(d) where the person who gave a sample does not die or become incapacitated as referred to in paragraph (c) of that subsection and he or she, having made an application to participate in the Identification Programme under section 48
\n
(1), is notified by the Director under that section of his or her determination that the person may not participate in the Programme— (i) at the expiration of the time period allowed for an appeal under section 81 against that determination, or (ii) where an appeal has been made under section 81 against the determination and that determination is confirmed on appeal, on that confirmation.
\n
Chapter 4
\n
Final arrangements Final arrangements for recovered human remains 57. (1) A Director shall make final arrangements for human remains recovered from principal burial land and, where applicable, ancillary burial land, in accordance with this Act— (a) where the Director is given the function of carrying out an Identification Programme in an order made under section 7 and, subject to paragraph (c), in accordance with a decision made under section 46
\n
(6)the Programme has continued— (i) in the case of remains in respect of which a familial link has been established, as soon as practicable after the link has been established, or (ii) where it has not been possible to establish a familial link, as soon as practicable after it becomes known that it is not possible to establish the link, (b) where the Director is given the function and a decision is made under section 46
\n
(6)not to continue with an Identification Programme, as soon as practicable after the making of that decision, (c) where the Director is given the function and subsequently a decision is made under section 47
\n
(1), as soon as practicable after the remainder of the Identification Programme is completed, and (d) where the Director is not given that function, as soon as practicable after the completion of post-recovery analysis.
\n
(2)Where subsection (1)(a)(i) applies, a Director shall— (a) at the request of the highest ranking family member who is alive and not incapacitated, either return the human remains to him or her or arrange for the re-interment of the remains at a place selected by that highest ranking family member, (b) where there is no family member alive or not incapacitated, make final arrangements for the human remains in accordance with the stated wishes of the highest ranking family member who stated such wishes, (c) in respect of an applicable person where there is, in respect of the deceased person from whose human remains a DNA profile was the subject of a DNA profile comparison (with the DNA profile of the applicable person), no other family member, in accordance with the stated wishes of the applicable person, or (d) where paragraph (b) or (c) applies but there are no stated wishes as referred to in those paragraphs, make such final arrangements by providing for the re-interment of the remains, including by selecting the place for, and manner of, such re-interment, as he or she considers most appropriate having regard to— (i) the dignity of the deceased, (ii) any known religious practices of the deceased, and (iii) the condition of the remains.
\n
(3)Subject to subsection (4), where paragraph (a)(ii), (b), (c) or (d) of subsection (1) applies, a Director shall make such final arrangements for the human remains concerned as the Director considers appropriate having regard to— (a) the wishes (if any) of persons who consider themselves, with reasonable cause, to be family members of persons believed to have been buried at the principal burial land concerned or any ancillary burial land, (b) the dignity of the deceased, and (c) the condition of the remains.
\n
(4)Where subsection (1)(a)(ii) applies, final arrangements for the human remains concerned shall not include cremation.
\n
(5)In this section, “family member” means— (a) a person who is a spouse or civil partner in respect of whom a notification referred to in section 42
\n
(1)(d) has been entered in a register, (b) an eligible family member in respect of whom a notification referred to in section 42
\n
(1)(b)(iii) has been entered in a register and who is not a relevant person, and (c) a relevant person.
\n
(6)In this section, “highest ranking family member” shall be construed as meaning a family member taken in the following order: spouse, civil partner, parent, child, sibling, half-sibling, grandparent, grandchild, aunt and uncle, niece and nephew (whether of the whole blood or the half-blood), grandniece and grandnephew.
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Chapter 5
\n
Samples, generating DNA profiles and DNA profile comparison Generation of more than one DNA profile from a sample 58. Where a sample is taken from human remains, a relevant person, an applicable person or from a person for elimination purposes under this Act, more than one DNA profile may be generated from the sample for the purposes of providing information comprising a particular set of identification characteristics of the DNA.
\n
Taking of sample from human remains and generating DNA profile 59. (1) The Director shall, where he or she has made a decision under subsection (6) of section 46 to continue with an Identification Programme arrange— (a) where a sample has not already been taken from human remains under subsection (3) of that section, for the taking of a sample from the human remains by an authorised person, and (b) for samples so taken to be delivered to FSI.
\n
(2)FSI shall forensically test samples delivered to it under subsection (1) and, in respect of each sample of human remains tested, enter the DNA profile generated from that testing in the unidentified human remains index.
\n
(3)A second or further sample may be taken from human remains under this section where the circumstances in section 62 apply.
\n
(4)Where the Director has made a decision under subsection (6) of section 46 to continue with an Identification Programme— (a) a sample taken under that section may be regarded as a sample taken from the human remains under this section, and (b) the forensic testing carried out in accordance with that section shall be taken to be forensic testing carried out under this section.
\n
Taking of sample from relevant person and generating DNA profile 60. (1) A sample given by a relevant person under this section may only be forensically tested, and the DNA profile of the person generated from that testing included in the family members’ index, for the purpose of a DNA profile comparison under this Act.
\n
(2)An authorised person shall, before taking a sample from a relevant person under this section, inform him or her— (a) that the sample is to be taken under this section and only with his or her consent, and (b) where a sample has already been taken from the person under this section and a second or further sample is required, the reason, in accordance with section 62 , that a second or further sample is sought and that such sample can only be taken from him or her with his or her consent.
\n
(3)A sample shall be taken by an authorised person in the form of a non-intimate sample.
\n
(4)A sample may be taken from a relevant person by an authorised person at the office of the Director, at any other place nominated by the Director or, with the agreement of the authorised person, at a place designated by the relevant person concerned.
\n
(5)The Director shall make the necessary arrangements for samples taken under this section to be delivered to FSI.
\n
(6)FSI shall forensically test samples delivered to it under subsection (5) and, in respect of each sample taken from a relevant person, enter the DNA profile generated from that testing in the family members’ index.
\n
(7)Where a relevant person does not consent to the taking of a sample or of a second or further sample under this section, the person shall be informed that, in accordance with section 74
\n
(2), he or she is taken to have withdrawn his or her consent to participate in the Identification Programme.
\n
Taking of sample for elimination purposes and generating DNA profile 61. (1) A Director or the Director of FSI, as the case may be, may request a sample under this section only where he or she considers the taking of the sample and the generation of a DNA profile from the sample is reasonably necessary for the purpose of ascertaining whether or not contamination of a sample referred to in section 52 or taken under section 59 or 60 occurred.
\n
(2)A member of staff of a Director and a consultant, advisor or other person referred to in section 19
\n
(1)shall, when requested to do so by a Director, provide a sample to an authorised person for the purpose of generating a DNA profile of the person to be entered into the elimination index of the DNA (Historic Remains) Database.
\n
(3)A sample may be taken under this section by an authorised person for the purpose of generating a DNA profile to be entered into the elimination index of the DNA (Historic Remains) Database from a member of staff of FSI or from a person who took a sample referred to in section 52 where the member of staff or person concerned consents in writing to having that sample taken.
\n
(4)A sample shall be taken by an authorised person in the form of a non-intimate sample.
\n
(5)An authorised person shall, before taking a sample from a person under this section— (a) inform him or her— (i) that the sample is to be taken under this section, (ii) where a sample has already been taken from the person under this section and a second or further sample is required, of the reason, in accordance with section 62 , that a second or further sample is sought, (iii) that the sample will be forensically tested and any DNA profile generated from that testing in respect of the person will be entered in the elimination index and the purpose of such an entry, (iv) that, subject to any regulations made under section 79 , a sample taken from the person will be destroyed, any DNA profile generated from the sample and any related information will be deleted in accordance with
\n
Chapter 8
\n
, and (b) give the person such other information (if any) relating to the giving of the sample as may be prescribed under section 80 .
\n
(6)A Director shall make the necessary arrangements for samples taken under this section to be delivered to FSI.
\n
(7)FSI shall forensically test samples delivered to it under subsection (6) and, in respect of each sample taken from a person, enter the DNA profile generated from that testing in the elimination index.
\n
(8)In this section and in section 62 , “contamination”, means, in relation to a sample— (a) the inadvertent incorporation into the sample of the DNA of a person during— (i) his or her attendance at principal burial land or ancillary burial land, participation in the forensic excavation and recovery of human remains from that land or during post-recovery analysis, (ii) the taking of a sample, (iii) the transportation or storage of a sample, or (iv) the forensic testing of a sample, and (b) in the case of a sample taken from human remains, includes the incorporation into the sample of a sample of other biological material owing to the environmental conditions in which the human remains were recovered.
\n
Re-taking of sample 62. (1) A second or further sample may be taken from human remains under section 46 or 59 or from a person under section 60 or 61 where a sample has already been taken from the human remains or person and— (a) the sample taken proves to be insufficient, (b) the sample taken was inadequately labelled, or (c) there is another good reason the Director, on the advice of the Director of FSI, considers it necessary that a second or further sample be taken from the person or human remains, as the case may be.
\n
(2)In this section— “inadequately labelled”, in relation to a sample, means incorrectly labelled or labelled in such a manner that it is not possible to identify with certainty the person from whom, or the human remains from which, the sample was taken; “insufficient” means, in relation to a sample, subject to subsection (3), insufficient in quantity or quality for the purpose of generating a DNA profile.
\n
(3)A reference to a sample proving insufficient includes a reference to where the sample has become unavailable or insufficient for the purposes of generating a DNA profile as a consequence of— (a) the loss, destruction or contamination of the whole or any part of the sample, (b) any damage to the whole or a part of the sample, or (c) the use of the whole or a part of the sample which produced no results or results which have to be regarded, in the circumstances, as unreliable.
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Chapter 6
\n
Databases: DNA (Historic Remains) Database and Personal Information (Historic Remains) Database Establishment of DNA (Historic Remains) Database and Personal Information (Historic Remains) Database 63. (1) FSI shall, as soon as practicable after receipt of a notification under section 46
\n
(7), that an Identification Programme is continuing, establish, maintain and operate the following 2 databases (in this Act referred to as the “Databases”) in respect of the principal burial land concerned and any related ancillary burial land— (a) a DNA (Historic Remains) Database containing the following indexes of DNA profiles— (i) an unidentified human remains index, containing the DNA profiles of persons generated from samples taken, or treated as having been taken, under section 59 , from human remains recovered from the land concerned and entered in that index, (ii) a family members’ index, containing the DNA profiles of persons generated from samples provided, or treated as having been provided, by relevant persons under section 60 , or generated from samples, referred to in section 51 , provided by applicable persons, and (iii) an elimination index, containing the DNA profiles of persons generated from samples provided under section 61 , and (b) a Personal Information (Historic Remains) Database containing— (i) the information that may be used to identify a person from whose sample a DNA profile is generated and entered in the family members’ index and the elimination index, (ii) the information that may be used to describe a person from whose sample a DNA profile is generated and entered in the unidentified human remains index, and (iii) such other information as the Director of FSI considers necessary having regard to his or her function under section 64
\n
(1)(g).
\n
(2)Where more than one DNA profile is generated from a sample (as referred to in section 58 ) FSI shall store each DNA profile generated from the sample of a person or taken from human remains with the DNA profile generated from the sample of another person or from human remains which generates information comprising the same particular set of identification characteristics of another person in a separate section within the DNA (Historic Remains) Database.
\n
(3)The Databases may only be used for the purposes of— (a) DNA profile comparison, (b) conducting permitted searching under section 65 , (c) providing information that is required by a Director, (d) the facilitation of the performance by the Oversight Committee of its functions under
\n
Chapter 7
\n
in relation to the management and operation of the Databases, (e) the compilation of statistics and related analysis of an Identification Programme, or (f) any other related purpose that may be specified from time to time by the Director of FSI.
\n
Functions of Director of FSI 64. (1) The Director of FSI shall perform, or cause to be performed, the following functions under this Act: (a) the forensic testing of samples taken under this Act; (b) the entry of DNA profiles generated from forensic testing in the appropriate index of a DNA (Historic Remains) Database and entry of related information in a Personal Information (Historic Remains) Database; (c) permitted searching of the Databases in accordance with section 65 ; (d) DNA profile comparison and furnishing the results of such comparison to a Director; (e) providing information that is required by a Director for the performance of his or her functions including statistics and related analysis of an Identification Programme; (f) in accordance with this Part, the destruction of samples, the deletion of DNA profiles from the DNA (Historic Remains) Database and the deletion of any related information in a Personal Information (Historic Remains) Database; (g) recording information required for the proper operation of the Databases including but not limited to— (i) information relating to the taking of samples, (ii) when samples are submitted to FSI, (iii) when DNA profiles are generated from samples, and (iv) requests for destruction of samples or return of samples to a Director and the deletion of a DNA profile and related information; (h) maintain the security of the DNA profiles and information in the Databases; (i) as considered appropriate, the development of the Databases taking account of any new technology; (j) the storage of samples sent to FSI under this Part.
\n
(2)Subject to subsection (3), the Director of FSI may make such arrangements, including contractual arrangements, as he or she considers appropriate with such other laboratories (whether within or outside the State) for the performance of the function referred to in subsection (1)(a) or the performance of that function in any particular case or class of cases.
\n
(3)Arrangements under subsection (2) shall be subject to compliance with the requirements of this Act and such terms and conditions as may be agreed.
\n
Permitted searching of Databases 65. (1) The Databases may only be searched— (a) by the Director of FSI or a member of the staff of FSI, and (b) in accordance with this section.
\n
(2)Where more than one DNA profile has been generated from a sample in accordance with section 58 , and having regard to section 63
\n
(2), a reference in this section to comparing a DNA profile with another DNA profile shall be construed as a reference to comparing DNA profiles in the same section within the DNA (Historic Remains) Database which provide information comprising the same set of identification characteristics of the DNA.
\n
(3)A DNA profile entered in the family members’ index of the DNA (Historic Remains) Database may— (a) for the purpose of a DNA profile comparison, be compared with— (i) another DNA profile entered in that index, or (ii) a DNA profile entered in the unidentified human remains index of that Database, or (b) for the purposes of elimination, be compared with the elimination index of that Database.
\n
(4)A DNA profile entered in the unidentified human remains index of the DNA (Historic Remains) Database may— (a) for the purpose of a DNA profile comparison, be compared with— (i) another DNA profile entered in that index, or (ii) a DNA profile entered in the family members’ index of that Database, or (b) for the purposes of elimination, be compared with a DNA profile entered in the elimination index of that Database.
\n
(5)A DNA profile entered in the elimination index of the DNA (Historic Remains) Database may— (a) for the purposes of elimination, be compared with a DNA profile entered in— (i) the unidentified human remains index of that Database, (ii) the family members’ index of that Database, and (b) for the purposes of identifying any duplication of entries, be compared with another DNA profile entered in the elimination index.
\n
(6)The Databases may be searched for the purposes of— (a) performing the functions of the Director of FSI, and (b) checking the operation of those Databases.
\n
Chapter 7
\n
Oversight Committee and review of operation of Databases Request that DNA Database System Oversight Committee perform functions under Act 66. (1) Where the functions of a Director specified in an order under section 7 include carrying out an Identification Programme and the relevant Minister has received a notification under section 46
\n
(7)that the Programme is continuing, the relevant Minister shall, with the prior consent of the Minister for Justice, and after the Minister for Justice has consulted with the DNA Database System Oversight Committee (in this Act referred to as the “Oversight Committee”), direct the Oversight Committee in writing to oversee the management and operation of the Databases for the purposes of maintaining the integrity and security of the Databases and the Oversight Committee shall, for those purposes, satisfy itself that the provisions of this Act in relation to the Databases are being complied with.
\n
(2)Where the Oversight Committee is, pursuant to a direction under subsection (1), overseeing the management and operation of the Databases it shall meet and be known as the Historic Remains Databases Oversight Committee.
\n
(3)Subject to this Chapter, the Oversight Committee shall be independent in the performance of its functions under this Act.
\n
(4)In performing functions under this Act— (a) the chairperson of the Oversight Committee other than a serving judge, and the ordinary members of the Committee other than the Director of FSI and the person nominated for appointment by the Data Protection Commission, shall be paid such remuneration (if any) as the relevant Minister may, with the consent of the Minister for Public Expenditure and Reform, from time to time determine, and (b) the chairperson and ordinary members of the Oversight Committee shall be paid such allowances for expenses as the relevant Minister may, with the consent of the Minister for Public Expenditure and Reform, from time to time determine.
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Functions of Oversight Committee 67. (1) Where directed to do so under section 66 , the Oversight Committee shall oversee the management and operation of the Databases referred to in the direction for the purposes of maintaining the integrity and security of the Databases, and shall, for those purposes, satisfy itself that the provisions of this Act in relation to the Databases are being complied with.
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(2)Without prejudice to the generality of subsection (1), the Oversight Committee shall oversee— (a) the arrangements employed by the Director of FSI in relation to the receipt, handling, transmission and storage of samples taken under this Act for the purpose of generating DNA profiles for entry in the DNA (Historic Remains) Database, (b) the procedures employed by the Director of FSI in relation to the generation of DNA profiles from the samples taken under this Act, (c) the quality control and quality assurance of procedures referred to in paragraph (b) to ensure that the procedures comply with international best practice, (d) the measures employed by the Director of FSI to ensure that the Databases are not improperly accessed by any person, that the DNA profiles entered in the DNA (Historic Remains) Database and information entered in the Personal Information (Historic Remains) Database are used only for the purposes permitted by this Act and that the profiles and information are not improperly disclosed to any person, (e) the means by which the results of searches of the DNA (Historic Remains) Database are reported by the Director of FSI to the Director, and (f) the practices and procedures employed by the Director of FSI to ensure that, in accordance with the requirements of this Act, samples taken under this Act for the purpose of generating DNA profiles are destroyed and the DNA profiles generated from those samples and related information are deleted.
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(3)The Oversight Committee may, in the performance of its functions under this Act, make such recommendations as it considers appropriate in relation to the management and operation of the Databases to the relevant Minister, the Minister for Justice and the Director.
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Meetings and Procedures 68. (1) The Oversight Committee shall, while performing functions under this Act, hold such and so many meetings as may be necessary for the performance of those functions and may make such arrangements for the conduct of its meetings and business (including the establishment of subcommittees and fixing of a quorum for meetings) as it considers appropriate.
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(2)The Oversight Committee shall regulate its own procedure by rules or otherwise.
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(3)At a meeting of the Committee— (a) the chairperson of the Committee shall, if present, be the chairperson of the meeting, or (b) if and for so long as the chairperson of the Committee is not present or if that office is vacant, the members of the Committee who are present shall choose one of their number to be chairperson of the meeting.
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Administrative support and engagement of consultants or advisers 69. (1) The relevant Minister shall, with the consent of the Minister for Public Expenditure and Reform, provide the Oversight Committee with such funds, facilities and services (including secretarial services) as the relevant Minister, following consultation with the chairperson of the Committee, considers appropriate for the performance by the Committee of its functions under this Act.
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(2)The Oversight Committee may, with the approval of the relevant Minister, engage such consultants or advisers with scientific or technical expertise as the Committee considers necessary for the performance of its functions under this Act.
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Cooperation with Oversight Committee 70. (1) The Director of FSI and the other members of the staff of FSI shall cooperate with the Oversight Committee in relation to the performance of its functions under this Act and shall, for that purpose, furnish to the Committee such information as the Committee may request and which, in the opinion of the Committee, is required for the performance of its functions.
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(2)The Oversight Committee may, whenever it considers it necessary for the performance of its functions under this Act, request a Director to meet with the Committee or to furnish information to the Committee.
\n
(3)A Director shall comply with a request made to him or her under subsection(2).
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Review and report by Oversight Committee 71. (1) Subject to subsection (2), the Oversight Committee may, and if so requested by the relevant Minister where he or she has consulted with the Minister for Justice, shall, review any matter relating to the management and operation of the Databases, prepare a report in writing on the review and, as soon as practicable after the report is prepared, furnish a copy of the report to the relevant Minister, the Minister for Justice and the Director.
\n
(2)A report under subsection (1) shall not contain confidential information (within the meaning of section 30
\n
(5)).
\n
(3)Subject to subsections (4) and (5), the relevant Minister concerned shall, as soon as practicable after receiving a report under subsection (1), cause a copy of the report— (a) to be laid before each House of the Oireachtas, and (b) to be published in such manner as the relevant Minister considers appropriate.
\n
(4)The relevant Minister concerned may, when laying the report before each House of the Oireachtas and publishing the report under subsection (2), omit any matter from the report where he or she is of opinion that the disclosure of that matter would be prejudicial to the security of the Databases.
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(5)If a matter is, in accordance with subsection (4), omitted from a report laid and published under subsection (3), a statement to that effect shall be attached to the report when it is so laid and published.
\n
Final report of Oversight Committee 72. (1) The Oversight Committee shall prepare a final report on the performance of its functions pursuant to a direction under section 66
\n
(2)within 6 months of the conclusion of the Identification Programme to which the direction relates and shall, as soon as practicable after the report is prepared, furnish a copy of the report to the relevant Minister, the Minister for Justice and the Director.
\n
(2)A final report prepared under s ubsection (1) shall not contain confidential information (within the meaning of section 30
\n
(5)).
\n
(3)The relevant Minister concerned shall, as soon as practicable after receiving a report under subsection (1), cause a copy of it to be laid before each House of the Oireachtas and published in such manner as the Minister considers appropriate.
\n
Chapter 8
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Destruction of samples, deletion of DNA profiles and information held on Databases and destruction of Databases Destruction of samples, deletion of DNA profiles and related information at request of Director 73. (1) Subject to subsection (2), FSI shall, at the request of a Director, destroy a sample, delete a DNA profile or delete related information in accordance with this Chapter.
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(2)Subsection (1) shall not operate to require FSI to delete related information that it needs to retain in order to demonstrate that it has complied with the requirements of this Part.
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Destruction of samples, deletion of DNA profiles and related information: relevant person withdraws consent 74. (1) Where a relevant person withdraws from participation in an Identification Programme by notice in writing under section 48
\n
(6), the Director shall, as soon as practicable after receipt of that notice — (a) where a sample has been taken from, or treated as having been taken from, the person under section 60 and— (i) the sample has not been delivered to FSI, destroy the sample, or (ii) the sample has been delivered to FSI, request that FSI— (I) destroy the sample and, if a DNA profile of the person has been generated from the sample, delete that DNA profile from the family members’ index, and (II) delete any related information, (b) return all records, held by the Director, which relate to the person to that person and if applicable, confirm in writing the steps taken under paragraph (a), and (c) inform each nominee of the person of the withdrawal and return any record, held by the Director, associated with the nominee to that nominee.
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(2)Where a relevant person does not consent to the giving of a sample or a second or further sample under section 60 , he or she shall be taken to have withdrawn his or her consent to participate in an Identification Programme and paragraphs (a) to (c) of subsection (1) shall apply in like manner as soon as practicable after such refusal as they apply to a withdrawal of consent under section 48
\n
(6).
\n
Destruction of samples taken from relevant persons, deletion of related DNA profiles and related information 75. (1) Subject to any regulations made under section 79 , FSI shall— (a) destroy a sample taken from a relevant person under section 60 not later than the expiration of 3 months after the date on which the following first occurs— (i) there has been a notification to the relevant person or their nominee under section 50
\n
(3)(a) or section 50
\n
(4), as the case may be, that a familial link has been established, (ii) that part of the Identification Programme set out in paragraphs (a) to (c) of section 46
\n
(2)is completed in respect of principal burial land and ancillary burial land, or (iii) the Director makes a decision, under section 47
\n
(1),that the part of the Identification Programme referred to in subparagraphs (ii) and (iii) of section 46
\n
(2)(c) should cease, (b) delete a DNA profile generated from a sample taken from a relevant person under section 60 not later than the expiration of 3 months after the date on which the following first occurs— (i) that part of the Identification Programme set out in paragraphs (a) to (c) of section 46
\n
(2)is completed in respect of principal burial land and ancillary burial land, or (ii) the Director makes a decision, under section 47
\n
(1), that the part of the Identification Programme referred to in subparagraphs (ii) and (iii) of section 46
\n
(2)(c) should cease, and (c) as soon as practicable after that part of the Identification Programme set out in paragraphs (a) to (c) of section 46
\n
(2)is completed in respect of principal burial land and ancillary burial land, delete any related information.
\n
(2)FSI shall notify a Director when a sample is destroyed and a DNA profile and related information are deleted under subsection (1).
\n
(3)On receipt of a notification under subsection (2), a Director shall— (a) return all records, held by the Director, which relate to the relevant person to that person and if applicable, confirm in writing the steps taken under subsection (1), and (b) inform each nominee of the person of the completion of his or her involvement in the Programme and return any record, held by the Director, associated with the nominee to that nominee.
\n
Destruction of samples taken from applicable persons, deletion of related DNA profiles and related information 76. (1) Subject to any regulations made under section 79 , FSI shall— (a) destroy a sample taken from an applicable person not later than the expiration of 3 months after the date on which the following first occurs— (i) there has been a notification to the nominee of the applicable person under section 54 that a familial link has been established, (ii) that part of the Identification Programme set out in paragraphs (a) to (c) of section 46
\n
(2)is completed in respect of principal burial land and ancillary burial land, or (iii) the Director makes a decision, under section 47
\n
(1),that the part of the Identification Programme referred to in subparagraphs (ii) and (iii) of section 46
\n
(2)(c) should cease, (b) delete a DNA profile generated from a sample taken from an applicable person not later than the expiration of 3 months after the date on which the following first occurs— (i) that part of the Identification Programme set out in paragraphs (a) to (c) of section 46
\n
(2)is completed in respect of principal burial land and ancillary burial land, or (ii) the Director makes a decision, under section 47
\n
(1), that the part of the Identification Programme referred to in subparagraphs (ii) and (iii) of section 46
\n
(2)(c) should cease, and (c) as soon as practicable after that part of the Identification Programme set out in paragraphs (a) to (c) of section 46
\n
(2)is completed in respect of principal burial land and ancillary burial land, delete any related information.
\n
(2)FSI shall notify a Director when a sample is destroyed and a DNA profile and related information are deleted under subsection (1).
\n
(3)On receipt of a notification under subsection (2), a Director shall— (a) delete all records, held by the Director, which relate to the applicable person, and (b) inform each nominee of the applicable person of the completion of his or her involvement in the Programme and return any record, held by the Director, associated with the nominee to that nominee.
\n
Destruction of samples taken for elimination purposes and deletion of related DNA profiles and related information 77. Subject to any regulations made under section79 , FSI shall— (a) destroy a sample taken from a person for elimination purposes under section 61 and delete a DNA profile generated from that sample not later than the expiration of 3 months after the date on which the following first occurs— (i) it is confirmed that the person did not or could not have contaminated another sample, (ii) that part of the Identification Programme set out in paragraphs (a) to (c) of section 46
\n
(2)is completed in respect of principal burial land and ancillary burial land, (iii) the Director makes a decision, under section 47
\n
(1),that the part of the Identification Programme referred to in subparagraphs (ii) and (iii) of section 46
\n
(2)(c) should cease, or (iv) in the case of a person whose consent was required under section 61
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(3)to the giving of a sample, where the person so requests in writing, and (b) as soon as practicable after the sample is destroyed and DNA profile is deleted, subject to section 73 , delete any related information.
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Return of samples taken from human remains to Director and deletion of related DNA profiles 78. (1) A sample taken from recovered human remains under section 59 shall, if not destroyed in the course of generating a DNA profile from it, be returned by FSI to the Director as soon as practicable after the earlier of the following occurs— (a) FSI have generated (having regard to section 58 ), from the sample concerned, all the DNA profiles it requires from the sample, or (b) the Director makes a decision, under section 47
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(1), that the part of the Identification Programme referred to in subparagraphs (ii) and (iii) of section 46
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(2)(c) should cease.
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(2)A DNA profile generated from a sample referred to in subsection (1) shall be deleted as soon as practicable after the date on which the following first occurs— (a) the Director makes a decision, under section 47
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(1), that the part of the Identification Programme referred to in subparagraphs (ii) and (iii) of section 46
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(2)(c) should cease, or (b) that part of the Identification Programme referred to in section 46
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(2)(c)(iii) is completed.
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(3)A sample returned to a Director under subsection (1) shall be the subject of the same final arrangements as recovered human remains.
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Chapter 9
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Regulations and Appeals Regulations for purposes of continuing DNA profile comparison after Identification Programme completed 79. (1) A relevant Minister may, having consulted with FSI and an Advisory Board, at any time before an Identification Programme is completed or the Office of Director is dissolved in accordance with section 98 , whichever first occurs, make regulations for the purposes of enabling the relevant Minister, where there are developments in forensic testing, to facilitate further forensic testing of samples to establish whether or not there is a familial link after the Programme is completed.
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(2)Without prejudice to the generality of subsection (1), regulations under that subsection may make provision for— (a) subject to obtaining the consent of the relevant persons concerned and providing for the withdrawal of consent at any time, the retention of samples taken from such persons under section 60 , (b) the form of consent, referred to in paragraph (a), to be obtained from relevant persons and the manner in which consent may be withdrawn, (c) the retention of samples taken for elimination purposes under section 61 , (d) the retention of samples taken from applicable persons, (e) the retention of information, referred to in subparagraphs (i) and (ii) of section 63
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(1)(b), contained in the Personal Information (Historic Remains) Database, (f) the transfer of samples so retained and information referred to in paragraph(e) from FSI to another person for the purposes of storage, (g) the forensic testing of samples, and where possible, a comparison of the DNA profile of a relevant person or an applicable person, as the case may be, and the DNA profile of a person generated from human remains for the purposes of ascertaining the likelihood, that can be indicated statistically, that there is a familial link, (h) the appointment of a decision-maker for the purposes of making a determination and notifying— (i) a relevant person, on the same basis as set out in section 50
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(3)in relation to a Director, that there is or is not a familial link, or (ii) a nominee of the relevant person, on the same basis as set out in section 50
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(4)in relation to a Director, that there is or is not a familial link, (i) the withdrawal by a nominee of the relevant person of his or her consent to act as a nominee, (j) the exhumation of human remains, re-interred in accordance with section 57 , where necessary for the purposes of obtaining a further sample for the purposes of paragraph (g), (k) the destruction of samples taken from relevant persons and applicable persons and for elimination purposes, the deletion of DNA profiles generated from samples taken from human remains, relevant persons, applicable persons and for elimination purposes and the destruction of information referred to in paragraph (e), (l) final arrangements for the samples taken from human remains, and (m) the performance of oversight functions, equivalent to those to be performed by the Oversight Committee under section 67
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(2)(a) to (f), by a suitably qualified person where the performance of such oversight functions is necessary having regard to any regulations made under this section to facilitate further forensic testing.
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Regulations: general (Part 4) 80. (1) The Minister may, having consulted with FSI and the Data Protection Commission, make regulations under this section to facilitate an Identification Programme.
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(2)Without prejudice to the generality of subsection (1), regulations under this section shall prescribe: (a) the evidence (documentary or otherwise) that a person is to provide for the purposes of establishing himself or herself as an eligible family member; (b) the requirements for a notification of objection referred to in section 44
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(2)(a); (c) the procedures for the purposes of section 44
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(4); (d) the form to be completed by an eligible person for the purpose of confirming his or her decision to participate in an Identification Programme; (e) the form of consent to the taking of a sample from a person under section 60 ; (f) the form of consent to be signed by a person who agrees to be a nominee of a relevant person which form shall include the following information— (i) the purpose of such nomination, (ii) the personal data, including the contact details, of a nominee that will be stored by a Director for that purpose, (iii) in the event that the circumstances set out in section 49
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(1)arise in respect of a relevant person, the notification that will be furnished to the nominee under section 50 , (iv) the right of a nominee to withdraw his or her consent to act as a nominee at any time before the relevant person, in respect of whom he or she is a nominee, dies or becomes incapacitated, and (v) such other information (if any) as is considered appropriate.
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(3)Without prejudice to the generality of subsection (1), regulations under this section may prescribe additional information to be given under section 61
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(5)(b) before a sample is taken under that section.
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Appeals 81. (1) Subject to subsection (2), a person (in this section referred to as an “appellant”) may, by notice in writing to the Director, appeal against— (a) a determination under section 48 that the person is not eligible to participate in an Identification Programme, or (b) a finding, notified to the person under section 50
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(3)(b), that on the balance of probabilities, the genetic and non-genetic data available are not sufficient to suggest a familial link.
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(2)An appeal under subsection (1) shall be made within 8 weeks from the date the determination or finding, as the case may be, is notified to the person and shall specify the basis for the appeal and indicate whether the appellant wishes an oral hearing of the appeal.
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(3)A Director shall notify the relevant Minister in writing of the receipt of the appeal within 14 days of such receipt and the relevant Minister shall, within 4 weeks of receipt of that notification— (a) appoint an independent suitably qualified person (in this Act referred to as an “adjudicator”) to determine the appeal, and (b) direct the Director to provide to that adjudicator all material relating to the determination or finding which is the subject of appeal.
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(4)An adjudicator shall hold an oral hearing where an appellant indicates that he or she wishes the adjudicator to hold an oral hearing.
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(5)The adjudicator, having considered all material provided relating to a determination or finding which is under appeal and any evidence provided by the appellant and the Director whether in the course of an oral hearing (if any) or otherwise, may— (a) confirm the determination or finding, as the case may be, or (b) overturn the determination or finding and substitute his or her own determination or finding.
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(6)An adjudicator shall make his or her decision under subsection (5) within 12 weeks of being appointed and shall, as soon as practicable thereafter— (a) inform the appellant and the Director of his or her decision and the reasons for it, and (b) where the decision relates to an appeal under subsection (1)(b) and the appellant dies or becomes incapacitated before that decision is made, inform a nominee of the appellant in accordance with paragraphs (a) and (b) of section 50
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(4)of that decision and the reasons for it.
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(7)Where an adjudicator makes a decision under subsection (5) to overturn a determination under section 48 that an appellant is not eligible to participate in an Identification Programme, the Director shall, as soon as practicable after being informed under subsection (6) of that decision, notify that appellant in writing that he or she may participate in the Programme.
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PART 5
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Access to land to carry out works and activities, compensation for use of land and remedial works on land Definition (Part 5) 82. In this Part, “statement of compensation” has the meaning assigned to it by section 91 .
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Access to land, carrying out of works and activities on land and compensation: general 83. (1) Subject to subsection (2) and section 84 , a Director may proceed with relevant works on principal burial land, relevant works on ancillary burial land and related activities on ancillary land— (a) in any case where the owner of the land concerned is also the occupier of that land, where— (i) the owner consents to those works or activities in accordance with section 85 , 87 or 89 , as the case may be, or (ii) a court order is made in respect of the owner under section 86 , 88 or 90 , as the case may be, and— (I) no appeal has been made against the order by the owner, at any time after the expiration of the period of time allowed for an appeal, or (II) an appeal has been made by the owner against the order within the period of time allowed for the appeal and the order is confirmed, at any time after the order is confirmed on appeal, and (b) in any case where the owner and occupier of the land concerned is not the same person— (i) where both the owner and occupier consent in accordance with section 85 , 87 or 89 , as the case may be, (ii) where the owner or occupier of the land consents and the other does not and a court order is made in respect of the non-consenting party under section 86 , 89 or 90 , as the case may be— (I) where no appeal has been made against the order, at any time after the expiration of the period of time allowed for an appeal, or (II) where an appeal has been made within the period of time allowed for the appeal, at any time after the order is confirmed on appeal, or (iii) where both the owner and occupier of the land do not consent and a court order is made in respect of both under section 86 , 88 or 90 , as the case may be— (I) where no appeal has been made against the order by either the owner or occupier, at any time after the expiration of the period of time allowed for an appeal, (II) where an appeal has been made against the order within the period of time allowed for the appeal by either the owner or occupier and the order is confirmed, at any time after the order is confirmed on appeal, or (III) where an appeal has been made against the order within the period of time allowed for the appeal by both the owner and occupier and both orders are confirmed, at any time after the confirmation on appeal of the last order so confirmed.
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(2)A Director may not proceed with relevant works or related activities in accordance with subsection (1) unless a statement of compensation has issued to the owner and occupier of the land concerned in accordance with section 84
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(3), 85
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(1), 87
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(1)or 89
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(1), as the case may be.
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(3)A Director may proceed with relevant works or related activities in accordance with subsection (1) where a statement of compensation has issued to the owner and occupier of the land concerned notwithstanding that compensation has not been agreed under section 91 or is the subject of an appeal under section 94 .
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(4)Where the identity of principal burial land is amended by a Government Order under section 7
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(6)(d), this section applies in like manner to that part of the land concerned which was not the subject of a previous Government Order under that section as it applies to the principal burial land which was the subject of such previous Order.
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Public body and consent to relevant works and related activities 84. (1) A public body which is the owner or occupier of principal burial land or ancillary burial land shall be deemed to have consented as owner or occupier, as the case may be, to the carrying out of relevant works on the land concerned.
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(2)A public body which is the owner or occupier of ancillary land shall be deemed to have consented as owner or occupier, as the case may be, to the carrying out of related activities on that land.
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(3)A Director shall— (a) where relevant works are to be carried out on principal burial land or ancillary burial land that is owned or occupied by a public body, by notice in writing inform the public body of his or her intention to carry out relevant works on the land, (b) where related activities are to be carried out on ancillary land that is owned or occupied by a public body, by notice in writing inform the public body of his or her intention to carry out related activities on the land, (c) specify in a notice under paragraph (a) or (b), the estimated duration of the relevant works or related activities, as the case may be, on the land concerned, (d) where the public body is both the owner and occupier of the land to which a notice under paragraph (a) or (b) relates, state in the notice the date on which it is intended that the relevant works or related activities, as the case may be, shall commence on the land concerned, (e) where the public body is not the owner and occupier of the land to which a notice under paragraph (a) or (b) relates, state in the notice that the Director may proceed with the relevant works or related activities, as the case may be, on the land concerned, in accordance with section 83
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(1)(b)(i) or (ii), and (f) attach a statement of compensation to a notice under paragraph (a) or (b).
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(4)A notice under paragraph (a) or (b) of subsection (3) shall have appended to it such maps and plans, on such scale, as are sufficient to enable the clear identification of the principal burial land, ancillary burial land or ancillary land, as the case may be, to which the notice relates.
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(5)Where subsection (3)(d) applies, a Director may proceed with the relevant works or related activities, as the case may be, on the land which is the subject of the notice, at any time after the date referred to in that provision.
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Notice of intention to carry out relevant works on principal burial land 85. (1) A Director shall— (a) by notice in writing to the owner and occupier of principal burial land seek the consent of the owner and occupier to the carrying out of relevant works on the land, (b) specify in the notice the period of time within which the consent referred to in paragraph (a) shall be provided, and (c) attach a statement of compensation to that notice.
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(2)A notice under subsection (1) shall have appended to it such maps and plans, on such scale, as are sufficient to enable the clear identification of the principal burial land.
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(3)Where the owner and occupier of principal burial land consent, within the period of time specified in a notice under subsection (1), to the carrying out of relevant works, a Director shall by notice in writing inform the owner and occupier of the date on which the works shall commence.
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(4)Where the owner of principal burial land does not, within the period of time specified in a notice under subsection (1), consent to the carrying out of relevant works on the land or, having consented, withdraws that consent, a Director may issue a notice under subsection (5) to that owner where the Director is satisfied— (a) that the owner was the owner of that land at the time the manifestly inappropriate burials on the land were carried out, (b) that the owner acquired that land on or after the 10th day of December 2019, or (c) the carrying out of works on the land is proportionate in all the circumstances.
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(5)Where subsection (4) applies, a Director shall, by notice in writing, advise the owner that if he or she does not, within 28 days from the date of service of the notice, consent to the carrying out of relevant works on the principal burial land, the Director may make an application to court under section 86 for an order authorising the Director to carry out such works on that land.
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(6)Where the owner on whom a notice is served under subsection (5), within the period of 28 days referred to in that subsection, gives his or her consent to the carrying out of the relevant works on the land, either unconditionally or with conditions acceptable to the Director, the Director may proceed with the relevant works at any time after the consent is given including at such other time as may be agreed between the Director and the owner.
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(7)Where the occupier of principal burial land does not, within the period of time specified in a notice under subsection (1), consent to the carrying out of relevant works on the land or, having consented, withdraws that consent, a Director may issue a notice under subsection (8) to that occupier where the Director is satisfied— (a) the occupier was the occupier of the land at the time the manifestly inappropriate burials were carried out, (b) the occupier, on or after the 10th day of December 2019, entered into a legally binding agreement (howsoever described) entitling him or her to occupy the land, or (c) the carrying out of works on the land is proportionate in all the circumstances.
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(8)A Director shall, by notice in writing, advise the occupier that if he or she does not, within 28 days from the date of service of the notice, consent to the carrying out of the works, the Director may make an application to court under section 86 for an order authorising the Director to carry out relevant works on the land.
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(9)Where the occupier on whom a notice is served under subsection (8) gives, within the period of 28 days referred to in that subsection, his or her consent to the carrying out of the relevant works on the land either unconditionally or with conditions acceptable to the Director, the Director may proceed with the relevant works at any time after the consent is given including at such other time as may be agreed between the Director, the owner and the occupier.
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Application to court for order authorising relevant works on principal burial land 86. (1) Where subsection(5) or (8) of section 85 applies, a Director may, where the owner or the occupier of principal burial land, or both, as the case may be, do not consent within the period of 28 days referred to in the subsection concerned, apply to the relevant court at the expiration of that period for an order authorising the Director to carry out relevant works on that land.
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(2)On application to it under subsection (1), the relevant court may make an order authorising the Director to carry out relevant works on the principal burial land concerned where it is satisfied that— (a) the owner or occupier, as the case may be, was the owner or occupier of the land at the time the manifestly inappropriate burials were carried out on that land, (b) the owner or occupier, as the case may be, entered into a legally binding agreement (howsoever described) to acquire the land (in the case of an owner) or to occupy the land (in the case of an occupier), on or after the 10th day of December 2019, or (c) the carrying out of relevant works on the land is proportionate in all the circumstances.
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(3)An appeal shall lie on a point of law only— (a) where the relevant court is the Circuit Court, from a decision of the High Court on appeal, and (b) where the relevant court is the High Court, from a decision of the High Court.
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(4)An application by a Director under this section or an appeal in respect of a decision of a relevant court under this section may, at the request of the owner or occupier, as the case may be, be heard otherwise than in public.
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(5)In this section, “relevant court” means— (a) where the market value of the principal burial land concerned is less than €3 million, the Circuit Court, or (b) where the market value of the principal burial land concerned is €3 million or greater, the High Court unless both parties agree to the Circuit Court having jurisdiction to hear the application.
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Notice of intention to carry out relevant works on ancillary burial land 87. (1) A Director shall— (a) by notice in writing to the owner and occupier of ancillary burial land seek the consent of the owner and occupier to the carrying out of relevant works on the land, (b) specify in the notice the period of time within which the consent referred to in paragraph (a) shall be provided, and (c) attach a statement of compensation to that notice.
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(2)A notice under subsection (1) shall have appended to it such maps and plans, on such scale, as are sufficient to enable the clear identification of the ancillary burial land.
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(3)Where the owner and occupier of ancillary burial land consent, within the period of time specified in a notice under subsection (1), to the carrying out of relevant works, a Director shall by notice in writing inform the owner and occupier of the date on which the works shall commence.
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(4)Where the owner of ancillary burial land does not, within the time period specified in a notice under subsection (1), consent to the carrying out of relevant works on ancillary burial land or, having consented, withdraws that consent, a Director may, by notice in writing, advise the owner that if he or she does not, within 28 days from the date of service of the notice, consent to the carrying out of the relevant works, the Director may make an application to court under section 88 for an order authorising the Director to carry out relevant works on the land for the duration of the period specified in the court order.
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(5)Where the owner on whom a notice is served under subsection (4) gives his or her consent, within the period of 28 days referred to in that subsection, to the carrying out of the relevant works on the land, either unconditionally or with conditions acceptable to the Director, the Director may proceed with the works at any time after the consent is given including at such time thereafter as may be agreed between the Director and the owner.
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(6)Where the occupier of ancillary burial land does not, within the period of time specified in a notice under subsection (1), consent to the carrying out of relevant works on the land or, having consented, withdraws that consent, a Director may by notice in writing advise the occupier that if he or she does not, within 28 days from the date of service of the notice, consent to the carrying out of the relevant works, the Director may make an application to court under section 88 for an order authorising the Director to carry out relevant works on the land for the duration of the period specified in the court order.
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(7)Where the occupier on whom a notice is served under subsection (6) gives his or her consent to the carrying out of the relevant works on the land, either unconditionally or with conditions acceptable to the Director, within the period of 28 days referred to in that subsection, the Director may proceed with the works at such time as may be agreed between the Director, the owner and the occupier.
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Application to court for order authorising relevant works on ancillary burial land 88. (1) Where subsection (4) or (6) of section 87 applies, a Director may, where the owner or occupier of ancillary burial land, or both, as the case may be, do not consent within the period of 28 days referred to in the subsection concerned, apply to the District Court for an order authorising the Director to carry out relevant works on the land.
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(2)On application to it under subsection (1), the District Court may make an order authorising the Director to carry out relevant works in respect of ancillary burial land for such period as it specifies in the order where it is satisfied that— (a) the land to which the application relates is ancillary burial land, and (b) the carrying out of relevant works on the land is proportionate in all the circumstances.
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(3)An appeal shall lie on a point of law from a decision of the Circuit Court on appeal.
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(4)An application by a Director under this section, an appeal in respect of the decision of the District Court or an appeal on a point of law under subsection (3) may, at the request of the owner or occupier, as the case may be, be heard otherwise than in public.
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Notice of intention to carry out related activities on ancillary land 89. (1) A Director shall— (a) by notice in writing to the owner and occupier of ancillary land seek the consent of the owner and occupier to the carrying out of related activities on the land, (b) specify in the notice the period of time within which the consent referred to in paragraph (a) shall be provided, and (c) attach a statement of compensation to that notice.
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(2)A notice under subsection (1) shall have appended to it such maps and plans, on such scale, as are sufficient to enable the clear identification of the ancillary land.
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(3)Where the owner and occupier of ancillary land consent, within the period of time specified in a notice under subsection(1), to the Director carrying out related activities on the land, the Director shall, by notice in writing, inform the owner and occupier of the date on which the related activities shall commence.
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(4)Where the owner of ancillary land does not, within the period of time specified in a notice under subsection(1), consent to the Director carrying out related activities on the land or, having consented, withdraws that consent, a Director may, by notice in writing, advise the owner that if he or she does not consent within 28 days from the date of service of the notice, the Director may make an application to court under section 90 for an order authorising the Director to carry out related activities on the land for the duration of the period specified in the court order.
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(5)Where the owner consents, within the period of 28 days referred to in subsection (4), either unconditionally or with conditions acceptable to the Director, the Director may proceed to carry out related activities on that land at any time after the consent is given or at such time as may be agreed between the Director and the owner.
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(6)Where the occupier of ancillary land does not, within the period of time specified in a notice under subsection(1), consent to the Director carrying out related activities on the land or, having consented, withdraws that consent, a Director may, by notice in writing, advise the occupier that if he or she does not consent within 28 days from the date of service of the notice, the Director may make an application to court under section 90 for an order authorising the Director to carry out the related activities on the land for the duration of the period specified in the court order.
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(7)Where the occupier on whom a notice is served under subsection (6), within the period of 28 days referred to in that subsection, gives his or her consent either unconditionally or with conditions acceptable to the Director, the Director may proceed to carry out the related activities on the land at such time as may be agreed between the Director, the owner and the occupier.
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Application to court for order authorising related activities on ancillary land 90. (1) Where subsection (4) or (6) of section 89 applies, a Director may, where the owner or occupier of ancillary land, or both, as the case may be, do not consent within the period of 28 days referred to in the subsection concerned, apply to the relevant court for an order authorising the Director to carry out related activities on the land.
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(2)On application to it under subsection (1), the relevant court may make an order authorising the Director to carry out related activities on the ancillary land for such period as it specifies in the order where it is satisfied that— (a) there are no other reasonably practical means by which the relevant works may proceed on principal burial land or ancillary burial land, (b) having regard to the duration and extent of the proposed related activities and the effect of such activities on the use and enjoyment of the ancillary land, the proposed interference with the land represents the minimum intrusion that is reasonably possible and is proportionate, and (c) mitigations will be put in place to address any health and safety concerns that may arise from the proposed related activities.
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(3)In making an order under subsection (2), the relevant court may— (a) specify the works on the land concerned that may be carried out for the purposes of facilitating relevant works on the principal burial land or ancillary burial land, and (b) require the Director to put such mitigations in place as the court considers appropriate to address any health and safety concerns that arise from the proposed related activities on the land.
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(4)An appeal shall lie on a point of law only— (a) where the relevant court is the District Court, from a decision of the Circuit Court on appeal, (b) where the relevant court is the Circuit Court, from a decision of the High Court on appeal, and (c) where the relevant court is the High Court, from a decision of the High Court.
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(5)An application by a Director under this section or an appeal in respect of the decision of a relevant court may, at the request of the owner or occupier, as the case may be, be heard otherwise than in public.
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(6)In this section, “relevant court” means— (a) where the duration of the related activities and any remedial works under section 95 is likely to take, in total, less than 2 weeks, the District Court, and (b) in all other cases— (i) where the market value of the ancillary land concerned is less than €3 million, the Circuit Court, or (ii) where the market value of the ancillary land concerned is €3 million or greater, the High Court unless both parties agree to the Circuit Court having jurisdiction to hear the application.
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Statement of compensation 91. (1) A statement (in this Part referred to as a “statement of compensation”) shall be in writing and— (a) where the relevant works or related activities are to be carried out on the principal burial land, ancillary burial land or ancillary land concerned, as the case may be, for a period estimated to be less than 4 weeks, shall— (i) include an offer of compensation calculated in accordance with section 93 and state that the compensation may be accepted within a period of 28 days— (I) where the statement issues to a public body under section 84 , from the date of service of the notice, or (II) in all other cases, from the later of— (A) the date on which consent is given under section 85 , 87 or 89 , as the case may be, to the carrying out of the works or activities concerned, (B) where consent is not given and a court order is made under section 86 , 88 or 90 , as the case may be, authorising the works or activities concerned, the date on which the period of time allowed for an appeal against the order expires where no appeal has been made, or (C) where such a court order is made and an appeal has been made, the date on which the order has been confirmed on appeal, (ii) state the basis on which the amount of compensation offered was calculated, (iii) state the manner in which the compensation shall be payable, (iv) advise the owner or occupier, as the case may be, that if he or she refuses the offer within the 28 day period referred to in subparagraph (i), he or she may, within the time allowed by section 94 , make an application to the Circuit Court under that section for a variation of the amount of the compensation, and (v) advise him or her that if he or she fails to reply to the offer within that 28 day period, the offer will become binding, or (b) where the relevant works or related activities are to be carried out on the principal burial land, ancillary burial land or ancillary land, as the case may be, for a period estimated to be 4 weeks or longer, shall— (i) invite the owner or occupier, as the case may be, of the land concerned to engage with the Director to assess the appropriate level of compensation payable in accordance with section 93 , (ii) state the basis on which compensation will be calculated under that section, and (iii) advise the owner or occupier, as the case may be, that if he or she refuses the invitation or fails to reply to the invitation within 14 days from the date of the statement, the Director shall issue an offer of compensation in accordance with subsection (2).
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(2)Where subsection (1)(b) applies, the Director shall, by notice in writing, make an offer of compensation calculated in accordance with section 93 — (a) where the owner or occupier, as the case may be, accepts the invitation to engage within the 14 day period referred to in subparagraph (iii) of that provision, having considered the outcome of that engagement, or (b) where the owner or occupier, as the case may be, refuses or fails to reply to that invitation within that 14 day period, at any time after the expiration of that period.
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(3)An offer of compensation under subsection (2) shall contain the information referred to in subparagraphs (i) to (v) of subsection (1)(a) subject to the modification that the reference in those subparagraphs to a period of 28 days shall be construed as a reference to a period of 28 days from the date of the offer.
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(4)An offer of compensation under this section shall be binding and compensation shall be payable in accordance with section 93 where the person to whom the offer was made— (a) accepts or fails to respond to the offer within the 28 day period referred to in subsection (1)(a) or, if applicable, subsection (3), or (b) refuses the offer and does not make an application to the Circuit Court under section 94 within the time allowed under that section.
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Application for compensation by person other than owner or occupier of land 92. (1) A person, other than an owner or occupier, who has an interest in or right over principal burial land, ancillary burial land or ancillary land may, within the time specified under subsection (2), make an application to the Director for compensation where the interest or right will be materially adversely affected by the relevant works or related activities.
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(2)Subject to subsection (5), the time referred to in subsection (1) is any time after the commencement of the relevant works or related activities concerned but not later than 6 months after the date of cessation of the works or activities.
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(3)A person who makes an application for compensation under subsection (1) shall at the same time as making the application provide evidence of— (a) his or her interest in or right over the land concerned, and (b) the material adverse effect alleged.
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(4)Where a Director is satisfied that the person referred to in subsection (1) has the interest or right asserted and the works or activities concerned have materially adversely affected the interest or right, the Director may, by notice in writing, make an offer of compensation to that person stating— (a) the basis on which the amount of compensation offered was calculated, (b) the manner in which, should the offer be accepted within 28 days from the date of the notice, the compensation shall be payable, (c) that if he or she refuses the offer within that 28 day period, he or she may, within the time allowed by section 94 , make an application to the Circuit Court under that section for a variation of the amount of compensation, and (d) that if he or she fails to reply to the offer within that 28 day period, the offer shall become binding.
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(5)The Circuit Court may, upon application being made to it in that behalf, where it considers that the interests of justice so require, extend the period within which a claim for compensation may be brought under subsection (1).
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(6)An offer of compensation shall be binding and the compensation shall be payable in accordance with section 93 where— (a) a person accepts, or does not reply to, an offer of compensation made under subsection (4) within the 28 day period referred to in that subsection, or (b) a person refuses an offer of compensation under that subsection and does not make an application to the Circuit Court under section 94 within the time allowed by that section.
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Calculation and payment of compensation 93. (1) Subject to subsection (2), compensation payable to a person under this Part shall be calculated by a suitably qualified surveyor or other suitably qualified person appointed by a Director— (a) by reference to the period during which it is estimated the relevant works or related activities, as the case may be, will be carried out, (b) having regard to the extent of the relevant works or related activities, as the case may be, on the land concerned, (c) where a trade or business is carried out on the land, taking into account— (i) any disturbance to that trade or business and the extent of such disturbance, and (ii) any loss or costs incurred as a result of the relevant works or related activities, (d) having regard to the fair market rent for the land and any buildings on the land that could be obtained if the relevant works or related activities were not being conducted on the land, (e) having regard, in relation to the owner and occupier of the land concerned, to the extent of the interference, as a result of the relevant works or related activities on the land, with the person’s peaceful enjoyment of the land, and (f) deducting, from any amount calculated in accordance with the preceding paragraphs as being payable, the value of any works which will be carried out on the land by the Director which will enhance the value of the land concerned for the person to whom the compensation is payable.
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(2)Compensation shall only be payable to a public body in respect of any loss or costs incurred as a result of the works or access over the land concerned.
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(3)A Director shall pay the amount of compensation payable to the owner, occupier, or other person, as the case may be, before the expiration of 30 days from— (a) when the compensation becomes payable in accordance with section 91
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(4)or section 92
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(6), or (b) the date of the making of an order by the court under section 94 .
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(4)Where compensation was calculated, in accordance with subsection (1), by reference to an estimated period the relevant works or related activities would take and the works or activities continue after the expiration of that period, the Director shall make such further payment of compensation, calculated pro rata by reference to the compensation paid, to the person concerned at the end of each month or part of a month during which such works or activities continue.
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(5)Compensation payable under subsections (3) and (4) shall be recoverable from a Director as a simple contract debt in any court of competent jurisdiction.
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Application to Circuit Court by person who refuses an offer of compensation 94. (1) A person who refuses an offer of compensation made under section 91 or 92 within the period of time allowed for such refusal may, at any time during such period or within 7 days following the expiration of that period, make an application to the Circuit Court for a variation of the amount of compensation.
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(2)An application under subsection (1) shall— (a) be made on notice to the Director, and (b) state the basis on which a variation is being sought to the amount of compensation offered.
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(3)The Circuit Court shall— (a) in determining an application made under subsection (1) consider— (i) the amount of the compensation offered and the basis on which that amount was calculated, and (ii) the reasons given by the applicant for seeking a variation of the amount of compensation offered, and (b) where it considers that the compensation offered is appropriate, by order confirm the amount of compensation or where it considers that the compensation offered is not appropriate, by order vary the amount of compensation.
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(4)Compensation payable pursuant to an order made under subsection (3) shall be paid in accordance with section 93
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(3).
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Remedial works on principal burial land, ancillary burial land and ancillary land 95. (1) A Director shall, not later than 6 months following the completion of the forensic excavation and recovery on principal burial land or ancillary burial land or related activities on ancillary land, as the case may be, carry out any remedial work necessary to make good any damage caused to the land concerned.
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(2)Where a Director carries out remedial works referred to in subsection (1), he or she shall notify the planning authority (within the meaning of the Act of 2000) in whose administrative area the land in question is situate of the completion of those works as soon as practicable after completion.
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Exercise of jurisdiction by District Court and Circuit Court 96. (1) The jurisdiction of the District Court under this Part shall be exercised by a judge of the District Court for the time being assigned to the District Court district in which the land in question is situate.
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(2)The jurisdiction of the Circuit Court under this Part shall be exercised by a judge of the Circuit Court for the time being assigned to the circuit in which the land in question is situate.
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Amendment of section 4 of Act of 2000 97. Section 4(1) of the Act of 2000 is amended by the insertion of the following paragraph after paragraph (aa) : “(ab) development consisting of the carrying out of relevant works or related activities over principal burial land, ancillary burial land or ancillary land within the meaning of the Institutional Burials Act 2022;”.
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PART 6
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Dissolution of Office of Director, transfer of functions, assets and liabilities and records Dissolution day 98. (1) The dissolution day shall be— (a) the day following the last day on which the Office of a Director continues in operation in accordance with an order made under section 9 , or (b) such earlier day as a relevant Minister may, by order, appoint.
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(2)A relevant Minister may, by order, appoint a day to be the dissolution day for the purposes of subsection (1)(b).
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(3)A relevant Minister shall, for the purpose of section 105
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(5), notify the Director concerned in writing of the dissolution day at least 6 months in advance of that day.
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Transfer of functions to relevant Minister 99. (1) On the dissolution day, all functions that immediately before that day were vested in a Director shall stand transferred to the relevant Minister.
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(2)A relevant Minister to whom functions are transferred under subsection (1) may— (a) appoint one (or more than one) independent expert who has, in the opinion of the relevant Minister, the relevant qualification, skills or experience to perform one or more than one function transferred to the relevant Minister under that subsection, and (b) request the independent expert concerned to perform the function or functions.
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Liability for loss occurring before dissolution day 100. (1) A claim in respect of any loss or injury alleged to have been suffered by any person arising out of the performance, before the dissolution day, of a function of a Director transferred by section 99 shall, on and after that day, lie against the relevant Minister and not against the Director.
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(2)Any legal proceedings pending immediately before the dissolution day to which a Director is a party, that relate to a function of the Director transferred by section 99 , shall, on and after that day, be continued with the substitution in the proceedings of the relevant Minister for the Director.
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(3)Where, before the dissolution day, agreement has been reached between the parties concerned in settlement of a claim to which subsection (1) relates, the terms of which have not been implemented, or judgment in such a claim has been given in favour of a person but has not been enforced, the terms of the agreement or judgment, as the case may be, shall, on and after the dissolution day, in so far as they are enforceable against the Director, be enforceable against the relevant Minister and not the Director.
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(4)Any claim made or proper to be made by the Director in respect of any loss or injury arising from the act or default of any person before the dissolution day shall, on and after that day, where the claim relates to a function of the Director transferred by section 99 , be regarded as having been made by or proper to be made by the relevant Minister and may be pursued and sued for by that relevant Minister as if the loss or injury had been suffered by that relevant Minister.
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Transfer of land and other property to relevant Minister 101. (1) All lands that, immediately before the dissolution day, were vested in a Director and all rights, powers and privileges relating to or connected with such lands shall, on that day, without any conveyance or assignment, stand vested in the relevant Minister for all the estate or interest therein that, immediately before that day, was vested in the Director, but subject to all trusts and equities affecting the lands continuing to subsist and being capable of being performed.
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(2)All property (other than land), including choses-in-action, that immediately before the dissolution day, was vested in a Director shall, on that day, stand vested in the relevant Minister without any assignment.
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(3)Every chose-in-action vested in the relevant Minister by virtue of subsection (2) may, on and after the dissolution day, be sued on, recovered or enforced by the relevant Minister in his or her name, and it shall not be necessary for the relevant Minister or the Director to give notice to any person bound by the chose-in-action of the vesting effected by that subsection.
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Transfer of rights and liabilities and continuation of leases, licences and permissions granted by Director 102. (1) All rights and liabilities of a Director arising by virtue of any contract or commitment (expressed or implied) entered into by it before the dissolution day shall, on that day, stand transferred to the relevant Minister.
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(2)Every right and liability transferred by subsection (1) to the relevant Minister may, on and after the dissolution day, be sued on, recovered or enforced by or against him or her in his or her own name, and it shall not be necessary for the relevant Minister or the Director to give notice to any person of the transfer of any such right or liability.
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(3)Every lease, licence, wayleave or permission granted by a Director in relation to land or other property vested in the relevant Minister and in force immediately before the dissolution day, shall continue in force on and after that day as if granted by the relevant Minister.
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Preservation of contracts, agreements and arrangements entered into by Director 103. Every contract, agreement or arrangement, entered into by a Director or any trustee or agent acting on its behalf and any other person, that is in force immediately before the dissolution day shall, on and after that day, continue in force and be construed and have effect as if the name of the relevant Minister were substituted for that of the Director, trustee or agent, as the case may be, and shall be enforceable by or against the relevant Minister.
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Provisions consequent upon transfer of functions, assets and liabilities 104. (1) Anything commenced and not completed before the dissolution day by or under the authority of a Director may, in so far as it relates to a function of the Director transferred to the relevant Minister under section 99 , be carried on or completed on or after the dissolution day by the relevant Minister.
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(2)Every instrument made under an enactment and every document (including any certificate) granted or made by a Director shall, if and in so far as it was operative immediately before the dissolution day, have effect on and after that day as if it had been granted or made by the relevant Minister.
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(3)References to a Director in any enactment or in the constitution of any company and relating to a function transferred to the relevant Minister under section 99 shall, on and after the dissolution day, be construed as a reference to the relevant Minister.
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(4)Any money, stocks, shares or securities transferred by section 101 that, immediately before the dissolution day, were standing in the name of a Director shall, on or after that day, on the request of the relevant Minister, be transferred into his or her name.
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Final accounts and final report of Director 105. (1) A relevant Minister shall, as soon as practicable after the dissolution day but not later than 6 months thereafter, in respect of the period specified under subsection (4), cause final accounts of the Director to be prepared.
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(2)A relevant Minister shall cause the final accounts of a Director to be submitted to the Comptroller and Auditor General for audit as soon as practicable after they are prepared under subsection (1).
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(3)As soon as practicable after an audit is conducted under subsection (2), a copy of the accounts as audited and a copy of the Comptroller and Auditor General’s report on the accounts shall be presented to the relevant Minister who shall cause copies of those audited accounts and that report to be laid before each House of the Oireachtas.
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(4)For the purposes of subsection (1), the relevant Minister may specify a period that is longer or shorter than a financial year of the Director.
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(5)Subject to subsection (6), a Director shall prepare and submit to the relevant Minister, at least 12 weeks prior to the dissolution day, a final report of the Director and the report shall include— (a) a statement of the activities undertaken by the Director since the last annual report adopted under section 23 , and (b) such other information— (i) as the Director considers appropriate to include, and (ii) as the relevant Minister directs should be included which may include financial statements.
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(6)A final report prepared under subsection (5) shall not contain confidential information (within the meaning of section 30
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(5)).
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(7)A relevant Minister shall, within 6 weeks of receipt of a report under subsection (5), cause copies of that report to be laid before each House of the Oireachtas.
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Review of operation of Office 106. (1) A relevant Minister shall, following the submission to him or her of a final report under section 105 , undertake a review of the implementation of this Act in so far as it relates to the Office of the Director concerned.
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(2)A review under subsection (1) shall be commenced within 12 months of the completion of the final report referred to in that subsection.
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(3)In conducting a review under subsection (1), the relevant Minister shall consult with such persons, including relevant persons, as he or she considers appropriate.
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(4)A relevant Minister shall cause a report of a review conducted under this section to be prepared and shall publish the report on the internet.
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Deposit of records of Director with relevant Minister 107. All records in a Director’s possession shall, on the dissolution day or as soon as possible after that day, be deposited with the relevant Minister and, in so far as the records comprise personal data and special categories of personal data, those records— (a) shall not be Departmental records (within the meaning of section 2
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(2)of the National Archives Act 1986 ), and (b) may be processed, for so long as is necessary and proportionate, by or on behalf of the relevant Minister for the purposes of— (i) the performance of functions— (I) transferred to that relevant Minister under section 99 ,and (II) where regulations have been made under section 79 , under those regulations, and (ii) the carrying out or completion, in accordance with section 104
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(1), of anything commenced and not completed as referred to in that provision.
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SCHEDULE Provisions applicable to Directors of Authorised Interventions
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Section 9
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1.A Director shall have the power to sue and may be sued and shall, with the consent of the relevant Minister concerned and the Minister for Public Expenditure and Reform, have the power to acquire, hold and dispose of land, an interest in land or any other property.
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2.The seal of a Director shall be authenticated by— (a) the signature of the Director, or (b) the signatures of 2 members of staff of the Director duly authorised by that Director.
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3.Judicial notice shall be taken of the seal of a Director and any document purporting to be an instrument made by, and to be sealed with the seal of, a Director shall, unless the contrary is proved, be received in evidence and be deemed to be such instrument without further proof.
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4.Any contract or instrument which, if entered into or executed by an individual, would not require to be under seal may be entered into or executed by a Director or by any person duly authorised by the Director in that behalf.
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1 OJ No. L 119, 4.5.2016, p.1 Privacy Statement Accessibility European Legislation Identifier (PDF) Open Data License Ráiteas Príobháideachais Inrochtaineacht Aitheantóir Eorpach Reachtaíochta (ELI) Ceadúnas Sonraí Oscailte Liosta Fianán © Government of Ireland. Oireachtas Copyright Material is reproduced with the permission of the Houses of the Oireachtas © Rialtas na hÉireann. Atáirgtear ábhar faoi Chóipcheart le cead ó Thithe an Oireachtais