Magdalene Restorative Justice Scheme

In May 2013, Mr Justice John Quirke made recommendations to government regarding the contents of an ex gratia ‘restorative justice’ scheme for Magdalene survivors. The Quirke report was made public and distributed to Magdalene survivors. In June 2013 the government agreed on the Dáil record to accept all of Mr Justice Quirke’s recommendations ‘in full‘ (see also: https://www.kildarestreet.com/debates/?id=2013-06-27a.384&s).

In order to obtain financial payments from the Magdalene ex gratia ‘restorative justice’ scheme (the Scheme), Magdalene survivors have been required to sign legal waivers abandoning all rights of action against the State or any State agency regarding their experiences in Magdalene Laundries.

However, the Department of Justice and the government as a whole has failed to fully implement the Scheme. In fact, whole aspects of it remain un-implemented to date. Since 2014, JFMR and individual members of JFMR have been expressing concerns regarding the administration of the Scheme, including in newspaper opinion editorials, public reports to United Nations bodies, briefing notes to all TDs and Senators, correspondence to the Department of Justice and correspondence to Dublin City Council.

In summary, we have the following concerns regarding the administration of the Scheme:

Failure to establish important aspects of the recommended ‘Dedicated Unit’

The following aspects of the ‘Dedicated Unit’ recommended by Mr Justice Quirke have not been implemented:

  • practical and, if necessary professional, assistance to enable those women who wish to do so to meet with those members of the Religious Orders who have similar wishes to meet and interact;
  • similar practical assistance to meet and interact with other Magdalen women;
  • the acquisition, maintenance and administration of any garden, museum or other form of memorial which the Scheme’s administrator, after consultation with an advisory body or committee, has decided to construct or establish;
  • investigative and other help and assistance in obtaining such sheltered or other housing as they may be entitled to; and
  • investigative and other help and assistance in obtaining such educational assistance as they may be entitled to.

Donnybrook Magdalene Laundry building planning permission application

While the Department of Justice is failing to implement the aspect of the Scheme concerning a memorial, the last Magdalene Laundry building in Ireland with its contents largely intact is currently subject to a planning permission application for demolition by a commercial property developer. Recent video footage of the interior of the Donnybrook Magdalene Laundry building suggests that a large volume of paperwork remains inside, alongside artefacts from its time as a Magdalene Laundry before the Religious Sisters of Charity sold the building in 1992. JFMR has made detailed submissions to Dublin City Council, calling for consultation with Magdalene survivors regarding the fate of the building and its contents. The Archaeological Assessment accompanying the planning permission application cautions that women’s remains may be buried, unmarked, on the site. It further notes the heritage significance of the laundry site, including the building’s internal features and machinery relevant to its past use.

Sean McDermott Street Magdalene Laundry building for sale by Dublin City Council

JFMR is deeply concerned that Dublin City Council (DCC) has put the former Sean McDermott Street Magdalene Laundry building up for sale while the Department of Justice is failing to establish a memorial in consultation with Magdalene survivors. More recently, DCC agreed an emergency motion to call a halt to the sale in order to facilitate a consultation process with Magdalene survivors.

Failure to provide the full range of health and community care services recommended by Mr Justice Quirke in 2013

RWRCI Act 2015

Mr Justice Quirke’s very first recommendation was that ‘Magdalen women should have access to the full range of services currently enjoyed by holders of the Health (Amendment) Act 1996 Card (“the HAA card”)’.

The HAA card was created in 1996 for those who contracted Hepatitis C through State-provided blood products. It gives access to numerous private (as well as public) healthcare services and wide-ranging access to medicines, drugs and appliances. Mr Justice Quirke included a guide to the full range of services available to HAA cardholders at Appendix G of his report. His first recommendation continues: ‘Details of the range, extent and diversity of the community services to be provided to the Magdalen women are described within Appendix G’.

JFMR voiced its concerns (available here and here) at the time that the Redress for Women Resident in Certain Institutions Act 2015 (‘RWRCI Act’) was being debated in the Dáil and Seanad that it did not provide for healthcare equivalent to the HAA card standard, as recommended by Mr Justice Quirke. Instead, it appeared that the RWRCI card for Magdalene women was almost identical to an ordinary medical card – which the majority of the women already hold.

In August 2015, several dentists confirmed publicly (p164) that, instead of receiving HAA-standard services as recommended by Judge Quirke and agreed by the government in 2013, Magdalene survivors have been given a card that entitles them only to the ‘limited and incomplete treatment…for most medical card holders.’ The dentists called on the Council of the Irish Dental Association ‘to publicly disassociate itself from this act by the Government and to speak out publicly on behalf of its members who do not accept the injustice we are expected to support.’

JFMR wrote to the National Director of Primary Care at the HSE on 25 February 2016 to ask for clarification regarding all ways in which the women’s entitlements under the RWRCI card differ from those already available under the standard medical card, as many women in contact with JFMR – and indeed JFMR – are still struggling to understand this. JFMR asked for a written response so that the information can be easily disseminated to survivors and also for a meeting with the National Director. JFMR received an acknowledgement letter from the National Director’s office on 15 March 2016 but has received no subsequent, substantive, response to date.

Health and community care for women abroad

JFMR notes from the Minister for Justice’s reply to a Parliamentary Question on 2 February 2017 that, according to the Minister, “[t]he HSE has administrative arrangements in place for health and social services for women living outside Ireland”. It is JFMR’s understanding that such arrangements have not, in fact, been put in place for all Magdalene survivors residing outside of Ireland.

The Department of Justice announced on 24 June 2014 that ‘access to equivalent medical services for participants living abroad will be dealt with on an administrative basis by the HSE’. Furthermore, the Irish Independent reported on 25 June 2014 a spokesperson for the government stating that the State would pay for health insurance for Magdalene survivors living abroad. Mr Justice Quirke’s report is explicit that his recommendation regarding health and community care should apply to ‘each of the women who were admitted to and worked in a designated Magdalen laundry’.

Failure to back-date pension payments to retirement age

Mr Justice Quirke recommended that, under the Scheme, Magdalene survivors should be ‘put…in the position that they would have occupied had they acquired sufficient stamps to qualify for the State Contributory Pension’. JFMR submits that the Department should have read this recommendation as requiring the backdating of pension payments to retirement age, rather than to the beginning of the Scheme’s administration.

Lack of assistance for particularly vulnerable Magdalene survivors

JFMR is concerned that the Department of Justice has deemed at least 19 women to lack sufficient capacity to apply to the Scheme and that these particularly vulnerable Magdalene survivors are being prevented from benefitting from the Scheme. The Minister for Justice chose not to propose legislation to provide these women with assistance and advocacy in applying to the Scheme, preferring to delay the processing of their applications until the Assisted Decision-Making (Capacity) Act 2015 is in operation. JFMR has requested that these women, and all those currently living in the custody or care of the religious congregations responsible for operating the Magdalene Laundries (many of whom do not have close family members), be provided with personal advocates under the Scheme. JFMR suggests that the advocates might have access to an additional fund to provide support to the women while they wait for admission to the Scheme.

Insufficient advertising of the Scheme abroad

JFMR draws attention to the experience of its member Prof James Smith, who lives in Boston, regarding the Scheme’s insufficient advertising outside of Ireland and the UK. As Prof Smith explained in the Irish Times, in mid-2016 he was invited to speak about the Magdalene Laundries to the Coalition of Irish Immigration Centers’ (CIIC) social services committee, comprised of social workers with vast experience serving Irish immigrant communities in Chicago, San Francisco, Boston and New York. None of the participants in the meeting knew about the Magdalene Scheme. As Prof Smith wrote: ‘They had received no instructions, no guide explaining benefits, no application procedures…The group refuted the idea that the 11 US-residents who had applied to the scheme at the time (out of a total of 802 applicants) was the sum-total of Magdalen survivors living in the US. How would survivors know about it, they asked? Why wasn’t the scheme advertised here in the US?’

JFMR is disappointed by the Minister for Justice’s statement on 28 February 2017 that ‘the Department of Foreign Affairs and Trade, on request from my Department, circulated an information note on the Magdalen Laundries Restorative Justice Ex Gratia Scheme through their embassies around the world to the local Irish communities. My Department is satisfied that an information note is still up to-date and does not see the need to re-circulate what is already in circulation.’

Unreasonable exclusion of women who worked as children in Magdalene Laundries on the basis of an irrationally narrow interpretation of the ‘admitted to’ criterion

JFMR is troubled that the Department has excluded from the Scheme women who were forced into unpaid labour in Magdalene Laundries as children, while registered on the rolls of children’s residential institutions located in proximity to Magdalene Laundries. While accepting that these women worked in Magdalene Laundries, the Department rejects their applications on the basis that the Scheme is for women who ‘were admitted to and worked in’ Magdalene Laundries and, according to the Department, these children were not ‘admitted to’ the Laundries. The Department’s decision is based on an irrationally narrow interpretation of the meaning of the words ‘admitted to’. These women have suffered doubly as a result of their experiences in both the children’s institutions and the Magdalene Laundries. The fact that children were transferred on a daily, or otherwise repeated temporary, basis to Magdalene Laundries when they should have been receiving education and care in children’s institutions was not acknowledged in the Ryan Report or in the matrix used by the Residential Institutions Redress Board. Nor was this practice acknowledged in the McAleese Report. The women who are continuing to seek inclusion in the Scheme on the basis of this practice are drawing attention to previously hidden systematic forced labour, denial of education and inhuman or degrading treatment of children. Their exclusion from the Scheme amounts to wilful ignorance of their experiences – in direct contravention of the intent behind the Taoiseach’s and Tánaiste’s apologies on 19 February 2013.

Lack of public access to the archive of State records which informed the IDC Report

JFMR highlights that neither the Department of Justice nor the Department of the Taoiseach has taken steps to release State records regarding the Magdalene Laundries’ operations to the public from the archive of the Inter-departmental Committee to establish the facts of State involvement with the Magdalen Laundries (‘the IDC’). These records could be of use to women seeking to challenge their exclusion from the Scheme and their production is an important aspect of the State’s obligation to ensure reparation – including access to the truth – following systematic human rights violations in the Magdalene Laundries.

Chapter 6 of the IDC Report is devoted to the subject of the IDC’s archive. The Chapter emphasises the ‘scattered nature’ of the State records regarding the Magdalene Laundries and states that ‘maintenance of these copies together in a single location will be a concrete outcome to the Committee’s work and may be a resource for future research.’ The Chapter discusses the inclusion of some anonymised data from the religious congregations’ archives, noting that ‘these records would also be of interest to researchers and historians, now and in the future’. It states that the IDC archive will be held in the Department of the Taoiseach and that access will be subject to restrictions on the basis that a number of the records contain ‘sensitive personal data’.

Contrary to what Chapter 6 of the IDC Report suggests, the Department of the Taoiseach appears to have adopted a policy of blanket secrecy regarding the entire IDC archive, which is unnecessary as not all of the archive’s contents contain sensitive personal data, and which fails to respect Magdalene survivors’ right to know the truth. In March 2016, Claire McGettrick of JFMR applied under the Freedom of Information Act to the Department of the Taoiseach for access to records held by the Department in relation to the IDC’s investigation of various issues. The request was refused. The refusal was upheld by the internal reviewer on 17 May 2016 on the basis that:

…The archives of the Inter Departmental Committee are in the Department for safe keeping in accordance with the wishes of the Committee. They were not created by this Department; the Department was not represented on the Committee; and the work of the Committee is not connected with the functions or business of the Department. I am upholding this decision, as I consider the records are not held by the Department within the meaning of section 2(5) of the Act…the archive comprises copies of material from other Departments and agencies as well as material generated by the Committee…You ask about the archive being made available in the future…From the point of view of good practice, the arrangements will be reviewed in about five years.

Refusal to accept State responsibility for forced labour or other abuse in Magdalene Laundries

JFMR is disappointed in the extreme that, since the Taoiseach’s State apology, the Minister for Justice and her Department have issued numerous public statements denying any State responsibility for human rights abuses in the Magdalene Laundries. The State has never established an independent investigation into abuse in the Magdalene Laundries (the IDC’s remit was limited to investigating State interaction with the institutions). The Minister and Department for Justice now rely on the State’s own failure to investigate in order to justify their false claim that there is no publicly available evidence of State responsibility for systematic abuse in the Magdalene Laundries.

In February, the Minister for Justice stated on the Dáil record, while responding to a Parliamentary Question concerning the Ombudsman’s investigation into the Department’s administration of the Scheme, that:

Although there was no finding in the McAleese Report which indicated that the State had any liability in the matter, following the report’s publication the Taoiseach issued a State apology to the women.

Ireland was examined by the United Nations Committee on the Elimination of Discrimination Against Women last month. In its report to the Committee, the government (led by the Department of Justice) stated that it knows of ‘no factual evidence to support allegations of systematic torture or ill treatment of a criminal nature’ in Magdalene Laundries. The government has repeatedly stated to UN human rights bodies in the years since the Taoiseach’s apology that there is ‘[n]o factual evidence to support allegations of systematic torture or ill treatment of a criminal nature in these institutions’, and that the facts uncovered by the IDC ‘do not support allegations that women were systematically detained unlawfully in these institutions or kept for long periods against their will’. [See e.g. replies of Ireland to the list of issues in relation to the fourth periodic report of Ireland, Addendum, CCPR/C/IRL/Q/4/Add.1, 5 May 2014, paras 52-57.  See also letter of 8 August 2013 from Permanent Representative of Ireland to Felice D. Gaer, Rapporteur. See also Ireland’s second periodic report to the Committee Against Torture, 20 January 2016, UN Doc CAT/C/IRL/2, paras 235-268.]

JFMR’s report to the UN Committee on the Elimination of Discrimination Against Women contains a summary of the substantial evidence of gross and systematic human rights violations contained in both the IDC Report and Mr Justice Quirke’s Report. In its recent report to the UN Committee on the Elimination of Discrimination Against Women, the Irish Human Rights and Equality Commission stated that:

The IHREC is concerned that the rights of more than 11,000 women were systematically violated while living in institutions known as Magdalen Laundries. The IHREC is of the view that these women and girls were subjected to mistreatment and were victims of forced or compulsory labour in contravention of Ireland’s obligations under the International Labour Organisation (ILO) Forced Labour Convention and, as a result, were denied their basic rights to education, fair wages and social security. The IHREC also notes that while an Inter-Departmental Committee (IDC) to establish the facts of the State involvement with the Magadalen Laundries, was established in 2011 on foot of a recommendation by the UN Committee Against Torture, it fell short of the full independent statutory mechanism to investigate the State’s role in the Laundries as recommended by the former IHRC in its initial assessment of the system.

Regarding forced labour, it is indefensible for the Minister for Justice, her Department or the government as a whole to claim that they know of no factual evidence that would give rise to the belief that the State has any legal liability for forced labour in Magdalene Laundries, because:

  • The Department of Justice accepts that children and women worked in Magdalene Laundries. The Taoiseach and Tánaiste also acknowledged this fact in their apologies on 19 February 2013.
  • The  IDC Report (McAleese Report), Chapter 19, contains evidence of girls and women being forced constantly to carry out ‘heavy and difficult’ work at commercial laundering, sewing and making handcrafts, including rosary beads and clothing. Chapter 19 cites women’s complaints of being tired, ‘soaking wet’ and too small to operate laundry machinery safely.
  • The IDC Report clarifies that girls and women were not paid wages for the work they were forced to carry out. Chapter 20 states that ‘[w]ages were not paid either to the girls or women who worked in the Laundries or to the members of the Religious Congregations who also worked there.’ The Chapter also notes that the Conditions of Employment Act, 1936, exempted the religious congregations from the legislative requirement to pay wages to the girls and women working and living in Magdalene Laundries.
  • The IDC Report provides clear evidence that girls and women were not free to leave Magdalene Laundries while they were being forced to work. Chapter 19 states that ‘a large number of the women spoke of a very real fear that they would remain in the Magdalen Laundry for the rest of their lives’ and the Chapter quotes the evidence of women who believed that they would die in the Magdalene Laundries. Chapter 19 summarises evidence from several of the religious congregations explaining why they locked doors and gates of the Magdalene Laundries and cites the testimony of a former novice in a Magdalene Laundry that ‘both the external and internal doors of the Laundry were locked.’
  • The IDC Report provides evidence of punishments in the Magdalene Laundries. Chapter 19 cites evidence of some women being shaken, poked or ‘dug’ at with implements, rapped on the knuckles, slapped or punched, forced to kneel for several hours, put in ‘isolation’, confined in a padded cell or forced to lie and kiss the floor, having soiled bedsheets pinned to one’s back, or having one’s hair cut. The Chapter also includes some of the religious congregations’ evidence regarding punishments, including prolonged standing and kneeling, and transfer between institutions.
  • The Irish Human Rights Commission published a Follow-up Report on State involvement with the Magdalene Laundries, which evaluated the IDC Report’s contents from a legal standpoint ‘in the absence of a more thorough investigation, as recommended by the IHRC and the United Nations Committee Against Torture’. The IHRC concluded that forced or compulsory labour likely occurred in Magdalene Laundries, in violation of the 1930 ILO Forced Labour Convention and Article 4 of the European Convention on Human Rights (and, therefore, JFMR submits, the Irish Constitution). The IHRC stated, inter alia:

‘…it would appear likely, at a minimum, that all girls or women who entered the Laundries on remand or probation were by definition in a situation of detention and, thus, in fear of a penalty unless they complied with the instructions of the detaining authorities (here the relevant religious congregation)…’;

‘insofar as the women and girls in the Laundries were in a vulnerable and isolated situation, being dependent on the religious authorities in the Laundries for their welfare, subsistence and liberty, and given that at least some of those women were under threat of a penalty from the State if they left the Laundries, while others may have faced a loss of privilege or been subject to penalties if they refused to work, there may have been a violation of Article 4 of the ECHR. The IDC Report does not provide any evidence to refute this contention, and in many respect reinforces this conclusion’;

‘it could be said that in 1936, the Government not only legislated for the non-payment of certain workers carrying out industrial work, but in not clearly suppressing and outlawing forced or compulsory labour of girls and women, as required under the 1930 Convention, it acted in direct contravention of its obligations under the Convention’;

‘This violation was further compounded by the limited monitoring of Magdalen Laundries by the Factories Inspectorate, both in relation to the frequency and scope of those inspections. This is particularly so given the fact that the Factories Inspectorate were not specifically authorised and did not in fact examine whether the labour was lawful, whether wages were paid or whether the girls and women were present on a voluntary basis, being primarily concerned with occupational health and safety issues’; and

‘The State’s culpability in regard to forced or compulsory labour and/or servitude in the Laundries appears to be threefold. Firstly; at the administrative level, it failed to outlaw and police against such practices, including through criminal sanction. Secondly; the State or its agents placed girls and women in the Laundries knowing that such girls and women would be obliged to provide their labour in those institutions, and then thirdly, the State further supported these practices by benefiting from commercial contracts with the Laundries’.