The Government proposals offer little hope of a speedy resolution of the crisis in the Commission on Child Abuse, writes Carol Coulter, Legal Affairs Correspondent
The victims of child abuse will be disappointed that, despite the promise of proposals on the way forward for the Commission, there was nothing new in what was published yesterday by the Government.
There are no specific proposals in the document other than what existed in the Heads of a Bill put before the Government last April, and later put on hold in order to pursue a second review. The Government has now said it will legislate along these lines, but adds that this legislation will have regard to "whatever issues emerge from the current Christian Brothers' constitutional case".
This means that there will be no legislation before that case is concluded in the Supreme Court, assuming there is an appeal. The Government statement also says it will "take all steps necessary to expedite the conclusion" of these proceedings. It is difficult to know what these steps might be, given the independence of the courts. It can be assumed that Mr Justice Abbott is working as hard as he can on his judgment for the High Court, which is likely to be delivered when the courts resume in October. The Supreme Court will be aware of the urgency of any appeal, and is likely to give it an early hearing.
However, the repeated references to the Christian Brothers case by the Government raise a further issue: does the Government accept a fundamental principle of Irish constitutional law, called the "presumption of constitutionality"?
This means that the Oireachtas is presumed to legislate in accordance with the Constitution, unless it can be proved to the contrary. The burden of proof that a law - in this case, that setting up the Commission in the first place - is constitutional. Yet the Government appears to expect the Commission, which is defending the Act's constitutionality, to lose the case. It almost seems that it is inviting the courts to rule against an Act of the Oireachtas.
In any case, there will be no legislation of any kind until this case has run its course, and that will not be until next year. Meanwhile the second phase of the review is continuing. This may well come up with the much-touted proposal to proceed with the "sampling" of cases, a proposal that has, so far, found little favour with the victims.
But there is now another layer to be added to the general review process. This is the commitment to seek a report "from an independent and objective source, on the application of best practices to the organisation and workings of the Commission to ensure that its mandate is fulfilled within a reasonable timeframe".
It has not been explained what this "independent and objective source" might be. Presumably the Government has in mind some kind of management consultants, either from here or abroad. If from outside the State, they will need to be given an extensive crash course in Irish constitutional law.
There is also a clear implication here that such "best practices" may not have been present in the past, which is unlikely to smooth the path of any such consultants to the door of the existing Commission.
The promised legislation will, according to the Government proposals, "provide a transitional mechanism which will ensure that evidence gathered to date can be used within the proposed new remit." This was precisely the legal problem identified by Ms Justice Laffoy, which led to her putting the work of the Investigation Committee on hold, and, given the continued delay, to resign herself. There is no indication as to what such a mechanism might be, but there can be no doubt of the legal challenge it poses. It is therefore likely to provide a very fruitful hunting ground indeed for lawyers.
The Government has also promised to "proceed with the appointment of a new chairperson", as it must, because the Commission can do nothing without one.
But that will not be easy. There is unlikely to be a queue of judges lined up waiting to step into the shoes of the highly-respected Ms Justice Laffoy, given the difficulties she experienced. Of course, it is not necessary that the chairperson be a judge. As numerous High and Supreme Court challenges have made clear, a tribunal, commission or inquiry is not a court of law. These organisms are creatures of the Oireachtas, established for a specific purpose. They do not administer justice, and they report back to the Oireachtas. They are independent in their operations, but they do not enjoy the constitutional protection afforded to the courts, and the issue of judicial independence does not arise.
If a judge happens to chair such a body, he or she is not acting as a judge in that capacity. So the Government could ask any eminent or competent person to chair the Commission.
But if anything has been clear in recent days, it is that chairing this Commission is a complex, sensitive and legally-challenging task. Indeed, it may be an impossible one.