Sunday Business Post, September 14, 2003, by Barry O’Kelly and Sean Mac Carthaigh
For once, the lawyers are not to blame for the grinding down of a public inquiry. This time the culprits are the church and the civil servants. And if the Department of Education and the religious institutions had been deliberately tryingto scupper the Laffoy Commission, they could not have gone about it a better way. Amid the spin and recriminations that have surrounded the crisis in the commission into child abuse, the victims say the real story has been overlooked. While the government failed Justice Laffoy in not delivering the extra staff she sought last November, the crisis, say the victims, was provoked by a cynical, self-serving practice by the Church that has ensured only 39 abuses cases have been heard by the commission in four years. Cases that could conceivably been dealt with in a matter of hours dragged on for up to four days because of the adversarial approach of the religious institutions, the victims claim.
The Church has argued successfully before the courts that each and every cleric accused of abuse is entitled to a full legal team. And in practice this has led to the extraordinary spectacle of two senior counsel and a junior barrister being pitted against one, or perhaps two junior lawyers representing the victims. It is a setting that is greatly at odds with what was in mind when the commission was established.
“We just couldn’t believe it when we went in and were confronted by these heavy-hitters representing the Church,” said one victims’ lawyer. “After getting an indemnity from the state – after agreeing to hand over €128 million worth of property – they try this on,” he said.
The commission is a forum to investigate abuse. However, the hearings are not in public, the perpetrators’ names are not identified and the evidence elicited cannot be used to bring prosecutions. The Church, the victims argue, is acting in every possible way contrary to the spirit in which it claimed to be assisting the inquiry. The leading role of the Department of Education in overseeing the project initially fuelled suspicions of an apparent bias. The department was responsible for overseeing the Church’s management of the industrial schools.
Before it was effectively suspended by the government,the Laffoy Commission uncovered new evidence that senior Department of Education figures knew about paedophiles operating in its institutions and did nothing to stop it.
James MacGuill, whose Dundalk-based firm represents 100 victims, said its initial fears about the role of the department had been confirmed. “I can say from direct experience with dealing with the Department of Education that representatives of the survivors have been frustrated at every turn,” he said. “We have had it for five years. There is an agenda, I have no doubt about it, at a high level in the department to ensure the truth never emerges in relation to how the state, at a minimum, on the best possible case,were grossly negligent in the way they allowed these institutions to operate and more likely were complicit in the cover-up. There’s been far too much spin in the last week and too little documentation.”
The Laffoy Commission relied heavily on the civil service for administrative support. At times, this descended into farce.
At one point an investigation team needed a printer to make copies of some of the thousands of documents involved. They requested this from the civil service. After more than a week, the printer arrived, but without any spare ink cartridges. Soon, the printer lay dormant. It proved beyond the capacity of the administrators to procure a replacement cartridge. Instead, after a delay, they obtained a second, brand new, printer. The cartridge soon ran out in this, and a third, new printer was obtained to sit alongside the other two. The cartridge ran out in this too, and soon there were three new printers, but none could actually print anything. After yet another delay, the three printers disappeared and were replaced by three more new printers.
John Kelly, of Irish Survivors of Child Abuse (Soca), noted that the ceiling for victim’s lawyers is €800 per case brought before the commission. “The church can afford to spend what it likes on lawyers for the paedophiles; they are regularly bringing in full teams of lawyers,” he said. There is widespread agreement among the victims that Justice Laffoy should have been granted more staff when she sought them last November. It’s now clear that the government misjudged the situation when it announced after her resignation that only a sample of abuse cases would be heard at the commission.
It has not escaped the notice of the survivors that under “sampling”, not only would many instances of sexual abuse be buried forever – so would the repeated failure to act by senior figures in the Department of Education. Christine Buckley,of the Aislinn survivors group, said the planned sampling approach was unacceptable and would be boycotted. John Kelly, of Soca, described it as a “non-runner” that would lead to the collapse of the commission if the government attempts to force it through. “The temperature of all the victims has risen. We will have no option but to advise any witness not to cooperate with the inquiry. It would not have the confidence of the victims’ representatives if they force through these proposals.
“I don’t think that any other body will cooperate with an inquiry if they try to push it through,” he said. “We already have a watered down version. We supported this inquiry reluctantly in the first place.” He reckons a compromise can be found in the form of a less adversarial procedure for each case dealt with by the commission. “There are ways around it.The government has a duty to the taxpayer to ensure they are not financially exposed. The legal costs are disproportionate to the issue at hand,” he said. Soca is hopeful that all of the main groups representing the victims can unite on the issue. “A joint approach, involving the Alliance, Aislinn and Right of Place and Soca, is the best way forward,” he said.
Talks are expected to take place between some of the group’s members over the coming days.
“There is this conspiracy involving the church and the Department of Education which is refusing to give up documents requested by the commission,” he said. “These documents would show that they had knowledge that abuse was going on over many decades and would also show that they failed to act on that knowledge. And that’s why they decided to stall, hoping for a review.”
James MacGuill described the sampling proposals as deeply offensive for the victims. He said: “These children were institutionalised, treated as mere numbers in their youth and now they’re being denied the opportunity of getting an individual hearing. The only way you have a reliable and comprehensive report is to have all the evidence available to the deciding body. The second big concern you would have about this justice by raffle approach is that it would be impossible for the commission to draw firm conclusions about the culpability of the state while this systemic abuse was carrying on. I read with amusement that they accused the lawyers of refusing to negotiate on fee. We have been working for the past five years with no payment whatsoever. This is about giving equality of arms to victims . . . Not having them obstructed by the huge resources that the state has given to its defence and the congregations have to their defence.”
John Kelly said at least 20 victims who were waiting to go before the commission had died in the last four years. “We have had quite a few suicides, the odd murder. And people are being denied the right to justice. For four years, justice has been delayed and denied.” Christine Buckley compared the “sampling” proposal to the time there was a backlog of driving test applications, and anyone with three or more provisional licences was given a full one. We are being treated like that, as administrative objects,” she said.