It's hard to see how the child abuse commission will get back on track,writes Arthur Beesley, Political Reporter
The only people who can be happy with the huge doubts surrounding the work of the child abuse commission are the abusers and anyone protecting them. They may well fear that their grim secrets might one day be exposed by the inquiry. But every new delay buys them time to avoid justice.
For hundreds of their victims, many of them scarred by abuse early in their lives, the waiting goes on. They want to confront the abusers, to vanquish the shadows that blight their lives. If they cannot end their pain by testifying to the commission, they want to have put it on record. They had an option to give evidence in private, uncontested. They chose to go public.
Four years have passed since the Taoiseach apologised for the abuse and neglect they suffered in State and religious institutions. With the economic boom then at full strength, RTÉ's documentary series States Of Fear cast light on a darker time. The apology came from a new Ireland, looking beyond the public pieties of an older place to the rot beneath.
If the apology was the first official recognition of institutionalised suffering, the Commission to Inquire into Child Abuse was an attempt to establish the scale of the problem and who was responsible for it. It was set up in May 1999 in a spirit of truth and reconciliation. But it soon became bogged down in arguments about due process, and discussions about a compensation scheme for survivors and legal fees for their lawyers took years to resolve.
The Government is now accused by the commission's former chairwoman, Ms Justice Mary Laffoy, of rendering it powerless and putting it in an impossible position with the Department of Education and Science. The Government vehemently denies this.
The activities of the Department are under investigation by the commission. Yet the Government says it is logical for it to continue as the commission's sponsoring Department, with responsibility for the allocation of its resources.
Powerless or not, only 40 cases have been fully heard since the commission was established. Some 1,700 cases are outstanding.
With the resignation almost a fortnight ago of Justice Laffoy, it is increasingly difficult to see a way out of the quandary.
Dogged from the outset by procedure and politics, the inquiry is now without a chairwoman. Although the Government has approached a person with a legal background to replace Justice Laffoy, that person has heard the judge allege that the Government "effectively negatived" the guarantee of independence. Even when the prickly relationship between the Government and the commission in the past is cast aside, the way forward seems littered with obstacles.
First there is the Christian Brothers' High Court challenge to the constitutional basis of an inquiry into events that took place decades ago. The outcome of that case, before Mr Justice Abbott, will have a crucial bearing on the future of the inquiry. Expected soon, the judgment is likely to be appealed to the Supreme Court. Finality is not expected until early next year at the soonest.
It is entirely possible that the courts will grant the challenge. Yet even if the constitutionality of the inquiry is upheld, there is a very real possibility of further legal tests.
The Government has yet to publish the detail of its controversial proposal to scale back the investigation by hearing only a sample of cases in full. There has been no secret of plans to draw inferences from the rulings in such cases to reach conclusions in cases that are not heard. But there were only oblique references to the plan in a statement this week, which referred to "a forward-looking process that will address past difficulties and the complications that have arisen".
This is novel legal ground. If hearings into individual cases examining events decades ago can be challenged in the courts, there is nothing to suggest that the power to draw inferences from only sample cases will not be tested. And there are two potential sources of such a challenge. Some victims' groups are already set against the proposal. Equally, religious orders are unlikely to accept it without a fight.
But Noel Dempsey, the Minister for Education and Science, seems determined to push ahead with the strategy. In cases of alleged neglect at institutions, where people were not fed properly or were left outside in bad weather, he argues that it would be reasonable to conclude findings on the basis of sample hearings. With the current estimate suggesting that the remaining hearings will take up to 11 years if all cases are heard in full, Dempsey says it is in the interests of survivors of abuse to move the inquiry ahead quickly.
This is especially so, he says, because many of the complainants and those they accuse of abuse are elderly - some have died in recent months. The objective is to shorten the inquiry.
Abuse survivors say the sampling proposal denies them their day in court. The One in Four group says the proposal is fundamentally unacceptable: "We do not believe that such an approach can in any way provide meaningful justice for victims of abuse."
There is also the issue of costs. An 11-year investigation could cost €200 million in legal fees. With the public finances under pressure, Dempsey said this week that there was "unease" about such expenditure. These sums are in addition to the Government's projected financial exposure of about €500 million, required to compensate abuse survivors. Because there is no limit to the State's exposure, this sum could rise or fall.
Controversially, the Government agreed last year to indemnify the religious orders against compensation claims by limiting their exposure to €128 million. The Church is protected against further payments under the agreement, with the State having to cough up any extra.
Critics note that the indemnity was granted while the institutions' activities were still under investigation by the commission. The Christian Brothers' High Court challenge was initiated only after the deal was done.
Dempsey said he laments the adversarial, legalistic approach of some religious. But he defended the deal, arguing that the Church had no obligation to contribute to the compensation fund. Would it have been better to wait for the outcome of the inquiry? "It was better to have money in the bank."
The root of Justice Laffoy's confrontation with the Government was her demand in the middle of last year for increased resources. Faced with the prospect of thousands of trials within trials, because of religious orders' adversarial stance, Justice Laffoy had other plans to speed up the investigation. She too was concerned about delays' potential to deny justice to elderly abuse survivors.
Her solution was modular investigations, with four strands of inquiry under way at any one time. In contrast to the 11-year projection, she believed crucial elements of the work could be wrapped up by July 2005. The plan involved increasing her staff from 38 to 79. It was "wholly contingent" on additional resources being made available as a matter of urgency. They were not.
The Government said it agreed in principle with the demand for resources, but it embarked on a review of the remit of her inquiry. The judge responded: "While the Government decision gives the appearance of accepting the need for greater resources . . . the same amounts in substance to a refusal of the request for additional resources pending the outcome of the review with an indication that . . . additional resources may be considered."
Dempsey has strongly disputed this. The Government view was that the judge had been given the resources, even though the Department of Education and Science advised her to recruit staff gradually and perhaps on short-term contracts. The judge's view was that the commission had been placed in an impossible position.
The Government's review was completed early this year. It was signed off by the Cabinet in April but sidelined only a week later as an inadequate response when Dempsey decided to push for a wider-ranging review. The second review, embracing the sampling option, was initiated last April.
The judge was duly informed of the second review, which meant she had to suspend the commission's investigations. But with the Government confirming only last week that the second review was under way, she resigned.
For the Government the development came as a bolt from the blue. The judge's strident letter of resignation, however, and the records she enclosed with it, made clear that she had been very unhappy for some time. Among other accusations was the claim that the Government had curtailed her independence and the ability of the inquiry to do its work.
"A range of factors over which the commission has had no control have together produced a real and pervasive sense of powerlessness," she wrote. "The commission has never been properly enabled by the Government to fulfil satisfactorily the functions conferred on it by the Oireachtas." Dempsey has spent much time denying these claims since the letter was leaked to a Sunday paper. Although Bertie Ahern said he accepted the criticisms, he then disputed points in her letter.
There is an irony in all this. In Justice Laffoy the Government chose a formidable and tough judge not given to tolerating excuse or prevarication. If this was a boon when it came to facing down those opposed to her inquiry, it backfired badly when the Government started to rethink the commission.
Although not well known when selected as its chairwoman, the judge has an A-grade reputation among lawyers. With a specialism in the law of property and conveyancing, she was described by one figure familiar with her court work as "the consultant of serious recourse" in these areas.
"I'd say that she is intellectually flawless. She has a first-class mind," the person said. "She combines tremendous intellect with self-effacement." The judge was not seen as political: "She was outstanding for her competence, not for her allegiances." Still, her resignation had a profoundly destabilising effect on the Government.
The affair has overshadowed its resumption of full-time duties after the holiday period. Ahern returned to work last Monday week after a summer lacking in lustre. A day later the judge resigned.
With the Government set to face renewed pressure over the sense of crisis pervading the health service and the public finances, Ahern had wanted to rally his troops ahead of what is likely to be a tough Dáil session. The resignation meant there was no gloss on the special Cabinet meeting last week in Emo, Co Laois. The affair was still dominating the agenda seven days later, when Fianna Fáil TDs and Senators met in Sligo.
There may have been camaraderie on tap in Sligo, but the Government's response to the Laffoy controversy casts the credibility of Ahern's apology in sharp relief. The Government insists it did not set out to frustrate the inquiry, that it meant well all along.
But like denials about spending cuts during last year's general-election campaign, perception is a difficult thing to turn around. The judge's resignation demanded a decisive response, but when it came the Government's immediate proposals were the same as those left aside last April.
Meanwhile the victims wait. Justice Laffoy more than once warned the Government that the continued delays were in the interests of no party to the investigation.
In her letter of resignation she repeated a point she had made in two previous letters. "Of particular concern are the following considerations: the need to bring closure for complainants and for other victims of abuse in childhood, many of whom are old and in bad health." She was also concerned to avoid being unfair to people against whom allegations were made but which may not stand up.
"It may be that in certain cases the end of their lives are being unfairly blighted by the stress of a prolonged investigation."
If such words seem as salient today as when they were written, it is far from clear how the issues will be resolved.
The Government moved this week to grant additional
powers to the child-abuse commission, but wider reform of the inquiry will depend on
the courts. Although the confrontation between Ms Justice Mary Laffoy (right) and the Government over the management of the Commission to Inquire into Child Abuse pits two arms of the State against each other in a highly politicised controversy, the High Court challenge to the commission by the Christian Brothers will have a crucial bearing on its future.
The order is challenging the constitutionality of hearings into events that took place decades ago. The judgment is likely to be appealed to the Supreme Court by the inquiry
or the order.
With the case not expected to be resolved until early next year at the earliest, the Government's reform initiative is far from coming into effect.
It also plans to conduct a separate independent review of the inquiry before finalising its plans. This is seen as a way for the Government to convince abuse survivors that the proposals are workable.
Legislation for an initial reform package is promised next spring, but this is on the basis of proposals that the Government deemed to be inadequate to expedite the work of the inquiry.
The more far-reaching plan to hear only sample cases and draw inferences from them has yet to be published. It too will depend on the Christian Brothers' case.
In the interim the Government plans to change the law of evidence as it
applies to the commission, empowering it to admit documents. It will also
have the power to require
sworn statements of witnesses.
The Government wants to shift the financial burden for legal representation "on to parties who conduct themselves unreasonably during the commission's investigation into abuse".
Unreasonable conduct was not outlined, although the inquiry has noted that some respondents were only reluctantly complying with their statutory duties or doing so under protest.