31 January 2018
Thank you for inviting me here this morning to discuss my recent investigation report “Opportunity Lost” - an investigation into how the Magdalen Restorative Justice Scheme was administered by the Department of Justice and Equality.
When I commenced this investigation in December 2016, the focus was primarily on two main issues – how eligibility for admission to the Scheme was determined and the process undertaken in assessing applications. In the course of the investigation, the manner in which women who were accepted as being eligible for admission to the Scheme but were deemed to lack capacity were dealt with, or rather were not dealt with, surfaced as a further issue. I will briefly outline my findings and recommendations in relation to these issues and explain how a Scheme which may have been devised to help bring some measure of healing and reconciliation has instead, unfortunately for some, served to reinforce feelings of distress and deep hurt.
As you know, the Magdalen Restorative Justice Scheme is an ex-gratia scheme for the benefit of those women who were admitted to and worked in the Magdalen Laundries. The Scheme was launched following the apology given in the Dáil by the then Taoiseach, Enda Kenny in February 2013. Mr Justice John Quirke was asked to advise on the development of the scheme and preliminary expressions of interest in applying were requested at the same time. The terms of the scheme were finalised in December 2013. The Scheme included payments of up to €100,000, depending on length of time spent in the laundry. The women who
benefit from the Scheme are also entitled to a range of health benefits and an income equivalent to the State Pension (Contributory).
Twelve named institutions are listed as being covered by the Scheme. The Department operated on the basis that only women who could demonstrate through available records that they had been officially recorded as “admitted to” one of these 12 named institutions were eligible for admission to the Scheme. This meant that some women who, as young girls worked in the laundries but were recorded as living in a training centre or industrial school attached to the laundries, have been refused admission to the Scheme.
My investigation found that there was too narrow an interpretation given to this eligibility criterion which completely ignored the practical reality of the situation. The reality was that many of the laundries were located on the same site (or even the same building) as training centres and industrial schools run by the same order of nuns. There is clear evidence that girls from the training centres and/or industrial schools worked in the laundry alongside the older women and, in some cases, even slept in the room next to them.
Yet, in the case of all but one institution, their applications for admission to the Scheme were refused on the basis that they had not been “admitted to and worked in” one of the 12 named institutions. Only in the case of one institution (the laundry located on Sean MacDermott Street), were some women admitted to the Scheme despite having been officially recorded as being admitted to its associated training centre instead (Ri Villa). It should be noted that Ri Villa has an almost identical profile to another training centre run by the same order of nuns – An Grianán in High Park, Drumcondra. However, while women who were resident in
Ri Villa were admitted to the Scheme (with Ri Villa considered to be part of the laundry on Sean MacDermott Street), women who were resident in An Grianán continue to be excluded.
In public pronouncements on the matter, and indeed in correspondence with my Office, the Department has tried to justify its decision to exclude some women from admission to the Scheme by referring to a footnote to the terms of the scheme. This footnote states that “institutions listed in the Schedule to the Residential Institutions Redress Act 2002 are not covered by this Scheme”.
It is true to say that some of these training centres and industrial schools were covered by the Residential Institutions Redress Scheme though not all of the women concerned had applied for redress under that scheme (and of course it must be remembered that the Residential Institutions Redress Scheme was set up to address a very different injustice). However, this footnote can be described as questionable at best. The footnote does not stem from any Government decision. Instead it was a purely administrative arrangement inserted some months after the Scheme was established and after in excess of 600 applications had already been received (with some already decided on). It was also contrary to the recommendation of Mr. Justice Quirke who had looked at the issue of the possibility of double recovery and had discounted it.
Turning now to how applications were assessed, I acknowledge that this was a difficult scheme to administer due to the lack of records, both in terms of their availability and the level of detail the available records contained. (Of course I should say at this point that, provided any and all possible sources of evidence are considered, I am not suggesting that applicants should be admitted to the Scheme
where there is no evidence that they worked in one of the listed laundries). The Scheme certainly posed challenges for both the administrators and the applicants although this is not something that was unanticipated. It is the manner in which the history of the individual applicant and the available information was interrogated and followed up on by the Department that is mainly at issue here. I found that at times it was ad hoc and incomplete, with gaps, questions and inconsistencies often simply left unanswered. Put simply, the process was just not consistent and robust enough.
In particular, I found that, despite a commitment that this would not be the case, there was nevertheless an over-reliance on the records of the congregations and, even then, often only the most basic limited questions were asked. For example, often the congregations were simply asked if there was a record of a named individual being admitted to one of their institution. The actual records or extracts were not sought or obtained in many instances. Availing of other sources of information to try to corroborate the records or the testimony of the women on their application forms (for example, electoral rolls or school registers) did evolve over time but there is no evidence that earlier applications were revisited to test the evidence with this newfound knowledge. Interviews with applicants were used only as a last resort and indeed very late in the day – the first interviews took place some 14 months after the Scheme was established.
Leaving aside the issues around eligibility and the assessment process, I also found that one particular group of women have effectively been forgotten. These are women who are deemed to lack capacity to look after their own affairs but who are eligible for inclusion in the Scheme and therefore entitled to a lump sum payment and other benefits under the Scheme. However, some of these women have been
left, since the Scheme was established in 2013, without any money being paid or in fact any steps being taken to put in place a mechanism whereby it could be paid out for their benefit. These women should have been at the centre of the Scheme, instead they have, so far, hardly benefitted at all.
I understand that there are currently 17 women affected in this position – 16 of whom live in nursing homes. (There were 40 women in this position when the Scheme was established in 2013). I also understand that nine of these women spent more than a decade in one of the listed institutions and are therefore entitled to a maximum payment of €100,000.
In correspondence with my Office, the Department stated that progress on this issue was tied up with progress on the enactment of the Assisted Decision-Making (Capacity) Act. However, the length of time required to fully enact this legislation (which is also the responsibility of the Department) was known from the outset. Despite this, the Department failed to consider other options to address this issue and facilitate payments to the women concerned until I began my investigation. In view of the advanced age and vulnerability of these women, this is, in my view, not only regrettable but inexcusable.
As a result of my investigation, I have made a number of recommendations directed at the Department –
Firstly, I have recommended that where there is evidence that a woman worked in one of the listed laundries but was officially recorded as having been “admitted to” a training centre or industrial school located in the same building, attached to or
located on the grounds of one of the laundries, the Department should fully reconsider their application with a view to admitting them to the Scheme.
Secondly, I have recommended that the Department should review any cases where there has been a dispute over the length of stay. All available sources of evidence and information should be pursued and considered in this regard.
Thirdly, I have recommended that the Department should work closely with the Courts Service to ensure that wardship applications in respect of the women who are deemed to lack capacity are processed in a timely manner and that the Department proactively provides practical support to the appropriate persons to ensure that these applications are made. I should say that I am of the view that going down the Wards of Court route is the least favorable option for protecting the rights of these women but with reluctance I find that it now represents the best course for ensuring that they receive their payments as soon as possible and before it is too late.
The Department has indicated that it has made some progress in implementing the second and third recommendations – although perhaps not as much progress as I would like to see at this stage. However, the Department has not yet indicated whether and how it intends to implement the first recommendation. Until it does so, a number of women who worked in the Magdalen laundries remain excluded from admission to the Scheme.
In addition to my recommendations to the Department, I have also made a general final recommendation. This is the first time my Office has issued a recommendation of this kind. It struck me, as this investigation progressed, that, as we continue to come to terms with our sometimes difficult past, this Scheme is unlikely to be the last of its kind. I have therefore recommended that guidance should be produced in respect of the development and operation of redress or restorative justice schemes generally. Such guidance should be developed centrally but should be applicable across all government departments and public bodies.
Thank you again for inviting me here this morning. I am looking forward to answering any questions you may have.