What are the key issues and what are the principal methods of that State control?

Hello and welcome to my latest Podcast; thanks for joining me today!

You've probably noticed that I've been talking a lot recently about Redress or Transitional Justice for the Victims and Survivors of the Mother and Baby Home system in Ireland. I've got a direct interest in this because my Dad and Grandmother were both in the Tuam Mother and Baby Institution in County Galway in Ireland

Such Institutions have been a long-standing fact-of-life in Irish lives, revealing their true purpose from the beginning of the Irish State in 1922. Thousands of women and children passed through these Institutions, principally for the crime of having a child out of wedlock. For many decades, the women, children and activists have highlighted the most egregious crimes and practices, committed by the State and the Religious Orders. This was eventually met with a series of poorly formulated 'investigations', where the terms of references so designed, delivered unsatisfactory outcomes for the victims and survivors. But worse was to come through the various State-apologies and the poorly designed and exclusionary Redress schemes.

In the first instance, as far as the State-apologies go, many I have spoken to have felt that the political apology, whilst heavy on recognition and the word 'sorry', they failed nonetheless to deal with the specifics of their physical and psychological pain, often expressed as torture, abuse, demeaning or inhumane behaviour toward them, and lacking in any form of civil and constitutional rights.

Religious apologies have been thin on the ground and when given, they present plenty of soft words but little recognition of the terrible wrongs committed during their quest for Social Justice. Equally, there is such a poor response to the question of Religious Orders providing monetary compensation to Redress schemes, that I feel that discussions or actions on this important issue are guided by memorandums of understanding or contractual agreements without-end on the nature of negotiations.

Redress has attracted the same level of angst, where payments are described as pitiful, complex and how some could get more for their whiplash claims, than for long periods of incarceration and separation form their children or their birth mothers. Some women even had to go to court to be included within Redress schemes applicable to their suffering.

Redress and the victims and survivors concerns are also well-rooted within the International legal system, either through the European Convention on Human Rights, the United Nations Universal Declaration and subsequent conventions on Torture and Inhumane and Degrading Treatment.

One such Victim/Survivor has spent her recent years, bringing her case before the UN's Committee Against Torture, receiving comfort along the way from the Committee’s comments. Those comments provided a backdrop of severe criticism from the Committee about the failures and tardiness of the Irish Government, in their methodologies of Investigation or lack of them, the use of legal waivers and the nature of apologies. The Committee not just criticised but offered general guidance on the nature of Redress, particularly holding the view that Redress needed to deliver a transformative Justice and it is interesting to note that their definition of who constitutes a 'victim' was broad, bringing many close family members into that category; a factor which has generally been absent from any Redress scheme.

But then the Coppin case delivered a complete change and illogical position from the Committee’s previous comments and found that Ireland had not breached the Convention; nothing to see here, move on, move on. But not so fast, three committee members dissented from the rationale and decision of the Committee - unprecedented within such an august International body.

The decision heaped yet more misery on Victims and Survivors but I believe that it provided no comfort whatsoever for the Government of Ireland, because their actions and responses, which are still there for all to see, whatever about the difficulties and commentary provided by the Committee Against Torture which are a matter of Public Record.

in my previous Podcast I highlighted the equally unprecedented revelations that successive Irish governments had for decades applied a de minimus approach to whole classes of Irish Citizens seeking Justice for some State wrong or failure. As revelation-after-revelation was made about how policy and political decisions were made to suppress compensation or string a case out until a claimant could endure or afford to take matters to their ultimate conclusion, the latest lines of victims were laid bare; nursing home charges and disability payment failures, all fell victim to a well-oiled process.

It culminated with the Taoiseach, Leo Varadkar, holding forth that the State “didn’t have a leg to stand on” through its actions against those disabled people who did not receive their due State payments. But, such is the nature of government commentary, a corrective process was applied; enter stage left, the Attorney General.

The Attorney General then produced a report that effectively vindicated the government's legal actions and policy decisions, which was then followed by a howl of protest from activists and legal academics

Whilst the report was written by the Attorney General around the scandal surrounding nursing home charges and the failure to to provide disability payments, the report is nonetheless informative about how government thinks about those who make the claim that their have been harmed, either physically or financially.

The Attorney General provided a lengthy explanation around how government makes its legal decisions and how they are responsible for the operation of the Public Purse which is masked against the ‘Public Interest’ or the ‘Public Good’. In fact, coming from my background, I understand the points he is making - there is nothing startling about his commentary, no matter which jurisdiction you live in.

You can summarise the nature of the Irish Government’s decision-making process through several expressions:

“Public Interest”

“Taxpayers”

“Ex-Gratia”

“Intergenerational Fairness”

“Adversarial”

“Litigation Strategy”

“Legal Professional Privilege”

Many of these expressions are familiar to me because they represent the reality of the legal world and how it operates. In many respects, his report identifies to me a defendant mind-set, because of the emphasis he made about the public purse, notwithstanding his absolute rejection that they do anything to frustrate the actions of a potential Claimant. I’ve had enough experience with Defendant solicitors, Insurance Companies and State’s Worker Compensation Schemes, or State’s Victim Compensation schemes to recognise all of his expressions but also of the practicalities contained within day-to-day correspondence which delays, obfuscates or frustrates progress, that is until both parties are sitting before a judge in chambers! Despite my observations, I am sure the Attorney General will disagree with me, but of course that is his prerogative.

It is nonetheless useful if we consider some of his words:

“When electing to defend litigation, it must be emphasised that the State always does so in the ‘public interest’. There is, literally, no other interest that the State can have regard to. But the ‘Public Interest’ must of course always extend to considering the position of the taxpayer who is called upon to fund every new benefit agitated for”, he adds,

“Moreover, Government frequently decides to spend very significant amounts of money on a completely ex-gratia basis - in other words, in circumstances where it has no stature of legal obligation to do anything of the kind but where it is, in the interests of society as a whole, the right thing to do”, and finally

“Real questions of intergenerational fairness also arise in circumstances where any redress must be funded from the taxes of a younger generation of workers. Resources applied to redress historic matters cannot be made available to fund services for the present needs of today’s citizens”.

Under normal circumstances I think most people would recognise and understand these stated aims, but many of the so-called historic claims are anything but normal and have arisen under a different set of public policy considerations which have delivered fundamental deficits, either, physically, psychologically or financially for its own citizens, often without a complete recognition and the protections of the Irish Constitution.

I carried out a check on the Attorney General’s report for the phrases:

“Human”

“Human Rights”

“ECHR”

“International Obligations”

but none were found within the report, which can only lead to the conclusion, that the process of government or its principal focus is financial; it actually doesn’t appear to factor in a greater harm to basic rights and fundamental freedoms which if younger taxpayers were presented with the full facts, they may have a different opinion about those individuals who populate any government and the very nature of the society that they choose to live in?

Which brings me nicely back to the proposals for the victims and survivors of Mother and Baby Home Institutions.

The tariffs produced in this scheme have all the hallmarks of a defendant’s approach to victim/survivor claims, pushing the absolute minimums, whilst touting that victims and survivors will be helped by the generous offer to pay a legal bill for consultation with a solicitor. The fee for each victim or survivor's legal consultation could rest anywhere between £500 to £750 + VAT per Claimant.  For that princely sum, Irish solicitors will be expected to assess an individual's work history in an Institution and conclude whether or not the compensation scheme adequately compensates them for their work and loss of opportunities, particularly if they were in such Institutions for a long period. Equally, a solicitor will have to assess whether individual's can or indeed should consider bringing a claim for adjudication before the UN's Committee on Torture or to the European Court of Human Rights (after first exhausting all their remedies before the Irish Courts), and whether the Redress offered complies with International standards of what should constitute Redress. It's a complex picture and I don't envy solicitors having to consider the issues against the individual's case - I suspect that such consultations will produce some very detailed file notes of any consultation! Equally, I don’t envy the decisions that any victim/survivor will have to take on whether to accept or not.

When considering the money being offered for incarceration and in particular any work carried out, it is a strange situation because for many recipients, the values being offered are so low, they don't even represent the full heads of damage or losses that could be claimed and perhaps achieved through a court action. When you come to look at what is on offer for those who spent long periods in these Institutions and carried out work therein, there is a maximum fixed work payment, payable at 10 years and beyond for that work; that figure is €60,000 - that’s equivalent to €6,000pa for 10 years work, or €3,000pa for 20 years work! But we need to remember, that for the majority of Victims/Survivors, many will receive substantially less according to the structure of the sliding scale scheme.

Another factor worth considering when thinking about the overall government approach on constructing the scheme will be, whether you are talking about money or medical cards and so on, and not wishing to be insensitive, it is a case with the dynamic of the Claimants under this scheme, that the government knows that it will be a case of diminishing returns and they will have factored that into their thinking.

But I'm going to challenge your thinking about the values being provided for the women who carried out manual work during their incarceration in Mother and Baby Homes.

I was thinking about my own Grandmother's incarceration, from 1930 to 1972, during which she spent a total of 42 years in captivity. She went from the Loughrea Home, to the Tuam Mother and Baby Home, followed by further incarceration in the infamous High Park Laundry in Dublin. Her work had started with hard domestic work, caring for children, working in a Magdalen Laundry and eventually working as a seamstress. She was never paid and it appears that her National insurance stamp was never paid, and it was not clear if she ever received a pension.

When I started to think about her unpaid work, I set about trying to find the average wages for low-skilled work through to seamstress-skills work. I took a conservative approach to an hourly/daily rate, calculating her working week, converting punts into euro and updating those annual values to present day figures.

At present the value, just for her work over 42 years, has come to a total of €239,000. I want to stress that I haven't calculated any physical and importantly, psychological injury she did or was likely to suffer, I haven’t built in any stress or anxiety. I have not factored any loss of rights or agency. Equally, I have not yet calculated her loss of pension, opportunity or other potential losses.

Let's now think about the current value of €239k and place that against the offer now being made to the victim's & survivor's of the Mother and Baby Home Institutions - the offer looks a little bit weak, doesn't it, particularly for those who spent longer than 10 years in these Institutions? The scheme provides for a scatter-gun approach to generic items, without deploying a full consideration of the nature of individual experiences or claims. This is after all a group action in all but name and I know how schemes can and should be constructed and in particular, giving recognition to individual suffering within that group. The one thing in a group action is that no-one is excluded; no-one gets left behind. In my opinion, this proposed scheme provides for the opposite and that is partly down to the fact that only one side of the equation has constructed the scheme - it is not consensual - it is entirely policy driven.As we saw, the ex-Taoiseach, Michaél Martin was recently seen to be complaining about how the generations of today should not have to compensate for the past sins of yesteryear, because there were burgeoning pressures on those generations today, supported in policy by the Attorney General’s recent report. 

But, if you imagine that if the State was faced with a determined victim/survivor cohort, standing in a group action, with equally determined solicitors, do you not think the group action would be able to dispense with the ‘intergenerational argument’ and achieve higher figures through a Court process rather than through a so-called Redress scheme, where the government holds all the cards and control the narrative? 

Of course they would, that is why they have introduced legal waivers and pitiful sums of money to pay for legal assistance - the road to supporting a policy must also include the notion that the government is helping victims/survivors achieve true advices - that way it legitimises the scheme.

But imagine if the government agreed to a series of test cases, agreeing to pay in full the legal bill for each test case, can you imagine what could be achieved in advices given and how that would alter the dynamic of government thinking?

It is important to acknowledge that there are many who are currently excluded from this scheme and there appears to be nothing on the horizon to include or compensate those people. Currently they have to be satisfied with the State apology and perhaps some crumbs from the Minister's tick-box action list?

But there is an important fundamental point arising from all Redress schemes. It is a point I have made in previous Podcasts and that is the exclusion of those who died before the State apology. In my Dad's case - he is excluded because he died in 2001. In my Grandmother's case, she is excluded, not only from the Mother & Baby Home scheme, but she also suffered an exclusion from the Magdalen Laundry scheme, all because she died in 1972.

All that's left for my Dad is the State Apology of 13/1/21.

All that's left of my Grandmother is two State Apologies, one in 2013 and the other on 13/1/21.

They are both invisible. They are not formally remembered by the State, or for that matter, by the Religious Orders.

Their private grief, torture, inhumane treatment and their suffering is not just forgotten by political and religious words, but their experiences are not even acknowledged.

The Irish are famed for respecting the dead or so I've always believed. If government and the Religious Orders can do this to the dead, and that includes the currently children lying within the grounds of former Institutions, do you not think that they are emboldened to exclude some of the living, all for the sake of settling on the cheap? I can hear their howls of protest from here and the claims that they have created the most expensive redress scheme ever, blah, blah, blah.

As the hours, days and weeks tick by on this latest Redress scheme, we should all reflect on its effects, not just for the living but the dead and what it means for Irish society and the dangers that lurk behind a growing dissatisfaction about the political establishment along with the decisions that have affected so many Irish Citizens. Is that a price tag worth paying? Is a society and its dream of Justice to be limited purely by money and the legal rationale of policy decisions and the public interest?

I can tell you that the seeds were not sown by the victims and survivors, but by the very people who could have made a difference, the politicians and the religious, but they chose not to; you reap what you sow.

Until the next time, take care

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