Martin Mansergh (Tipperary South, Fianna Fail)

In this House, we have to respect the rights of those who have suffered abuse but there also has to be some regard to the constitutional rights of those accused of wrongdoing. The Human Rights Commission has decided that it should not carry out a statutory inquiry but has recommended that a statutory mechanism be established to investigate the matters advanced by Justice for Magdalenes and in appropriate cases to grant redress where warranted. It advises that such a mechanism should first examine the State's involvement in and responsibility for those entering laundries, their conditions, their departure and end of life issues. In the event of State involvement or responsibility being established a larger review should be conducted and redress should be considered.

The details of the report will be considered by the relevant Departments and the Office of the Attorney General. I fully appreciate the wish of Deputies in this House to raise the report. However, it was only published this morning and it behoves all of us to give careful and detailed consideration to what it says before giving a detailed response. For clarity it may be helpful to touch on some of the issues that will have to be considered. Besides the provision in the Human Rights Commission Act 2000 for a statutory inquiry, the other statutory mechanism for inquiries include the Tribunals of Inquiry (Evidence) Acts 1921 to 2004 and the Commission of Investigation Act 2004.

At first reading the subject matter of an inquiry as proposed by the Human Rights Commission seems to encompass both Magdalen laundries and mother and baby homes. No time limit is set. We are dealing with what happened to a large number of people over an extended period of time starting in the 1920s, although the exact figure is unclear. These were privately run institutions and, as the Human Rights Commission concludes, the available public records are poor and incomplete. The challenges facing any statutory inquiry, whether a tribunal of inquiry or a commission of investigation, should therefore not be underestimated.

We are all familiar with the excellent work done by the Commission to Inquire into Child Abuse. That was an inquiry primarily into industrial schools which were provided for by statute and funded by the Exchequer. The inquiry alone cost over €120 million and if the cost of redress is included the total cost amounted to €1.36 billion. In the current economic climate, the Government will have to take into account the practical difficulties, including the level and degree of practical co-operation that would be given by interested parties, that any potential inquiry might face, as well as resource implications. We must learn from the lessons of other investigations, and not least be mindful of the age profile of the group we are all concerned to assist in the best way possible.

I will also clarify the extent of the criminal justice system involvement in Magdalen laundries, which was frequently aimed at not giving such women a criminal record. Under the Probation of Offenders Act 1907, where a court of summary jurisdiction thinks a criminal charge is proved against the accused the court may, without recording a conviction, discharge the person conditionally on his or her entering into recognizance to be of good behaviour and to appear for conviction and sentence at any time during such period not exceeding three years as may be specified in the order; or where a person has been convicted on indictment, a court may release the offender on probation conditionally on his or her entering into recognizance to be of good behaviour and to appear for sentence at any time during such period not exceeding three years as may be specified in the order. Courts did impose conditions in some probation orders that the accused female should reside in the Henrietta Street home or a Magdalen laundry for a specified period. This mechanism was used both for relatively minor cases tried in the District Court as well as in serious cases.

It is important to note that the courts did not have any power under the Probation of Offenders Act to order a female to be detained in a home or laundry as an alternative to prison. The person was not detained in custody but if the convicted female did not abide by any of the conditions of the probation order, including residing in the Home, the recognizance could be forfeit and she was liable to be brought before the court again for sentencing. Probation orders are of a specific and limited duration of no more than three years and are of no effect once they expire. There are no central records that would show the number of probation orders requiring a female to reside in particular homes.

A preliminary examination of the records of the High Court sitting as the Central Criminal Court in the period from 1945 to 1950 indicate that a number of women charged with murder pleaded guilty to manslaughter or concealment of birth. The sentence they received was either imprisonment suspended on condition that the convicted person enter into a recognizance, be bound to the peace and enter an institution, most commonly but not always a Magdalen laundry, for a specific period; or enter into a recognizance, be bound to the peace and enter an institution for a specific period with the possibility that she might be called to have a sentence imposed within that specified period.

One year's residence in an institution was the most common period imposed. In only one case, in which a five-year period was imposed, did it exceed two years. The accused had legal representation in all of the cases. In one or two cases, a named probation officer was designated to escort the convicted person to the institution. The numbers involved seemed to have been one or two a year.

The courts have the power to remand a person charged with criminal offences in custody pending trial and sentencing. In these cases, the periods of remand were normally quite short and would rarely exceed seven days. The Department of Justice and Law Reform is responsible for providing places for people remanded in custody. In October 1960, the then Minister for Justice approved two institutions in Dublin - St. Mary Magdalen's Asylum in Seán MacDermott Street and Our Lady's Home in Henrietta Street - for use as a remand institution for females between the ages of 16 and 21, pursuant to the Criminal Justice Act 1960. Arrangements were made to ensure those remanded had the same rights and privileges provided for remand prisoners in the 1947 Prison Rules Part III, and would be visited from time to time by a probation officer and the superintendent of prisons.

All the evidence available suggests that the number of women who entered Magdalen laundries through the criminal justice system was small. It is worth noting that no complaints have been received from any of these women. I have listened on behalf of the Minister to the strongly held views that have been expressed by each of the three Deputies. I am sure their views represent the feelings of most Members of the House and most people outside it. As I said, the Government will consider carefully the points made by the Human Rights Commission in today's report.

See this speech in context