Oireachtas committee members have expressed concern following the decision to suspend the powers of the coroner during the proposed exhumation and identification process at Mother and Baby Home burial sites.
Minister for Children Roderic O’Gorman told the joint committee on children and equality on Tuesday that the coronial role would be suspended to avoid having “concurrent jurisdictions” between different State bodies while interventions take place.
The jurisdiction of local authorities over exhumations will also be suspended at this time, he said.
The minister was speaking as part of the committee’s pre-legislative scrutiny of the general scheme of the Certain Institutional Burials (Authorised Interventions) Bill. Under the bill, an agency will be established to carry out interventions at Mother and Baby Home burial sites.
Mr O’Gorman said the proposed bill would place the legal authority for excavation works and attempts to identify remains in the hands of an agency to be created “so there is a clear line of legal responsibility”.
He said the relationship between the coroner and the agency was being carefully examined to ensure the investigative obligations of the coronial service were “not undermined”.
Social Democrats TD Holly Cairns said it was “glaringly obvious” that coroners should be “integrally involved” at all burial sites given the lack of information regarding the cause of death and “abnormally high” death rates in mother and baby institutions.
The minister responded that legally it would be “inappropriate” for the coroner and local authority to also have jurisdiction while the agency was undertaking a DNA based identification programme.
Labour TD Sean Sherlock said he was "very doubtful" about the proposed legislation given the minister's failure to adequately explain why coroners' powers would be "disapplied" under the general scheme.
The minister responded it was not appropriate that “three bodies would have jurisdiction to share information” but that nothing in the legislation would interfere with the existing coronial jurisdiction.
Mr Sherlock also expressed concern that future Governments may not carry out exhumations because of the high financial cost to the State while Ms Cairns asked if the Government would only pursue future investigations if “public pressure” emerged.
"You'd have to forgive people for wondering if its by designed to do the bare minimum, to wait and see what the pressure is and just deal with Tuam, " she said.
The minister said there was “near consensus that it is vital to intervene at Tuam” but that legislation must allow for “reasonable discretion based on the circumstances of a given site” when the government of the day is deciding whether to intervene at a known burial site or not.
At some sites there is “a spectrum of sincerely and strongly held views” as to whether exhumations should take place, with some people expressing “deep distress and anxiety” that their loved ones final resting place would be disturbed, he added.
The minister also told the committee he would investigate the possible broadening of the DNA testing programme to include “aunts and uncles, nieces and nephews”, rather than just immediate family members. Mr O’Gorman said he had heard concerns that the proposed programme was “too narrowly constructed” but cautioned that while he would like to extend access, any changes would need to be balanced against “robustly protected privacy rights”.
He also underlined that the general scheme would not seal the agency’s records and that information would be made available through annual reports. The agency would also be answerable to the relevant Oireachtas committees, he said.
The only restrictions will be around personal information submitted as part of an identification programme which will be afforded normal legal protections, he added.
On access to land during exhumations, he noted that legislation must be cognisant of people’s rights to private property under the Irish Constitution and that investigations would be carried out in a “balanced” way, taking into the account the rights of all those involved.
Any blanket ban on conducting interventions at residential sites may have the “unintended consequence of sealing off extensive grounds of a single house entirely”, he said, adding that he was re-examining this aspect of the scheme.
Asked by Fianna Fáil Senator Erin McGreehan whether compulsory purchase orders may be used to access certain residential properties during exhumations, the minister said the agency would only take possession of land on a temporary basis and "potentially" pay compensation if necessary.