38. Deputy Jim O’Callaghan asked the Minister for Justice and Equality the steps his Department plans to take on foot of the recommendations of the Ombudsman’s report on the Magdalene restorative justice scheme; and if he will make a statement on the matter. (Question 51989/17 asked on 05 Dec 2017)

Deputy Jim O’Callaghan: The Minister will be aware that less than two weeks ago the Ombudsman published his report, entitled Opportunity Lost, on the administration of the Magdalen restorative justice scheme. Unfortunately, the report concludes that the manner in which the scheme has been administered by the Department constitutes maladministration within the meaning of section 4 of the Ombudsman Act 1980 as amended. Following the launch of the report, the Minister stated that full and careful consideration would now be given to all the recommendations in the report. I would like to know what the Minister intends to do about it.

Minister for Justice and Equality (Deputy Charles Flanagan): As I have previously indicated, both myself and my Department are giving full and detailed consideration to each of the four recommendations made by the Ombudsman in his report published on 23 November.

It is important to note that the existing scheme remains open. To date, 684 applicants to the Magdalen scheme have received their ex gratia payments from my Department’s Vote at a cost of over €25 million. The terms of the scheme recommended to Government by Mr. Justice Quirke included the payment of lump sums in a range from €11,500 to €100,000, special access to health care, upgrading of pension entitlements to the full State pension for those who had reached retirement age and the payment of a weekly sum of €100, inclusive of other State payments to others.

The Ombudsman has recommended that women who lack capacity should be made wards of court. I can inform the Deputy that this policy was already being pursued by the Department, which is now considering whether any further measures can be taken in this regard in the light of the details of the Ombudsman’s recommendation. It was recommended that there should be a review of any cases where there has been a dispute over length of stay.  No particular difficulty is foreseen with this recommendation and my Department is exploring the options for conducting such a review. It was further recommended that guidance should be developed centrally on future restorative justice or redress schemes and my Department will be pursuing this recommendation with the Departments likely to be responsible for any such schemes.

The recommendation of the Ombudsman to include certain industrial schools and training centres within the scheme, notwithstanding the fact that applicants may have already received payments under the residential institutions redress scheme, raises a number of issues. I am sure Deputy O’Callaghan will agree that these are matters of some substance. As part of the consideration of this recommendation, my Department is seeking to clarify all the issues concerned and will assess the administrative, resource and legal implications.

Deputy Jim O’Callaghan: We can all agree that the incarceration of women in Magdalen laundries was one of the most shameful periods of Irish history. It reflected badly on all aspects of Irish society. However, on 19 February 2013, it looked like we had turned over a new leaf with the then Taoiseach, Deputy Enda Kenny, issuing a public and heartfelt apology on behalf of the State to the women who were incarcerated. After that, a scheme was established for the purpose of facilitating compensation for these women. Such compensation was small, reflective not of the extent of their suffering but of the fact that the State recognised that it had done wrong.

When one looks at the criticisms in the report prepared by the Ombudsman, it is very clear that there are significant failings in the scheme. We note that the Department operated on the basis that only women who could demonstrate through available records that they had been officially recorded as having been admitted to one of the 12 named institutions were eligible. We need to stop relying upon the reports of the institutions themselves and to take into account the evidence of the women. We also note that the report was critical of the Department’s over reliance on the records of the congregations and that applicants fared better when they had greater capacity to pursue their application and to suggest avenues for research. We need to ensure that all individuals who were incarcerated and who were the victims of this shameful period in our history are eligible for the scheme.

I ask the Minister to outline when the four recommendations of the Ombudsman will be implemented.

Deputy Charles Flanagan: I can assure the Deputy that the matter is receiving ongoing, due and careful consideration. While I acknowledge that the Ombudsman’s report was critical, I must also say that I have been told that the scheme was administered by the staff of the Department of Justice and Equality with compassion and unstinting dedication. Staff of the Department have been praised on a regular basis by applicants for the manner in which they have undertaken their work in order to ensure that issues were dealt with properly.

The principal recommendation is that my Department should fully reconsider, with a view towards admitting to the scheme, the application of any woman who worked in one of the listed laundries but was not officially recorded as having been admitted to a training centre or industrial school located in the same building, attached to or located on the grounds of one of the laundries. Deputy O’Callaghan will accept that a series of issues arises as to the scope, purpose and administration of the scheme. The question of double payments arises because the recommendation of the Ombudsman refers to applications already received from women who were in a training or industrial school located on the same grounds as one of the 12 named institutions. However, I wish to assure the House that all of these issues are under consideration with a view to having matters resolved at the earliest opportunity. I would be happy to keep both the Deputy and the House fully informed but these are not issues that can be dealt with overnight.

Deputy Jim O’Callaghan: One of the proposals that the Ombudsman has reluctantly accepted is the one from the Department that women who lack capacity should be made wards of court. However, it is important that we do not allow that process to proceed in a very slow and difficult manner from the point of view of the applicants. I suggest that the Minister proactively provides practical support to those women who are seeking to be made wards of court so that their applications can be made promptly. The Department should work closely with the Courts Service to ensure that any wardship applications are processed in a timely and sensitive manner. Otherwise, the wardship application process will drag on. In many instances we are talking about women who are in their elder years and they need to have this process finalised as soon as possible. The State should be assisting them with their wards of court applications.

In order to ensure that any future restorative justice or redress schemes benefit from the learning from the operation of this and other schemes, guidance should be produced in respect of the development and operation of such schemes generally.

Deputy Charles Flanagan: To date, 830 applications have been received and of these, 694 have been paid an award. A total of 106 applications were refused because the applicants were not admitted to and working in one of the 12 named institutions covered by the scheme.

The Deputy raises the issue of lack of capacity in particular. I readily accept that there has been a delay in making payments to certain women where there have been issues as to capacity and vulnerability. In some cases the applicants were vulnerable to a form of financial exploitation. In that context, the Assisted Decision-Making (Capacity) Act is relevant. It was felt that the passage of the then Assisted Decision-Making (Capacity) Bill in 2015 would provide an appropriate vehicle but new administrative processes and support measures, including the setting up of the decision support service within the Mental Health Commission, must be in place before the substantive provisions of the Act can be commenced. That said, I have noted what Deputy O’Callaghan has said and wish to assure the House that every effort will be made to deal with the recommendations of the Ombudsman. I am happy to report progress as matters are addressed.