Tuesday, March 28, 2017
Magdalene Laundries: Dodging liability is still the name of the game
FEW people will forget the apology offered by Taoiseach Enda Kenny in February of 2013 on behalf of the State to the women who suffered in the Magdalene Laundries.
He spoke of a “nation’s shame” and of women taking the country’s terrible secret and making it their own.
“But from this moment on you need carry it no more. Because today we take it back. Today we acknowledge the role of the State in your ordeal,” he said.
However, less than two years earlier in June 2011, many members of his Cabinet were determined to distance the State as far as possible from any liability.
A series of cabinet observations on a Department of Justice memorandum for Government seeking permission for the establishment of what eventually became the McAleese Committee reveal a Cabinet concerned about three things — not conceding on the issue of that State liability, calls for further inquiries into issues like Mother and Baby Homes and foster care settings and avoiding a redress bill.
The memorandum seeks approval for the establishment of an inter- departmental committee (later the McAleese Committee) as well as the issuing of a letter to the religious orders providing them with a copy of the November 2010 Irish Human Rights Commission (IHRC) assessment of human rights issues arising in relation to the Magadalene Laundries and the observations of the UN Committee against Torture (UNCAT) and inviting them to make their records available and to enter a restorative justice process with former residents.
Observations provided by a number of ministers express concerns about redress, admitting State liability and, notably, that an investigation into Magdalene Laundries may lead to calls for inquiries into other related issues and instititions like Mother and Baby Homes, psychiatric hospitals and foster care settings.
The observations of then Minister for Education and Skills Ruairí Quinn state that while he supported the approach outlined in the Memorandum, he noted “that there may be demands for enquiries into other situations”.
“Following the publication of the Report of the Commission to Inquire into Child Abuse (the Ryan Report), there were renewed demands for the Redress Scheme to be extended to include other institutions, such as Magdalene Laundries, mother and baby homes, psychiatric hospitals and foster care settings.
“The Government decided against any extension of the arrangments and the Department for Education and skills has circulated a draft Memorandum for Government for observations, which deals inter alia, with the winding-up of the Residential Institutions Redress Board.”
This possibility of demands for other inquiries is noted by then Justice Minister Alan Shatter who states that and his proposal “only deals with the issue of Magdalene insititutions”.
The issue of financial redress is also front and centre in the Ministerial observations.
Mr Shatter is recorded as being “conscious” of the Minister of Finance Michael Noonan’s view that the proposals in the memorandum “would very likely generate pressure for opening up redress.”
However, then minister for public expenditure Brendan Howlin goes even further stating that it should be made clear that no redress would be paid to women, even if the State is found liable.
“In the circumstances the minister accepts the proposals in the memorandum. However, the Minister for Public Expenditure and Reform considers that the issue of possible financial or other redress supported by the Government must also be considered in advance of the measures in the memorandum.
“If this is not done, it is likely that there will be strong immediate public pressure for an agreement in principle to financial redress, which may lead to an open-ended commitment for the Government.
“In view of the severe constraints on public expenditure, the minister proposes that the Government make clear in the press release that it does not have the resources to allow for the establishment of redress measures should they be appropriate in this case.”
The importance of not conceding on the issue of the State’s liability in relation to inspection of the laundries was stressed in the observations of then minister for jobs enterprise and employment Richard Bruton.
“The Minister for Jobs, Enterprise and Innovation wishes to point out that, whether under employment rights or health and safety codes, there neither was, nor is there now any obligation on the State to inspect every workplace. It is clear that the State does not have the resources to inspect every workplace.
“The minister recalls that, in another context, the ex-miners compensation issue, his department was advised by the Attorney General, that the mere fact that statutory regulation exists in relation to a sector does not , of itself, impose any duty of care on the State in relation to the employees of that sector.
“The minister believes that great care should be taken to ensure that this fundamental principle is not conceded by any action or statement of the Government on this issue.”
Mr Bruton also noted “the absence of evidence to support the claims made and no formal complaints have been made to the gardaí.”
“This strongly suggests that it would be unwise, in this case, to depart from the principle that the State is not responsible for alleged tortuous acts by third parties for whom it does not have responsibilities,” state his observations.
The lengthiest observations, however, were provided by the Office of the Attorney General which stressed the “limitations” of the proposed independent committee given its lack of any powers to compel witnesses or procure documents.
“It will need to exercise great care not to make any finding that could reflect on the good name of any person affected. It will not be in a position to make findings in terms of liability, causation, or culpability. These factors will be important in managing the expectations of interested parties.”
The Attorney General also stressed the need to address the possibilty that the planned independent committee may not be seen as objective and that this was an important issue in terms of the “management of expectations”.
“Furthermore, while it is the case that the committee and its work might be perceived as a serious and detailed response by the State, chaired as it will be by an “independent” chairman, we are concerned as to whether it will actually be regarded as ‘objective’ or ‘at arms length’ from any State involvement.”
While these are matters of policy for the department (and indeed for the Government as a whole), this also is an important issue as regards management of expectations. Failure to address these issues can lead to pressure for statutory inquiries and for redress.
The Attorney General also advised the Government that the religious orders were “likely to be suspicious” of any overtures by the State on Magdalene Laundries and that their attitude from a legal perspective “may be robust”.
“The congregations have in the past brought litigation in relation to fair procedures and to protect and vindicate the names of their members and to protect the good names of their congregations as a whole.
“They have both at meetings and in the media felt that they felt ‘bounced’ by the State into redress in respect of residential childhood abuse,” states the AG advice.
On the issue of redress specifically, the AG’s office states that the proposals contained in the memorandum would “very likely generate pressure for opening up redress”.
“We note from the terms of the Memorandum, that to date no form of oppression has been proven against the congregations who ran the Magdalene Laundries. As the department itself comments, the IHRC Report is full of supposition and qualifcations. It falls short of making any factual findings.”
This rather negative view of the November 2010 Irish Human Rights Commission (IHRC) report on the Magdalene laundries taken by the Office of the Attorney General is mirrored by then justice minister Alan Shatter who is recorded as having “serious reservations about the methodology, accuracy and conclusions” of the report.
“The IHRC report is effectively based on allegations put forward by JFM and no effort was made to obtain clarification, information or observations from the State or (apparently) the relevant religious orders on any of the issues raised.”
It is noted that the women involved “have apparently chosen not to make any complaints to the gardaí or to pursue a civil action”.
“There is an underlying presumption that any inquiry will confirm that there were serious abuses and that the State responsibility rather than the religious orders should provide redress.”
Conall Ó Fátharta.