Minister O’Gorman publishes Institutional Burials Bill

• Legislation will provide a legal basis to allow recovery and identification of the children so inappropriately interred at the site of the former Mother and Baby Home in Tuam
• Bill strengthened and enhanced, with significant changes including the removal of the restriction on the jurisdiction of the coroner, the inclusion of a full programme of forensic excavation, recovery and analysis to international standards, and the expansion of family participation in DNA identification.
• A new Advisory Board will provide a role for families and former residents to guide and support a strengthened Director role.
• The Bill will begin debate in the Oireachtas at the start of March.

Minister for Children, Equality, Disability, Integration and Youth, Roderic O’Gorman, has today (22 February 2022) obtained Government approval for the publication of the Institutional Burials Bill 2022.

This crucial piece of legislation will provide a lawful basis for a forensic excavation, recovery and analysis of remains at the site of the former Mother and Baby Institution in Tuam, undertaken to international standards. It will allow DNA based identification to be undertaken to reunite families with the remains of their loved ones, and will ensure that the children there have the dignified burial that has been denied to them for so long.

In response to Pre-Legislative Scrutiny recommendations and concerns expressed by family representatives, the Minister has made a number of very significant changes to the Bill, including:

• The restriction on the jurisdiction of the coroner has been removed entirely
• The role of the Director has been strengthened to include forensic excavation, recovery and analysis of remains to support, where possible, establishing circumstances and cause of death, in line with international standards and best practice
• A new Advisory Board, chaired by a former coroner or someone with coronial expertise, will provide for scientific and family input and enhance transparency and accountability
• The Identification Programme has been greatly expanded to allow for the participation of grandparents, grandchildren, aunts, uncles, nephews and nieces
• A requirement for a pilot has been removed from the Identification Programme, allowing identification to be undertaken on each set of remains where possible

The legislation will allow the Government, by order, to direct an intervention at a site and to approve the appointment of a Director to oversee and manage a phased, step-by-step approach, comprising some or all of the following steps:

• Excavation of the site
• Recovery of human remains
• Post recovery analysis of remains to support, where possible, establishing circumstances and cause of death
• Identification of remains through DNA familial matching
• Return of remains to family members or respectful re-interment.

An Advisory Board, which will include coronial and scientific expertise, as well as family and former resident representatives, will be appointed to guide and support the Director in the role.

The legislation is not site specific and will also be able to cater for an intervention at other sites should similar situations arise.

In the context of Tuam, the available information suggests that the excavation, recovery and identification process will be extremely complex because of the number and age of the children interred there and the manner in which the remains are interred. While this intervention is therefore expected to be challenging, the legislation ensures that it will be carried out by professionals in line with international standards and best practice so as to maximise what is scientifically achievable in relation to the identification and return of remains.

Speaking on the Bill, Minister O’Gorman said:

The Bill will be formally published by the Oireachtas later this week and the Minister intends to begin second stage of this priority legislation in the Houses of the Oireachtas within the next two weeks.

ENDS

Key aspects of the Institutional Burials Bill

• The legislation is not site specific. The Government may order a Minister to establish a Director of Authorised Interventions for a limited time and for a particular site. The Director will have responsibility for the forensic excavation, recovery and analysis of remains at a site and will make appropriate final arrangements for the remains, which will include returning remains to family members, where possible. The Director will also manage any Identification Programme. The Director will provide regular updates to family members and other stakeholders on their work.
• An 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, family members and former residents. Consultation with the Advisory Board will be required at regular intervals, including at key decision points in the intervention.
• The excavation, recovery and analysis of remains will be undertaken at a forensic standard and by appropriately qualified individuals. A Director will 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 resident in the institution.
• A DNA identification programme may be undertaken to identify recovered remains. Samples will be taken from human remains and from relatives who participate in a programme. Forensic Science Ireland will undertake DNA testing to establish the likelihood of familial links and the Director will notify participants of the outcome. A programme will be open to participation from first and second order relatives (parents, children, siblings, half-siblings, grandparents, grandchildren, aunts, uncles, nephews and nieces).
• Remains will be returned to family members where this is possible. The Director can also make arrangements for the re-interment of the remains in manner that reflects the dignity of the deceased.
• A Director can acquire temporary rights of access to the land required to undertake an intervention, with an obligation to provide reasonable compensation and to restore land to its original condition and use upon completion.

Key Enhancements since Publication of the General Scheme of the Bill

The Minister has taken significant steps to address concerns raised by stakeholders and the recommendations arising from the Pre-Legislative Scrutiny Process. The key issues raised in that context included the restriction on the role of the coroner, the need to identify the remains of the deceased where possible and the importance of ongoing engagement with stakeholders. In response the Minister has:

• Removed the restriction on the jurisdiction of the coroner under the Coroners Acts 1962 to 2019. The published Bill contains no such restrictions.
• Provided for increased transparency and accountability. A Director will be required to provide regular updates on activity at the site and progress on the identification programme to survivors, family members and the public.
• A new Advisory Board, with scientific, family and former resident representation, will guide and support the Director role. It will be chaired by a former coroner or someone with coronial expertise.
• Strengthened the role of the Director. The Director’s functions now include post-recovery analysis of remains, which would allow determinations to be made in relation to the circumstances and causes of death if possible. A Director must 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 resident in the institution. All excavation, recovery and post-recovery analysis by the Director must be undertaken to a forensic-standard in accordance with international standards and best practice.
• Removed the requirement for a pilot Identification Programme. The legislation now permits an authorised Director to proceed with an Identification Programme and to make a decision in relation to continuation of a programme based on the advice of Forensic Science Ireland and consultation with the Advisory Board.
• Expanded participation in an Identification Programme to a much wider group of relatives. Participation has expanded from parents, children and siblings to include grandparents, grandchildren, aunts, uncles, nieces and nephews who believe their relative is buried at an intervention site.

Other changes the Minster has made to response to recommendations of the report of the pre-legislative scrutiny of the General Scheme include:

• An extension of the period covered by the legislation back to 1922.
• Amended terminology to reflect recommendations of scientific experts and the Oireachtas Committee.
• Addition of a review mechanism.
• Inclusion of residential land that does not extend within the curtilage or 20 metres (whichever is the lesser) of any dwelling on the land.
• Positive obligation on public bodies to disclose information, records and documents to the Director.
• Appointment of adjudicator by a Minister rather than a Director.

Expert Technical Group Findings on the Tuam site

An Expert Technical Group (ETG) published a technical report on the Tuam site in December 2017. The report highlights the unprecedented nature of the site and notes that there are no directly comparable national or international cases. It sets out the factors that make the situation in Tuam unique, including the ‘significant’ quantities of juvenile remains, the commingled or intermixed state and the position of the remains within subsurface chambers with limited access. It suggests that these factors need to be considered in terms of what is feasible at the Tuam site and the outcomes that can be reasonably expected.

The report outlined a number of options for responding to the situation. The Government decision to intervene at the site reflected the most extensive option of a full forensic-standard excavation and recovery from the total available area at the Tuam site. This legislation provides the legal basis to undertake this work in its entirety.

Institutional Burials Bill 2022

Plain English Version of Institutional Burials Bill 2022

Data Protection Impact Assessment - Institutional Burials Bill 2022