The Sisters of Mercy, Sisters of Charity, Sisters of Our Lady of Charity, and Good Shepherd Sisters will not apologise to survivors of the Magdalene laundries. As stated on RTÉ's The God Slot programme (8th March), the nuns claim there is nothing to apologise for – they provided refuge to women abandoned by their families, the State and Irish society.
Neither will the congregations make a financial contribution to the Government’s reparations scheme, which was founded on the tenets of restorative justice. In holding to this position, the orders expose the Achilles heel of the Government’s Magdalene policy over the past two years – a policy dependent on the congregations’ voluntary co-operation.
Co-operation voluntarily given does not compel the nuns in any legal sense. Their negative response invalidates the Government’s assertion that survivors are being afforded restorative justice. There is no justice without the nuns’ apology and/or financial reparation.
Minister for Justice Alan Shatter told the Dáil the nuns seek reconciliation with survivors. But the legal definition of reconciliation “ordinarily implies forgiveness for injuries on either or both sides”. Instead, the orders expect an amnesty for gross human rights violations.
The Minister also relayed the nuns’ justification for refusing a financial contribution: they “continue to care for approximately 130 elderly and frail women”. These women are survivors of the Magdalene laundries and as such are also victims of forced labour, arbitrary detention, and cruel, degrading treatment or punishment. Moreover, the justification implies that caring for these women is an act of charity. It is not.
Mr Justice Quirke’s report points to the fact the congregations get HSE funding to offset the cost involved; they also control the women’s social welfare payments: “Some Congregations . . . are concerned that where payments are made to Magdalen women in their care, this could have an adverse effect in terms of funding for their ongoing care. A similar concern arises that any payments made under the Scheme . . . would adversely affect the entitlements of those Magdalen women.” (page 17).
The contention that the provision of “care” offsets a moral and ethical obligation to contribute to reparations seems, at best, disingenuous in this light.
One might well ask how the Government arrived at this impasse. The seeds were sown in the decision to establish an inter-departmental committee to establish the facts of State involvement with the laundries (June 2011).
The Government chose not to institute "a prompt, thorough and independent" investigation as called for at the time (and repeatedly since) by the United Nations Committee Against Torture, the Irish Human Rights Commission, and Justice for Magdalenes, among others.
The inter-departmental committee was intended as a fact- (never a fault-) finding vehicle of investigation. Church and State would co-operate to establish the facts of State involvement alone. The congregations’ culpability for abuses in the laundries fell outside the committee’s remit.
The ensuing McAleese report bolstered the congregations’ position in two ways. First, and for reasons as yet unspecified, the inter-departmental committee overstepped its terms of reference when concluding that the laundries operated on a break-even financial basis. The evidence for this remains shrouded in secrecy – there was no transparency.
Second, the inter-departmental committee’s report marginalises the women’s experience in the institutions and thereby minimises the violation of their human rights. For reasons again unspecified, it ignores some 793 pages of survivor testimony compiled by Justice For Magdalenes that provides ample evidence of physical and psychological abuse.
The Government’s proposal of an ex gratia scheme further bolstered the congregations’ position. Ex gratia schemes, by definition, make payments when there is no liability. In this instance, the scheme signalled “the sincere nature of the State’s reconciliatory intent”.
Refusal to apologise or make reparation reveals the true nature of the congregations’ “reconciliatory intent”.
The nuns cannot be compelled to make a financial contribution. The Cabinet can convey an expectation that one be forthcoming. The Government is left with little more than moral persuasion.
This situation is of the Government’s own making. Survivors are angry and feel let down by politicians who promised so much. The Irish taxpayer is left to pick up the financial tab, as was the case with the redress board and the banking scandals.
Where to now for the Government?
It goes without saying that ex gratia and pension payments begin immediately. Survivors have waited too long already.
Withdrawing the congregations’ charitable status, freezing Government funding, or seizing assets promise a measure of retributive satisfaction but fail to secure an enduring solution.
And yet it is inconceivable that the Government would now walk away, smug in the naive belief that it has done everything in its power to secure justice for survivors.
If Mr Kenny’s official apology is to mean something, then the State must establish the truth of what happened in the Magdalene laundries and there must be accountability for all parties involved.
This can only come about as a result of an independent inquiry with published terms of reference, statutory powers to compel and retain evidence, and in-built mechanisms to ensure transparency and accountability throughout.
Crucially, an independent inquiry would compel the congregations to co-operate and abide by findings that are legally binding. The State, in the name of Irish citizens – the taxpayers – must hold the congregations to account. The women deserve no less.
James M Smith is associate professor in the English department at Boston College. He is author of Ireland's Magdalen Laundries and the Nation's Architecture of Containment, and a member of JFM Research