Mr. Jimmy Martin:

I thank the Chairman especially for agreeing to facilitate my appearance today as I was away on business last week. Before addressing the recommendations of the report of the Ombudsman, I want to give some background. I will start with the residential institutions redress scheme run by the Department of Education and Skills as that has a bearing on the main issue raised by the Ombudsman. Following on from a State apology made in May 1999 for child abuse in various institutions, a statutory redress scheme was established pursuant to the Residential Institutions Redress Act 2002. A board was established to make awards to people who suffered abuse as children in any of the institutions scheduled to that Act. My understanding is there is no specific definition of "abuse" and that that was left to the redress board to decide. There was an acceptance by the State that it was legally as well as morally responsible for these wrongs, and the 2002 Act allowed a person to pursue a claim either through the courts or through the board. The cost of payments under this scheme alone was in the region of €1.25 billion. This does not include legal or administrative costs. As well as the redress board, a statutory commission was established to inquire into the historical abuse of children in certain institutions.

The commission published its report in 2009 and concluded that physical and sexual abuse was widespread in many of the institutions. Industrial schools were particularly prominent in the report. The Ryan commission report was the first comprehensive and authoritative account of the abuses suffered by children in these institutions. In the same year, the Department was approached by and met two groups, Justice for Magdalenes and Magdalene Survivors Together. Our understanding was that they wanted the State to acknowledge responsibility for abuses in Magdalen institutions, issue an apology and provide a redress scheme similar to that provided for residents of industrial schools under the 2002 Act. It was clear that they regarded Magdalen institutions as separate institutions from industrial schools.

In June 2011, Dr. Martin McAleese was asked to look at State involvement with the Magdalen institutions, in respect of which he was supported by an interdepartmental committee. His report, comprising over 1,000 pages, was published in February 2013 and it is a comprehensive account of the ten Magdalen institutions that operated within the State for a period of 70 years. Following on from this report, the Taoiseach apologised unreservedly to the women who had been admitted to Magdalen institutions. In his apology, the Taoiseach referred in detail to the findings of the McAleese report he and announced that a High Court judge, Mr. Justice John Quirke, had been asked to devise a scheme to address the needs of the Magdalen women. Mr. Justice Quirke produced his report in May 2013, which was published by Government in June 2013. While all his recommendations were accepted in principle by the Government there were administrative issues to be teased out and an interdepartmental committee was tasked with examining how they could be best implemented. On the basis of that committee’s report, the ex gratia scheme was finalised and adopted by Government on 5 November 2013. The scheme applied to 12 named institutions, ten of which were Magdalen institutions. These institutions were perceived by the religious as places of refuge or asylum for women. A proportion of the funding for their operation came from commercial laundries on site and the institutions became known to the public as Magdalen laundries. However, the laundries were not intrinsic to the institutions. Some had farms and in others the women engaged in lace work which was sold. The other two named institutions, Stanhope Street, Dublin and Summerhill, Wexford were not Magdalen institutions. Our understanding is that they were live-in training centres where young girls who had finished primary school were taught skills that would make them more employable in domestic service, hotels, etc.

I would like to make three points about the administration of the scheme. First, we were very conscious of the advanced age of many of the women concerned and, therefore, the Department went to great lengths to make as many payments as possible as quickly as possible. Even though the scheme was not finalised until November 2013 arrangements were put in place to start processing applications in June 2013. As a result, just three months after finalisation of the scheme, namely, February 2014, almost 200 applicants had received their lump sum payments and a further 120 had received a formal offer. As such, almost 40% of total applications had been processed in that period. Second, this was not just a Department of Justice and Equality scheme. A unit of that Department assessed applications and paid the initial lump sums but ongoing payments are made through the Department of Employment Affairs and Social Protection and health benefits are dealt with by the Health Service Executive. For many of the women concerned the pension payments are more valuable than the lump sum payments. I would like to take this opportunity to thank the staff of those agencies for all the work they have done in facilitating this scheme. Third, the Department was represented at meetings in April 2010 between former residents of institutions - industrial schools, in particular - and the Taoiseach. What was particularly striking and sad was the anger expressed by those residents towards those who were tasked with assisting them in obtaining redress under the 2002 redress Act. A lot of dissatisfaction was aired at that meeting. Influenced by this, we advised Mr. Justice Quirke that the scheme should operate with the least amount of work and stress imposed on applicants. Once an application is received, the staff of the unit within the Department take on the responsibility of carrying out all the research necessary to verify that the applicant had been in one of the 12 institutions and the timeframe in that regard. This is all that is required for a provisional offer to be made to an applicant as the scheme is based only on verified length of stay in a relevant institution.As a result of the active and sensitive approach by the staff of the unit, a good rapport has generally been established with applicants and the feedback has been very positive. As an example, I would like to read an extract from the latest expression of appreciation received from the daughter of an applicant, which is addressed to the Minister and dated 3 September 2017.

I feel X (a Justice staff member) went above and beyond, she was so nice and always said if my mam had any questions or was unsure of anything just to pick up the phone, and my mam been 87 can sometimes be nervous of new people but with X this wasn't the case. So I would just like to let you know how professional she is at her job and how kind she has been and it didn't go unnoticed.

This is typical of the response of most applicants.

In terms of the current state of play under the scheme, 830 applications have been received, approximately 200 of them from abroad, one has been withdrawn and one is still being processed. Decisions have been made in the case of the remaining 828 cases, 686 applicants have been paid a total of €25.7 million in lump sum payments and a further €258,000 in legal costs has been paid out. This does not include the ongoing costs of pension payments or medical card provision, which amounts to several million euro per year. Offers have been made but not yet paid in the case of a further 36 cases, including 17 cases where there is an issue of capacity. Some 106 applications have been refused as not having been admitted to and worked in one of the 12 institutions.

I will now comment on the recommendations made by the Ombudsman, the first of which relates to eligibility for admission to the scheme. The Ombudsman has taken the view that the Department of Justice and Equality has the authority to make payments under the scheme to persons who were in another institution on the same campus as one of the 12 named institutions. When this was first raised with us in the context of one institution, An Grianán, our response was that we would be as flexible as possible in applying the scheme but where a person had been admitted to an institution that was regarded in law as a separate institution and was covered by the residential institutions redress scheme we did not have the discretion or authority to include them in the Magdalen scheme. We said that we would have to go back to Government to get a decision on such a matter. The Ombudsman did not agree with that view and it was this issue that led to his investigation. His recommendation now is that the scheme applies to all other institutions on the same campus. In most cases, these would be industrial schools but they would include other types of institutions, such as orphanages, primary schools and so on as well.

My apologies in advance to the committee but my explanation as to why the Department does not have the authority to extend the scheme in the way suggested by the Ombudsman has to be legalistic and it does not relate to the merits or otherwise of extending the scheme, which is a policy matter for Government. As civil servants, we are required to account to the Comptroller and Auditor General for every payment made and, if necessary, to the Committee of Public Accounts. We have to be able to show the legal basis or other authority for payments made from public funds. The Magdalen scheme is an ex gratiascheme with no statutory base as approved by Government in 2013. It does not fall within the normal remit of the Department of Justice and Equality, which is significant in terms of our ability to pay. The sole authority for payments under the scheme therefore is the Government decision on the matter. The Department takes the view that the relevant Government decisions do not grant authority to make payments under the scheme to a person admitted to a legally separate institution even if it was on the same campus as one of the 12 named institutions. The reasons for the Department taking this view are as follows. The Government, when approving the scheme, accepted the September 2013 report of the interdepartmental group on implementation of the Quirke report, which specifically addressed the question of other institutions on the same campus and stated that it was proposed to exclude institutions such as industrial schools and primary schools to avoid double payments and this was accepted by the Government.

The initial assessments of numbers and costs of the scheme were calculated only on the basis of those in Magdalen institutions. At no stage did the Government, any Government Minister or any official express a view to us that a person admitted to an institution other than the 12 listed would receive payments under the Magdalen scheme. The scheme approved by Government is not focused on laundry work. Women admitted to Magdalen institutions who never worked in the laundry are covered by the scheme. The scheme was a response to the McAleese report which gives a vivid impression of those who lived in these institutions. It refers to how most found themselves quite alone in what was, by today's standards, a harsh and physically demanding environment. Some were poor and homeless, some were placed by their own families, some were young women over 16 who had been orphaned, some did not know why they were there and some did not know when they would get out and see their families again. The High Court, in a judgment delivered on this issue on 1 June 2017, stated, "It is not appropriate that any applicant under the ex gratia scheme should receive compensation, however described from the Redress Board Scheme and the ex gratia scheme covering the same wrong." The Department of Justice and Equality cannot unilaterally extend a scheme that has financial implications for other Departments.

I mentioned the question of double payments. There was one exception which proves the rule. The Department of Education and Skills, in the interdepartmental committee, drew our attention to the fact that a limited cohort of women were admitted to Magdalen institutions having been transferred from industrial schools. These were already entitled to payments under the residential institution redress scheme for the period up to the age of 18. That covered the period in the industrial school as well as the period in the Magdalen scheme. A concern was raised that this limited cohort could receive a double payment for the same period for the same institution. It was this limited exception that was considered by Mr. Justice Quirke and his decision was that the scheme should not seek to investigate or consider this matter further.

It is this first recommendation of the Ombudsman that causes us difficulty. It has administrative, financial and resource implications for ourselves and, more importantly, for other Departments. At a minimum, it would at least double the number of institutions in the scheme. We have started a process to estimate the additional numbers that would be involved. As part of that process, we are consulting other Departments which have an interest in the running of the scheme.

Moving to the second recommendation, for the reasons explained earlier, our application process was designed to make payments as quickly as possible and with the minimum stress for the applicant. To do this, we started the process before the scheme was finalised. We deliberately processed the most straightforward applications first. We looked for written records to support an application. Where written records confirmed an applicant's entitlement and the applicant agreed, we made an offer almost immediately. Where the records held by the religious bodies were not complete or were challenged by the applicant, all other sources were checked, including social insurance, school records, electoral registers etc. At all stages, there was much informal contact with applicants. Indeed, some of the women used to ring up regularly for a chat.

A formal interview was only required where there were no written records available to support an application. These were processed later since they were the most complicated applications, with interviews starting in October 2014, by when we had built up a level of expertise that allowed a fair and decisive interview. Only 73 cases required a formal interview and, of those, 69 were successful in their application, largely on the basis of their testimony and in the absence of supporting documentation. This point is noteworthy in illustrating that we sought to assist rather than obstruct women in getting their entitlements. Women regarded this formal interview as quite a harrowing experience. They had to be reassured. They were always allowed to bring a companion but they did not like the interview process.

The Ombudsman is correct that the approach of starting to process applications before the full details had been finalised by the Government has disadvantages. We believe these were outweighed by the advantages. The alternative, if we followed the system the Ombudsman advised, would have been to slow down the process of payments by six to 12 months. Although we started accepting applications before the scheme was finalised, the full terms of the scheme were only made available to an applicant when a formal offer was made. If a person was refused, an explanation of why a person was refused was given. I accept the Ombudsman's view that it was remiss of us not to have given all applicants, including those who were refused, the full terms of the scheme at the earliest possible stage. I would also point out that when an applicant was refused, the applicant was advised that it could be referred to the Ombudsman's office. As recommended by the Ombudsman, we are happy to review all those cases where there was a dispute over the length of stay using all available sources of evidence. To ensure that such reviews are seen to be objective and independent, we intend to set up a panel of people from outside to carry out these reviews.

I will address the matter of capacity. The Ombudsman, in his report, explains the background to the capacity issue and why it was not considered possible to use the Nursing Homes Support Scheme Act 2009, as recommended by Mr. Justice Quirke. Following discussions with our colleagues in the Department of Health, we thought that the second best option would be to include a provision in an Act specific to the Magdalen scheme and we had a Bill ready shortly afterwards which became the Redress for Women Resident in Certain Institutions Act 2015. However, by the time that Bill was ready for publication, the Assisted Decision-Making (Capacity) Act was at an advanced stage and was enacted the same year. It is clear that the decision support service to be established under the Assisted Decision-Making (Capacity) Act 2015 would be the most effective option in these cases. New administrative processes and support measures, including the setting up of the decision support service within the Mental Health Commission, a body under the Department of Health, must be put in place before the substantive provisions of the Act can be commenced. A high-level steering group is overseeing the establishment of the decision support service. A director of the service was appointed in October 2017 and €3 million has been provided in the 2018 Estimates for the Department of Justice and Equality for the service's establishment.

Pending the establishment of the decision support service, officials have been encouraging the use of other options to allow payments to be made, and we continue to examine what other options may be available. There are currently 17 such cases and three are in the process of making applications to be wards of court. We are in touch with the Courts Service about facilitating such applications. However, being made a ward of court may be viewed as inappropriate in cases and it cannot be regarded as the automatic solution. While the Department regrets the delay in paying these women, it is also conscious that it has a duty of care to protect such vulnerable women from potential financial exploitation. The wards of court system is regarded as being incompatible with the UN Convention on the Rights of Persons with Disabilities. Unfortunately, it is a very black-and-white situation. It is appropriate for a person who has absolutely no capacity but a person who has some capacity but not complete capacity loses all decision-making powers if he or she is made a ward of court.

The Ombudsman has made the point that the last recommendation in the report is addressed not only to the Department of Justice and Equality, and we have written to the relevant Departments to draw their attention to it.