Holly Cairns (Cork South West, Social Democrats) | Oireachtas source

I want to acknowledge that today will be another difficult day for the survivors of mother and baby homes and other institutional systems. This is an extremely sensitive topic, which unfortunately is compounded by the timing of this session on the same day the Committee on Children, Equality, Disability, Integration and Youth will discuss the Birth Information and Tracing Bill 2022.

Chrissie Tully, now 90 years old, recently described how as an 18-year-old, she was incarcerated in the Tuam mother and baby home and her son, Michael was stillborn. He was immediately taken away from her in the Central Hospital in Galway and Chrissie believes he is in the Tuam site. She is rightly angry and confused as to why this law is necessary. She said:

Legislation? For what? To open a grave full of dead babies? I never heard such nonsense. They don’t want to open the grave, that’s the truth. ... Where are the children? Where is my son? We’ve looked and looked. It’s like he never existed. ... What did they think the babies were? Would they like that done to their own? My son could be in the tank, he could be but we don’t know because they won’t open the thing. What’s the delay?

I have to agree with her and with her son, who I spoke to this week. I still cannot understand why we need this legislation. Why has the coroner not investigated known mass graves? Why has the Garda not investigated the thousands of recorded unnatural deaths in mother and baby homes and other institutions? This Bill comes after years of inaction and the refusal of the State and successive Governments to acknowledge existing laws and to provide justice. For example, we have the Coroners Act 1962, in which coroners are obliged to act if remains are found in their district or if somebody dies in State care or custody. This Bill goes some way to addressing these issues but it is still not aligned with transitional justice and international human rights standards.

The legacy of the Irish State's institutional past impacts individuals and families every day. Abuse, violations, and crimes continue to have real effects on people. Trauma, unrecognised injustice and stolen identities are living issues for thousands of people. This legacy is also embedded in the landscape in places where some of the worst crimes perpetrated by or facilitated by the State, often in conjunction with religious orders, occurred. Former mother and baby homes, county homes, industrial schools, psychiatric hospitals and other institutions have a deeply troubled past which we must come to terms with. Not only were these sites of incarceration, abuse and violence but they are also where people died in suspicious and unlawful circumstances. The scale and horror of Tuam forced action on this issue. The callous and criminal disposal of the remains of babies and children is still overwhelming. Even more disturbing is the reality that Tuam was not an isolated case. It is most likely the most severe example but we know of similar practices in other institutions. The State is compelled to act and Irish society needs a transitional justice approach to respond to the scale of this issue. Part of the process will be the challenging and painful excavation of known and suspected burial sites. We have a social and emotional aversion to disturbing burial grounds. However, the babies, children and adults who died in these institutions deserve graves, justice and to truly rest in peace. There is an obligation to investigate any and all deaths or inappropriate burials.

Although it is hard to understand why we need this legislation in the first place as I said, I welcome this Bill as hopefully and finally presenting a mechanism to respectfully respond to our cruel past. I also want to recognise the work of the committee and its Chair, Deputy Funchion, and I recognise the work of the Minister in taking on board some recommendations from the pre-legislative scrutiny. Some of the issues identified then have been addressed and the entire membership of the committee is grateful for that. I was especially relieved to see the removal of the restriction on the jurisdiction of the coroner, the strengthening of the role of the director and the expansion of the identification programme.

The care and attention given to this Bill by the committee contrasts with the Birth Information and Tracing Bill 2022, which we will discuss in committee later. Similarly, there still are several significant deficiencies in the Bill which the Minister needs to fix.

It must offer a robust and determined framework to provide justice without political or official interference. The State needs to ensure we effectively investigate unlawful or suspicious deaths, as well as allegations of torture or ill-treatment. The "Director of Authorised Intervention", as the new office is referred to in the Bill, must have the capacity and certainty to be able to intervene for all victims and survivors. It also must be able to support survivors and families in providing information about the disappearance, the fate of the disappeared person and the progress and results of any investigation.

My first and major concern is about the requirement to establish a separate director and office to intervene in each site, rather than establishing a standing body which has the capacity to examine any known or potential site.

On one level, this is a nonsensical approach. It is like setting up a separate police force for each individual crime, instead of a one for all crimes. A well-resourced office could build up knowledge and expertise in dealing with these highly sensitive matters. It could foster relationships with all stakeholders, especially survivors and family members. This would be more effective and reassuring for those affected. However, even more worrying is that this is a bureaucratic barrier. The Bill permits the Government, if a location meets a set of criteria, to set up an investigation of the site. This means that survivors, families, and campaigners will now be forced to advocate for interventions at known or suspected sites. Once again, the responsibility is being put back on survivors to ask for and seek justice.

It is safe to say there is no doubt that the Tuam site will be examined. It has to be. The national outrage and international headlines that forced the Government to act in 2014 have guaranteed that. What about the many other sites throughout the country? How many of those will be deemed eligible?

To quote from the Bill, "the Government may, from time to time, having considered a proposal made by a relevant Minister with the consent of the Minister for Public Expenditure and Reform, by order" and in this context, "may" is the crucial word, as "shall" is the legislative language for something that will happen whereas "may" means it might happen. With everything we know about the horrors and abuse that happened in these institutions, the public outcries and the glaring need for truth and justice for survivors, the best the Government can say is that we might, in the future, do something about these mass infant graves. We might.

Perhaps even more restrictive is the line, "with the consent of the Minister for Public Expenditure and Reform". Here is the cold, cruel reality of this Bill. It is about money, not justice. Any intervention at a site must legally get the consent of the Minister for Public Expenditure and Reform. This hurdle is deeply troubling, given the Department’s position on the mother and baby homes redress scheme.

One of the major defects of the Government's proposed scheme is the highly insulting requirement for individuals to have spent at least six months as a child in a mother and baby home. Recent revelations show that officials in the Department of Public Expenditure and Reform were central to this cruel stipulation. They were concerned with this precedent having "far-reaching policy and financial consequences", that is, giving redress to the survivors of the worst forms of human rights abuses may see other survivors seeking redress. That is not to mention the fact that they also think somebody should potentially get €5,000 for something like a forced family separation, when we all know one could get more for slipping on a pavement. Money is their main concern, not justice.

Then, they delayed the progress of the scheme. This is the Department that will now be given a veto on interventions at each and every site. Transitional justice or an obligation for truth are clearly not priorities for them. Survivors and campaigners have been scarred enough through interactions with the Department of Children, Equality, Disability, Integration and Youth and other Departments and bodies and now they will be obliged to jump through hoops for the Department of Public Expenditure and Reform as well.

Given all we know about mother and baby homes, illegal adoptions, other institutions and the treatment of survivors, the need for a separate office for each site is an intentional barrier that is contrary to transitional justice and human rights standards. Unfortunately, the Minister, so far, seems unwilling to acknowledge this point. The need to act on Tuam is pressing and highly necessary but this Bill will result in very few other sites being examined and it is hard to believe that is not its intention. I ask the Minister to give all survivors and their relatives the certainty of a standing independent office which has the capacity and commitment to intervene.

There are still too many conditions and restrictions. This is another barrier. The committee’s report focused strongly on enabling as many sites as possible to be included in the legislation and for the capacity of a State agency to examine these sites. We warned that a high volume of conditions and restrictions may prohibit the Government from acting to facilitate exhumations, examinations, identification and investigation. Unfortunately, this is very much the case with the current Bill. At all stages, the Bill should be orientated to facilitate survivors and their relatives. It should work in their favour to address historical and living injustices. Whether the people affected want an intervention at a site is a separate issue, but they should all be entitled to that option.

The most obvious restriction is that the register of manifestly inappropriate burials is still the primary criterion, while there is not the same emphasis on suspicious or unlawful deaths. The committee recommended that interventions at sites should give due consideration to suspicious or unlawful deaths, as well as the existence of inappropriate burials. We also recommended that the Bill include any burial site where the circumstances surrounding the death or body disposal method or both warrant an investigation as to their lawfulness. These elements are not properly present in the Bill. Human rights experts and those advocating a transitional justice model pushed strongly for these criteria. The Irish Council for Civil Liberties has strongly highlighted the State’s obligation to effectively investigate unlawful or suspicious deaths, as well as allegations of torture or ill-treatment. There needs to be a clear prioritisation of action because of suspicious or unlawful deaths, alongside what the Bill calls, "manifestly inappropriate burials".

Section 8 also contains restrictions on when an intervention can apply. The inclusion of the need to respect the views of the relatives of persons buried in the land is an important aspect which featured prominently in the committee discussion. It gives recognition of their role in the process. However, other restrictions are too vague and unnecessary, to the extent that they seem like intentional barriers. The provision regarding the "social and economic interests of the State" is the clearest example. What does it mean and what possible measure could be used to objectively measure that?

Economic interest means money, again. An intervention could be refused because of potential cost or the budget situation in any given year. This is an ambiguous and relational standard; one that is not compliant with human rights and transitional justice and has no place in law. The history of injustice surrounding this issue, and the refusal of state bodies to engage with survivors, give them basic information or recognise their rights at all combine to indicate that these criteria can and will be used to refuse interventions. It is also worth noting that this would be the State’s social and economic interest, not the people’s, and certainly not the survivors. The inclusion of "public health" is another ambiguous criterion and is ironic given our chronic underinvestment in that area. Similarly, archaeological features, which are regularly paved over for infrastructure projects, are being elevated in significance to prevent examinations of sites. Are we serious with these restrictions? An investigation and evacuation of a mass grave may be refused because it is near a standing stone. If this was not such a serious topic, it would be comical.

The Minister has to recognise these features for what they are; barriers. Outside of providing for the views of relatives and the dignity of the deceased, section 8(3) has to go. This Bill has to be about facilitating interventions, not putting more barriers in place for a group of people who have suffered oppression and injustice for all of their lives. The committee’s first recommendation is very clear. It states:

The focus of the Bill should be on victims and survivors and their rights. The Bill should not limit the extent to which the various sites can be investigated.

Currently, the Bill does not do this. There are multiple interconnected and reinforcing limitations.

The next point concerns a contradictory element in the Bill concerning justice for people who died in violent or unnatural circumstances. The Bill requires the director to inform An Garda Síochána and the coroner if a body is discovered with evidence of death in violent or unnatural circumstances.

This evidence can be assessed only if an intervention occurs, however. I outlined multiple obstacles in the Bill that will vastly restrict the number of examinations

There is documentary evidence of thousands of deaths in State-run or State-funded institutions. However, because the Bill does not allow for interventions based on unlawful or suspicious deaths, the majority of these crimes, of which we are all aware, may never be investigated. State and religious bodies are being protected by this contradiction while survivors and their relatives continue to live with uncertainty about the fate of their loved ones.

While I welcome the changes that remove the exclusion of the coroner in this process, we need a more proactive approach to include An Garda Síochána and coroners in examining known mass graves. The committee found that there was enough evidence from the Commission of Investigation into Mother and Baby Homes to trigger coronial investigations into how individuals in institutions died. I have no sense that this is happening or that this Bill will encourage this action on the scale required to deal with the volume of sites around the country. I am deeply concerned this Bill will fail to provide justice for so many families.

The complex issue of contested intervention is highly sensitive. Survivors, relatives and the wider community will have mixed feelings about disturbing burial grounds or even inappropriate ones; the resting places of victims of Ireland's cruel institutional past. We have a responsibility to be respectful and precise in discussing this. At the committee, fears were being whipped up around forcible excavations of angel plots, which is untrue and unhelpful.

The specific mention of respecting relatives’ views is important. The mechanisms to achieve this will, however, need to be very finely tuned to engage affected people respectfully to balance and weigh up different perspectives and ensure justice for the deceased. It is a deeply complicated issue that was the subject of extensive discussion at committee and, to be fair, we passed on responsibility to the Minister. It is important to acknowledge that. It is morally dense and emotionally fraught but the Minister has responsibility in this area.

We have sites where some survivors and relatives want memorialisation rather than intervention. Simultaneously, other survivors want examination to know if their loved one is buried there and larger principles of transitional justice must be considered. There is no perfect outcome in these situations. Nonetheless, we need transparent and accessible mechanisms, which are as equitable as possible, to accommodate deeply held but potentially conflicting views.

The Bill needs a stronger articulation of the principles underlying this process. While the Bill recognises these decisions, there is no architecture for it to occur. How will these decisions be reached? Who will make them? What systems will be available to people? Whose voice counts? How will a relative be defined in this context? This is an incredibly important point and there are still too many uncertainties. The Bill needs to include these elements to avoid potential upset, conflict and even litigation.

Finally, I acknowledge the progress made in improving the Bill. There is clear evidence of the Minister listening to the submissions from different witnesses who shared their experiences with the committee. There is still more work to be done, however. This Bill currently has too many restrictions on survivors and relatives being able to seek interventions. It has ambiguous terms and ill-defined processes to engage with affected people and balance differences. It does not have a basis in transitional justice.

Mother and baby homes, industrial schools and other institutions are the most horrific parts of Ireland’s recent past. They mark some of the worst crimes committed by agents of the State and religious orders. The buried remains of victims are one of the most tangible and raw aspects of this history. Across the country, there is a dark geography of mass unmarked graves. It is essential to respond to that awful past. It is part of the process of acknowledging abuse and violations of girls, women, victims of rape, disabled people, people who were illegally adopted and so many more. There is a clear and crucial focus on Tuam. That cannot detract from the many other sites and survivors. Every one of them deserves justice and needs this Bill to guarantee that justice.

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