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Seanad Éireann díospóireacht -
Tuesday, 28 Jun 2022

Vol. 286 No. 8

Institutional Burials Bill 2022: Committee Stage

Section 1 agreed to.
SECTION 2

Amendment No. 1 is in the names of Senators Ruane and Higgins. Amendments Nos. 1, 3, 4, 7 to 9, inclusive, 30, 39 and 40 are related but may be discussed together by agreement.

I wish to move amendment No. 1.

I do not think that the Senator is allowed to move the amendment as it is in the names of Senators Ruane and Higgins. Am I correct, Senator Boyhan?

The amendment was tabled by my group so why not?

The Senator is quite right but the groupings do not start until Senator Ruane or Higgins is here.

They are not here for reasons that are out of their control.

I am really sorry. Senators Ruane and Higgins are meant to be here. I know Senator Flynn is a member of their group. Amendments Nos. 1 and 2 will just have to fall because the two Senators are not here. Senator Flynn can move amendment No. 3, if she is happy with that.

Is this going to be the case for all of these amendments?

Once we hit amendment No. 3, we can start moving through them because the grouping will have begun.

Will I have the right to call a vote?

I am only chairing this debate. The problem is that the two Senators who are supposed to move these amendments are not here. If Senator Flynn moves amendment No. 3, we can discuss the amendments from there onwards but Senators Ruane and Higgins are not here to move amendments Nos. 1 and 2. I have been told by the Clerk that, once I get to amendment No. 3, the grouping will kick in and Senator Flynn can move the amendment.

I have just received clarification from the Seanad Office. If Senator Flynn states that she has authority to move amendment No. 1 on behalf of her group, we will accept that so as not to hold up the debate. The point is that the amendment is in the names of two Senators who are not here and traditionally, such amendments fall straight away. Before the Senator moves the amendment, she needs to confirm that she has authority to move an amendment in the names of other members of her group in those Senators' names.

I have permission to move amendments and to speak on those amendments on behalf of the Civil Engagement Group.

Okay. I am sorry for all of the formalities.

I move amendment No. 1:

In page 10, line 37, to delete “and” and substitute “or”.

I thank the Minister for being in the House today. We are sorry about the little hiccup. Amendment No. 1 amends the meaning of “principal burial land” in section 2 of the Bill. As drafted, there are two criteria. A person must have died while a resident and must have been buried in a "manifestly inappropriate" manner before the State may intervene. The requirement to meet both criteria is a barrier and this amendment changes the wording of this provision.

Amendment No. 3 seeks to expand the meaning of “principal burial land” for the purposes of this Bill to ensure that it includes burials where there is concern that death occurred in a violent, unnatural, sudden or unknown way.

Amendment No. 4 has the same aim as amendment No. 3 but goes about it in a slightly different way. The amendment seeks to revise the scope of the Bill to fit with international definitions of mass grave sites such as the definition used by the Office of United Nations High Commissioner for Human Rights.

Amendment No. 7 seeks to amend a provision of the Bill limiting interventions to situations where a person died while ordinarily resident in an institution and where that person was buried in a "manifestly inappropriate" manner.

Amendment No. 8 arises from the Joint Committee on Children, Equality, Disability, Integration and Youth's pre-legislative scrutiny report and, more specifically, from recommendation 6 of that report.

Amendments Nos. 4 and 9, which are linked, seek to revise the scope of the Bill to meet international best-practice definitions of mass grave sites and to expand the circumstances that might warrant an investigation.

I will not go into amendments Nos. 30 or 40 but we would appreciate if the Minister could accept them.

I apologise on behalf of Senator Warfield, who cannot be here today. Amendment No. 39 will insert after the word "violent" the words "accidental, homicidal, undetermined or suspicious deaths". This will expand the criteria listed in the section by which An Garda Síochána would have to be alerted to evidence of human remains. The current requirements are quite limited and, therefore, there is a significant possibility some deaths would not be adequately examined if such a death were to occur.

A number of these amendments are similar to some brought forward on Committee and Report Stages in the Dáil and, unfortunately, I am not in a position to accept them. Amendments Nos. 1, 3, 4 and 7 to 9, inclusive, seek to alter the definition of “principal burial land” and the conditions for making a Government order to allow for interventions in cases where inappropriate burials have not been discovered but where the burials relate to a person whose death may have occurred in a violent or unnatural manner, or suddenly and from unknown causes, or where the circumstances of the death or body-disposal method were not investigated as to their lawfulness.

Amendment No. 30 seeks to alter the function of the director such that he or she would have to arrange for the forensic excavation and recovery of human remains where a death may have occurred in a violent or unnatural manner or suddenly and from unknown causes. These amendments would allow for interventions in cases where inappropriate burials have not been discovered. This approach would fundamentally alter the scope of the Bill and, ultimately, change the underlying objectives of the legislation. This is clearly at odds with the Government decision to create a lawful basis for a forensic excavation, recovery, analysis and identification of remains at institutional sites where manifestly inappropriate burials occurred, as is the case on the site of the former mother and baby institution in Tuam. These amendments would also represent a strong interference with the jurisdiction of An Garda Síochána and the coroner. Any intervention in an investigation relating to a violent or unnatural death or where there are questions regarding the lawfulness of the circumstances surrounding the death should clearly come under the remit of those two bodies. That is why the Bill rightly provides upfront that an order may not be made if an investigation or inquest is under way and if the Garda Commissioner is of the view it would be premature to make the order for intervention pending the outcome of the investigation. Similarly, the Bill rightly provides that where an intervention under the legislation is under way, a director must notify 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. Moreover, it is unclear how within this legislation it would be established prior to an intervention that a death had occurred in a violent, unnatural or sudden and unknown manner.

The manner in which bodies are buried forms part of the considerations of what may constitute manifestly inappropriate burials or where they have been buried in a way that would not be reasonably considered to constitute a dignified interment. I do not see a justification to refer to the body-disposal method given the manner of interment is included in the scope of the Bill. This legislation seeks to complement existing law, including the Coroners Act, not to replace it. As a major change to the general scheme, I removed all restrictions on the jurisdiction of the coroner, something I was called on to do by both the Oireachtas joint committee and relatives.

We did that to ensure the role of the coroner would continue to be respected. Under this legislation, the director must try to identify the circumstances and cause of death of recovered remains and if evidence of violent or unnatural death emerges, notify the coroner and An Garda Síochána immediately.

Amendments Nos. 39 and 40 are concerned with changing the description of the type of death that must be notified to the coroner and a member of An Garda Síochána. While I appreciate the intent, I can assure the Senators that the current wording of violent or unnatural would encompass any suspicious death where there is potential evidence of same, including homicide. In practical terms, it is also important that the wording remains aligned with the basis for exhumation in the Coroners Act.

More broadly, the director will publish the full post-recovery analysis report in respect of all recovered remains, which will include the cause and circumstances of death where it is possible to ascertain it. The director will ensure that it is brought to the attention of the relevant coroner.

As a result of an amendment brought forward in the Dáil, the legislation will ensure that the post-recovery analysis report will document whether notification of evidence of violent or unnatural death has been made to An Garda Síochána or the coroner. In light of those reassurances, I am not in a position to accept these amendments.

Amendment, by leave, withdrawn.

Amendments Nos. 2, 10, 29, 33, 45 to 47, inclusive, and 49 are related and may be discussed together by agreement. Amendment No. 49 is consequential on Nos. 2, 10, 29, 33 or 45 to 47, inclusive.

I move amendment No. 2:

In page 11, line 1, to delete "manifestly".

This amendment seeks to delete the term "manifestly" regarding inappropriate burials. Again, it is a matter of principle. The Civil Engagement Group always talks about appropriate and inappropriate wording. We feel that "manifestly" is an inappropriate word to use throughout the Bill.

Amendment No. 10 also seeks to delete the word "manifestly". Amendments Nos. 29, 33, 45, 46, 47 and 49 are all similar to amendment No. 2 in that they seek to delete the word "manifestly". I know Senators Ruane and Higgins would be passionate about removing that word.

I will speak to why we believe we should not remove the word "manifestly" from the Bill and, as such, are not in a position to accept these amendments. This Bill is designed to create a lawful basis for forensic excavation, recovery, analysis and identification of human remains at institutional sites where manifestly inappropriate burials have taken place.

When the abhorrent situation at Tuam was first discovered, the Government was advised that a full forensic standard excavation, recovery and identification of human remains could not take place under the legislation that existed at the time and that new legislation was needed. That is what this legislation is. This Bill is intended to fill the legislative gap in order to allow us to respond appropriately to the situation at Tuam. To avoid delays in responding to any similar situations that should arise in the future, the legislation was expanded to allow for excavations and identification programmes at other institutional sites, should similarly manifestly inappropriate burials be discovered.

Removing considerations of evidence regarding "manifestly inappropriate burials" would result in an unclear basis for any intervention. It would make it difficult to determine the circumstances under which this law could be used to intervene at a particular site. Furthermore, the deletion of the term "manifestly" would not correspond to the original Government decision that underpins the drafting of this legislation.

Section 8(1) of the Bill sets out four criteria which can be used to determine whether a burial site contains manifestly inappropriate burials. These are as follows: that the human remains are uncoffined; that they were buried in such a manner that would not have complied with the requirements at the time of such burial set out in the burial grounds’ regulations; that they were buried in a way that would not reasonably be considered to provide a dignified interment; or that they were buried collectively and in a manner or in a location which is repugnant to common decency and would reasonably have been so considered at the time the burials took place.

These criteria are included in the legislation to ensure that there is sufficient consideration given to key factors before any intervention can take place at a burial site. They do not limit the fact that any intervention under the legislation will involve a full forensic standard excavation, recovery and analysis. There must be evidence, in accordance with clear criteria, that the people were buried in a manner that is considered inappropriate.

As Senator Flynn knows, Ireland has a long history of respecting burial sites and of respecting the dignity and the sanctity of burial sites. That is why we are setting this threshold. It has to be a manifestly inappropriate burial before we can intervene in the very significant way that this legislation allows us to intervene.

Does Senator Flynn wish to come back in?

Is she is pressing the amendment?

We wish to withdraw this amendment but we reserve the right to bring it back on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 3:

In page 11, line 1, after “inappropriate” to insert the following:

“or were the result of a violent or unnatural death, or a sudden death from unknown causes”.

Amendment, by leave, withdrawn.

I move amendment No. 4:

In page 11, line 1, after “inappropriate” to insert the following:

“or circumstances surrounding the death and/or body-disposal method warrant an investigation as to their lawfulness”.

Amendment, by leave, withdrawn.
Section 2 agreed to.
Sections 3 to 6, inclusive, agreed to.
SECTION 7

Amendments Nos. 5, 6, 12 and 24 to 27 inclusive, are related. Amendments Nos. 25 to 27, inclusive, are physical alternatives to amendment No. 24. These amendments may be discussed together.

I move amendment No. 5:

“In page 14, line 23, to delete “may” and substitute “shall”.”

This amendment is to change the wording from "the Government may make an order" to "the Government shall make an order". This makes reference to whether or not the Government will make an order to a site if all criteria are met.

I will speak to amendment No. 6. Section 7 of the Bill currently states that the Government may establish an office of director of authorised intervention for specific period to allow for intervention at the site.

In amendment No. 12, we seek to delete the line in the Bill which states that an order for an examination of a burial site will only be made if it is "necessary for the purposes of safeguarding important objectives of general public interest".

Amendment No. 24 seeks to remove unnecessary wording. That sufficiently covers the amendments. They are all generally linked as the Acting Chairperson rightly said.

On the proposal to delete the word "may" and substitute "shall", I understand why the amendment is being proposed. However, I cannot support it. We need to allow a latitude that intervention does not occur because it may be the desire of the mothers of babies interred for there to be no intervention. I can think of instances such as Bessborough where mothers want to be able to sit beside where their baby is interred and there are many others in a similar situation. To substitute the word "shall" would oblige the Minister to act. I do not believe that is correct. There needs to be discretion and the word "may" within the legislation provides for that discretion.

I thank the Senators for their proposals. I am not in a position to support these amendments. Replacing "may" with "shall", as proposed by amendments Nos. 5 and 6 would, as Senator Seery Kearney said, remove the discretion of the Government and constrain its ability to make Government decisions on proposals which are brought to Cabinet. It would not be appropriate to compel the Government to make an order. The legislation provides a range of conditions which have to be met in making an order. The intention is to provide detailed guidance to the Government on making a decision on such a significant and sensitive matter.

The other amendments in this group seek to remove the important concept of safeguarding objectives of public interest or to reduce the factors that underpin it. Excavation and recovery of human remains is an extensive complex and sensitive intervention. In making a decision the Government has to balance the need to intervene with the need to respect the long-standing tradition of the sanctity of burials and consider the overall public interest. The legislation, therefore, sets out a number of factors that the Government will take into account when determining if an intervention is proportionate, including the need to accord dignity to persons buried on the land and the need to respect the views of relatives of persons buried on the land, public health and alternative options, if any, that may be available.

Safeguarding public interest in not unique to this legislation and is an extremely important concept. In a context where this legislation is significantly impacting constitutional rights, it is vital it sets out a robust legal basis grounded in the public interest for that impact. Looking at the factors listed, I know we all agree with the need to respect the views of relatives of persons buried on the land, and I acknowledge amendment No. 24 would provide for this. I have met many survivors and families connected to various mother and baby institutions and I have heard the very strong views expressed by some that they would regard excavations at their relatives' remains as a violation and something they would fundamentally oppose. It must be emphasised that in expressing these views everyone has always acknowledged the situation in Tuam is absolutely unique and that it is absolutely essential that we excavate in Tuam but the legislation we are designing here is not just for Tuam. It is for other sites as well and it must be designed in such a way that takes account of different views of relatives with respect to differing sites.

It is also safe to assume no one would question the importance of according dignity to persons buried on the land. However, public health is also an important aspect of an intervention and public health considerations are one of the main reasons laws around the exhumation are strictly controlled. We cannot disregard the impact on the wider public, including local residents.

Regarding social and economic interests, I would like to stress cost is not a criterion set out in either the general scheme or the Bill. The Bill revised previous wording and replaced the term "economic impact" with "social and economic interests of the State".

I believe the amendments being proposed would fundamentally weaken the protection of constitutional rights within the legislation and, therefore, the legislation itself and it would not be in the ultimate public interest of those who are most centrally affected. As such, I cannot accept these amendments. I would note I am confident applying the public interest test set out in section 8(3) will in no way prevent the intervention we all want to see at the site in Tuam.

Is the Senator pressing the amendment or would she like to withdraw it?

I will withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 6:

In page 14, line 29, to delete “may” and substitute “shall”.

We will withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 7:

In page 14, line 32, to delete “and” and substitute “or”.

We will withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 8:

In page 14, between lines 32 and 33, 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”.

Senator Flynn indicated she might press this amendment.

We will press the amendment.

Amendment put and declared lost.

I move amendment No. 9:

In page 14, between lines 32 and 33, to insert the following:

“(ii) of persons, where circumstances surrounding the death and/or body-disposal method warrant an investigation as to their lawfulness,”.

We will withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 10:

In page 14, line 33, to delete “manifestly”.

We will withdraw the amendment and reserve the right to bring it back on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 11:

In page 15, to delete lines 1 to 3 and substitute the following:

“(b) works to be conducted on the land by the Director in the performance of his or her functions would not impinge on any dwelling on the land in such a way as to cause structural damage or any damage to the integrity of the dwelling, and”.

Is the Senator pressing this amendment?

I will speak to it. Amendment No. 11 suggests another way we can balance the need to respect people’s homes and land with the need to carry out the very important work under this Bill.

There has been a good deal of debate on this particular provision and it has changed. What we are dealing with in this provision is where there is a burial on private residential land. We are thinking of a situation where perhaps an institution sold off land to an estate and now there is potential intervention on that land.

Under the original heads of the Bill I brought forward, the Bill stated that if there are private dwelling houses on private land that is subject to a potential intervention, there will be no intervention. The intervention was stopped. That is not the case any more.

When we brought the Bill to the Dáil we stated where an intervention is sought on private land it can take place but up to 20 m from any residential house on the land. We amended that in the Dáil and brought that distance back to 10 m. Therefore, an excavation can take place on private land within 10 m of a residential house. We think that is a fair balance between ensuring an excavation can take place but the immediate privacy of a landowner will not be automatically interfered with by the very substantial works a dig requires. The Senator is seeking to remove this further. We feel 10 m is a fair limit.

I wish to make another point concerning an issue that was raised a while ago. This particular provision does not apply to the situation in Tuam because the land in Tuam is in public ownership. The site, as we all know, is the garden of remembrance there but it is also the cark park and playground, and the entire site is in public ownership. This provision will in no way interfere or limit the ability to undertake an investigation in any part of the Tuam site.

It is also important to note an investigation can go within 2 m into private land adjacent to the Tuam site. As we know, there are many back gardens that immediately abut the site of the septic tank and it is possible, under a separate provision of the legislation, for works to take place within 2 m of those gardens. Work almost certainly will have to take place because there is a very large wall immediately overlooking the site, which will have to be temporarily removed for safety reasons.

I am not in a position to accept this amendment but I want to make it very clear the provision we are talking about will not in any way interfere with excavation on any part of the Tuam site.

We welcome that and we closely followed the debate in the Dáil. I guess Senator Ruane, in tabling this amendment, was seeking to strengthen the rights of residents and for people to be able to carry out the essential work that needs to be carried out.

Is the Senator happy to withdraw the amendment?

Amendment, by leave, withdrawn.

Amendment No. 12 has already been discussed with amendment No. 5.

I move amendment No. 12:

"In page 15, to delete lines 4 to 6."

Amendment, by leave, withdrawn.

Amendments Nos. 13 to 16, inclusive are related. Amendments No. 14 to 16, inclusive, are physical alternatives to amendment No. 13. Amendments Nos. 13 to 16, inclusive, may be discussed together.

I move amendment No. 13:

"In page 15, to delete lines 8 to 23."

I will withdraw this amendment and request to come back in on Report Stage.

Does Minister wish to comment on amendment No. 13?

I would be interested to hear if the Minister has a few words on the amendment for my own notes.

I am not in a position to support these amendments. The criteria set out are all-important factors that need to be considered in deciding whether or not to make an order. If an investigation by An Garda Síochána or a coronial inquiry is taking place, an intervention under this Bill could potentially interfere with the investigation or inquiry. This is precisely why the legislation provides that the Government should not make an order in this situation if - and I emphasise if - having consulted with the Garda Commissioner or the coroner concerned, the Government is of the view that making an order is premature pending the outcome of the investigations. There is also a strong rationale for excluding official burial grounds, for ensuring that the appropriate buried human remains are not disturbed unnecessarily and that health and safety considerations are taken into account.

Amendment, by leave, withdrawn.

I move amendment No. 14:

"In page 15, to delete lines 17 and 18."

Amendment, by leave, withdrawn.

I move amendment No. 15:

"In page 15, line 21, after “recovered” to insert the following:

“unless written consent is obtained from living relatives to excavate the appropriately buried remains”."

Amendment, by leave, withdrawn.

I move amendment No. 16:

"In page 15, lines 22 and 23, to delete “or unreasonably difficult”."

Amendment put and declared lost.

Amendments Nos. 18 and 19 are physical alternatives to amendment No 17. Amendments No. 17 to 19, inclusive, may be discussed together.

I move amendment No. 17:

"In page 15, to delete lines 31 to 34 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.”."

This amendment seeks to delete lines and substitute them with the following wording: “The Government shall make every effort where a site proves problematic to resolve difficulties and thoroughly examine burials on the land, before it is determined that memorialisation of the burials on the land, is more appropriate.” The rationale for that is that memorialisation in the absence of excavation, exclamation and identification of remains maladapts the transitional justice ideas. 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 itself stated that in order to memorialise, it is essential to know what and who are being acknowledged in that memorialisation. Further investigation on behalf of the Government will be required in order to memorialise effectively. In the absence of specifying what the substantive reasons are for not engaging in intervention, it is impossible for this provision to be a proportionate engagement with the rights and preferences of victims and survivors, including former residents of institutions and their families.

It is also noted that Ireland's international obligations under relevant EU and UN conventions should also be checked as the memorialisation measure in lieu of a proper investigation, as is being suggested in the current wording, would appear to allow an Irish Government to literally bury the truth in order to avoid international embarrassment. Therefore, I would like to hear the Minister's rationale as to whether or not he can accept this amendment.

As nobody else wishes to comment I call the Minister.

I will first make the general point that the very purpose of this legislation is to stop the burial of the truth and to actually allow for interventions in Tuam and potentially in other sites. That is what we are all seeking to achieve here.

Because we are dealing with different sites, I am not in the position to accept these amendments. It is vital to recognise that excavation may not be the desired outcome in every circumstance. I know that Senators here will have engaged with family members who have differing views as to the treatment of the remains of loved ones. Again, and I make this point every time, this is not the situation in Tuam. Everyone is in agreement about the need to excavate in Tuam. However, in other sites there are different views. This legislation, which is not site specific, has to be sufficiently flexible to allow the Government to take account of different circumstances and differing views that may arise in the future.

On foot of the pre-legislative scrutiny recommendations, this provision in the legislation has been amended to specify that the Government must have substantive reasons to form the view that memorialisation of the burials on the land without further intervention is more appropriate. I would like to dispel any potential misperception that this provision will allow the Government to refrain from intervention. The Government will have to clearly set out the reasons for choosing memorialisation. That rationale has to be sufficient and must reference the particular reasons why the decision was taken. I hope that provides an element of reassurance.

Senator Flynn also has two amendments in this grouping. I will call on her to speak to those amendments after Senator Boylan replies to the Minister.

Could the Minister elaborate on how we categorise substantive reasons for not engaging in an intervention? How do we balance that? I am aware that there are sites where exhumation is not the agreed outcome by everybody involved. How does one balance that to make sure that we get as much information about those burial sites as possible in order to be in compliance with our EU and UN conventions?

In amendments Nos. 18 and 19, we are looking to remove the barriers to having conversations with the families and the survivors. I genuinely believe it is a simple ask. We want to delete the line in the Bill which says the Government may choose a certain memorial instead of other sites. Amendments Nos. 18 and 19 are very doable. We should be engaging with relatives and relevant people are around us. It would be interesting to hear the Minister speak on this. We have already heard him speak to the grouping. It is a pity that he cannot accept amendments Nos. 18 and 19.

Obviously, it would be site specific, unless there was a strong view among relatives that their desire for the site was not to see an investigation, an intervention or an excavation. As we know, what is proposed here is significant in terms of excavation, exhumation and identification. If there was a strong view there, that would be a substantive reason. We have to look at this on a site-by-site basis. However, certainly strong views held by relatives that they do not want to see intervention would, to my mind, constitute a substantive reason. This would be on the foot of the Minister having brought a proposal to the Government. The Government would obviously have to issue a determination setting out clearly its reasons for taking a different view.

Of course, if there was a view that a potential Government was not really complying with the spirit of this legislation, that decision would obviously be open for wider challenge.

It is again about reassurances on making sure that all the families, as far as is possible, would be contacted and all their opinions taken on board and not just perhaps a more vocal cohort of the families. It is just about reassurances that the safeguards are there to make sure that, if that was put as a substantive reason, all the voices are around the table and nobody is excluded from making their views known.

Amendment, by leave, withdrawn.

I move amendment No. 18:

In page 15, to delete lines 31 to 34.

Amendment, by leave, withdrawn.

I move amendment No. 19:

In page 15, to delete lines 31 to 34 and substitute the following:

“(5) Where difficulties listed under subsection (4), or any other substantive difficulties, are identified in respect of a site which meets the criteria outlined in subsection (3), the Government shall make every effort to resolve difficulties and thoroughly examine burials on the land, before it is determined that memorialisation of the burials on the land, without further intervention, is more appropriate.”.

Amendment put and declared lost.

Amendments Nos. 20 and 28 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 20:

In page 15, lines 36 and 37, to delete “with the consent of the Minister for Public Expenditure and Reform”.

Amendment, by leave, withdrawn.
Section 7 agreed to.
SECTION 8

Amendments Nos. 21 to 23, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed. Amendment No. 23 is a physical alternative to amendment No. 22.

I move amendment No. 21:

In page 16, line 13, to delete “, at the time of such burial,”.

The rationale for deleting "at the time of such burial" is that there is no principled reason to specify that contemporary burial practice from the 1940s, 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 over the years and these burials should be viewed as in compliance with the burial requirements we have now. It was common practice that babies were buried with others who were not known to them. This, of course, would not be acceptable now. My own brother was buried in the angels plot in Glasnevin with a child who died in childbirth and without baptism. I do not think we would tolerate that as a society today. That is the rationale for that amendment.

Amendment No. 23 is as above whereby any consideration of burial grounds and their contents should be considered to be in compliance with contemporary practice. Moving with the times, we can look back at how we treated babies in the past but we would not tolerate it today.

The aim of amendment No. 22 is to remove unnecessary conditions for examining a burial site by deleting all words after "buried collectively". The reason for this amendment is that those words are not necessary.

I am not in a position to support these amendments. The provisions they seek to remove are necessary to aid the clear interpretation of the criteria that define a manifestly inappropriate burial. Amendment No. 21 seeks to remove the phrase "at the time of such burial" from subsection 8(1)(b) of the legislation. As I explained in the Dáil, it is important that an assessment of burials relates to the time at which such burials took place and the agreed custom, practice and requirements at that time. It is difficult to justify assessing burials with reference to requirements that were not applicable or perhaps did not exists at the time of such burials. Burial ground regulations have also changed since 1922, which is the start of the period when this legislation is applicable.

Similarly, amendment No. 23 seeks to remove the phrase “and would reasonably have been so considered at the time the burials took place”. One of the criterions the Government must try to assess before deciding whether a burial site associated with an institution has manifestly inappropriate burials is whether most people at the time of the burial would have found the burials at a site like Tuam acceptable.

Without this, it is much more difficult to interpret what "repugnant to common decency" means. There is also a risk of incorrectly applying present day customs or values.

Amendment No. 22 seeks to remove references to the manner or location related to the burials of remains and limit it to the fact that they were collectively buried. Accepting this change would significantly broaden the scope of what may constitute manifestly inappropriate burials. There may be a considerable number of locations where bodies were buried collectively in the past but which may not be necessarily regarded as "repugnant to common decency". The term "collective burials" would also be open to interpretation in the absence of reference to how remains were buried. It is, therefore, essential that the manner and location of burials are taken into account when assessing the inappropriate nature of burials.

Amendment put and declared lost.

I move amendment No. 22:

In page 16, lines 17 to 19, to delete all words from and including “and” in line 17 down to and including “place” in line 19.

Amendment, by leave, withdrawn.

I move amendment No. 23:

In page 16, lines 18 and 19, to delete “and would reasonably have been so considered at the time the burials took place”.

Amendment put and declared lost.

I move amendment No. 24:

In page 16, to delete lines 26 to 38 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, and to consider those of persons whose dwellings adjoin the land.”.

Amendment, by leave, withdrawn.

I move amendment No. 25:

In page 16, lines 27 to 38, to delete all words from and including “important” in line 27 down to and including line 38 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.
Amendment No. 26 not moved.

I move amendment No. 27:

In page 16, to delete line 36.

Amendment put:
The Committee divided: Tá, 6; Níl, 23.

  • Boyhan, Victor.
  • Boylan, Lynn.
  • Flynn, Eileen.
  • Hoey, Annie.
  • Moynihan, Rebecca.
  • Ó Donnghaile, Niall.

Níl

  • Ardagh, Catherine.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Byrne, Maria.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Lisa.
  • Conway, Martin.
  • Crowe, Ollie.
  • Currie, Emer.
  • Daly, Paul.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Fitzpatrick, Mary.
  • Keogan, Sharon.
  • Kyne, Seán.
  • McGahon, John.
  • Murphy, Eugene.
  • O'Loughlin, Fiona.
  • O'Reilly, Pauline.
  • Seery Kearney, Mary.
  • Ward, Barry.
Tellers: Tá, Senators Eileen Flynn and Lynn Boylan; Níl, Senators Seán Kyne and Lisa Chambers..
Amendment declared lost.
Section 8 agreed to.
SECTION 9

I move amendment No. 28:

In page 17, lines 23 and 24, to delete “, with the consent of the Minister for Public Expenditure and Reform,”.

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

I move amendment No. 29:

In page 18, line 27, to delete “manifestly”.

Amendment, by leave, withdrawn.

I move amendment No. 30:

In page 18, between lines 28 and 29, to insert the following:

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

I will withdraw this amendment but will come back on Report Stage.

Amendment, by leave, withdrawn.

Amendments Nos. 31 and 41 are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 31:

In page 18, between lines 30 and 31, to insert the following:

“(iv) 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,”.

Amendment No. 31 seeks to ensure that the causes and circumstances of death are given priority in examination of the burial site.

Amendment No. 41 calls for a report to be laid before both Houses of the Oireachtas on the carrying out of functions of the office.

I am not in a position to accept these two amendments because I believe what the Senator seeks is already covered in the Bill in both circumstances. I will set out the reason I believe that is the case.

Amendment No. 31 proposes that the circumstances and causes of death are considered in post-recovery analysis and that these are noted in the director's report to the Government. This is provided for in the Bill already. Section 10 outlines the general functions of the director and section 10(b)(iii) specifies the requirement to arrange for the post-recovery analysis. Section 35(2) places an obligation on the director to carry out the process of post-recovery analysis and provides that this includes establishing, if possible, the circumstances and cause of death. The section further provides that the director's report must document the outcome of the activities undertaken as part of post-recovery analysis, which includes establishing the circumstances and causes of death, where possible.

Amendment No. 41 proposes that a report on forensic examination and recovery and post-recovery analysis be prepared following the expiration of the period of operation of the office of director of authorised intervention, which will include the performance of functions by the coroner. As I outlined, section 35 already provides for a director to prepare a report following post-recovery analysis and this report must document the circumstances of the discovery of the human remains, the forensic excavation recovery and the outcome of the activities carried out during post-recovery analysis. A report on the functions carried out under Part 2 is therefore already provided for, and there is a requirement that this report be published and publicly available.

Is Senator Flynn pressing the amendment?

I will withdraw the amendment and bring it back on Report Stage. We will come back specifically with amendment No. 41 because we are disappointed that the Minister could not accept it.

Amendment, by leave, withdrawn.

Amendments Nos. 32 and 43 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 32:

In page 18, line 36, after “land” to insert “in consultation with eligible family members, where possible and practicable”.

Given the injustice and indignity of many of the burials concerned, while it was not possible in every context, we have a lot of empathy with the victims' families and friends. It is important that we do listen to people affected by this Bill. I will not discuss it any further but I will be calling a vote on it.

I do not believe that these amendments are necessary. In response to the pre-legislative scrutiny, PLS, report I made provision for final arrangements. The amendments are to do with the final arrangements for the burial of remains following identification and recovery. In response to the PLS process I provided that final arrangements will be made in line with the wishes of family members.

Section 57 provides that where a familial match has been made, the director will make arrangements at the request of family members to either return remains to family members or make arrangements in line with their wishes. In cases where a familial link has not been established or where an identification programme is not undertaken or is not continuing, a director will make final arrangements having regard to the stated wishes of persons who believe they have family members buried at the site, the dignity of the deceased and the condition of the remains. The matters that are set out in the amendments are already provided for in the legislation.

I support the Minister's response that the amendments are not necessary. Recommendations were contained in the PLS report and the Minister took them on board.

A lot of time was spent considering the response of the State, in conjunction with families, with regard to remains. Having support for the families does not begin on the floor of this House. There was extensive engagement over a very long period in the pre-legislative scrutiny phase relating to this Bill. Many detailed and thoughtful recommendations were made by the joint committee to ensure that families felt heard. However, not all families will get the opportunity to have a decision on the remains, but it is to be hoped it will be many more than we anticipate. I am grateful to the Minister for taking on board the recommendations of the report.

Amendment put and declared lost.

I move amendment No. 33:

In page 19, line 23, to delete “manifestly”.

Amendment put:
The Committee divided: Tá, 5; Níl, 23.

  • Boyhan, Victor.
  • Boylan, Lynn.
  • Flynn, Eileen.
  • Keogan, Sharon.
  • Ó Donnghaile, Niall.

Níl

  • Ardagh, Catherine.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Byrne, Maria.
  • Casey, Pat.
  • Chambers, Lisa.
  • Conway, Martin.
  • Crowe, Ollie.
  • Currie, Emer.
  • Daly, Paul.
  • Davitt, Aidan.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Dooley, Timmy.
  • Fitzpatrick, Mary.
  • Kyne, Seán.
  • McGahon, John.
  • Murphy, Eugene.
  • O'Reilly, Pauline.
  • O'Sullivan, Ned.
  • Seery Kearney, Mary.
  • Ward, Barry.
Tellers: Tá, Senators Eileen Flynn and Lynn Boylan; Níl, Senators Seán Kyne and Lisa Chambers.
Amendment declared lost.

I welcome Councillor Sean Ryan and his family, from Littleton in County Tipperary, who are in the Visitors Gallery. I also welcome the Minister of State at the Department of Health, Deputy Rabbitte.

Section 10 agreed to.
Sections 11 to 13, inclusive, agreed to.
SECTION 14

Amendment No. 34 is out of order.

Amendment No. 34 not moved.

Amendments Nos. 35 and 36 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 35:

In page 22, between lines 11 and 12, to insert the following:

“(c) a member having expertise in transitional justice,”.

I will withdraw the amendment as we wish to discuss it further on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 36:

In page 22, to delete lines 12 and 13 and substitute the following:

“(c) a member having expertise in transitional justice,”.

Amendment, by leave, withdrawn.
Section 14 agreed to.
Sections 15 to 29, inclusive, agreed to.
SECTION 30

I move amendment No. 37:

In page 33, between lines 31 and 32, to insert the following: “(6) Nothing in this section shall prejudice the rights of those who wish to expose wrongdoing by making a protected disclosure under the Protected Disclosures Acts 2014 to 2022.”.

Amendment No. 37 seeks to ensure that nothing in this Bill prevents someone from making a protected disclosure on wrongdoing. This amendment is a small addition to section 30. I understand that the Minister of State has the notes in front of her. We hope that these provisions do not prevent somebody from speaking up in the interest of the public good. Last week, we discussed this matter in the Seanad and I have raised it again today during our discussion of amendment No. 37.

I note the good intent behind the amendment but I cannot support it as I do not believe that it is necessary. The Protected Disclosures Act 2014 already protects the rights of those making a protected disclosure under that Act. The Act does not in any way prejudice the rights of those making a protected disclosure under the Protected Disclosures Act. While it is an offence under section 32 of the Institutional Burials Bill to intentionally or wrecklessly disclose confidential information, the Protected Disclosures Act provides a defence.

I withdraw the amendment and reserve the right to resubmit on Report Stage.

Amendment, by leave, withdrawn.
Section 30 agreed to.
Sections 31 to 34, inclusive, agreed to.
SECTION 35

I move amendment No. 38

In page 34, line 27, after “person” where it firstly occurs to insert “across a range of appropriate disciplines”.

My colleagues and I tabled this amendment, which seeks to place more emphasis in the Bill on an integrated identification approach that involves a multidisciplinary response. For example, there is no mention of forensic anthropology in the Bill whereas forensic anthropologists would be essential in the analysis of human remains, and in co-ordination with forensic geneticists, to re-associate the human remains recovered so the absence of clearly stating their role in the process risks having unqualified and inexperienced professionals carrying out this work. Working with co-mingled remains is a highly complex process and it will require experts who have sufficient experience in that process to carry out the work.

I cannot support the amendment. On foot of the pre-legislative scrutiny process, 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 works need input from a range of disciplines and it is not necessary to refer to that in the legislation.

Only a multidisciplinary approach can meet the international standards and deliver the required work. The Government made a commitment to a multidisciplinary approach and I can assure the Senator that that is the only way we can achieve what is required in Tuam.

During pre-legislative scrutiny there was a lot of discussion on the types of disciplines that should be included. A decision was made to not expressly recommend anything because a wider scope allows for the growth of scientific knowledge and so different types of disciplines that, as yet, we do not know or they have not yet been named. As a consequence, there was a recommendation to have appropriately qualified persons to allow the scope to be as wide as possible and for the legislation not to be overly prescriptive because being prescriptive in any way would, perhaps, exclude. So the wording that is there was confirmed and reiterated as part of the PLS process.

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

I move amendment No. 39

In page 35, line 31, after “violent” to insert “accidental, homicide, undetermined or suspicious deaths”.

Amendment put and declared lost.

I move amendment No. 40:

In page 35, line 31, to delete “or unnatural circumstances” and substitute “, unnatural, suspicious or undetermined circumstances”.

I withdraw the amendment and reserve the right to resubmit on Report Stage.

Amendment, by leave, withdrawn.
Section 36 agreed to.
Sections 37 to 39, inclusive, agreed to.
NEW SECTION

I move amendment No. 41:

In page 37, between lines 29 and 30, to insert the following:

“Report on forensic examination and recovery and post-recovery analysis of human remains

40. Following the expiration of the period of operation of an Office of Director of Authorised Intervention, the Minister shall cause a report to be laid before both Houses of the Oireachtas on the carrying out of the functions under this Part, including the performance by the coroner of their specific functions, in respect of that period of operation.”.

I will withdraw the amendment.

Amendment, by leave, withdrawn.
Sections 40 and 41 agreed to.
SECTION 42

I move amendment No. 42:

In page 39, between lines 24 and 25, to insert the following: “(2) The public information campaign described under subsection (1) shall be targeted at persons within and outside the State, and shall be in plain English.”.

It is important that an information campaign is extended beyond this State because many Irish people emigrated to America and Australia, for example. We, in the Civil Engagement group, believe that the Government should work with people and that people have a right to information about their relatives, etc. We recommend that the Government accepts the amendment because it is important that family members get closure. The amendment calls for a simple task to be done, especially with the technology that is available these days and I look forward to hearing the ministerial response.

I cannot support the amendment as I do not believe that it is necessary. The Bill provides that before an identification programme begins a director will hold a public information campaign to raise awareness about the programme, and outline how eligible family members and spouses or civil partners of a deceased person can register an interest in participating, objecting to another person's participation or their interest in receiving remains.

It has always been the intention of the Minister, Deputy O'Gorman, that the information campaign would target persons within and outside the State and that they would be in plain English. I am happy to give the undertaking, along with the Minister, Deputy O’Gorman, to take effect here today. I do not think that this needs to be included in the legislation. Sustained engagement with survivors and former residents of the mother and baby homes and county homes is central to the delivery of all elements of the Government’s action plan for survivors and former residents of mother and baby homes and county home institutions. The Minister has engaged with survivors in relation to aspects of all ongoing work on a regular basis. He is immensely grateful to all of those who continue to give so generously of their time to engage with the State on these issues. He is committed to continuing this work in a manner that is transparent and accessible to surviving communities, both at home and abroad. I hope that speaks to the Senator’s point on communication both at home and abroad. To that end, the Department continues to engage with the Department of Foreign Affairs to utilise the invaluable resources that is our network of embassies and consulates right across the globe to ensure that we can reach as many of the survivors living abroad as possible.

Amendment put:
The Committee divided: Tá, 9; Níl, 23.

  • Boyhan, Victor.
  • Boylan, Lynn.
  • Craughwell, Gerard P.
  • Flynn, Eileen.
  • Hoey, Annie.
  • Keogan, Sharon.
  • Moynihan, Rebecca.
  • Ó Donnghaile, Niall.
  • Sherlock, Marie.

Níl

  • Ardagh, Catherine.
  • Blaney, Niall.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Byrne, Maria.
  • Casey, Pat.
  • Chambers, Lisa.
  • Conway, Martin.
  • Crowe, Ollie.
  • Daly, Paul.
  • Davitt, Aidan.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Dooley, Timmy.
  • Fitzpatrick, Mary.
  • Kyne, Seán.
  • McGahon, John.
  • Murphy, Eugene.
  • O'Reilly, Pauline.
  • O'Sullivan, Ned.
  • Seery Kearney, Mary.
  • Ward, Barry.
Tellers: Tá, Senators Eileen Flynn and Lynn Boylan; Níl, Senators Seán Kyne and Lisa Chambers.
Amendment declared lost.
Section 42 agreed to.
Sections 43 to 45, inclusive, agreed to.
SECTION 46

There is nobody present to move amendment No. 43.

Amendment No. 43 not moved.
Section 46 agreed to.
Sections 47 to 49, inclusive, agreed to.
SECTION 50

I move amendment No. 44:

"In page 48, line 13, after “and” where it secondly occurs to insert “all”."

This amendment is pretty straightforward. It is to insert the word "all". It expands on the meaning of relevant information and documents in the Bill. It inserts the word "all" before the records to show that there is no ambiguity as to which personal records are to be shared with an applicant. All of the records should be shared and it is a straightforward amendment.

I thank the Senator. I do not propose to support this amendment as I feel it is unnecessary. The definition of relevant information and documents in the Bill is open-ended and it facilitates the consideration of various types of documents that may support the identification of a deceased person, including records relating to a person who resided in the institution concerned. No record relating to such a person is excluded from the current definition.

In response to amendments proposed in the Dáil, the list of examples given in the definition was expanded to include explicit references to baptismal certificates, institutional admissions, the discharge records, as well as information obtained in post-recovery analysis. However, the definition remains open-ended so as not to unintentionally exclude documents which the director may need in undertaking his or her function. In this context, I highlight that section 27 provides for a director to compel and enforce a source to provide such information and documents as required for the purpose of assisting him or her in performing his or her functions under the Act. The definition of "information source" includes public bodies which have or had a role in relation to the institution concerned and religious organisations or bodies. This section also empowers.a Minister to designate a person as an information source if the Minister considers that he or she may have documents.

Amendment put and declared lost.
Section 50 agreed to.
Sections 51 to 84, inclusive, agreed to.
SECTION 85

I move amendment No. 45:

In page 71, line 17, to delete "manifestly".

Amendment put and declared lost.

I move amendment No. 46:

In page 71, line 36, to delete "manifestly".

Amendment, by leave, withdrawn.
Section 85 agreed to.
SECTION 86

I move amendment No. 47:

In page 72, line 21, to delete "manifestly".

Amendment, by leave, withdrawn.
Section 86 agreed to.
Sections 87 to 105, inclusive, agreed to.
SECTION 106

I move amendment No. 48:

In page 84, between lines 6 and 7, to insert the following:

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

This is a pretty straightforward amendment. It adds a provision to the Bill so that when a report is published regarding the review of an office of director of authorised intervention that relevant officials would make themselves available to attend the relevant joint committees. Doing so would provide Members with an opportunity to scrutinise the report and engage officials on the content.

A similar amendment was proposed in the Dáil. In response, the Minister agreed to examine it in order that it would be possible to amend the legislation to ensure that a director would be in a position to attend Oireachtas committee meetings following publication of the final report. On Report Stage in the Dáil, the Minister brought forward amendments that require a director to submit a final report to the relevant Minister at least 12 weeks before dissolution date. The relevant Minister will then be required to lay the report before the Houses within six weeks of receipt. This timeline provides, at a minimum, for a guaranteed six-week window when a director could be called before an Oireachtas committee to discuss the report prior to dissolution date. These amendments were accepted and incorporated into the Bill. I am of the view that the amended provision addresses this issue sufficiently.

Amendment, by leave, withdrawn.
Section 106 agreed to.
Section 107 agreed to.
Schedule agreed to.
TITLE
Question proposed: "That the Title be the Title to the Bill."

Amendment No. 49 cannot be moved. It has already been discussed with amendment No. 2.

Amendment No. 49 not moved.
Question put and agreed to.
Bill reported without amendment.

When is it proposed to take Report Stage?

Report Stage ordered for Tuesday, 5 July 2022.

I thank the Minister of State, the Minister, Deputy O'Gorman, who was here earlier, the Senators and the staff of the House.

Cuireadh an Seanad ar fionraí ar 5 p.m. agus cuireadh tús leis arís ar 5.48 p.m.
Sitting suspended at 5 p.m. and resumed at 5.48 p.m.
Barr
Roinn