Hillary v Minister for Education

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 11 June 2004
• Neutral Citation: [2004] IEHC 121
• Date: 11 June 2004
• Docket Number: [2003 No.
• Court: High Court

[2004] IEHC 121

THE HIGH COURT

JUDICIAL REVIEW

[2003 No. 782 J.R.]

HC 250/04

HILLARY v. MINISTER FOR EDUCATION & ORS

BETWEEN

IRENE HILLARY

APPLICANT

AND

THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND, THE ATTORNEY GENERAL AND THE COMMISSION TO INQUIRE INTO CHILD ABUSE

RESPONDENTS

Abstract:

Family law - Children - Child abuse - Statutory instrument - Commission of inquiry

Functions and powers - Whether additional functions sought to be conferred on Commission by statutory instrument connected with functions and powers of Commission - Whether statutory instrument ultra vires - Commission to Inquire into Child Abuse Act 2000, section 4 - Commission to Inquire into Child Abuse Act 2000 (Additional Functions) Order 2001 (S.I. 280) - Rules of the Superior Courts, 1986, Order 15, rule 13.

Facts: the third respondent was established by the Commission to Inquire into Child Abuse Act 2000. Its role was defined in section 4 of the Act of 2000 as being to inquire into the abuse of children in institutions. "Abuse" for the purposes of the Act was defined in section 1 as "the ...infliction of physical injury on, or failure to prevent such injury to the child, the use of the child by a person for sexual arousal or...gratification...failure to care for the child...[or any other act or omission towards the child] which results in serious impairment of the physical or mental health or development of the child or serious adverse affects on his behaviour or welfare..." The applicant was a participant in vaccine trials conducted on children in state institutions in the 1960s. Following a report prepared by the Chief Medical Officer of the first respondent's department into those trials, the Commission to Inquire into Child Abuse Act 2000 (Additional Functions) Order 2001 was passed by the Oireachtas which purported to confer additional functions on the third respondent to enable it to investigate those trials. She sought a declaration that the Order of 2001 made by the government was ultra vires the provisions of the Act of 2000, and in particular, section 4(4) thereof.

Held by Ó Caoimh J in declaring that the Order of 2001 was made ultra vires section 4(4) of the Act of 2000 that, in the absence of additional evidence being put before the court, the vires of the order had to be judged by reference to the terms of the order itself and the report of the Chief Medical Officer mentioned therein, which disclosed nothing suggesting that the conduct of the vaccine trials, the subject of the report, was such to amount to abuse as defined in the Act of 2000. The essential issue raised by that report was one of medical ethics and was not one suggestive of abuse as defined in the Act of 2000.

There had to be some real connection between the functions sought to be conferred by the Order of 2001 and the functions and powers of the Commission to Inquire into Child Abuse before such an order could be made by the government and the mere fact that the persons the subject of the vaccine trials were vulnerable children in state institutions did not amount to any connection of substance enabling the making of the Order.

The approval of the Order of 2001 by the Oireachtas was not such as to validate the making of the order itself, which could only have been made within the limits of section 4(4) of the Act of 2000.

1 Mr. Justice Aindrias Ó Caoimh delivered the 11th June, 2004.

2 By order of this court (O'Sullivan J.), the applicant was given leave on 3 ^rd November, 2003 to apply by way of an application for Judicial Review for

3 (a) A declaration that Statutory Instrument 280 of 2001, namely the Commission to Inquire into Child Abuse Act, 2000 (Additional Functions) Order, 2001, (hereinafter referred to as "the Additional Functions Order) made by the Government, is ultra vires the provisions of the Commission to Inquire into Child Abuse Act, 2000 and in particular, s. 4(4)(b) thereof;

4 (b) An order of prohibition against the fourth named respondent, (hereinafter referred to as the Commission), and/or its Investigation Committee, from proceeding with a proposed inquiry pursuant to the said Additional Functions Order, 2001;

5 (c) Alternatively, an order of prohibition restraining the Commission and/or its Investigation Committee from proceeding with a proposed inquiry pursuant to the said Additional Functions Order, in as much as the said inquiry involves a full oral adversarial public hearing, without first considering and determining that such a course is required and necessitated by the inquiry and is an appropriate and proportionate method of inquiry, having regard to the subject matter of the inquiry and the rights of the parties, including the applicant;

6 (d) Alternatively, an order of mandamus requiring the Commission to consider, prior to the commencement of a further phase of the inquiry, whether a full oral adversarial public hearing is a necessary, appropriate or proportionate course, having regard to the nature of the subject matter of the inquiry, the nature of the matters to be resolved, and the interest and rights of the parties, including the applicant;

7 (e) Alternatively, an order pursuant to 0.84 r.20(7) staying the proceedings of the Commission to inquire, insomuch as it purports to conduct an inquiry pursuant to the Additional Functions Order, 2001, pending the determination of these proceedings.

8 The grounds upon which this relief is sought are as follows;

9 1. The first, second and third named respondent acted unlawfully in making the said order as the additional functions referred to in the said order do not constitute "abuse" as defined by s.l (1) of the Commission to Inquire into Child Abuse Act, 2000.

10 2. The conduct of vaccine trials cannot be considered to be connected to the subject matter of the Commission's inquiry and, accordingly, is not within the scope of delegation granted by section 4(4).

11 3. A decision to adopt the method of a commission of inquiry with powers to compel witnesses (and to have adversarial hearings in public, and to utilise the vehicle of the existing Commission of Inquiry into residential institutions, which carries connotations in the popular mind of serious sexual abuse), for an inquiry into vaccine trials, the results and methodology of which were the subject of contemporaneous publication and in relation to which no serious dispute of fact arises, was and is unreasonable and, therefore, ultra vires the Commission to Inquire into Child Abuse Act, 2000.

12 4. The fourth named respondent has by letter dated the 7 ^th October, 2003, addressed to the applicant's solicitors Messrs Hayes a clear intention to proceed with its inquiry notwithstanding the fact that the said Additional Functions Order of 2001 is ultra vires the Commission to Inquire into Child Abuse Act, 2000.

13 An affidavit has been sworn by the applicant who describes herself as a retired Professor of Microbiology. She refers to the fact that the Commission was established by the Commission to Inquire into Child Abuse Act, 2000 (hereinafter referred to as the Act of 2000). She refers to the role conferred on the Commission by s. 4 of the Act of 2000, which included the function, through a committee, to inquire into the abuse of children in institutions during the relevant period, being the period from and including the year 1940 or such early year as the Commission may determine up to and including the year 1999 and such later periods (if any) as the Commission may determine. The applicant refers to the definition of abuse contained in s. 1 (1) of the Act of 2000 which provides as follows:-

14 a "(a) the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child,

15 (b) the use of the child by a person for sexual arousal or sexual gratification of that person or other person,

16 (c) failure to care for the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare, or

17 (d) any other act or omission towards the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare, and cognate words shall be construed accordingly."

18 The applicant refers to what she considers to be the public perception that the Commission's inquiries are thought of as an inquiry into serious sex abuse.

19 The applicant refers to the fact that on 19 ^th June, 2001, the Government exercised power vested in it under s. 4 (4) of the Act of 2000 to confer additional functions on the Commission, by making an order providing for the following additional functions:

"(a) To inquire, through the Investigation Committee, into the circumstances, legality, conduct, ethical propriety and effect on the subjects thereof of:-"

1) The three vaccine trials referred to in the report, and

2) Any systematic trials of a vaccine or the mode of delivery thereof to test its efficacy or to ascertain its side effects on a person found by the Investigation Committee to have taken place during the period commencing on the 1st January 1940 and ending on the 31 ^st December 1987, and to have been conducted in an institution, following allegation by a person that he or she as a child in the institution was subject thereof, and

3) To prepare and publish to the general public in such manner and at such time as the Commission may determine a report in writing specifying the determinations made by the Investigation Committee in its report under Article 4 of this Order."

20 The report referred to is a report of the Chief Medical Officer of the Department of Health entitled "Report on 3 Clinical Trials involving babies and children in institutional settings 1960–61, 1970 and 1973". The applicant exhibits this...