Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

As the Chair said, I am joined by Ms Dara Breathnach from my Department. I thank the committee for the invitation to speak on the general scheme of the Certain Institutional Burials (Authorised Interventions) Bill. This legislation is vital to allow us to intervene at Tuam, where the remains of children were interred in a deeply shocking manner with no concern for their dignity, or that of their families. I am determined to prioritise this legislation to address this terrible failing.

I am committed to approaching all aspects of the Government’s response to the commission of investigation report into mother and baby homes in a way that is survivor-centred. I have engaged with survivors and their advocates and family members in relation to burials. I have paid close attention to the pre-legislative process that has been under way over the past number of weeks. I have listened carefully to the wide range of views that have been expressed on the incredibly sensitive issue of burials. I will continue to consider the issues we will raise and discuss today, and I look forward to receiving the pre-legislative scrutiny report from this committee.

Today, I would like to take the opportunity to address some issues that have been raised in this process but I want to stress that I continue to consider the legislation. Today's discussion, the committee's pre-legislative scrutiny and my own considerations will all be taken into account in the final draft I hope to bring before the Oireachtas soon. I would like to acknowledge the members of the committee, and the Chair, for the great sensitivity with which they all handled the public sessions the committee held. I thank the committee for allowing survivors’ personal experiences to be heard. I want to thank all those who gave evidence, particularly those survivors and family members. This is an incredibly emotional topic and their input will help strengthen the final draft of this legislation.

A number of the witnesses raised concerns that the Government has too much discretion under the general scheme to decide whether to intervene at a particular site. When survivors and their advocates see a discretionary power in the State’s possession, they feel they can have little cause to trust that such discretion will be exercised in their favour. Given how badly the State failed them in the past, I completely understand that scepticism. I hope I can have the opportunity to explain some of the policy choices that are indicated in this general scheme.

The committee will be aware at this stage in the pre-legislative scrutiny process that there is near consensus that it is vital to intervene at the Tuam site. The nature of these burials present a set of circumstances where almost everyone agrees that humanitarian forensic recovery is the appropriate response. In relation to other known sites, there is a spectrum of sincerely and strongly held views as to whether infants and children should be exhumed, or their resting places marked but otherwise left undisturbed. I have received correspondence ranging from welcoming the proposed new laws to some correspondence expressing deep distress and anxiety that the legislation may lead to what people see as the desecration of the final resting place of their loved ones. This legislation must provide guidance to the Government of the day on the factors that must be considered when deciding on an intervention, and must allow for reasonable discretion based on the circumstances of a given site. This is what the provisions in heads 3 to 7 are designed to achieve. The discretion afforded will be exercised transparently and with the benefit of appropriate independent expertise and stakeholder input.

The issue of compulsory access to dwellings has been raised during the committee’s hearings. Private property and the family home are robustly protected in the Irish Constitution. Any legislation passed must be proportionate and cognisant of those rights in order to be constitutional. The land access regime in the general scheme seeks to balance the public interest in conducting interventions with the rights of those involved. It has been suggested that a blanket ban on conducting interventions at residential sites may have the unintended consequence of sealing off extensive grounds of a single dwelling entirely. I have taken this on board and I am re-examining these provisions in the course of drafting. I hope to bring forward a more nuanced position in due course, balancing the constitutional protection of property rights with the undoubtable significant public interest objective in interventions.

Several witnesses have raised the issue of the specific expertise that will be available to the agency. In particular, some witnesses have criticised what they see as undue weight given to identification using DNA analysis to the exclusion of other relevant professional disciplines. It has always been intended that a multidisciplinary team would be required in order to provide the best possible chance of individualising and identifying remains at Tuam. The proposed legislation will enable an agency to enter into contract and procure expert services for exactly this purpose. It is not necessary to prescribe each professional discipline in legislation; this will ultimately be a matter for procurement and contract documentation. DNA is such a powerful tool in identification and this is why it is treated as sensitive personal information, including for the purposes of the general data protection regulation, GDPR.

The GDPR requires that DNA processing by the State have a specific lawful basis beyond the consent of a person providing a sample. These legislative proposals will create that basis, as well as establishing extensive rules to guarantee the security of information and the privacy of persons who may wish to participate in an identification programme. Similar concerns do not arise with other relevant disciplines, such as osteoarchaeology or forensic anthropology.

Forensic Science Ireland, FSI, are the national experts on DNA technology and, alongside the facilities at the FSI labs, the organisation has a very robust governance structure for the handling of DNA samples and the data generated from them. I can confirm that this legislation will provide the legal basis to test DNA using techniques beyond those currently used in the criminal justice system. The general scheme was drafted with a view to ensuring that advanced techniques, such as using mitochondrial DNA or single nucleotide polymorphism, can and will be used where necessary. Where FSI do not have the resources required, they can be procured or outsourced but, importantly, this will be done under the FSI governance structure. This will ensure best practice in protecting the participants of an identification programme and relevant third parties, and allow the State to meet the relevant obligations.

I have listened closely to concerns about the scope of a DNA testing programme and its restrictions to immediate family members. I have heard concerns that this may be too narrowly constructed and have directed my officials to scope the possibility of broadening participation in an identification programme in this regard, at least to the degree of aunts and uncles and nieces and nephews. Nevertheless, while I am minded to extend access, anything possible here will need to be carefully balanced against robustly protected privacy rights.

Concerns have been raised that the general scheme seeks to seal records. This concern is understandable given the importance of records access to so many people affected by mother and baby institution issues. I assure the committee and anyone concerned that this is not the case. The principle underpinning any agency is that it will be transparent in its operation, information will be given in annual reports and the agency will also be answerable to the relevant Oireachtas committees. The regime that will apply to the records of an agency is very different from that applying to a commission of investigation. No restriction is proposed to the operation of the data protection or freedom of information regimes. The only way in which I intend that information will be restricted is that personal information submitted as part of participation in an identification programme will be afforded the normal legal protections that safeguard access to anyone's personal information. These protections will continue to receive close attention in drafting to ensure that no unintended consequences arise.

I am aware that concerns have been raised regarding the role of the coroner. I have listened to commentary raising particular concerns regarding investigative obligations under various human rights instruments and the information that will be available to family members during an intervention under the proposed legislation. This is a very important issue and I welcome the opportunity to clarify this part of the general scheme. The policy intention of the general scheme is to suspend coronial jurisdiction as it relates to exhumation and identification but only for so long as the intervention lasts. This is to avoid having concurrent jurisdictions between different State bodies and is considered good administrative law in that regard. For similar reasons, the jurisdiction of a local authority in respect of exhumation is also suspended.

The proposed Bill will place legal authority for excavation works and attempts to identify remains in the hands of the agency to be created so that there will be a clear line of legal responsibility and the bespoke resourcing that will be required for interventions under the Bill can be provided in the form of a dedicated, driven and transparent State service, sensitive to the particular context of institutional burials. Careful attention is being paid in drafting to the specific relationship between the coroner and the agency to ensure that investigative obligations that currently lie with the coronial service will not be undermined. The position is that nothing in the legislation should preclude further investigation if that is warranted. I will continue to consider this element of the legislation to ensure no element could be construed as providing a barrier to any investigation.

I am also conscious of the emphasis, placed in some of the submissions, on the importance of the agency operating within a rights-centred framework. Issues related to the provision of information to relatives, the treatment of remains and their return to relatives must all be undertaken by the agency. I will examine how greater reassurance can be provided that the manner in which these obligations will be undertaken by the agency will be done in a rights-compatible way.

I thank the committee for its dedicated and constructive engagement with the proposed Bill. I have taken this opportunity to set out my thinking on some of the issues that have arisen during the pre-legislative process. I ask the committee to bear in mind that I continue to examine the draft heads and the submissions made during pre-legislative scrutiny, and will thoroughly review the committee's report when I receive it. I thank all those who have made submissions to the committee and who have so helpfully and informatively engaged with the pre-legislative process. In particular, I thank those survivors and family members who have appeared before the committee and given testimony with such honesty and power as part of the process.