Mary Lou McDonald (Dublin Central, Sinn Fein) | Oireachtas source

The Minister has helpfully reminded us that over 10,000 women spent time in Magdalen laundries since the founding of the State. Approximately half of them served more than three years, not always but often following referral by State agencies – from industrial and reform schools, health and social services, county homes and psychiatric hospitals to the criminal justice system, including the Courts and An Garda Síochána. She has reminded us that some of these Magdalen women were sent to the laundries because they were unmarried mothers. Others were sent because they had physical or mental disabilities or psychiatric illnesses or were elderly. Still others were sent as a means of discipline or punishment, often for minor or imagined infractions, following family disputes or as a result of abuse or neglect in their own homes. I have met a survivor who was sent to a laundry for stealing an apple when she was hungry. These are the women who, in these institutions and with State collusion, were subjected to arbitrary deprivation of liberty, forced labour, and inhuman and degrading treatment, including physical, mental and sexual abuse. Those are all very serious human rights abuses for which the State, in its failure to protect, is ultimately responsible.

It is in this context that I made my opening remarks prior to the debate being adjourned. It is in this same context that I now state most emphatically that, whatever their merits, neither this Bill nor the broader previously introduced scheme of ex gratialump sum payments and pensions to which it relates, represent adequate redress for those women who were resident in certain institutions - that is to say, the victims and survivors of the Magdalen laundries. In view of the fact that last night the Government yet again refused to expressly include the laundries in the list of institutions to be investigated by its proposed new commission under the leadership of Judge Yvonne Murphy, the legislation before the House should, therefore, have been used to establish a dedicated independent statutory and judicial inquiry process in recognition of the fundamental inadequacy of the McAleese process that led to Mr. Justice Quirke’s recommendations.

As the Minister is well aware, this inadequacy has been recognised at international level and criticised by no less a figure than Professor Nigel Rodley of the UN Human Rights Committee. However, despite the Minister’s awareness, the Magdalen women continue to be treated as second-class citizens and, moreover, second-class victims by both the State and this Government. I appeal to the Minister, who I believe is genuinely and entirely sensitive to the injustice of the situation, to face down her Cabinet colleagues, including the Ministers for Finance and Public Expenditure and Reform, and take care of the unfinished business relating to the Magdalen issue left to her by her predecessors in the Department of Justice and Equality. If she does so, she will have the strong support not only of those in Sinn Féin, but also, I am sure, from other Deputies on all sides of the Chamber. More importantly, she will receive such support from the victims and survivors who would see her as their long-awaited champion.

The Minister has indicated that she is fully aware of the criticisms of this legislation that have been levelled by Justice for Magdalenes Research, the National Women’s Council, the Irish Council for Civil Liberties and Amnesty International. Those organisations have described this Bill as "unacceptable, unfair and full of broken promises to survivors". This is because they genuinely believe that it does not honour the promise made by the Government in June 2013 to the effect that it accepted and would, therefore, implement in full all of Mr. Justice Quirke’s recommendations for a Magdalen restorative justice scheme. It is not just these advocacy and representative groups that believe this. In the past three days I have received no less than 85 e-mails and letters from survivors and others who share this view. Even if, as the Minister asserts, their interpretation of the Bill is mistaken, they deserve, at a minimum, absolute clarity and absolute certainty. We are talking here about a very vulnerable cohort of women. The Minister puts the numbers at 776 applicant women, although we know there are likely still more out there. It is welcome that the Minister has confirmed that the application process remains open. These vulnerable survivors want and deserve straight answers to their straight questions. Official frankness has been in short supply over the years. If, in the Minister’s view, there is a fundamental misunderstanding of what she both intends and has achieved in the legislation, then I suggest that she should meet those concerned directly and discuss it with them in order that they, in turn, might pass on that assurance to others.

Before I go into the detail of their stated criticisms of this Bill, I wish to emphasise that we are talking about redress in respect of inhuman and degrading treatment, arbitrary deprivation of liberty and forced labour. I further emphasise that we are talking about a scheme designed to persuade these victims to accept less than the full effective remedy to which they would be otherwise entitled under law in the interests of saving the State the potential expense to which it would be exposed should each individual victim take her case to court. That is what an ex gratiascheme involves, by definition, namely, reduced remedy in exchange for comparative speed and certainty of outcome. The women who have received their lump sum compensation and pensions under the ex gratiascheme have agreed not to sue the State in exchange for the full redress package recommended by Mr. Justice Quirke. This legislation must clearly meet these women’s legitimate expectations. Anything less would put those waivers on shaky legal ground and, as a breach of good faith, on even shakier moral ground.

The first criticisms that have been levelled relate to sections 2 and 3 of the Bill, which provide for supplementary health care to the victims, many of whom suffer additional illnesses or infirmities as a result of their ordeal in the laundries and-or whose economic disadvantage consequent on their years of forced and uncompensated labour prevents them from obtaining the necessary care within their own means. Mr. Justice Quirke did not recommend that those who signed up to the Magdalen scheme should be entitled to ordinary medical cards.

He went much further than that. This is in no small part due to his finding that over 90% of these women survivors already have a medical card or GP visit card. Mr. Justice Quirke's actual recommendation, made on page 7 of his report, was that Magdalen women should have access to the full range of services currently enjoyed by holders of the Health (Amendment) Act 1996 card, also known as the HAA card. He said:

As an integral part of the ex gratia Scheme a card entitling its holder to health services equivalent to those provided to the holder of a HAA card should be given to each of the women who were admitted to and worked in a designated Magdalen laundry.

Details of the range, extent and diversity of the community services to be provided to the Magdalen women are described within Appendix G.

Primary legislation similar to the Health (Amendment) Act 1996 or a statutory amendment to that Act is required in order to implement this recommendation.

Mr. Justice Quirke even helpfully provided draft heads of such a Bill at appendix E, in order that there could be no mistaking his meaning in this very clear recommendation. Notwithstanding the Bill's provision at section 3, which amends the relevant provision of section 53C of the Health Act 1970, the form of Mr. Justice Quirke's recommendation is the reason the survivors expected to see legislation in that particular form, and it explains why they are alarmed that is not what the Minister has produced. After what they have been through, this mistrust is entirely understandable.

Moreover, it is the survivors' view that the full list of services available to HAA cardholders is not provided for in the Bill. The HAA card, and therefore Mr. Justice Quirke's recommendation, includes private GP services. It includes "any and all" prescribed drugs, including high-tech drugs, medicines, aids and appliances. It should, therefore, not be restricted to the reimbursement list in the 2013 Act, as the Bill provides for at section 2(b). It includes "any and all" chiropody or podiatry services from any qualified chiropodist or podiatrist, including private practitioners, without the need for a GP or RN referral. It includes complementary therapies, including massage, reflexology, acupuncture, aromatherapy or hydrotherapy, once one is referred by a GP. Can I correct the Minister on the point that massage therapy and acupuncture are medically impugned practices – far from it. The entire Chinese medical system is reliant on acupuncture. It is not quackery; it is a scientifically proven and accepted practice. It includes counselling, including psychological and psychotherapy services, from any professionally accredited counsellor, to be made available to both the woman and her immediate relatives without restriction on the number of sessions attended and without the need for GP referral. It includes comprehensive dental care, including access to private dentists not within the dental treatment services scheme under the ordinary medical card provisions. It includes audiology services from private practitioners where services are not available within the public health service. It includes dedicated liaison officers to help obtain optimum home nursing and home support services. It includes enhanced ophthalmic services, beyond those restricted services available to ordinary medical cardholders, and it also includes private physiotherapy services. As I understand it – I reviewed the list and the Bill's provisions again in light of the Minister's assertions to the contrary – all the services I mentioned are promised services that are not provided for under the terms of this Bill. With regard to the Minister's suggestion that a physical RWRCI card could be issued to the women by the HSE, I welcome this and suggest that the Minister get agreement from her colleague, the Minister for Health, and make clear and definite provision for this to avoid doubt. I remind her that the survivors had every legitimate expectation that they would be issued with a physical card similar to the HAA card on which the Quirke health care redress model is supposed to be based.

If anyone were to ask me why these women deserve so much more than the average medical cardholder or pensioner, and the grounds on which they should expect such superior health care provision, particularly as I am such a strong advocate of equal access to health care based on need alone, regardless of circumstances, I would argue for it. The provisions in this Bill are intended in lieu of full financial compensation, which these women are owed by the State and by the religious orders which for decades either profited from or made substantial public savings on the back of the women's forced and uncompensated labour. The survivors gave up their rights to take the Government to court and possibly obtain greater compensation in exchange for this. That is why nothing less will do, and why anything less is not only miserly but legally questionable and morally repugnant. If the Minister can unequivocally reassure and persuade me in her reply that I am mistaken and that the services I have listed are in fact included, I will be more than happy to withdraw this criticism and offer my full and unconditional support for this Bill.

The next set of concerns expressed relates to the Bill's failure, despite the recommendations of Mr. Justice Quirke at paragraph 2.13 on page 14 of his report, which the Government promised that this Bill would implement in law, to make any provision whatsoever for the appointment of care representatives under the Nursing Homes Support Scheme Act 2009. This was needed in order that applications may be made to the redress scheme on behalf of those survivors lacking full capacity to ensure that their payments would be secured, protected and used exclusively for their benefit in a regulated manner with judicial oversight. This recommendation is crucial as there are allegations that some of these women may have had their lack of capacity exploited in order that their institutional carers or others would realise a financial benefit from their compensation packages and pension payments. I do not know whether there is substance to these allegations, which I have raised previously with the Minister for Justice and Equality, but legislative provisions providing protections against this very possible outcome should have been in place long before now, as a significant number of the survivors lack full capacity and many are to this day institutionalised in nursing homes or hostels run by the religious orders responsible for the Magdalene laundries in the first place. This is why in Mr. Justice Quirke's recommendations he acknowledged that "a significant minority will face difficulties managing their affairs".

I am asking the Minister to put on record whether appropriate assessments have been carried out to determine which survivors have sufficient capacity to manage their affairs and which do not. Can she put on record in her reply whether her officials have accepted any application from a religious order and made a payment in respect of a woman who lacks full capacity but who is not already a ward of the court or the subject of enduring power of attorney? We need this to be rectified urgently in order that such victims cannot be further exploited and the compensation package they have settled for is not rendered meaningless. The State must not fail yet again to protect this most vulnerable subset of the Magdalen survivors at this juncture. They have a right to independent advocacy. I have heard the Minister's contention that this will all be provided for in the forthcoming Assisted Decision-Making (Capacity) Bill, but I am saying that the survivors expected specific and dedicated provisions in this legislation, for the avoidance of doubt. That is what should happen.

The final area of concern is with respect to pension provision and the fact that this Bill utterly fails to implement in full, as promised, Mr. Justice Quirke's recommendation on the State contributory pension. The current scheme provides the women with the State contributory pension backdated to August 2013 only.

However, Mr. Justice Quirke recommended at page 40 of his report that the survivors should, as a consequence of redress scheme measures, find themselves "in the position that they would have occupied had they acquired sufficient stamps to qualify for the State Contributory Pension". This would require the back-dating of pension payments to each woman's retirement age. Anything less amounts to what I regard as theft from these victims. This would further compound the injustice of their already effectively having had proceeds of their labour stolen in the course of their incarcerations in the first instance. It would not be acceptable and I want an answer from the Minister on this. I ask the Minister to bring forward amendments on Committee Stage in acknowledgment that this was, indeed, stipulated by Mr. Justice Quirke. I ask the Minister to do so, as no Opposition Member will be permitted to make any amendment to this Bill that imposes a charge on the State, as surely any amendment to make provision for retrospective pension payments or additional health care and advocacy provisions would amount to.

I emphasise that the prohibition on Opposition amendments amounting to a charge on the Exchequer will prevent me from making the necessary amendments to the Bill. This puts me and others in an invidious position. I certainly do not want to be responsible for preventing any survivor from accessing any redress that is due to her but, equally, I cannot be responsible for allowing the Bill, as published, pass through the various Stages and the two Houses unchallenged as it is so far from what is necessary, what was expected and, indeed, what was promised. In its current form, the Bill represents a rip-off, and unless the Minister can give myself and the other Members her voluntary assurance that she will nevertheless in good faith consider our arguments for amendment once Committee and Report Stages are reached, I would hesitate to add my name to those supporting the Bill proceeding any further. In truth, I would rather the Minister redraw and revise the Bill, and I urge her to do so. Despite my strong reservations, I do not attend to attempt blocking the Bill proceeding to Committee Stage, but it is worth putting the Minister on notice that if she does not bring the appropriate amendments to Committee and Report Stages, my party will not be in a position to support the Bill any further. I say that regretfully and I hope that will not be the case.

In conclusion, I emphasise that even if the Bill, when amended, entirely fulfils the terms of the Quirke recommendations to the letter, as promised to these women in 2013, it still will never be enough to ensure that justice is done and effective remedy is achieved. The redress scheme Mr. Justice Quirke recommended was, by definition, limited to the mandate imposed upon him by Government, and related to the inherent limitations and flaws of the McAleese interdepartmental inquiry, which was in no way a sufficient, much less comprehensive, investigation of the relevant human rights abuses. As such, and without casting any aspersions on Mr. Justice Quirke, it represents but a pale shadow of justice, providing only minimal recognition for the abuses suffered by the survivors of the Magdalen institutions. What is needed, in addition to this scheme, is a thorough independent investigation of the experiences of the victims of the Magdalen laundries, either by way of a dedicated statutory commission or as an express component of the new commission of investigation into the mother and baby homes and related institutions that we debated yesterday.

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