2nd September 2003
Mr. Dermot McCarthy
Secretary General to the Government,
Government Buildings,
Upper Merrion Street,
Dublin 2
Dear Mr. McCarthy,
I am the Chairperson of the Commission to Inquire into Child Abuse, appointed by the Government pursuant to section 6 of the Commission to Inquire into Child Abuse Act, 2000. In that capacity, I request that you put this letter before the Government.
I refer to a Press release of 1st September 2003 from the Department of Education and Science announcing the decision of the Government to engage in a second phase of a review relating to the Commission. The Commission responded to that announcement in a statement posted on the Commission’s website today. It its statement, the commission explained that, for legal, practical and financial reasons, it is effectively constrained to put the substantive work of the Investigation Committee (the gathering and assessment of evidence) on hold pending the announcement of the results of the review. The Commission also announced its intention to issue and Interim Report in November of 2003.
This prolongation of the duration of the Government review is merely the latest in a series of events which have, since the inception of the statutory Commission over three years ago, impeded the completion by the Commission of its statutory mandate as set out in the Act of 2000 in a timely fashion. A range of factors over which the Commission has had no control have together produced a real and pervasive sense of powerlessness. 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.
The factors which have brought about this situation include the following:
(1) the issue of compensation for survivors of abuse, first raised in July 2000 by a group of solicitors acting for a substantial number of survivors, which was eventually dealt with in the Residential Institutions Redress Act 2002, which was enacted in April 2002;
(2) on the issue of the payment of legal costs of persons involved in the process of the Investigation Committee, first raised by solicitors on behalf of persons making allegations and solicitors on behalf of persons and bodies against whom allegations were made as early as July 2000, which also was eventually dealt with in the Act of 2002;
(3) the Government’s 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 which were the subject of formal statements to the Investigation Committee became known, which requests commenced in early June 2002;
(4) the Government decision of 3 December, 2002 to review the Commission’s mandate, which was to be completed by mid-February, 2003, the outcome of which review has not been published yet; and,
(5) the Government decision of 3 December, 2002, to agree in principle to the provision of additional resources as requested, which in the events has proved meaningless, because it was made contingent on the outcome of the review, which still has not been published.
As Chairperson of the Commission I have always recognised that the foregoing matters and their resolution were matters of policy for the Government and that my role was to preserve intact the process put in place by the Oireachtas in the Act of 2002. However, I believe that the cumulative effect of those factors, each of which has been characterised by long periods of uncertainty for the Commission, has effectively negatived the guarantee of independence in the performance of its functions conferred on the Commission by section 3(3) of the Act of 2000 and has militated against the Commission being able to perform its statutory functions as envisaged by the Oireachtas with reasonable expedition.
Recent events, the communication to the Commission of t July 2003 of a Government decision that there is to be a further phase of the review of the Commission’s mandate and the publication of information in relation to that decision in the Press Release yesterday, have compounded the sense of powerlessness. On the basis of current knowledge, it is not possible – (a) 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.
(b) to predict whether, as current Chairperson, I might be precluded from continued participation in the work of the Investigation Committee post review on account of involvement in the work of the Investigation Committee to date, or (c) to predict the duration of the review, which is open-ended.
As has been pointed out in recent correspondence from the Commission to the Department of Education and Science, the only clear inference to be drawn from the recent communications from the Department to the Commission is that the Government has decided that the Commission will not implement its current statutory mandate. The Government having chosen not to adopt the suggestion made by the Commission immediately following the communication to it of the decision of the 3 December 2002 – that legislation be enacted to enable the Investigation Committee to suspend the operation of its current procedure pending completion of the review and the enactment of any necessary legislation to give effect to the outcome of the review – the Commission has been faced with the following fundamental difficulties.
From a formal legal point of view, the Commission is still fixed with an unqualified mandate from the Oireachtas as sent out in the Act of 2000, as amended by the Act of 2000. From a practical point of view, however, although the statutory mandate remains unqualified, all participations in the process (persons making allegations and persons and bodies against whom allegations have been made), the members of the Commission and Commission personnel are now aware from Government announcements that the Commission’s mandate is to be altered and that the Commission will end up working and reporting to a mandate potentially radically differently from that currently in force. If follows that the procedures under which the Commission has operated and the investigations which it has conducted up to now may transpire to be redundant or incorrectly focused in the light of some future, but as yet unknown, mandate.
That these uncertainties would impact on the Commissions work in many respects, legal, practical and financial, has been brought to the attention of the Department since the decision to radically alter the Commission’s mandate was communicated to the Commission on the 4 July last. The current mandate, while still on the statute book, has, in effect, become inoperable and the Commission has in a practical sense been rendered powerless. It is clearly not possible to predict which parts of its existing functions and powers will survive the review.
The consequence of the most recent decision of the Government is that an independent statutory Commission has been put in the position that it has had to decide, following legal advise, that it cannot continue to engage in the work which it considers it should be engaged in to advance its mandate and, further, of having to publish that decision. The public now knows that the Commission is, in effect, stymied in relation to its statutory function, albeit with a proposal in the background that at some indeterminate date in the future alternative functions are to be conferred on it by statute.
Following the announcement of the Governments review last December and having been advised by the Department that the Investigation Committee should continue to operate in accordance its existing mandate, I, in conjunction with my colleagues, consulted with the Attorney General, who led the review, in the belief, in the short term, it would bring about a situation in which the Commission would be in a position to discharge its remit in a speedier, more effective and cost effective manner. I had hoped that the outcome of the review and any legislation necessary to give effect to it would have been published around Easter last. Instead, the process had already dragged on for seven months by the time the Commission was notified of the most recent Government decision. I have come to the conclusion to abide, without protest, the outcome of the future radical review now proposed, whenever it may be concluded, would be a complete abrogation or the independence which the Oireachtas intended the Commission to enjoy and would seriously undermine my credibility as Chairperson of the Commission.
On the 29 November 2002, in a response to a request from the Department of Education and Science, to justify the Commissions request for sufficient resources to enable the Investigation Committee to work in four divisions with the objective of completing Phase 1 of its work by the end of July, 2005, on behalf of the Commission, I stated as follows:
“Apart from the possible legal consequences of the fulfilment of the Investigation Committees remit being unduly protracted, it is not in the interests of any of the parties involved in the process that the Investigation Committee should not be in a position to complete Phase 1 of its work within a reasonable timeframe. Of particular concern are the following considerations:
· the need to bring to bring closure to bring closure for the Complainants and for other victims of abuse in childhood, many of whom are old and in bad health.
· the avoidance of unfairness to individuals against whom allegations have been made, which may not stand up following investigation. Many of the individual respondents are very old. Some are in bad health. It may be that in certain cases, the end of their lives are being unfairly blighted by the stress of a prolonged investigation. Issues of fairness also arise in relation to individuals against whom allegations have been made, who are still of working age, whose capacity to work in institutions may be affected.”
The Government’s decision to review the mandate was made the following week. Nine months have elapsed since then, during which time I have repeatedly reminded the Department of my concern for the persons concerned by he process. I believe that the further indefinite protraction of the uncertainty as to the task which the Commission will ultimately be mandated to carry out announced in the Press Release is 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 that they suffer abuse in institutions in the State during childhood, who, at not inconsiderable cost, have indicated a willingness to assist the inquiry. They deserve to see the inquiry, which they were promised over four years ago, concluded within a reasonable timeframe. More-over, I believe that the inevitable future delay has the potential to give rise to unfairness and injustice to individuals against whom allegations have been made and persons with management or regulatory responsibility for institutions in which abuse is alleged to have occurred. They are entitled to expect that such allegations will be dealt with within a reasonable timeframe.
It is with great regret that I now notify the Government that I have decided to resign chairmanship of the Commission as soon as the Interim Report on the work of the Commission under its current mandate, announced in the Commissions statement is published. This report will account for the Commissions work to date and hopefully it will be of assistance to whoever takes up this work under the revised mandate. It will also outline in detail the factual circumstances which have given rise to the members of the Commission being in the wholly invidious situation in which they now find themselves. My principle reason for resolving on this course is because the Commission has, in effect, being rendered powerless by reason of the matters set out above. As subsidiary consideration which has weighted with me in reaching the decision is that there appears to be some risk that a Commission which works first to a mandate, and then to a substantially different mandate, would leave itself open to legal challenge on the ground that, in the course of exercising its first mandate, it obtained information or formed impressions which would effect its capacity to exercise the second mandate with a fully open mind. While, on the basis of independent legal advice which I have obtained, I believe that this risk is a slight one, nonetheless, even a slight risk maybe unacceptable in a matter of this importance.
The extensive correspondence between the Commission and the Department sets out in greater detail the issues dealt with in this letter. For convenience of reference, I am appending copies of the Departments Press Release, the Commissions statements, the correspondence in December 2002 referred to earlier and the letter dated 4 July 2003 and subsequent correspondence between the Commission and the Department, as listed in the attached schedule.
A statement of my intention to resign will be posted on the Commissions website today, which will indicate that the reasons for my decision are set out in a letter to the Government.
Finally, the Government may be assured that, in relation to my departure from the Commission, I will take all necessary steps to ensure that the public interest is protected.
Yours sincerely
Mary Laffoy (signed)
