Government caught in conundrum over child abuse inquiry

Political Editor Harry McGee says that while Noel Dempsey may be right in saying that ‘justice delayed is justice denied’, it is clear from the Laffoy letter of resignation that the Government can be accused of causing that very thing it claimed it wanted to avoid.

NOEL DEMPSEY drew on one of the few genuinely evocative legal sayings when justifying his decision last week to launch a second review of the remit of the Commission to Inquire into Child Abuse.

"Justice delayed is justice denied," the Education Minister intoned in a sentence that was widely reported the following morning. The commission, he said, could last eight to 11 years if allowed continue under its present setup.

There is another saying that the minister might have reflected upon. It says that you should never ask a question if you don't know the answer.

Well, the answer arrived through the letterbox of Government Buildings the following day. And as full details of Ms Justice Laffoy's resignation letter emerged yesterday, it became clear why the Government needed a week to prepare its response.

During the week, Government sources were playing down the potential damage of the letter, saying the issues raised were "very complex".

"Very damning" might be a more apposite description for the charges of foostering and procrastination by the Department of Education and, by extension, the Government in its dealings with the Laffoy Commission.

At the centre of it is the candid, and awesome, disclosure from Ms Justice Laffoy that the commission has been left with a "real and pervasive sense of powerlessness". The niceties of the language can't disguise the sense of frustration and abandonment. She pulls no punches when she explains why that situation has come to pass. "In retrospect, it appears to me that since its establishment, the commission has never been properly enabled by the Government to fulfil satisfactorily the functions conferred on it by the Oireachtas."

Her reaction to the second review is no less dismissive. "To abide, without protest the outcome of the further radical review . . . would be a complete abrogation of the [commission's] independence . . . and would seriously undermine my credibility as chairperson."

The most consistent theme to emerge from the five-page letter is her concern about delay. Embarrassingly, as she sets out the reasons for it, it begins to read more and more like a tutorial on political hubris.

The minister is worried about delay. But what has caused the delay? Well, primarily, it has been the Department of Education and, by extension, it has been the Government. And irony of ironies, the Government's own review of the commission's remit (yes, review to prevent the commission from being strung out for the next decade) has itself added to the delay.

Her central charge is that the review process has now become so protracted and wide-ranging that it is itself causing delay, uncertainty and the possibility of injustice for the victims of institutional abuse.

The judge points out the first review has "dragged on" for nine months; the second review will take a "further indefinite" period. It's not known when the second will end or how it will affect the workings, the remit and efficacy of the commission. One thing is already clear at this stage. The changes will be so fundamental as to make the work of the Investigation Committee over the past four years virtually redundant.

In the letter, reproduced in the Sunday Tribune, the restrained nature of reasonable judicial tone in Ms Justive Laffoy's language cannot disguise her frustration at what has amounted, in her view, to the unravelling and grinding-down of the commission's remit and authority.

"Nine months have elapsed since [the first review was started], during which time I have repeatedly reminded the department of my concern for the persons affected by the process."

She goes on to state that the "protraction of the uncertainty" caused by the second review will be "detrimental to the interests of the persons for whose benefit the commission was established the men and women, many of whom are now elderly, who allege they suffered abuse in institutions in the State during childhood".

They deserve, she argues, "to see the inquiry, which they were promised four years ago, concluded within a reasonable timeframe".

What's remarkable about the passage is that the language is uncannily similar to the language used by Mr Dempsey in his press release of the previous day only that the coin has been flipped.

The Taoiseach conceded on Friday that he never thought so many cases would come before the Laffoy Commission or that its work would be so delayed by legal challenges.

In general terms, that admission raises questions about a lack of political foresight as to the consequences of setting up a commission with a remit to inquire into potentially thousands of allegations spanning across a half century.

The principle established in the Haughey case in 1971, namely the right to defend one's good name by appropriate means, has been relied on consistently since then, dragging out tribunals of inquiry for years. That the same process has occurred in the Laffoy Commission (notwithstanding its attempts to adopt an inquisitorial, rather than adversarial, approach) should not come as that much of a surprise. If, in 1999, the Government's couldn't predict the sheer volume of allegations, it was fully aware by the summer of last year.

She identifies four other factors that contributed to the delay and the commission's sense of powerlessness, all of which can be levelled at the Government. It took over two years to come up for a compensation scheme for survivors, she says, and it took the same time span to deal with the issue of legal costs.

And then there was the remit review, which began in December 2002. That was to be concluded by mid-February 2003. The outcome of the review, she pointedly notes, "has not been published yet".

Lastly, she refers to the Government decision in December to agree in principle to give the commission adequate resources. The request had been first made almost six months earlier. The resources would have allowed the Investigation Committee to conduct four hearings simultaneously. But because more resources were contingent on the outcome of the review process, she concludes that the decision has been rendered "meaningless".

Justice delayed is justice denied. The Government now finds itself in a tricky conundrum, accused of causing that which it says it wants to avoid.