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

I move: "That the Bill be now read a Second Time".

I am pleased to bring the Institutional Burials Bill 2022 before the House. This legislation will provide us with a legal basis to finally exhume the remains of children so tragically interred at the site in Tuam, reunite them with their loved ones and afford them a dignified burial.

What happened at Tuam is a stain on our national conscience. Since coming into this role I have met with many of the families affected. In those meetings I have heard that sense of urgency and frustration around why exhumation has not yet happened and I share that frustration. These families want to give their loved ones the respect and dignity they were so grievously denied in their short lives. The uniquely tragic nature of the site at Tuam means legislation is required to undertake this work. This will be one of the most complex forensic excavation and recovery efforts ever undertaken, not only in Ireland but anywhere in the world. While Tuam will be the first such excavation and exhumation, I am conscious there are concerns about other sites, like Sean Ross Abbey and Bessborough.

Since the general scheme was published it has been scrutinised by the Oireachtas Joint Committee on Children, Equality, Disability, Integration and Youth chaired by Deputy Funchion, as well as other stakeholders. I thank the Chair and all members of the committee for the detailed pre-legislative scrutiny, PLS, report they produced. I also thank those who engaged with the committee and those who have spoken with me directly for their constructive engagement on this legislation.

In response to the PLS report and the wider feedback I have made significant changes to this legislation. Among these, I want to briefly draw attention to three key improvements, namely, we have removed the restriction on the jurisdiction of the coroner, the legislation now requires that the forensic investigation must be done to international standards and we have increased the transparency and accountability by increasing involvement for stakeholders like family members and former residents of institutions.

I will now outline the key parts of the Bill as initiated. Part 1 contains the standard Short Title, commencement and interpretation provisions. Section 2 provides definitions of key terms used in the Bill. A central term is "forensic excavation and recovery". This means the excavation of the land and the recovery and treatment of human remains in a manner sufficient to satisfy legal requirements regarding the use and storage of evidence in connection with the identification of human remains, including in criminal proceedings.

Part 1 sets out the procedures for the service of documents and provides that it will be an offence to interfere with, or obstruct, the work of the director of an intervention or to use samples or DNA profiles generated in connection with an identification programme for unauthorised purposes.

Part 2 provides that the Government can consider a proposal by a relevant Minister to intervene at a site where manifestly inappropriate burials have taken place of persons who died while ordinarily resident in that institution. Where the Government is satisfied an intervention is necessary for the purposes of safeguarding important objectives of public interest, it can direct that Minister to establish an office of a director of authorised interventions.

The Minister will appoint a director to oversee the intervention and an advisory board to support and guide the director in the role. The director will be required to conduct a forensic-standard excavation, recovery and post-recovery analysis of human remains. He or she will be empowered to employ or contract the range of expertise and disciplines needed to discharge these functions to international best practice standard at a particular site. The director will also provide updates on the work of the office to relatives of persons believed to be buried at the site, other stakeholders and the general public. The director may also be required to undertake a DNA programme of identification. This is intended in the case of Tuam. The advisory board will provide advice and guidance to the director.

The board will be chaired by a former coroner or someone with coronial expertise and will include scientific experts and - this is important - former residents, family members connected with a particular institution, or both. Consultation with the advisory board will be required at regular intervals, including at key decision points during the intervention. The addition of an advisory board responds to a number of recommendations made during the PLS process to enhance transparency and accountability, as well as to ensure meaningful engagement with families and with survivors.

Part 2 also provides that a director can obtain information and documents from publicly-funded bodies and other persons to assist in the performance of his or her functions. Importantly, a director can also obtain information from Tusla that is contained in the database and related records of the Commission of Investigation into Mother and Baby Homes. It is an offence for persons to disclose confidential information obtained while performing their functions under the legislation. This provision has been enhanced in response to PLS recommendations to give the director the power to compel, rather than simply request, the production of the information or documents concerned.

Part 3 of the Bill provides for the forensic excavation, recovery and post-recovery analysis of human remains to be carried out by appropriately-qualified persons in accordance with international standards and best practice. It provides that remains that are recovered will be sorted into individual sets in as far as is possible, that forensic testing will be carried out to establish as much information about the individuals as possible, including the circumstances and causes of their death, and that the director of an intervention will publish a general report on the findings. This Part is another significant new addition to the general scheme that was published in December 2019. This change responds directly to issues raised during PLS about the need the need to address how people died. A director of an intervention will be required to inform An Garda Síochána and the relevant coroner where evidence emerges of a violent or unnatural death or where remains are not those of a person who died while ordinarily resident in an institution.

Part 4 provides the legal basis for a DNA-based programme of identification to be carried out in respect of remains recovered from an intervention site. The aim of an identification programme is to establish the likelihood that there is a familial link between people who believe they have family members buried at a site and the human remains that are recovered from that site and, where a familial link is established, to identify those remains.

In response to concerns raised by family members and other stakeholders, the provision for a pilot identification programme, which was contained in the general scheme, has been removed. Instead the Bill provides that an identification programme will proceed where there are living family members of persons believed to be buried at the site who wish to participate in a programme and where DNA of sufficient quality is available from the remains to enable DNA profile comparisons. The Bill also provides for a review mechanism, whereby a director can make a decision in relation to continuation of a programme based on the advice of Forensic Science Ireland and consultation with the advisory board.

DNA testing is, as we know, a very powerful tool which may reveal information about familial relationships to persons other than to the deceased relative that a person believes may be buried at a site. The legislation, therefore, has to balance the public interest of identifying remains buried in a manifestly inappropriate manner with the privacy rights of close living relatives. The general scheme sought to do this by limiting participation in an identification programme to parents, children, siblings and half-siblings of deceased persons and also by providing that the highest-ranking of those relatives had to provide consent or a person would be blocked from participating in the programme.

The PLS recommended expanding participation and removing the hierarchy in the general scheme. I have responded to these recommendations by providing a much more inclusive and flexible approach to the balancing of the rights involved. In summary, this Bill now expands the family members who are eligible to participate to grandparents, grandchildren, aunts, uncles, nieces and nephews of deceased persons. There remains a provision for the closest living relative, that is, a parent, child or sibling, to object to the participation of another less closely-related person. However, it is important to note an objection does not automatically mean a second order relative cannot participate in an identification programme. Any objection will be considered by a director. The director must balance the closeness of the genetic relationship of the person who wishes to participate and, importantly, the public interest of identifying human remains.

The Bill provides that before an identification programme begins a director will hold a public information campaign to raise awareness about the programme and how eligible family members and spouses or civil partners of a deceased person can register an interest in participating; an objection to another person's participation; and also that they are interested in receiving remains if they are identified as family remains. They may also state their wishes in respect of the final arrangements for those remains. Again, this information campaign is newly-added into this draft.

The director will create and maintain a register to capture all of these notifications from eligible family members. The benefits of this register are that it should allow eligible family members to express their wishes at a very early stage in the intervention process and assist in supporting wide-ranging participation, while providing a mechanism to recognise the rights of close family members.

Importantly, in expressing an interest in participating in an identification programme, eligible family members can include a letter of support from relatives who would otherwise be able to object to their participation. The intention of these upfront letters of support is to help accelerate the process of approving an application to participate in an identification programme.

In circumstances where neither an objection nor a letter of support has been received from a closer living relative who would be entitled to object to a person's participation, the director may make reasonable efforts to contact that closer living relative to establish whether she or he wishes to register an objection to the person's participation in the identification programme. Given the significant privacy and data protection rights involved, the director is required to take these steps.

Where a person applies to take part in an identification programme, the director will first establish that the person is an eligible family member and has provided the required evidence of her or his relationship to the deceased person. The director must be satisfied that the person is fully aware of what is involved in the programme and is happy to participate. The director must give consideration to any objection from a closer living relative who may be entitled to object to a person's participation. The director will notify an applicant in writing of his or her decision as to whether that person may participate. Where the director notifies a person that she or he may not participate in the programme, the director will set out reasons for this decision. Importantly, a person whose participation has been rejected by the director can appeal the decision to an adjudicator established by the relevant Minister. Where a person is notified that he or she may participate in the programme, that person is therefore known as a "relevant person" for the purposes of this Bill.

The Bill provides for participants in an identification programme to nominate up to two people to be notified of the outcome of a familial matching process in the event that they die or become incapacitated before the outcome of the DNA identification programme is complete and where there is no other relevant person in respect of the deceased person. Those people can receive remains where they have been identified.

The DNA identification programme will involve taking samples from the human remains recovered from the site and relevant persons. My understanding is that this will entail an oral swab. Forensic Science Ireland, FSI, will generate DNA profiles from those samples and, at the request of the director, conduct DNA profile comparisons in respect of a relevant person to establish the likelihood of a familial link. The results will be notified to the director by FSI and the director will consider the results and any other relevant information and inform a participant as to whether, on the balance of probability, a familial link has been established. A finding that the data are not sufficient to suggest a familial link can be appealed to the adjudicator appointed by the relevant Minister.

The final arrangements for recovered human remains are considered in Part 4. The provisions in the Bill have been amended from those in the general scheme as a response to a number of the recommendations of the pre-legislative scrutiny report. The Bill now provides that, once identified, remains will be returned to family members or final arrangements will be made in line with their wishes. This is clearly stated in the Bill. Where identification of remains is not possible, final arrangements are similarly undertaken in line with the wishes of all those who consider they are family relatives of those interred at the site. A director will make arrangements as soon as practicable after a familial link has been established or where an identification programme has concluded.

In response to a pre-legislative scrutiny recommendation, and in order to facilitate potential developments in forensic testing, the Bill provides for the Minister to make regulations for further forensic testing of samples, subject to the consent of relatives, after an identification programme has been completed. In this regard, a prohibition on the cremation of remains that have not been identified has been included in the Bill so that they may subsequently be tested if scientific advances allow for such.

Part 5 provides for a director to acquire temporary rights of access to land required in order to undertake an intervention, with an obligation to provide reasonable compensation and to restore land to its original condition and use upon completion. The compensation amount will be calculated by a relevant professional and will take account of a number of relevant factors, including the period for which access is required, the extent of the works and the disturbance to a trade or a person's peaceful enjoyment of land. It is open to an landowner or occupier to challenge access to the land or the amount of compensation being offered. A challenge to the level of compensation does not affect the work and the director can carry out the intervention while the case is before the court. However, a challenge to access has the potential to delay the work of the director.

The primary access provided for in this Bill is to a principal burial site described as "principal burial land". Where the principal burial land is on residential land, access can extend up to the curtilage or 20 m, whichever is the lesser, of any dwelling on the land. The Bill also provides for access to residential land adjacent to the principal burial land where burials associated with burials on the principal burial site have taken place, described as "ancillary burial land". In this case, access does not extend further than 2 m from the boundary of the land or encroach on any dwelling on the land. Access can also be obtained to ancillary land where burials have not taken place but where access is required in order to facilitate works.

Part 6 contains provisions related to the dissolution of an office of a director. On dissolution day, all functions, assets, liabilities and records shall be transferred to the relevant Minister. It also provides that a director will prepare and submit a final report of the director prior to dissolution day. Following submission of this report, the relevant Minster shall, within 12 months, undertake a review of the implementation of the legislation in regard to that particular intervention. A report on the review will be published. The review mechanism is included in the Bill as a response to a pre-legislative scrutiny recommendation.

Before I conclude, it is important that I pay tribute to the work of all those who have worked to bring us to this point, in particular Catherine Corless. She became a voice for these children and the State owes her a great debt. What happened in Tuam is a stain on our national conscience. We can never erase the immense tragedy of what happened there, but this Bill will allow us, at long last, to afford the children interred at that site a respectful burial. It is long past time that we afford these children that basic dignity, which has been denied them for such a long time.

I urge Deputies on all sides of the House to work constructively with me to see this legislation passed promptly so that we can finally begin the vital work of honouring these children by exhuming their remains, identifying them, allowing the return of their remains to their loved ones and affording them a dignified burial. Everyone in the House is in agreement that this is the very least that we can do.

I commend the Bill to the House.

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