12 Feb Coppin v. Ireland: Depressing Conservatism from the UN Committee Against Torture
[Máiréad Enright is Professor of Feminist Legal Studies at Birmingham Law School.]
On October 31 2022, the UN Committee Against Torture (UNCAT) published its decision in Elizabeth Coppin v. Ireland. Mrs. Coppin is 73 years old and spent her early life in State-funded, religious-run carceral institutions. She was born in a county home to a teenage single mother. Aged two, she was taken from her mother and a judge committed her to an industrial school. As a teenager, between 1964 and 1968, she was held in three different Magdalene laundries. A child, separated from family, she was entirely dependent on those in charge of the institutions; religious women of high social status, who regularly reminded her that she was considered an unwanted product of her mother’s sin. They subjected her to arbitrary detention, exhausting forced labour, neglect, unsanitary living conditions, denial of identity, denial of privacy and ritual humiliation. She has lived with the mental health consequences ever since.
Mrs. Coppin is one of thousands of women and girls who passed through Ireland’s Magdalene laundries in the twentieth century. Abuses in the laundries were tolerated for decades. It was only from the late 1990s that survivor-activists had any significant success in bringing the life-long consequences of their experiences to public attention. In dealing with this group of mass historical injustices, Ireland has established a limited system of investigation and ex gratia redress schemes in parallel to the mainstream civil and criminal justice system. This system deals with whole groups of survivors as anonymised collectives, addressing common experiences across institutions and across decades. The State has ‘gathered information’ about the Magdalene laundries, but it has not offered any full investigation of individual experiences, their context and causes (Annex I, para 8).
The State’s McAleese inquiry did not acknowledge that women and girls were subjected to torture or inhuman or degrading treatment in the laundries. It made no finding of culpability for wrongdoing in the laundries. The State has formally apologised to those held in the Magdalene laundries, but has not acknowledged any torture or inhuman and degrading treatment. Instead, it denies that such treatment took place, and insists (including it its submissions on Mrs. Coppin’s complaint) that the Magdalene institutions were ‘private’ and did not come within its control or responsibility. Redress payments were made ex gratia; explicitly without acknowledgement of liability. Therefore, although Mrs. Coppin has availed of the redress provided to survivors of the industrial schools and Magdalene laundries (para 11.7), she argues that the State has yet to acknowledge the most serious violations of her human rights. She has never secured a prompt or thorough State investigation of her individual experience. The Director of Public Prosecutions cut short a criminal investigation because an alleged religious perpetrator had already died. Mrs. Coppin told the Committee that the State’s indifference means that she has been unable to address the continuing trauma responses produced by her experiences in the Magdalen laundries. She experiences the State’s dismissal of her claims as a continuing abuse.
In Concluding Observations on Ireland, the UNCAT has in 2011 and 2017 held that Ireland has not conducted an independent, thorough and effective investigation into allegations of ill-treatement in the laundries, or sought to punish the perpetrators. Nothing has changed since 2017 (Annex II, para 8). The Human Rights Committee took a similar position in July of last year. In Mrs. Coppin’s individual case, however, UNCAT concludes that these same inquiries, in combination with Mrs. Coppin’s engagement with State redress schemes and her efforts to secure justice under criminal and civil law, mean that her rights have been vindicated.
Beginning in 1997, Mrs. Coppin has repeatedly sought a more thorough State engagement with her claims. She has availed of every possible complaint mechanism under Irish law, including by attempting to bring a civil action in the High Court. Judge Kelly dismissed her action for ‘inordinate and inexcusable delay’; the phrase that describes cases where the action is brought so long after the original injury that a fair trial is impossible, for instance because perpetrators have died. Mrs. Coppin was also required to waive her right to bring other legal actions as a condition of access to State redress schemes.
As the High Court case shows, time is central to the Irish State’s treatment of women like Elizabeth Coppin. The State categorises claims like hers as ‘historical’ or ‘legacy’ issues; hangovers from an older Ireland which relied heavily on semi-penal religious institutions to control unmarried pregnant women and their children. Mrs. Coppin’s injuries are from ‘a different time’, and so she cannot expect to avail of contemporary legal norms or legal processes to press her claims. The State relies heavily on arguments about the difficulties of litigating these kinds of issues, while doing very little to adapt its laws or information disclosure practices to survivors’ needs. The Coppin complaint addressed this strategy head-on.
Mrs. Coppin argued that the State had not adequately investigated her individual experiences of torture, and inhuman and degrading treatment. She tied the duty investigate to three separate obligations under UNCAT: the general obligation to investigate under article 12, the obligation to provide for individual complaints under article 13, and the obligation to meaningfully verify and publicise facts under either civil or criminal law as a dimension of the duty to provide redress under article 14. She insisted that these obligations are not time-bound. Indeed, she argued that, for as long as the State was in breach of those obligations, she was living with a continuing violation of her rights to freedom from torture, inhuman and degrading treatment. The people who abused her may be long dead, and Mrs. Coppin herself is no longer a helpless teenage girl, but the State, through its lacklustre investigation and redress, continues to debase and degrade her, keeping her original wounds alive.
The Committee accepts that the State bears the duties Mrs. Coppin insists on, even in respect of ‘historical’ claims. At the same time, it radically narrows the scope of those duties, in the process expressly validating some of the Irish State’s time-based strategies. The Committee accepts that the State’s refusal of more thorough individual investigation does not amount to a breach of rights in itself, even though it may ‘compound’ Mrs. Coppin’s ‘protracted suffering’. To come to this conclusion, the Committee must construct the State’s position in terms of incapacity rather than refusal (Annex I, para 16). The State opened but did not pursue individual investigations into Mrs. Coppin’s civil and criminal complaints. It apparently cannot help that Mrs. Coppin’s High Court case was stymied by elements of civil law including the statute of limitations and rules on delay. Neither can it help that its police could not pursue potential prosecutions because key perpetrators had already died by the time Mrs. Coppin was able to bring complaints. The State, apparently, can do nothing in the face of ‘the passage of time’.
The Committee’s decision suggests that when a child is abused by older people, her claims to investigation and redress will die with her abusers. It is striking that the Committee does not consider how the State’s obligations to investigate acts of torture and degrading treatment, or to facilitate individual complaints, might be pursued otherwise than against an individual living perpetrator. Mrs. Coppin, after all, was abused by members of religious orders to whom the State delegated key social functions, including the care and control of children. The religious orders who ran the laundries where Mrs. Coppin was held still exist in Ireland today. The State institutions that funded those orders still exist today. They are possible defendants in any case Mrs. Coppin might have been permitted to bring. The Committee takes for granted that the ‘historical’ nature of the claims makes any fuller investigation impossible, thus absolving the State of the responsibility even to attempt it. It makes no meaningful distinction between those obstacles to investigation that genuinely arise as the result of the passage of time and those that derive from the State’s own, readily amendable, laws. In conflating these two issues, it seems to suggest that because criminal prosecution of dead perpetrators is impossible, civil actions blocked by the Statute of Limitations cannot be pursued either (Annex I, para 3). It does not attempt to pursue the possibility of alternative truth-telling investigations.
Whose Responsibility Is it to Address the Legacies of Institutional Abuse?
The Committee characterises the State in terms which separate it from the abuses Mrs. Coppin suffered. The State is, supposedly, an entity separate from its own Statute of Limitations. Its actions ‘compound’ rather than cause Mrs. Coppin’s suffering. It cannot act where those responsible for abuse are dead. The State, in other words, is an investigator, not a perpetrator. This framing sits awkwardly with the McAleese inquiry, which confirmed that (i) State officials oversaw committals and transfers to the laundries, (ii) the State passed legislation facilitating the delegation of a range of criminal justice and social care functions to the laundries (iii) State agencies failed to adequately regulate the laundries and (iv) State agencies entered into service contracts with the laundries. The Committee does not address the fact that the State was involved in at least some abuses in the Magdalene laundries as they were happening and could have enforced its own laws while perpetrators were still alive.
The Committee does not deny that it is possible to change Ireland’s laws but places the obligation to drive any transformation on individual survivors. The Committee suggests that further investigations might have been possible, had Mrs. Coppin not foregone an appeal of her High Court action, or had she refused to waive her legal claims and, in the process, declined State redress. On waiver, in particular, the Coppin decision dilutes established protections for victims of torture, inhuman and degrading treatment. The Committee acknowledges that it is impermissible for the terms of a collective redress scheme to defeat the right to individual redress. However, it then suggests that Mrs. Coppin’s rights have been vindicated because she has received ‘partial’ redress in the form of payments from ex gratia redress schemes and a State apology for some of the harms suffered in the laundries. As all three dissenting Committee members observe, the majority have confused two distinct entitlements protected under the Convention; compensation and truth (Annex I, para 14). Waiver of litigation rights in exchange for ex gratia redress means a trade-off between two incommensurable entitlements. Monetary redress paid without admission of fault cannot, by definition, substitute for a full investigation (Annex I, para 5). It is one thing for a survivor of abuse to make that trade-off because they are satisfied that their need for a statement of truth has been met. It is something else entirely for a State to offer a choice between one entitlement and another on a ‘take it or leave it’ basis.
Conclusion: Deny Til We Die?
What does this decision mean for Irish survivors of institutional abuse? Certainly, the Committee accepts the principle behind Mrs. Coppin’s claim. Notably, it does not seek to dislodge the principle of ‘continuing breach’. It may be that in a different case, the Committee would have had to take a different view. Imagine, for example, a survivor who refused to participate in a redress scheme in exchange for a waiver, or who fell outside the terms of any scheme, who had brought a claim that did not fall foul of the Statute of Limitations, against some living perpetrator. In leaving the door open for such an ‘ideal’ survivor, however, the Committee imposes a significant burden on people who, as it acknowledges, live with the ongoing consequences of extraordinary childhood abuse. The Committee notes that the State permitted Elizabeth Coppin to ‘access’ judicial remedies (para 11.6) but does not take seriously the obstacles to making effective use of that access. Even the most determined litigant will be unable to meet the Committee’s standard. Irish readers will be aware that the survivor-activist Derek Linster died late in 2022. His long-standing High Court action died with him. This UNCAT decision is a shocking rebuff to a brave and dignified survivor of serious institutional abuse. It deserves serious critical engagement from all human rights lawyers with an interest in ‘historical’ injustice.