Institutional Burials Act 2022

PART 1 Preliminary and General

1. Short title and commencement

1. (1) This Act may be cited as the Institutional Burials Act 2022.

(2) This Act shall come into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be appointed for different purposes or different provisions.

2. Interpretation

2. (1) In this Act—

“Act of 1962” means the Coroners Act 1962;

“Act of 2000” means the Planning and Development Act 2000;

“Act of 2004” means the Commissions of Investigation Act 2004;

“Act of 2014” means the Companies Act 2014;

“Act of 2018” means the Data Protection Act 2018;

“adjudicator” has the meaning assigned to it by section 81(3);

“Advisory Board” has the meaning assigned to it by section 13(1);

“ancillary burial land” means relevant residential land—

(a) adjacent to principal burial land, and

(b) where burials, associated with burials that took place on that principal burial land, have taken place;

“ancillary land” means land that is not principal burial land or ancillary burial land and on which it is proposed to carry out related activities;

“applicable person” has the meaning assigned to it by section 52(1);

“coroner” means a coroner appointed under the Act of 1962;

“Databases” has the meaning assigned to it by section 63(1);

“Data Protection Regulation” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016[^1] on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);

“Director” has the meaning assigned to it by section 7(1);

“Director of FSI” means the officer who is for the time being in charge of FSI;

“dissolution day” shall be construed in accordance with section 98;

“DNA” means deoxyribonucleic acid;

“DNA (Historic Remains) Database” shall be construed in accordance with section 63(1)(a);

“DNA profile” means, subject to section 58, information comprising a set of identification characteristics of the DNA derived from an examination and analysis of a sample from a person that is clearly identifiable as relating to the person and that is capable of comparison with similar information derived from an examination and analysis of a sample from another person that is clearly identifiable as relating to that other person;

“DNA profile comparison” shall be construed in accordance with subsection (2);

“dwelling” means a building used for residential purposes and includes a building where a part of the building only is used for residential purposes;

“eligible family member” means a person who believes on reasonable grounds that—

(a) he or she is, in relation to a deceased person, a child, parent, sibling, half-sibling, grandparent, grandchild, aunt, uncle, niece or nephew (whether of the whole blood or the half-blood), grandniece or grandnephew of the person, and

(b) the deceased person is buried in the principal burial land or ancillary burial land in respect of which an Identification Programme is undertaken;

“elimination index” shall be construed in accordance with section 63(1)(a)(iii);

“enactment” has the same meaning as it has in the Interpretation Act 2005;

“familial link” means, between a relevant person or an applicable person, as the case may be, on the one hand and a person whose human remains have been recovered on the other hand, that those 2 persons are likely to be related to each other within the degree of relationship asserted by the relevant person or the applicable person;

“family members’ index” shall be construed in accordance with section 63(1)(a)(ii);

“final arrangements” means, in relation to recovered human remains or samples taken from those remains, final arrangements made in accordance with section 57;

“forensic excavation and recovery” means, in relation to principal burial land or ancillary burial land—

(a) the excavation of the land and recovery of human remains buried in the land, and

(b) the treatment of the remains so recovered,

in a manner sufficient to satisfy legal requirements regarding the use and storage of evidence in connection with the identification of human remains, including in criminal proceedings;

“forensic testing” means, in relation to human remains or a sample taken from those remains or from a living person—

(a) the examination and analysis of the remains or sample, or both, as the case may be,

(b) the carrying out, on the human remains or sample, of biochemical or other scientific tests and techniques that are used in connection with the identification of human remains or persons, and

(c) if possible, the generation of a DNA profile of a person from the sample taken from those remains or from that person;

“FSI” means Forensic Science Ireland of the Department of Justice;

“Identification Programme” shall be construed in accordance with section 46;

“institution” means a current or former residential facility (howsoever described) for adults or children, or both, in respect of which a public body has or had a relevant role;

“land” has the same meaning as it has in the Act of 2000;

“local authority” has the same meaning as it has in the Local Government Act 2001;

“market value” has the same meaning as it has in the Courts (Supplemental Provisions) Act 1961;

“member of staff of FSI” means an officer of the Minister for Justice who is assigned to perform duties in FSI;

“Minister” means the Minister for Children, Equality, Disability, Integration and Youth;

“nominee” means—

(a) in relation to a relevant person, a person who consents, in the prescribed form, to act as a nominee under section 49 and who has not withdrawn his or her consent under that section, and

(b) in relation to an applicable person, a person who consents to act as a nominee having been nominated by an applicable person at the time of giving a sample referred to in section 51 and who has not withdrawn his or her consent under section 53;

“occupier” means, in relation to land, a person, other than the owner, who is in or is entitled to be in lawful possession of the land;

“Office” has the meaning assigned to it by section 12(1);

“Oversight Committee” means the DNA Database System Oversight Committee;

“owner” means, in relation to land, a person who holds the highest freehold or leasehold estate or interest in the land;

“personal data” has the same meaning as it has in the Data Protection Regulation;

“Personal Information (Historic Remains) Database” shall be construed in accordance with section 63(1)(b);

“post-recovery analysis” has the meaning assigned to it by section 35(2);

“prescribe” means prescribe by regulations;

“principal burial land” means land—

(a) associated with an institution where burials have taken place—

(i) of persons who died while resident at the institution, and

(ii) which were manifestly inappropriate,

and

(b) which is the subject of an order made by the Government under section 7;

“processing” has the same meaning as it has in the Data Protection Regulation;

“public body” means—

(a) a Minister of the Government,

(b) the Director of the Comptroller and Auditor General,

(c) the Director of the Ombudsman established by section 2 of the Ombudsman Act 1980,

(d) a local authority, or

(e) a body (other than a company formed and registered under the Act of 2014 or an existing company within the meaning of that Act) established by or under any enactment;

“register” has the meaning assigned to it by section 45(1);

“related activities” means, in relation to ancillary land—

(a) using that land for the purpose of accessing principal burial land or ancillary burial land, or both, as the case may be, and

(b) carrying out such works on that land as are necessary for the purposes of facilitating relevant works on the principal burial land or ancillary burial land, or both, as the case may be;

“relevant Minister” shall be construed in accordance with subsection (4);

“relevant person” means a person who has been notified by a Director under section 48 or section 81(7) that he or she may participate in an Identification Programme and who has not withdrawn from participation under section 48;

“relevant residential land” means a portion of land in residential use which does not—

(a) extend further than 2 metres from the boundary of the land, and

(b) encroach on any part of a dwelling situate on the land;

“relevant role” shall be construed in accordance with subsection (3);

“relevant works” means any work on principal burial land or ancillary burial land, as the case may be, which is necessary for the performance of the functions of a Director;

“sample” means a sample taken under this Act and—

(a) in relation to a living person, means a biological sample taken from the person, and

(b) in relation to human remains, means a sample of biological material taken from those remains;

“special categories of personal data” has the same meaning as it has in the Act of 2018;

“unidentified human remains index” shall be construed in accordance with section 63(1)(a)(i).

(2) A reference to a DNA profile comparison is a reference to the comparison of—

(a) the DNA profile of a relevant person or an applicable person, as the case may be, entered in the family members’ index of the DNA (Historic Remains) Database and the DNA profile of a person entered on the human remains index of that Database for the purposes of ascertaining that there is a familial link, that can be indicated statistically, between the 2 persons, or

(b) the DNA profile of a person entered on the human remains index of the DNA (Historic Remains) Database with the DNA profile of another person entered in that human remains index of that Database for the purposes of ascertaining whether the DNA profiles relate to the same person.

(3) A public body shall be considered to have, or to have had, a relevant role in relation to an institution where the body performs or performed any functions in relation to the institution, including by—

(a) operating the institution,

(b) engaging another person to operate the institution on behalf of the body,

(c) inspecting or regulating the institution, or

(d) funding, in whole or in part, the institution.

(4) A relevant Minister means a Minister of the Government—

(a) who has or had a relevant role in relation to the institution,

(b) within whose remit lies or lay responsibility for another public body which has or had a relevant role in relation to the institution, or

(c) whom the Taoiseach considers is best placed, having regard to the remit of that Minister’s Department and the nature of the institution concerned, to be the relevant Minister for the purposes of this Act.

3. Expenses

3. The expenses incurred by the Minister and a relevant Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

4. Service of documents

4. (1) Subject to subsection (3), a notice or other document that is required or authorised by or under this Act to be served on or given to a person shall be addressed to the person concerned by name and may be so served on or given to the person in one of the following ways:

(a) by delivering it in person;

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address;

(d) by electronic means, in a case in which the person has given notice in writing to the person serving or giving the notice or document concerned of his or her consent to the notice or document (or notices or documents of a class to which the notice or document belongs) being served on, or given to, him or her in that manner.

(2) For the purposes of this section, a company formed and registered under the Act of 2014 or an existing company within the meaning of that Act shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.

(3) Where a notice or other document is required or authorised by or under this Act to be served on or given to the owner or occupier of land and the name of the owner or of the occupier cannot be ascertained by reasonable inquiry, it may be addressed to “the owner” or “the occupier”, as the case may require, without naming him, her or it.

5. Offences and penalties

5. (1) A person who, without lawful excuse, interferes with or obstructs a Director or his or her servant or agent in carrying out relevant works or related activities shall be guilty of an offence.

(2) A person who uses a sample taken or treated as having being taken, or a DNA profile generated, under this Act for a purpose other than a purpose authorised by this Act shall be guilty of an offence.

(3) A person who is guilty of an offence under this section or section 30(2) is liable on summary conviction to a class A fine or imprisonment for a period not exceeding 12 months, or both.

6. Regulations and orders

6. (1) An order or regulation under this Act may contain such incidental, supplementary and consequential provisions as the Minister, or in the case of a regulation under section 79, a relevant Minister, or in the case of an order under section 7, the Government, considers necessary or expedient for the purposes of the order or regulation, as the case may be.

(2) Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which the House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(3) Where the Government propose to make an order under section 7, a draft of the proposed order and a statement of the reasons for making the order shall be laid before each House of the Oireachtas and the order shall not be made unless a resolution approving the draft has been passed by each House of the Oireachtas.

PART 2

Chapter 1 Directors of Authorised Interventions

7. Government Order directing establishment of Office of Director of Authorised Intervention

7. (1) Subject to subsection (2), the Government may, from time to time, having considered a proposal made by a relevant Minister with the consent of the Minister for Public Expenditure and Reform, by order—

(a) direct the relevant Minister, in accordance with section 9, to establish an Office of Director of Authorised Intervention (in this Act referred to as a “Director”)—

(i) for such period as the relevant Minister may by order specify under that section, and

(ii) to perform the functions set out in paragraphs (a) to (k) of section 10 and any additional functions specified under paragraph (b),

(b) specify such additional functions (if any), set out in paragraph (l) of section 10, as they consider appropriate to be performed by the Director, and

(c) identify, by reference to a map appended to the order, the land in respect of which the Director may perform his or her functions.

(2) The Government may make an order under subsection (1) where—

(a) they are satisfied as to the matters set out in subsection (3),

(b) none of the circumstances set out in subsection (4) apply,

(c) they have not formed the view set out in subsection (5), and

(d) a resolution approving the draft order has been passed by each House of the Oireachtas in accordance with section 6(3).

(3) The Government may make an order under subsection (1) where they are satisfied that—

(a) on land associated with an institution, burials have taken place—

(i) of persons who died while resident at the institution, and

(ii) which, having regard to the matters specified in section 8(1), were manifestly inappropriate,

(b) works to be conducted on the land by the Director in the performance of his or her functions would not extend within the curtilage or 10 metres (whichever is the lesser) of any dwelling on the land, and

(c) having regard to the consideration specified in section 8(3), the making of the order is necessary for the purposes of safeguarding important objectives of general public interest.

(4) The Government shall not make an order under subsection (1) where—

(a) there is an ongoing investigation by the Garda Síochána into the circumstances surrounding human remains found on the land and the Government, having consulted with the Garda Commissioner, is of the view that the making of an order is premature pending the outcome of that investigation,

(b) there is an ongoing inquest by a coroner under the Act of 1962 into the circumstances surrounding human remains found on the land and the Government, having consulted with the coroner concerned, is of the view that the making of an order is premature pending the outcome of that inquest,

(c) the land—

(i) comprises, in whole or in part, a burial ground for the purposes of section 44 of the Local Government (Sanitary Services) Act 1948, or

(ii) could not be excavated without disturbing appropriately buried human remains that the Government consider, in all the circumstances, should not be recovered,

(d) recovery of human remains from the land would be unsafe or unreasonably difficult,

(e) evidence is available that the last known burial in the land was carried out before 1 January 1922, or

(f) to do so would obstruct or interfere with—

(i) an official or legal inquiry, investigation or process, or

(ii) proceedings pending or due before a court, a tribunal of inquiry established under the Tribunals of Inquiry (Evidence) Acts 1921 to 2011 or a commission of investigation established under the Act of 2004.