Ms Justice Laffoy's resignation is no mystery - she had repeatedly madeclear her frustration with the Department of Education, writes Mary Raftery
To many, including some of her own staff, the resignation this week of Ms Justice Mary Laffoy as chair of the Commission to Inquire into Child Abuse came as a complete shock. However, looking at the fraught relationship between the commission and the Government over the past three years, that resignation becomes somewhat less surprising.
If any other commission or tribunal of inquiry currently sitting had been subjected to the tactics used to undermine the Laffoy Commission since May 2000, there would undoubtedly have been a public outcry. Ms Justice Laffoy has outlined the nature of these difficulties in public on a number of occasions. It remains a mystery why the State's persistent refusal to co-operate with the commission has provoked so little public reaction.
As part of its function to investigate allegations of child abuse in State-funded institutions, the commission would of necessity have devoted much of its energies to interrogating the Department of Education, the Department with primary responsibility for the regulation and inspection of industrial schools, which duties it so clearly failed to perform for much of the 20th century. And it is the behaviour of this Department which is at the heart of the commission's problems, and ultimately, the resignation of Ms Justice Laffoy.
As recently as last April, the judge was scathing in her criticism of the Department, which had failed yet again to produce documents in its possession which had been requested by the commission.
"It beggars belief," she said, "that we are where we are today. We are 18 months down the road and the Department is still not dealing directly with requests from the commission." Ms Justice Laffoy added that "the commission is worn out by expressions of contrition from the Department that are not matched by delivery."
It is hard in this context to avoid a comparison with the prompt actions of the Flood Tribunal when faced with non-compliance on the part of Mr Liam Lawlor.
Perhaps had Ms Justice Laffoy moved to commit the Minister for Education to Mountjoy, the commission's difficulties in securing departmental co-operation might have been eased.
Since its formal establishment just over three years ago, nothing has been easy for the Laffoy Commission. One of its first and most immediate priorities was to sort out payment for legal representation for those appearing before it. It took the Department over six months to respond to Ms Justice Laffoy's repeated requests that an appropriate scheme be established.
In September 2000, the judge expressed the disappointment of the commission that there was not "a more obvious willingness on the part of the State to speedily address issues which are impeding the effective conduct of the tasks which the Oireachtas has given the commission to do".
Throughout the autumn of 2000, it became clear that the Department of Education was dragging its heels on a further issue, a delay which almost completely suspended proceedings of the commission at that stage. Lawyers for many former inmates of industrial schools had made it clear that their clients would not co-operate with the commission in the absence of a firm Government commitment to introduce a meaningful compensation scheme for those abused.
Once again, it took months for the Department of Education to respond, and once again, Ms Justice Laffoy was forced to engage in public criticism. When eventually details of the compensation scheme (now the Redress Board) were announced by the Department, it emerged that there had been no consultation on this area with the Laffoy Commission. While the compensation process was always going to be completely separate from Ms Justice Laffoy's Commission, it was somewhat unusual that her views (as an expert in the field) were not sought by the Department.
Throughout this period issues had also arisen around potential conflict of interest. The commission, while fully independent, was funded by the Department of Education from which most of its staff had been seconded. The point was made, again by lawyers for survivors, that as the Department of Education was itself being investigated by the commission, its involvement in this way with the commission was inappropriate.
Shortly after this, the commission itself sensibly decided that all future appointments to its secretariat would no longer include anyone employed in the Government Departments under investigation (Education, Justice and Health). However, the funding relationship with Education remains intact, and must continue to give rise to concerns about the control which that Department can exert.
In November 2001, different problems arose. As the investigation wing of the commission began to move towards formal hearings, the attitude of the religious congregations hardened. It is they who ran the childcare institutions in question, and it is against their members that over 3,000 individuals have made specific allegations of abuse.
Despite their apologies and protestations of co-operation with the commission, Ms Justice Laffoy described their approach as "adversarial, defensive and legalistic". She stated that rather than co-operating, "in practice they are doing no more than complying with their statutory obligations and doing so reluctantly . . . and under protest."
Their adversarial approach was also having a devastating effect on some survivors testifying before the commission. Some hearings which were expected to last an afternoon became instead marathons of aggressive and exhausting cross-examination, some lasting several days. However, all of this has been happening behind closed doors, with no public scrutiny of the ethics of the legal tactics adopted by the religious orders.
To a substantial extent, the attitude of the religious orders came as no surprise to the commission. It expected to deal with legal challenges to its procedures, and was fully prepared for them.
Over the past year, Ms Justice Laffoy has issued a substantial number of lengthy and detailed legal rulings on such challenges made to the commission's operation.
Last October, the commission engaged in a detailed review of its own operation, and suggested a number of significant changes to speed up the process. It firmly believed that these changes, which involved a concentration on examining each institution, as opposed to each allegation of abuse, would have allowed it to make substantial progress by 2005. It also, interestingly, suggested an increase in the amount of evidence which it might hear in public.
However, the Minister for Education, Mr Dempsey, appears now to have rejected the commission's own model for progress. His statement on radio this week that he was subjecting the commission to a further review has caused the investigative committee of the commission to suspend its hearings until further notice, and is likely to have been the straw that broke Ms Justice Laffoy's back.
This is the same Government Department which has been so consistent in its obstruction of the work of the commission.
As Ms Justice Laffoy put it last April: "Whatever confidence there was in getting the job done quickly is being sapped away by the manner in which the Department has engaged with the commission."
Mary Raftery is the producer of the award-winning TV documentary States of Fear