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UN experts warn Burials Bill may 'create obstacles' to examining deaths at Mother & Baby Homes

The proposed legislation raises “serious concerns in relation to the State’s compliance with its international legal obligations”, the groups note.

A statuette at the grotto at the site of the former Bon Secours mother and baby home in Tuam, Galway (January 2021).
A statuette at the grotto at the site of the former Bon Secours mother and baby home in Tuam, Galway (January 2021).
Image: Alamy Stock Photo

EIGHT UN HUMAN rights bodies have said they are concerned that legislation proposed by the Irish Government may “create additional obstacles” to investigating deaths at mother and baby homes and related institutions.

The Burials Bill, which is currently making its way through the Oireachtas, would allow excavations, exhumations and re-interment of remains at the sites of former mother and baby homes.

The general scheme of the Burials Bill provides for the creation of an agency which would oversee the excavation, exhumation, identification and reburial of any remains found at sites where “manifestly inappropriate burials have taken place”.

The Bill would also permit excavations and exhumations from these sites and provide a basis for identification using DNA samples from unidentified bodies exhumed and from people who are or may be close relatives of those unidentified persons.

Survivors and legal experts have raised concerns about a number of aspects of the proposed legislation, including the role of the coroner and the possible exclusion of certain institutions.

However, the intervention of the UN bodies is a significant development.

The signatories of the letter state that the Burials Bill – as well as the planned Birth Information and Tracing Bill and the redress scheme being developed for survivors of mother and baby homes and county homes – “raise serious concerns in relation to the State’s compliance with its international legal obligations”.

In a letter submitted in recent days, they ask the Irish Government to “please explain why the proposed legislation on institutional burials dis-apply the Coroner’s powers, once a specialised Agency is established to undertake exhumations, identification and re-interment of remains at institutional sites”.

The bodies also ask the Government to “explain what legal protections and judicial oversight will be in place to ensure transparency in the process, and what further steps will be taken to ensure that the legislation complies with the State’s obligations under international law”.

The letter states: “We are concerned that this Bill may create additional obstacles to undertaking effective investigations into the deaths that occurred in the Mother and Baby homes and analogous institutions. The Bill proposes the establishment of an Agency for each burial site, which, if created, will have the power to undertake excavations and exhumations. However, the ad hoc Agency will only be established by a Government Minister if a list of specified conditions are met.

“We are concerned that these conditions may not effectively facilitate victims and relatives’ access to information about the circumstances of their relatives’ burials. The discretionary power eventually granted to Government officials in this matter is a source of concern and would fail to ensure an impartial, effective and transparent system and process of investigation.”

Numerous stakeholders in Ireland have called for the legislation to ensure that the jurisdiction of the coroner is applied to burial sites.

In its submission to the consultation process about the legislation earlier this year, the Irish Human Rights and Equality Commission (IHREC) said that in the absence of a coroner’s inquest to establish a cause of death, it’s unclear how the State intends to confirm how a person died and the manner of their burial.

In February, the IHREC recommended 25 changes to the Bill. Among the issues it has raised was the potential exclusion of sites prior to 1950 from exhumations, despite the Commission having investigated deaths going back to 1922.

The General Scheme of the Bill provides for an exception where “the lapse of time since the last known burial exceeds 70 years, in relation to the date on which the circumstances of the burials concerned became widely known”.

The IHREC’s submission noted: “The rationale for this particular cut-off date is unclear, and such a restriction could potentially exclude any burial sites prior to 1950. This is at odds with the Commission of Investigation into Mother and Baby Homes which examined the period of 1922 to 1998.”

Coroners Act

The letter from the UN bodies notes that, under the Coroners Act 1962, the Attorney General is “authorised to direct any coroner to hold an inquest, where it is considered that the holding of an inquest is considered ‘proper’”.

It continues: “The Coroner is under a statutory obligation to hold an inquest in the event of an unexplained or unnatural death.

“However, the new proportionality test proposed in this Bill would effectively prevent an investigation based on an economic impact, or the impact of such excavation on residents, “whose dwelling adjoins the site”.

“The views of the relatives of the deceased are only one of the reasons to be considered in applying the proportionality test.”

The signatories note that these “limitations raise concerns as to how the State will discharge its obligations under article two of the European Convention on Human Rights (the “right to life”), and articles two and six of the International Covenant on Civil and Political Rights (the provision of an effective legal remedy for any violation of human rights and the protection of people’s “inherent right to life”, respectively).

They add: “Given that the Attorney General is currently empowered under the existing Coroners Acts, 1962, to direct the holding of inquests, and in light of the Commission Report’s findings, please provide information on whether the Government will order inquests into the deaths and burials identified in this report.”

Legal experts have previously told The Journal there is “no doubt” that inquests are legally required in relation to the unexplained deaths in mother and baby homes particularly in light of the high mortality rates in the institutions and the fact that they were places of care.

The Commission’s final report confirmed that about 9,000 children died in the 18 institutions under investigation.

Questions for Ireland

The signatories of the letter ask Ireland to clarify a number of points, including how it will ensure that the Birth Information and Tracing Bill, Burials Bill and redress scheme will “comply with the State’s obligations under international law”.

The bodies also ask the Government to provide information on what steps it “will take to investigate and ensure accountability” in relation to vaccine and infant milk-trials carried out in mother and baby homes.

The groups also ask Ireland to explain how it will ensure survivors and relatives are granted access their personal records and data, including the rights of mothers “to access their full records” and the rights of relatives of those who were in mother and baby homes and related institutions “to obtain full records about relatives who died (in the institutions)”.

The letter is signed by the following UN members:

  • Working Group on Enforced or Involuntary Disappearances
  • Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material
  • Special Rapporteur on contemporary forms of slavery, including its causes and consequences
  • Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
  • Special Rapporteur on trafficking in persons, especially women and children
  • Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence
  • Special Rapporteur on violence against women, its causes and consequences
  • Working Group on discrimination against women and girls

Speaking about the significance of the letter, human rights lawyer Dr Maeve O’Rourke told The Journal the intervention “reinforces arguments that survivors, adopted people and relatives have been making for years”.

She noted that the Attorney General “should by now have directed inquests under existing legislation, that access to personal records needs to be unqualified and immediate, and that the redress scheme must respond to the whole range of human rights abuses suffered by people in the institutions and family separation system”.

“The UN experts also call for a review of the seriously inadequate procedures of the Mother and Baby Homes Commission of Investigation,” O’Rourke added.

‘Comprehensive and sincere response’

Responding to the letter, Foreign Affairs Minister Simon Coveney defended the Irish Government’s proposed legislation.

In a statement, Coveney said the Burials Bill “will provide a sound legal basis for exhumation, identification and dignified reburial of the infants at the Tuam site”.

“It will also enable intervention at other sites should similar circumstances come to light. The aim of the legislation is to offer a robust pathway which is grounded in humanitarian forensic action and which does not constrain at the outset the potential outcomes which may be achieved.

“The Irish Government is committed to a comprehensive and sincere response to the Tuam site which, inlight of the unique and uncertain situation which exists, can only be progressed in a step-by-step, phased manner based on the real time technical and forensic information emerging from the intervention.

“This comprehensive response requires the proposed enabling legislation which guarantees intervention and dignified reburial. The draft legislation has undergone extensive parliamentary Pre-Legislative Scrutiny.”

Responding to concerns raised in the letter about inquests, Coveney stated: “In particular, you raise a concern that, while the coroner has a statutory obligation to hold an inquest in the event of an unexplained or unnatural death, the General Scheme cites certain conditions and proportionality considerations which govern intervention.

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“In this regard, it is important to clarify that the proposed legislation is intended to complement the Coroners Act 1962 by providing a mechanism for guaranteed intervention at the Tuam site.

“It does not remove the obligation on the coroner to hold an inquest as may be required under the 1962 Act and, where the remains show evidence of violent or unnatural death, the Director overseeing the intervention must immediately inform the coroner within whose district the remains were exhumed and An Garda Síochána. As such, the statutory obligations of the coroner would continue to apply in these circumstances.”

In relation to the Birth Information and Tracing legislation, Coveney said the “clear objective” of this Bill is to “provide important origins information to adopted persons and others, to vindicate their identity rights”.

“The legislation is essential for adopted persons to achieve full release of birth certificates and birth information in all cases. Mothers will already have access to the birth certificate and to their own identity information. It is different information they are seeking, namely records relating to themselves and, in some cases, current information on their adopted child,” he added.

Speaking about the right of relatives to access the records of a family member who died in a mother and baby or county home, Coveney said the Government is “very committed to exploring positive action in this area”.

He noted that Children’s Minister Roderic O’Gorman “has sought detailed legal advice on this matter, with a view to being able to address this issue in the legislation if possible, while recognising that the fundamental objective of the legislation is to support relevant persons to access origins information”.

“This is a complex and multi-layered issue as recognised by the representative from the Irish Data Protection Commission who appeared before the Parliamentary Committee tasked with scrutinising the legislation. Nonetheless, the Government is absolutely committed to exploring what can be achieved in this legislation in relation to supporting access to information for the child of a deceased relevant person and for the next of kin in specified circumstances.”

Ireland’s human rights record is today being reviewed by the UN Human Rights Council’s Universal Periodic Review (UPR) Working Group.

Speaking at the hearing this afternoon, O’Gorman said the Government plans to publish in “the near future” an action plan in response to the Mother and Baby Homes Commission. He said it will focus on the “priority needs and concerns of survivors and their families”.

The publication of the details of the redress scheme has been delayed but is expected to happen in the coming weeks, prior to opening for applications next year.

About the author:

Órla Ryan

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