unnatural death needs to be fully investigated. We need a survivor-led transitional justice process. Unfortunately, this Government's treatment of survivors and disregard for their preferences offer little hope for the justice they seek and deserve.

The Tuam mother and baby home alliance also protested about other issues today. It cited the Minister's recent unilateral decision to "deny our members and those who provided testimony to the Confidential Committee, the opportunity to have those testimonies reviewed by an independent expert with a human rights background, as [he] previously promised." It is standard practice with this Government that survivors found this out by reading the work of Elaine Loughlin in the Irish Examiner and not from the Minister or the Department. It is disgraceful.

There is a clear pattern. Any progress comes after soul-draining campaigning from a dedicated group of people and massive public outcry. When Government eventually reacts, it always reacts just enough to get a good headline and satisfy public attention until the news cycle moves on. Today is another example of this. The headlines will look for the Minister but what about the survivor and family protests? What about the failure to meet human rights standards? What about the mass graves that will never be investigated unless something changes? Our shameful history of State and church abuse and mass incarceration of young mothers, children, people experiencing mental health conditions and disabled people has left many locations of known and suspected burials. Academics and activists have charted the scale of unnatural deaths in mother and baby homes, county homes, industrial schools, psychiatric hospitals and other institutions. What about these victims and their relatives? Where is their justice?

I quickly came to the conclusion during pre-legislative scrutiny that this Act was designed to solely intervene in Tuam. While this is essential and welcome, many other sites across the country require methodical and respectful excavation. The Act is intentionally filled with barrier after barrier to prevent it being applied to any other location. The State does not want this issue properly examined. There is an aversion to giving survivors their information, allowing them to tell their stories and investigating our shameful past. The Government is committed to doing just enough to create very limited prospects for justice. If Government Members have convinced themselves they are doing the right thing, I inform them that they are not. Today is an emotional and welcome day for the survivors of Tuam and the many people who know or hope that their loved ones are buried there, but it is a grim reminder to many others that their loved ones buried in other sites will never get justice.

An Ceann Comhairle

I will call Deputy Connolly and then revert to the order on the basis that Deputies Cairns and Connolly were here at the start of the debate.

Deputy Catherine Connolly

I welcome and support this. The motion was approved in July and we will set up what we promised we would in relation to Tuam. It begs the question as to whether it is just Tuam and what about all the other places, as has been referred to.

As I am wont to do, I will put this in context. The expert technical group's report entitled Options and Appropriate Courses of Action was published in December 2017. The Government announced a forensic excavation in October 2018. The then Minister, Katherine Zappone, made some comments about taking the right actions. In November 2021, when nothing had happened, Dr. Niamh McCullagh, a forensic archaeologist, among others, called for a full excavation of the site as soon as possible so that DNA could be identified. She said:

As a forensic archaeologist I have never walked away from human remains in that context. The measures that were put in place to protect the site [in 2017]... were temporary measures, they were not designed to last longer than six months.

Yet the site remains there unattended and not properly sealed off. As was mentioned by Deputy Cairns, the work on the ground has pushed this Government and every government reluctantly.

From day one, I have acknowledged the Minister's bona fides although they are wearing thin in light of what he has done in going back on his promise. On the ground, we have seen Catherine Corless and, well before her, Mary Raftery. I also want to mention Patricia Burke Brogan, who died last week - may she rest in peace - with regard to the work she did in respect of the Magdalen laundries, in particular the play Eclipsed. I could mention many more. The groups on the ground have certainly forced us and dragged us every step of the way. I remember being at a meeting in Tuam and the Ministers present were talking about closure. That was such an insult when we wanted openness and accountability. It showed the level of misunderstanding there was. I do not know whether it was benign or otherwise. Why have I lost faith? It is because we have no redress scheme nor any sight of one. However, we know it will exclude anyone who spent less than six months in an institution. I understand the Minister is in receipt of correspondence from more than 30 clinicians who work in the area of childhood trauma. On 21 November, in response to the publication of the redress scheme, they wrote:

[T]here is no quantum of time that allows us to think about the impact of childhood trauma. Thus, having an arbitrary period of six months' exposure is simply that, arbitrary.

Listen to that word: "arbitrary". The letter continues:

What is known from research in the area of childhood trauma is that it is the combination of adversity and quality of relationships which confer risk [rather than time].

The redress scheme proposed also excludes those who were boarded out. Our own special rapporteur for children, Professor Conor O'Mahony, said:

Any child who experienced severe neglect, emotional abuse or physical abuse in a boarded-out placement in circumstances where the State’s inspection regime was clearly defective would have an entitlement to an apology and to redress in the same way as any other child who experienced neglect or ill-treatment in a residential institution ...

My time is short. None of this makes sense to me. Without referring to the Minister personally, the system has learnt absolutely nothing. We continue to begrudge and to do everything belatedly. If we are seriously interested in redress, let us do it right. The Minister planned to have an independent human rights review of the testimony given by the more than 550 people who came forward but he has gone back on that. I do not think he should ever have promised that because he was never in a position to do it. He was never going to question the establishment narrative given to us by the three wise commissioners, the narrative that told us that the evidence of those who came forward was contaminated and should therefore be treated with caution. They were never going to go back on what they said but the Minister promised to go outside of that and to have an independent review and he has gone back on that. To add insult to injury, he said that he will allow the people to come forward again, if they wish, to tell the story again and have it archived or displayed, if that is what they want, or for what was given to be used. This ignores the pain and the suffering of the more than 550 people who came forward with great courage to tell their stories, which were then described as contaminated by the three wise commissioners. No such caveat was applied to those who came forward from the religious organisations or to the doctors and solicitors who came forward. The Minister should never have promised that but, having promised it, he should have seen it through or, at the very least, given a proper analysis as to why he changed his mind and told the people on the ground personally, people who instead heard of it through an announcement in the newspaper. Of course, there are also all the legal challenges with regard to that commission's report that were upheld or settled. In all of this, the most important thing from day one was trust. That trust is not there.

Deputy Kathleen Funchion

I thank the Ceann Comhairle for facilitating me. I apologise for missing my speaking slot. I welcome the creation of the agency in respect of Tuam. It is a positive step forward and something which we all know is long overdue. We all know the various people, particularly Catherine Corless, who have campaigned for this for a great length of time. We also know that time is of the essence in light of the age of many survivors and relatives of survivors. I sincerely hope that we will also see this type of development in other areas where it is deemed necessary. I missed the start but I believe Deputy Cairns made reference to the group that is outside today. It was one of that group's desires that this would not just be done in respect of Tuam despite those in the group coming from and representing Tuam. It goes to show the instinct among survivors to ensure that it is not just about themselves and their own individual stories but also about survivors as a collective. They are always looking out for each other, for want of a better term. It is important that this be expanded and not just be done for Tuam. However, it is also important to acknowledge that this is happening. It is a commitment that was made and is actually coming to fruition. There may still be some concerns regarding the role of the coroner although I believe they were clarified in the most recent draft of the legislation. However, any reiteration of that role would be helpful for survivors.

It is our first day back. When I saw that this motion was on the paper for discussion today, I thought that the commitment to an independent review that was made last year had to be mentioned. I apologise because I was late and so may have missed reference to this in the Minister's speech but, if he did not make such a reference, perhaps he could mention in his closing remarks what exactly has happened in that regard. We have all spoken a great deal about how, time and again, survivors, their relatives and their families have been let down. Commitments and promises have been made that have not been followed through on. We need a really clear answer as to what exactly happened there. People want to know. Obviously, we want to see that commitment honoured. People welcomed it when the Minister made the commitment last year. Deputy Cairns mentioned that people found out about this in the newspaper. That is something the people who were outside today mentioned. They feel really strongly about this. They were very disappointed to read about this in the newspaper. Is there another explanation for all of this? I hope that there is. Perhaps, if it has not been touched on, the Minister can expand on that.

The Joint Committee on Children, Equality, Disability, Integration and Youth will probably be inviting the Minister before it and will certainly be having discussions about this. It is important for survivors that any commitments made are followed through on. Over the years, we have had a history of letting these people, the vast majority of whom are women, down. They were failed by the State in the first instance. People who were made to go into these institutions or who were born into them started off being failed by the State. The last thing we want, as a more modern generation in this Chamber, is to continue to fail them in that regard. It is not good enough and we need to look at that. We need to ensure that any commitment or promise we or the current Government or Minister gives is followed through on and acted on.

However, the motion is specifically about the creation of the agency. It is a good thing and a positive step forward. Hopefully we will see the same provided in the other areas where it is needed. However, I would like some clarity on what exactly happened and how this came about because, as far as I am aware, a review group was set up to look into who would be the best or most appropriate person to act as independent reviewer. When that commitment was given, it was probably one of the few times people felt they were being listened to. To see it being rowed back on is very disappointing. "Disappointing" is probably not a strong enough word. It would be welcome if we could get some clarity on that.

Deputy Sean Sherlock

I support the motion. Like my colleagues, I will raise the issue of the promised independent review of testimony. We have Elaine Loughlin and Conall Ó Fátharta of the Irish Examiner to thank for the report in that newspaper dated 29 August in which it was said that "A promised independent review of testimony given by mother and baby home survivors has now been abandoned by the Government." I understand that the Minister is speaking directly to a motion in respect of the creation of the office of director of authorised intervention in respect of Tuam.

However, this would have been the first opportunity since this news broke in August for the Minister to make some utterance to the House in respect of why the promised independent review of testimony has now been abandoned. For many people, whether in Tuam, Bessborough, or wherever, that is the kernel of the issue right now. They feel deeply traumatised by the fact that the independent review is not now going to take place. It is for us to speak for those people. It is a bit of a stretch to ask those people who have given testimony already to now create a new initiative. I will quote from the Minister's adviser, who I assume issued the statement. It read:

Having considered the matter, the minister believes that a new initiative to support survivors to tell their personal story, so that it can be formally recorded and accepted as part of the official record, provides the best opportunity for responding to the concerns of survivors in a meaningful way.

To expect a person who has already given evidence to now submit evidence again is an insult to those people. I cannot for the life of me see how the creation of a museum or a national centre for research and remembrance will have the confidence of those very people who have given evidence and who feel their efforts and the sheer trauma they had to go through to tell their stories have been abandoned and disregarded. I was very hopeful that we were on a pathway with this process and that by at least putting in place an independent review of the testimony, the Minister would have repaired the damage done and people would have moved in the same direction going forward. Until such time as that issue is dealt with and confronted, and until an independent review is carried out of testimony, nobody is going to have any confidence whatsoever in the process. The entirety of the process is now tainted.

I was hopeful that our generation of politicians would have dealt with this head-on. When we were in the national convention centre I said I hoped this would not come down to an issue of money and resources. I fear now that that is where this is at. I am fearful that the Minister is afraid to reopen this process again on the basis of resources and what type of potential litigation might take place as a result of the reopening of such a process. I do not think we should be so cautious. We should be the generation of politicians that deal with this head-on. We owe a duty of care to everybody who was involved in this issue to at least, as a mark of respect, carry out the independent review of testimony. There is a question for the Minister in respect of the proposed memorandum to go to Cabinet. As an institution, whether on the floor of this House or in committee, we need to provide some forum where the Minister can come before us to answer questions about why a process to create that independent review of testimony was abandoned. What were the modalities of that? This is unfinished business.

Deputy Seán Canney

I am delighted to get the opportunity to speak on the resolution the Minister has brought before the House today. As a person who is from Tuam and who went to school in Tuam, this is an issue that is close to my heart in many ways. It has created a sense of a stain on or shadow over Tuam as a town. Tuam is a very good town. It is the capital town in our county of Galway and has the finest people living there. While I agree that the Minister needs to proceed with this effort to appoint a director, one thing is most important with whatever happens from now on. The Minister set out in his speech how a director would be appointed, consultants and experts would be coming in with him or her and an office will be set up to manage the excavation and all that goes with it. However, it is important that there is local engagement with the people of the town. The office should be set in the town and there should be a liaison aspect to the brief that this director will have so people from the locality who want to know what is going on can find out. We talk about setting out the lands that will be excavated. There are people living in close proximity to the centre of the site who have serious concerns about their properties having to be excavated, including their back gardens and so on. There is a huge amount of work to be done with the local communities and local people on the ground, as well as working with all the other stakeholders. I re-emphasise the fact that the most important stakeholders are the people in Tuam who have been the centre of attention from media worldwide. So be it, but they need to understand what is happening and when it will be happening and they need to have somewhere to go where they can meet somebody if they have a query or an issue, someone who is not based in Dublin or anywhere else in the country. I would expect that to happen.

It is important that we get on with the excavation and trying to identify the children who are buried there. It is also important that that moves as fast as possible. I am sure there is a lot of procurement to be done in terms of engineering, staff and consultants. I hope that will not be clogged up in processes that will delay the whole thing going ahead. We need to get down to getting on with the business as set out in the legislation previously passed here in the Dáil.

I welcome this further step but the people of Tuam and the surrounding areas, the people who believe they have relatives buried there, must know and understand what the next steps are. It must be set out in plain language for them so they understand what is happening and when it will be happening. The director and the office that is to be set up will have a huge role to play in making sure people understand what is happening and when it will be happening. That is the one message I want to give the Minister this evening. We need a hands-on approach on the site from now on because we are getting so near to focusing back on the site itself in a very physical way. I thank the people in the locality for being very understanding of all the intrusion in their lives over the last number of years. For some of them, it has been a tough time. Now is the time for us to make sure we ease what will have to happen over the coming months and years.

Minister for Children, Equality, Disability, Integration and Youth (Deputy Roderic O'Gorman)

I thank the Deputies for their contributions. They were absolutely right to recognise the pivotal role Catherine Corless has played in this. We would not be here today but for her dogged persistence in highlighting what happened in Tuam. The Deputies are right to credit her with dragging the Irish State to this place today.

The passing of this legislation was a lengthy process, one that involved very substantive engagement with the joint committee and significant amendments in both the Dáil and the Seanad.

When I visited the site at Tuam last year, I also met four separate groups on the day. Their key request related to the coroner and removing the exclusion of the coroner's jurisdiction that was originally in the legislation. We removed it because we heard what people had said. The reasons that officials or I put forward, that it was not as big a concern, did not matter. It was a concern for survivors and we acted on that concern. We made other changes in the legislation. Deputy Connolly referred to Dr. Niamh McCullough. I am grateful for the advice she gave to our Department, particularly about strengthening the processes that will take place following the excavation of the site. This post-recovery analysis gives us a better opportunity to return sets of remains to family members. There is a clear requirement written in the legislation that work taking place on this site must be done to an international forensic standard. I hope that provides some comfort to families in Tuam and potentially in other sites about the type of work that will take place. In the amendment process, we also added an advisory board which will be convened and will have survivors or relatives of residents of the institution. It also has an opportunity to involve the wider sector, as Deputy Canney said.

It is important to remember that this legislation is not site-specific. It makes provision for interventions in other sites as well. I have engaged with relatives of people at the Bessborough site. My Department intervened in a planning application last year for work to take place on the site of the presumed children's burial ground there. In August of this year, I visited Sean Ross Abbey and met relatives there. We discussed their concerns about the potential wider burial ground there. We are working with survivors to get a resolution relating to that site.

Deputy Connolly mentioned the redress legislation. This legislation has been worked on by my Department over the summer and I will bring it to Cabinet in October to seek approval for the final Bill and to bring it rapidly through the Houses and the committee so that we can provide redress to family members. The Committee on Children, Equality, Disability, Integration and Youth has written to me about the testimonies before the confidential committee and I will provide a comprehensive response. The Committee on Children, Equality, Disability, Integration and Youth will consider that.

When the comments were made at the lecture in Oxford about the treatment of the testimonies, we all received correspondence from survivors. What shone through most clearly in that correspondence was the concern from the 550 survivors who had given testimony that, having gone to the effort and, in many cases, trauma of reliving what happened, their words were nowhere. We know their testimonies are not in the commission's report. There are just brief extracts of them. Prior to that, my officials had secured the tapes of those interviews. As we know, those tapes were meant to be deleted but we secured them and have them now. I am seeking to provide an opportunity to those who gave testimony so that their words are not just hidden away on a tape somewhere but are actually part of the record, whether they wish to express those words themselves or they wish to use the tapes as evidence of that record. I am conscious that there are other survivors who did not participate in the confidential committee who may wish to have their personal stories of what happened to them in institutions also expressed on the record. That is what I am attempting to provide for survivors in the proposals that I am bringing forward. I will write to the committee in more detail and the committee can decide about the next steps. That is the proposal that I will present.

I thank Deputies for their consideration of the motion today. My Department and I will work to ensure, assuming assent of the Dáil and Seanad, that the agency can be set up as quickly as possible and that this essential work in Tuam can proceed as quickly as possible to provide that small measure of comfort to families at the end of this process.

Question put and agreed to.