Tinkering with the commission is unlikely to work, writes Carol Coulter, Legal Affairs Correspondent
In retrospect, it may be that the setting up of the Commission to Inquire into Child Abuse was not the best way to deal with the public acknowledgement of the abuse that took place in residential institutions (in the main) in the middle decades of the last century.
The outrage that followed the States of Fear programme and the public acknowledgement by the Taoiseach that the State bore a heavy responsibility for what happened were important first steps for the victims.
More was needed, including a platform for victims to detail their experiences, and compensation for those robbed of their childhoods and of the ability to develop into healthy and happy individuals. Their childhoods can never be returned to them, and all that could be done for them was to ensure they lived out the rest of their lives in some degree of comfort and dignity.
It was also necessary to identify the failures in the whole child-care system: the decision-making process that sent children to these institutions; the expectations placed on these institutions; and their supervision by the State that allowed the abuse to continue unchecked.
The way in which the orders concerned worked, the manner in which they recruited and trained members, their attitudes to children and to their own members, also required scrutiny. It was also necessary to establish if these practices, and the individuals involved, were still in the child welfare system.
But it was always going to be difficult to combine the necessary therapeutic work of allowing the victims to describe their experiences and of identifying what abuse occurred, by whom it was inflicted, and what could have been done to prevent it.
This necessarily involved the reputations of people who might have been wrongly, or mistakenly, accused of some of the most abhorrent crimes known to modern society.
There was a conflict, therefore, between the right, long denied, of the victims to a hearing, and that of accused people to due process and to a proper defence. Just because an accuser is a person deserving great sympathy does not mean that the accusation should be accepted at face value.
The commission sought to overcome this by having two separately, and hermetically sealed, committees: a confidential committee hearing victims' experiences, and an investigation committee which will eventually make findings of fact about the abuse. It became clear that many of the specific allegations against specific individuals will be contested, and that involves legal teams on all sides, paid at High Court rates.
The Government has been considering dealing with this by taking a "statistical sample". It is hard to see how this would work. Who chooses the cases to be sampled? On what basis? Would the Department of Education, which will be drafting the new legislation, and which itself is one of the bodies under investigation, be doing so? In order to be fair, the sample should include minor cases of abuse as well as more serious cases.
Such a course is unlikely to satisfy the 1,730 victims who want to confront their accusers, and have signalled their intention of doing so, and could well be open to legal challenge.
It is likely that, under a new remit, the basis on which lawyers' fees are paid will be changed. There are few, apart from lawyers, who will argue with this, but lawyers for the victims have persuaded their clients in the past not to participate without what they consider adequate fees, and they could do so again. Tinkering with the commission's remit in this way is unlikely to work.
Meanwhile, time is running out, and evidence about what happened is literally disappearing as those concerned die or become too infirm to give it.
It may be too late to carry out an effective investigation at all, and the Government should now acknowledge this. Instead of conducting a judicial investigation, all involved should hand over all relevant documents to a multi-disciplinary team qualified to evaluate them and prepare a report.