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

I thank the Senators for their proposals. I am not in a position to support these amendments. Replacing "may" with "shall", as proposed by amendments Nos. 5 and 6 would, as Senator Seery Kearney said, remove the discretion of the Government and constrain its ability to make Government decisions on proposals which are brought to Cabinet. It would not be appropriate to compel the Government to make an order. The legislation provides a range of conditions which have to be met in making an order. The intention is to provide detailed guidance to the Government on making a decision on such a significant and sensitive matter.

The other amendments in this group seek to remove the important concept of safeguarding objectives of public interest or to reduce the factors that underpin it. Excavation and recovery of human remains is an extensive complex and sensitive intervention. In making a decision the Government has to balance the need to intervene with the need to respect the long-standing tradition of the sanctity of burials and consider the overall public interest. The legislation, therefore, sets out a number of factors that the Government will take into account when determining if an intervention is proportionate, including the need to accord dignity to persons buried on the land and the need to respect the views of relatives of persons buried on the land, public health and alternative options, if any, that may be available.

Safeguarding public interest in not unique to this legislation and is an extremely important concept. In a context where this legislation is significantly impacting constitutional rights, it is vital it sets out a robust legal basis grounded in the public interest for that impact. Looking at the factors listed, I know we all agree with the need to respect the views of relatives of persons buried on the land, and I acknowledge amendment No. 24 would provide for this. I have met many survivors and families connected to various mother and baby institutions and I have heard the very strong views expressed by some that they would regard excavations at their relatives' remains as a violation and something they would fundamentally oppose. It must be emphasised that in expressing these views everyone has always acknowledged the situation in Tuam is absolutely unique and that it is absolutely essential that we excavate in Tuam but the legislation we are designing here is not just for Tuam. It is for other sites as well and it must be designed in such a way that takes account of different views of relatives with respect to differing sites.

It is also safe to assume no one would question the importance of according dignity to persons buried on the land. However, public health is also an important aspect of an intervention and public health considerations are one of the main reasons laws around the exhumation are strictly controlled. We cannot disregard the impact on the wider public, including local residents.

Regarding social and economic interests, I would like to stress cost is not a criterion set out in either the general scheme or the Bill. The Bill revised previous wording and replaced the term "economic impact" with "social and economic interests of the State".

I believe the amendments being proposed would fundamentally weaken the protection of constitutional rights within the legislation and, therefore, the legislation itself and it would not be in the ultimate public interest of those who are most centrally affected. As such, I cannot accept these amendments. I would note I am confident applying the public interest test set out in section 8(3) will in no way prevent the intervention we all want to see at the site in Tuam.