The Government's decision last week to engage in a second phase of a review has effectively put the substantive work of the Commission's Investigation Committee on hold.
- The only clear inference to be taken from recent correspondence received from the Department of Education and Science is that the Government has decided that the Commission will not implement its current statutory mandate.
- The Commission has never been properly enabled by the Government to fulfil satisfactorily the functions conferred on it by the Oireachtas.
- A range of factors over which the Commission has had no control have produced a real and pervasive sense of powerlessness, including:
1) the two-year delay on the issue of compensation for survivors of abuse eventually dealt with in the Residential Institutions Redress Act enacted in April 2002;
2) the two-year delay in the payment of legal costs of persons involved in the process eventually dealt with in the Act;
3) the Government handling of requests for the provision of adequate resources to enable the Investigation Committee to carry out its remit with reasonable expedition when the volume of allegations became known;
4) the Government decision in December 2002 to review the Commission's mandate which was to be completed in February 2003 but which has not yet been published;
5) the Government decision of December 2002 to agree in principle to the provision of additional resources was made contingent on the outcome of the review, and so has proved meaningless.
- The cumulative effect of those factors has effectively negatived the guarantee of independence conferred on the Commission and militated against it being able to perform its statutory functions.
- It is not possible to deduce the nature of the functions which are likely to be conferred on the Commission post review, save that they will be substantially different from its current functions.
- It is not possible to predict whether the chairperson might be precluded from continuing to work on the Investigation Committee or to predict the duration of the review.
- The investigations which the Commission has conducted up to now may transpire to be redundant or incorrectly focused in the light of a future unknown mandate.
- To abide, without protest, the outcome of the further radical review now proposed, would be a complete abrogation of the independence which the Oireachtas intended the Commission to enjoy and would undermine the credibility of the chairperson.
- The ongoing uncertainty is detrimental to the interests of the persons who allege they suffered abuse and has the potential to give rise to unfairness and injustice to individuals against whom allegations have been made.
- There is a risk that a Commission which works first to one mandate and then to a substantially different one, would leave itself open to legal challenge.