An independent body should decide the best type of inquiry to investigate a scandal, says solicitor Raymond Bradley
After years of inquiries and tribunals, Irish people are still waiting for a proper, impartial and effective investigation process to ensure that terrible events of the past are not relived in the future. Many of these events arose from the failure of State institutions to safeguard citizens' personal rights.
As the Laffoy episode has shown, Governments and their Departments often have different agendas for public investigations, usually financial considerations. The Department of Education and Science had a role in the Laffoy Commission and was under investigation.
The fact that the Department was then involved in altering the investigative process after the Commission had started would have resulted in a report that would certainly have been fatally flawed, and possibly subject to a legal challenge.
Miss Justice Laffoy's regrettable resignation was hardly surprising. The Government's intention to alter her mandate after the Commission had already begun its work, left Justice Laffoy with no alternative but to resign.
The truth of the matter is that Government Departments can have a vested interest in the comprehensiveness and effectiveness of the investigative process because in many instances it is these entities who are the subject of the investigation.
And the reality in Ireland is that the establishment of all investigative processes, including the Laffoy Commission, requires the victims to negotiate the terms of reference for their inquiry with a Government Department, which in turn becomes the subject of the investigation itself.
These negotiations are never a meeting of equals. The victims very often represent the most afflicted groups in society, such as those affected by institutional or clerical abuse.
These people have little or no direct experience of Departmental procedures, and find it difficult to adequately represent their own interests.
Some groups also do not possess the political knowledge or force required to achieve proper investigative entitlements.
As a result these victims are highly disadvantaged during negotiations with State entities and the dice are loaded against them.
In order to achieve a proper investigative forum for each of the numerous, major catastrophes affecting Irish citizens, the main principle must be to achieve equality of bargaining power, and respect for the position of persons afflicted.
This will never be achieved when the victims are negotiating with a vested interest. To overcome this, a separate independent body should be established, which would have the power to recommend to the Oireachtas the type of inquiry and the scope of such inquiry that is appropriate to the scandal.
This would avoid the situation where people entitled to an investigative forum would be required to negotiate, depend upon, or be subject in any manner to the whim of Government Departments who may themselves be subject to the investigative process.
Such a new body will take time to establish but in the interim, the Taoiseach's office should take responsibility for all investigative processes that are ongoing.
Another issue that needs to be addressed is where the funding for the inquiry is to come from.
At present, the funding for investigative processes established tends to be linked to a Government Department under investigation. This too needs to be looked at in light of Laffoy and it should be an established principle that all parties who attend an investigative process should be funded on an ongoing basis to ensure equality of representation and opportunity.
The appearance of impartiality must be maintained in all investigative-type forums.
It is patently wrong for any investigative process, after it has begun its hearings, to be subject to the whim of a minister, Government, or most pertinently, a Government Department that itself is subject to investigation.
The Laffoy Commission process was flawed from the very outset. If there is not to be a repeat, a new way of deciding inquiries and how they are run needs to be instituted.