Ms Doireann Ansbro:

Does the Senator wish for me to come in on the obstacles? The Bill stipulates five or six requirements in order for an agency to be constituted. Taken together, those requirements constitute an overly complicated threshold to even create an agency. To be honest, when the Department is going back to draft the Bill, it needs to start from scratch and look at how one can create legislation that enables the fulfilment of the rights about which we have been speaking, such as truth, justice, reparations and guarantees of non-recurrence.

One of the key aspects of the Bill as it stands is this idea of a proportionality assessment. Head 3 of the Bill references this idea that the rights of people who may want the agency to carry out excavations or exhumations need to be weighed against several factors. The problem is that those factors include things that should not be there in the first place in terms of a human rights approach, such as economic considerations, for example. There may be various rights that we need to balance and weigh.

Perhaps this human rights approach to balancing rights is the answer to the question about how we respect the wishes of survivors and their families who may have different wishes. It is crucial to identify the primary right, which in this case is the right to truth and the right to effective investigations. If one limits that right - if a decision is made not to carry out an excavation or exhumation - we need to ensure that can only happen if it is necessary, is proportionate to a legitimate aim and meets a pressing social need. The human rights framework for that proportionality assessment, which is missing from this Bill, is crucial if we are going to be genuinely demonstrating a commitment to an approach based on human rights.