Last night at The Hist: ‘This House Would Make the Catholic Church Pay Reparations’

Last night I joined students of Trinity College Dublin and Neil Fox in a debate organised by The Hist on the following motion: ‘This House Would Make the Catholic Church Pay Reparations’. In preparing for this debate I relied heavily on an excellent article by Colin Smith BL and April Duff BL in a 2020 double-issue of the Éire-Ireland journal, which I guest co-edited. Here is the approximate text of my contribution last night:

I’m not going to focus on the theoretical or even the moral argument — that the Catholic Church should pay reparations. I’m here to explain what I’d do in the morning, if I were Taoiseach, to make the Catholic Church pay reparations.

My focus is on the Magdalene Laundries, Mother and Baby Homes and adoption system because of time constraints — but what I propose has far broader relevance.

If I were Taoiseach in the morning: I would establish a human rights-compliant investigation, and I would allow access to court so that people could sue.

Turning to the first measure: It’s important to acknowledge how a state investigation contributes to public discourse. And public discourse in turn impacts the build-up, or not, of social and political pressure for an adequate response. It’s also important to say that information disclosure is crucial to people’s ability to bring court cases (which I’ll discuss shortly).

Regarding the Magdalene Laundries, Mother and Baby Homes and adoption system, I would set up an independent public investigation that would address — as required by the European Convention on Human Rights and arguably the Irish Constitution — the issues of enforced disappearance, arbitrary detention, forced labour and servitude, unlawful death, torture and other cruel, inhuman or degrading treatment or punishment in those systems. Crucially, this investigation would be mandated to publish to the maximum extent legally possible and ethically appropriate given survivors’ wishes, the archival records of Church and State, and the testimony of willing survivors and of individuals in positions of responsibility.

This kind of investigative approach has never been taken with regard to the Magdalene Laundries or Mother and Baby Homes and adoption. And although we have not heard denialism from the Opposition bench tonight, it does exist. Last time I checked, one of the religious congregations responsible for Magdalene Laundries had a document on its website entitled ‘Myths of the Magdalene Laundries’. In a moment I’ll share with you the State’s official position too: these stances have a direct connection to the State’s practice of secrecy over its own records, of pretending it has no capacity to compel the production of church records, of refusing to task state investigations with applying Constitutional or human rights law standards, and of denying survivors any way to participate in the investigation (while enabling the Church and State to see and comment on draft inquiry findings).

The State’s official position on the Magdalene Laundries abuse may surprise some of you here tonight.

I am going to tell you what the civil service, i.e. permanent government, has been stating publicly, including to numerous international human rights bodies since Taoiseach Enda Kenny’s political apology to survivors in February 2013.

A Department of Justice submission to the UN Human Rights Committee in September 2019 said:

‘The Irish Government is satisfied that the findings of the report of the Inter-Departmental Committee to establish the facts of State involvement with Magdalen Laundries — the McAleese Report (2013) — brought into the public arena a considerable amount of information not previously known about Magdalen Laundries and showed that many of the preconceptions about these institutions were not supported by the facts…No factual evidence to support allegations of systematic torture or ill treatment of a criminal nature in these institutions was found.’

Now, would it surprise you to know that the McAleese Committee, apart from being chaired by Senator Martin McAleese, was made up of senior civil servants from all government departments extensively involved with the Magdalene Laundries system in the past? Would it come as a surprise, learning this, that the Committee ignored all 800 pages of survivor testimony submitted by Justice for Magdalenes, and that the Committee — having no official mandate to investigate abuse — decided ‘in the public interest’ to include a chapter on ‘conditions in the laundries’ which contains no section addressing whether girls and women were arbitrarily detained or forced into unpaid labour? Would it surprise you to know that now the entire archive of state records gathered by the McAleese Committee is being held hostage by the Department of the Taoiseach which refuses to release it, claiming that the cap on costs permissible under Freedom of Information means it can’t search through the archive for particular documents? Of course, the McAleese archive doesn’t even contain any records from the religious orders or dioceses, because the McAleese Committee agreed to give them back and destroy its copies at the end of its work.

Why should we be surprised at the contents of the 2013 letter from Sr Sheila Murphy, Regional Leader of the Sisters of Our Lady of Charity, to Minister Alan Shatter who was looking for a contribution to the state’s Magdalene ‘restorative justice’ scheme? Sr Murphy writes: ‘I note that you are disappointed with the decision of this congregation regarding the ‘Magdalene Scheme’ and the Government’s view that we as a congregation have a ‘moral obligation to make a reasonable contribution’. The decision not to contribute to the State Scheme was arrived at after consideration of the findings of the Report of the Inter-Departmental Committee to establish the facts of State involvement with the Magdalen Laundries, known as the McAleese Report…’

The recent Mother and Baby Homes Commission of Investigation did nothing more to comply with European and international human rights requirements of transparency, participation of victims, and investigation and legal analysis of all apparent serious human rights violations.

The Mother and Baby Homes Commission operated essentially in secret; it denied all survivors any opportunity to see or comment on the evidence produced by the State or religious institutions. Survivors could not even have a copy of their own personal data, or records held by the Commission on the whereabouts of their deceased and missing babies. The Commission deleted 550 survivors’ confidential testimony without providing them with a transcript. It selectively chose which survivors it would invite before its Investigative arm which had the sole power to make adverse findings. It allowed Church and State (and their lawyers) to comment on its draft findings: its failure to offer the same opportunity to survivors was the subject of 8 judicial review actions which the State settled in 2021, resulting in High Court declarations that the Commission’s process had violated survivors’ explicit statutory rights to fair procedures.

Is it any surprise, then, that the Commission concluded: women may tell us they did not give consent to their babies being taken from them for adoption, but ‘there is no evidence that this was their view at the time’. Are we surprised that the Commission found women were not, in fact, incarcerated ‘in the strict meaning of the word’ (whatever that meaning may be: the Commission’s report did not contain any explanation of its methodology and its methodology certainly was not human rights law analysis)? Is it a shock that the unpaid, forced labour of heavily pregnant girls and women was deemed simply ‘work which they would have had to do if they were living at home’ and therefore un-objectionable? Are we surprised that the Commission found ‘no evidence of injury to the children involved’ in vaccine trials, despite having to acknowledge that they were done without parental consent, without licences and in contravention of the regulatory and ethical standards of the time?

It is all entirely explainable. And it all has to do with the outrageous methods by which these so-called investigations have been permitted — by the State — to proceed.

Why would the Catholic Church pay reparations for abuse which the State essentially says didn’t happen?

The State knows it did happen, though: because a condition of its redress schemes on the Magdalene Laundries and the Mother and Baby Homes is that survivors sign away all of their legal rights against the State in return for the minimal payment on offer. When I say minimal, I mean for example, the €5,000 which will be paid to a mother who was in a Mother and Baby Home for less than 3 months before her child was taken from her — unlawfully, for life.

So why don’t the religious orders get in on this act, you might ask.

Surely it makes sense for them, too, to get immunity from suit in exchange for very small payments of money — compared to what a judge might order?

Well: the fact that they haven’t tells you all you need to know about access to justice in Ireland, and about the impossibility of survivors bringing cases to court at present.

So, the second action I would take if I were Taoiseach in the morning would be to amend the rules of Irish civil procedure to allow survivors of Magdalene Laundries, Mother and Baby Homes and forced adoption to sue the Catholic Church in court.

I guarantee this would produce contributions by the Church to the State’s ‘redress’ schemes. Importantly, though, it would also leave open the option for those who would prefer to go to court, for the judicial declaration of wrongdoing and the more comprehensive reparation that that would offer.

The Church only negotiates when it might lose more money by not doing so.

Let’s look at the past:

In 2000, the Irish Government amended the Statute of Limitations for one year, to allow people to bring historic child sexual abuse cases. It also changed the definition of ‘disability’ in the Statute of Limitations so that a person could attempt to demonstrate that the effects of child sexual abuse had harmed them psychologically to such an extent that they had been unable to bring proceedings and therefore should be allowed do so into the future.

Two years later, 18 religious orders signed up to contribute to the state’s Residential Institutions Redress Board scheme for survivors of abuse in industrial and reformatory schools. The church organisations did so because it meant that the people who received payments through that scheme would not be able to sue; and the Government promised to take on most of the bill.

Right now, the statutory limitation period — i.e. the time limit for bringing personal injury cases — is 2 years when child sexual abuse is not involved. I would change this, if I were Taoiseach in the morning.

The Law Reform Commission recommended in 2011 that a narrow exception to the ordinary personal injuries limitation period be created, which would allow the courts to extend or disapply it in certain cases, in the interests of justice.

The English Statute of Limitations already does this — and has done since 1980: judges have discretion to disapply the ordinary limitation period where they consider it ‘equitable’. It is this piece of law that was central to the ability of elderly Kenyan torture victims to bring and settle their case against the British government in 2012 for torture perpetrated in the 1950s and 1960s: this is known as the Mau Mau case. A large archive of state documents demonstrating the British colonial authorities’ actions had been located in the National Archives, and the High Court judge deciding on Statute of Limitations question judged a fair trial possible. This is an important point to bear in mind in our context here tonight: where institutionalised abuse is concerned, it may not matter that individual perpetrators are dead or very old, because documents — the ones the State and Church currently hold secret of course — can paint a very detailed picture indeed.

If I were Taoiseach in the morning, I’d change the legal status of religious orders, so that it would be possible to sue a religious order as an entity in itself. You may not believe it, but at the moment, because religious orders are unincorporated associations, it is not possible to sue ‘the Religious Sisters of Charity’. A person seeking to bring a case needs to track down each living member of the religious order, from the time of the abuse they complain of, and sue them all together. The Law Reform Commission recommended in 2005 that unincorporated associations with charitable purposes should be replaced with a new legal structure — amenable to being sued — called the Charitable Incorporated Association.

I would implement this change to the law straight away.

As Taoiseach I would bring in class action legislation. I would also change the civil procedure rules on legal standing so that representative organisations could bring cases without needing to demonstrate that absolutely no individual exists who could take the case instead.

I’ll finish with a lesson from Canada:

It was the initiation of class action lawsuits by survivors of the Indian Residential Schools system that led to the largest class action settlement agreement in Canadian history, in 2006. The agreement provided for various forms of financial redress, and the creation of a Truth and Reconciliation Commission, which in 2015 found ‘cultural genocide’ to have occurred in the system operated primarily by the Catholic Church in collaboration with the State. The Indian Residential Schools system compulsorily separated Indigenous children from their families, communities, and cultures, and last year the Pope, as well as the Canadian House of Commons, recognised the system as ‘genocide’. Let’s not pretend that this acknowledgement came voluntarily; let’s not pretend that survivors dragging the Church and State kicking and screaming through the courts didn’t play a massive part.

It is time to accept that the Irish State is actively impeding access to information and access to justice, and it is time to make sure that these measures are used to force the Catholic Church to pay reparations.