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Dáil Éireann DÁIL ÉIREANN AN COMHCHOISTE UM LEANAÍ, MÍCHUMAS, COMHIONANNAS AGUS LÁNPHÁIRTÍOCHT JOINT COMMITTEE ON CHILDREN, DISABILITY, EQUALITY AND INTE- GRATION Dé Máirt, 18 Bealtaine 2021 Tuesday, 18 May 2021 Tháinig an Comhchoiste le chéile ag 3.30 p.m. The Joint Committee met at 3.30 p.m. Comhaltaí a bhí i láthair / Members present: Teachtaí Dála / Deputies Seanadóirí / Senators Holly Cairns, Sharon Keogan, Alan Dillon, Erin McGreehan, Jennifer Murnane O’Connor, Lynn Ruane, John Paul Phelan, Mary Seery Kearney. Sean Sherlock, Mark Ward. Teachta / Deputy Kathleen Funchion sa Chathaoir / in the Chair. 1 JCDEI Business of Joint Committee Chairman: If members or witnesses participating remotely are experiencing any sound or technical issues, I ask them to let us know through the chat function. Apologies have been received from Senator O’Sullivan. Before we begin, I remind members who are participating remotely to keep their devices on mute until they are invited to speak. When they are speaking, I would ask that, where possible, they have their cameras switched on and be mindful that we are in public session. In addition, I remind members of the constitutional requirement that they must be physically present within the confines of the place where the Parliament has chosen to sit, namely, Leinster House, in order to participate in public meetings. I cannot permit a member to participate where he or she is not adhering to this constitutional requirement. Therefore, any member who attempts to participate in this meeting from outside the precincts will be refused. I advise members that Deputy Cairns was having IT difficulties and the IT department was contacted. Therefore, Deputy Cairns is in the committee room to take part in the meeting be- cause it was not able to resolve the IT issue for her to participate remotely. Pre-legislative Scrutiny of the General Scheme of the Certain Institutional Burials (Au- thorised Interventions) Bill (Resumed) Chairman: We are resuming pre-legislative scrutiny of the general scheme of the Certain Institutional Burials (Authorised Interventions) Bill with the Minister for Children, Equality, Disability, Integration and Youth, Deputy O’Gorman. The Minister is welcome. He is ad- dressing the committee from a meeting room in Kildare House. I also welcome the official -ac companying him today, Ms Dara Breathnach, who is a principal officer in the Department. The purpose of our meeting is to engage with the Department on the pre-legislative scrutiny process on the proposed legislation. I remind members that when putting their questions to the Minister they should adhere to the agenda item scheduled for this meeting. Before I invite the Minister to deliver his opening statement, I will advise him of the parlia- mentary privilege situation. He is protected by absolute privilege in respect of the presentation he makes to the committee. This means that he has an absolute defence against any defamation action for anything he says at the meeting. However, he is expected not to abuse this privilege and it is my duty as Chair to ensure it is not abused. Therefore, if his statements are potentially defamatory to an identifiable person or entity, he will be directed to discontinue his remarks. It is imperative that he comply with any such direction. I invite the Minister to deliver his opening statement, which will be followed by a question and answer session with members. Members will be asked to speak in the order they indicate. They might start indicating now. Minister for Children, Equality, Disability, Integration and Youth (Deputy Roderic O’Gorman): As the Chair said, I am joined by Ms Dara Breathnach from my Department. I thank the committee for the invitation to speak on the general scheme of the Certain Institu- tional Burials (Authorised Interventions) Bill. This legislation is vital to allow us to intervene at Tuam, where the remains of children were interred in a deeply shocking manner with no concern for their dignity, or that of their families. I am determined to prioritise this legislation 2 18 MAY 2021 to address this terrible failing. I am committed to approaching all aspects of the Government’s response to the commis- sion of investigation report into mother and baby homes in a way that is survivor-centred. I have engaged with survivors and their advocates and family members in relation to burials. I have paid close attention to the pre-legislative process that has been under way over the past number of weeks. I have listened carefully to the wide range of views that have been expressed on the incredibly sensitive issue of burials. I will continue to consider the issues we will raise and discuss today, and I look forward to receiving the pre-legislative scrutiny report from this committee. Today, I would like to take the opportunity to address some issues that have been raised in this process but I want to stress that I continue to consider the legislation. Today’s discussion, the committee’s pre-legislative scrutiny and my own considerations will all be taken into ac- count in the final draft I hope to bring before the Oireachtas soon. I would like to acknowledge the members of the committee, and the Chair, for the great sensitivity with which they all handled the public sessions the committee held. I thank the committee for allowing survivors’ personal experiences to be heard. I want to thank all those who gave evidence, particularly those survivors and family members. This is an incredibly emotional topic and their input will help strengthen the final draft of this legislation. A number of the witnesses raised concerns that the Government has too much discretion under the general scheme to decide whether to intervene at a particular site. When survivors and their advocates see a discretionary power in the State’s possession, they feel they can have little cause to trust that such discretion will be exercised in their favour. Given how badly the State failed them in the past, I completely understand that scepticism. I hope I can have the op- portunity to explain some of the policy choices that are indicated in this general scheme. The committee will be aware at this stage in the pre-legislative scrutiny process that there is near consensus that it is vital to intervene at the Tuam site. The nature of these burials pres- ent a set of circumstances where almost everyone agrees that humanitarian forensic recovery is the appropriate response. In relation to other known sites, there is a spectrum of sincerely and strongly held views as to whether infants and children should be exhumed, or their resting places marked but otherwise left undisturbed. I have received correspondence ranging from welcoming the proposed new laws to some correspondence expressing deep distress and anxi- ety that the legislation may lead to what people see as the desecration of the final resting place of their loved ones. This legislation must provide guidance to the Government of the day on the factors that must be considered when deciding on an intervention, and must allow for reason- able discretion based on the circumstances of a given site. This is what the provisions in heads 3 to 7 are designed to achieve. The discretion afforded will be exercised transparently and with the benefit of appropriate independent expertise and stakeholder input. The issue of compulsory access to dwellings has been raised during the committee’s hear- ings. Private property and the family home are robustly protected in the Irish Constitution. Any legislation passed must be proportionate and cognisant of those rights in order to be con- stitutional. The land access regime in the general scheme seeks to balance the public interest in conducting interventions with the rights of those involved. It has been suggested that a blanket ban on conducting interventions at residential sites may have the unintended consequence of sealing off extensive grounds of a single dwelling entirely. I have taken this on board and I am re-examining these provisions in the course of drafting. I hope to bring forward a more nu- anced position in due course, balancing the constitutional protection of property rights with the 3 JCDEI undoubtable significant public interest objective in interventions. Several witnesses have raised the issue of the specific expertise that will be available to the agency. In particular, some witnesses have criticised what they see as undue weight given to identification using DNA analysis to the exclusion of other relevant professional disciplines. It has always been intended that a multidisciplinary team would be required in order to provide the best possible chance of individualising and identifying remains at Tuam. The proposed legislation will enable an agency to enter into contract and procure expert services for exactly this purpose. It is not necessary to prescribe each professional discipline in legislation; this will ultimately be a matter for procurement and contract documentation. DNA is such a powerful tool in identification and this is why it is treated as sensitive personal information, including for the purposes of the general data protection regulation, GDPR. The GDPR requires that DNA processing by the State have a specific lawful basis beyond the consent of a person providing a sample. These legislative proposals will create that basis, as well as establishing extensive rules to guarantee the security of information and the privacy of persons who may wish to participate in an identification programme. Similar concerns do not arise with other relevant disciplines, such as osteoarchaeology or forensic anthropology. Forensic Science Ireland, FSI, are the national experts on DNA technology and, alongside the facilities at the FSI labs, the organisation has a very robust governance structure for the handling of DNA samples and the data generated from them.
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