What's Wrong With The Murphy Redress Scheme?

The report of the Independent Review of Issues Relating to Symphysiotomy is out. So too, at long last, is Prof. Oonagh Walsh’s final Report on Symphysiotomy in Ireland 1944 -1984.  If you need a reminder of what symphysiotomy is, and of the human rights abuses which characterised its practice in Ireland, you can see Survivors of Symphysiotomy’s submission to the UN Committee Against Torture here. In just under two weeks’ time, Survivors of Symphysiotomy will put their case when Ireland is examined under the ICCPR. Doubtless, the redress scheme, which is the primary outcome of Judge Murphy’s review will be a topic of conversation there.

Here are 9 talking points on the Murphy redress proposals, which she presents as a tentative sketch for a potential scheme. Comments are most welcome.

  1. Ex gratia: Payments under the scheme will be made without any finding of liability. I noted the difficulties with ex gratia schemes back in February.
  2. Walsh and truths The Walsh Report is not an adequate substitute for an individualised finding of liability. It cannot vindicate  women’s right to an effective remedy. Section 1 of the Report repeats the Draft Report already published, and roundly criticised by Survivors of Symphysiotomy. Section 2 makes some amendments, but does not change the overall tenor of the draft. It explains and clarifies the draft’s arguments, and buttresses them with testimony obtained from survivors who were members of Patient Focus,  of Survivors of Symphysiotomy Ltd., or of no organisation at all. It is important to note that the largest survivor group – Survivors of Symphysiotomy – boycotted the second stage of the Walsh Report, as a means of demonstrating their objection to its draft findings. The second part of the report criticises perceived misrepresentations of the Draft (82-83). However, it is interesting to note that, by and large, the testimony of those survivors  interviewed by Walsh chimes with that submitted by Survivors of Symphysiotomy to the United Nations Committee Against Torture, particularly on issues such as the outcome of symphysiotomy (pp 87-95) and the impact on family members (98-103) . Where the Walsh report breaks away, in my view, is in its interpretation of the reasons why symphysiotomy was performed. She places more exculpatory emphasis on a particular reading of the interaction of a rigid form of Catholic moral teaching and medical care, and on the good faith practice of medical practitioners. There is insufficient space here to discuss the Walsh report in detail.  But what is clear is that we now have two very different public  readings of the harm done to these women, only one of which  has been rubber-stamped by the state. When the government talks about ‘closure’, it is important to bear this ongoing contestation in mind.
  3. Payment: Survivors of Symphysiotomy had asked for individualised assessment of women’s financial entitlement. Judge Murphy has not met this request. There are three bands of payment under the scheme (€50,000 for surgical symphysiotomy with no long-term effects, €100,000 for surgical symphysiotomy with long-term complex effects, and €150,000 for symphysiotomy ‘on the way out’ or post-birth). Most will receive €50,000. Judge Murphy notes at p.46, based on precedent,  that the sort of claim which she values at €100,000, would likely reap damages of €250,000 to €275,000 in court. Survivors of Symphysiotomy had valued the women’s negligence claims at between €250,000 and €450,000. It is also worth noting that in order to qualify for the higher awards, a full medical assessment will be required, to prove, on the balance of probabilities, that the woman’s additional injuries are attributable to the symphysiotomy rather than to e.g. subsequent births or difficult delivery. It will be interesting to see what form those standard examinations take, and whether women will be offered the opportunity to select independent medical assessors. Many women, of course, have already undergone medical assessments and are already receiving treatment for injuries which have been diagnosed as the result of their symphysiotomies.
  4. Giving up legal claims: Participants in the scheme will have to discontinue any legal claims, including those against the state. Interestingly at p.49, and following the example of the Lourdes Hospital Redress scheme, Judge Murphy advises that those currently involved in High Court litigation who wish to discontinue it, should receive sums towards the costs already incurred. She recommends that applicants to the scheme should also receive money to cover the cost of legal advice in respect of an application to the scheme.
  5. A better deal in the High Court? This is a particularly interesting redress scheme because it emerges against a backdrop of (in March) 154 ongoing cases in the High Court. Judge Murphy presents her scheme as unburdening vulnerable women who are, on her reading, unwilling to accept the complexity of their predicament. At page 48 she describes the legal claims which survivors of symphysiotomy have brought in the High Court as ‘frail’, worrying, stressful and risky. She is not in a position, given the nature of the report, to assess the individual claims for herself. However, it is by no means clear that every woman will receive a better deal under this sort of scheme than she would obtain in the High Court.
    1. First, she cites the Statute of Limitations as a particular obstacle to success in the courts. Of course, the Statute remains in place for these women because the government made an abrupt U-turn on original plans to lift it. Moreover, some judges will be unwilling to allow questions of delay to upset every historical symphysiotomy claim. This is particularly true of symphysiotomies ‘on the way out’. In just such a case –Kearney v. McQuillan – the Supreme Court held in 2010 that the defendant cannot be prejudiced by delay where the justifiability of the procedure even on the basis of the standards prevailing in obstetrics at the time of the operation is in issue. This is because witnesses are not necessary to determine that sort of claim.
    2. Second, she suggests that it will be difficult for negligence claims to succeed. In 2012, again in the Kearney litigation, the Supreme Court accepted that, even by 1969, symphysiotomy was not a generally approved practice in Ireland. It was supported by a minority of doctors, who only considered it justified in a small number of circumstances. In their submission to UNCAT, Survivors of Symphysiotomy document the essentially experimental nature of symphysiotomy in Ireland at certain periods. There are likely to be cases which fall outside the limits which that minority of doctors set for themselves and which, accordingly, could ground successful negligence cases.
    3. Third Judge Murphy devotes significant time to discussing whether claims could be based on the absence of informed consent to symphysiotomy. This is a very real issue – many women did not discover the true nature of the procedure performed on them until decades after the event. Here again, Judge Murphy emphasises (at p.29) the impact of delay, and the death of the doctors involved, on attempts to establish whether reasonable efforts were made to obtain women’s informed consent. (At pp.28-30 the report discusses whether women would likely have consented to symphysiotomy anyway, even knowing the risks, because they were reluctant to have Caesareans. It strikes me as very odd that this line of reasoning is substantiated by extensive quotation from the writings of the doctors who performed symphysiotomies. There is also an incongruous reference at p.16 to a resurgence in modern interest in certain kinds of surgical symphysiotomy – presumably performed under circumstances vastly different to those documented in Ireland – as alternatives to Caeserean. At p. 20, the report notes that many survivors now feel that Caesareans would have been safer. Judge Murphy here  may be misreading the Walsh report in assuming that a certain set of Catholic views on reproduction was as persuasive to all women, in all relevant decades, as it was to powerful doctors and laity.)
    4. Finally, in the High Court, litigants would obtain a statement of liability, whether they win or lose.
  6. A better deal for the State: On Judge Murphy’s reading, the State is set to assume a central role in the symphysiotomy litigation. Following O’Keeffe v. Ireland,litigants are likely to argue that the state should have done more to supervise the hospitals which it funded (though Judge Murphy notes at p.33 that it might be possible to refine this reading of O’Keeffe to let the state off the hook). The point of an ex gratia scheme is that it is cheaper for the State to create one than to defend claims in court. Judge Murphy sets out the calculations at p.50 of her report. She sets out a scenario in which 10 symphysiotomy claims are successful at an equivalent rate of damages to the cases already litigated, and the remainder settle. In this scenario, she estimates the potential cost to the state at €95m. The redress scheme is a relative bargain at €34m – cheaper, for instance, than the LE Samuel Beckett.
  7. Who pays? Should the State lose some of the cases in which it is involved, it would be entitled to seek contributions from relevant insurers.  However, the review was unable to assess the likely financial value of these contributions, because the necessary information was not made available to it. Most insurers were unwilling, in the absence of direct instruction from the hospitals where symphysiotomies were performed, to discuss specific cases. Large portions of the report containing ‘commercially and litigiously sensitive material’ relating to insurance are redacted. The report also notes at p.30 that a large majority of hospitals are unable to trace their insurance records, and so may be unable to make use of their insurance, assuming, of course that insurance taken out decades ago would be sufficient to meet awards of damages calculated at today’s rates. The report devotes a little time to the financial circumstances of the hospitals where symphysiotomies were performed, and suggests that they would find it difficult to meet the cost of litigation.
  8. Apologies: Judge Murphy notes that the Institute of Obstetricians and Gynaecologists have twice apologised to women who underwent symphysiotomy. In fact, the Institute has offered its ‘unreserved sympathy and support’ to the women, while maintaining the line that symphysiotomy was justifiable in most circumstances. The Medical Missionaries of Mary, who ran the hospital at Drogheda where many of the procedures were carried out, similarly regret women’s ‘hurt’ and ‘trauma’. (p.65) The women who suffered this procedure have received no formal apology or admission of liability. Any state apology, Judge Murphy says, will be a matter for the government and the Attorney General. Perhaps confident that a redress scheme will resolve the matter, the Minister for Health says the question of an apology ‘does not arise’.
  9. Death of a baby: P. 19 briefly raises the issue of babies who died during symphysiotomy, and whose parents were never informed of their place of burial.

Early on in the report, Judge Murphy says that ‘there was nothing at all furtive’ about the practice of symphysiotomy. That says as much about the power of the men who performed these operations as it does about their bona fides. I have suggested before that there is something furtive about the way in which Ireland deals with past wrongdoing. These are the terms on which demand for a public inquiry into symphysiotomy is to be defused, and they deserve public scrutiny.

What's Wrong With The Murphy Redress Scheme?

Broken Promises and Delays for Magdalenes: A Response to Minister Alan Shatter.

We are delighted to host this post by Maeve O’Rourke, Barrister and James Smith from Boston College. It is a response to a recent Letter to the Editor of the Irish Times by Minister for Justice, Mr Alan Shatter, T.D.

Last Wednesday (Feb. 19th) marked the one-year anniversary of the State apology to Magdalene Laundry survivors. On Feb. 6th, we wrote an opinion piece in the Irish Times highlighting the government’s ongoing delay in providing pensions and legislating for various measures of redress recommended by Mr Justice John Quirke. We also criticised the drafting of the “Terms” of the Ex Gratia Scheme which survivors are required to sign up to by means of a legal waiver, before they can receive their lump-sum payment.

On Feb. 13th the Minister for Justice, Mr. Alan Shatter, T.D., replied to us by way of a Letter to the Editor of the Irish Times.

The following is our response*: Continue reading “Broken Promises and Delays for Magdalenes: A Response to Minister Alan Shatter.”

Broken Promises and Delays for Magdalenes: A Response to Minister Alan Shatter.

Abuse Redress, Property and the Catholic Church in Ireland.

In 2002, the Irish Ministers for Finance and Education entered into a binding ‘Congregational Indemnity Agreement‘ with the Conference of Religious in Ireland, which was then representing 18 religious orders. The State had established the Residential Institutions Redress Board (RIRB), which was intended to provide redress to the former inmates of religious residential institutions. Pat Rabbitte ably summarised the difficulties with the agreement as follows:

[This was an] extraordinary deal concluded by the then Minister for Education, Dr. Michael Woods, on his final day in office in 2002. The deal was agreed without a memo being brought to government and with limited involvement of the Office of the Attorney General. While the original recommendation of the Department of Finance was that the liability for financial compensation for the damage done to these children should be shared 50:50 between the state and the Religious Congregations.

Under the 2002 agreement, the congregations agreed to contribute €128 million in cash, property (to be handed over to the HSE, the Department of Education and other bodies) and counselling services to the scheme. In exchange, the State agreed to indemnify the orders against any legal actions which former residents might bring against them during the lifetime of RIRB. The State did so; in 2006 it paid out €745,000 to former residents of St Joseph’s Orphanage in Kilkenny, on foot of a High Court action.

It seems fair to say that the State indemnity was a mistake. It is worth noting that, in the UK, the state has not stepped in to subsidise Church payments to successful litigants. Insurers have been central both in ensuring access to litigation, and in ultimately paying compensation in sex abuse cases in ways which preserve diocesan and parish funds for social and charitable purposes.

By 2009, following the Ryan Report and a larger-than-expected number of successful claims before the RIRB, another mistake was in evidence. It had become clear that the indemnity agreement fell far short of meeting the needs of abuse victims, and would only meet about 10% of the costs of the Board’s payments. In 2009, a unanimous Dail motion demanded that the Orders increase their contribution. The Orders offered an increase to €348.5 million, comprising of €111m in cash, €2m in a rent waiver, and €235.5m in property. These offers were made on a voluntary basis and are not legally binding. The property has since significantly diminished in value, and not all of it is of use to the State. The state has rejected some offers of property, but expects to receive further substantial cash payments and property from the congregations between now and 2015.

These offers did not go far enough for the government. The cost of redress now stands at €1.5 billion. The last, late, applications to the Board have only recently been processed and funds are required to meet the costs of the new Residential Institutions Statutory Funds. The impact on the taxpayer is huge. The former policy of the current government was that the costs of redress should be shared 50:50 between the congregations and the State. In April 2010, the Government made a request to this effect.

The Minister for Education Ruairi Quinn, with cabinet support, had originally taken a hard line on this point, arguing that the congregations should make up the shortfall between the original indemnity and the 50% threshold by transferring schools infrastructure to the State. He proposed that school property should be subject to blocking orders, to prevent transfer of title without the prior consent of the state. Today’s Irish Examiner reports that this policy has now been abandoned, since the congregations were simply unwilling to negotiate around it.

An important issue here is the schools’ patronage debate, especially as it bears on reputation and social esteem. It seems that some of the congregations, particularly the Sisters of Mercy, wish to move on from the issue of redress and guilt. They will not transfer assets to government on that basis. However, some will participate in the schools patronage debate on a ‘clean slate’ basis, which recognises them as important stakeholders who have made a long-standing contribution to Irish education. The government is now seeking to decouple the question of redress from that of school patronage and control.

The inventory of correspondence published by the Examiner gives a sense of the firmly dismissive tone taken by the congregations in response to the government’s attempts to modify the indemnity agreement. Many of them feel that the 50:50 principle is a unilateral modification of what was agreed in 2002. Securing timely compliance with the original indemnity agreement has always been a problem. By July, only €70 million of the compensation (property and cash) promised to the State under the 2002 agreement had left the hands of the congregations, although the Department expects that the bulk of the remainder will have been paid by the end of this year. Some orders say that the collapse of the property market has made it difficult for them to comply, and note that they have other financial commitments – particularly charitable and social purposes. A document published in today’s Examiner details each of the congregations’ significant assets. Some individual orders have further complained that it is not clear which of them were the subject of the greatest number of successful claims to the RIRB, and appear to feel that compensation obligations should be distributed on that basis.

On the other hand, the abandonment of efforts to enter into legally binding agreements with the congregations is troubling. The congregations have performed better in the area governed by the indemnity than in the context of the Magdalene Laundries: the relevant orders were not bound into an agreement in advance of the establishment of a compensation scheme, and simply refused to contribute. The constitutional protection of the right to property – and the special protection of the church’s property – prevents the State from confiscating church assets to meet the cost of a redress fund. But the point remains that the route of private bargain, negotiation and persuasion, has left us with a very lop-sided distribution of responsibility for abuse in Roman Catholic institutions.

The orders drive a hard bargain, and are well-advised. It is interesting to note, as Broadsheet does today, that the Sisters of Mercy have transferred school properties worth €412m to the CEIST Trust. The question of how church institutions maintain control of property which might otherwise be the subject of compensation paid on litigation, or which might come within the ambit of redress schemes, has taken on significant weight in other jurisdictions. In the United States, in July, District Judge Rudolph Randa held that clerical abuse victims – the primary creditors of the bankrupt Archdiocese of Milwaukee – could not access $55m which, in 2007, the then Archbishop had placed in a cemetery trust for the perpetual care of the deceased of the Archdiocese. The Judge held that any interference with the trust would compromise the constitutional protection for free expression of religion. The former Archbishop, now Cardinal Dolan, maintains that the transfer of this enormous sum was not an attempt to avoid compensation claims. In New South Wales and in Victoria, campaigners have advocated reform of the Roman Catholic Church Trust Property Act, which the Catholic Church has used to avoid paying compensation in sexual abuse claims. The church has successfully argued, using the so-called ‘Ellis defence‘ – that diocesan statutory property trusts cannot be sued except on property claims. Victims must rely on mediation with dioceses to obtain redress under the controversial Towards Healing‘ scheme and this raises controversial issues of oversight and bargaining power, similar to those which arise on settlement of a lawsuit. (These are just the tactics than can be used to avoid paying out on successful claims. There are other means to avoid claims altogether – statutes of limitation, charitable immunity, and bishops’ invocation of the doctrine of corporation sole among them). To get the full story on redress, we may need to look far beyond the indemnity agreement and its successors.

Abuse Redress, Property and the Catholic Church in Ireland.

What's Wrong with the Magdalenes Redress Scheme?

It has been some time since we last covered the issue of the Magdalene Laundries. Since we last posted, the organisation Justice for Magdalenes has ceased its advocacy work on behalf of survivors . It will carry on research work – in particular an oral history project – under the directorship of Katherine O’Donnell at UCD. Justice for Magdalenes are to be commended for their years of important work. At the Jim Kemmy Thirst for Justice Awards Clare McGettrick asked that the Magdalene women would be treated as ‘national treasures’ and not as ‘second best’. This week, Mr. Justice John Quirke published his recommendations for a statutory redress scheme. His recommendations have been accepted by the government. It is difficult to conclude that this is the best we can do. Here are 10 problems with the Quirke scheme. There are certainly others.

1.  Even an excellent redress scheme is only part of the answer.

Doing restorative justice also requires us to look beyond the immediate context of the Magdalene laundries. In a really creative and thorough report the Irish Human Rights Commission stresses that the Government must also take steps to prevent the repetition of the sorts of abuses suffered by the Magdalene women ; for instance

  • revisiting legislation on the detention of adults with learning difficulties and mental health problems.
  • legislating against forced labour.
  •  strengthening gender equality legislation.
  • safeguarding the rights of adopted persons to information on their family of origin. (See news of a recent High Court case considering illegal adoptions here).
  • reconsidering the state’s obligations to ensure  non-state actors obligations with human rights principles.
  • improving state record-keeping practices.
  • reforming the burial and exhumation laws, the inadequacy of which was exposed by the High Park scandal. The orders’ records of death and burials continue to provoke disquiet among activists.

2.      Quirke is based on McAleese. McAleese wasn’t good enough.

I blogged on the McAleese report soon after its publication . UNCAT has confirmed that the Interdepartmental Committee was not an independent inquiry of the sort required to meet Ireland’s obligations under international human rights law. McAleese must be followed by an independent inquiry with full statutory powers to compel and retain evidence. The accuracy of the McAleese Report is put in doubt by Quirke. For instance, while the McAleese report suggested that 61% of women admitted to the Laundries remained there for less than a year, the  Magdalene women who presented evidence to Quirke’s team gave testimony indicating that this figure is closer to 9%. A new inquiry must also revisit McAleese’s findings on physical abuse within the Laundries, which are grossly at odds with the testimony collated by Justice for Magdalenes (This is, of course, unsurprising because the Interdepartmental Committee ignored JFM’s submissions of that testimony). The Quirke redress scheme is based on McAleese’s findings. In consequence, it does not purport to offer a remedy to women who suffered physical abuse in the Laundries.

3.      The redress offered under the scheme is inadequate.

As well as making arrangements for healthcare provision, the Quirke scheme offers tax-free ex gratia payments to women based on the length of their documented service in the laundries. Representative groups are divided as to the adequacy of this element of the scheme.The scheme provides for a top figure of 100,000 euro in redress; the figure available to a woman who has spent 10 or more years in a laundry. Very few women fall into this category. The majority of women who spoke to Mr. Justice Quirke’s team had been in a laundry for 1-5 years. Most of these women are 66 or over, in ill-health, badly educated and living in relative poverty. A woman of 66 who had been in a laundry for  4years, would receive:

  • Weekly payments equivalent to the state contributory pension, if she is not already in receipt of that pension.
  • 32,500 euro in general damages. General damages provide redress for “the harsh and  physically demanding work required of the women and the traumatic, on-going effects which their  incarceration and misery within the laundries has had upon their security, confidence and self-esteem”, as well as for the women’s educational deficit and current poor living conditions. General damages are capped at 40,000 euro. A woman who spent, say, 20 years in a laundry is not entitled to more.
  • 24,000 euro in respect of the labour undertaken in the laundries.  No woman will receive more than 60,000 euro in respect of labour in the laundries, whatever her length of service.

A woman in this category will not receive a 56,500 euro lump sum. 50,000 euro will be paid as a lump sum, with the remainder to be paid in weekly installments for the rest of the woman’s life. The woman in our example would receive a weekly income of 239 euro, which represents the combination of her state pension, assuming she is receiving it for the first time (230 euro per week) and the remainder of the redress due to her which is to be eked over the remainder of her life at a rate of 9 euro per week. The absolute maximum ‘top up’ to the state pension which any woman will receive under this scheme is 130 euro per week. This life income will not pass to dependents when the woman dies. When we take account of the age and ill-health of the majority of Magdalene women, it seems clear that many will die before they have been paid the full redress due to them under Quirke’s formula. This is an especially troubling prospect for women who spent longer periods of time in the laundry, who are entitled to larger sums under the scheme.

4.      Redress is not the same as compensation.

The Quirke scheme does not purport to offer compensation of the kind that would be available in a personal injuries claim. This scheme is not tailored to women’s individual injuries and experiences. It is a broad brush scheme based on broad brush assumptions. While a remedy in a personal injuries claim aims to put the claimant in the position she would be in had she not been wronged, this scheme aims only to “reflect the wish of the Irish  community to reduce the hurt and pain suffered by the Magdalen women by providing them with  monetary payments and with  sufficient health and other State benefits to ensure that the remainder of  their lives will be made as comfortable as is reasonably possible.”

Page 36 of the Report quotes Stephen Winter:

“In a restorative approach, monetary payments as sist the faultlessly burdened by  significantly increasing the material resources available for ongoing development at both  individual and community levels. But this is not their only restorative purpose. By  recognising past failures, monetary redress payments play a role in expressing state  sincerity. In terms of sincerity, individual payments fill an expressive gap in the  depersonalised context of state redress…  The voluntary character of the ex gratia  payments may appear to support this expression of state sincerity. Not bound by the  courts to deliver through an adversarial process pitting the state (yet again) against its  victims, the payments’ discretionary quality expresses the sincere nature of the state’s  reconciliatory intent.”

It is not clear that payments which appear to be patently inadequate can perform this function of sincerity. Simon McGarr (@Tupp_Ed on twitter) notes that Frank Shortt, who successfully sued the state for 27 months false imprisonment (a good analogy for the experience of the many Magdalene women who were illegally detained in the laundries) was awarded millions of euro in damages. There is a danger that if the state is perceived to have downgraded the Magdalene women’s financial entitlement, then the restorative expression of sincerity will begin to look more like risk management.

5. The redress scheme is run on heavily paternalistic principles.

As discussed above, where a woman is entitled to more than 50,000 euro under the Quirke scheme, part of the ex gratia payment will be received as a life income, which cannot then be passed on to a woman’s family as an inheritance. Women are not gaining an asset and do not have full control over the payments received. This provision is made in order to ‘strike a balance’ between the needs of ‘vulnerable’ women who fall within the scheme and those who are more capable of managing their own affairs. Why both groups of women should be treated identically is not clear.

6.   Women living in the care of religious orders are not properly provided for.

Little of substance has been said about the position of those women who live in institutions run by the former Magdalene orders.  What supports will be put in place to ensure that they have appropriate advocacy, that the money they receive under the scheme is properly used, and that their decisions are properly respected? Many of the orders with whom these women live, and lived under the laundries regime, are funded in respect of their care as ‘service-providers’ under the terms of the Health Act 2004. How will their payments under the scheme interact with that funding?

7.      Eligibility.

The Quirke Report stresses that the scheme’s administrator (as yet unidentified) must apply  ‘a fair and robust  eligibility or qualification process so that eligible applicants will have access to institutional and  other relevant records and receive such additional and other co-operation and assistance from  State and other agencies as they may require in order to enable them to properly record and verify  the work which they have done and the periods(s) o f time which they have spent within the  laundries.’ Eligibility may pose a significant hurdle. For instance, the records of the Magdalene Laundries in Galway and Dun Laoighre  are not available. Other Magdalene women contend that the records of their period in the laundries are inaccurate, unreliable and in some cases have been deliberately altered. The religious orders still retain control of their records of women’s incarceration.

8.      The waiver.

Women participating in the scheme are required to waive their entitlement to sue the state or its agencies in respect of their period in the Magdalene Laundries. Of course, the state is very well protected in this regard both by the statute of limitations and the principles on vicarious liability.  Nevertheless, as the IHRC notes in its report at p.104 , many Magdalene women have, in principle, a claim against the state for breach of constitutional rights. This should not be lightly removed by an administrative scheme.

9.      It is important to decouple remedies from an aggressive and slow adversarial process, but there is still room for responsibility.

Mr. Justice Quirke says of his scheme that:

(i) it will exclude mutually antagonistic roles and positions and will avoid invasive and painful inquiry and interrogation
(ii) it will not require the individual assessment of any of the Magdalen women and
(iii) it  will be a speedy procedure as part of a final process of healing, reconciliation and  closure and, in consequence,
(iv) it should reflect the expressed wishes of an  overwhelming majority of the 337  Magdalen women who actively participated in a consultation process with the Commission.

These are all laudable goals in the context of this redress scheme. However, it is important to recognise that the desire to avoid antagonism and delay can only take us so far. In particular, this scheme cannot do all of the work of ‘healing, reconciliation and closure’. As Katherine O’Donnell said on Wednesday’s Late Debate on RTE radio, taking the Magdalene women’s experience seriously means taking the time to do justice. Doing justice will necessarily entail further interrogation of the state’s involvement in the laundries. Closure cannot mean concealment.

10.  The religious orders which held women in Magdalene Laundries may not contribute to funding the redress scheme.

At the launch of the Quirke Report, the Minister for Justice suggested that the religious orders which were involved in the running of Magdalene Laundries should contribute to the redress scheme. However, two orders have said that they do not plan to contribute. The religious orders are relying, in this regard, on the McAleese Report’s finding that the Magdalene Laundries were not profit-making enterprises. I criticised this finding here as based on incomplete and highly subjective evidence. Findings in relation to the laundries’ finances fell outside the terms of reference of the McAleese Report. The Inter-Departmental Committee, as Simon McGarr notes on Twitter, nevertheless included figures on the laundries’ finances for reasons of ‘public interest’. It is extremely disturbing to see these findings used to avoid participation in the redress scheme. The Quirke report raises, and not for the first time, the question of the State’s apparent inability to hold church organisations responsible for human rights abuses.  The Irish Examiner reminds us that several religious orders implicated in the Magdalenes scandal amassed large sums of money in property deals during the economic boom.

What's Wrong with the Magdalenes Redress Scheme?

Guest Post: Lack of redress for the Magdalene Laundries Abuse – A Continuing Violation of UNCAT

We are delighted to welcome this guest post by Maeve O’Rourke. Maeve is the 2010-2011 Harvard Law School Global Human Rights Fellow and serves on the advisory committee of Justice for Magdalenes (JFM). You can read about Maeve and see links to her previous posts for HRinI on our guests page.

Later this month, the United Nations Committee against Torture will examine Ireland for the first time on the extent to which it is meeting its human rights obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT)Justice for Magdalenes (JFM) has taken the opportunity to submit an NGO report to the Committee against Torture on the lack of redress for women who were incarcerated and forced into unpaid labour in Ireland’s Magdalene Laundries, as we wait for the government’s response to the Irish Human Rights Commission’s Recommendation from November 2010 to immediately establish a statutory inquiry into the Magdalene Laundries abuse and ensure redress as appropriate. Continue reading “Guest Post: Lack of redress for the Magdalene Laundries Abuse – A Continuing Violation of UNCAT”

Guest Post: Lack of redress for the Magdalene Laundries Abuse – A Continuing Violation of UNCAT

Magdalen Survivor Mary Smith's Clarion Call for Justice

Magdalen Survivor Mary Smith is one of a number of guests who reflect on the themes of pain and forgiveness in Were You There?, a once-off programme presented by Joe Duffy and broadcast on Easter Monday on RTE Radio 1. Ms Smith’s testimony makes for heartbreaking listening and is essential for anyone seeking to understand the suffering that people incarcerated in religious and state-run institutions as children endured, and continue to endure.

In November 2009 Mary Smith, along with four other women who had been in Magdalen laundries, met senior officials at the Department of Justice. They told the officials that as the State funded some of the laundries after 1979, it had responsibility for women held in them. They also said they had written to religious congregations whom they hoped “would come on board” with compensation. (see the Irish Times report).

As guest blogger Maeve O’Rourke detailed so well in her blogs last year (here here and with Prof James Smith here), the State continues to deny responsibility for these women and has refused to apologise to the survivors. The State’s position is that the laundries were owned and operated and did not come within the State’s responsibility.

However, in recent months there has been an increased scrutiny of this absolutist stance.

Continue reading “Magdalen Survivor Mary Smith's Clarion Call for Justice”

Magdalen Survivor Mary Smith's Clarion Call for Justice

A light at the end of the tunnel for Madgalene Laundries survivors?

The Irish Times reports that the government will consider new evidence detailing State involvement in the referral of women to Magdalene laundries in the 1960s before it decides whether to provide redress to former inmates.

The decision yesterday by Minister for Education Batt O’Keeffe follows an admission by Department of Justice officials this week that women were transferred following court appearances to a church-run asylum on Sean McDermott Street, Dublin, during the 1960s.

According to a Spokesman for the Minister, “the information now being referred to by the group wasn’t available when the Minister for Education and Science issued his letter on September 4th, 2009,”

Significantly, a Department of Justice spokesman confirmed yesterday they now knew and accepted that a number of women charged with criminal offences were remanded in one Magdalene laundry under arrangements made by the Department of Justice. The spokesman also asserted that a number of women convicted of criminal offences were also given the alternative of going to prison or a Magdalene laundry by the courts.

These revelations are consistent with claims made by Justice for Magdalenes, a group representing survivors, which have previously been discussed on this blog.

Bearing in mind the acknowledgement by the Deparment of Justice that the state did in fact play a role in relation to the referral of women to Magdalene laundries, it seems incumbent on the Minister to revisit his conclusion that former residents are not eligible for compensation from the Residential Institutions Redress Board due to the fact that the state was ‘not complicit’ in referring women to the laundries.

A light at the end of the tunnel for Madgalene Laundries survivors?