Dáil Éireann Debate, Wednesday - 15 April 2015
6. Deputy Clare Daly asked the Minister for Children and Youth Affairs the role of the mother and baby homes commission of investigation in relation to its powers to order exhumations and excavations of graves. [14403/15]
Amharc ar fhreagraMy question relates to the commission of investigation into mother and baby homes. Earlier this year the Minister stated the commission would have the power to order exhumations where appropriate, but its terms of reference contain nothing specific in this regard. Will it be ordering exhumations and, if not, why not? Do the families concerned not deserve the opportunity to know with certainty whether their relatives are buried in these graves?
The Commissions of Investigation Act 2004 provides an effective, prompt and transparent mechanism to investigate complex and sensitive matters, while also respecting fair procedures and natural justice. The Act gives the commission robust powers to conduct investigations within its terms of reference in the manner it considers appropriate, while adhering to the rules and procedures contained within the legislation.
While the terms of reference attached to the Commission of Investigation (Mother and Baby Homes and certain related Matters) Order 2015 provide for a comprehensive investigative framework, the commission is independent in the performance of its investigations and deciding how best to approach its work. The reports on mass graves in Tuam rightly gave rise to significant public concern. The commission's terms of reference provide for an examination of mortality among mothers and children residing in mother and baby homes and certain other institutions in the period from 1922 to 1998. The terms of reference also require the commission to investigate post mortem practices and procedures in respect of the mothers and children who died while resident in these institutions, including the reporting of deaths and burial arrangements. Although the legislation does not confer specific powers to order exhumations, it is ultimately a matter for the commission to consider whether it requires exhumations or excavations of graves. It would be required to comply with the regulations and procedures in place for the conduct of exhumations.
It would be wrong to dictate to the commission how it should carry out its work. If it considers it necessary to take a certain course of action, it has the power to do so. I have met various groups, some of which want remains to be respected by leaving them undisturbed, while others want exhumations to take place. I have to leave it to the wisdom of the commission.
There is a certain logic to the Minister's reply.
I raise this question on behalf of a resident whose two brothers were in Tuam, who is trying to get as much information as possible about what happened to them as she does not know for sure whether they are buried there. She is one of those who wants the graves exhumed and wants DNA testing. She wants to bury her brothers if they are there. I appreciate that people have different views on this issue and that the commission is being given the power to make its own decisions. However, it must make those decisions based on the terms of reference laid down.
In the context of the investigation and the information being sought by the commission and in terms of potential criminal investigations afterwards, section 19 of the Commissions of Investigation Act would seem to suggest that any information gathered as part of the commission's investigations could not be used in criminal proceedings. However, the Minister is on record as saying the commission could pass on evidence it had. There seems to be a contradiction between the two. Will the Minister clarify that? Obviously, there is independence within the bounds of the commission, but that independence is rooted in the inquiry itself.
I absolutely respect the feelings of the individual the Deputy referred to regarding her two brothers. The terms of reference laid down for the commission of investigation allow it to order exhumations if that is what it decides is appropriate in certain instances. This is right and proper, but I do not wish to prejudge what the commission may find. I understand, notwithstanding section 19, that the commission's information will be available for people to act upon if criminal proceedings arise from it. If there is further information on that, I will furnish it to the Deputy.
Everyone welcomes the independence of the commission. I was impressed by the manner in which the Minister set it up and am glad it places an emphasis on the historical context of what went on at that time. However, within that we must be very careful that this is not used as an excuse. No matter what the historical context, I cannot believe neglecting and abusing children and leaving their emaciated bodies in shoe boxes or unmarked graves was ever deemed acceptable by anybody. Therefore, the relatives and the victims have a right to have their history and their remains treated respectfully. I am glad the Minister is stating clearly that the commission can decide on that.
However, I am still a little unclear in regard to criminal investigations, because the section that set up the investigation seems to suggest information gathered cannot be used in a criminal proceeding. It would be a little ridiculous if this means there is to be duplication afterwards, because most of the victims want to see criminal prosecutions at the end of this investigation as part of the bigger picture.
The commission has enormous powers as is only proper and right. I welcome the Deputy's support for the social history element of the investigation because context is important. It is equally important that people have an opportunity to tell their story. Many of the stories I have heard have been particularly harrowing. It is important also they have the right to tell their story in public or in private and in confidence. This right will be respected by the commission.
The commission will proceed in tandem on both lines of work, the history being very important in this regard. This is a social history that will be like no other. This will be the first time a history has been collected with the power of a commission to compel witnesses and documents supporting it. Therefore, the investigation will not be depending upon the good offices or goodwill of people, but will have the power of the law and the commission behind it.
