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Fair Procedures – High Court declares that rights of Mother & Baby Home survivors were breached



On Friday, 17 December 2021, the High Court issued an important declaration in relation to the Report of the Commission of Investigation into Mother and Baby Homes (the "Report"). The decision relates to the interpretation of the Commissions of Investigation Act 2004 (the "Act"). There are some important principles to be gleaned from the case which will be of interest to public bodies.

Two mother and baby home survivors (the "Applicants") took a case against the State and claimed (inter alia) while they were not named in the Report, they were readily identifiable in it and, as such, were entitled (pursuant to s34 of the Act[1]) to be given an opportunity to make submissions on the sections concerning them, seeking correction, clarification and expansion before the report was finalised.
The State argued that a finding in favour of the Applicants under s34 of the Act would have 'dramatic consequences' for the running of inquiries. It said that the Act intended that provisional copies be sent 'only to people against whom allegations were made or whose good name was at risk', which, the State argued, would not include the Applicants. 
If the Applicants' interpretation was correct, the State said that the Commission would have been obliged to send extracts to 'many thousands of people' and argued that the intended threshold of identifiability in s34 had not been met.
The State further argued that the Court must have regard to the scale and complexity of the Commission’s work. It said that the Commission had to take into account vast amounts of evidence and 'reach its own conclusions' and that it was 'never going to be the case that every single word of what every single person said was going to be recorded in the report'.
On 17 December 2021, the State (as part of a settlement) admitted that the Applicants were indeed identifiable in the Report and should have been given a right to reply to the sections relevant to them prior to the Report's publication.
The following declaration will be published online alongside the final report:
A declaration that the Commission, by failing to provide the applicant, who is identifiable in the final report, with a draft of the Report, or the relevant part of the draft of the Report, as required by section 34 (1) of the Commissions of Investigation Act 2004 prior to submitting the final report to the Minister, acted in breach of statutory duty.
The Court stated that this case raised very important and very significant legal issues and had the matter gone to full judgment, the Court would have had to address a number of novel points in relation to the interpretation of the Act.
The legal question of a person's identifiability when they are not explicitly named in a publication is broad and goes back to the case of In Re Haughey where it was held that a witness before an Oireachteas Tribunal should be given a copy of evidence reflecting on his good name, be permitted by Counsel to cross-examine accusers and be allowed to give rebutting evidence and be allowed to address the Tribunal in his defence. 
Whether a person is identifiable directly from facts written about them in a publication or from general knowledge about them in the public domain is also a broad question of interpretation and legal jurisprudence and arises frequently in the area of defamation proceedings.  S34 of the Act is not overly definitive in this regard and provides that 'identifiable' means that a person is identifiable from a draft report if the report contains information that could reasonably be expected to lead to the person's identification.
It will be interesting to see how the Declaration will impact upon future Commission of Inquiry work and the interpretation of s34 of the Act, i.e. whether a Commission of Inquiry will do more to protect the identity of the person referred to in their report so that the person is not 'identifiable' or whether a more frequent practice of providing the draft report to the person concerned in advance of publishing will develop.

[1] (1) Before submitting the final or interim report to the specified Minister, a commission shall send a draft of the report, or the relevant part of the draft report to any person who is identified in or identifiable from the draft report.
(2) The draft report must be accompanied by a notice from the commission specifying the time allowed for making-
  1. Submissions or requests to the commission under section 35(1)(a) or 36(1), and
  2. Applications to the Court under section 35(1) (b).
(3) For the purposes of this section and section 35, a person is identifiable from a draft report if the report contains information that could reasonably be expected to lead to the person's identification.

Written by JP McDowell, Hannah Unger and Rose Aylmer

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