Oireachtas Joint and Select Committees
Wednesday, 14 April 2021
Joint Oireachtas Committee on Children and Youth Affairs
General Scheme of a Certain Institutional Burials (Authorised Interventions) Bill: Discussion
Before we begin, I remind members who are participating remotely to keep their device on mute until they are invited to speak. When they are speaking I ask that, where possible, they have their camera switched on and be mindful that we are in public session. In addition, I remind members of the constitutional requirement that they must be physically present within the confines of the place where Parliament has chosen to sit, namely, Leinster House or the Convention Centre Dublin or both, in order to participate in public meetings. I will not permit members to participate where they are not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts will be refused.
Our agenda item today is the pre-legislative scrutiny of the general scheme of a certain institutional burials (authorised interventions) Bill. I advise members that Ms Mary Lawlor was invited to appear before the committee to represent the Sean Ross Commemorative Committee. However, unfortunately, due to unforeseen circumstances, Ms Lawlor is unable to attend today and sends her sincere apologies. I will share Ms Lawlor's speaking time with the other witnesses present.
The witnesses in attendance today in the Dáil Chamber are as follows: Ms Catherine Corless and also Ms Susan Lohan, who is joined by Ms Mary Harney.
The witnesses appearing virtually before the committee from a location outside of the Leinster House precinct are as follows: Professor Phil Scraton, Professor Emeritus, School of Law, Queen's University Belfast and Dr. Maeve O'Rourke, lecturer in human rights, NUI Galway.
All the witnesses are very welcome to our meeting on the pre-legislative scrutiny of the general scheme. Before we commence the meeting I take this opportunity to thank them for taking the time to prepare their opening statements and to thank those who provided written submissions. I also take the opportunity to set out the purpose of today's meeting and how proceedings will be conducted to avoid any confusion during the meeting.
While acknowledging the harrowing experiences of survivors during their time in mother and baby homes and county homes, the purpose of our meeting today is to consider the policy provisions of the proposed legislation. A discussion will take place on the provisions of the general scheme as they relate to the statutory basis and framework under which the Government may decide to authorise interventions at certain sites where manifestly inappropriate burials have taken place associated with institutions operated by or on behalf of the State or in respect of which the State had clear regulatory or supervisory responsibilities. There are also provisions for the establishment of an agency to carry out such interventions.
I remind members and witnesses that they are expected to strictly adhere to the subject matter scheduled for discussion today. I also advise witnesses that the opening statements they read into the record here today should be the statement they provided in advance of this meeting. Any deviation on these matters will be addressed through the Chair.
We are all very much aware of the restrictions Covid-19 has brought to all our lives. It has also severely impacted the scheduling of public committee meetings. However, members of the committee felt it important to hear from as many people as possible who may be impacted by or have a professional view on the provisions of the general scheme. It is the responsibility of parliamentary committees to consider and discuss topics in a balanced and fair manner. In achieving this goal, it is the committee, and only the committee, which determines the witnesses it engages with and will do so in an unhindered manner. This level of engagement will greatly assist the members of the committee in finalising its scrutiny report on the general scheme. For this reason, and while strictly adhering to Covid-19 safety requirements, four public meetings of the committee have been scheduled over the course of today. It is also expected that further public meetings will be scheduled in the near future to consider this matter further.
The committee wishes to have a productive public engagement. However, I must remind all present that they should not mention names of individuals or organisations even if that information is already in the public domain, nor should they make charges against anyone by name or in such a way as to make him or her identifiable.
These are normal parliamentary procedures that exist to ensure engagements are conducted in a constructive way.
Before I invite people to make their opening statements, I must read out the standard text regarding the provisions of the Defamation Act to remind witnesses of their rights and obligations. I want to take a minute to brief the witnesses on the work of the committee since the publication of the report of the Commission of Investigation into Mother and Baby Homes and Certain Related Matters and the pre-legislative scrutiny by the committee to date of the general scheme of the proposed Bill. While the committee has been limited in the number of public meetings held due to Covid-19, it afforded priority in its consideration to scrutiny of the proposed Bill, the issues that have arisen following the publication of the report of the Commission of Investigation into Mother and Baby Homes and Certain Related Matters, and the desire of members of the committee to ensure justice for the survivors of mother and baby homes. These matters have been discussed at eight of our committee meetings. Nine joint meetings have been held this year. The committee has corresponded with the Minister, Deputy O'Gorman, on five occasions on various matters and it has met the Minister and his officials to discuss these issues wherever possible. The committee has prioritised these issues above other competing demands related to its vast work programme insofar as it reasonably can. It stands ready to help to facilitate delivery on the recommendations and actions contained in the report into mother and baby homes wherever possible and to undertake robust scrutiny of any and all related legislation referred to it, such as the general scheme under discussion here today. We made a public call for submissions on the scheme on 22 January, with a deadline of 19 February. The deadline was later extended until 26 February, and every effort was made to ensure maximum reach and accessibility during this process. In total, the committee received 426 submissions. It has received substantial stand-alone correspondence from the public on these issues and appreciates the engagement and effort the public has made to date on what are very difficult issues.
At this point, I would like to highlight some of the support services. I am aware that today is going to be a long day dealing with some very difficult issues for people. Therefore, the dedicated counselling service for former residents of mother and baby homes is available. Its number is 1800 817 517.
Without further delay, I will move on to our advice on parliamentary privilege. Witnesses present in the Dáil Chamber are protected by absolute privilege in respect of the presentations they make to the committee. This means they have an absolute defence against any defamation action for anything they say at the meeting. However, they are expected not to abuse this privilege, and it is my duty as Chair to ensure it is not abused. Therefore, if the statements of witnesses are potentially defamatory in regard to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.
For witnesses appearing virtually, I need to point out that there is uncertainty as to whether parliamentary privilege will apply to evidence given from locations outside the parliamentary precincts of Leinster House. Therefore, if they are directed by the Chair to cease giving evidence on a particular matter, it is imperative that they comply with any such direction.
We will start with Ms Catherine Corless, followed by Ms Susan Lohan and Professor Phil Scraton. We sincerely appreciate their travelling to be here with us today. For many of them, this is a long-standing issue. It was supposed to have been dealt with in early 2020 but that did not happen. Therefore, we really do appreciate the witnesses taking the time to be here. They are very welcome. Without further ado, I ask Ms Catherine Corless to make her presentation. She has between five and seven minutes. I thank her very much.
Ms Catherine Corless:
I thank the committee for the opportunity to be here. We really appreciate it as part of a final effort to pass this legislation as soon as possible. I am a researcher into Tuam mother and baby home. My research revealed the tragic fact that 796 babies and young children died in the Tuam home in the years in which it was run by the Sisters of Bon Secours, from 1925 to 1961. Worse still, many of those babies were indecently buried in a defunct sewage system at the back of the home, and it was this disclosure, which hit the headlines worldwide, that was instrumental in setting up the commission of inquiry that operated from 2015 to 2020 to inquire into all the mother and baby homes.
The fifth interim report of the commission, published in 2019, gives explicit detail on what the team of archaeologists found, namely, 17 chambers of the sewage tank filled with the remains of infants, older babies and children up to four years old, discarded without coffins, one on top of the other in those chambers. The chambers are accessible only by a concrete lid at the top, not wide enough to allow an adult through, so we can only assume at this time that the babies must have been lowered down by some method or other, maybe by a sheet or ropes. We do not know yet.
These same chambers contain shutters with openings to the main sewage tank, which was originally designed to separate bulk sewage from water while it was in operation during the workhouse period. Since the babies were interred there, from the late 1930s onwards, heavy rain has flooded the area and the seeping water has caused some mingling of the little remains, which is evident from water marks in the chambers. In one photograph from the 2019 interim report, a little finger is attached to a chamber wall because of the water lashing against it. Many of the little remains have evidence of rodent gnawing.
In March 2017, statements of shock and horror were proclaimed by the Government and the President on all national media after the announcement by the then Minister, Katherine Zappone, regarding the discovery of multiple babies' remains at a sewage facility in Tuam on the grounds of the old home run by the Bon Secours. I naively thought then that my work was done and that now surely there would be immediate action by the State, the church and Galway County Council to do the right thing and exhume the babies from this sewage site. Within a month, to my dismay, the Tuam home tragedy fell silent, the site was restored to its original condition, the chambers were closed in, soil was put back and grass seed was sown. Imagine the pain this caused to the families of those in that sewage tank. What would committee members' reaction be if they had a baby brother or sister within those infested chambers?
Outside the walled-off area with the grotto we are all so well accustomed to, there are many more burials, some perhaps in boxes, others perhaps in shrouds. They are in the grassed area all around the playground, under the pathways and under part of the huge playground. We know this from local knowledge, from the wording in a Galway County Council memo the commission included in its fifth interim report and, more importantly, from a ground penetrating survey carried out under the instruction of the then Minister, Katherine Zappone, in summer 2017.
I have forwarded the result of this survey to all committee members. They will see from the pages I have sent that the radar system picked up 69 anomalous and 23 subtle responses, many of them measuring 3 ft 3 in. by 1 ft 6 in., which strongly suggests little burial plots. The anomalous responses are marked and numbered on one of the photos in the survey. It allows easy access to carry out experimental excavation. It is almost a case of "X marks the spot". The report suggests that trial excavations be carried out in those areas. We cannot forget the missing babies of Bessborough Mother and Baby Home, Sean Ross Abbey and all the others; they must be accounted for as well. Some ground was surveyed in those places but it did not account for possible underground passages and vaults such as that in Tuam. It is quite possible they used those areas.
DNA testing of remains is crucial and quite possible. The archaeologists who worked on the Tuam site stated in the fifth interim report that the babies remains are in excellent condition and, although mingled because of seeping rainfall, have little sign of erosion or fragmentation, including even delicate infant skull bones. DNA testing should also search for signs of starvation, evidence of which is to be found in the death reports, injury and malpractice. A DNA database should be set up as soon as possible for families who wish to give their DNA in the hopes of retrieving their babies' remains.
I thank Ms Corless. That was very difficult but important information that we all have to hear. Ms Mary Harney has provided us with observations on the general scheme and the document will be considered by the committee. I invite Ms Lohan to make her opening statement.
Ms Susan Lohan:
I thank the committee for inviting us here today to respond to the proposed burials Bill. I am the co-founder of Adoption Rights Alliance. I am joined by my fellow advocate and survivor, Ms Mary Harney. We are pleased to be here today. I am an adopted person, separated from my mother immediately after birth. Ms Harney was born in the Bessborough mother and baby home in County Cork. She spent two and a half years in that institution and was illegally fostered from there. At the age of five, due to neglect on the part of the foster people, she was taken to court by the Irish Society for the Prevention of Cruelty to Children, ISPCC, and was subsequently incarcerated until the age of 16 and a half in the Good Shepherd industrial school, Sunday’s Well, Cork.
We are here today in a private capacity but we are also both members of the collaborative forum of mother and baby, county and Bethany institution survivors and have been since 2018. As survivors, we endeavour to describe the treatment of all victims of Ireland’s forced adoption and enforced family separation systems in human rights terms, irrespective of when and where the abuse occurred. We have embraced the international human rights models of transitional justice in describing the actual abuses and in recommending potential remedies around the four pillars of truth, justice, reparations and guarantees of non-repetition. Sadly, we find that the proposed burials Bill is not in keeping with these central tenets of transitional justice and we will address our concerns under a number of headings. We are not legal experts. We are volunteer advocates for our fellow survivors and the voiceless 9,000-plus deceased children identified by the commission of investigation. The committee will undoubtedly hear more professional and more detailed submissions over the course of its pre-legislative scrutiny. We make our recommendations from the heads and hearts of those so willfully discarded and othered by the State, its agents and various churches.
It is evident from the outset and from reading the purpose of the Bill that there are huge problems. The Bill allows for the powers of the coroner under the Coroners Act to be disapplied during the existence or establishment of an agency that will be set up to investigate the existence of inappropriate burials. I have a small table that highlights some of the issues that we would like the committee to highlight. It seems from the Bill that intervention will be based on the existence of inappropriate burials rather than suspicious or unlawful deaths. The Government has given itself considerable powers not to proceed with intervention at various sites. It has a five-criteria test for whether an intervention should proceed. We are concerned that the Government can unilaterally decide to memorialise a particular site, rather than to intervene and investigate any remains.
We feel that the wishes of family members and survivors for truth and justice should be central in the burials Bill. An alternative could be to amend the Coroners Act, rather than proceeding with this Bill. We feel that it is imperative that we get to the absolute truth of all of these deaths and burials. As we saw from the final report of the commission of investigation, several survivors were disbelieved by the commission. There were references to contamination of evidence and I think the Irish public needs to realise the extent of the horrors that existed and happened in these various institutions. The lack of involvement of local coroners and the entire coroner system is a misstep within this Bill. We propose that either the coroner system is interwoven into this Bill or that the Coroners Acts would be amended to give them the powers which are now being earmarked for this agency.
The suggested provisions on sealing data that emerges from the investigations into these burials is anathema to us.
As we saw with the digital archive controversy in late 2020, the Data Protection Commissioner has already ruled that such sealing of records is unlawful so I am somewhat at a loss as to why the same scenario is being suggested for this Bill.
We also want relatives to be kept informed at all points during any investigation. Progress reports should not just be going to the Minister. Some of the timescales are also deeply disturbing for family members of people with children whose remains are interred in these various sites. A timescale of five years has been suggested so that the agency would not have to release a body within that timescale. We very much reject this.
I hope the committee will have an opportunity to listen to the various experts who will present today. From the survivors' perspective, this Bill falls far short of what is not only expected but promised if we look at the Taoiseach's apology. It falls very far short of what would be expected in international best practice when it comes to the treatment of mass graves.
Professor Phil Scraton:
I am emeritus professor in the school of law at Queen’s University Belfast. I thank the committee for inviting me to speak to the Government’s general scheme of the Bill. I will provide a brief introduction to my research and who I am. My knowledge regarding the investigation of, and inquiry into, deaths that occur in controversial circumstances specifically involving state and non-state institutions spans more than four decades. I am a founder member of the UK-wide non-governmental organisation, NGO, INQUEST, which was established in 1980 to safeguard and promote the best interests of bereaved families. Since then, the focus of my research has been on bereaved families and survivors of tragedies. I headed the research for the independent panel into the Hillsborough disaster, whose extensive report in 2012 led to new inquests that reversed the findings of the initial inquest and brought about a new police investigation and criminal prosecutions.
I apologise for interrupting Professor Scraton. Is there any possibility of him turning on his camera as we cannot see him on screen? Can he still hear us? I hate putting Dr. Maeve O'Rourke on the spot but would she like to take over as we are having technical difficulties?
Dr. Maeve O'Rourke:
I thank the Chairman. My name is Dr. Maeve O'Rourke. I am a lecturer in human rights at the Irish Centre for Human Rights in NUI Galway and I am appearing alongside Professor Phil Scraton, professor emeritus, at Queen's University Belfast school of law. Due to technical difficulties, I will give Professor Scraton's opening statement.
What Professor Scraton wanted to say and, I think, the committee, may have heard, was his thanks to the committee for inviting him and a brief introduction to his research and knowledge regarding the investigation of, and inquiry into, deaths that occur in controversial or contested circumstances.
I am sorry, I am getting feedback. I hope it is okay and the Chairman will let me know if it is not.
Dr. Maeve O'Rourke:
The following is a brief introduction to Professor Scraton's work. Professor Scraton is a founder member of the UK-wide non-governmental organisation, INQUEST, established in 1980 to safeguard and promote the best interests of bereaved families. Since then, the focus of his research has been with bereaved families and survivors of tragedies.
Professor Scraton headed the research for the independent panel into the Hillsborough disaster whose extensive report in 2012 led to new inquests which reversed the findings of the initial inquest and led to a new police investigation and criminal prosecutions.
In 2019, Professor Scraton was appointed to the UK JUSTICE working party into inquest and public inquiry reform which reported the following year. In 2020, Professor Scraton was invited to give written and oral evidence to the New South Wales select committee on deaths in custody and coronial reform.
Currently, Professor Scraton is principal author of the research report of the Irish Council for Civil Liberties, Death Investigation, Coroners' Inquests and the Rights of the Bereaved, to be published later this month; he is chair of the Haldane Society's inquiry into the official inquiry process in England; and with me, he is a member of the three-person panel appointed to advise Northern Ireland's Ministers on the most appropriate form of investigation and inquiry into the mother and baby and Magdalen institutions. Together, we co-authored with nine other academic practitioner and survivor authors our written submission which the committee has.
Turning now to the proposed legislation, clearly its enactment would disapply existing powers of the coroner in whatever locations and in respect of all deaths over which a new agency is given jurisdiction. The Bill implies that families of infants and mothers who died in institutional custody will be compelled to make a choice between exhumation and identification of their relative's remains followed by reinternment on the one hand and the coroner retaining the power to hold an inquest to confirm the deceased's identity, approximately when he or she died, where he or she died and, most important, how he or she died. The Bill also implies that no appropriate process already exists to conduct examinations, exhumations and identification, where necessary, of individuals who have died when in State care or when actions or inaction of State employees are involved.
I am just going to pause now because Professor Scraton is back with us. Should I continue or hand over to him?
Dr. Maeve O'Rourke:
The committee will be aware that the coroner has a statutory obligation to hold an inquest if she or he considers that a death may have occurred in a violent or unnatural manner, suddenly and from unknown causes, or in a location or circumstances that require an inquest, for example, in prison. The Coroners Act 1962 also empowers the Attorney General to direct a coroner to hold an inquest where a person has died "in circumstances which in his opinion make the holding of an inquest advisable". It is now two decades since the Government-appointed working group published its review of the coroner service in Ireland calling for root and branch reform. The ICCL report authored by Professor Scraton establishes that existing legislation requires significant overhaul to comply with the European Convention on Human Rights. Having said that, existing legislation allows the Minister for Justice to arrange exhumation and post-mortem examination which could and should, where possible, include identification. It also permits inquests to proceed where bodies have not been found.
The crucial questions to be answered are why no inquests into the deaths in mother and baby institutions or county homes have been held and why the general scheme of the Bill proposes to disapply the coroner’s existing mandatory jurisdiction. We are aware that coroners have been notified of the unmarked burials in Tuam and Sean Ross Abbey. The final report of the mother and baby homes commission of investigation established that 9,000 or 15% of the infants born in the institutions examined died there, in addition to the deaths of 200 mothers. The commission describes the infant mortality rate as "very high" when compared to the national average. There are many deaths for which no specific cause is known, where there is no death certificate, or where the resting place of the person is unmarked or unknown.
The mother and baby institutions were the responsibility of the State. They were either directly State managed or there was extensive State involvement in their operation through funding, regulation and inspection. Article 2 of the European Convention on Human Rights applies, requiring an effective investigation wherever a person dies in circumstances engaging State responsibility, not least in the context of inhumane treatment. Article 8 of the European Convention, that is, the right to respect for private and family life also applies. This is particularly relevant to ensuring the return of remains to relatives.
Our recommendations to the committee are contained in our written submission. Given that we concur with the commitment to overhauling the coronial system in Ireland, such reform should prioritise deaths in mother and baby institutions and other related settings. If the Government wishes to maintain its proposal for an agency, that agency must co-operate with the overhauled coronial system as that system carries out inquests into deaths in mother and baby institutions and other related settings. Our written submission contains details about issues regarding deaths not only in mother and baby homes but also in industrial schools, Magdalen laundries and other institutions. The appointment of an agency coroner could be considered, with the necessary additional powers and duties to comply with Ireland's European human rights law obligations. These additional coronial duties include independent investigation, dedicated infrastructure, full disclosure obligations, a mandatory requirement for publication of findings and full involvement of families.
It is a privilege for me and Professor Scraton to be here today alongside those whose lives have been, and continue to be, directly impacted by this institutionalised atrocity. Today we reflect on the inhumanity within these institutions, meted out by those within and beyond the walls who operated and serviced them. We are involved in a professional capacity, albeit affected profoundly by the revelations. For the families, the bereaved and survivors, however, there is not a day that passes on which those deeply impacted by this inhumanity do not mourn their loss. It has defined their lives and their voices must be heard.
The State’s response must meet their right to truth, justice, acknowledgement and dignity. We both look forward to being of further assistance.
I thank Dr. O'Rourke very much. I will now move on to questions from members. I remind members that they have five minutes for their questions and that this includes the answers. I will give members a one-minute warning because I know they are not present in the Chamber and cannot see the clock. We have a speaking rota for today's meeting. Senator Seery Kearney will ask questions on behalf of Deputy Phelan. I invite her to come in with her questions first.
I thank our witnesses very much. I cannot but begin by saying how appalled and moved I was reading the submissions and opening statements for today's meeting. I do not think any of us could but be extremely upset by them. We are also here in our professional capacity. I can only imagine the horror families and survivors live every day. I begin by acknowledging that and, as Dr. O'Rourke said, by being still with the sheer magnitude of that horror. As we go through the interim report, we see the horrific way in which human remains were dealt with, especially in Tuam. There is no way to overstate just how horrible and inhumane this was. I begin by saying that. That is where I am coming from in anything I have to say here.
I thank all of our witnesses for their extraordinary work and for their contributions here this morning. I begin by thanking Catherine Corless especially. Our State owes her a serious debt of gratitude for bringing this horrific history to light. I agree with her that this has gone on for too long and that now is the time for action. I note that several of the submissions for today's meeting talk about us acting or moving quickly. I believe this pre-legislative scrutiny will give the witnesses an opportunity to see just how determined this group of public representatives is to ensure that happens very quickly, that this legislation is acted on and that decency, respect and human rights are accorded to these remains. That is necessary.
My questions and commentary are open. I just aim to hear further detail on a number of matters. The need to keep family members informed is absolutely essential. Thus far, have we had a means whereby everyone who believes they are a family member has had an opportunity to contribute? Do we have some sort of list or database apart from the records of the homes? Are we confident that has captured everything needed to ensure that family members are kept informed? At some point, this agency will need to compile some sort of index or develop a mechanism whereby people can register their interest, that they need to be kept informed or what they believe. Perhaps this could be of assistance in developing a DNA database which would extend beyond just the immediate family members, which is what is currently planned. I am interested in hearing comments on that.
As regards the coroner's jurisdiction and the agency, because this is the first time an agency has been established with this particular, very specific remit, it may be useful to write into the Bill the ability to grant or remove powers or to move them somewhere more appropriate as experience is gained and as we go through the process, with Tuam being the first of many. In that regard, I note the very helpful appendix A to the submission of Mary Harney, Mary Lawlor and Susan Lohan, which tells us what happened in the investigation-----
All right. Apologies. I am interested in that interplay of the agency and the jurisdiction of the coroner and how we can free up the agency to be all that it can be. I am fearful that, in advocating for a role for the coroner, we may in some way hamper or hinder the powers of this agency to be everything we want it to be. I will leave it at that and come back in later.
I thank the witnesses for their opening statements and their submissions. Today is a really important day. It opens the door to try to move on and give these lives the respect they were not given in life. I commend Ms Corless on her work. The domino effect of what she has done has been tremendous. The State owes her significant thanks. It is really important the victims are at the front of our thoughts here today, as well as the families who are grieving or looking for family members and the little babies who may no longer have family members in existence because this goes back to the origins of the State. It is incredible to think of the little lives that were lost and not taken care of properly. Today is a good day because the State can come back and say that all those lives mattered. This is the start of that process.
I only have one question because, for me, today is a listening and learning process to inform the next steps to be taken by the committee, such as delving further into the human rights issues or the issues to which Senator Seery Kearney referred, such as the coroners and that overlapping of responsibility. One thing that is not necessarily troubling me but about which I have a question is the threshold of investigation. I would like to tease that issue out, if possible. Where is that bar best placed? There is an emotion and a want for these children to be looked after and then there is the practicality of disturbing the rest of babies who may have been buried appropriately. It is important to strike a balance and to make sure we reach that threshold. Tuam is very straightforward in a way because, thanks to the incredible amount of work that has been done, we know babies are buried there. However, there is less certainty about the extent of burials at certain other sites. What are the opinions of the witnesses on that threshold? It is very important in the context of sites other than Tuam.
Ms Mary Harney:
I am deeply concerned that Ireland's international human rights obligations have not been fully followed or entered into in previous commissions of investigation.
I am concerned this may happen here too, that we will forget or ignore that Ireland has international human rights responsibilities and has abrogated those responsibilities or completely ignored them in the case of the investigations into the mother and baby institutions. Our commitments under the European convention really call for an effective investigation, which is one that involves - I know this is being included - family members of the deceased, and fully providing them with all access to all available information and records. However, I do not see how that can be done when records are already sealed.
For instance, people cannot get information from the Department about their own children being buried. I know that is certainly, and I have been allowed to say this, in the case of a Bessborough colleague where her brother died and the mother was not informed in time of the death or where the baby was buried. For years, she has searched, and during the commission of investigation, the commission found the baby was buried in Carr's Hill. Meanwhile, the mother had been told years ago that her baby was interred in the angels' plot in Bessborough. We have not had access to our records before, and this, for me, is crucial to the effective investigation. We must have access and the investigation must be in public. It must also ask all the relevant questions, the who, what, where and why. I believe that by following or incorporating the guidelines from the Minnesota and Bournemouth protocols, we can achieve this.
I am going to leave the rest of how that is achieved to the humanitarian law professors, who are going to follow, and to the forensic archaeologist. I believe the coroners must be involved. Maybe we should scrap this Bill and replace it with a more robust coroners Bill with extra funding. Bring on the forensic archaeologist and make sure the identities match with the sparse records we have or the unknown records for Bessborough. We know there are more than 900 children missing there. Where are they?
I apologise to everyone in advance because I am going to have to try to move people on. If people can direct their question, if they have a specific question, to a person, it would be really helpful.
I thank all of the witnesses. I do not think that I have done as much reading as I have done over the past while on any topic that I have been involved with since I came into public representation. It is absolutely heartbreaking, it is horrific, and it is a really dark stain on our history as a State. I commend all the witnesses who have appeared already and the ones who will appear later on. I know how difficult it is even for me to speak around this, so I can only imagine how difficult it is for the witnesses. I thank Ms Catherine Corless, in particular, for starting the ball rolling, for want of a better word, discovering the fact that 796 babies and young children had died in Tuam and, worse still, as she said, identifying that some of these children were discarded into a sewage pit. Just even the thought of it boils my blood.
I have a generic question for each of the witnesses which I ask because I am looking for advice on this as well.
What one change would each of the witnesses envisage in the legislation that would make it stronger and fit for purpose and provide a more humane outcome? I heard what was said about the coroners. That Bill could be included in this as well. I am trying to see if there is one change that could be made. I know it is difficult to answer with one change, but that would give me some guidance as we move forward in this process.
Ms Catherine Corless:
I would like to ask about what was mentioned in the report; I would like to have it clarified. It said the Government would still have the power, even when the agency is set up, either to add to or subtract from what is in the Bill. What exactly does that mean or does anybody know? I would be uneasy about changing anything that would lessen the exhumations. Can the Government just say, "We are not doing this, we will do that"? Is that the way it is going to be? I would like to have that clarified.
Ms Susan Lohan:
There are two basic changes that could happen to this legislation in order to satisfy family members and survivors and our international human rights obligations. One is that we have a thorough investigation of the how - how did these children die? Obviously, the family members are horrified by the conditions in which the children were buried, but they certainly want to know if their children died of natural causes or if they were unlawfully killed or killed in suspicious circumstances. The second change would be not to allow the Government to decide not to investigate certain sites. All survivors and family members are equal. I tried to cobble together a very basic table which showed the number of significant sites where the number of deceased children has not even been established. That situation cannot be allowed to prevail. The Government cannot say, "Well, we do not know, so we are not going to bother with that and we will just memorialise, erect a statue or whatever". That cannot be allowed to prevail.
Professor Phil Scraton:
Many apologies for the breakdown in communication. I do not know why it is occurring today. I want to try to group the three questions together, if I may. First, if we take it right back to the beginning, what does my work with bereaved families tell me? It tells me what people really want, and this is all the families I have ever worked with and it is absolutely clear from all that has been said today. People want to know the detail of the context in which their loved one died. They want to understand the specific circumstances in which their loved one died. They also want to explore the consequences.
Currently, the State's priority is to establish these priorities generically for families. We are talking about families as if they are one. In the work I did on Hillsborough, there were 91 families involved, all of whom had their own specific needs and requirements in terms of the inquests even though all died in the same circumstance. In this situation, where each of those who died did so in very specific circumstances, every family should have the right to access the details of those deaths. Ms Corless stated that we need to know what happened as regards all deaths - how the burials took place, who was responsible for discarding the babies and so forth. We need answers to that. What Ms Corless is undoubtedly saying is that she wants those investigations to be specific to each death. I will take that into what is so significant in all of this, the inquests.
As we already stated, the inquest is there to establish who the person was, when he or she died and where he or she died as closely as possible but also how he or she died. This is the issue central to all inquests in all circumstances, namely, the specific circumstances of how a person died. We do not really have any choice in this because these, we would argue, are article 2 inquests. The current proposal disapplies the coroner's jurisdictional powers and blocks the right to inquest. When I read in the proposed Bill that there would be discretion on this I was really surprised. There can be no discretion on article 2 inquests. It is an obligation on the State, a dual obligation, and this answers two of the questions raised previously. First of all, there is an international human rights obligation that is unquestionable. However, there is also a domestic obligation under domestic law. What is so important from my point of view - and this comes out of the most recent work we have been doing on death investigation, coroner's inquests and the rights of the bereaved in Ireland, which will be published in two weeks - is that what we can see in that is there is a process which is inadequate in terms of investigation and we want to see that changed. In relation to this specific range of cases it is absolutely vital that an agency, if it is established, has agency coroners. In other words, an agency cannot somehow trump coronial investigation. Thus, an agency that is established should actually incorporate the coroner's role within it and the agency should be the coronial role going to the who, when, where and how. That is absolutely central to our argument. We lay it out in detail in the 61-page submission. The State cannot duck that responsibility; these are article 2 inquests and must be seen as such. Even though we might wait for reform of the coronial process in Ireland, this cannot wait. The relationship between the agency and coroners' investigation is crucial.
I will conclude with this point. One of the most impressive issues I have seen in our work since Hillsborough but also going to the 7/7 bombings in London and the inquest into anorexia in Cambridgeshire, is that at the beginning of each of those inquests bereaved families are able to come to the court and state the impact those deaths have had on their lives. This is crucial. It must be a forum where families can come, provide the account of their lives and share it with the general public. One may ask why. The answer is because it is their inquest, not simply the State's inquest.
I thank everyone for their contributions and advocacy in this work. In order to be effective, I will go straight to questions but obviously my sentiments are the same as everybody else's. I will address Ms Lohan and if there is any time left after that I will ask Dr. O'Rourke a question.
If Ms Lohan does not mind, I ask that she give a one or two-word answer to these questions. I found her table very useful and wish to get clarification on a couple of points within it. In Ms Lohan's opinion or in that of survivors which she is aware of, will the provisions of the burials Bill allow for any analysis of how the more than 9,000 children died?
Ms Susan Lohan:
No, they will not. We are not legal experts but it is wonderful to hear our concerns being endorsed by the experts who have spoken already and will speak later. How the children died must be addressed. There is just no way of getting around that. It is not a matter of moving children from one burial spot to another, how they died must be investigated as well as who is responsible for that.
Will the provisions of the burials Bill provide for any analysis other than identification of either ad hocmass graves or individual graves at the former institutions where non-marital children died in their thousands?
Ms Susan Lohan:
From what we can see, the Bill will not allow for that. It is interesting that the Senator has pointed out that not all the children are necessarily going to have been buried in one spot, as has been suggested regarding Bessborough, for example, or Sean Ross Abbey. The remains of the children's bodies might be scattered around individual sites. We need the conditions in which those children were interred to be preserved and protected.
If the provisions of the proposed Bill dictate that the provisions of the Coroners Act must be disallowed during the life of the agency in respect of intervening on the site of a mass grave, how would a clearly suspicious or unlawful death be reported or investigated?
Ms Susan Lohan:
That is the million dollar question. It is not clear whether the agency would be compelled to do that because coronial powers would be suspended while the agency is in existence. The agency would not be allowed to commence work on a site where the Garda and coroners were already involved. It is not clear regarding which sites these are, whether the Garda and coroners would be involved from the outset or whether the agency would have carte blancheto start its work. I am afraid that the proposed Bill raises more questions than it actually answers. We are certainly not satisfied that the identification of the cause of death and who was responsible will be answered by this Bill and that is deeply worrying.
I thank Ms Lohan. If I have time left, I would like Dr. O'Rourke to elaborate on that last point and to give us an insight as to why this agency must have coronial powers to get an answer regarding why things happened. Many statements will refer to transitional justice and human rights. I wonder if Dr. O'Rourke can give us the reasons why this proposed Bill must address the coroner's role.
Dr. Maeve O'Rourke:
I will be as brief as possible. I think this aspect relates to the question raised by Senator McGreehan concerning what the threshold is for investigation as well. Before I reiterate what that threshold is, and regarding the issue Senator McGreehan has raised, I think there is some confusion among the public over whether a coroner's inquest requires the exhumation of every body. It does not. The coroner is about investigating and an investigation can happen in the absence of a body. It may be that an exhumation is part of an investigation, but the investigation does not require an exhumation.
Returning to Senator Ruane's question about how many of these deaths require a coroner's inquest, we argue that every single one of the deaths in the mother and baby institutions requires an inquest. The real question then is where that process begins and in respect of a long-term agency coroner. This aspect also relates to Senator Seery Kearney's question regarding the extent to which families even know yet that they might be affected or be able to make representations in this regard. Where to begin then is the real question and not saying from the beginning who should or should not have an inquest, because there is not enough information. What we do know enough about is that these were State-related institutions, either directly run or funded and regulated by the State. There is ample evidence that generally, human rights violations were widespread. Therefore, these are places in respect of which all deaths require inquests. The question is where to begin and how to go about the process. There must be access to records in order that people will even know to come forward and perhaps to request that they are prioritised.
I confirm that I am in the precincts of Leinster House. Like others, I begin by thanking Catherine Corless. Without her, we would not be at this point today concerning engagement with victims and survivors.
We are trying to bring about justice for all those not just associated with Tuam but also the entire mother and baby system that prevailed in Ireland for far too long. What a horrible system it was. The work we undertake as a committee on a continuous basis needs to have victims and survivors at the centre of our thoughts.
I will jump straight into some contributions. I take my hat off to Ms Corless. I have dabbled in local history. Like other Deputies and Senators preparing for today, I read the briefing notes but I have honed in on some matters on which I have worked over the years. Many Irishmen died on battlefields in the First World War and there is a very extensive Commonwealth War Graves Commission in Britain that has immense powers to exhume and remove bodies from ground that is not under British jurisdiction, bring them to Britain and undertake a full coroner assessment, with DNA to be matched to a family member. Ultimately, this can put a final chapter in the life story of somebody who died on the battlefield.
I hope Professor Scraton could consider this because he has looked outside the realm of mother and baby homes at different burial scenarios. There must be something in international law. Most recently, I looked at the Hungarian example. The first step Hungary took as a state was instead of seeing the burial grounds as illegitimate, or inappropriate as we are calling them in Ireland, it gave them legally protected status. The next part was an 11-stage process from exhumation, including family members and those in a DNA database, ultimately leading to the reburial of the person in question after identifying the relatives. This brought the matter full circle.
I am sorry for rambling a bit but this is quite a new phenomenon for us to deal with in Ireland. Mother and baby homes are not a new phenomenon. They were around for many decades. In the tragic aftermath, we must look at what other nations have been doing for the past four or five decades. I will finish by asking Professor Scraton on his views on the process I have described. It was a far more complex undertaking and it has been done very successfully over many decades.
I believe in the coroner process. This month 98 years ago, an ancestor of mine was murdered in Sixmilebridge. It was believed that it was suicide and it was not until his body was taken from the grave, laid on white sheets in the burial ground and a coroner's report undertaken that it was established that the man was murdered. Far too many families will go with stories untold and final chapters not completed unless we have a coroner's input on this.
Will Professor Scraton speak to the layers of legality that other jurisdictions have put in place to allow for exhumation, protection of burial grounds, DNA tracing and the work of coroners?
Professor Phil Scraton:
I can be very quick, but a range of issues were raised by the Deputy. They are complex, different but distinct. Different states operate in different ways in memorialising the dead and also in their record-keeping and the establishment of cause and consequences surrounding death. When the Deputy spoke, the genocide in Australia sprung to mind and the deaths of Aboriginal families at the hands of the British invaders. We have seen that very same matter raised again about the relationship between sites of memorial and sites of genocide, on the one hand, and sites of respect. The Deputy is raising an important question but it is separate and distinct.
It is important for us to consider today how those deaths are investigated, specifically with regard to their individuality and specificity. It is a question of how they are understood. The Deputy is absolutely right that we should be thinking of that broader level of memorialisation. Broad memorialisation does not help individual families come to terms with the circumstances of these deaths. I am not in any way discounting what the Deputy is saying, I am saying it is a twin track.
Lest it be misinterpreted, I am saying that there are levels of legality which allow for coroner assessments.
In the case of someone who died on the battlefield, we know he or she died on the battlefield. We do not know how the children in mother and baby homes died. What I am saying is that there is long-established legal procedure both in Britain and on the Continent that allows, albeit in a very different context, for everything from exhumation to coroner scrutiny right down to reuniting remains with a family through DNA testing. I am just saying that as a committee we should not overlook that legality either.
Yes. Sorry. I was having trouble unmuting, which is the challenge of our era. I thank very much the witnesses for their expert guidance so far. There is a lot to read in the various submissions. I am sure we could dedicate two hours to each individual witness instead of unfortunately having to put everyone together. One of the things I am struck by is that throughout this entire process there has been an erosion of trust. It is essential we try to rebuild, if we can, some of that trust of survivors and families. It is really important we listen to what is being said here and what is possible to do and should be done. I am quite struck by the fact that there is a basic right to have questions as to how family members died answered, and we are all here trying to ensure that the Bill does that. One of the things I am struck by is the role of the coroner in all this. I am looking at this in a similar way to Deputy Crowe when he asked how other countries have managed this. Picking up on Professor Scranton's comments on genocide sites and mass graves in other countries, I would love to hear more about how other countries have managed this and specifically what we are missing in the Bill, not just around DNA identification. Should we look at including other things in the Bill such as things that would help the identification process, the records, the sociological stuff and the anthropological stuff? I know we will hear about some of that later, but specifically what are we missing to ensure that these agencies can do the job we need them to do, not the job they want to do, if that makes sense?
Professor Phil Scraton:
I am not named after an American city. I do want to come in on that. Deputy Costello's question is highly understandable but I do not believe it is appropriate in these circumstances. At the moment, as far as I am aware, in advanced democratic societies there is no system in place that is appropriate. My work in Australia demonstrates that absolutely clearly. Australia is looking to the UK, for example, where I worked on these issues for 25 years before I came to Ireland. The UK system is an imperfect one. I do not know how it would even begin to deal with this issue at the moment.
This is why we propose this has to be a groundbreaking unique first attempt to investigate thoroughly, examine the circumstances and go through all of the issues heard in the submissions today. I want to make a point on the relationship between agency and coroner. I was off-line and I am not sure how much of the statement on the coronial position on agency was made clear. We are speaking about mass deaths and multiple inquests. The coronial system in Ireland could not do this job. Agency coroners would have to be appointed specifically to work on these issues. This would be a major investment for the Irish State and there is no question about it. I have to say that justice does not come cheap when a State has administered injustice over years. We understand where the argument about agency comes from but it is not sufficient. It has to be plumbed into the coronial process. This means the appointment of not just one agency coroner but as many as it would take to examine and investigate thoroughly all of these cases individually on behalf of each family that comes forward.
I thank the witnesses for giving us their time today and for all of the work they have done on this very important issue. I want to use my time to gain from their knowledge and get their guidance. Our job is to try to frame legislation that will in some way begin to bring about justice for these human rights atrocities. I listened closely to the witnesses and I have read all of the submissions and I thank them all. I would appreciate if Professor Scraton could speak to us a little about the coronial process and about investigating each and every one of these deaths. We are speaking about 9,000 babies and somewhere in the region of 200 women, much of this being historical. What would be the scale of such investigation? What would be involved in terms of resources, time and expertise? I appreciate it is a very broad question but it would be very important if Professor Scraton is able to share this with us. In doing this we want to try to get it right and we want to try to bring about justice. I do not know whether I have picked up Professor Scraton correctly but I heard him say the coroner's office does not have the resources. Does he propose this is something on which we should engage external and international leadership as a State? I would also like to hear from Ms Corless, Ms Lohan and Ms Harney. I appreciate the urgency because it has been four years and it has taken us too long to get this far but where does the balance come between trying to progress what we have in front of us and starting again from scratch?
Ms Catherine Corless:
I also wonder how long it would take. It was mentioned previously by somebody in a quick remark that we could be speaking about up to 25 years if we were to examine every little baby. I am a bit lost because I do not understand the coroner and the workings of the agency but I can imagine it would be enormous. It was also mentioned that justice does not come at a cheap price.
This is all about justice. We need to do the best we can to ensure that every family member is satisfied with how the remains of their little brother or sister are examined.
This may not be appropriate at this stage but may be later on in the meeting. Who will pay for the cost of the exhumation and DNA testing? This has not been spelled out in the burial report. I have been campaigning as best I can for us to deal with what I call the perpetrators, the people who did this, who put the babies there in such circumstances, who discarded the babies. What about the religious orders? Are they being called in? I am anxious to know that.
In my opinion the Bon Secours Sisters are no longer a religious congregation as such. These days, they are first and foremost a business. They are a multibillion euro corporation. They have merged with the Mercy Sisters in the United States and the Bon Secours Sisters in the United States. I would hope that the Government is approaching them regarding Tuam specifically. We know how many babies have died and are missing. I would like to know who is funding all this.
Ms Susan Lohan:
In response to Senator Fitzpatrick, it will be an incredibly long process if we are to examine every single death. However, I agree it is the price of having dispensed with the State's obligations towards all its citizens. In other jurisdictions, the state has paid that price.
I would argue for speeding up the process for certain families. There are family members today who want to know where their loved ones are buried and how they died. Those cases could be prioritised and the children for whom nobody so far has come forward could be, unfortunately, left to the back of the list. However, we should deal with those families who are suffering today.
I totally concur with Ms Corless on the need to hold the various religious orders to account. Ms Corless rightly calls these organisations businesses. We have the perverse situation in Ireland that we, as taxpayers, are actually helping to fund those organisations because we continue to outsource vital social services to them. In some of the campuses where these atrocities occurred, the same religious orders are still in situproviding services to, for example, intellectually disabled individuals. The State needs to get its house in order and decide if we are going to subsidise the organisations that carried out the atrocities or if we are going to absolutely cull them from the list of organisations that we might engage in the provision of social services. That needs to be dealt with.
I thank all the witnesses. I have two questions, the first of which is for Dr. O'Rourke. We have heard how crucial finding the fate of the disappeared is from a human rights perspective, but disapplying the coroner's jurisdiction seems to fly in the face of those fundamental human rights. However, the Coroners Act clearly sets out that it is the duty of the coroner to hold an inquest where the body is found in their district and when a person dies in State custody or detention. Does this law still apply even if the Act disapplies the coroner's jurisdiction in this instance? Obviously, we know it would require unprecedented resources, but that would not negate the law and the need to find those resources. That is my first question for Dr. O'Rourke.
If there is time for a brief answer, my second question is for Ms Harney, Ms Lohan and Ms Corless. In her opening statement, Dr. O'Rourke mentioned that the Attorney General and the Minister for Justice may direct the coroner to act. Would Ms Harney, Ms Lohan and Ms Corless like to see this happen?
Dr. Maeve O'Rourke:
We have set out that the coroner has current obligations. The first question I raised concerned the explanation for the absence of inquests to date. We need real answers to that so we know what we are dealing with. What are the civil servants saying as to why the coroner has been disapplied in this law? Do they not believe there is a legal requirement or do they think it is too expensive? The coroner is currently obliged and we need to understand why it is not happening. I believe the legislation will disapply fully the coroner's current jurisdiction. That is the point of it. Until it comes into force, the coroner is obliged, but once an agency is established under this law in relation to a particular area, the coroner no longer has that legal obligation or power. It is a very good question.
In Dr. O'Rourke's opening statement, she spoke about how the Attorney General and the Minister for Justice can instruct or ask the coroner to act. Is that what the three witnesses in the Chamber would like to see happen?
Ms Susan Lohan:
Absolutely. This Bill perhaps has not been sponsored by the most appropriate Department. It might have been better vested in the Department of Justice. These are the most awful legal matters and why the Minister for Justice or the Department has not already spoken out on the lack of progress and obvious action at Tuam, Sean Ross Abbey and Bessborough is astonishing and inexplicable. We need clarification from the Minister on that without further delay.
Ms Catherine Corless:
I would agree with that. There seems to be an absolute lack of will from the Government to act on this. It is being dragged out and dragged out. When I started my efforts first, memorialisation was being heavily decided on for Tuam. It was mentioned earlier what happens in other countries where there are mass graves after war. It is almost, I feel at times, as if it is, "They're just illegitimate babies. Leave them there. Let them rest." I had to fight that for many years, that these were individual babies. They were Irish citizens. God knows they could have been with us still. God only knows what could have become of them. They could be sitting here in the Dáil. They had every potential if they had got half a chance but the consensus was: "They are only illegitimate babies. We will put up a statue to them." Galway County Council really pushed that at the time. It is time we made up for that and treated them as individuals and Irish citizens.
I thank the witnesses. It is important we listen to what they are telling us and, particularly, to their concerns. Ms Corless has done great and important work. My first question is for her. She was given bits and pieces of information and, thankfully for us, she pieced it together. Would she say local knowledge needs to be given a priority in this legislation? In her research, she found herself suspicious but she was determined to do everything she could. I am interested in seeing how local research can be given a place in this legislation. I am working with some survivors in Carlow and, for me and for them, it is so important to get the local knowledge. It is hugely important that this plays a role and Ms Corless might come back to me on that.
Ms Catherine Corless:
I will indeed. Right from the start, when I began my research, I had absolutely nothing to go on. Even in our local library there was absolutely nothing on the Tuam home. It was as if it did not exist in paperwork. I did try for local knowledge at the time and I got very little. I found that people were very hesitant to speak about the home. I feel that a lot of people knew what was going on, had put it at the back of their minds, and they just wanted to forget about it. I know that the then Minister, Katherine Zappone, had requested in the fifth interim report that local people come forward with evidence and knowledge but absolutely nothing happened because it fell on deaf ears. I found out in the meantime that businesses in Tuam relied heavily on the Tuam home, supplying them with clothes, shoes and so on. There was a lot of input. It was even stated in one of the Galway County Council reports that they did not want to close the Tuam home in 1961 because one of the county councillors at the time said that the Tuam home was an economic plus to the town of Tuam. I think there are probably a lot of people with guilty consciences about what went on at the time. I found it quite impossible to get any information off the elderly people in Tuam who would have known stuff, especially people associated with the home. It was just a wall of silence. With regard to trying to get any information at this stage, I do not think it would work. That was my experience.
Okay. I will ask the two questions next, and I do not know if I will get to Dr. O'Rourke for my last one.
My first question is to Ms Lohan about the lack of provision for the treatment and protection of unclaimed or unidentified remains. I spoke to a woman this week who had miscarried one of her children. She sowed a tree in her garden. To her it was a place to remember, although it was not a burial site. Have the members of the Adoption Rights Alliance come to Ms Lohan with a suggestion of what would be an appropriate process of treating those unknown babies?
I share Professor Scraton's concerns on the establishment of an agency. There seems to be an accepted Statute of Limitations, which in Ireland seems to be that no inquest is carried out after 70 years. Is this standard international practice? I am concerned that when we consider the Tuam home, for example, the burials were validated in 2017. The last burial there was in 1960, which is 60 years, but the burials go back to 1925. We know this from Catherine Corless's great work. This would exclude many of these babies. I would like to know if Ireland is very far off the mark in respect of international practice by limiting it at 70 years. I imagine it would make more sense to give coroners full powers under the Act and resource the offices to do that. It is so important that coroners get funding. We spoke of this earlier. Funding is going to be very important in this and we need to make sure the funding is there.
I will pick up on some of the earlier comments to afford the opportunity for elaboration.
Dr. O'Rourke said that there is public misapprehension or misunderstanding that a coroner's inquest requires a body. The fact it does not is news to me as well, and that perhaps an inquest could proceed without a body. I understand there are circumstances where this can happen, but in this context and to understand how the babies died, I am curious as to how we could proceed investigating in the absence of individual exhumations and identities. This may be an inhibitor. In my head I imagine this to be a long process, and that we would have to have an exhumation, an identification and then an inquest of some sort. Perhaps she will elaborate on that.
On Ms Corless's points regarding local knowledge, and bearing in mind that we have appendix A at the end of the opening statement by Ms Susan Lohan, and that we have other sites, we will need local knowledge.
Is there a recommendation by which the witnesses could foresee the inclusion of local knowledge in an anonymous capacity, for example, so that in some way we could garner that information? I have a familiarity with the Gacaca courts in Rwanda following the genocide there and I was out in Rwanda. I have seen some of that process in a little way but I also know that it was deeply flawed in other ways when there were no parameters around how people contributed. The usefulness of that information was open to question and it was open to abuse for various agenda reasons. I am curious to know how we could facilitate that to happen.
Dr. Maeve O'Rourke:
I would be grateful if at some point Professor Scraton might come in and discuss this more but there are a few things I would like to point out. The question of an Article 2 European Convention on Human Rights, ECHR, inquest goes beyond the immediate cause of death to include contextual causes and circumstances as well. There is evidence that needs to be gained that does not just come from the body. It is also worth pointing out that section 22 of the Coroners Act 1962 states:
Where the body of any person upon which it is necessary to hold an inquest has been buried and it is known to the coroner that no good purpose will be effected by exhuming the body for the purposes of an inquest, he may proceed to hold an inquest without having exhumed the body.
Section 23 takes this further, mentioning the scenario where a body may be "irrecoverable". That is important because we have hundreds of bodies with no known locations and the answer cannot be to just not investigate. Section 23 states that where a body may be irrecoverable and the coroner considers it appropriate to hold an inquest, the Minister may order the coroner accordingly. It is worth saying that and perhaps in due course Professor Scraton can add to that.
Ms Catherine Corless:
I mention the following restrictions in head 6 of the Bill:
The lapse of time since the last known burial exceeds 70 years in relation to the date on which the circumstances of the burials concerned became widely known.
I rang up a member of the committee and he or she said that this head of the Bill is not as it reads. Could it be clarified whether that means that the last burial in Tuam was in 1960 and in 2017 the bodies were discovered? It omits a lot of the burials if one can read that at face value. Could that be clarified please? What exactly does that mean?
I cannot clarify that. One of the recommendations or things that I have discussed with the Minister is the possibility of running the timeline arising out of this pre-legislative scrutiny parallel to that of the mother and baby home timeline, namely to commence it at 1922. It would make sense to bring it along and expand it to that. I hope that would be one of the recommendations that would come out of this pre-legislative scrutiny.
I thank all our witnesses for coming before us and for their tireless work as advocates and professionals in seeking truth and justice for the innocent children and especially for their families. I also want to acknowledge and thank Catherine Corless for her advocacy and research on the Tuam site.
My first line of questioning is for Ms Corless and Ms Lohan on providing members of the committee with some understanding of what to expect at the Tuam site. That site will be subjected to delicate archaeological work and efforts will be carried out on the process of exhumation, examination and identification. What key findings were contained within the expert technical group report on the Tuam site? That might help us to understand what is entailed in the practicalities of doing this work and the types of technology to be used. I know Ms Lohan referenced that there should be a multidisciplinary approach to identification rather than solely basing it on DNA.
It would be good to get an understanding from a technical point of view. My question to Dr. Maeve O'Rourke is in regard to the impact of not involving a local coroner in the investigation and treatment of all mass graves. It is important we have realistic expectations and I am interested to hear Dr. O'Rourke's thoughts on that.
Ms Susan Lohan:
Some of the experts speaking later today will be better placed to answer that.
I will revert to a question by Senator Seery Kearney about the benefit of local knowledge. The Philomena Project was set up in 2014 as a joint enterprise between the Adoption Rights Alliance and Ms Philomena Lee, whose experience at Sean Ross Abbey was immortalised in a film that year. It has been a lightning rod for families, and mothers in particular, who suspect their children are buried at the home, although the commission was unable to come to a conclusion on that.
However, more people would be turned if they were to hear the absolute grief endured by the family members, and mothers in particular, who do not know if their children are even alive, never mind where they are. We must use every measure possible to convince people. As Ms Corless said, they probably have guilty consciences. We must move on from that. If people really want to assuage their guilty conscience, they must demonstrate they want to help and assist.
Similar to Ms Corless, I believe the knowledge is held locally because, at a number of the Sean Ross Abbey commemorations, people from the crowd have come forward to offer snippets of information which have proved very valuable. We must capture the good nature of people, people who want to do the right thing, and tell them now is the time to come forward.
Dr. Maeve O'Rourke:
Not having the coroner involved means the Government only plans to attempt to identify who the deceased are and to assist their reinterment in a very limited circumstance and possibly only in one or, maybe, two institutions, so accountability is completely absent and family members do not get to see information.
It is similar to, but even worse than, the problems of the mother and baby homes commission because, again, the people directly affected would not be given a procedure to access the files or the evidence-in-chief given by those still alive who know anything about the circumstances, they would not be given the opportunity to request questions are asked or to comment on evidence and, ultimately, they would be denied the truth in relation to these circumstances.
If we could spare 30 seconds or one minute, I would hand over to Professor Scraton.
I am taken with the submissions we have received today because it has shed new light on this legislation and has allowed me to think more critically about the flaws inherent in the legislation.
We, collectively and in a non-partisan way, need to find some mechanism to come together to ensure that this is a robust piece of legislation and that it deals with all of the issues that have been put before us today by the esteemed persons who have come before us and given of their time.
I want to pose one question to Professor Scraton or Dr. O'Rourke in respect of the transitional justice model, and this is something Ms Lohan has also raised, in particular in regard to the issue of accountability, truth telling, reparations and reform in a transitional justice model. It seems to me that it is not inherent or present within the legislation as it is constituted. We are talking today about finding a model that speaks to the bereaved families. To me, there is a model that could be used, and that is the Stormont House Agreement, where there was an historical investigations unit, an independent commission on informational retrieval, an oral history archive and an implementation and reconciliation group. I wonder if some of those ideas could be inculcated into this legislation to deal with the issues of local knowledge, so there is information gathering, retrieval and processing so as to build a more complete picture for everybody. That is the first question.
The second question relates again to Professor Scraton. As we heard in the opening remarks:
The Bill implies that families of infants and mothers who died in institutional custody will be compelled to make a choice between exhumation and identification of their relative's remains followed by reinternment on the one hand and the coroner retaining the power to hold an inquest to confirm the deceased's identity, approximately when he or she died, where he or she died and, most important, how he or she died.
Will Professor Scraton elaborate on that? It seems to me that he and Dr. O’Rourke are saying that if we proceed with the legislation as it is constituted at present, we are potentially in breach of Article 2 of the EHCR. What I do not want, as one legislator, is to be in breach of any articles that deny people their natural rights. That is all I will say.
Professor Phil Scraton:
I will come back to that last question. First, in regard to 70 years, I do not know where that figure has come from, I do not know who dreamt it up or why, but I am sure there will be an administrative explanation. There should be no exclusion. I do not believe we can put a time limit on suffering and I do not believe we can put a time limit on lack of knowledge in regard to death.
Second, a really important issue was raised about the cost and scope. I have heard this discussion so many times in regard to issues around mass death. We heard it in the North of Ireland and we heard it over the investigation into Hillsborough, which cost millions of pounds. The most expensive investigation in British legal history was into Hillsborough, which was just people dying at a football match. The important issue for me here is that it will cost what it takes. This was made very clear by the families. I do not think we can put a price on truth or put a price on accountability. While I acknowledge absolutely that this will be unprecedented in its cost, in its organisation and in its structure, I think it is a price that will have to be paid. There is no question in my mind about that.
The next point, the issue around accountability, truth-telling and reparations, is a very important one. We have seen it here in the North but that system and process are not ideal either. Dr. O’Rourke and I are currently involved in establishing an investigation here in the North into the mother and baby and Magdalen institutions. What is so important to gain is that we see this outside of the notion of reparation as simply a material value. Reparation is as much about knowledge as it is about value and I agree entirely with Deputy Sherlock’s point that accountability is central to that in the information gathering.
If the proposed Bill goes ahead in its present state, it will breach Article 2 of the European convention. There is no question in my mind about that. I know that view is shared by Dr. O’Rourke and the other signatories to our submission. Article 2 takes the whole process to a quite different level. It is an obligation and it imposes a series of obligations on the State. However this is structured - I believe it has to be a relationship between a new agency and the current coroner’s role - we have to accept that the coronial process in Ireland is not fit for purpose, even in its ordinary everyday workings. Our report, which will come out next week, will demonstrate that. Having said that, coronial investigation is crucial and central to each and every one of these identifiable deaths. Therefore, the process has to connect the families who are suffering this appalling loss over time and accommodate that in the context of a full and thorough investigation. This takes me right back to the point on which we started, namely, that the specific circumstances of how each individual died are crucial to every family. That is the point of an inquest and it is what an Article 2 inquest would seek to uncover. It would meet, therefore, the Irish State’s human rights and domestic obligations.
Dr. Maeve O'Rourke:
I will make one point on how the individuals died. I reiterate that in a situation of institutionalised abuse and conditions of neglect or other human rights violations, of particular importance is the clear separation of mothers from children, the denial of the opportunity to look after their child and their essentially being detained in a different part of the institution. Those are part of the circumstances that people want investigated and have a right to have investigated. It is not simply what is written on the death certificate; it is also the surrounding circumstances that are relevant to the inquest.
I will also add one point on international best practice, which is something I am known for promoting. As I have said previously, we need to emulate the Stasi Records Agency. This approach has been noted by the UN Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence, in other words, the special rapporteur on transitional justice, to be international best practice for archiving and records access in the context of dealing with gross and systematic human rights violations. The Government states it is rushing forward a Bill on access to information. This cannot be just about one certain group. It has to be about the rights of families to information. It must not only be about access to personal files but also access to the entire administrative archives that have been created by commissions of inquiry and effectively sealed.
Taking the Bill in good faith, if its aim really is to assist families of the deceased, I do not see how that aim could ever be realised in the absence of full unfettered access to all records relating to oneself, one’s family members and the administrative system.
That is really important. It was completely interesting and natural that we actually opened this entire session by Senator Seery Kearney asking about whether all the families have access to all the information they need even to begin to engage.
Ms Susan Lohan:
It is just so wonderful to hear experts like Dr. O'Rourke and Professor Scraton really endorse all the things we have been looking for years. Under no circumstances can we have a hierarchy of families or a hierarchy of sites. Obviously, Tuam has received the most attention. Fortunately, for the families of those with children buried at the Tuam site, it is hoped the majority of their loved ones' remains will be recoverable. That is not obvious with the other sites.
When I cast a glance through the report last week and this week, so many of the sites have not been investigated. No conclusions can be drawn about them. Particularly with regard to Sean Ross Abbey, the commission just said, without any corroborating evidence, that it does not think further investigation is warranted. That is not the commission's place. The families' wishes must be taken as sacrosanct, first of all, but we as a nation need to discover the truth behind these awful deaths.
Ms Catherine Corless:
I will go back to an earlier comment - I am sorry; I cannot remember who stated it - about whether there should be a threshold with regard to trying to excavate and find where the babies are. I felt that the speaker was implying that, perhaps at Bessborough, the ground is too big to go over the whole lot of it. One can, however, do test excavations in different areas on the ground in Bessborough and that would indicate where burials may be. I will just add that suggestion.
I thank the committee today. I find it very heartening to hear such empathy and support for this Bill to go through properly and to make it happen as soon as possible. I thank everyone.
Professor Scraton talked about price. I completely concur with him that one cannot put a price upon justice. My question, however, was more that Professor Scraton very clearly advised us that the current coronial infrastructure and resources are not sufficient to deal with this. What we would benefit from, therefore, is Professor Scraton's view at least, and I appreciate it is only an opinion, on what level of resources and time would be required to conduct inquests into more than 1,000 deaths. If we are not sufficiently resourced, should this be internationally led with local guidance?
Professor Phil Scraton:
I thank Senator Fitzpatrick. I am sorry I did not answer her question. The really important issue here is there should be no limitations. That is the point I have been attempting to make. I realise the issues of costs, skill and investigation are crucial to the Senator's question. When our report on the coroners process comes out next week, the Senator will read that we consider the coronial process in Ireland is deficient, even in ordinary circumstances. In other words, we have basically a part-time coronial system administered by a central process, which is inadequate, even for the purposes of everyday life or death. Here, we are talking about adding a whole different process into the mix.
We cannot wait for reform of the coronial process. We have to be able to deal with this with some urgency. Therefore, we are proposing that the agency, if it is set up, would have dedicated coronial practice within it that deals exclusively with these cases. The funding has to be found to make those appointments because the cases, as I have already said, will be Article 2 inquests.
On the question about the absolute expense, we have to, as best we can-----
I genuinely apologise to Professor Scraton and the other witnesses but we are under severe time pressure with the Covid guidelines. The two-hour limit means we must finish the session now. I thank everybody, particularly Ms Corless, Ms Lohan, Dr. O'Rourke and Professor Scraton. I apologise if I am still not saying Professor Scraton's name correctly. I also thank members for their co-operation. Is is agreed that the witnesses' opening statements be published to the Oireachtas website? Agreed.
If any members or witnesses participating remotely experience any sound or technical issues, I ask that they let us know through the chat function. Otherwise, we will continue as it will be a very busy session.
Before I begin, I want to remind members who are participating remotely to keep their devices on mute until they are invited to speak. When members are speaking I ask that, where possible, they have their cameras switched on and are mindful that we are in public session. I am conscious that I am speaking through my mask, so I ask members to let me know if they have trouble hearing me.
I remind members of the constitutional requirement that members must be physically present within the confines of the place where Parliament has chosen to sit, namely, Leinster House, in order to participate in public meetings. I will not permit a member to participate where they are not adhering to this constitutional requirement. Any member who attempts to participate at this meeting from outside will be refused.
I will start with part A. This session is split into part A and part B, each of which will last an hour. In part A, the committee will engage with representatives of the Irish Human Rights and Equality Commission. In part B, we will engage with representatives of the Irish Council for Civil Liberties.
All witnesses are appearing virtually before the committee this afternoon from a location outside of Leinster House. The witnesses in part A include Professor Ray Murphy, who is a member of the Irish Human Rights and Equality Commission, IHREC, and Ms Sinéad Fitzpatrick, who is a senior policy and research officer with the commission.
I welcome all the witnesses to our meeting on pre-legislative scrutiny of the general scheme. I thank them for taking the time to prepare their opening statements. I thank those who have provided written submissions.
I also want to take this opportunity to set out the purpose of today's meeting and how proceedings will be conducted, in order to avoid any confusion. A discussion will take place on the provisions of the general scheme as they relate to:
... the statutory basis and framework under which Government may decide to authorise interventions at certain sites where manifestly inappropriate burials have taken place associated with institutions operated by or on behalf of the State or in respect of which the State had clear regulatory or supervisory responsibilities ...
There are also provisions for the establishment of an agency to carry out such interventions.
I want to remind members and witnesses that they are expected to adhere strictly to the subject matter scheduled for discussion today and that any deviation from this topic will be addressed through the Chair. Before I invite the witnesses to deliver their opening statements, I will read out the standard text regarding the provisions of the Defamation Act to remind them of their rights and obligations.
As witnesses appearing virtually, I need to point out that there is uncertainty as to whether parliamentary privilege will apply to their evidence from a location outside the parliamentary precincts of Leinster House. Therefore, if the witnesses are directed by me to cease giving evidence in relation to a particular matter, it is imperative that they comply with any such direction.
I ask the witnesses take three minutes to deliver their opening statements.
Professor Ray Murphy:
On behalf of IHREC, I thank the Chair and the members of the joint committee for their invitation to appear here today. I am joined by our senior policy and research officer, Ms Sinéad Fitzpatrick. We are delighted to have an opportunity to contribute further, following on from our written submission. We have set out in writing the relevant human rights and equality framework and provided 25 recommendations on the general scheme. We hope this information supports members in their deliberations.
IHREC is Ireland’s independent national human rights institution and national equality body. In this role, the commission holds a specific mandate to keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights and equality, and to examine any legislative proposal and report our views on any implications it may have for human rights or equality.
The proposed legislation engages a number of fundamental rights, such as the right to private and family life, the right to an effective remedy and women's and children's rights. I wish to set out clearly again that what happened in the mother and baby homes is a permanent stain on our society. That we need legislation to set out how to deal with mass graves in rural Ireland is testament to that.
That legacy cannot be changed but taking real care in what we, as a society, and the committee members, as lawmakers, do now matters immensely. This is not just another piece of legislation. Rather, it could be an opportunity for the Government, these Houses and the State more broadly to demonstrate their commitment to a transitional justice approach to survivors of mother and baby homes and their families.
The discovery of the mass grave site at the former mother and baby home at Tuam in 2017, and the findings of the mother and baby homes commission of investigation final report that many of the homes did not properly record the burials of children who died in these institutions, engage serious human rights and equality issues. Specifically, the right to life engages positive obligations on the State to investigate suspicious deaths effectively. In addition, the right to private and family life are engaged in respect of burying loved ones and knowing the fate of family members.
The commission has issued our own public statements in respect of mother and baby homes, but in our engagement today, we will focus specifically on this legislation and our recommendations rather than wider analysis or commentary. A human rights and equality approach to the legislation is required and should be reflected in the principles that underpin the rights. In particular, the right of family members to know what happened to loved ones should form the central objective of the legislation. The commission recognises that these rights are not absolute and it may not always be possible to retrieve, identify and return remains to family members. However, this does not diminish the obligation of the State to make best efforts to respect these important fundamental rights.
Furthermore, the constant thread running through our written submission is the need to ensure there is meaningful participation and clear communication with those women and families who have been affected in the drafting and operation of this legislation. Their testimony and direct participation, some of which has been sought in today’s sessions, is intrinsic to its successful operation. Participation, dignity and agency are fundamental human rights principles. Among our recommendations is that, in the setting out of the role and functions of an independent agency, this legislation must incorporate into its establishment and operation a process of ongoing and effective consultation and participation which includes survivors and families of the deceased.
A key task for this committee will be to deliver effective legislation that will, as far as practicable, protect and preserve mass graves, such as Tuam, and provide for the identification and, where possible, the return of mortal remains to family members. A process incorporating these principles, while painful, will play an important part in providing truth and justice to those who died and those who survived.
I thank Professor Murphy. In terms of how this legislation is constituted or drafted at present, how would Professor Murphy propose to deal with the issue of transitional justice? Transitional justice is a common theme running through every submission we have considered so far today, and I now have an honest understanding of what transitional justice is. How would Professor Murphy inculcate that into the legislation properly to vindicate the rights of those who should have the right to know what happened to their loved ones?
Professor Ray Murphy:
I thank the Deputy. Transitional justice is a response to systemic or widespread violations of human rights, and it is one particular approach that may be used. In essence, what we are really saying is that the legislation must be underpinned by human rights and equality principles. Transitional justice is based on five pillars, including the right to truth and justice, which I think is the key aspect, and it is something victims, their families and their advocates are stressing. It also involves reparations, non-recurrence and memory process. One of the weaknesses in the current legislation is that there are a number of sections which should really emphasise a human rights and equality approach and, right now, that is not the case.
May I come in there, please, Chairman? I am aware the time is short and I thank Professor Murphy. In conclusion, and to ensure I adhere to the time constraints, I ask if the Irish Human Rights and Equality Commission is advocating for a separate process inculcated within the legislation but a separate or independent process that would find truth and speak to all of the issues that the professor has just spoken to there.
Professor Ray Murphy:
Today I am speaking about the certain institutional burials (authorised interventions) Bill. This provides one mechanism in the broader process of transitional justice to address the violations that have taken place. Unless this legislation is scrutinised more carefully from a human rights and equality perspective then that is not going to be achieved. We have set out a range of specific recommendations to improve and enhance the effectiveness of this legislation and to make it more effective as part of the transitional justice process.
I thank the Vice Chairman and the witnesses for appearing before us today. Can each of the witnesses outline where they see apparent gaps in the certain institutional burials (authorised interventions) Bill as it is currently structured and if they believe that it delivers on the human rights, equality and civil liberties they referred to in their opening statements?
Professor Ray Murphy:
I thank the Deputy for his question. At the outset I say “No”. The legislation is seriously deficient in a number of respects. Broadly speaking, it needs to be redrafted so that it has a clearer human rights and equality framework. In listing the more specific deficiencies that we have identified in our broader report, the 70-year time limit in the legislation should be removed or reconsidered because this could exclude any sites prior to 1950 from exhumations and that, at the outset, does not seem to be an appropriate way to proceed given the historical nature of the mass graves and the mother and baby homes.
The views of the survivors and family members must play a central role and must be enshrined in the legislation and that is not something that must be done just as a courtesy. They must be given this statutory right.
The coroner needs to have a recognised jurisdiction over burial sites and in the absence of the coroner having such jurisdiction, whatever is put in place has to be an effective mechanism to determine the cause of death. There has to be, and it is critical, as the previous session identified, that in order to comply with Article 2 of the European Convention on Human Rights there is an effective mechanism to investigate the cause and nature of the deaths.
In the agency being proposed in the legislation, it is important that it would be overseen by the Oireachtas rather than by the relevant Minister so that for transparency and openness purposes any reports made by the director of the agency on its work should be made to the Oireachtas as a whole.
Likewise, the remains and any personal artefacts should be returned to families and there should be a statutory obligation that unclaimed and unidentified remains should also be traceable. It will almost certainly be the case that there will be a large number of remains that may not be identified and, therefore, when these remains are being reinterred and buried with the dignity that was denied them in the first instance, it is critical that this be done in a methodical and organised way to, perhaps, allow in the future for those remains to be exhumed at a later stage, should the possibility of identification arise. Safeguards need to be taken around retention, storage, sharing and destruction of DNA and other records. We also want to ensure that the proposed pilot programme for identifying victims must not in any way interfere with the State’s obligation to make the best efforts to identify and return those found in mass graves to families. That is just an overview of some of the issues and the report is quite comprehensive in this regard.
I thank the Vice Chairman. Following on from Deputy Dillon’s questions, it is somehow palatable for us as a State to consider mass graves in, perhaps, the context of the Great Famine.
Dealing with them in this instance, our response thus far is the creation of this agency and bespoke legislation and this unprecedented step in the State. In the nuts and bolts of it, where does Professor Murphy think the establishment of this agency should begin? What should be its first steps?
I also have two quick questions. Is Professor Murphy saying there needs to be power within the agency for a coronial jurisdiction of some sort, or something similar? In the pre-briefings on this, we talked about having forensic specialists on site at the particular time who are answerable to the agency.
Given the fact that reporting to the Minister is an aspect of this, is the Minister not accountable, both to this committee and also to the Oireachtas insofar as it is open to parliamentary questions, oral questions and statements in the House, in order that there is accountability and follow-up commencements from a Seanad point of view? I do not see it as not being synonymous with accountability if no one is reporting to the Minister. I would like to hear Professor Murphy's comments on that.
Professor Ray Murphy:
There was a wide range of questions. Let me try to address them and forgive me if I do not think of everything. In the first instance, however, we believe it would be preferable that the director of the agency reports not just specifically to the Minister but would report to the Oireachtas. In our view, that is a more open and transparent system. That is one point.
With regard to the coroner's jurisdiction, it is unusual that the coroner is specifically excluded from jurisdiction in respect of these particular mass graves. That may be to do with resources or whatever because the legislation on the role of coroners is probably out of date in any event. What we are concerned about really, whether it is the coroner or some other mechanism, is that there is an independent, resourced mechanism to conduct a proper and effective investigation into the causes of death to try to determine what they are as best we can. Therefore, whether it is the coroner's court or some other mechanism is not critical; it is that there is an effective mechanism. Even if it is the coroner, then he or she must be given the resources, etc. to be able to do this.
I am sorry. The Senator asked quite a few questions.
I did. To come back to the 70-year time limit, if part of the recommendations from this pre-legislative scrutiny process was to extend that to since the foundation of the State, does Professor Murphy think that would that address the needs?
Professor Murphy spoke about the fundamental human rights and the importance of the role of the coroner. We know it is the duty of the coroner to act, regardless of how unprecedented the scale of the investigation would be. In the previous session, we heard from legal experts that the Attorney General and the Minister for Justice can direct the coroner to act. Therefore, although it does not make sense that the coroner has not acted to date when it is the coroner's duty, and it does not make sense that this Act would disapply the coroner, there are still powers. The Attorney General and the Minister for Justice have those powers to instruct the coroner to act. Does Professor Murphy believe that should be done?
Professor Ray Murphy:
Actually, I believe the legislation should be amended. Surely, it would be preferable to have a statutory obligation on the coroner to perform this particular role or that the legislation would specify how it would be done rather than some discretionary power that the Minister or Attorney General has. We would, therefore, argue that either the coroner is given and allowed to play a specific role or there is some other independent investigative mechanism to perform this role, and that it should not be at the discretion of the Minister or the Attorney General. I do not in any way dispute their bona fides but it should be enshrined in the statute at the outset. Even at a later stage when the statute is implemented, often things emerge that one has not thought of and these are that we think of right now. If, therefore, anything is thought of right now that indicates a deficiency or weakness, it is imperative that it be addressed.
On the same issue, if the amendments to the Bill we have been discussing are not taken - to date, the coroner service has not acted - would there then, in Professor Murphy's view, be a duty on the Attorney General or the Minister to instruct the coroner service to get involved?
Professor Ray Murphy:
I would say so. We are talking about agents of the State, and the State has an obligation under Article 2 of the European Convention on Human Rights to ensure there is a proper investigation. Therefore, it would be incumbent on the senior agents of the State to take that particular action. I stress, again, that it would be better if this were a statutory obligation, enshrined in the Bill in the first instance, and the means and capacity were given to the agency or the coroner service to conduct the investigations.
I thank Professor Murphy and Ms Fitzpatrick for attending today. I want to follow on from the question about the coroner service having failed to act. Earlier, we heard from Professor Scraton about the need for a coronial investigation and inquest, a point on which I completely concur. Is one of the reasons the coroner service has failed to act in this regard that the service is inadequately resourced? That is what Professor Scraton indicated to us earlier. If we are to deliver justice, it is critical that whatever we put in place, first, recognises that inadequacy and, second, is scaled to a point whereby it will be able to deliver justice. Would Professor Scraton agree with that statement?
I want to home in on the point about the views of survivors being given a statutory basis. That is critical. How do the witnesses think we can best ensure that survivors are given justice and are satisfied through this process?
Professor Ray Murphy:
In the first instance, the committee is already engaging with the survivors. I listened to the previous session and heard that this is the case.
Going back to the coroner service, I agree that if it is given jurisdiction and resources, and that is enshrined in the statute, it is the best way to go forward.
It is really important that underlying our whole report is that, at all stages in the process, there is communication and transparency and the views of survivors and families are taken into account. This is one of the most critical aspects of the report. If I only had 30 seconds here today, that is what I would stress. As I said earlier, it must not just be a courtesy or something that is discretionary. It must be enshrined in the obligations of the agency, as it progresses through the various stages of this process, that it will, at all times, not just communicate with them but actually listen to their views and try to take those views on board. That is key to achieving truth and justice. We want to make amends for the wrong that has been perpetrated on these survivors and their families.
I begin by confirming that I am in Leinster House and have been following the witness statements from the get-go.
I will pick up from where the other questions and responses have led. Will Professor Murphy comment on the current capacity of the coroner system? The Covid period cannot, by any stretch of the imagination, be called a normal time, but we are seeing in this period how overstretched are all tiers of the Irish judicial system. If people are not potentially losing out on access to natural justice, there will at least be significant delays in seeing it be worked through. All things being equal, what capacity does the coroner's court system currently have to deal with what would be a significant increase in the volume of its work? I am interested in any quantification that Professor Murphy can provide in this regard.
Professor Ray Murphy:
I will preface my response by saying that I do not consider myself to have the relevant degree of expertise in the operations of the coroner's court system.
I am aware that even in normal times, it is regarded as being somewhat underresourced with out-of-date legislation that needs to be amended. To deal with something of the nature of the legacy of the mother and child homes, and the mass graves that we are aware of, will take a great deal of resources and expertise. It is incumbent on the State to enshrine in the legislation a formal statutory mechanism to achieve that and then to ensure that the resources are there and it can actually be effective when we go to implement it and carry out the tasks in the legislation. Right now, the legislation is deficient. Even if the coroner was given the role, I do not believe that the coroners have that capacity. I stress that we want to see an independent investigative mechanism that is properly resourced and professionally carries out the investigation to the extent possible. The deaths occurred decades ago and it may not be possible to determine exactly whether it was malnutrition or neglect, but we have an obligation to do the best we can. I respectfully suggest that the current proposal does not fulfill the obligation on the State to do the best it can in these circumstances.
That is a point well made. I largely agree with what Professor Murphy is saying. Many people's lives are caught up in this, both survivors and unfortunately little babies who just are not in this world any more. They have passed on to another world, tragically. Their stories need to be told. There are 168 in Kilrush in Clare, my own county. There was an inordinate amount of deaths. In some years, it was double what the natural infant mortality rate was in the country. Questions need to be asked and answered. A major feature, which Catherine Corless opened her contribution with earlier, is that a number of years have passed since the unearthing of this tragedy and scandal at Tuam mother and baby home, and survivors are not getting any younger and want things to come to a conclusion. Increasing capacity needs to be looked at on top of legislative changes. I concur with that.
Many questions have covered the coroners. I will go directly to Ms Fitzpatrick. Her submission addresses the pilot programme under head 47 of the Bill, which allows the agency to decide whether or not to proceed with a full identification process, based on a sample number of bodies exhumed from a site. Will Ms Fitzpatrick speak to that? Does she believe that this contravenes our human rights obligations? Will she comment on that?
Ms SinÃ©ad Fitzpatrick:
The commission has concerns about the sampling approach and how it may affect the process, depending how it occurs in practice, and exclude the identification of family members where it could be otherwise possible. The basis and rationale for such a decision to take place could procedurally impact on family members identifying their own individual family members within a grave site. How that would operate in practice would be a concern. Another aspect is that the director would decide whether or not to proceed based on those samples. There does not seem to be any kind of process of appeal built in to that for family members to participate or challenge that decision. All of these decisions engage fundamental rights, as Professor Murphy said. On that basis, natural justice needs to be built into the processes. There needs to be an opportunity for families to challenge those and to have an understanding of why the decisions are made, that they are fair and decided by an independent body and review system. That is why it is important from a human rights perspective and there are concerns about it.
I thank the Chair and the witnesses. We have the opportunity to make right the wrongs of the horrors of the mother and baby homes. A key paragraph in Mr. Murphy's opening submission states: "A key task for this committee will be to deliver effective legislation that will, as far as practicable, protect and preserve mass graves, such as Tuam, and provide for the identification of, and where possible the return of mortal remains to family members."
What is the best mechanism to achieve this and how would legislation be amended and strengthened to achieve this?
Professor Ray Murphy:
That is a difficult question. The legislation provides for an agency to be established. As I stressed at the beginning, practically speaking, it is really important to listen to family members and survivors in deciding what sites to select and where they will go. The legislation is relatively limited to certain institutional sites so the agency will need to engage the relevant expertise. I am not quite sure if I am answering the Deputy's question but, for example, to conduct an exhumation properly is a very sensitive area that needs very specific expertise, especially in respect of infant graves. The forensic anthropologists will need to have experience and expertise, as will all the other persons who will follow in the examination of DNA and other evidence. We advocated in our report that the approach to this analysis would be multidisciplinary because the broader the analysis and the more expertise there is, the more likely a successful outcome. Where that is not possible, appropriate levels of memorialisation with a proper, dignified burial and memorial to these victims are also critical.
In the end, we want the legislation revised significantly to ensure that, where the process is undertaken, it is at all stages led by human rights and equality legislation and the transitional justice approach is adopted. This involves making the victims and survivors central to the whole process and ensuring that the resources will be made available. If this is done properly, in my opinion, it will take a lot of time. It is again incumbent on us as a society, and on the State, to do the very best in the circumstances to ascertain the identity of the victims, to try to link them with survivors and to try to provide an appropriate and dignified burial, which, clearly, the evidence shows was not the case in the first instance.
I thank the witnesses for their contributions and submissions. There seems to be a move towards exhumation as the only way to achieve human rights adherence and justice. How do we reconcile this with the fact that so many survivors do not want their babies disrupted in the burial grounds? For instance, there is a hearing next week about the Bessborough development. We need to take a step back on these exhumations because not all sites will be, or should be, exhumed. How do we achieve human rights adherence in those cases? We cannot have a blanket rule and we have to protect the graves of those babies. In many cases, angel plots could be described as mass graves. I want to ensure that can be answered in some way.
Professor Ray Murphy:
The site I am most familiar with is the one closest.
Locally, there was opposition to the idea of exhuming the infants' remains from that home. However, to my knowledge, the survivors are overwhelmingly in favour of the exhumation from that site. I do not speak on behalf of the survivors, and I stress that, but the member's particular concern will be answered and addressed if the legislation incorporates a statutory requirement to engage with the survivors and the families at every stage. I am quite sure that there are diverse views among survivors but my information is that they overwhelmingly wish this process to be undertaken and as soon as possible.
My question is for both Professor Murphy and Ms Fitzpatrick. Under the Children Act 1908, the death of an infant while in State custody was required to be reported to the coroner. This does not seem to have been routine or to have been policed. The Constitution specifically recognises and protects the right to have nature take its course so that people may die a natural death. Do the witnesses accept that the only way under UN transitional justice is to give the families the right to truth and justice? This needs to be investigated further, for example, under the remit of the agency the Bill will establish. I am afraid that this Bill removes urgency surrounding inquests. Do the witnesses agree that to satisfy Ireland's obligation under Article 2 of the European Convention on Human Rights to address human rights concerns, this would be a kind of justice?
Professor Ray Murphy:
Broadly, I think I am in agreement in that it is imperative on the State in accordance with its international human rights obligations to carry out a thorough investigation of the deaths and try to determine to the extent possible why and how they occurred in the broader context. That is critical to achieving what is the main objective of a transitional justice approach to finding truth and justice. As another member asked, it might not be clear and maybe there is not a complete consensus among survivors but there is a consensus about achieving truth and justice. There is an obligation on the State but it is also consistent with what we have advocated in our report to the committee.
I am substituting for Deputy John Paul Phelan. Will Ms Fitzpatrick elaborate on her earlier point?
Bearing in mind that the context is that we are establishing an agency that will, hopefully, have increasing and evolving proficiencies and powers, which will then be able to facilitate a response to other burial sites as they emerge or as information on those comes forward.
Is there a best practice matrix for sampling? As public representatives, we have all experienced developers sampling in a way that suits them to come up with a particular response but we have also had the experience of bona fide investigations on-site which then found human remains afterwards
Is there a best practice matrix?
Ms Fitzpatrick said that there would be no appeal available in the case of a decision not to proceed. Any decision taken in administrative law is open to judicial review, so there is a judicial review option, and I suppose my question in that respect would be who has locus standiin that instance? If one does not know whether one's family member's remains are buried there, then it is questionable whether a family member would have locus standiin that instance. For this reason, I see a case for there being a statutory appeal mechanism. I ask Ms Fitzpatrick to elaborate on those points.
Ms SinÃ©ad Fitzpatrick:
On the sampling piece, I am not a technical scientific expert, so I do not know if there is a best practice approach in that specific area. However, there are a number of international resources that can provide very good guidance on how to approach the DNA sampling piece and the more comprehensive multidisciplinary approach to identification, including the Bournemouth protocol and the forensic guidance developed through EU funding by the Argentinian forensic team. That, specifically, is quite helpful in its detail in terms of the different layers of multidisciplinary approaches needed.
The issue with the sampling is also that it cannot be seen in isolation from the full legislation. There was a real focus on DNA identification as the way to identify and uncover who the bodies are and what happened. If the Bill had a more multidisciplinary approach, incorporating different professionals and wider investigative powers, then that might not be so much of an issue but in an of itself, it is quite limited and could be problematic in terms of providing individual redress and truth and understanding to family members. That would be a key concern on that side.
On the procedural aspect, the Senator made the point that while judicial review is arguably an open option, it is more limited to a full appeal of the facts in any given case. There has been recent case law asserting that there is a requirement for statutory appeal or an independent appeal where the rights engaged are significant. The commission would argue that this whole issue engages very significant and important rights in respect of the identity of human remains, the return of family members and understanding what happened to them. The identification process is key to that. Where a decision is taken not to exhume a mass grave plot based on limited sampling, that has a significant effect on the survivors and family members. Therefore, a statutory and independent appeal would appear to me more appropriate and provide for more robust safeguards in that regard.
Apologies for the technological issues earlier.
Many of the points I wished to raise regarding the role of the coroner have been discussed already. It is most important that we are having these discussions all day because it brings into focus all of the issues and where we can possibly strengthen the legislation. From what I have seen so far, there seem to be very serious flaws and weaknesses in relation to the role of the coroner. Therefore, it is good for us to be hearing that and discussing what possible amendments can be made in respect of that.
I have one brief question for Professor Murphy. In response to Deputy Ward, he stated that if the scheme were to be implemented correctly, it would take a significant amount of time. Does he believe that this is due to potential funding issues? I often find that problems around timeframes can actually be caused by funding issues which people may express as timeframe issues. For example, if the professor were to be put in charge of the scheme tomorrow morning, how long would it take to implement it correctly in the manner in which he thinks it should be done? I am very conscious of the amount of people who feel that this has been frustrated at a number of opportunities. I am most anxious - as I am sure everyone is - that we get this done correctly. Professor Murphy put it perfectly in his opening statement when he noted: "That legacy cannot be changed, but taking real care in what we as a society, and you as law-makers do now matters immensely." That is the crux of everything that we are trying to find out today.
Approximately what timeframe does Professor Murphy think would have to be applied to do everything correctly? That is the only question I have.
Professor Ray Murphy:
That is quite a hard question to answer. I do not consider myself to have the relevant expertise, but I will attempt to answer the question first based on my own knowledge. This is an unusual answer, but if the agency that is established sets itself a limited objective then it can achieve that limited objective in a shorter time than if it sets itself the full task of exhuming all the remains. Does the Deputy understand what I am trying to say? If a preliminary examination takes place at a particular site and it is determined that we cannot go forward, then that can be closed relatively quickly. It is probably something that I would not necessarily agree with.
In work that I have done with other professionals in Iraq, the former Yugoslavia and Cyprus, the estimate could be ten to 15 years to exhume all the remains, if that takes place, which I know will greatly dismay survivors. The technical challenges of dealing with infant remains are extremely difficult. As members know, for example, there are far more bones in the skeleton of an infant than there are in that of an adult. After two or three years the bones begin to fuse. It would be very hard to exhume them and to find remaining body parts that are not contaminated. In some cases, for example in Cyprus – this occurred only in 1974 – the bodies were contaminated so it was not possible to extract DNA from the bodies. We do not know what may have happened some of the remains in the sites, for example, in Tuam. It is incredibly complex and technically challenging, but if I was asked to take over as director of the agency, I would insist on at least the capacity to embark on this in a thorough manner. I remind members that the international obligation on the State is to approach this in using our best efforts to achieve the best outcome. In the end we may not get the results that we want and some of the survivors and family members may be greatly disappointed. However, it is critical that the State puts in place the proper legislative framework and then engages with the agency and resources it to undertake and embark upon this. That will require hiring people who know how to do this and follow international best practice. There are a number of sites that need to be investigated preliminarily and then hopefully there will be a more thorough investigation, in addition to the other issue of determining causes of death, etc. It is incredibly challenging but it is really important that it is done well. The beginning of that is to get the statutory basis right.
Professor Ray Murphy:
I am happy to give a short statement. The primary focus of the recommendations of the IHREC is the need to ensure there is meaningful participation at every stage and clear communication with the women and families who have been affected. The central approach of any agency that is established must be to try to determine this. The ultimate aim must be to achieve truth and justice for the families, survivors and society as a whole. What has happened is a shocking indictment of past practice in society and we owe it to the survivors and the victims to make the best efforts to resolve this in an approach that is sensitive and achieves the objective of truth, justice and memorialisation for future generations and that something like this will never happen again.
Yes. I was conscious that the Vice Chairman had a question and I wanted to cede the floor to him if he needed it. We will hear in the next session from a group of survivors who are stating categorically that the home associated with them, which would be Bessborough, is not suitable for exhumations en masse and that they would rather memorialisation. All of us are fundamentally opposed to the idea of it being developed on, giving due respect to the human remains, so I am not proposing that anything like that happens in its place. However, how do we ensure that the human rights aspect will be respected? I have spoken to many of the survivors individually and they are of a mind that they do not want exhumations. One survivor said she wants a chair there where she can go and sit and think about her baby. How do we respect that and ensure it happens?
Professor Ray Murphy:
It does. The Senator presents quite a dilemma because the commission is advocating that we must engage with the survivors and respect their views and try to take them into account. I do not speak on behalf of survivors and I would not purport to do so. Bessborough is also problematic in that it is not exactly known where the bodies are interred. That presents a practical problem as well. In that instance, and this is a personal view rather than speaking on behalf of the commission, it is very important that we memorialise appropriately and if that is the view of the survivors and the families, it must be respected. Memorialisation, which is an intrinsic part of transitional justice, conforms to the wishes of the survivors and it is appropriate and dignified.
I have a similar question to the one asked by Senator Seery Kearney. Professor Murphy's view, in response to me earlier, was that most of the survivors want exhumation. How did he come to the view that that was the wish of the majority of the survivors? It is a complex issue to be discussing and it is dangerous to offer such a blanket view.
Professor Ray Murphy:
Forgive me. I was speaking, and I thought I said this, in respect of the Tuam mother and baby home. It is the one I am most familiar with because I live in Galway. I would stress at every stage that the survivors are more than able to speak on their behalf and it is they to whom we should listen. I do not speak on behalf of the survivors and I apologise if I gave a wrong impression.
Ms SinÃ©ad Fitzpatrick:
If I may add to that, in terms of building participation and the survivors' voices into the legislation, that is possible technically also. There are different stages in the Bill in terms of deciding whether to intervene to set up the agency part, the exhumation part, and survivor engagement should and can be built into each and every stage. It would be important, if there is to be meaningful engagement, that that be reflected in the legislation. It is clearly reflected in this part of the process, which is important, but it can be expressly and explicitly built in as an obligation on the Government and on the relevant State agencies to actively engage and seek the views of survivors and relevant family members as they progress through the process in the context of mass graves. Every situation is different and every individual has a different need or wish in this context, and their voices must be heard.
I thank the witnesses. Since there are no further questions or comments, we will draw part A of the session to a close. I will suspend briefly to allow the witnesses to exit and the representatives of the Irish Council for Civil Liberties, ICCL, to join the meeting in order to commence part B of this session.
This is part B of the session. The ICCL representatives who are participating are Ms Doireann Ansbro, head of legal affairs and policy, and Ms Elizabeth Carthy, policy officer. Before I invite them to deliver their opening statement, I must read the standard text on the provisions of the Defamation Act. As the witnesses are appearing virtually, I need to point out that there is uncertainty as to whether parliamentary privilege will apply to evidence given from locations outside the parliamentary precincts of Leinster House. Therefore, if they are directed by the Chair to cease giving evidence on a particular matter, they must respect that direction.
I invite Ms Ansbro to make her opening statement.
Ms Doireann Ansbro:
I thank the committee for the invitation to speak today. I am here with my colleague Ms Elizabeth Carthy, and both of us will be happy to answer any questions.
The ICCL is an independent NGO that works to promote and protect human rights in Ireland. The ICCL does not represent particular groups but, rather, works to ensure the Government fulfils its human rights obligations in all relevant law and policy. In our submission to the committee, we analysed the general scheme of the Bill in light of Ireland's human rights obligations and made a number of recommendations.
As other speakers have done, we underline the vital importance of taking a survivor-centred and family-centred approach to this legislative process, and of doing so at all stages of implementation. We have to acknowledge that survivors and family members are a diverse group and have a variety of needs and wishes. It is, therefore, vital that legislation on burials not close any doors or pose undue obstacles. This includes ensuring that inquests can be held where appropriate.
Institutional burials and mass grave sites imply violations of a range of human rights, including the right to life. Survivors and families have the right to an effective remedy, which includes the right to equal and effective access to justice, reparation for harm suffered and access to relevant information concerning the violations and reparation mechanisms. Crucially, the State has an obligation to effectively investigate unlawful or suspicious deaths. Taking reasonable steps to identify the deceased person and to determine the cause and circumstances of death are key components of this obligation.
The Government has previously acknowledged the importance of taking a transitional justice approach in the context of mother and baby homes. The key pillars of a transitional justice approach are the rights to truth, justice and reparation, and guarantees of non-recurrence.
In its current form, the Bill has significant problems from both human rights and transitional justice perspectives. First, it impedes an effective investigation into the deaths of those buried at mass grave sites as it disapplies the jurisdiction of the coroner; the legislation does not apply if the human remains at the site were "buried there following death in violent or unnatural circumstances" or if there is an ongoing criminal investigation. This limits the scope of the Bill and appears to indicate a presumption by the Government that institutional burials were not preceded by violent or unnatural circumstances. This does not stand up from an evidentiary perspective given that we know the cause of death for many babies in mother and baby homes, especially in the earlier half of the century, was registered as malnourishment, indicating severe neglect, nor does it stand up from a human rights perspective given that the UN special rapporteur on extrajudicial, summary or arbitrary executions has stated, "Mass graves are crime scenes".
Under the current draft Bill, complex and challenging requirements must be met to set up an agency. It provides overly broad discretion to the Government, additional broad criteria, an unclear proportionality assessment and overly restrictive obstacles. A particularly problematic restriction is a time limitation of 70 years. The rationale for this is unclear.
The lack of transparency regarding the agency's documents and records is also of concern. The Bill effectively provides for the sealing of documents and records for a period of 30 years. This is problematic and is inconsistent with transitional justice principles, in particular the right to truth. Access to information is a key right that has taken on particular significance in the context of justice for mother and baby homes survivors and their families.
Overall, we consider that the Bill lacks a rights-based, survivor-centred approach and is inconsistent with a transitional justice approach. We recommend that the Government take one of two possible approaches, namely, either significantly reform the Bill in line with international human rights law and transitional justice principles, or amend existing legislation to provide for relevant powers for existing bodies such as the coroner to address institutional burials. We recommend that Ireland ratify the UN convention against enforced disappearances, as this provides a clear roadmap for dealing with enforced disappearances and is relevant for addressing mass graves and institutional burials. Finally, we note this is one component of the Government's overall response to the severe and systematic human rights violations that occurred in mother and baby homes. There is a broader need for the Government to respect its human rights obligations and transitional justice principles throughout this response and we call on it to do so.
I thank Ms Ansbro and Ms Carthy for coming before the committee. We are again seeing a consistent message from everyone who has submitted to the committee in respect of the flaws inherent within the legislation. It seems it has more holes in it than a block of Swiss cheese and considerable work will have to be done to amend it to make it fit for purpose. It is encouraging to hear so many Government representatives on the committee, as well as Opposition members, coming together in what I interpret as one voice in respect of the need to amend the legislation.
Returning to the coronial process, there has been consistency in respect of the messages we heard from everyone from Ms Lohan to Professor Scraton and Dr. O'Rourke. Everybody has consistently said that this legislation could put us at variance with our Article 2 obligations. Does Ms Ansbro or the ICCL have a view on the coronial process as it is constituted and on whether the legislation as drafted deals sufficiently with the Article 2 provisions? Does either the legislation relating to the coronial process or the legislation we are discussing need to be amended to take account of the statement by the UN special rapporteur on extrajudicial, summary or arbitrary executions to the effect that mass graves are crime scenes?
There is no ambiguity in what Ms Ansbro said or in what the UN rapporteur says and, therefore, there should be no ambiguity in regard to how the legislation should be constituted to deal with the rights of those who are interred in those graves, how they came to be there and what the causes were. I am trying to get a continuing sense of understanding of where the ICCL sits in respect of the current coronial system and whether Ms Ansbro agrees with statements made by other people who have submitted to the committee in respect of the Article 2 provisions. Do we need amended coronial jurisprudence or legislation, or should we buttress this legislation further?
Ms Doireann Ansbro:
We very much agree with Professor Scraton, from whom the committee heard earlier. Next week we will publish a report, of which he is the chief author, on the current coroner system. The committee can be assured that we very much agree with him on this issue. Some issues that will be highlighted in the report relate to the fact that at the moment, the coronial system operates on a part-time basis and is under-resourced, and there is not sufficient training for people in their posts or newcomers. We consider that the coronial system as a whole needs to be reformed, and I can go into more detail on those reforms later if the committee so wishes.
As for how that is relevant today, it is tricky because we are also saying - this comes to the Deputy's second question - that under Article 2 there is a need for an effective investigation, which requires a number of aspects, including being thorough and family-centred.
The thoroughness that is required means, as other speakers have said, that we need to know who died, where they died and, very importantly from the perspective of this Bill, how they died and the circumstances around their death, which currently this Bill excludes, and that is a major problem. We are saying that excluding the coroner's jurisdiction is a fundamental problem. How does one reconcile the fact that the current coronial system is probably inadequate to deal with these situations with the need to ensure that there are inquests, where necessary and appropriate? We would say that given the special human rights issues that arise in the context of mass graves, creating an agency that has the expertise, resources and training to carry out excavations, exhumations where necessary, and identifications, is important. When one gets to the point of identifying how people died and the circumstances of the death, in particular where there are relevant triggering contexts such as evidence of a violent or unnatural death, some would argue that coronial jurisdiction is triggered by the fact that people died in mother and baby homes under State responsibility, essentially, given that it funded the institutions, and had inspection and oversight responsibilities. What do we do if we have a currently inadequate system but need inquests? We agree with what Professor Scraton said this morning. We need to adequately resource specific coroners to deal with inquests for these kinds of institutional burial sites. It is important and cannot be stressed enough that resources must be made available. That means coroners need to have adequate training and the powers necessary to conduct the kinds of investigations that are necessary. There needs to be a hearing and a process that is family-centred, where families can come and share their experiences. All the things that go into a good inquest need to be applied in these contexts and the reality is that we need to resource specific coroners in order to carry out that role.
May I make a very short intervention, with the permission of the Vice Chairman? I think I was well within the three-minute limit in my first contribution. I am only asking for 30 seconds here and, furthermore, some members have had-----
I appreciate the forbearance of the Vice Chairman. The question on which I am conflicted relates to the rights of those people who wish to be memorialised versus the law of the land, as it were, where in unnatural circumstances, the coronial process kicks in. How do we balance the rights of those people who want to memorialise sites such as Bessborough, for instance, and establish whether that wish is superseded by the law of the land?
Ms Doireann Ansbro:
As the representatives of the Irish Human Rights and Equality Commission referenced, there is no simple answer to that question. It is a difficult question. On the one hand, the Government has an obligation to carry out effective investigations. However, we must remember that this process has to be survivor and family-oriented from the start to the end. That point cannot be emphasised enough. Ms Fitzpatrick said it well a few minutes ago when she noted that can happen at every stage, including the drafting and implementation stages of the legislation, when sites are being identified and decisions are being made as to whether to carry out excavations or exhumations, and when decisions are made on what happens thereafter. As we said in our opening statement, there are diverse views among families and survivors.
As regards Bessborough, in particular, we must remember that the commission stated there were 859 bodies of babies missing, so that potentially affects 859 families.
I do not know how many families we have reached out to but a clear, fundamental and primary thing we must do is to take an active role in reaching out to as many families as possible. We then need to engage each and every family at every stage. Different wishes will come up and it is vital that we engage at every stage and honour those wishes as much as possible. I do not have a simple answer today but what is very clear is that we must take on board what families and survivors want and do our best to ensure that what they want is respected in how we deal with these mass graves.
On the issue of the records, the Minister is adhering to GDPR principles and ensuring they are in place regarding access to information. Hopefully, we will have the information and tracing Bill very shortly. We need a robust response in the information and tracing legislation to address any shortcomings in the GDPR. Bearing in mind that the GDPR does not apply to the deceased, what elements would the witnesses like to see in that Bill to address any shortcomings they have found?
My second question concerns the coronial situation and the fact that there could be mass investigations and inquests. If it is going to be a process that takes a long period of time, should we bring in the Department of Education to ensure we have pathways for careers and means by which we ramp up our capacity and response? Who are the witnesses at the inquests? If individuals know that a deceased family member was at Bessborough or Tuam but may not have the personal recollection of having been there themselves, how do we cross that barrier? Who are the witnesses who are called in for that?
Ms Doireann Ansbro:
We would love to speak about the adoption and information Bill in far more detail. I do not have all of our views at hand because that is a separate piece of work we are doing and we have not yet completed it. The fundamental principles that need to be incorporated into that involve ensuring that survivors and their family members have access to information not just about themselves but about the process, including the entire adoption system in Ireland in the 20th century. There are so many unanswered questions and potentially extremely serious violations of human rights incorporated within that system, such as potentially enforced disappearance when one has the forced separation of families and family members who are still unknown and untraced. To echo the witness from the Irish Human Rights and Equality Commission, that legislation also needs to be underpinned by human rights and equality principles. The piecemeal approach to these mass institutional abuses has gone on for too long. We need to put human rights front and centre in all aspects of our responses. That is key. I echo Dr. Maeve O'Rourke statement this morning that the UN has described the approach to the Stasi archives in Germany as best practice. I very much encourage the Government to look at that as an example of best practice in terms of record keeping and access to records.
Second, on the capacity, we heard this morning that these kind of excavations could potentially go on for years. One of the points we made in our opening statement is that we need to not close any doors with this legislation. We need to keep doors open. We do not know. Tuam was only discovered in 2017. That is kind of incredible. What are we going to discover in the next five, ten or 15 years? Potentially, this work will go on for a long time. Senator Seery Kearney is right. There needs to be a significant ramping up of capacity in terms of expertise. There is a lot of expertise at international level. We need to draw on that. We need to be making connections with people who have worked in other mass grave sites, bringing them in, using their expertise and training up our own experts as well. Absolutely, I think capacity [phrase inaudible]in this response.
The Senator's third question-----
Ms Doireann Ansbro:
-----was on who would be the witnesses at inquests. One of the fundamental problematic aspects of what came out of the mother and baby homes commission's reports for us, particularly what was its fifth report, which came out in 2019, was the idea that the commission believed there are people in Ireland who have a lot of information about mother and baby homes, about burial sites and about what went on who are not coming forward. There is a fundamental question there about compellability - can we compel witnesses to come forward? I would argue that these kind of inquests need to have that power to compel witnesses to come forward who have information about what happened, both in the homes and how the deaths occurred, the circumstances around the deaths, whether it is separation of mothers from their babies, why they might have died, what kind of neglect was happening and what kind of overcrowding and lack of medical care obtained. There are so many questions to be answered and there are so many experts who are still alive because some of the homes were open until the 1990s. There are people out there with this information and we need to find a way to bring them forward to share what they know in order to give crucial answers to families and survivors who have gone on for far too long without those answers.
I thank the two witnesses, Ms Ansbro and Ms Carthy, for that good information provided. Last month, the Irish Council for Civil Liberties asked the UN to request that the Government set up an independent investigation into mother and baby homes and the illegal adoption in Ireland in the 20th century. Can Ms Ansbro tell me what the UN's response was? I would welcome this. There are too many unanswered questions and I would have difficulties with some of the conclusions from the mother and baby homes commission's report.
It is extremely important that we work with the survivors and their families in the context of access to information. Ms Ansbro and Ms Carthy would have seen, in the context of the mother and baby homes, that the Dáil voted in October to pass the legislation relating access and then we also ensured that the recordings relating to the commission's report were kept. This information needs to get to the survivors and their families. It is important that the communication is from all of us in order that we all can work together. We heard some of the stories this morning and everyone is affected. We all have a role to play.
In the context of the mother and baby homes report, the first of the 22 recommendations put forward is to give survivors access to their files. All of us here have a duty of care to the survivors and the families to make sure they can get that access, but also that they can access information with no barriers or in the way they should. That would be something that all of us have to work on together. I thank our guests for their presentation.
Ms Doireann Ansbro:
I thank the Deputy for the question. We wrote to the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence a few weeks ago and we asked if he would consider engaging with the Government to feed in those principles at every stage of the its response. Unfortunately, we have not received a response yet but we are still hopeful that we will. We know that he has engaged on this issue on a number of other occasions. We are certainly hopeful to have that response soon and we would be happy to let the Deputy know at that stage.
In terms of access to information, this cannot be underestimated as an issue of importance for survivors and family members. Access to information is part of many of these different human rights obligations the committee has been hearing about today. It is part of reparation. It is part of effective investigation to find that information and then share it with family members.
Reparation is not necessarily just about monetary compensation, it is also about having information and having access to what happened. As many other advocates have said in the past, it is not just about getting narrow information in terms of what happened to oneself or one's family members. It is also about understanding the process as a whole, what actually happened, what went on in these homes and who was responsible. There has not been enough emphasis on accountability. Access to information is all very well but if we have information about a person who is responsible for human rights violations, we need to ask questions about how we hold individuals, as well as institutions, accountable.
I will ask three quick questions and leave time for answers. The witnesses referenced the fact that the Bill allows for the sealing of documents for 30 years. I ask them to elaborate on that point. They also mentioned that our obligations would be different if we had ratified the UN's International Convention for the Protection of All Persons from Enforced Disappearance. What would be different if we had ratified that convention?
Finally, I have a question that I also put to all of the other witnesses. There seems to be an institutional aversion to providing actual justice and we have seen that historically. The coroner service has not acted, despite the fact that it is obliged to do so. We now have a Bill that disapplies the coroner. If we cannot make amendments to this Bill to encourage the involvement of the coroner, would the witnesses agree with others who said that they would like to see the Attorney General or the Minister for Justice instruct the coroner to act? Would they like to see that happening if we cannot introduce it in this Bill?
Ms Doireann Ansbro:
I will respond to the third question and then hand over to my colleague, Ms. Carthy, who will respond to the first two. In terms of whether we would like to see the Minister for Justice or the Attorney General asking the coroner service to get involved, the answer is "Yes". This is overdue and the coroner most certainly should be involved. There is clear, triggering evidence of violent or unnatural deaths of babies in mother and baby homes. The coroner should certainly be involved and there are questions around why the service has not been involved so far. While we would like to see that happen. However, I would emphasise the crucial point that it not good enough to just to trigger the jurisdiction of the coroner or ask the coroner to begin an investigation. The Government will also have to provide proper resources to the coroner and perhaps appoint a specific coroner who is trained on these issues and who has the capacity and resources to carry out a proper and effective investigation, which is the requirement under Article 2 of the UNCHR. I will hand over to Ms Carthy for the first two questions.
While we are checking, I will repeat my questions for the benefit of Ms Carthy. Ms Ansbro referenced the fact that the Bill allows for the sealing of documents for 30 years. Will Ms Carthy elaborate on that and what it means. Ms Ansbro also referenced the fact that if Ireland had ratified the UN's International Convention for the Protection of All Persons from Enforced Disappearance, our obligations would be different. What difference would such ratification have made?
Ms Doireann Ansbro:
I can answer. On the UN convention, this is actually a novel treaty in international human rights law because for the first time it introduces this right to truth that we have been hearing about all day, into an actual treaty.
We talked about the transitional justice framework and its rights to effective investigations, truth, justice and reparations and guarantees of non-recurrence but what is interesting about this treaty is that it incorporates those obligations within itself as a legal obligation. That is the key difference.
With regard to the sealing of the documents, our understanding is that the Bill provides that all documents and records will be sealed for 30 years on the dissolution of an agency. That is problematic and inconsistent with the right to truth because, as we keep coming back to it, the right to information and the right to truth are absolutely fundamental. We need to be able to access the documents. We also need transparency. Transparency is a key principle in human rights. We need transparency in all of our responses to this issue. We talked a little bit about appeals and oversight in the earlier session with the Irish Human Rights and Equality Commission. In addition to the right to appeal decisions and that kind of thing, transparency on how decisions are made is crucial. If we end up sealing these documents, an issue might emerge after the dissolution of the agency that requires access to the kind of information that would be sealed for 30 years under this legislation. It is, therefore, inconsistent with the right to information and truth and should be removed.
I thank Ms Ansbro and Ms Carthy for their contributions today. They are really great and really helpful to us. Truth and transparency are obviously critical to the delivery of justice and must be delivered in a timely manner. The work that is to be undertaken will take a significant length of time. As the Bill is currently drafted, it includes a proposal for a dedicated agency as opposed to the existing coronial organisation, which is county-based. In Ms Ansbro's view, is that the right way to go? Should we go with one single agency with a national remit? That is my first question.
Ms Doireann Ansbro:
As I understand it, the Bill in its current form would allow agencies to be constituted for specific sites. That is my understanding of the Bill so far. We believe we need specific coroners who have the resources and training to work with these agencies where there is a need for inquests or where coronial jurisdiction is triggered. Given the urgency of the need to carry out these excavations, exhumations and investigations, rather than using the existing coronial system which, as I said at the outset, has significant problems that need to be solved, which will take time, we believe specific coroners who have the right training and resources to work with the agencies set up for the individual sites should be identified.
May I ask one more brief question? Earlier this morning, Ms Susan Lohan spoke about the reparation element. I will mention the specific example she used; she said that the State should pursue the Bon Secours hospital group and organisation for reparations. Can the witnesses point us to international precedents, or other precedents, of this being achieved successfully?
Ms Doireann Ansbro:
There are two key points here. The first is that human rights obligations adhere to the State. We cannot say that the organisation necessarily has obligations under, for example, Article 2 of the European Convention on Human Rights, whereas the State does. It is up to the State to decide whether, in certain situations, it is appropriate to pursue such organisations for reparations. It is worth looking into the question of international precedent but I do not have any facts or figures at hand to share with the Senator today.
I have already spoken to Ms Ansbro and Ms Carthy on a significant number of these issues but there is a need for further elaboration on and understanding of what transitional justice is and the role it plays. We are discussing the inquest, coroners, accountability and all those things in great detail but we seem to fall down on talking about what survivors actually want. We keep stating that is what we wish to focus on. Transitional justice is something the survivors keep raising. Transitional justice seems to fall at the first hurdle when we even discuss the Bill, in terms of an inquest, the question of "why" and the truth. If we cannot have the truth, how can we really provide the transitional justice that many survivors keep referencing? I ask Ms Ansboro to address how the Bill contravenes the idea of transitional justice and the obstacles that need to be removed in order for us actually to provide truth in this space.
Ms Elizabeth Carthy:
My apologies for my microphone not working earlier. I thank the Senator for her question. She makes a really good point. As previous speakers highlighted, a transitional justice approach provides a response to widespread human rights violations. It is particularly appropriate in the context of the human rights violations that occurred in mother and baby homes. One of the key components of a transitional justice approach is that it puts survivors at the centre, which is important in this context. It is based on the pillars of truth, justice, reparation and guarantees of non-recurrence. It provides a framework through which the State can fulfil its human rights obligations. As the committee heard from previous speakers, these obligations relate to conducting an effective investigation and providing the right to a remedy. Coming back to another point raised by previous speakers, the need to put survivors and families at the centre of this is key. That should include a statutory basis for them to be consulted, their wishes taken into account and families kept updated. That should be included at every stage of the process. It is key to a transitional justice approach and the Bill can and should be updated to reflect that.
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.
I thank the witnesses. We have heard again today about a lack of transparency regarding access to documents. We saw how public confidence was absolutely rocked when this came up in the recent past. As mentioned in the statement, the proposed Bill provides for the sealing of documents and records for a period of 30 years. Access to this information is of the utmost importance, as has been said, and has taken on particular significance in the context of justice for the survivors of mother and baby homes.
Is the act of sealing documents for 30 years unique to Ireland? I ask because I have not heard of it happening in any other jurisdiction. Are there international examples of documents being sealed?
The ICCL has recommended "that Ireland ratify the UN convention against enforced disappearances, as this provides a clear roadmap for dealing with enforced disappearances and is relevant for addressing mass graves and institutional burials". The Stasi archives were mentioned at the previous meeting and at this meeting. Are there other international examples of how this has worked and, if so, how did they get over barriers to truth, justice and transparency?
Ms Doireann Ansbro:
As we mentioned earlier and as other speakers have mentioned, when we look at best practice a key example is the Stasi archive, as the Deputy has said. Any talk of sealing archives is such a contrast to how these matters are approached in the places we refer to as examples of best practice. For example, the whole point of unsealing the Stasi archive was that people could see what information was gathered on them. I am not an expert on it but I believe there are certain thresholds where different people can access different information. It is done in a very transparent way and the whole emphasis is on providing access to information for people. If we are talking about sealing documents from the get-go here, we are going very much against international best practice.
Dr. Maeve O'Rourke noted earlier that a coroner does not need a body to conduct an investigation. Do the witnesses agree that we could have an investigation without a body? Do they think that the conversation has placed exhumation and removal as the central purpose of the Bill, when we might need more restorative justice instead of transitional justice? It is very difficult to find the how, the when and all the circumstances of all the poor wee lives that were lost, but we can restore some justice and try to restore some faith. I would like to know the opinion of the witnesses on that.
Ms Doireann Ansbro:
I am not sure what the Senator means by restorative justice in this context. My understanding of restorative justice relates to a framework in which, for example, a victim can meet a perpetrator after a court case as an alternative to sentencing. I do not think it is a term that we hear in international human rights law, for example. We talk about transitional justice because it offers a framework to address all of these different issues, including memorialisation and reparation. What is really crucial about the whole idea of transitional justice is that it has different pillars.
The different pillars are meant to be applied together in a complementary way. Truth is very important. The four pillars are truth, justice, reparation and guarantees of non-recurrence. Truth is very important so we know how to deal with justice and appropriate reparations. Without the truth and knowing what happened, it is impossible to know how to respond in terms of adequate reparations. Then there are guarantees of non-recurrence. How can we guarantee this is not going to happen again if we do not have information about how it happened in the first place? We say they are interlocking pillars that must be approached together. When one takes the survivor-centred, family-centred approach, it can shed light on which one to place more emphasis on. That is why the survivor-centred, family-centred approach is so crucial. It offers the opportunity to respond in a way that is appropriate for each family who has been affected.
I am here instead of Deputy Phelan. I wish to raise a couple of matters. First, in January every year there is a release of documentation from the National Archives. That occurs across many governments and is not unique to Ireland. As regards the idea of it being a surprise or unique to this situation, I am a little disappointed to see that lack of context given the fact that it is normal governmental practice in the UK, Ireland and in many other countries. Although the period of time is proposed to be reduced from 30 to 20 years, and there are discussions about that, there is a practice of doing this. At the same time, we have the GDPR, which has superseded any instrument or practice like that in that it entitles one to information. There is also a commitment to proposed legislation, which is coming through shortly, that deals with information and tracing. That must be acknowledged and borne in mind in this context. In fairness to the Minister, not to acknowledge it is being disingenuous on the part of parties on the committee or otherwise. We need to park that.
I am interested in developing and exploring the Stasi model and how that might be employed in looking at resolving the conflict. In the next session there will be two submissions from two parties. Both are from Cork and both are affected by Bessborough. One wants exhumations and the other does not. We have very tangible and obvious opposites. We cannot deal with one site and address those individually. That leaves us with the real problem of not being able to resolve those two. Under the Stasi model, is there some way of allowing truth and memorialisation and also addressing individual needs or not? How would that be deployed? Behind all of this there is also the spectre of tribunals and the fact that in the pursuit of truth, that gets overshadowed by the cost of legal teams, so we lose sight of what we were originally setting out to do. Perhaps Ms Ansbro will elaborate on how that Stasi model would be available to us and could perhaps be of use in resolving a conflict on how this should be dealt with.
Ms Doireann Ansbro:
On the Senator's first point, although she said we should park it, it is absolutely true that when it comes to governmental work there are national archives in various jurisdictions. The key point we are trying to make is that it is important that if there is a need to access information as part of this idea of effective investigation and it is sealed for 30 years, it impedes the effective investigation. We are talking about specific information that should be available within-----
However, we now have legislation at EU level that prohibits somebody not having access to his or her personal data. Legislation and times have overridden that. That is currently being very much embraced by Government.
Ms Doireann Ansbro:
I absolutely agree that the GDPR is very positive. On the second question about the Stasi model, I am not an expert on that and would like to come back to the Senator with an answer if I can. However, my general answer would be around the idea of a proportionality assessment again. Obviously, when one has these issues, one is talking about the right to truth and one may also have the right to privacy. That proportionality assessment must be applied if somebody is saying he or she has a right to privacy and do not want this information exposed and somebody else is saying he or she needs it because it is necessary for the fulfilment of their right to truth. That is when the proportionality assessment must be brought in and whether it is necessary to share that information must be considered as well as whether it is proportionate to the aim of public interest or whatever interest may come into place. Again, therefore, when one has these different interests, human rights law provides a model to try to come up with a solution which demonstrates best efforts to protect everyone's rights in the best way possible using this kind of proportionality assessment. That is the best I can do on that one.
Sometimes when one is the final speaker all points have been covered. I do not like to go back over things if there is no need. I have an observation. Ms Ansbro made an excellent point about Tuam only being discovered in 2017. That is why it is so important, if at all possible, that we ensure we get this right and cover all potential sites because who would have thought, in 2017, that such a discovery would be made? We just do not know about so many of the sites and so many of the homes. Some of them were not included in the mother and baby homes report but that is why it is really important we get this right.
In all of the sessions so far, what is coming through really strongly is the issue of the coroner. That goes back to the point that was being made about accountability and that is why it is important we have that. It is very interesting and the whole point of pre-legislative scrutiny is that we get to tease everything out and get to hear all the various views, be they those of survivors, which are so important, or from experts in the field. One thing that is really interesting to me is the issue relating to the coroner, which is coming up consistently. This information will be really helpful to us in the remainder of our deliberations and when we are compiling our report. I sincerely thank the witnesses for their presentations, which were really interesting. The discussions so far today have been really good and positive.
I am in the similar position in that any question I wanted to ask has already been posed. Despite everyone running over, we did get through that and we have about ten minutes left. If there is anyone, be they witnesses or members, who I skipped or who has a question or supplementary observation, they should indicate now. I call Senator McGreehan.
I am very conscious that there are parents and mothers around the country listening to us who are so afraid about the possibility of exhumation being offered as the only way forward in order to meet all our human rights needs. This is very troubling for them. Ms Ansbro referred to "Taking reasonable steps to identify the deceased person and to determine the cause of death ...". That is good in the context of what was being said about transitional justice. I return to my point about restorative justice, however. We must restore faith, restore the lives and address the heartache in order to help these poor people, these women and families, who have really been suffering. We are not going to find all the answers.
How do we reconcile those two things? I state that because we are not going to be able to find all the answers, no matter how hard we try. There will be many cases where if remains are exhumed, they may not be suitable for the purposes of investigation or perhaps even for reinterment. The grave of such a baby has then been desecrated and there is no proper interment. How do we look after those little babies who do not have family members? I ask that question in the interests of best practice, because there are 9,000 babies and not all of them will have family members who will know to put their hands up or even can do so.
Ms Doireann Ansbro:
I did not respond to the first part of the Senator's earlier question concerning whether we thought that investigations could happen without bodies. They absolutely can, and I want to be clear that we are not saying the only way to vindicate the right to truth is through exhumations. We are stating that the way to vindicate the right to truth is through investigations, and they can take different approaches. What I understand from what I have heard and read before is that some families who do not want exhumations still want excavations, meaning that they want the place where bodies are to be identified but not necessarily for the bodies themselves to be exhumed. That is certainly an option.
Returning to the survivor, family-led approach, if there can be a decision which can respect the rights of everyone as much as possible, then that is the way forward. It is important to remember, however, that there are different options when we are talking about vindicating the right to truth and even about identifying the cause of death, because potentially it may not be possible to identify the cause of death by identifying the remains of one body. Regarding an investigation into the general circumstances at the time, it could even be a case of compelling witnesses who still have knowledge of what happened at that time and looking into records and accessing records we know exist but that we have not been able to access.
All those aspects are pieces of the puzzle in respect of solving the question of how these babies died and why their bodies were buried in this manner. If we can identify where the bodies are, that will certainly be one stage of this process. Memorialisation is crucial. No matter what the different stages are before, the idea of restoring faith and dignity is crucial and it is a fundamental part of what all of us here should be doing. Certainly, what should be in the proposed Bill is the idea of restoring the dignity of those to whom it was lost not only in life but in death. That should be a fundamental and primary purpose of what we are doing here.
I have one observation on foot of an email I received this morning during our proceedings. It concerns sites around the country currently managed perhaps by religious orders that had ties to institutions and homes. There may be burial sites on their premises and grounds. As part of the human rights remit and powers of the proposed agency in respect of this process, perhaps we should ensure that the agency or local government has power in respect of addressing planning applications submitted for a site associated with a former home or where there is a mandatory obligation to carry out a geophysical survey or something along those lines.
It was well articulated this morning that there is a deficit of information in some instances in this regard. As information comes forward, however, we should ensure that a mechanism or system is in place, in the context of future actions or choices of the agency, that will be able to gather the requisite information as the site is to be interfered with in the future. That is something we must consider. I just wanted to raise that issue. I think it is a valid point and it was forwarded to me by someone with whom I am in regular contact.
We have a few minutes left for any other questions or if the witnesses wish to make a final statement or summation. If not, I am happy to leave it there. Before finishing, I must get agreement from the committee on publishing the opening statements of witnesses to the Oireachtas website. Is that agreed? Agreed. On behalf of the committee I sincerely thank all members for their engagement and the witnesses for coming before us.
If any members or witnesses participating remotely are experiencing any sound or technical issues, will they let us know through the chat function? Otherwise, I will proceed. I think we are okay.
We have received apologies from Senator Keogan.
Before I begin, I remind Members participating remotely to keep their devices on mute until they are invited to speak. When they are speaking, I ask where possible that they have their cameras switched on and be mindful that we are in public session.
In addition, I remind members of the constitutional requirement that they must be physically present within the confines of the place which Parliament has chosen to sit, namely, Leinster House, in order to participate in public hearings. I will not permit a member to participate where he or she does not adhere to this constitutional requirement. Therefore, any member who attempts to participate in this meeting from outside the precincts will be refused.
We will continue our deliberations. We are considering pre-legislative scrutiny of the general scheme of a certain institutional burials (authorised interventions) Bill. I wish to inform members and witnesses present that, due to unforeseen circumstances, Ms Terri Higgins has had to send her apologies as she is unable to attend the meeting. The witnesses in attendance in the Dáil Chamber are as follows: Mr. Kevin Higgins, spokesperson for Tuam Home Survivors Network, who is joined by Mr. Peter Mulryan, chairman of Tuam Home Survivors Network; and Mr. Martin Parfrey, representing Know My Own. Witnesses appearing virtually before the committee from a location outside of the Leinster House precinct are as follows: Mr. David Dodd, BL, representing the Cork Survivors & Supporters Alliance, who is joined by Mr. Stephen Kirwan, solicitor at KOD Lyons. They are all very welcome to our meeting on the pre-legislative scrutiny of the general scheme. Before we commence this session, I wish to take this opportunity to thank the witnesses for taking the time to prepare their opening statements and to thank those of them who provided written submissions.
I also wish to take the opportunity to set out the purpose of today's meeting and how proceedings will be conducted in order to avoid any confusion during the meeting. While acknowledging the harrowing experiences of survivors during their time in mother and baby homes and county homes, the purpose of our meeting today is to consider the policy provisions of the proposed legislation. A discussion will take place on the provisions of the general scheme as they relate to the statutory basis and framework under which the Government may decide to authorise interventions at certain sites where manifestly inappropriate burials have taken place associated with institutions operated by or on behalf of the State, or in respect of which the State had clear regulatory or supervisory responsibilities. There are also provisions for the establishment of an agency to carry out such interventions. I remind members and witnesses that they are expected to adhere strictly to the subject matter scheduled for discussion today. I also advise witnesses that the opening statements they read into the record should be the statements they provided in advance of this meeting.
Any deviation on these matters will be addressed through the Chair.
We are all very much aware of the restrictions Covid-19 has brought to all our lives. It has also severely impacted the scheduling of public committee meetings. However, members of the committee felt it important to hear from some of those who may be impacted by or have a professional view on the provisions of the general scheme. It is the responsibility of parliamentary committees to consider and discuss topics in a balanced and fair manner. In achieving this goal it is the committee, and only the committee, which determines the witnesses it engages with and it will do so in an unhindered manner. This level of engagement will greatly assist the members of the committee in finalising our scrutiny report on the general scheme. For this reason, and while strictly adhering to Covid-19 safety requirements, four public meetings of the committee have been scheduled over the course of today. It is also expected that further public meetings will be scheduled in the near future to consider this matter further.
The committee wishes to have a productive public engagement. However, I must remind witnesses that they should not mention names of individuals and organisations, even if that information is already in the public domain nor should they make charges against anyone by name or in such a way as to make them identifiable. These are normal parliamentary procedures and exist to ensure that engagements are conducted in a constructive way.
Before I invite the witnesses to deliver their opening statements, I will read out the standard text regarding the provisions of the Defamation Act to remind them of their rights and obligations.
I want to take a minute to brief the witnesses on the work of the committee since the publication of the Report of the Commission of Investigation into Mother and Baby Homes and the pre-legislative scrutiny by the committee to date on the general scheme under scrutiny here today. While the committee has been limited in the number of public meetings held due to Covid-19 restrictions, it has afforded priority in its consideration of the following: the scrutiny of this proposed Bill; the issues that have arisen following the publication of the Report of the Commission of Investigation into Mother and Baby Homes; and the desire of members of the committee to ensure justice for the survivors of mother and baby homes. These matters have been discussed at eight of the nine meetings of the joint committee held this year. The committee has corresponded with the Minister, Deputy O'Gorman, on five occasions in relation to various matters and has met with the Minister and his officials to discuss these issues wherever possible. The committee has prioritised these issues above the other competing demands of its vast work programme, insofar as it reasonably can. It stands ready to help to facilitate delivery of the recommendations and actions contained in the report into mother and baby homes however possible, and to undertake robust scrutiny of any and all related legislation referred, such as the general scheme under discussion here today. A public call for submissions on the general scheme opened on 22 January with a deadline of 19 February. This was later extended to 26 February. Every effort was made to ensure maximum reach and accessibility during this process. In total, the committee received 426 submissions. The committee has also had substantial standalone correspondence from the public on these issues and appreciates the engagement and effort the public have made to date on what are difficult issues.
I wish to highlight some of the support services available to anyone affected by the matters under discussion today. The HSE has a dedicated counselling service for former residents of mother and baby homes. For more information on this people can call 1800 817 517 or visit the HSE webpage. The Samaritans are available by telephone at 116123 and further supports can be found at yourmentalhealth.ie.
I am obliged to give the following advice on parliamentary privilege. For the witnesses present in the Dáil Chamber the following will apply: witnesses are protected by absolute privilege in respect of the presentation they make to the committee. This means witnesses have an absolute defence against any defamation action for anything they say at the meeting.
Witnesses are expected not to abuse this privilege and it is my duty as Acting Chair to ensure it is not abused. If a witness's statements are potentially defamatory in relation to an identifiable person or entity, the witness will be directed to discontinue his or her remarks. It is imperative any such direction is complied with. For witnesses appearing virtually, I need to point out that there is uncertainty if parliamentary privilege will apply to evidence given from a location outside of the parliamentary precincts of Leinster House. Therefore, if a witness is directed by me to cease giving evidence on a particular matter, it is imperative that he or she complies with any such direction.
I call on the witnesses in the following order: Mr. Higgins, Mr. Parfrey and Mr. Dodd.
Mr. Kevin Higgins:
The Acting Chairman will forgive me if I rise. It is difficult, with some metal in my right side, to sit for a long period. I ask one thing of the Acting Chairman. He has delivered a quite proper warning to us in respect of conduct and what one says in the House. He has delivered it directly to individual members of this committee and to us as witnesses before the committee. As he sits in the Chair with all the powers of same, he represents the committee. I would like the following, whether by a ruling from the Acting Chairman, which I would unquestionably respect, or otherwise. Will the Acting Chair tell me as a civilian appearing before the committee whether the committee, given that this issue has been raised in submissions with plenty of time to consider, has satisfied itself in a proper and appropriate manner and taken great care to ensure its capacity and powers to examine this Bill are intra vires? Would he be kind enough to make a ruling on that? I will accept it without question.
Mr. Kevin Higgins:
I am satisfied that the Acting Chairman has declined to answer the question.
In addressing this committee I cannot but notice that in actual number it is 14 and, with a secretary, 15 in all. That is the number of attendees at the Wannsee Conference of 20 January 1942. In drawing attention to this unfortunate coincidence, I must acknowledge that the members here are undoubtedly horrified by much of what they have been asked to consider and are personally greatly affected by it. The coincidences, however, do not end there, in that both gatherings have a common purpose, namely, to produce a "final solution" to a pressing problem. The Wannsee meeting was to find a solution to the overflowing concentration camps of eastern Europe. Anyone with a flimsy knowledge of the 20th century knows how that ended.
This committee has a different problem. It is asked to find a "final solution" to the rather untidy problem of mass graves of children, victims of a wretched bargain between church and State from 1923. It is almost a singularly Irish problem. Everybody knows where the bodies are buried, so what are we to do with them? How does the State deal with its own egregious failings? The answer seems to be that it must ignore the existing law and introduce a new law, removing the only mechanism that provides for a finding in law as to cause of death, namely, an inquest. The result is that there will be no finding of blame or responsibility in law for their deaths. The rationale seems to be that, as these children clearly had no rights while alive, why embarrass ourselves by giving them any rights in death? This is indeed an unwholesome Irish solution to an Irish problem. There is no doubt this committee will be peppered with the proposition that mass graves such as Tuam present almost insurmountable difficulties in extracting and identifying the victims and determining the causes of death.
As in all such grotesque events, truth is the first casualty. Compared with grim events over the past 80 years such as Katyn, Srebrenica, Kosovo, Sierra Leone and so on, the mass grave at Tuam, in terms of recovery, identification and determination of causes of death, is a relatively simple task and we are happy to meet any assertion to the contrary with hard evidence.
If this Bill was genuinely conceived as a measure to bring dignity to these children and a measure of closure to their families, it would probably have been adopted on all sides and the need for pre-legislative scrutiny would not exist. To the members of this committee I say that if they permit this measure to progress, they do so with their fingerprints all over it and I believe they will come to regret it. This Bill should be returned to whence it came. Nothing of worth, humanity or integrity can be retrieved from it.
Mr. Martin Parfrey:
On behalf of Know My Own, I thank the Oireachtas for giving us this opportunity today. The main issues of concern for us are: the investigation of grounds for burial sites; the issues around DNA; the role of the coroner, which seems to have been excluded from the Bill; and that the Bill should come under the remit of a person with the status of an ombudsman, independent of the Oireachtas and the Civil Service.
We are particularly concerned about Bessborough. A company has two planning applications in for large residential developments on the grounds of Bessborough, where we believe there are possibly a lot of unexplained burials. More than 900 babies died at the Bessborough home but the burial sites of only 64 babies are known. Where the rest are is anybody's guess. The order kept no records and so they were unable to explain where any of these burials took place. We have heard stories, anecdotally, of babies being passed out through windows to workers for burial. They could be anywhere on that site.
In its final report the commission did concede it was highly likely that burials did take place in the grounds but that the only way this could be established would be through an excavation of the entire property, and this would be too costly. These are human remains, some of whom have close relatives who have been searching for them fruitlessly for decades. I honestly do not believe one can put a price on that. I was glad to hear Professor Scraton saying something similar at the earlier session today. Costs should not be a factor.
Apart from anything, geophysical examination of the grounds may suffice. There may not be a need for excavation. A few years ago in Cork Prison, geophysical X-ray equipment was used to locate the remains of Thomas Kent who died more than 100 years ago. This was achieved in a couple of days. I do not see why this would not be possible in Bessborough and all the other homes. I specifically refer to Bessborough because of the urgency of the situation as there are planning applications in the system.
With regard to head 65 of the Bill, which refers to the ten-year holding period for DNA profiles for any remaining unidentified bodies, we believe this is far too short a timeframe. We recommend this be increased to a minimum of 50 years. It only allows for DNA from parents, children, siblings or half siblings. Again, we do not see how this can be explained. Why could DNA samples not be taken from grandparents, cousins, aunts, or uncles?
Any method that might help to identify remains should be kept under consideration. The door should not be closed to any of these methods.
We also feel that DNA sampling could start immediately. It does not have to wait until the Bill comes in. Some of the people we are talking about are quite elderly and as they may not have a whole lot of time left, we do not see any reason for this to be delayed or why it cannot start right away. If these people want to make their DNA available; it should be taken while the time is still there.
On Bessborough, there are some heartbreaking stories. I have a friend who had a baby in Bessborough and her baby died in St. Finbarr's Hospital. She travelled over from England on numerous occasions asking for the burial site of her son. A nun tapped around with her foot to indicate where it was. It turned out afterwards, when the report came out from the commission, that her baby had been buried in the Famine graveyard on Carr's Hill. That is not right.
Mr. David Dodd:
I thank members for taking the time to hear from survivors and their representatives. The Cork Survivors and Supporters Alliance, CSSA, represents a group of survivors of Bessborough Mother and Baby Home, including former residents and family members of women and children who resided within the institution. The CSSA’s membership includes family members of children who died while resident at Bessborough, and whose burial location is not recorded, and their supporters. Many of these children were buried within the grounds of Bessborough in unmarked graves.
It should be noted that the CSSA does not seek for the remains of the children buried at Bessborough to be excavated, exhumed or otherwise removed from the site. While the exhumation of remains in other sites, such as Tuam, may be an appropriate response, it is not appropriate at Bessborough. Rather, the CSSA seeks for the remains of children buried on the grounds to be preserved in place. Exhuming and moving the deceased children off the site is, in a way, just a direct means of dispersing the children who died there. It is the opposite of memorialisation and it is not the appropriate way to mark their lives and deaths at the place where the events took place.
Placing exhumation and removal as a central purpose of the Bill runs the risk of the Bill being well intentioned but achieving precisely the wrong thing. In one way, it could be said that it is just a convenient way of making the children disappear from sight again, and it is precisely the wrong response to what happened. The CSSA seeks that the site be appropriately cared for and memorialised. There should be an appropriate fencing of the burial ground to prevent animals accessing the site or people inadvertently and unknowingly walking on graves, and appropriate marking and commemoration, or both, of the children’s burial places.
These are the standards that are currently applicable to burial grounds in accordance with the Public Health (Ireland) Act 1878, as amended, and the Rules and Regulations for the Regulation of Burial Grounds 1888. A core issue is that these standards were not respected or applied in Bessborough House, despite applying to the burial ground there, and that remains the position. Given the failure to apply the burial rules, which are a statutory instrument to date, the rules should be elevated to the level of an Act.
There should be no difference of treatment between the burial grounds of the children at Bessborough, and mother and baby homes generally, and other children's burial grounds. The CSSA seeks the maintenance, preservation and memorialisation of the children’s burial ground on the site of the former Bessborough mother and baby institution and in the absence of legislative intervention, the issue remains unsettled. In addition, there is a right of reasonable access for the survivors and family members of children buried on the grounds of Bessborough, which should also be recognised in the Act. What underpins this is a universal human need and legal right. It is something we all share and is best expressed in the following judgment from the European Court of Human Rights:
The right of every person to be buried in a dignified manner in accordance with the traditions and customs of his family hardly requires special justification or even to be secured in written form in law. This right is clearly self-evident and stems from human nature as, perhaps, no other natural right. Equally natural and uncontested is the right of every person to conduct the burial of a person who is related and dear to them, to have an opportunity to perform one's moral duty and display one's human qualities, to bid farewell, to grieve, mourn and commemorate the deceased, however he may be regarded by society and the state, to have the right to a grave, which in all civilisations represents a sacred value and the symbol of memory.
That is from the European Court of Human Rights case, Arkhestov and others v. Russia.
We have provided some of the details of the burials at Bessborough but I am conscious of the five-minute speaking slot so I will move on. The commission of investigation findings are well familiar to the committee so I will deal with its final report. The commission appears to suggest the children's burial place at Bessborough cannot be identified in the absence of the excavation of the entire property. The CSSA strongly disagrees in circumstances where contemporaneous and reliable Ordnance Survey of Ireland, OSI, mapping evidence clearly indicates the location of the children's burial ground. That map has been appended to the submission.
The OSI has confirmed that the location of the burial ground is recorded on a revision map, the recording is reliable and accurate and the location would have to have been approved by the then occupiers, the Sisters of the Sacred Heart, and what is termed the name book and form 1.6 should also have been completed before any entry on a map could be made. The children and relatives are buried at this location unless the mapper who attended the site in 1950 wrongly recorded the site of the children's graveyard or the Sisters of the Sacred Heart wrongly signed off on the location, which is improbable to say the least and not a view supported by the OSI, the State's expert mapping service.
It is noteworthy that the interim report of the commission failed to identify the original trace drawing and demonstrated significant confusion about the mapping evidence and what it meant and showed, all of which was omitted from the final report, following receipt of the CSSA submission. The CSSA does not seek for the children's burial ground to be excavated or the children's remains to be exhumed or interred elsewhere; the children's remains should rather be preserved in place with appropriate marking and memorialisation, with a right of access for relatives wishing to access the graves.
In the view of Bessborough, the CSSA view excavation as desecrating the last burial place of the children, a place they have rested together for 40, 50 and 60 years. There is a section on the legal background to burial rights but I will move on because I am conscious of the five-minute stipulation on speaking slots. The fact that a duty to provide a "decent" or "dignified" burial was not respected in the past is no reason to disrespect the deceased children now. Removing the children from their burial ground so the land can be developed by building apartment blocks-----
Before advising members of their speaking allocation, I advise all witnesses that it is the decision of members as to the questions they wish to ask and the witness they wish to respond to their questions. Each member will be allocated five minutes. I ask members to ensure they leave adequate time to allow witnesses to respond to those questions. As members are attending the meeting virtually from their offices and cannot see a clock to monitor the speaking time, I will advise them when they have one minute remaining. I ask members to adhere strictly to time allocations to facilitate all members participating in the meeting. I ask them to confirm their location when making interventions so as to ensure they are here in Leinster House.
I will call on members to speak in the order agreed at the meeting of 30 March. Senator Seery Kearney is first.
I begin by reiterating my comments in the first session this morning. This session specifically includes survivor groups and I thank them for being here and for their considerable advocacy on behalf of themselves and others, their families and all survivors. All of us as public representatives engage in this process from a position of being heartbroken, appalled and moved by what we hear. We are in constant contact with survivor groups.
I consider the pre-legislative scrutiny process as one of the honours of being a member of a committee. In this and other committees we come together as equals across all parties in the Houses and despite our political differences, we work as best we can to produce a report that represents the best recommendations we can for a Minister. I very much value this process.
Senator Aisling Dolan is on the call but unable to speak, although she is in Leinster House, as I am. I know she has had considerable engagement with Mr. Mulryan.
I am just acknowledging that. As time is short, I want to give my time over to Mr. Dodd. We are talking about institutional burials but, come the end of next week, we may not have a burial ground in Bessborough on which to take action if something is not done and some intervention is not taken very dramatically and urgently there. I will hand over to Mr. Dodd to address that very crucial issue of the children's burial site in Bessborough and its imminent demise.
Mr. David Dodd:
I thank the Senator and appreciate the question. That highlights one of the major differences with Bessborough compared to other sites. I want to explain this to the committee because it is important. What may be right for one site like Tuam is different from what may be right for another site like Bessborough. The immediate problem faced by survivors of Bessborough is that, next week, there is an expedited hearing before An Bord Pleanála, where the owner of the lands, the developer, as he is fully entitled to do, will apply to put apartment blocks on Bessborough. Two of those apartment blocks will be placed exactly where the OSI, which is the State’s expert mapping body, has identified the children's burial ground.
That identification is based on an original map from 1949. On 3, 4, 6 and 7 October 1949, a senior mapper from the OSI attended Bessborough and he drew a very detailed specialist map in accordance with the mapping rules. In accordance with the rules, a senior adviser then went out. His name was Mr. B. J. O’Rourke and he was there on 26 and 27 January 1950. The data from the commission and the evidence is that many of the children's deaths happened before 1959 and there was a significant level of deaths in the decade before that - a very significant proportion of the 900. He is there on-site and he draws in “Children's Burial Ground”. He uses various notations which are important for mappers. He uses up and down script and he capitalises it, so it is Children with a capital C, Burial with a capital B and Ground with a capital G. He is very definitely indicating the location of the children's burial ground.
Next week, there is a planning application which is going to put an apartment block on the children's burial ground. Whether anyone's personal view is memorialisation or exhumation, if there is an apartment block there, neither is going to happen, so that is an immediate pressing concern, perhaps not for this committee but for our members. That is the context we are coming from.
I want to read out quotes from the ladies I met two nights ago, when we held a meeting with the members to get their views. What they want is really understandable and not complicated, so I will use their words. One said: “We want somewhere to go to remember our children and siblings, to go up, sit on a bench, lay a flower, have a moment.” Another lady said: “Bring flowers, say a prayer, talk to them, talk, sit down. This is the way it should be in Cork.” That is what they said to me two nights ago. These are very deep and understandable human feelings about the children they have given birth to and who died. They do not know where to go to commemorate their loss or the loss of siblings. These are very simple wishes which should be respected.
There is a huge amount of engagement that was done so that survivors are listened to. It is very hard to look a survivor in the face and say they are being listened to when there is going to be an apartment block built on the children's burial ground, and the OSI, which is the completely independent State mapper, staffed by former members of the Defence Forces, all of whom are expert members, is saying to the survivors that this is where the children's burial ground is.
No, I making a ruling on this. We are going to stick to our guns. The next person on the list is Deputy Jennifer Murnane O'Connor. That is the way we have done it all morning and I think we should stick to that rule, if that is okay. The Senator will have an opportunity to come back in.
I thank the Acting Chairman and the witnesses and survivors today. We have heard heartbreaking stories. I am very vocal about the need to have survivors lead us in our legislation. I work in Carlow with survivors and it is very important that we support and work with our survivors and listen to them.
I have one question on DNA. As to the collection of the DNA sampling, have any of the groups' members started the process of collecting DNA as is covered under the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014? A DNA database was established in Ireland. It is used as an intelligence source for criminal investigation but also to help find missing people and identify unknown people. Have any of the groups' members been in touch with Forensic Science Ireland, FSI, with regard to volunteering their DNA? I also note that just last month, FSI was hiring forensic scientists, grade 3, in the areas of DNA and criminal physical analysis who will examine casework samples recovered from crime scenes to prepare reports of findings. This is something that I can bring up with the Minister with regard to resources. I listened to Mr. Parfrey as he spoke about this and it is important that the time be extended and that funding be acquired in this regard. Funding should not be an issue. We need to ensure there is funding available for families or volunteers who wish to undertake DNA testing.
While I feel honoured to be able to work with survivors, we need to do more. Do we need to look at a long-term liaison officer position to give support and help to our survivors? This has to be survivor-led and we cannot make mistakes on this issue again and have to get it right. I thank our survivors and witnesses again today and the Acting Chairman also.
Have any of the groups' members sought to have DNA sampling or testing done? We need to ensure that funding is there for those survivors and family members who may wish to do this and I note this was referred to in Mr. Parfrey's contribution.
Mr. Martin Parfrey:
I am not aware of people who specifically are doing that. The only people I know who have been using DNA have been using it for tracing relatives. It would be a useful thing for us if people were to give DNA samples now which could be used afterwards. I thank the Deputy for her suggestion.
I thank the witnesses for coming in today. My question is for Mr. Parfrey. He highlighted that the Commission of Investigation into Mother and Baby Homes and Certain Related Matters report states it is not known where the vast majority of children who died in Bessborough are. We know that 859 of these children are unaccounted for. Would Mr. Parfrey be in favour of the Minister for Housing, Local Government and Heritage issuing a compulsory purchase order to ensure that no developments hamper any of the potential aspects of this Bill?
Mr. Martin Parfrey:
We are very strongly of the view that no development should be allowed on any of these sites until the grounds have been investigated. The number of missing babies in Bessborough is horrendous. Our feeling is that excavation has to take place before there is any development. After all, the people of whom I spoke a while ago have spent decades searching for information need and they deserve closure. If development is allowed to go ahead without the grounds being investigated, any hope of closure is gone forever. Furthermore, the State should look at taking over the grounds of these mother and baby homes and of the various institutions and keeping them open as memorial gardens.
As I said, cost should not be a factor no matter what happens. We cannot put a price on any of this.
By the way, we are talking about babies and infants. Of the 31 mothers who died in Bessborough, the commission found General Register Office, GRO, records for 29 but it only found burial records for 12 in St. Joseph's Cemetery in Cork. Where are the other 19 women? There could be adults buried indiscriminately around Bessborough as well. As Mr. Dodd said, this is very urgent because that planning decision will come shortly. Everything possible should be done to block any development until the grounds have been examined or, better again, taken over by the State.
I express my agreement with Mr. Parfrey. If any planning permissions are granted on that site, we should encourage the Minister for Housing, Local Government and Heritage to issue a compulsory purchase order to prevent development. I also agree with Mr. Parfrey that the State should look into doing that with all sites associated with mass infant and children's graves.
If I have remaining time, I would like to offer it to Mr. Parfrey in case there is something he wishes to add to his statement but did not have time to earlier.
Mr. Martin Parfrey:
When I was talking about the lack of information, I mentioned a friend who was looking for the burial site of her son and it turned out he was not in Bessborough at all. In the report of the Commission of Investigation into Mother and Baby Homes, there was a testimony from one lady whose son died in Bessborough. She wanted to be at this funeral but the home refused and would not allow it. She said she was probably only 100 yards away from where his body was buried. The home would not tell her where the body was. She does not know if he was buried in a coffin or if he was just in a robe. She does not know if any prayers were said over him. Some of the behaviour was absolutely horrendous. As I said, the people whose children are still missing need closure. It is vital that they get it. The State should consider taking over all those grounds.
Thank you, Martin. Forgive me for dispensing with formalities and referring to the witnesses by their first names. I hope that is okay and you feel comfortable with that. There are 25 seconds left in the slot.
I agree with Mr. Parfrey. I will highlight that perhaps a compulsory purchase order could be issued. As I mentioned in the previous sessions, the potential is also there for the Attorney General to instruct the coroner to act with regard to Mr. Parfrey's concerns.
Mr. David Dodd:
I thank Senator Fitzpatrick very much; I am grateful to her for that. The pressing problem for the survivors in Bessborough, certainly those I represent, is the idea that the apartment block will go on top of the children's burial ground. Any commission that gets seven or eight of ten things right has done well. If a commission gets nine out of ten things right, it has done exceptionally well. Commissions do not get everything right. When it comes to the location of the children's burial ground, we believe the commission did not get it right. We have a good and rational reason for that, namely, that Ordnance Survey Ireland holds a map, which is available for inspection, that identifies that Mr. O'Rourke was out there in 1949. He wrote down "Children's Burial Ground" in very deliberate writing and that went on to the printed maps, which are around in libraries. To get that wording on to the printed map, the nuns had to sign off on the location.
We invited the commission to ask OSI to inspect the map but, unfortunately, in the time allowed, it did not do so. From our perspective, there are 900 children missing and there is a document from 1949 by an expert at the State's mapping agency pointing to the location of the children's burial ground. That is really compelling evidence unless one is saying that he got it wrong, which he did not. Everything else on the map is absolutely perfect. For us, therefore, the location is known.
On the question of compulsory purchase, we are in favour of the developer developing the lands. Houses are good for people. However, building should not take place where the children's burial ground is located. There are ways and means by which both things can be accommodated. We are not against development necessarily. One can memorialise the burial ground in an appropriate and respectful way. It is not brain science. One ring-fences it so that animals do not get on it, one puts up an appropriate memorial and one allows the relatives reasonable visitation rights. That is what we all get for our deceased and it is what the ladies of Bessborough want for their deceased, nothing more and nothing less. I hope that answers the questions from Senator Fitzpatrick and Deputy Cairns.
It does answer my question. Mr. Dodd referred to the very modest desire of the women to be able to visit and spend time at the burial site. That is something nobody should even have to countenance being refused or denied. It is very important that this request be fulfilled.
The work on this issue will continue for many years after we have finished ours. As we look to move forward in completing that work, it is important to hear from Mr. Dodd and Mr. Parfrey what they would suggest is the best way to conduct communications on an ongoing basis with the women and survivors. Clearly, very poor communications and a lack of communication have been a real characteristic of what has gone on in the past.
Mr. Martin Parfrey:
We believe survivors should be included in any plans going forward. There has been a terrible lack of communication between the authorities and the survivor groups. There has been a deliberate lack of information from certain quarters. Survivor groups should be consulted on any issues relating to adoption, burials and mother and baby homes. Without a doubt, they should be included.
Mr. David Dodd:
The issue is actually quite complex and difficult. Many of the survivors are vulnerable and have their own issues around communication. Therefore, we have representatives like me, from the Bar, and others, including academics, representing them. It cannot be that their voices get lost. We have to keep coming back to listening to what they have to say. We have to realise that they do not all believe or want the same things and there are complexities there we must acknowledge. We have to do our best to create a space for them to have their voices heard, just like what has happened today, which is very much to the credit of the committee. The chain reaction of the committee's hosting this meeting today is that we were able to assemble that group. We spent two hours with them on a Zoom call, listening to all of the views and allowing people space to speak. Although it comes to fruition here today, there is a whole iceberg below in terms of allowing people to get their views across. When one speaks for others, one only ever does it inadequately. We do our best to speak for the survivors, acknowledging that there are different viewpoints and that each is valid.
I am anxious to ensure that we get through the first round of questions in good time to enable us to devote as much time as possible in the second round to follow-up questions. As Deputies Costello and Cathal Crowe are not online, I invite Senator Ruane to put her questions to the witnesses.
I have two questions for Mr. Parfrey. If there is any time left, I will come back in. He mentioned the DNA matching process and the restrictive eligibility criteria under the Bill. From his experience in the adoption support group, in what ways will this present challenges for survivors and relatives when engaging with the DNA identification and match process?
Mr. Martin Parfrey:
I do not believe it would create a problem. DNA is easily taken. I am sure that most people would have no difficulty in agreeing to give DNA samples. We believe that it should be open to a wider group of people rather than just the parents, children and siblings. As I said earlier, we also feel that the data should be kept for 50 years rather than ten. With modern technology, there is no reason that cannot be done.
The question is about the powers that will be created in this legislation for the agency to be able to stop building on particular sites that may incorporate mass burial grounds, instead of relying on a separate Department in applying for compulsory purchase orders.
Mr. Martin Parfrey:
We do not have an objection to building. Our concern is about what happens prior to the building. We know that there is a housing crisis. We do not have an objection to the development itself but we believe that a full examination needs to be carried out before any development takes place. As I said earlier, I would prefer the State to take over these sites and keep them as memorial gardens.
I thank Mr. Parfrey. I turn to the witnesses from the Tuam Home Survivors Network. There is a line in the statement about giving dignity and respect and how we achieve that. This Bill does not do that. I would like to give over the last couple of minutes for Mr. Mulryan to elaborate on this. He does not see this Bill as the way forward and I ask him to elaborate on what he sees as a way to be able to gain that dignity, justice and accountability.
Mr. Kevin Higgins:
Mr. Mulryan has indicated that he would like me to answer that. I am not entirely sure where the Senator gets that statement from but I understand what she is asking. The word "dignity" has become overused throughout this process. I have been involved in this for the past seven years. Whereas the commission has acted independently, I do not know of a single, solitary substantial thing done by agency of the State and certainly not by the Department of Children, Equality, Disability, Integration and Youth which has made any difference whatsoever. Dignity and justice are inseparable. If one cannot give these children a bona fide death certificate, this legislation, which may decide, essentially asks us in many ways if we would like roses around the mass grave or if we would like bluebells.
We do not want either. The death certificates of these children are a fantasy. There is not a single medical certificate existing for one of those children in Tuam. One cannot get a death certificate without a medical certificate. This is not new law; it pertained then. According to the death certificates, 25% of these children died from something as nebulous as debility. We are all familiar with deaths through premature births of children. The medical attendants certified that a child of three-and-a half who had never shown any symptoms or illness had actually died from prematurity.
Dignity without justice, justice without dignity. We need these children to be treated with respect. This Bill is a little like the commission of investigation Act. People say it is not fit for purpose. It is clearly not fit for anything. How many of them have run into the ground? I hope that answers the Senator's question.
Any immediate development at Bessborough is wrong and should not be allowed to progress, especially as we have heard that the burial sites of almost 900 babies in the grounds of Bessborough are still unknown. I was not aware, until this meeting, that the burial sites of some 19 women in Bessborough are also unknown. We cannot allow any immediate development on that site as it is.
I am relatively new Deputy and if there was ever a need for pre-legislative scrutiny, this meeting has shown it. We have seen diverse opinions and heard heartbreaking life stories of survivors. We heard that the Bill is not worthy and that children need to be exhumed, identified and given a proper burial. We have also heard that children should remain in situand that a permanent memorial be erected. I can see the rationale for all the opinions. I thank all the witnesses for their honest contributions to the meeting. It is important that no voice is lost.
I have a generic question and I am going to put a bit of pressure on the Acting Chair. I ask the Acting Chair to share the remainder of my time between the three witnesses. We have all heard each other today but I ask them how we can best ensure, as we go forward in this process, that nobody's voice is lost?
We are now coming up to 4 o'clock. Deputy Ward's slot is followed by Senator McGreehan's, Deputy Phelan's and mine. I am happy to forgo my slot to the Chairman, Deputy Funchion. We will have an hour to get through the rest of the speakers. We will stick to five-minute slots until we get through the first run of speakers. We will then have sufficient time to have a good, wide-ranging discussion. Does Deputy Ward wish his question to be directed to the four witnesses or the three witnesses here?
We want to make sure that no voice is lost. We have heard many diverse opinions and many different rationales on certain aspects of the Bill, especially in this meeting. I ask the witnesses what they feel is the best process to ensure no voice is lost as we go forward with this Bill.
Mr. Martin Parfrey:
As I said, the main priority for us is to make sure that no development takes place until the grounds have been examined. Regarding Bessborough, Mr. Dodd mentioned the map showing the burial area. I am concerned that the whole of Bessborough could be a burial site.
The burial sites of the remains of more than 850 babies are unidentified. They could be anywhere on the grounds of Bessborough. I would not be specifically concerned with the area on the map. I do not know where the map came up with the idea that this was a burial area.
Mr. Kevin Higgins:
How do we ensure that nobody is left behind? My answer might be at odds with my sitting here. I would say we can do so by following the law. I think the existing law is quite adequate. In the case of Tuam, with which I am most familiar and which is perhaps the most documented, it is possible to excavate. I know from the osteoarchaeology I have seen that in many cases, it is possible to carry out post mortems and to reach a determination on the possible or probable cause of death. Not leaving us behind collectively, this is not a matter simply for survivors. The Bill which created mother and baby homes was something as innocuous sounding as the Local Government (Temporary Provisions) Act 1923. That legislation was finally repealed in 2000, 21 years ago.
Mr. Kevin Higgins:
I do not believe we need this Bill. I think we need to follow the law. I believe we need to resource the coroners' service and allow people still living to give evidence to the coroners' service about what transpired within those homes in order to allow a coroner to make a determination.
Mr. Peter Mulryan:
I would like to know where my sister is at this moment. I am now three years looking for records of my sister. Every time I go to bed at night, I think of her. Why am I left this way? Is she dead or alive? I do not know. The information I got is so scant. It is unbelievable that they would do this to a human being who was recorded as having been born a healthy baby, but who died nine months later. What did she die from? Was it from malnutrition or neglect? Was she drowned? We do not know. I want to know where my sibling is now. I am being denied all this information. Having done that to an innocent baby, now they are trying to stop us finding out anything about where she is. We are denied and denied again. It is so inhumane to think of what the present State and Government is doing to us. It beggars belief. I am so, so disheartened that they are still trying to make those babies suffer. There are souls out there searching. For a life to be brought into the world and then incarcerated - and then there is what was done to my mother - is horrendous. That is it.
That statement really brings us all back to focus on why we are here and why this Bill is so important and to remember all those beautiful wee babies who we lost because we, as a State, failed to look after them. I direct my question to Mr. Dodd. His contribution illustrates well, and provides evidence about, the children's burial plot. We must work to prevent any development on that site and preserve and protect it at all costs. I note Deputy Cairns, and another submission also, looked to that CPO method. Perhaps that is something we can do, but I am not sure the remit of this proposed Bill is the place for it. It is, however, somewhere we need to go. There must be an input from the county councils as well regarding these institutions.
Returning to Mr. Dodd, how can we improve the process in situations where the ability to excavate and, therefore, explain what happened at sites is not permitted? How can we improve the process for survivors and mothers to ensure that investigations are carried out to the greatest extent possible within the remit of this agency? Explanation is one element of this process, and then investigation and memorialisation are other major aspects. How can that best be done? Having spoken to the mothers, I do not believe they are fit for a long-drawn out process of some 15 years. They do not have that time. How does Mr. Dodd think this process can be best undertaken to serve these mothers?
Mr. David Dodd:
My view is not of any relevance, but the views of the ladies whom I have been dealing with are based on what they were denied. What we are trying to do is to fix the wrongs of the past, and everybody is trying to do that and to grapple with what is the right thing to do in that regard. We know what should have happened in the past because human rights case law tells us what we know already in our heart of hearts. People are entitled to be buried in a dignified manner. Their families are entitled to bid farewell, to grieve, to mourn and to commemorate the deceased. The problem is that these families did not get such opportunities. Once we have identified the problem, we can then consider what the solution might be.
What I hear from the survivors whom I have been dealing with is that they now want to be able to fulfil that human need to go back to a place, have it dedicated, sit on a bench, lay flowers and talk to their sibling. Mr. Mulryan certainly echoed many of the things I heard in the last year when listening to the survivors of Bessborough. What is not listening to them is sending down diggers and excavating the land. I state that because it is important to realise that the real game in town here is excavation and removal. The owner of the lands wants to remove the remains of the children from those lands and make it someone else's problem, be that the State, the coroner or the relatives. An apartment block is an understandable commercial objective, but from our perspective this is not right.
Therefore, the way to respect this situation from our perspective is to fulfil the rights identified in the case law. I refer to the right to go to the location, to spend time there, to have the place dedicated and to fulfil what really should have been done in the past. From our perspective, that is what should happen. The narrative is very important because there is this idea that it is not known where the burial site is. From our perspective again, however, the public body, namely, the OSI, is telling us that it has the record of the senior adviser going out to the location in 1949 on a specific day. He was there for three days. He records one of those days as being wet, and that demonstrates the level of detail that man went into. He noted where the burial ground was, so we know there is a burial ground, we know there are 900 children and we know there is a man out there with the relevant expertise. That is the best evidence for us. We cannot, therefore, understand this idea that the site is not known. We really cannot understand it.
The difficulty with saying the site is not known is that it will then be possible for the owner to proceed to develop the lands. That is really the problem with going down that route. From our perspective then, if one looks at the evidence it is clear where the location of the burial site is. It does not mean babies were not buried elsewhere, but we know where the main children's burial ground was because there was a man out there who identified and drew the site and then he got the nuns to sign off on it. When we provided this information to the commission, and admittedly we provided it very late, just some weeks before the report, we could not understand why the commission did not communicate with the OSI, which is a completely independent agency which has nothing to do with the Bessborough ladies or Bessborough at all.
From our perspective, the narrative that it is not known is dangerous because it allows avoidance of dealing with the problem. Once one knows where the burial ground is, then it is quite clear what should happen. The only way to stop that is to say we do not know where it is. That is really our perspective on things.
I wish to acknowledge the survivors who have come in to speak to us today. I have listened to those experiences. I know the Tuam area in particular as I come from Galway. I previously met Peter Mulryan. I would like to offer him some of the time allocated to me if he would like to contribute again. He has spoken very deeply about his mother and his sister and even the impact on his own family. It is very stark. There has been a particularly heavy loss of life in the Tuam mother and baby home, especially in the 1930s and 1940s. It was shocking. We saw that from the report that was issued. I would like to offer Mr. Mulryan the time if he would like to give any other information or provide feedback, for example, if there is anything he wants to say on the DNA process as well.
Mr. Peter Mulryan:
I would like to speak in general. I have not been asked to give a DNA sample. I do not know why that is. I am available to do it. I did it privately and I got a lot of information from it myself, but it would be so important to get it done again to find out if she is there or if she was sold off and is in America. I just do not know. She could be alive. I went to America two years ago. I was in New York and a few places giving talks in universities and Irish centres. There was a great response. The hope is that if she is out there, she will put her head up somewhere and look for me. That is what I hope will happen rather than her being down in that sump of a septic tank decaying away in such a situation, not even put into a coffin, with just a bit of cloth left on a shelf under the darkness of night. Somebody knows, but there are no records whatsoever. It is scary stuff. One would make some allowance for it in a time of war but there was no war in this country that meant people had to do that with such innocent babies. We do not know how many thousands of babies died. What were the religious orders thinking of? Was the population in the country too high? What kind of an idea did they come up with to neglect an innocent human being like that?
There has been talk of a memorial garden, but that is not enough. These babies should be given back to their siblings and relations when they have been identified and the DNA has been done properly. That is what we need. We could take them to our own graves and graveyards. We know where we can go to pray if they are in there, but they must not be left there even a second longer. It is going on for the past six or seven years and it has been highlighted but we are no further on. If somebody found a strange animal at the end of their garden or anywhere on the road, or even a dead fish in water, the first thing he or she would do is report it to members of the Garda, who would come along and investigate why the animal or fish died. Yet here we have known numbers of babies and nothing was thought of them. There is more respect for the wild animals in this country than those babies all over Ireland, given what was done to them.
There has to be a lot of reparation. I thank Mr. Mulryan very much for his time. It is very important that the DNA process happens as soon as possible. That is crucial for the members of the families of survivors. I thank the Chairman for allowing me to speak.
I do not have questions but I want to thank Mr. Mulryan in particular. His testimony has been incredibly powerful.
What we are trying to achieve today is to hear from as many people as possible on this proposed legislation to see where we can strengthen and improve it. It is welcome to get everybody's view regardless of what they are. I want to thank everybody for making the effort to travel. It has not been easy for them with everything that is going on as a result of Covid-19. We very much appreciate that they have given their time to come here today. The opening statements were excellent. They were detailed and set out exactly what each individual or group is thinking or wants to say about this issue. I thank the witnesses for their engagement. I do not know if they realise how valuable it is to us, as a committee, to get the opportunity to hear many different viewpoints. It is on those that we will base our recommendations, amendments and so on. Their engagement has been excellent.
I want to notify people that we are back in broadcast mode again. I understand that we lost it for part of the proceedings. For anybody who lost part of the broadcast, it will be put up on the website for everybody to watch. We appear to be back live again so apologies for any loss of broadcast in the intervening period.
As Acting Chairman, I will take a few minutes to acknowledge all of the correspondence before us today and the compelling testimony the witnesses have given. As I have stated in the earlier sessions, this is about ensuring that we, as members of this committee, broaden our perspective so that we try to make the best legislation possible. We cannot do that without hearing from persons such as the witnesses.
Regarding Bessborough, I am proud to be from Cork but what is happening in Bessborough at the moment is very disturbing for any decent Cork person. We all want a process that ensures there is memorialisation but that we do not fall foul of the coronial process where remains are found because that is a long-established process and it is based on legislation. We need to find some compromise in the legislation between the two views around that and that will be a challenge for us; I say that honestly and openly. I ask Mr. Dodd about the balance of arguments as between memorialising the entirety of the site and the responsibilities that exist in respect of adhering to the coronial process in circumstances where remains are found. I ask whether the creation of an agency in such circumstances could undermine any process as to natural justice for the persons who may be buried in Bessborough based on the balance of probability and Mr. Parfrey's submission. How do we strike a balance between memorialising the entirety of the site and the need to ensure that the coronial process where remains are discovered is not compromised?
Mr. David Dodd:
There is a third aspect to it, namely the right of the developer to develop the site. That is something that the CSSA acknowledges. From our perspective, when we talk about the whole of the site we are primarily focused on that small portion of it that has been identified in the evidence from the OSI as a children's burial ground. We are quite happy to agree to let the developer develop the residential property elsewhere, but just not on top of that site. It is important to mark that. Others may have different views but we believe this is a legitimate objective that is achievable to give the survivors something. The survivors have a special right to mourn their children. If we think about the problem, the solution becomes clear. If one does not fence off where one buries children and one does not mark their graves, one is treating them as if they did not exist and as if they had no lives, families or mothers.
I am talking about the legal element of this, as seen from Mr. Dodd's position as a barrister at law. The legislation before us is clear on creating an agency. Mr. Dodd has expressed a very legitimate view on closing off a specific element of the site, and we are very cognisant of the fact that he is speaking about a very specific part of it. He has already articulated that very well. I am referring to the law, however. Could Mr. Dodd express an opinion on the law and the coronial process as it relates to the entirety of the Bessborough site? It may be that he has not considered that point, which is entirely legitimate, but if he has an opinion on it I would dearly love to hear it.
Mr. David Dodd:
Sure. I would like to make two points on the existing law, if that is acceptable. As it happens, I am also a legislative drafter. I have acted for quite a few Members of the Dáil and Seanad. The first point when drafting legislation is that one has to understand what the existing law is before overlaying a new Act on top of it. The Chair mentioned the coroner's court process. As I understand it, that will simply continue. For example, if the developer or any other person finds remains at Bessborough House, the normal process will just kick in. I am not certain, therefore, that there is a need in that context for anything new, unless it leads to inaction that is unsatisfactory to members who want to do something to show and mark what has happened.
There is a second area to which this also applies. There is already an Act that sets out how to treat burial grounds, the Act from 1878. It still applies today. It was transferred via our Constitution in 1922 and 1937. There are rules and statutory instruments under that. When we dig them out, we see they make total sense. One fences off burial grounds. One does it so animals will not walk on them and so humans will not do so without knowing. One marks the graves. My point is that there are already Acts to deal with this. It is important when intervening in legislation that one does not inadvertently cut out what I describe. From our perspective, if the law was simply applied in the past or today, we would end up with a solution, which is a fenced-off area, an area regarded as sacrosanct by the relatives and to which they could go to sit and talk to their deceased. That, from our perspective, is the legislative background that is important to bear in mind. I hope that answers the question. I fully understand where the Acting Chairman is coming from.
I thank the Acting Chairman. I thank him for confirming the position on broadcasting. I realise it was causing quite a lot of distress. I have received messages and emails about it. Other than a broadcasting unit decision, there is nothing else behind what occurred, and everything will be available online.
I have a couple of points. Mr. Mulryan's contribution was incredibly powerful. When talking about the social practices and beliefs of the 1930s, 1940s and 1950s, there is a danger of our distancing ourselves from them as they are seen to be of the past.
Hearing the distress that Mr. Mulryan experiences daily in the here and now on behalf of his sister and family is a valuable message that brings to life every word of this legislation, as well as how we as a committee should act as legislators in our recommendation to the Minister and how we should seek him to act in response. The urgency has been impressed on us.
I have a number of points in response to the Know Your Own submission. I agree completely that ten years is not long enough to hold DNA profiles. Our understanding of DNA is evolving, as have methods of analysis, and the next session will deal with a number of those issues. As the science of identifying people evolves, it is important we maintain DNA profiles for as long as possible in the hope that, eventually, we will be able to identify people.
Turning to the discrepancies between death and burial records, how does Mr. Parfrey propose this should be investigated and what can be done? A penal sanction cannot have retrospective effect but does he propose a scoping exercise? The Minister has proposed such an exercise to extend the appeal for information beyond the mother and baby home. Will Mr. Parfrey elaborate on that?
To return to Mr. Dodd, it is not unprecedented for burial grounds to be built on or near to such sites. Not far from Leinster House, there is St. Catherine's Church in Thomas Street, the burial grounds of which are now a park, while behind St. Mary's Church in Mary Street, there is a public square on the burial grounds. Any burial ground associated with this site, however, has the inherent injustice of the inhumane treatment and, therefore, deserves elevation above any normal burial ground. That is why I believe the Bill is absolutely necessary.
I would appreciate any further comments from our guests on those points.
Mr. David Dodd:
It does happen on occasion that development clashes with burial grounds, but the usual way that is handled is by building around the burial ground. That is why I wanted to emphasise that the CSSA is not anti-development. It has no problem with residential homes and recognises that people need homes, so there is compromise. It just does not want the development to be on the burial ground. Bessborough is a large site and the development does not have to be on the burial ground. It can be in many other places. That is not an unreasonable approach to adopt.
While there are some instances where development has clashed with burial grounds, it is not the norm. If a developer asks an architect for a plan to build and he or she finds a burial ground, he or she will give the developer a plan but will probably say not to build on the burial ground. The problem here is there was no consultation with the survivors. The architect drew up the plans and did not realise there was a burial ground, and is now trying to claim that there is none there. That is the difficulty with saying it is not clear where the burial ground is. Development has to happen. Nobody is anti-development. We are trying to be reasonable and have engagement. That there was no consultation with the survivors before the plans were submitted is why we have ended up where we are.
Mr. Martin Parfrey:
As I mentioned, more than 850 burials in Bessborough are unaccounted for and we regard those babies as illegally missing. Accordingly, a full Garda investigation should be initiated, and it should include Garda access to the archives of the religious order and investigate all living personnel, no matter what age. The Garda investigation should involve all those who are still alive who worked within the institutions.
They should be compelled to give evidence about the procedure that was followed when a child died and about the whereabouts of the burial place. Furthermore, most of the babies were buried without the involvement of any coroner and without any inquest. Bessborough is technically a crime scene, as far as I am concerned.
Are there any other contributors? We are about to wind down proceedings but, before we do, we must have regard to the fact that there will be an oral hearing in respect of the Bessborough planning application on Wednesday, 21 April. It will be interesting to see what that process will bring in terms of closer investigation of the issue of investigations. I am hopeful that if there are people watching from An Bord Pleanála now, they will have regard to how the Oireachtas is considering these matters and the pertinent points that have been made by our contributors today. It should be noted that our contributors have made the point that survivors are not against planning per se, but there must be due regard and recognition of the sensitivities of the site and a process must put in place to deal with all of those. That is absolutely noted. Will either of the parties from Cork be parties to that An Bord Pleanála process when it emerges?
Mr. Kevin Higgins:
Each of us have different points of focus and things with which we are most acutely concerned because we are familiar with them. I am, of course, quite familiar with Tuam but I also know a great deal about Bessborough. The committee gave quite proper credence to Mr. Dodd, barrister-at-law, and his considered and useful view of matters. I am a retired solicitor, no longer practising, but I did, in fact, take the first case on this issue into the High Court with my good friend Peter Mulryan some five years ago. For the first six days in court, I dealt with the matter without the aid of counsel, until I deemed it useful to bring in wonderful, learned counsel to act as a buffer between myself and the learned judge.
A number of members have raised the issue of burial records in respect of Bessborough. It is quite extraordinary that there are no burial records. This is a common feature of mother and baby homes. It is an extraordinary thing. In Bessborough, there was a death register and a collection of death certificates which the order had acquired or sought from the local registrar in respect of children who died, irrespective of where they were buried or not buried. The extraordinary thing is that the death register and the collection of death certificates existed side by side for over 30 years before the practice ceased in 1953 and death registers were no longer kept. I have a rather bad feeling that the intervention, or coming into force, of the Adoption Act 1952 might have had an impact in that regard. It could no longer happen that a young man - for example, a US Air Force person passing through Shannon, where Bessborough babies were picked up, on his way to South Dakota - could find out many years later where he came from, come back, discover a death certificate and say, "Hey, I'm not dead."
There is a very unfortunate gap in the records that should be addressed.
As to the legislation as a whole, I accept that everybody concerned in dealing with this is very keen to deliver something that will deliver justice. I have no doubt about that. However, because of the very different circumstances of somewhere like Tuam where one can identify where the bodies are and where there are enormous difficulties despite quite remarkable work by Mr. Dodd and others and in other sites, we do not have precise burial places. Bessborough is a nightmare. I know that. I have been there many times. One cannot create a Bill that will be a one-size-fits-all. There is no doubt that the fundamentals of our coronial system, which are fundamental to a system of justice in this country and have served us enormously well, are irreconcilable with much of this Bill. They are quite irreconcilable.
The other thing I would point out is that after the peace process in 1998, this House and the Upper House passed an Act, which was an act of reconciliation and very proper, to trace the bodies of the disappeared. There were quite a small number of these people and now there are fewer of them. That Act is a very short one. It worked to our existing law with respect to exhumation, inquests and post-mortems. We did not need a new Act to dig up a large part of County Meath, excavate almost the entire beachfront of County Louth or go to France and dig up another chunk of land. We did not need it. That Act, and the institution that grew from it, has no sunset clause and no limit on its budget and yet we are talking about having to do the most extraordinary things in the case of Tuam to conduct an inquest. I am not going to start defaming anybody but I think everybody knows-----
Mr. David Dodd:
Could I make one final point when it is appropriate to do so? As the Acting Chairman can imagine, we are linking in with our group and getting feedback live. One point I did not make but should have made is that not one mother with whom we have spoken is in favour of the idea of exhuming her deceased child. They find that concept very traumatising. They are already traumatised and not one mother has sought that. They have expressed that as re-traumatisation. This has been fed through to me as we have been speaking live. It is not a point I hit off. I just wanted to make that point to the committee. Others may have views and logic and law may dictate it, but from a mother's perspective, exhuming one's child is really quite a visceral concept and those mothers are entitled to express the view that they do not want this to happen. It is important I make that point as it is something I forgot to touch on earlier, so I am grateful to the Acting Chairman. I hope it is okay to finish with that.
Yes. Perhaps as part of our consideration within this pre-legislative scrutiny we need to think about whether close relatives of the deceased should have a veto on what happens - whether there is an exhumation or what happens.
Maybe we need to explore that as an idea, bearing in mind that this would respect mothers and siblings, being the closest relatives, as opposed to wider family members or something like that. Perhaps there should be people who get an absolute say and that view should be respected.
I thank Senator Seery Kearney. On that note, I propose that we close proceedings.
Before doing so, as somebody who is chairing this session, I personally thank the witnesses - Kevin, Martin, David and Peter - sincerely from the bottom of my heart for the compelling evidence that each and every one of them has brought before us today. I speak as just one member here but please be assured that there is much in what they have said to which we must now give consideration. While there is a view that we need to make haste with the legislation, we need to make haste slowly and have due consideration to the compelling arguments that have been made here today. I thank the witnesses sincerely for the time that they have given us in coming here today. Please do not underestimate the potency of what you have said.
Without further ado, unless there is any other official business, I propose that we publish the opening statements on the Oireachtas website. Is that agreed? Agreed.
On behalf of the committee, I again thank all the witnesses for their engagement with the members of the committee and for appearing before the committee today, both in person and virtually. I assure them that all members of the committee, as well as the Chair, Deputy Funchion, are united in prioritising the work programme of the committee to assist the Minister in the implementation of the recommendations and actions provided for in the commission of investigation report into the mother and baby homes.
I thank our staff, who are working under tremendous pressure in terms of these hearings, for their work thus far today.
If members or witnesses are experiencing any technical issues, I ask that they let us know through the chat function. If not, we will proceed. Apologies have been received from Senator Keogan.
Before we begin, I remind members who are participating remotely to keep their devices on mute until they are invited to speak. Where possible, I ask that they have their camera switched on while speaking. Members should be mindful that we are in public session. I also remind members of the constitutional requirement that they must be physically present within the confines of the place in which Parliament chooses to sit, namely, Leinster House, in order to participate in public meetings. I cannot permit a member to participate where he or she is not adhering to this constitutional requirement. Therefore, any member who attempts to participate in this meeting from outside the precincts of Leinster House will be refused.
In this session, we continue our pre-legislative scrutiny of the general scheme of a certain institutional burials (authorised interventions) Bill. We are joined in committee room 3 by Ms Anna Corrigan. Appearing virtually before the committee are Mr. Carl Buckley, Dr. Stephen Donoghue, Dr. Jens Carlsson and forensic archaeologists, Dr. Niamh McCullagh and Mr. Aidan Harte. The witnesses are all very welcome and I thank them for taking the time to prepare opening statements and written submissions.
In order to avoid any confusion during our engagement, I will set out the purpose of today's meeting and how proceedings will be conducted. While acknowledging the harrowing experiences of survivors during their time in mother and baby homes and county homes, the purpose of our meeting is to consider the policy provisions of the proposed legislation. A discussion will take place on the provisions of the general scheme as they relate to the statutory basis and framework under which the Government may decide to authorise interventions at certain sites where manifestly inappropriate burials have taken place associated with institutions operated by or on behalf of the State or in respect of which the State had clear regulatory or supervisory responsibilities. There are also provisions for the establishment of an agency to carry out such interventions.
I remind members and witnesses that they are expected to strictly adhere to the subject matter scheduled for discussion today. I also advise witnesses that the opening statements they read into the record here today should be the statement they provided in advance of this meeting. Any deviation on these matters will be addressed through the Chair.
We are all very much aware of the restrictions Covid-19 has brought to all our lives. It has also severely impacted the scheduling of public committee meetings. However, members of the committee felt it important to hear from those who may be impacted by or have a professional view on the provisions of the general scheme. It is the responsibility of parliamentary committees to consider and discuss topics in a balanced and fair manner. In achieving this goal, it is the committee, and only the committee, which determines the witnesses it engages with and will do so in an unhindered manner. This level of engagement will greatly assist the members of the committee in finalising their scrutiny report on the general scheme. For this reason, and while strictly adhering to Covid-19 safety requirements, four public meetings of the committee have been scheduled over the course of today. It is also expected that we will have further public meetings in the near future to consider this matter further.
The committee wishes to have a productive public engagement. However, I must remind all present that they should not mention names of individuals or organisations even if that information is already in the public domain, nor should they make charges against anyone by name or in such a way as to make him or her identifiable. These are normal parliamentary procedures that exist to ensure engagements are conducted in a constructive way. Before I invite the witnesses to deliver their opening statements, I will read out the standard text regarding the provisions of the Defamation Act to remind them of their rights and obligations.
I want to take a minute to brief the witnesses on the work of the committee since the publication of the report of the Commission of Investigation into Mother and Baby Homes and Certain Related Matters and the pre-legislative scrutiny by the committee to date of the general scheme of the proposed Bill. While the committee has been limited in the number of public meetings held due to Covid-19 restrictions, it has afforded priority in its consideration to scrutiny of the proposed Bill, the issues that have arisen following the publication of the report of the commission of investigation, and the desire of members of the committee to ensure justice for the survivors of mother and baby homes. These matters have been discussed at eight of the committee's nine joint meetings held this year. The committee has corresponded with the Minister, Deputy O'Gorman, on five occasions on various matters and it has met the Minister and his officials to discuss these issues wherever possible.
The committee has prioritised these issues above the other competing demands of our vast work programme. Insofar as it reasonably can, it stands ready to help facilitate delivery of the recommendations and actions contained in the report into mother and baby homes, however possible, and to undertake robust scrutiny of any and all related legislation referred, such as the general scheme under discussion today.
The public call for submissions on the scheme opened on 22 January, with a deadline of 19 February which we later extended until 26 February. Every effort was made to ensure maximum reach and accessibility during this process. In total, the committee received 426 submissions. The committee has also had substantial stand-alone correspondence from the public on these issues and appreciates the engagement and effort the public have made to date on what are difficult issues. At this point I would like to highlight some of the support services available to anyone affected by the matters under discussion today. There is a dedicated counselling service for former residents of mother and baby homes and its telephone number is 1800 817517.
Witnesses are protected by absolute privilege in respect of the presentation they make to the committee. This means that they have an absolute defence against any defamation action for anything they say at the meeting. However, they are expected not to abuse this privilege and it is my duty as Chair to ensure that is the case. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction. I must point out that it is uncertain whether parliamentary privilege will apply to the evidence of witnesses appearing virtually from a location outside of the parliamentary precincts of Leinster House. Therefore, if they are directed to cease giving evidence in relation to a particular matter, it is also imperative that they comply with any such direction.
I will call on the witnesses in the following order to deliver their opening statement. We will start with Ms Anna Corrigan, then Dr. Stephen Donoghue and Dr. Niamh McCullagh. I invite Ms Corrigan to deliver her opening statement. She has five minutes.
Ms Anna Corrigan:
My name is Anna Corrigan. As well as being appointed spokesperson of the Tuam Babies Family Group I am also a victim of that which occurred in the home. Eleven of our family are in the pit in Tuam. My mother, Bridget Dolan, was forced to enter the home, and my two brothers, whom I did not know even existed until relatively recently, were born in that home. One of my brothers is recorded as having died in Tuam. The whereabouts of my second brother still remains to this day, unknown. I also had an aunt who sadly died. She is recorded as having died aged 13 in an industrial home in Loughrea, County Galway. Like many others, her place of burial is currently not known. My story is not unusual, there are many like it. It is because of our stories and our experiences that it is essential that there be no further prevarication, no further procrastination, and no further obfuscation of the truth and that which occurred at Tuam, and for that matter, every other mother and baby home across the country.
Further, this issue is not limited to mother and baby homes, it is equally as applicable to industrial homes and any other institution. I acknowledge that the purpose of today's hearing is not to consider anything other than the proposed legislation, but we are doing a disservice to the countless people that have suffered and continue to suffer, because of that which occurred and the seeming inability of those responsible to be truthful in their accounts if we do not acknowledge the background to this legislation and that which has prompted it.
Furthermore, we would be doing a disservice to the more than 700 bodies of children that remain tossed without a care into a hole in the ground, without a further thought, for decades. Our initial position is that the legislation being proposed is not required. An appropriate statutory framework already exists that allows for the exhumation of bodies found and analysis of what is discovered.
However, it is also accepted that legislation in one form or another is to be passed, given the clear intention of the Government to do so. It is not an opportunity for the grass to remain undisturbed on that which happened in the past and it ought not be used as a tool to continue the opacity over this period in Irish history. Those of us who are victims and survivors deserve and demand the truth not only for ourselves, but for those countless people who died not knowing. As a result, perhaps three central themes ought to run through any steps being taken to exhume the Tuam site and-or any other identified site: to identify those buried; to establish whether there was any criminality; and to investigate that which led to such tragic events occurring so as to ensure that they cannot happen again. The sole focus of this process should be victim-centric so as to attempt to answer the plethora of questions regarding what exactly was allowed to happen within establishments such as Tuam Mother and Baby Home.
The legislation in its current form does not do this; it does not focus on any of these issues and thus there is a very real risk that the questions so desperately asked by hundreds, if not thousands, of individuals will continue to remain unanswered. The process ought to be as simple as possible and there ought to be no hurdles to surmount in seeking to investigate these sites and identify the remains that are found. Unfortunately, in its current form the legislation would appear to be the opposite of this and it is replete with opportunities to prevent exhumation and investigation.
In closing, I implore any and all who are involved in the process to remember that there is an absolute and heavy moral burden upon them to do what is right for those that tragically lost their lives and those that remain not knowing. Those held within the home were denied their human rights and Ireland failed to respect those same rights, seemingly adopting a position that unmarried mothers did not deserve that respect. Ireland remains bound by its obligations to those international human rights treaties and conventions to which it is a state party; it must honour those obligations and do now that which it failed to do previously. We demand, but more than that, we deserve, the truth.
Dr. Stephen Donoghue:
I thank the committee for allowing myself and my colleague, Dr. Jens Carlsson, the opportunity to discuss the Bill and our suggested amendment. I outlined my background and qualifications in my original submission. Dr. Carlsson is an associate professor and an expert on conservation and population genetics.
In 2018, along with Professor Dan Bradley at Trinity College Dublin and Dr. Jens Carlsson and Professor David MacHugh at University College Dublin, I submitted a report when calls were being made for public responses regarding the options and appropriate courses of actions available to the Government at the site of the former mother and baby home in Tuam, County Galway. The requests for public consultations in 2018 were partly made due to the findings of the expert technical group, ETG, in the previous year. The ETG report was sceptical about the ability to identify the remains at Tuam using short tandem repeat, STR, DNA techniques. In our report in 2018, we indicated that the ETG appeared to ignore the potential for using a technique referred to as high throughput sequencing, HTS, coupled with single nucleotide polymorphism analysis, SNP analysis, to analyse the DNA of the remains of the individuals at Tuam. HTS and SNP arrays are now overwhelmingly the tools of choice for assessing genetic variability in humans and other species. We can now routinely use many thousands to millions of SNPs for population genetics and genomic-relatedness analyses with unprecedented statistical power, but at a relatively low cost.
In speaking to members now, I shall reaffirm the executive summary of my submission to this committee. The extraction of DNA from the petrous part of the temporal bone, alongside the use of HTS, coupled with SNP analysis, represents, by far, the most efficient way to analyse degraded DNA and identify the remains at the mother and baby homes. Despite significant advances in analysing DNA and the establishment of a forensic DNA database that utilises STR profiling, Forensic Science Ireland, FSI, is unlikely to have the expertise to carry out the SNP analysis. This is not particularly unusual as STR profiling is the standard analysis used for criminal investigations across the globe. We need not, however, be restricted to this technique in identifying the remains at Tuam and other mother and baby home sites.
Despite the establishment of the agency to co-ordinate the operation of identifying the remains at a putative site, there are provisions within the Bill that anchor the FSI in the sampling, analysis and matching of the DNA. There are, however, fundamental differences between STR forensics and HTS coupled with SNP analysis. The way the DNA is processed and matched with relatives differs between the two techniques. Irish universities have academics with significant capabilities in SNP analysis, both HTS and array based. As we noted in the 2018 report, there has already been a collaboration between University College Dublin, UCD, researchers, FSI and the Garda Technical Bureau in using HTS and SNP analysis and DNA extracted from the petrous part of the temporal bone to identify the remains of Thomas Kent, one of the Irish rebellion leaders, in 2016. Indeed, the genetic identification of Thomas Kent was led by Dr. Carlsson’s team.
The Bill under consideration allows for the agency to hire consultants. The Bill should extend the operational activities of such consultants to enable them to work in partnership with the FSI. This could be to sample DNA from the petrous part of the temporal bone from the remains, to allow for the processing of the extracted DNA using SNP arrays from any remains and to match the DNA. Currently, the Bill mandates that the FSI conducts searches of DNA profiles on the DNA historic remains database in order to make a familial match. This has the potential to be problematic as STR matches may use different software to any such matches using SNPs. I have outlined the specific actions to implement these recommendations in my submission.
I would like the Oireachtas to view this as an opportunity. In my original submission, I highlighted how some key opinion leaders in forensics are recommending how the community should be shifting towards SNP analysis. The report from the Commission of Investigation on the Mother and Baby Homes and Certain Related Matters was not viewed favourably by many of the survivors of the homes or relatives. By utilising advanced DNA technologies and collaborating with academics with the relevant expertise that exists within Irish universities, as exemplified in the identification of Thomas Kent, this Government can show the world that it is serious about identifying the remains at Tuam and other mother and baby homes.
Finally, I wish to repeat the quote from Dr. Alondra Nelson, the current deputy director for science and society in the Office of Science and Technology Policy, OSTP, in the USA, the author of The Social Life of DNAand one of the foremost experts on so-called DNA reconciliation projects:
There comes a time in the life of every community when it must look humbly and seriously into its past in order to provide the best possible foundation for moving into a future based on healing and hope.
HTS with SNP analysis represents the best possible opportunity for the remains to be identified and for the State to move into a future based on healing and hope. This assertion that SNP arrays would be significantly more effective at identifying the remains than STR forensics has consequences for certain provisions in the Bill, which I have outlined in my submission.
Dr. Niamh McCullagh:
My name is Dr. Niamh McCullagh. I am a consultant forensic archaeologist. I led the forensic investigation team on behalf of the mother and baby home commission of investigation at the sites of Tuam, Sean Ross Abbey and Bessborough. Today, I am also representing other members of that investigation team, namely, Mr. Aidan Harte, forensic archaeologist, and Dr. Linda Lynch, juvenile osteoarchaeologist. It should be noted that we have not made a written submission but we have been asked to appear before this committee and hope to answer any questions it might have.
We have considerable experience, individually and collectively, of these kinds of investigations, including for An Garda Síochána and the Independent Commission for the Location of Victims Remains. Our expertise means that we are qualified to anticipate the many practical concerns and potential issues that will arise in any forensic excavation and recovery of remains at these and similar sites to which this Bill refers.
I was responsible for directing the test excavations undertaken by the commission at Tuam in 2016 and 2017, the reports of which are now publicly available. Our reports on the site deal extensively with what was at Tuam and the manner in which these infants and young children were interred.
Subsequently, in 2017, I was independently requested by the former Minister for Children and Youth Affairs to direct an expert technical group to report on options available to the Government on the appropriate excavation and recovery of the remains of these infants and young children. The group comprised a range of international experts in mass grave excavation, DNA, forensic archaeology, forensic anthropology, coronial law and juvenile osteoarchaeology. The group report was published in 2018.
In this report we identified a programme of humanitarian forensic action that should underpin the recovery of remains from the significantly challenging conditions observed at the underground chambers at Tuam. This approach provides a structure that protects the dignity of the dead through the utilisation of proper processes of forensic recovery, management, individualisation of remains and identification of remains where possible. The use of forensic methods and procedures in the recovery of remains allows increased opportunity for individualisation of human remains, a key step towards providing identity. In our opinion, this methodology is relevant and appropriate to other burial contexts at similar institutional sites.
For the purposes of the committee it is worth reminding ourselves of the context of what we discovered at Tuam. There is evidence of some commingling of skeletal remains in the subsurface chambers. This means the mixing of the remains of two or more individuals. The remains here are of infants and young juveniles. A full-term infant skeleton comprises over 300 bones, with the cranium alone consisting of 34 individual pieces of bone. It appears that many of these bones separated on skeletonisation and have mixed with others, making individualisation and subsequent identification particularly difficult. It cannot be assumed that all of the individuals buried here will be identified, whether through DNA or other identification processes.
We broadly support the advancement of the Bill through the Oireachtas and believe the legislation should insist that appropriate actions and accepted best practice be applied at each and every stage of future investigations or excavation programmes. The essential requirement is, therefore, that the Bill adopt principles of humanitarian forensic action and place them at the core of any new legislation concerned with institutional burials.
However, on the basis of our experience at Tuam, drawing on our individual professional experience, and incorporating the advice received from international experts, we have a number of concerns about the proposed legislation. The Bill refers to "exhumation". This is possibly a misapplication of the term. It is intended to refer to situations where bodies have been interred in an appropriate way. In the context of this Bill, we consider "excavation" to be the more appropriate term.
There is considerable reference in the Bill to DNA profiling. Our 2018 expert technical group report was of the view that DNA profiling is, of course, possible. However, the re-association of individual bones to one set of remains will create challenges for identification and reburial. Every effort should be made to re-associate bones to an individual prior to DNA. This will be a significant investment of time and expertise and may not be successful in every case.
We must bear in mind that we have a duty of care to all of the remains interred and not just those we can identify. There is an absence in the draft Bill of clear direction and specification with regard to the process of forensic excavation, recovery and post-mortem examination of the human remains that will be uncovered. The Bill does not address the post-mortem management of remains prior to identification, nor does it address what will happen to remains that cannot be identified. There is no mention of how such unidentified remains are to be treated and how they are to be buried, and how will this be done in a manner that respects the dignity that they have been so far deprived of in death.
We have identified some technical issues in the Bill that we believe require some further attention. These specifically relate to head 5 and the criteria for intervention in paragraphs 2(a) and 2(c). Paragraph 2(a) states that certain burials will be considered inappropriate where the "remains are uncoffined". We know that coffins decay and the practicality of establishing whether remains are uncoffined prior to intervention is unlikely. The absence of a coffin cannot be considered a reliable indicator that no coffin was present at the time of burial.
Paragraph 2(c) states the burial depth should also be considered as an indicator of appropriateness. It is not always possible to accurately confirm the original ground level at the time of burial due to numerous factors, particularly truncation of the site. The original depth of the burial, therefore, cannot be established with any certainty prior to intervention.
It is our opinion that to provide dignity to those interred, their recovery must be undertaken with as much detail and care as technology, techniques, and circumstances will allow. In our view, it is this forensic approach to the investigation and recovery of human remains that will lead to the truth of these infants and children; who they were, how they lived and how they died.
We are happy to answer any questions that the committee may have arising from this or our areas of expertise.
I thank all the contributors. I address my opening remarks to Ms Corrigan. I thank her sincerely for her opening statement, which began with her personal story. In this session probably more than in any other session today, we need to begin by remembering that these were real people who had potential lives to live. They could have been with us today and could have been mothers and fathers, grandmothers and grandfathers at this stage. It is most important to remember them before we get on to any analytical discussion of how the process can be facilitated. We need to remember that these were human beings who had all of their lives before them.
Ms Corrigan's submission set a template with three central themes: to identify those buried; to establish if there was any criminality; and to investigate what led to such tragic events occurring to ensure they will not happen again. I think that reflects the theme of transitional justice that we have heard throughout today.
Taking that as our template and our guidance document, I turn to the contributions of Dr. Donoghue and Dr. McCullagh. While I hear them, particularly Dr. McCullagh, being specific about language and express terms in the Bill, are there also express conditions or boundaries within the legislation that fetter the evolution of science to be of assistance in the future? Are there different methods associated with DNA or other scientific methods that can be employed or that we should prepare for? Is the legislation sufficiently open to facilitate scientific evolution over a number of years? I am mindful that there is a ten-year limit on the keeping of DNA but I would be open to the committee urging that the ten-year limit be extended so that we facilitate science evolving.
Dr. McCullagh said there was no prescriptive method regarding post mortem excavation and how the remains are to be handled. Has a best practice been established arising from natural disasters or otherwise? I am talking about events such as the one at Hillsborough. How is that dealt with?
Dr. Stephen Donoghue:
I will take a crack at answering those questions and then I might invite Dr. Carlsson to contribute. Obviously, our statement was very much focused on the DNA aspect. Dr. McCullagh has particular expertise in forensic archaeology. With regard to the openness of the Bill, my submission suggested that the term for the destruction times for samples for putative relatives was too short and appeared to be taken from those associated with the criminal DNA database. I did not really understand the point of that. There seemed to be quite a bit of haste to get rid of the samples and profiles of putative relatives.
I am not sure why that was. With regard to the Senator's comment on ten years, hopefully further techniques will come along that could allow for better processing if there is not an identification of the remains. I hope that could be extended further as well. I do not know whether Dr. Carlsson has any comment to make on that.
Dr. Niamh McCullagh:
I will answer the Senator's question about the protocol for recovery of remains. There are many international protocols for best practice. These were outlined in the expert technical group report on how best to proceed from the beginning of the process, from site identification through to excavation, recovery processes, post-excavation analysis of the human remains by suitably qualified people, such as forensic anthropologists, a post-mortem examination and then moving forward to an identification and a coroner's inquest.
Dr. Stephen Donoghue:
I will add one more point on an issue that was referenced by another individual in an earlier session. If one goes ahead with SNP profiling, it allows for matching with second-order relatives. The Bill prescribes the people who can be used to identify the relatives by referring to relativity. They are, essentially, mostly first-order relatives. One of the great strengths of SNP profiling is that it allows for second-order relatives such as cousins, uncles and aunts. There is one second-order relative mentioned in the Bill. I cannot remember which; it may be a half-sibling. It seems strange to mention one and not other second-order relatives. This was referenced in an earlier session.
I thank the witnesses. I suppose we are all learning. It is important that we learn today what we can do best for the survivors. I also thank Ms Corrigan. There is no question that a series of wrongs was done to the babies in Tuam and I thank her for her powerful words. It is not easy to testify at an Oireachtas committee and I welcome that she has done that so well.
I will ask Ms Corrigan about the memorial side. It is suggested in the Bill, as a possibility, that the agency might decide memorialisation of the site, without further intervention, would be appropriate. What do the families want as a memorial? I ask Ms Corrigan this because, after the investigation, it is so important that survivors and their families are involved. They should have their say in what happens.
We often see in Ireland graveyards with long forgotten names on overgrown headstones. The people of Cork would love to be able to access the Good Shepherd grave site in Sunday's Well. I do not think any of us want to see that happen here, but, rather, some kind of a grave site or memorial that would afford families a place to visit, maintain and form part of the memories of future generation. Does Ms Corrigan have any suggestions for what the families might like? It is important that we look at the bigger picture. After the investigation, we must make sure that survivors lead this and we listen to them and their families.
I have a second question for Dr. Donoghue.
Ms Corrigan might come back to me.
It concerns me that DNA analysis is listed in the Bill as the primary model to lead to the identification of human remains. We know it is not best practice to use DNA analysis alone. Will Dr. Donoghue talk me through the other ways to identify human remains, the cost and the skill set needed? I am aware, but open to correction, that Forensic Science Ireland does not employ any forensic anthropologist. This might be from where the idea to include the hiring of consultants came. Will Dr. Donoghue clarify that? What would an ideal team look like and what specialties it would have? Should we hire people from other countries, for example, the USA? Would there be costs involved? In that regard, what is the landscape at third level here? Is there a labour force here from which we could potentially hire? I ask because we do not want extra barriers. Timing is of the essence for survivors. Survivors and their families have been through so much and it is important going forward that we have the answers and we do not say this or that can happen. I and several other members asked earlier about the DNA issue and the short timescale of ten years. Some survivors sought a longer timescale of perhaps 50 years. It is important that we work with survivors and listen to their concerns. I ask Ms Corrigan and Dr. Donoghue to answer those questions.
Ms Anna Corrigan:
Memorialisation is not on our radar. It is at the very end of a process that we have not even begun. We are still at a loss as to why the site was partially excavated and exhumed body parts taken out for carbon dating and the possibility of extracting DNA. We do not know where those body parts lie. We were left with that and the site was handed back to Galway County Council, backfilled and reseeded. That is where it left us in 2017. Here we are in March 2021 looking for a law to open up this site again. Memorialisation is nowhere in our vision. We are looking for our human rights, which were never afforded to our families, which we are being deprived of and to which we have entitlement under the laws of this land and under the European Court of Human Rights.
Both my brothers have been the subject of two open Garda inquiries since 2013 and 2014. These have not been acted on. I have never interacted with the commission and I am being deprived of my right to justice as a citizen of this State. I act as the PR for the Tuam Babies Family Group and we also represent survivors. A combined total of 11 of our family members are in Tuam. We have been denied justice. From the start of this process, we have never been directly communicated with. We have elicited a lot of our information from social media. We saw a digger on the site and somebody got up on the wall and took a photograph. We had no direct feedback. We got a press release in tandem with the press. When the human remains were found we were notified at the same time as the press. We were not brought in in advance to be told body parts had been found. We are in an Alice in Wonderland situation and the further one goes, the more it is like going down the rabbit hole. Things get curiouser and curiouser. A lot has happened around this that has not come out in national media. We have been gaslit quite a bit, despite the fact that we have 11 stated members of our family in that pit. Everybody chooses to be a voice for us but we have our own voice.
Memorialisation is a long way down the road - when the bodies have been identified using SNP, as Dr. Donoghue said. I got information under a freedom of information request and I cannot understand why SNP is not being used. It was stated that Tuam was unprecedented. If it is unprecedented, there is no need to go down the road of STR, which ties in with the criminal and Garda side.
There has never been any indication that the Garda would get involved here because it has been denied that it is a criminal site. It has been taken that there is no evidence of criminality here even though the coroner took jurisdiction of Tuam in July 2017 but failed to act. I was listening to the discussions this morning about the involvement of the coroner. It was stated on the FOI documents I received that the coroner had taken jurisdiction. He is obligated to act under the Coroners Act. None of the children in that grave had medical certification of death. Under section 18 of the Coroners Act, when a death is reported to the police, a superintendent or higher must go to the coroner and inform the coroner that the body lies in his jurisdiction because it does not have medical certification of death. This was raised this morning. I notified An Garda Síochána in September 2016 that this was the case in Tuam but this was not acted on. The coroner took jurisdiction in Tuam in 2017 and we have had a partial excavation-----
Dr. Stephen Donoghue:
First, with regard to the landscape here, I am glad Deputy Murnane O'Connor asked that question because it is very relevant. Historically, we were one of the last countries in Europe to establish a DNA database, which is astonishing. That said, in a very short period of time Forensic Science Ireland, FSI, has made tremendous progress. Prior to the FSI coming on board, there was a history of sending our samples to the UK for standard strand displacement reactions, SDRs, Y-chromosome short tandem repeat, Y-STR or mitochondrial profiling. At the same time, while that was going on, we developed within the Irish university landscape, world-class expertise in single nucleotide polymorphisms, SNP, profiling and archaeological paleogenomics. That whole area is making huge strides with regard to identification. Scientists are able to identify remains going back 10,000 years using variations of whole genome sequencing, WGS. Regarding the other expertise, Dr. McCullagh is one of the foremost experts in her field. She has huge expertise with regard to the North.
I will invite Dr. Carlsson to respond on this because he can elaborate further. There is already a template for the type of collaboration that is required. We do not need to bring in external experts, particularly with regard to DNA. In terms of forensic archaeology, Dr. McCullagh and her colleagues have the necessary expertise. We could definitely bring in the expertise from the Irish university system to work with FSI to develop the SNP profiling. I invite Dr. Carlsson to describe the relationship with the FSI and the Garda Technical Bureau and the work done to identify the remains of Thomas Kent, which would be useful to the committee.
Dr. Jens Carlsson:
We were contacted in UCD by members of the Garda about identifying unknown remains. We started the collaboration immediately and went down to Cork. We had expertise with us for extracting DNA from the petrous bone. In fact, that extraction technique was developed at UCD and is now standard throughout the archaeological world for getting DNA. FSI looked after contemporary DNA samples, which it extracted from living nieces. That DNA, together with the DNA we extracted from Thomas Kent was sequenced at UCD for SNP analysis. We were able to make the connection between them. That worked very smoothly for us and I assume it worked really well for An Garda Síochána and FSI as well.
I have the two questions, the first of which is for Dr. McCullagh. She mentioned the absence of recommendations and approaches relating to unidentified remains. Does she have any recommendations in terms of the best approach to that?
In respect of this Bill and all matters relating to mother and baby homes, it is important to zoom out and remember the gravity of it and that the commission of investigation was only formed in light of the discovery of the child and infant remains in a defunct septic tank in Tuam. It was never the State's intention to do anything about it before that. People have been let down time and again and continue to come before committees like this in hope that this changes. I know the witnesses have had a journey in respect of this. They spoke about the Garda investigations. Now we see the coroner not acting in respect of the commission of investigation's report highlighting the mass graves in this country. What would it mean for Ms Corrigan and other people to not feel let down this time by this Bill?
Mr. Carl Buckley:
I am in danger of repeating a lot of what was said in the earlier sessions. The biggest problem with this legislation is that it is full of ambiguity. It needs so much more certainty. It is not victim-centric and there is a very real risk that the numerous loopholes within the legislation can be exercised in favour of those other than victims. There is a distinct sense that it is ripe for political interference in that there is a requirement for a sponsoring Minister in head 3. In respect of head 3 and the circumstances where an agency can be appointed, where is the balance of interests as far as victims and others are concerned? The criteria for intervention are too restrictive. Head 6 in respect of memorialisation has already been raised. Memorialisation without intervention is given to Government Ministers. With all due respect, that is not a question for Government Ministers. It is a question for victims.
As has been alluded to by Ms Corrigan and others throughout today's hearings, all of the issues are being taken out of the hands of victims and that is not where this should be. This should be in their hands and nobody else's. Failure to do so infringes the Government's obligations under the European Convention on Human Rights. We have already heard about Articles 2, 3 and 8. Effectively, what we are dealing with Tuam and the other mother and baby homes is an atrocity crime and we must be quite clear that it amounts to a crime against humanity. That is where the focus should be - on the victims and an investigation into what happened, and not attempting to take it out of their hands and covering it further.
Dr. Niamh McCullagh:
The Deputy asked about recommendations relating to unidentified remains. This is where the importance of the recovery strategy and post-mortem examination of remains really comes into play where one is essentially gathering as much information as possible about that individual such as his or her age at death. There is new technology that allows one to assess the gender of infant remains. These techniques and technologies are developing all the time. A DNA sample would be extracted so that if other individuals come forward, these remains can be re-associated with the family and, ultimately, buried as an individual insofar as is possible but an individual about whom we know as much as possible.
The population of Tuam is regarded as a closed population because one has a list of deaths that occurred and ages of death. It may be possible, although we do not know because we have not excavated or recovered any of these remains, to identify the broad age range, associate those back to the burial register and get a more complete picture. However, it is all essentially based on being allowed to undertake forensic recovery to give those things as much chance of being successful as possible.
I thank all the witnesses for being here today and for their strength and courage. I want to acknowledge that and the strength and courage of all of the survivors and their families. I am conscious that this part of our sessions today is technical and can seem a bit impersonal, although we are not trying to be. We only want to understand this and get it right. I apologise if it seems cold and insensitive. It is not intended to be.
My first question is for Dr. McCullagh. She spoke about the humanitarian forensic approach and considerable time and expertise being required. I took from her contribution as well her particular involvement and direct experience in Tuam. We need to look at this beyond Tuam and from the full State's perspective.
Can Dr. McCullagh give the committee some view on the scale of expertise and time that will be required, the process that will be involved and, most importantly, the time that will be involved in terms of the survivors and their relatives being given some answers? As the work will obviously be conducted over a prolonged period of time, what is best practice in communicating progress over a long period of time to survivors?
Dr. Niamh McCullagh:
I will answer Senator Fitzpatrick's last question first. Most of the organisations that undertake similar work would have a family liaison officer who is constantly in communication with survivors and victims, and that is essential. That was something that was identified in the first step of the expert technical group report. Recommendations from across the globe with similar scenarios have been that communication with survivors and victims' families is crucial. It is the crucial first step and it needs to be an open door.
What was the first question the Senator asked me?
I asked Dr. McCullagh to talk us through the process, particularly its length and the scale of expertise that the State will be required to put in place to ensure that a humanitarian forensic approach can be adopted successfully.
Dr. Niamh McCullagh:
I cannot speak to the laboratory processes in terms of DNA once that starts, but in terms of a pre-laboratory procedure, looking specifically at Tuam which is, of course, probably the most complex site that the legislation will have to deal with, the timeframe that we in the expert technical group put forward for this was a six-to-12 month period on-site. The time that would be required in the laboratory for the analysis of the remains, not DNA analysis, was not possible to determine because we do not know the number of individuals who will be recovered from that scenario. Unfortunately, an exact answer to the Senator's question for each process is not determinable at present simply because we do not know how many individuals we are dealing with.
Dr. McCullagh's answer was great. It gives us guidance. I did not expect it to be exact.
I am curious, though, that Dr. McCullagh stated that Tuam is the most complex. I had thought that maybe, in some respects, Tuam would be more straightforward than other sites where there is debate over where the burial sites are.
Dr. Niamh McCullagh:
From a recovery respective, Tuam is the single most complex of the sites we have come across to date simply because we are dealing with 20 chambers, each chamber is over 2.7 m to the base where the remains are from the surface and each chamber, in feet, is approximately 9 ft by 1 ft wide so the conditions are extremely challenging. Also, the remains have elements of mixing as opposed to the single graves likely to be come across at other sites like Bessborough and the types of graves we came across at Sean Ross Abbey. They were individual graves as opposed to this scenario where many individuals are interred together in very inaccessible chambers.
I have a question for Mr. Buckley. We all recognise the human rights violations that have occurred and want desperately to try to right the wrongs, accepting we will never be able to achieve that completely. What is the best guidance Mr. Buckley can give us in terms of listening to the survivors, some of whom do not want their babies exhumed? How do we reconcile the need to address the human rights violations while also respecting the rights of the mothers who do not want their babies exhumed?
Mr. Carl Buckley:
That is an incredibly difficult question to answer. I would not like to put myself in the position or suggest I speak on behalf of all of those mothers and victims, because clearly I do not and I cannot. What the question demonstrates, however, is the reasons there needs to be a proper and thought-out truth and reconciliation process for what went on in the mother and baby homes. The commission of inquiry was not that and this legislation is not that. It is a piecemeal approach to a tragedy that people need to sit down and deal with properly. That is not being done and all those who have died and those who are still alive are being done a disservice. As much as I can answer the question properly, it does throw up this other issue and shows the importance of that proper process to hear everybody's views and to make decisions taking into account those views. This legislation does not do that and does not go anywhere near far enough. Conversely, the commission of inquiry did not do that either as per the reports of many of those who sought to testify and give evidence. Hence the reason it has been criticised so widely.
I thank the witnesses for coming in today and sharing their personal stories and expertise on this very difficult situation that has been created by the State. We had much discussion about the fact new legislation is not needed, but I am conscious there are State bodies that could have acted and did not. I am concerned that if we do not - I will steal Dr. McCullagh's words - insist that appropriate actions are inherent in the legislation, they will not happen. There is an element of trust but there is no trust in the State and how it has responded so far. We cannot go on trust alone; it is an element of trust but verify. Much of the best practice we need has to be in the legislation. Otherwise, I would be concerned it would not happen. Even if it can happen without being in the legislation, there is a risk that if it is not in the legislation, it will not happen.
I am also concerned about the challenges we face in terms of the technical aspects. Dr. McCullagh talked about individualisation. Will she talk to us about some of the challenges she anticipates and how we can address them? Is it possible to address very technical stuff in the Bill without going too far? As Senator Seery Kearney said, if we are too restrictive and technology changes, we will not be able to use the legislation. There is a balance to be struck there.
With reference to DNA evidence, we are talking about taking samples from the temporal bone. What is possible if a temporal bone is not recovered? We are setting up a dichotomy between different kinds of DNA analysis, with STR on the one hand and HTS and SNP on the other. Is it possible to do both kinds of analysis? Are there advantages or disadvantages to them?
The first one is to Dr. McCullagh and the other is to Dr. Donoghue. The question about challenges to individualisation and how we specifically address them in the Bill without becoming too restrictive in case things change for the future is for Dr. McCullagh. The technical question around DNA is for Dr. Donoghue.
Dr. Niamh McCullagh:
I am happy to talk about the individualisation. As I mentioned, the specific difficulty in dealing with infant remains in a commingled scenario is the sheer number of very small individual bones. As I said, a newborn baby has 300 bones in its body and 34 are in the skull. In Tuam, decomposition led to the separation of those bones in some instances. It is something about which we have to be realistic.
Ideally, one would attempt individualisation, essentially bringing back all of these skeletal elements to form one individual, where possible, and then moving on to the DNA process. The best possible chance of creating a situation where skeletal elements can be individualised is in the forensic recovery process. In a practical sense, referring to a forensic recovery within the legislation will allow those standards to be put in place so that individualisation is given the best chance prior to DNA analysis.
Dr. Jens Carlsson:
I will start with STR versus SNP. It might be that STR technology will work but the chances are much higher that SNP technology will work. The simple reason is that DNA degrades. Think about it as dry spaghetti and we keep on breaking a dry spaghetti straw into smaller and smaller pieces. The piece one needs for an STR analysis is longer than the piece one needs for an SNP analysis. It is as simple as that. It is a shorter fragment so one can tolerate more degradation and still get viable DNA data out of it. That is the simple reason SNPs are probably better in this case.
Another reason is that there are so many more. I think that quite a low number of STRs are used and, although they are statistically powerful, one can simply use many more SNPs.
The Deputy asked about bone and what can happen if one cannot retrieve the petrous bone. The petrous bone is so called because it is the densest bone in the body. It will probably be one of the last bones to start dissolving as bone matter. If one cannot find the petrous bone, people have, for instance, used teeth. There are other tissues that can be interrogated for the presence of DNA.
I do not think we would be able to identify every body. There is no guarantee, of course, but the best chance is with SNP analysis. People have been able to get DNA from the petrous bone from 30,000-year-old newborns. The best chance is getting the petrous bone and running an SNP analysis. Does that answer the Deputy's question?
Yes. I thank Ms Corrigan for her earlier answer. I totally understand her concerns and the fact that it is so important that survivors and families are informed and that we work with them. That will be very important going forward.
There are 22 recommendations in the report of the commission. In the context of the latter, the Minister indicated that there will be information and access going forward. It is crucial that Ms Corrigan gets the information she is seeking and is not fobbed off while trying to get answers. I am aware there have been issues with accessing records. We need to work together. I understand that we have to get this legislation right. The matter of timing and how quickly we can do it is so important. I totally understand that information and access will be so important.
Dr. McCullagh expanded on the efforts and technologies that can be used. I ask her to clarify how it will be possible to identify every baby at Tuam, for example. It worries me that she is kind of saying that might not be possible. From the point of view of survivors, with whom I have worked, it is important that we all do our best. I do not know how long this will take. What is Dr. McCullagh's plan? What advice does she have for the committee on what we could do to help survivors to access their information far more quickly? There is also the issue relating to DNA and all that.
I thank all the witnesses. We have listened to many survivors and other witnesses today. It has been hard on everyone. It is important that we listen to everyone, especially the survivors, because that is the road forward. The legislation must be right for everyone.
Dr. Niamh McCullagh:
I am glad the Deputy raised the issue of timescales. In the executive summaries of our excavation reports that were recently made available through the fifth interim report, we state that the site at Tuam specifically was put in a temporary holding situation whereby it would need attention immediately. We put a timeframe of less than six months on the kind of protection mechanisms we had put in place, essentially stating that the site needed to be dealt with as soon as possible. That was four years ago. I know everybody wants this to be done very quickly, but the speed with which one can proceed to the next stage will also impact on the recovery mechanisms. The chambers at Tuam have essentially been breached and, as such, have been introduced to a new environment. We do not know what impact that will have. We can only assume that the remains will degrade as time moves on. That is a fact we must face. Of course, as the experts have stated here, DNA is recoverable from many scenarios and massive historic timeframes but the difference in the context of the situation at Tuam is that there are mixed skeletal infant remains that are subject to the water table and fluctuations in water and are being separated from their individual articulation. That is the fact of the matter. It is a fact with which we can deal but we need to have the proper structures in place in order to deal with it appropriately and give the remains the best possible chance of individualisation and, it is to be hoped, identification down the road.
I thank the witnesses for their submissions and contributions. My questions are for Dr. Donoghue or Professor Carlsson, whoever is more appropriate.
This is probably the area that I understand least because of its technical nature. I have some very direct questions on the technology. The submission states the proposed high-throughput sequencing, HTS, coupled with single nucleotide polymorphism, SNP, analysis, allows for a greater likelihood of identification of degraded DNA. In what way does the standard short tandem repeat, STR, technology that is currently used by the Irish national DNA database prove to be less effective in identifying and investigating the DNA?
Dr. Stephen Donoghue:
It relates to what Dr. McCullagh was saying. There is no question but that the site at Tuam is very challenging. There will be quite a lot of degradation. One can think of SNP analysis as a way of garnering more data. There is a better chance of identifying potential relatives because more data can be garnered. Dr. Carlsson will talk a little more about degradation and why SNP is better than STR.
Dr. Jens Carlsson:
The SNP systems would need a new system but the current system that is being used would be suitable if STRs could be got to work in respect of an individual. There might be just a few cases where STRs could be got to work and many more where SNPs could work. Therefore, there would be two different types of databases.
The submission states that HTS does not require first-degree relatives for identification in that distant relatives can successfully be used for identification. Does that mean the current DNA database and STR analysis rely on first-degree relatives?
Dr. Jens Carlsson:
That is for the Garda or Forensic Science Ireland to answer but I am sure they can do relatedness analysis. What we did with Thomas Kent went one step further. He was an uncle of the two living relatives whose DNA was used for comparison. It could be both fathers and siblings, fathers and mothers, etc.
Dr. Stephen Donoghue:
With STRs, one can do something called familial profiling. It is mentioned in this Bill. It is a standard enough practice. It is really based on statistics where there is not an exact match and one is looking for a best-fit match in terms of the number of hits with regard to the profile. It is a standard enough practice, if there is not an exact match, to look for a familial match. There have been many famous such cases in the United States. The Senator might have heard of gruesome serial murderers who have been caught using familial profiling whereby the authorities compare with sons or relatives. It is usually a first-order relative who is required for that kind of STR profiling.
I just have three questions, the first being for Ms Corrigan. It is good to see her although it is only virtual. I hope we will get to see each other soon enough. I thank her for her patience with me in answering all the questions I have been asking her over the years on this.
I know the dedication Ms Corrigan has given in her quest for truth and justice for all survivors and victims in Tuam.
I will ask all my questions together. I want to pick up where Ms Corrigan left off earlier. I am interested in this. Ms Corrigan mentioned she heard by press release in March 2017 of the finding of young remains in Tuam. What should have happened at that stage following the finding of remains of more than 700 bodies in Tuam?
My second question is to Mr. Buckley as I have had some questions back and forth with him. What does he believe the legislation should focus on? It seems to be somewhat unclear on the basis of the answers given.
My final question is to Dr. McCullagh. Can a criminal investigation be triggered in the Bill? Dr. McCullagh mentioned in her opening statement that the forensic approach will lead to the truth on who these babies were, how they lived and how they died. The focus seems to be on DNA identification. I have only a layman's understanding but I gather DNA will not tell us whether any potential criminal acts occurred in respect of how these people died, as was mentioned. Moreover, Dr. McCullagh said we would require forensic anthropology and osteology for that. Will Dr. McCullagh comment on that?
Ms Anna Corrigan:
I will start on the finding of the remains. I would prefer to roll back before I go forward. I was listening to Dr. McCullagh. I realise I cannot ask direct questions. I am at a loss as to how the remains were taken out of these small openings in the chambers. Remains were taken out and sent for carbon dating. They were also sent for the possibility of DNA examination. I have tried to ascertain where these remains lie and have come up against a blank wall. Forensic Science Ireland has said it did not receive them. I got this information under freedom of information, FOI, legislation. I am at a loss as to where they lie now. Are they in the jurisdiction of the coroner? That was the last I read of it in the FOI documentation but I could not get a direct answer. Are the samples degrading? How are they being held? Why did the excavation stop mid-stream? The opening up of these chambers may have caused more damage. I do not really understand it. Maybe the parts taken out belong to family members of those of us in the group or my brothers.
Reference has been made to individualisation with the remains. I believe identification is more important. That is where I would lean more in the sense of the collection of the DNA. Mr. Geoffrey Shannon completed a report on this. It is so important. I am not referring to DNA from survivors but from family members, because survivors have a different set of needs and wants. I am referring to taking DNA from family members and from the petrous part of the bone and the urgency of using SNP analysis. I know STR analysis is tied into Forensic Science Ireland and criminal cases. Yet, it was stated in the report that Tuam was unprecedented. If it is unprecedented and if there is no evidence of criminality or involvement of the Garda, they why not use SNP analysis? Why not go down that road? DNA is so important to us with regard to these remains. We cannot fully believe that every death certificate is the genuine article. It has been stated by Fergus Finlay of Barnardos that there was possible interference with birth and death certificates. That was in a newspaper article. There has been considerable anecdotal evidence and it was mentioned around Bessborough in another newspaper article. Can we be assured? There is an urgency here as well. As Dr. McCullagh said, the bodies are degenerating and the water table is fluctuating. SNP analysis is the way forward because there is no tie to criminality.
There is something else I query. When this information was released from the commission, it handed the site back to Galway County Council. It was covered over again and it put grass seed on it, and now a law is needed to reopen it. I find that crazy. Tuam was taken away from the commission but nothing leaves the commission until the commission is over. Then it was handed over to the Department of Children and Youth Affairs for part 2 where Dr. McCullagh and her colleagues were re-employed by the Minister, Deputy Zappone, after having been on the initial excavation, making the initial find. There are Chinese walls, they cannot speak about what happened under the commission because that is covered by the commissions Act, then the Minister, Deputy Zappone, presents that there are bodies that she has found - what should she do with them?
We have locus standi here. There has been a lot of talk today about whether people come forward. Our family members' names are lodged with our legal team so we have locus standi. I have two police inquiries myself.
An element of trust comes in. Where are the bones? How are the bones taken out? The DNA is very important to us. Are they dead? It even goes down to Ms Toni Maguire who came down from Northern Ireland. She was involved in the exhumations around the cillíní. She said, as Dr. Donoghue and Dr. Carlsson did, that even a tooth would do. That is where I stand on the remains. We do not know where they are. There could be parts of my brother. We need immediate identification for DNA. Individualisation can come later because, as the report stated, the bodies are commingled. Dr. Carlsson spoke of how they extracted DNA from the petrous bone. One body, if we have one skull, if we can access the petrous, if we can use the SNP the rest will follow. We need answers to know if they there. Are they dead? That is the first question and then we will decide where we go from there. We may agree as a family to move them over to the Tuam graveyard for proper interment once it has been determined that they are actually dead. We know as adults that a lot of time has passed. Sad as it is, we will not receive the full body remains for reinterment with family but time is passing and we are all getting older and our main issue is that our human rights are vindicated around the right to know what happened to our families. Mr. Buckley will talk about how much our rights have been trounced on. I am sorry if I am a little all over the place but there is so much involved in this and it is not just what members read in the newspapers.
Mr. Carl Buckley:
I am very conscious of time so I will try to be quick. I do not want to be quick or brief, but I must be, given the constraints. An earlier comment put it quite clearly: there is no trust in the State. All these individuals who remain in the various fields, pits and septic tanks, every one of them has been failed by the State. Those who survived have been failed by the State. There needs to be a process by which the trust is built. It is for that reason I say that this legislation is not actually required at all. What needs to be done is the coroners system needs to be funded and developed appropriately to deal with this. That way, one can guarantee an independent investigation into every single issue. It is a significant concern why the corner and the authority of the coroner has been explicitly removed in this Act. That goes no way to establish or build trust in the State, in fact, it exacerbates the position further. Every single victim, as Dr. O'Rourke said this morning, is entitled to an Article 2 compliant inquest as far as these issues are concerned. This legislation, in its current state, will not allow that to be done. It needs to be given back to the coroner, that way one removes any sense of political influence.
I am not suggesting there will be political influence, but on a strict reading of this legislation, there is clear room for it because all the major decisions are made by Ministers. As I said right at the outset, that is wholly inappropriate as this should be a victim-led process, not a Minister-led process. It is for that reason I say we dispense with the legislation entirely and we resource the coroner properly to enable appropriate investigations to be undertaken, because with this legislation, Ireland is not discharging its obligations under Article 2 of the European Convention on Human Rights. It is not discharging its obligations under various UN treaties it is a state party to, including the International Covenant on Civil and Political Rights. Unless significant reform, or removal completely, is undertaken, those obligations will not be adhered to. The UN has already commented a number of years ago as far as the Magdalen laundries investigations were concerned and found fault in what happened thereafter. This is an ideal opportunity to put right the wrongs of history.
Yes. I asked if a criminal investigation can be triggered in the Bill, particularly when Dr. McCullagh mentioned that a forensic approach will lead to the truth of these babies were, how they lived and how they died.
Dr. Niamh McCullagh:
Very specifically, that is another reason for advocating the forensic recovery, because if at any point a criminal investigation is initiated, all of the evidence connected to that point will be submissible in a court. So, it is designed for situations where there is not a specific criminal investigation under way but that the evidence collected to that point can be used for a criminal investigation, and it will be accepted in a court of law, including the Coroner's Court.
In terms of what Ms Corrigan said, I am wholly in agreement with her. Time is absolutely of the essence here. I am a forensic archaeologist. I am not an historical archaeologist, so this is moving into history and forensic means modern and action is required as soon as possible. As members well know, not everything one reads in the media is true. Certainly it was portrayed that we are against the application of DNA, for some reason, which is absolutely not the case. The point we are trying to make is we need to go back a step further and ensure there are processes in place that allow the best possible opportunity for these individuals to be recovered, and reburied or returned to their families in as complete a state as possible.
I thank all of the witnesses for their interesting contributions. I thank Ms Corrigan for her heartfelt presentation, and she is so right to be frustrated. It is an absolute disgrace what we have done to families, babies and women throughout this country. I think it was Mr. Buckley who made a valid point that we are doing this in a piecemeal fashion. I do not think a truth and reconciliation process can be written into this legislation but it needs to be considered now, and the steps towards it, following the commission's report. It shows how the commission has failed to deliver answers and how now, through this legislation, we are here trying to find the answers. Possibly, this legislation is not the legislation to find all those answers and make sure we have truth and reconciliation. I am speaking out of frustration that we are still here, still at the point where we have babies in a septic tank in Tuam and we do not have a clear path forward at the minute on how we look after them.
I have a question for Dr. McCullagh, and her contribution was fascinating. On the reliability and limitations of forensic archaeological investigations on remains that may date to prior to 1940 or 1950, how reliable are they for Dr. McCullagh's analysis of the story of those bones or remains, when and if there is an excavation and examination? I am just wondering about that reliability when it comes to very historical remains.
That is an excellent question and it has a good answer in that they are absolutely reliable. Forensic anthropological analysis and osteoarchaeological analysis can contribute significantly to the understanding of the life of an individual. Issues with degradation would have an impact. If the ends of the bones have degraded a lot, it may be difficult to get the exact length. Degradation may impact technical matters such as that. If we are looking at remains from the 1940s, depending on the context in which they have been found, one would expect to be able to get some good results from morphological analysis of those.
Mr. Carl Buckley:
That is tricky in 60 seconds. As I said earlier, we need to remove all of the ambiguity and all of the loopholes within that legislation that enable an exhumation or excavation to be stopped or prevented because it is replete throughout with options to do that. In doing that, we remove the potential for political interference, which will add to the trust and enable trust to be built. People have to have confidence that this is a genuine and independent investigation. I refer back to Article 2 of the convention. Any form of investigation as far as a death is concerned must be independent to satisfy Article 2. It has to be effective, prompt and transparent. The legislation currently does not satisfy any of those five elements. Rather than trying to amend the legislation, if we insist that this legislation is required, notwithstanding what I have previously said, then we should go right back to the beginning and determine and decide what it is that we want this legislation to do and draft it appropriately, taking into account what we want it to do, but also having regard to Article 2 of the convention and the lack of trust among the community and the State. If we start again and ensure that everybody's interests and obligations are satisfied and considered, then we will go some way towards that point.
I see great value in the fact that this legislation establishes an agency that will have evolving powers and that will have a specialist focus that is bespoke for the particular requirements relating to institutional burials. I think there is great value in having that distinct and separate from the coroner. However, I accept the points from earlier today that we need to look at the powers within that agency.
Heads 31 and 32 of the Bill provide for a cessation of the actions of the agency on the ground and refer to the Garda Síochána. There is scope, that can perhaps be emboldened and enhanced, to trigger criminal investigation and the involvement of the gardaí and have that external agency.
That has been missed in the commentary that has been put forward during this session.
I am curious about one issue. I have had the experience of conducting and being involved in a development where human remains were uncovered unexpectedly on a large scale. In that case we had on site particular forensic archaeologists. A team came in for six months to work and to establish age and so on in respect of the remains, which went back a couple of centuries in some instances. As for this agency, what people and particular professions should be on the ground? I would like to explore with Mr. Harte the role of forensic archaeologists in that context.
Mr. Aidan Harte:
The specialists needed on the ground in that context are osteoarchaeologists and forensic archaeologists. A lot of what are considered traditional archeological skills are transferable into those teams. The instance Senator Seery Kearney is talking about would come under the National Monuments Acts. That is a tried and tested mechanism or procedure that has existed in the State since the 1930s. One uses that experience alongside the other professionals coming from the more forensic sphere. That multidisciplinary team would then essentially carry out the forensic excavation or recovery.
Mr. Aidan Harte:
There is an enormous amount of expertise in Ireland as it stands. Whether they come from an archaeological or a scientific background, the personnel are there. What it comes down to is how it will be resourced. How long something will take is more a question of how well the project will be resourced, so there is no straight answer to that.
Mr. Carl Buckley:
I appreciate and agree that there is scope within the legislation under head 32 insofar as a criminal investigation is concerned. There is no objection in principle to any exhumation or excavation being stopped if it is to be passed over to the Garda. We need to acknowledge, however, that that in itself creates potential problems because if the site is handed over, once that exhumation or excavation has already commenced it will potentially have contaminated the site from the point of view of a criminal investigation. There should be an acknowledgement that every single site is potentially a scene of a potential crime. That is the way it should be approached in the first instance, and I expand on this in much more detail in my submission. If we treat each site as a potential crime scene from the outset, it ensures that the strict procedures for evidence collation and searching will be adhered to automatically instead of this potentially being an afterthought. There is therefore potential for the legislation in its current form to prejudice any criminal investigation that might be required thereafter. By way of example, the legislation in its current form provides focus on employees of the agency being empowered to extract DNA. There is no mention of any other specialist, and I referred specifically to forensic anthropologists, although, again, I accept that there are agencies empowered within that legislation to hire consultants or specialists where needed.
However, there is a risk that, without the necessary qualifications and experience, the requisite expertise to conclude that there have been violent or unnatural circumstances insofar as a death is concerned will be missing, as it may simply be a case of taking DNA from skeletal remains. As much as there is scope within the legislation to make a handover for the purposes of criminal investigation, I suggest that we should be considering a criminal investigation first rather than it being an afterthought. If we take Tuam on its own, how can 700 babies be anything other than a potential crime scene? Therefore, we are approaching this matter from the wrong angle immediately.
We are discussing the methodology used to ensure the preservation of evidence, but in drafting the heads, there was an anticipation of the possibility of criminal investigations. It is reasonable and respectful to acknowledge that.
Dr. Niamh McCullagh:
One of the concerns about the proposed Bill has to do with the 70-year timeframe imposed on remains under the current restrictions. The radiocarbon dating of some of the remains at Tuam points to being in the range of the 1950s. In three or four years' time, they will be outside the Bill's remit. Therefore, we do not believe that 70 years is sufficient.
Ms Anna Corrigan:
I will make a quick point about the issue of criminality. I have two open police inquiries. One of my brothers is a stated missing person, having been reported as such to the Garda since 2013. He is marked as dead in the home's ledgers but has no death certificate. There is no medical certification of death and no reason for his death is given. In fact, none of the children has a medical certification of death. My other brother is another open case. Both of their cases are in Tuam. His case was reported to my local gardaí in 2014. Given the evidence that I have, I contend that he did not die of measles, but of neglect and malnutrition, because he deteriorated from being normal and healthy to emaciated with a voracious appetite at 13 months.
Where will the Bill leave me in terms of agencies and criminality? I am a citizen of the State who is looking for my rights under the laws of the land. As such, the Bill has to be applicable to these two open police cases. It just so happens to be that the two children in question were victims of the Tuam home, which fell under the remit of the commission. When I applied to seek my rights as a citizen, I was blocked and told by the Garda that it was dealing with the commission. I told gardaí that I was not dealing with the commission and that I was a citizen of this State. I sought three exhumation licences for my brothers, but I was refused on all counts.
It puts me in a strange place. The Garda has failed to act. It was a criminal site. Independent people came in, excavated it and exhumed bones.
Parts of my brothers possibly lie somewhere in somebody's filing cabinet. I do not know where they are because nobody has reported back. The Garda cannot follow through because it is deferring to the commission. Again, has the site been contaminated if there is to be investigation of possible criminality? It is just a conundrum I am kind of caught in. I did not really get an answer on how the bones were originally taken for carbon dating and whether DNA was extracted.
There was mention of a liaison. I have reported a missing person and I am entitled to a Garda liaison officer but I have not been appointed one. Neither has anybody in our group. Everything happening around all of this is a blatant trampling of our human rights in the same vein as what happened to our families. We have never been afforded any acknowledgement of them, despite the report written by Dr. Geoffrey Shannon on our human rights.
I will be as brief as possible but Ms Corrigan has very generously given her time today. I am convinced that everybody who is listening is really moved and distressed to hear how she is being denied justice. Could we, as a committee, or could the Chair on behalf of the committee, raise the matters spoken of by Ms Corrigan with the Department of Justice and its Minister so as to seek a response to her questions? She deserves a minimum of a response from the Minister's office on that. We all apologise to Ms Corrigan for the additional distress being caused to her.
Ms Anna Corrigan:
There are 11 group members that are waiting in the same way I am. My case is an example of the conflict or conundrum but everybody is waiting. There are people in America and England. They do not all live in Tuam and they are still waiting for answers. We are not getting any younger.
I regret having to rush people. It is almost a theme of the day but everybody knows at this stage that we are really restricted with time because of Covid-19 rules. I genuinely appreciate the contributions from our witnesses. We have had four really good discussions and engagements today. We have heard a wide range of views, which is really important, and it is what we wanted as a committee. We wanted to try to give a voice to as many people as possible on this. I sincerely thank the witnesses and particularly Ms Corrigan for coming to Leinster House to be with us today. As suggested by Senator Fitzpatrick, we will follow up on those matters.
Is it agreed to publish the opening statements of witnesses to the Oireachtas website? Agreed.