High Court: Minister’s decision to exclude women from Magdalen compensation scheme violated right to justice

By Seosamh Gráinséir
Irish Legal News
July 4, 2017

https://goo.gl/9jjYKS

Two women who were forced to work in Magdalen laundries have been granted an order of certiorari, quashing the refusal of the Minister for Justice and Equality to admit them to a government compensation scheme.

Mr Justice Michael White refused to grant relief on the basis that the decision was unreasonable and irrational, but held that the decisions were reached in violation of their right to natural and constitutional justice and fair procedures.

The ex gratia scheme

Two women, MKL and DC, sought orders of certiorari quashing the refusal of the Minister to admit them to the ex gratia scheme established by the Government of Ireland in December 2013 for women who were admitted to and worked in the Magdalen Laundries.

The ex gratia scheme was set up for women who were admitted to and worked in Magdalen Laundries – twelve institutions were covered under the scheme, and it was noted that “Institutions listed in the schedule to the Residential Institutions Redress Act 2002 are not covered by the scheme.

MKL was admitted to An Grianán High Park, Drumcondra, Dublin in 1975; and was required to carry out work in the Magdalen Laundry at St. Mary’s Refuge between 1977 and 1982.

The Minister disputed the ability of MKL to claim eligibility under the scheme as An Grianán was considered to be a separate institution from the laundry, and thus MKL was not admitted to the laundry.

The Minister disputed DC’s eligibility under the ex gratia scheme as she was not admitted to or worked in either Magdalen Laundry.

The Minister considered that “admitted” meant resident in those institutions while both applicants contended that it should be interpreted as being obliged to work in those institutions and that on the Drumcondra campus, there was no difference in reality between An Grianán and St. Mary’s Refuge.

Legal Principles

Mr Justice White was satisfied that it was open to the High Court to review the operation of the ex gratia scheme.

As a public scheme, the administrators have a duty to apply fair procedures; the jurisprudence dictates that it attracts the protection of constitutional justice in its administration.

However, it would only be in exceptional circumstances that the court would interfere with a decision on eligibility or an award.

In The State (Keegan) v. Stardust Victims Compensation Tribunal, it was that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense.

In The State (Creedon) v. Criminal Injuries Compensation Tribunal, it was held that to succeed in her application the applicant had to establish that the decision of the respondent had been at variance with reason and common sense.

Justice White held that MKL was not precluded from obtaining relief because of the Residential Institution Redress Board Act 2002.

Justice White noted that ensuring no double recovery by way of payment under both schemes was a legitimate aim, adding that differentiating the two maybe be difficult but not impossible.

Justice White emphasised that it was not for the Court to decide eligibility, and that it was not appropriate for the Court at present to give a strict legal definition to the words “admitted to”.

However, the court was entitled to examine the reasons for setting up the scheme and the method by which it was to be operated.

Decision

It was accepted by the Minister that it considered documentation on the eligibility of the applicants, which was not furnished to them for their consideration and submissions before any decision was made. In all the circumstances, the Minister did not apply fair procedures to the applications.

The Court accepted that An Grianán and St. Mary’s Refuge were located in the same building, and that this had given rise to a dispute of fact as to the actual separation of these institutions; they were in the same building and both applicants worked regularly in the laundry as children without remuneration.

Residents of An Grianán were not precluded from entering into the scheme; thus the contention of the Minister that anyone who was in the An Grianán institute would not be eligible for inclusion in the ex gratia scheme was incorrect.

Justice White explained that DC was “in an unfortunate situation in that she was entitled to make a claim to the Redress Board but as she resided in the United States of America, she did not do so” and was now out of time. Consequently, she was reliant on the application to be included in the ex gratia scheme.

Granting the relief sought, Justice White held that DC should have been afforded an opportunity to consider any evidence that St. Dominic’s and the Magdalene Laundry in Waterford were the same or separate; as such, the Minister’s “decision was reached in violation of [DC’s] right to natural and constitutional justice and fair procedures”.

Justice White also granted the relied sought by MKL on the basis that the Minister’s decision was reached in violation of her right to natural and constitutional justice and fair procedures; in particular, the Minister based her decision on information that had never been put to MKL and which she did not have the opportunity to challenge.