Full text: Response of the Government to issues raised in the letter of September 2nd 2003 fom Judge Mary Laffoy, Chairperson, Commission to Inquire into Child Abuse
Index
- Contents
- Key dates and events
- Background
- Review of Commission to Inquire into Child Abuse Act 2000: First Phase
- Review of Commission to Inquire into Child Abuse Act 2000: Second Phase
- Letter of September 2nd from Judge Laffoy
- The issue of compensation for survivors of abuse
- The issue of payment of legal costs of persons involved in the process of the Investigation Committee
- The Government's handling of requests for the provision of adequate resources
- The Christian Brothers' case
- Time involved in review
- Consultation with support groups
- Mandate of the Commission
- "Powerlessness" of the Commission
Key dates and events
10 June 2002 - Request from the Commission for additional resources to increase its staffing level from 38 to 79. This request was followed by consultations between the Commission and the Department.
3 December 2002 - Government agreed in principle to increase the staffing levels from 38 to 79 and to review the Commission.
5 December 2002 - Minister wrote to Judge Laffoy and informed her of the Government's decision.
5 December 2002 - Review commenced.
6 December 2002 - Judge Laffoy replied to the letter of December 5th, 2003.
11 December 2002 - Minister met at the National Office of Victims of Abuse with various groups.
28 January 2003 - Officials from the Department met survivor support groups.
13 February 2003 - Christian Brothers' constitutional challenge commenced.
26 February 2003 - Report of the Review Group was completed and submitted to the Minister for Education and Science by the Attorney General.
4 March 2003 - Government considered report.
30 March 2003 - Minister attended a public meeting of UK-based survivors of abuse at which the review was discussed.
8 April 2003 - Minister for Education and Science presented Heads of a Bill to Government which were approved for formal drafting.
15 April 2003 - Minister for Education and Science informed Government that a further phase of review was required to ensure a more effective and speedy conclusion to the Investigation Committee's work.
9 May 2003 - The Minister for Education and Science and the Attorney General met with Judge Laffoy to brief her on developments.
13 to 22 May - Christian Brothers' case heard in High Court - judgement reserved.
3 June 2003 - High Court judgement delivered in Meenan v. Commission to Inquire into Child Abuse and others.
4 July 2003 - Letter to the Commission seeking information and data relevant to the Second Phase.
15 July 2003 - The Minister for Education and Science and the Attorney General again met with Judge Laffoy and senior counsel to the Commission. They agreed that the Minister would issue a public statement on the second phase of review.
28 July 2003 - The Commission furnished detailed information and data as sought by the Department on July 4th, 2003.
31 July 2003 - Supreme Court judgement delivered in Meenan v. Commission to Inquire into Child Abuse and others.
18 August 2003 - Judge Laffoy wrote to the Minister for Education and Science inquiring as to the making of a public statement on the second phase of the review.
18 August 2003 - Department of Education and Science replied to Judge Laffoy informing her a public statement will be made shortly and explaining delay.
19 August 2003 - Officials from the Department met with survivor support groups.
28 August 2003 - The Minister for Education and Science wrote to Judge Laffoy enclosing copy of press release.
29 August 2003 - Judge Laffoy wrote to the Minister, acknowledged letter of August 28th, assured him that the Commission would deal promptly with any request for additional information relating to the review but expressed the view that it would be inappropriate for the Commission to be involved in any other consultation.
1 September 2003 - The Minister publicly announced the second phase of the review. This announcement was generally welcomed by victims' groups.
2 September 2003 - Letter received by the secretary general to the Government in which Judge Laffoy announced her intention to resign and stated her reasons.
Background
The Commission to Inquire into Child Abuse Act was enacted in April 2000 in response to widespread concern at past child abuse in institutions. The Commission has a dual structure to meet the differing needs of victims. On the one hand, there is the Investigation Committee which hears witnesses who wish to make specific allegations of abuse, and see their evidence investigated by the Committee. There is also the Confidential Committee, which hears, in total confidence, the testimony of witnesses who did not wish their allegations to be inquired into. A victim of abuse has a choice to go before the Confidential Committee or to opt to go before the Investigation Committee. The Confidential Committee continues to function and has, in fact, heard hundreds of victims recount their history of abuse.
The Commission was set up on an ad-hoc basis in mid-1999. During the course of the year it made two reports to the Government in which it proposed structures, powers and functions for a commission. The Government accepted the proposals and gave effect to them in the Commission to Inquire into Child Abuse Act, 2000.
There were three essential elements to the Government's response to those who were victims of abuse in institutions. They were as follows:
(i) A Confidential Committee. This would enable victims of abuse to recount the history of that abuse, in private, to the Commission. It is a division of the Commission.
(ii) An Investigation Committee. This is another division of the Commission which is referred to in greater detail hereafter.
(iii) Counselling for victims of abuse.
In addition, following a recommendation from Judge Laffoy, the Government established a redress scheme for victims. This process is being carried out by the Residential Institutions Redress Board, chaired by His Honour Judge Sean O'Leary. This Board operates under a separate statutory scheme to that of the Commission. It makes financial awards to the victims. The recent developments arising from the resignation of Judge Laffoy will not affect, in any way whatsoever, the payment of redress.
By the time the deadline set by the Commission for making applications to the Investigation Committee had passed, 1,957 people had applied to have their allegations of abuse inquired into by the Investigation Committee. On the basis of information supplied by the Commission, applications submitted by 1,730 persons are currently being investigated as some people have, for a variety of reasons, withdrawn from the Investigation process. To date the Committee has heard 40 cases. The Commission indicated in November 2002 that, based on its staffing levels at that stage, and even assuming some level of attrition in the number of applications to be heard, it could take seven to 10 years to complete the individual hearings aspect of its work. It is estimated that at least a further year would be required, following the conclusion of the individual hearings, for the Committee to complete its work. This will involve detailed inquiry, most likely at public hearings, of the role of public bodies and religious congregations in the operation and management of the institutions and the extent to which they were responsible for abuse which occurred. Finally, the Commission will draw together its entire work into a report to be published.
Because allegations of abuse, particularly those involving physical or sexual abuse, affect the good name and reputation of those accused of such conduct, they are entitled to defend themselves. They have constitutional rights of due process which they are able to enforce. Many of the religious orders and individuals accused of abuse adopted an adversarial approach. They vigorously fought and continue to fight allegations of abuse against living and dead members of their order. This then resulted in each case, before the Investigation Committee, effectively becoming a separate trial. Each religious institution and each accused member or employee of an institution was entitled to legal representation. It was estimated that there could be up to 10,000 separate appearances by legal teams who would be representing parties appearing before the Investigation Committee. Legal costs for one team could be in the tens of thousands of euro. The State would normally pay for this save where there was false evidence or a lack of co-operation. But to assert rights of due process is not a lack of co-operation.
The purpose of the review was to seek to address ways of making the workings of the Investigation Committee more efficient and cost effective. The focus of the review was to be on identifying methods that would enable the Commission to report on the causes, nature, extent and circumstances of abuse in institutions and those responsible for it. The review was to seek to achieve that objective, in terms of reporting to the public, without the necessity of the Investigation Committee proceeding to, in effect, a full blown trial of each and every allegation of abuse made by the 1,730 victims and thereby change its remit. The review was also to address whether any additional powers could be given to the Investigation Committee to facilitate its operations and to impose a legal costs burden on religious institutions, and those accused of abuse, in more defined circumstances.
Review of Commission to Inquire into Child Abuse Act 2000:
First Phase
Given the magnitude of the number of cases it was expected that the entire process would not conclude for eight to 11 years and estimated legal costs would be potentially in the order of over €200 million. As a result the Minister for Education and Science believed that a review of the Commission Act was necessary if many victims were to have any realistic hope of seeing closure on abuse.
The objective of the review of the Commission to Inquire into Child Abuse Act is and always has been to find a practical way to ensure that the mandate given to the Commission in the Act is given practical effect as soon as possible. This is against the background of a caseload for the Investigation Committee of 1,730 cases with just 40 having been dealt with to date. It is also against a background of an increasingly ageing group of potential witnesses, many already in their 70s or older.
On December 3rd, 2002 the Government formally resolved to conduct a review of the operations of the Commission. This review related solely to the Investigation Committee. This First Phase of the Review (as it is now described) was conducted by officials from the Office of the Attorney General, led by the Attorney General, and officials from the Department of Education and Science. The review was to be prepared for the Government and, in due course, considered by the Government.
This review was completed by the end of February 2003. The following are the important milestones in respect of this review:
(i) The report of the review group was submitted to the Department of Education and Science on February 26th, 2003. Members of the review group had various meetings concerning its content and proposed recommendations with the Commission, its legal representatives, and survivor groups.
(ii) The report was considered by the Government at its meeting on March 4th, 2003.
(iii) The Department of Education and Science brought forward Heads of Bill (reflecting the recommendations of the report) to Government on April 8th, 2003. The Government approved these Heads of Bill.
(iv) The Government on April 8th, 2003, approved the drafting of the Commission to Inquire into Child Abuse (Amendment) Bill 2003 to give effect to the recommendation of the report. Draft legislation was prepared by the Office of the Parliamentary Counsel.
The Government intended to publish legislation and, with it, the report of the review group after further consultation with survivor support groups.
The Commission was invited to and did participate in the review. The review group received significant assistance from the Commission in relation to the review. There were in fact many recommendations made by the Commission which were adopted and incorporated into the report of the February 26th, 2003. This contribution was of immense value for which both the review group and the Government were grateful as it assisted the Government in addressing the problems that are known to exist with the Investigation Committee.
Review of Commission to Inquire into Child Abuse: Second Phase
During the drafting of legislation, the Minister became concerned that the changes then proposed would still not enable the Commission to complete its work within a reasonable time. A challenge to the constitutionality of the Act had recently been commenced by the Christian Brothers. The significance of this is referred to in greater detail below. Accordingly, at a meeting on April 15th, 2003 the Minister informed the Government that a further review would be required. The purpose of this second phase of the review was to identify whether any more significant changes in the workings of the Investigation Committee could be made. An important part of this second phase, as indeed in the first, was to consult with the survivor support groups. Their approach was one of support for the process of review, given that they were concerned that the Commission could not, as matters then stood, complete its work within any reasonable period of time.
There was a meeting between the Minister, Judge Laffoy and the Attorney General on May 9th at which further changes in the approach to the review were discussed in a general way. At this meeting Judge Laffoy was given a copy of the report of the review group which was not for publication at that point in time. At a further meeting about the second phase of the review between Judge Laffoy, senior counsel to the Commission, the Minister and the Attorney General on July 15th, it was agreed that the Minister would issue a statement announcing the carrying out of the further stage of the review process. This was to be announced in mid-August. There was also further discussion about possible new approaches to the operations of the Investigation Committee, including significant changes to the handling of the complaints of abuse and the complications which could arise. There was to be further contact in September concerning this phase of the review.
On July 4th, the Minister had written to the Commission about this phase of the review and sought detailed information. On July 28th, the Commission furnished extensive information in connection with this phase of the review.
On August 18th, Judge Laffoy wrote to the Minister urging that the statement be made without delay. On the same day the Minister replied explaining that one of the factors in the delay in making an announcement had been the need to meet with survivor support groups and inform them in advance of the statement. That had not been possible due in part to the holiday season but a meeting had been arranged for the next day and an announcement would be made shortly after that.
As promised, the Minister wrote to Judge Laffoy on August 28th, enclosing a copy of the press release that he proposed to issue on September 1st. In this letter he signalled his intention to consult further with the Commission on the review process. Judge Laffoy responded the following day and informed the Minister that the press release had been brought to the attention of the Commission. She also indicated that the Commission's approach to the review was that it would provide whatever information was needed but felt that it should not be involved in other consultation for legal reasons.
Four days later Judge Laffoy indicated her intention to resign on publication of a further interim report from the Commission in November. This came as a bolt from the blue for the Government, as Judge Laffoy had given no indication at any of the meetings she attended or in correspondence that she considered the ongoing review grounds for her resignation.
Letter of September 2nd from Judge Laffoy
In her letter of September 2nd, 2003, to the secretary to the Government, Judge Laffoy outlines a number of events that in her view have impeded the completion by the Commission of its statutory mandate. She implies that these events led to the conclusion that the Commission has never been properly enabled by the Government to fulfil satisfactorily the functions conferred on it by the Oireachtas.
Each of the main events referred to and further ancillary points made in the letter are now addressed in turn.
The issue of compensation for survivors of abuse
On July 20th, 2000, Judge Laffoy, as the Chairperson of the Commission to Inquire into Child Abuse, informed the Department of Education and Science that a number of solicitors, representing clients who allege abuse in childhood, had adopted the position that they would advise their clients not to participate in the Commission in the absence of a Government commitment on compensation. Judge Laffoy expressed the concern of the Commission that this would have serious repercussions for the investigative nature of their task and indicated that in the Commission's view this problem could be overcome by a decision in principle from the Government to establish a scheme.
In a letter of September 21st, 2000 the Department informed the Commission that a draft discussion paper on a compensation body had been circulated to a number of relevant Departments with a view to an early Government decision on the matter. In a public sitting on September 27th, the Commission was highly critical of the fact that the matter had not by then been decided.
The Government approved in principle a compensation scheme in early October 2000. This was followed by approval for draft legislation in February 2001 and the publication of a Bill in June 2001. The Bill was enacted in April 2002. Enactment of legislation is the prerogative of the Oireachtas and not any Minister. In the circumstances it cannot be accepted that a period of 11 months from a proposal from the Commission that a decision "in principle" be taken as regards a compensation scheme to the publication of detailed legislation on the matter was unreasonable.
Neither is it accepted that this period caused delay for the Commission, since at an early stage in the drafting process lawyers for both potential claimants to the scheme and the religious congregations were informed of the approach proposed.
The issue of payment of legal costs of persons involved in the process of the Investigation Committee
It is accepted that there was some delay in establishing a scheme for the payment of legal expenses. This arose because of the complexity of the issues involved, and the need for consultation with relevant parties.
In setting up the Commission the intention of the Government was to provide a forum which would avoid the procedural formality and panoply of the courts. Very early on in its work the Commission itself proposed a single legal team for all those who would make allegations of abuse as a way of avoiding excessive formality and the presence of a large number of lawyers at hearings. This approach was supported by the then Minister but opposed by lawyers for the victims. The proposal was withdrawn by the Commission. As provided under the Commission Act, the Minister for Education and Science then made a scheme for legal expenses. There were three such schemes in all, March 2000, August 2000 and January 2001. Each was rejected by the solicitors concerned and ultimately by the Commission.
To try to resolve the issue the then Attorney General appointed a legal costs accountant to advise on a scheme. The resulting, fourth, scheme was accepted by the Commission in May 2001, but again rejected by the lawyers for victims and the congregations. It is noteworthy that during all of this period lawyers for the victims of abuse refused to negotiate or make any representations as to a legal expenses scheme. Lawyers for the congregations on the other hand insisted on a "taxation of costs" approach. That is a system of solicitors claiming what they wish to be paid - through a Bill of Costs - and an independent person (the Taxing Master) adjudicating on the reasonableness of the demand. In order to bring finality to the matter the Minister accepted a move to a taxation of costs approach to legal costs. This required legislation to implement and it was provided for in the Residential Institutions Redress Bill, then being enacted.
The Government's handling of requests for the provision of adequate resources
All requests for additional resources received from the Commission were processed in accordance with normal procedures and, as is required, in consultation with the Department of Finance. It is not accepted that adequate resources were not provided to the Commission to enable it to carry out its remit.
The Department received a request from the Commission for substantial additional resources in June 2002. The effect of granting the additional resources that were requested would have been to increase the staff of the Commission from 38 to 79 persons. The Department engaged in a consultation process with the Commission with a view to clarifying a number of aspects related to the request. This consultation took place on an ongoing basis over a number of months. It resulted in the Minister for Education and Science presenting a memorandum to the Government in December 2002 seeking Government approval of the additional resources requested by the Commission.
The Government, upon consideration of the Memorandum, agreed in principle to the provision of the additional resources, but was concerned that the provision of additional resources in itself might not result in the work of the Investigation Committee being completed in a timely manner. The Government considered that the request for additional resources could not be considered in isolation and that it was also imperative to have the Commission's procedures and underlying legislation reviewed to establish if there was any scope to change or amend the Act which would expedite its work and reduce the cost to the Exchequer while still achieving the original objectives of the legislation. In short the Government's view was that the difficulties faced by the Investigation Committee were more fundamental than the issue of resources.
In communicating the Government decision to the Commission in December 2002, the secretary general of the Department of Education and Science confirmed that the Government had agreed in principle to the provision of the additional resources. Following further communication on this issue, sanction was provided to the Commission that same month for the appointment of six additional junior and documentary counsel. While the Commission had sought also additional sanction for other staff at that time, it indicated to the Department that the priority was the sanction of these counsel.
In addition, the Department dealt with all requests for additional staff that were made with regard to the Vaccine Trials Division of the Commission and all appropriate sanctions were conveyed, in a timely fashion, to the Commission.
Christian Brothers' Case
One of the most significant developments in terms of the Commission is the challenge by the Irish Christian Brothers to the constitutionality of the Commission legislation. If this is successful and the legislation is unconstitutional then this will create a major problem. On the other hand if the Act is upheld, but the principles are set forth in relation to the effect of delay or lapse of time, then this will have a significant effect on the operations and workings of the Investigation Committee.
The Irish Christian Brothers' case commenced on February 13th 2003. It was heard in the High Court (by Mr Justice Abbott) between May 13th and May 22nd, 2003. Judgment has been reserved and is awaited. It is probable that the decision will be appealed to the Supreme Court by either party. Its decision, on appeal, will also be of critical importance and may set legal limits - in a general way - on the ability to investigate allegations of abuse that relate to events which occurred many decades ago. In this regard the remit of the Commission is to investigate, primarily, allegations of abuse that occurred from 1940.
The decision of the Supreme Court in the Prof Meenan case (in relation to the vaccines trials) also raises important issues. These issues will be clarified definitively in the Christian Brothers' case.
Time involved in review
The Minister for Education and Science believes it is especially important to hear the views of victims of abuse and to accommodate them as far as possible in the review process. In an inquiry process which may take up to 11 years to complete, unless changes are made, the Minister believes that spending time now on finding an approach that will work is time well spent.
The process of review of the Commission legislation (in the first and second phase) has to date taken eight months. It is accepted that that has created some uncertainty for the Commission. The Government have sought to limit that uncertainty by keeping the Commission informed of developments. The Government has also been conscious in moving forward on this matter of the desirability of explaining its position to, and seeking the support of, as many as possible of the people for whom the Commission was primarily established - the victims of abuse.
Consultation with support groups
A key element in the approach of the Minister for Education and Science in reviewing the Commission Act is, and has been, to ensure that the views of survivors of abuse are heard and to the greatest extent practicable taken into account. This necessarily requires close consultation and allowing the groups time to consult widely with their members. The Minister first met with the groups at the National Office for Victims of Abuse on December 11th, 2002. At that meeting the Minister outlined his concerns about both the length of time it would take the Commission to complete its work and the likely cost. There was unanimous agreement from the groups that it was not acceptable that the Commission could take up to eight or even 11 years to complete its work and that some action had to be taken if the Commission was to complete its work within any reasonable timescale. Further meetings between the groups and senior officials of the Department of Education and Science took place on January 28th and August 19th, 2003. In addition during this period there were numerous less formal discussions between the Department and members of groups. At the meeting of August 19th detailed discussion was held on giving to the Commission the power to inquire into selected cases rather than each case. There was general, but not unanimous, agreement in principle with this as an approach, although there was considerable disappointment that some people who wanted to give evidence might not be heard. A minority view was to allow the Commission to press on as at present and hear all cases which wished to proceed. The groups sought more time to consult with their members. This was agreed to and a further meeting has been scheduled.
Mandate of Commission
In his letter of July 4th to the Commission, the Minister stated that the second phase of the review was likely "to result in more substantial changes to that envisaged in the first review" in respect of the "workings" of the Commission. The mandate is set out most clearly in the long title to the Commission Act and is essentially to investigate child abuse in institutions in the State; to give people who suffered abuse an opportunity to give evidence to the Commission and to provide for a report by the Commission containing the results of its work and recommendations. The objective of the review of the Commission Act was to find a way in which that mandate could be carried out in an effective and speedy way. In the course of the review, the Commission was consulted and informed of the broad thrust of proposals. There were no proposals to diminish its powers. The reverse is more accurately the case.
"Powerlessness" of the Commission
The principal reason stated by Judge Laffoy for her resignation is because in her view the Commission has, in effect, been rendered powerless. The Government do not agree with this view. The Commission to Inquire into Child Abuse Act remains fully in force. Even if amending legislation has the effect of providing the Commission with the capacity to conclude its work sooner, this does not negative the work done as of now, or any work done up to the enactment of amendments. Moreover, whatever legal measures were required to avoid any problem would have been provided for in the review. Even if the Investigation Committee had concerns regarding the conduct of further individual inquiries, the Commission has been informed that its inquiry into the role of public bodies and the religious congregations in the operation, management and regulation of the institutions will not be altered. This is a core part of its mandate.
In the context of this issue of powerlessness, the correspondence in December 2002 between the Commission and the secretary general of the Department of Education and Science is relevant. In a letter of December 6th, Judge Laffoy stated that the Investigation Committee was most concerned that to continue with its current remit, pending the review, would leave it open to the legitimate complaint that it has incurred very substantial public expense, and placed upon many parties a burden, which either was unnecessary or increased over that which was necessary in the light of the revised remit which would ultimately be put in place. Judge Laffoy also expressed her concern that the Investigation Committee was bound by its existing statutory remit and if it did not continue to carry out that obligation as best it could then it would be open to the legitimate criticism that it was in breach of the statutory requirement placed upon it by the legislation.
The secretary general replied by letter of December 13th to the effect that in engaging in the review it was not the intention of the Government to interfere with the statutory independence of the Commission and that the Investigation Committee must continue to discharge its statutory duties and operate within its existing remit, in such a manner as it considers to be appropriate. The letter went on to state that it was not a legal option to suspend the work of the Investigation Committee pending the enactment of any amending legislation, and that there was no legal basis for a suspension.