04/11/2020 - The Minister at DCYA Roderic O'Gorman received the Final Report of the Commission on Friday 30th October. This followed a week in which the Minister, his Department and his colleagues in Government demonstrated an alarming ignorance of the law with respect to the rights of survivors in accessing their own data. It took the voices of survivor support groups to instruct them in the law.
The Commission's Final Report is eagerly awaited by Survivors and their families. In the five and a half years since the Commission began its work many survivors both mothers and children of the Homes have died. Continued and unwarranted delay in providing the Report to survivors is causing still further distress.
Even after the self-inflicted debacle of the last ten days, neither the Minister or the Government as a whole appear to have improved their understanding of their statutory obligations with respect to the release of the Final Report.
On Friday 30th October Minister O'Gorman issued a Statement which begins with the following paragraphs:
The Minister for Children, Equality, Disability, Integration and Youth, Roderic O’Gorman TD, has this afternoon received the final report of the Commission of Investigation into Mother and Baby Homes and certain related matters.
As required by law, the Minister has immediately referred the report to the Attorney General for his legal advice as to whether publication of the report could prejudice any criminal proceedings that are pending or in progress.
The Office of the Attorney General has been provided with additional resources to expedite this review, and the government has committed to publication as soon as possible.
A reading of the Act, as amended, shows this to be clearly incorrect.
There is no provision in the Commissions of Investigation Act 2004, as amended, that requires any Interim or Final Report be referred automatically to the Attorney for any purpose.
It is noted that section 38 of the Act (as amended) states as follows:
Publication of final and interim reports.
38.—(1) Subject to subsection (2), the specified Minister—
( a) shall cause a commission's final report to be published as soon as possible after it is submitted to him or her, and
( b) may, at his or her discretion and following consultations with the chairperson or, if the commission consists of only one member, with the sole member, cause an interim report to be published, unless publication would hinder or impair the commission's investigation.
(2) If the specified Minister considers that the publication of the final report or an interim report of the commission might prejudice any criminal proceedings that are pending or in progress, he or she shall apply to the Court for directions concerning the publication of the report.
(3) Before determining an application under subsection (2) in respect of a report of a commission, the Court shall direct that notice be given to the following:
( a) the Attorney General;
( b) the Director of Public Prosecutions;
( c) a person who is a defendant in criminal proceedings relating to an act or omission that is mentioned in the report or that is related to any matter investigated by the commission and mentioned in the report.
(4) On an application under subsection (2), the Court may—
( a) receive submissions, and evidence tendered, by or on behalf of any person mentioned in subsection (3), and
( b) hear the application in private if the Court considers it appropriate to do so.
(5) If, after hearing the application, the Court considers that the publication of the report might prejudice any criminal proceedings, it may direct that the report or a specified part of it be not published—
( a) for a specified period, or
( b) until the Court otherwise directs.
This section of the Act appears to contradict both the Minister and Taoiseach who have stated to the effect that there is a legal requirement to refer the matter to the Attorney General for the purposes of determining that the publication of the Final Report or an Interim Report of the Commission which might prejudice any criminal proceedings that are pending or in progress, whereas the Act requires that the Minister apply to the Court for directions concerning the publication of the Report if he forms an opinion that such matters might arise.
In fact, it is clear that the Act places no such automatic obligation on the Minister to refer the Report to the Attorney for that or any other purpose.
Legislative language is to be given its ordinary and usual meaning. In the present case, it appears should the Minister believe that pending or in progress criminal proceedings might be prejudiced by the publication then an Application to the High Court setting out the concerns should be made.
There is no evidence that there are any such prosecutions pending or are in progress and the Minister did not follow the law if he believes there might be.
If the Minister takes the time to read Sections 18 and 19 of the Commissions of Investigation Act 2004 he will find that the use of any evidence gathered by the Commission in the course of it’s work, is expressly prohibited and excluded from any possible criminal proceedings
It is clear that the Minister is not under any legal obligation to refer the report to the Attorney General for review. The Minister is, however, under legal obligation to publish the report “as soon as possible after it is submitted to him”.
The only plausible explanation for the improper delay in releasing the Report is that it allows the State to attempt to seize control of the narrative and indulge in further expressions of horror and hand- wringing in an orchestrated manner. The clear object is to have survivors and their advocates with their modest supports playing catch up on a 4,000 page plus Report.
On Friday 30th October the Taoiseach stated:
“Government is not anticipating obstacles or barriers to its release."
"We’re not looking at this from the perspective of barriers to publication, rather, we’re looking at it from the perspective of enabling this to be published as soon as we possibly can.”