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

I thank all Deputies for their very detailed and serious consideration of this legislation, which deals with potentially one of the most difficult matters we will see in this session of the Oireachtas. As the Deputies have said, the legislation is technical and detailed, but when we get back to the essence of what we are doing, it is law that provides for the removal of the remains of infants from a septic tank where they were placed inappropriately. Words almost fail us sometimes when we speak about the magnitude of the awfulness evident at this site. I thank Deputies for their detailed consideration of the Bill and acknowledgement of the significant progress made by it. I thank the Chairman and members of the Oireachtas joint committee for their sustained engagement in helping to bring about these improvements.

In particular, I thank the former residents and family of infants who died or survivors from Tuam and many of the other institutions who have engaged with me so often for as long as I have been in this role. It is speaking with them and understanding their experiences and perspectives that has inspired me to make changes in this legislation. I also thank the team in my Department that has worked so hard to make these very significant changes as well.

As I said yesterday, on a number of occasions we have taken on board directly the recommendations of the Oireachtas joint committee, and on many other occasions we have taken on board the spirit of recommendations and have made significant changes. I am cognisant that this is complex legislation and there has been criticism of the difficulty in reading or comprehending it. While we have put forward a plain English version as well, we are dealing with immensely complex matters, particularly in terms of the DNA identification programme, which requires strong legislative protection because of the privacy rights invoked whenever anything with DNA is done. We should also note that the level to which we shall intervene at this site is a level not previously provided for in Irish law. That is why the inserted section stating that the intervention must be to international standards is so important. I hope that demonstrates we are doing absolutely everything we can to investigate these sites.

The Deputy asked about the report and we see the fifth option being taken, that is, the most extensive element of intervention. I have said that and I know it is a matter discussed by Ms Catherine Corless. Will the agency just look at the tank? No, it will be able to look at the entire site in Tuam and undertake truthing. If there are "anomalies" in other parts of the site, those elements will be excavated as well. We are not bringing forward the legislation and putting the focus on this just to do half the job. I want to make the point again that anywhere there are suspected burials on the site will be excavated.

I am very grateful to Dr. Niamh McCullagh for her engagement with my Department, particularly on the question of forensic investigation. She had much engagement with my officials on the international standards and how to take the practice of forensic archaeology and express it in legislation. Her assistance has been highly beneficial and has led to the strengthening of the legislation.

A significant number of matters were raised in the debate today and yesterday and I will try to address a number of them now.

On Committee Stage we will have the opportunity to address more. Many Deputies raised the 20 m issue and the issue of land access yesterday. Hopefully I can provide some degree of clarity on this point. The legislation is trying to bring some element of balance between the absolute importance of carrying out an intervention and the rights of homeowners in certain situations. The legislation provides for the director to acquire temporary rights of access to land. It provides for reasonable compensation and a requirement to restore land to its original condition after the intervention has taken place. Under the general scheme, the provision was that the Government could not make an order in respect of land on which there was one or more residential dwelling and a director could not seek access to land in residential use where the access would encroach more than 2 m beyond the boundary of the land. That was a significant limitation. If there was a suspected burial on a site, and if there was residential land on it, the entire site was basically excluded from the ambit of the Bill. Many people raised concerns about that. In response to the recommendations, we have significantly limited that. Now if there is residential land on a site where there is proposed to be an intervention, that intervention can still take place. What we are saying is that the intervention cannot come nearer than 20 m from the residential site. That is to ensure that the very intimate area of a residential home is not being excavated. Particularly on sites where religious land has been sold and there are large residential developments as well as land that can be investigated, the presence of the residential homes does not remove the entire site from the ambit of the legislation. That is the first point on residential land.

Specifically in the case of Tuam, the main site is in public ownership. We are talking about the memorial garden, the playground and the car park. That part of the site is all in public ownership. This residential restriction in terms of the 20 m rule does not apply. I want to make that very clear. The 20 m rule will not in any way interfere in Tuam. As anyone who has been at the Tuam memorial garden knows, it backs immediately onto privately-owned gardens. This legislation allows for an intervention 2 m into privately-owned land if that is necessary to secure the site. There is this very large wall in Tuam looming over where we know the tank is. There may have to be an intervention there to secure the site to make sure the excavation can fully take place. There is no limitation on intervention in public land. Where land is residential, there can now be an intervention but not within 20 m of the residential home. Where the principal burial site is in public land there can be an intervention of up to 2 m in privately owned land around it in order to secure the site. I hope that gives some clarity. I see this as a significant improvement. It was a very legitimate critique that was made of the first Bill and I believe we are implementing and addressing the recommendations coming from the pre-legislative scrutiny, PLS.

Deputy Canney noted that this does have an impact on homes and people; in Tuam, they are people who may well have helped to keep that site over the years and ensure that at least the memorial garden was respected. We will engage with that in terms of making sure there is proper consultation where a site is adjacent to privately owned land. We recognise that. I will come back to the advisory board. It does have a member of the local authority and that can help in terms of ensuring that the views of people in the area who may not be relatives or family members are brought into discussions.

On the link between the coroner and the director of the agency, Deputy Cairns asked why we need this legislation. That has been asked in the past. The coroner is an independent public office. Coroners have a general duty to hold an inquest if they are of the opinion that a death or deaths may have occurred in a violent or unnatural manner or happened suddenly and from unknown cause. The Bill places no restriction on the jurisdiction of the coroner. The exclusion of the right of the coroner to intervene in certain circumstances - the circumstances were limited but there was an exclusion there in the original draft - has been removed. I recognise that this has been welcomed. The Coroners Act 1962 only makes limited provision in respect of the exhumation and removal of a body. It provides for the Minister for Justice to order an exhumation at the request of the coroner if the coroner is informed by a member of An Garda Síochána that a death or deaths may have occurred in a violent or unnatural manner.

As we know, the commission's final report on this speaks to issues that were raised yesterday by a number of Deputies in respect of investigations. The commission's final report was shared with An Garda Síochána. It considered the report and determined that there was insufficient information available to commence a criminal investigation. However, subsequently, in April of last year, An Garda Síochána issued an appeal to anyone with information about crimes at mother and baby institutions to make contact with it in order that such crimes could be investigated where possible. A number of survivors I have spoken to have engaged with An Garda Síochána and those investigations are with An Garda Síochána.

Coming back to the point Deputy Connolly was making about the degree of excavation, in 2018 the Government decided that a full forensic-standard excavation, recovery and, if possible, identification of remains across the full available site in Tuam was the most appropriate response. The Government was at that time advised that there was no legal basis to undertake that degree of work and therefore that legislation - the legislation we are bringing forward now - was required. This legislation is designed to complement the Coroners Act 1962 by providing a mechanism for guaranteed intervention at the Tuam site. That is important. This legislation guarantees that there will be intervention in the Tuam site. It guarantees that intervention at, I believe, a much higher standard than the Coroners Act provides for at the moment, in this idea that it has to be at international forensic standard. That is not stated anywhere in existing Irish law. As the Acting Chair, Deputy Funchion, knows from the concerns raised by family members, they were worried this would not be done in a proper way, that it would just be a removal. That cannot happen now because of what we have written into this law.

The Bill does not place any restriction on the jurisdiction of the coroner and will not remove the obligation on the coroner to hold an inquest where such an inquest is required under the 1962 Act and, importantly, where remains show evidence of violent or unnatural death. The director overseeing the intervention must immediately inform An Garda Síochána and the coroner within whose district the remains were recovered. There is a clear obligation if the director becomes aware of violent or unnatural death to inform the coroner and An Garda Síochána. We will talk about the work the director has to do in respect of each set of remains. In that event, the director has to comply with any directions given to him or her by the coroner or An Garda Síochána.

A new provision is added in section 36 whereby the director is required to prepare and publish a report documenting the circumstances of the discovery of the human remains, the forensic excavation and recovery of those human remains and the outcome of post-recovery analysis including, if possible, information on the circumstances and cause of death. The director will have to provide an examination of each set of remains that has been recovered from the site and provide information, if it is possible to glean it from those remains, about the cause of death. That will be a publicly available document which can be provided to the coroner. Should the coroner decide to hold an investigation, that can be an incredibly valuable document in terms of any work the coroner does up to and including an inquest.

There is nothing in the legislation that restricts the coroner entering the site at any stage. The director is not prohibited under the legislation from sharing evidence or data that may be requested of the director by the coroner.

The membership of the advisory board will include a chairperson, who will be a person who either has been a coroner in this State or has demonstrated expertise in coronial matters. This person may be from this State or outside it. He or she must be someone with expertise in this area and who perhaps has been involved in a similar type of excavation and recovery elsewhere. The board will include two members who have scientific expertise, again to ensure there is forensic and scientific advice being provided at all times. That was an issue of concern to family members. The membership will also include someone who is a member of staff of the local authority in which the principal burial site is located, an individual who considers that he or she is a family member of a deceased person believed to be buried at the site and a person who is a former resident of the institution. If there is no one alive who was formerly resident, there will be two members who are family members of the deceased. Those two roles are interchangeable but they ensure that there will be two people on the advisory board representing either former residents or family members of those who died in the relevant institution.

Consultation with the advisory board is required at intervals but there are a number of key decision points at which the director must consult the advisory board, namely, when making arrangements for the forensic excavation, the conducting of post-recovery analysis of remains, providing updates to relatives, stakeholders and the public, and in decisions relating to the continuation or reviewing of an identification programme.

A number of Deputies raised the issue of the substantive reasons for intervention or, potentially, of using memorialisation if it is regarded as more appropriate. Under the Bill, the Government may make an order where it is satisfied that manifestly inappropriate burials have taken place on lands associated with an institution. An institution is broadly defined as being a current or former residential facility where a public body has or had a relevant role. In determining whether burials were manifestly inappropriate, consideration is given to the available evidence, as set out under a number of criteria. They include whether the remains are uncoffined, if they are buried in a manner that would not have complied with the burial grounds regulations at the applicable time, if they are buried in a way that would not reasonably be considered to provide a dignified internment, or if they are buried collectively and in a manner or location that is repugnant to common decency and would reasonably have been considered so at the time of burial. The Bill gives the Government the power to intervene in these circumstances. In making a decision to intervene, it must balance the need for such intervention in a situation where something is manifestly inappropriate with our societal belief in the sanctity of a burial site and the preference to avoid disturbing remains following burial. That is a difficult and complex issue. There is a collective agreement on the Tuam site but, as I know from my engagement with survivors of other institutions, there are differing views as to whether there should be an intervention or proper memorialisation. I recognise that these are difficult points to balance.

I will talk briefly about the question of family members who can participate the programme. I have expanded the provisions in this regard from the initial proposal that only first-order relatives, that is, parents, children, siblings and half-siblings, should be included. We are now including grandchildren, uncles, aunts, nieces and nephews. The key reason we have not included cousins is a technical issue to do with the share of DNA. First-order relatives share 50% of DNA with a person who is interred at the sites and second-order relatives share 25%. When we get to third-order relatives, however, the common DNA is only 12.5%, which gives a dramatically lesser chance of getting successful matches. We have engaged with experts as to where we have the best chance of achieving identifications. In terms of the information campaign, third-order relatives will of course have the opportunity to engage with family members who are higher-order relatives and ask them to participate. That is important because there are large communities impacted by this. That is why the information campaign is significant in terms of getting greater engagement as early as possible. The Bill provides for the possibility of future testing, under ministerial regulations, where there are scientific developments. There may be a better chance of making identifications in the future because of improvements in technology. It is important to highlight that.

Deputies referred to a number of sites other than Tuam, principally the Bessborough and Sean Ross Abbey homes. The commission of investigation concluded it is likely that some of the children who died at Bessborough are buried in the grounds but it was unable to find any physical or documentary evidence of such burials. I have met with the group representing Bessborough survivors on a number of occasions and, in 2021, I made submissions to both An Bord Pleanála and Cork County Council in respect of a planning application that covered the area identified as the potential burial site as well as land adjacent to it. In both cases, those planning applications were rejected. There are differing views among Bessborough survivors, although there is a strong view towards memorialisation. I will meet with the Cork survivors group in the near future as part of the Government's ongoing work on Bessborough. I will speak a little more about memorialisation presently.

Deputy Martin Browne is not here today but he had questions yesterday about the situation regarding the Sean Ross Abbey home. The commission's final report included details of a forensic archaeological investigation it commissioned in respect of concerns about how the identified burial site there may have been impacted by drainage works. The archaeological survey found that the burial grounds had not been impacted by any utilities or drainage work and noted that coffins or evidence of coffins were located with 84% of the remains that were found there. I am aware of ongoing concerns from survivors, whom I have met, regarding another site outside the main burial site. I have engaged with them on providing some support in terms of additional work that might be done to gain certainty regarding that adjacent site. I will meet with the group in the near future to discuss that further. We continue to engage with relevant groups about relevant sites.

There were several queries about final arrangements for identified and unidentified remains. The Bill provides that a director will make final arrangements for human remains as soon as practicable after a familial link has been established or an identification programme has been concluded. There was concern during pre-legislative scrutiny that remains might stay with the director for a long period even if they had been identified. There is now a much clearer obligation on the director to provide remains once they have been matched. Where a familial match has been made, the director will, at the request of family members, either return the remains to them or make arrangements in line with their wishes. Where a familial link has not been established or an identification programme is not undertaken, the director will make arrangements having regard to the stated wishes of persons who believe they have family members buried at the site. That is a key element of the Bill. Where remains are not identified, the director will make the final decision but it will be done in consultation with the advisory board and with wider family groups. In the case of Tuam, it is likely that there will be both identified and unidentified remains, which means both of these contexts probably will arise.

Regarding memorialisation and the protection of these sites around the country, a working group has been set up between my Department and the Department of Housing, Local Government and Heritage, which is looking at that issue as well as other issues to do with how local authorities can support survivors. That is provided for in the action plan. The group is looking to provide best practice guidelines on ongoing engagement and liaison support for former residents, support groups and local authorities. I have engaged directly with the Minister for Housing, Local Government and Heritage, Deputy Darragh O'Brien, to seek additional central guidance on the importance of local authorities providing specific protections for any burial sites that may be linked to former mother and baby home or county home institutions.

The Department of Housing, Local Government and Heritage is preparing a circular intended to assist local communities in participating in the local development plan process and encouraging local authorities to incorporate appropriate policies on burial sites into development plans. It is intended that this circular will be issued in quarter 1 of this year. That is an important step in allowing local authorities to provide for the protection of sites within their functional areas.

Deputy Connolly asked about the ability to get information and the reference to "public body". In the definition section, the term "information source" refers to a person who is the holder, controller or processor of information. That is a very wide definition and we believe it covers public institutions but also private ones, such as those remarked upon by the Deputy. We believe that is covered.

On the issue of the adjudicator, an adjudicator is a body set up to review a decision of a director not to allow somebody to participate in the DNA identification process or review a decision of a director that a familial link has not been established by the DNA process. Under the original legislation, the director appointed the adjudicator. The adjudicator was appointed by the person he was making the adjudication upon. That is not appropriate so the adjudicator will now be appointed by me and be separate from the director. Those are the two key roles the adjudicator will undertake.

I thank the Deputies for their engagement on this legislation. It is incredibly important that we advance this, recognising, as Deputy Connolly outlined in great detail, the long time that relatives and former residents of the Tuam home have waited to see a resolution for the site, to have the remains of children recovered, to have all efforts made to identify them and to return their remains to family members so they can receive a dignified burial. That is what we are seeking to do in this legislation. We will continue to work to develop it and I will continue to engage with Deputies on Committee Stage, listening and always seeking to improve the legislation, conscious that survivors are waiting for us to pass it so action may take place. It is incumbent on us all, after such a long period, to achieve this finally.

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