Proposed legislation for the excavation of mothers' and babies' remains at sites once run by religious orders "falls far, far short" of what was "promised" and contravenes human rights obligations, an Oireachtas committee heard on Wednesday.
The committee on children and equality, which is examining the Certain Institutional Burials (Authorised Interventions) Bill, heard consistent criticism of the Bill – particularly that plans “disapply” the requirement for inquests into deaths in the homes, and would exclude bereaved families from investigations.
"From a survivors' perspective this Bill falls far, far short not only of what was not only expected but promised," Susan Lohan, co-founder of the Adoption Rights Alliance told the committee. "The 'how' the children died has to be addressed. There is just no way of getting around that. It is not a matter of just removing children from one burial spot to another. It has to be investigated – how they died and who is responsible for that?"
The Bill provides for the establishment of an “agency” to oversee access to burial sites, exhumations, excavations, identification and re-interment of remains, and, reinstating sites to their previous condition. It says for the duration of the agency “the Coroner shall not have jurisdiction…in respect of bodies exhumed from that site”.
Ms Lohan called for two immediate changes – first to ensure each death is thoroughly investigated and second to ensure all burial sites are investigated. Currently the Bill is confined to unnamed “certain sites”.
Doireann Ansbro, head of legal policy with the Irish Council for Civil Liberties, said mass graves were recognised in international human rights law as “crime scenes”. The Irish State’s response to the burial sites of approximately 9,000 infants and children, and 200 mothers, at former mother and baby homes must be compliant with Article 2 of the European Convention of Human Rights, she said.
It obliges the State to conduct effective investigations and “engages the coronial system” she said. Bereaved families must be sought out by the State, she said.
Phil Scraton, Professor Emeritus, School of Law, Queen's University, said, "the State cannot duck" the obligation to hold inquests into each individual death.
“We don’t have any choice in this. These are Article 2 inquests. The current proposal disapplies the coroners’ jurisdictional power and blocks the right to inquests. But there can be no discretion in Article 2 inquests. It’s an obligation on the State.
“It is absolutely vital that an agency, if it is established, incorporates the coroner’s role within it.”
Alongside this, families "directly impacted by this institutionalised atrocity" must be consulted and heard. "The State's response must meet their right to truth, justice, acknowledgement and dignity," said Prof Scraton.
The current coronial system would require significant reform and additional coroners would have to be appointed to conduct these “multiple inquests”, he noted.
“It would be a major investment for the Irish State, there is no question about it. But justice does not come cheap when a State has over years administered injustice.”
Ms Ansbro said accountability "of individuals as well as institutions" would be a necessary part of the process. There were questions to be answered about why coroners had not investigated these deaths so far, and coroners at these inquests should have the power to compel witnesses to appear. The process could take many years, she added.