In recording the interaction of the Minister and his Department with the Commission in the period between the beginning of June 2002, when the Commission submitted its request for additional resources, and September 2003, when the Minister publicly announced a second review of the Commission’s remit, it is necessary to refer to the contents of correspondence and statements. Lest the references give an incomplete, inaccurate or distorted account, the letters which it is considered are of seminal importance in defining the relationship between the Commission and its sponsoring Department, and the relevant statements are set out in their entirety in Appendix D. Of the published letters, those which emanated from the Commission represent only a portion of the
30 Section 32.
31 Section 20 (for which sections 20 and 20A were substituted).
32 Section 23.
correspondence from the Commission in which the needs of the Commission, the urgency of meeting those needs and the consequences of failing to do so were urged. In addition, during the period between June 2002 and September 2003 the following meetings took place with a view to advancing matters:
•
A meeting held on 4th November, 2002 attended by the Minister and his officials and the Chairperson and another member of the Commission.•
A meeting held on 9th May, 2003 attended by the Minister, the Attorney General and the Chairperson of the Commission.•
A meeting held on 15th July, 2003 attended by the Minister, the Attorney General and the Chairperson of the Commission and Counsel to the Commission.The earliest intimation which the Commission had that it might not get a prompt response to its request for additional resources was contained in a letter dated 21st August, 200233 from the Department in which it was informed that the matter was to go to Government.
The Government was to be apprised of, in addition to the resourcing needs of the Commission, any associated implications for the resourcing of the Department, the cost of legal representation and the duration of the Commission’s work. In the letter it was intimated that the Department would like to advise the Government of the likely duration of the Commission’s work.
Throughout the period from June to December 2002, the Commission responded promptly to all requests for information from the Department. In response to the letter of 21st August, 2002, the Department was informed of the difficulties of predicting the duration of the work of the Commission. However, it was made clear that the Commission was working towards the completion of its work within the extended timeframe given to it by the Oireachtas, i.e. by 23rd May, 2005. The Department was informed that because of the nature of the Commission’s work and the age profile of the many people affected by it, the Commission considered that it was imperative that the work of the Commission should be completed within a reasonable timeframe.
Following further correspondence and discussions, including discussions between the Commission’s legal team and the Department’s legal team, on 2nd October, 2002,34 the Secretary General of the Department wrote to the Commission indicating that the Minister intended to seek the views of his Cabinet colleagues on the issue of additional resources within the following few weeks. It was pointed out that examination of the additional requirements provided an opportunity for the Government to consider more generally the work of the Commission and the expected costs and time scale associated with completing the work. The Commission was asked to confirm the Commission’s understanding of these issues and, in particular, the Department’s understanding that—
•
the Commission would be in a position to furnish its Report in mid to late 2007, and•
a reasonable assumption was that legal costs alone could reach approximately \200 million.33 In Appendix D.
34 In Appendix D.
The Commission responded by letter dated 3rd October, 2002,35 in which it reiterated the urgent necessity for a decision on the Commission’s requests for additional resources, without which the Commission simply could not do what it had been mandated by the Oireachtas to do. Having outlined the necessity for divisionalisation of the work of the Investigation Committee, the Commission indicated that it was aiming to complete Phase 1 by July 2005. In its view any prolongation of Phase 1 beyond the middle of 2005 threatened the ability of the Investigation Committee to complete its work and the proper fulfilment of the Commission’s mandate. It was acknowledged that it was unlikely that it would be able to publish a report before mid 2007. On the question of legal costs, the Commission could neither agree with nor dispute the Department’s estimate of the overall cost which the Exchequer would have to bear for taxed costs of legal representation. It was pointed out that the increase in the overall cost of the Commission was a direct result of the introduction of the provision for taxation of costs of legal representation in the Act of 2002.
Around this time, in October 2002, the Commission was contemplating the publication of an Interim Report. In its letter of 3rd October, 2002, the Commission informed the Department that, as it had not reported since November 2001, it was anxious to publish a further Interim Report apprising the public of the then current state of the performance of its statutory remit and its predictions as to the future course of its work as soon as possible and, in any event, no later than November 2002. That did not prove possible, because the issue of additional resources remained unresolved.
The decision of the Government on the Commission’s request for additional resources, which was made on 3rd December, 2002, was communicated to the Commission by letter dated 5th December, 200236 from the Minister. In the intervening period since 3rd October, 2002, there had been considerable correspondence and contact between the Commission and the Department, and between the Commission and its legal team and the Attorney General and his officials. In its final request for information, in a letter dated 26th November, 2002, the Department asked the Commission to furnish clarification—
‘‘. . . regarding the comparison between the Commission continuing as presently constituted and staffed, how many hearings could be finalised in a year, how long Phase 1 would take, etc. and the same information should the Investigation Committee work in four divisions?’’
The Commission furnished the information and clarification sought in a Memorandum dated 29th November, 2002.37 The Commission’s conclusion was that it would not be possible for the Investigation Committee, as then constituted, and with the level of staff and legal personnel by which it was then supported, to properly fulfil its statutory remit.
It was made clear that such a scenario, in which it was envisaged that it could take between seven and ten years from the commencement of the year 2003 to complete Phase 1 of its work, was considered not to be a viable option. That view had already been expressed publicly in the Final Ruling of the Investigation Committee on the Procedural Hearing on
35 In Appendix D.
36 In Appendix D.
37 In Appendix D.
lapse of time and allied issues which was issued on 18th October, 2002.38 In the ruling, the Committee dealt with a letter which it had received on 8th October, 2002 from a firm of solicitors acting for one of the Congregations which had participated in the Procedural Hearing, requesting the referral of the issues of prejudice caused by lapse of time to the High Court under section 25 of the Act. In the letter, the solicitors had stated that they had been made aware that the Investigation Committee was taking the view that its proceedings could take up to ten years, because of the total number of statements of complaint received by it. In the ruling,39 the Committee refused the request for a referral to the High Court and stated as follows:
‘‘This Committee wishes to make it clear that it does not take the view that its proceedings could take up to ten years. It is the view of this Committee that it must conclude its inquiry within a reasonable timeframe. It has sought additional resources from the Minister for Education and Science to enable it to do so’’.
While the Commission was anxious to publish an Interim Report in November 2002, as had been indicated in the correspondence with the Department, it decided that there was little point in doing so as, in the absence of a decision on its request for additional resources, it was not in a position to indicate to the public in realistic terms and with any degree of certainty its capacity to fulfil its mandate. The letter of 5th December, 2002 conveying the Government’s decision magnified the uncertainty. It recorded that the Government had ‘‘agreed in principle to the provision of the additional resources as requested’’. However, it enjoined the Commission to proceed with the process of filling new posts ‘‘in a gradual fashion’’. It also disclosed that the Government had directed ‘‘a review of the terms of reference of the Commission’’ which was to be completed by mid-February 2003. It was pointed out that any changes to the mandate of the Commission occasioned by the review might be reflected in the final amount of additional resources provided for the Commission, with adjustments being made at the end of February 2003.
That being the case, the Commission was enjoined to consider the appointment of any additional staff on a short contract basis to allow for revised staffing levels when the review was completed.
The coupling of the agreement in principle to provide the additional resources with the outcome of the review, which was interpreted, correctly as it transpired, as being confined to the Investigation Committee, was seen by the Investigation Committee as putting it in an impossible position. The agreement in principle to provide the resources, conditioned as it was, seemed to amount in substance to a refusal of the request for additional resources pending the outcome of the review. Moreover, it seemed that the contemplated outcome of the review was a reduction in the remit of the Commission. The decision created a real dilemma for the Investigation Committee. On the one hand, if it was to continue to operate within its existing remit, it would incur expense and place burdens on third parties by requiring compliance with existing statutory obligations which might turn out to have been incurred and imposed in relation to matters which would cease to be within the Commission’s remit as a result of the review, leaving it open to legitimate criticism that it had imposed an unnecessary burden on the Exchequer and on third parties. On the other hand, the Investigation Committee was bound by its existing
38 The Ruling is posted on the Commission’s website.
39 Paragraph 12.4.
statutory remit. If it did not continue to fulfil that remit, it left itself open to legitimate criticism that it was in breach of its statutory duty and possible exposure to an accusation analogous to prosecutorial delay.
The concerns of the Investigation Committee were outlined in a letter of 6th December, 200240 from the Chairperson to the Department. A possible resolution of the extreme difficulties in which the Investigation Committee had been placed as a result of the Government decision was suggested: that legislation be introduced which would permit the Investigation Committee to suspend its work until the review was completed and any alterations to its mandate brought into force by legislation. The Investigation Committee was concerned, and the concern was expressed in the letter that, on the basis of its experience, the timeframe for completion of the review envisaged in the Government Decision might not be met.
The Department’s response was contained in a letter of 13th December, 200241 from the Secretary General. In that letter, the Commission was informed that the review was confined to the Investigation Committee and that its purpose was to achieve a situation of the Commission not being required to conduct an investigation in relation to every allegation of abuse. Consideration was to be given to a legislative amendment which would enable findings, at least in relation to residential institutions, to be predicated on a statistically valid sample of allegations. The Commission was also informed that it was clear to the Department that any change in the remit of the Investigation Committee which would emerge from the review could only be effected through amending legislation.
The Commission was told that—
•
it was not a legal option to suspend the work of the Investigation Committee without legislation,•
legislation would not be introduced, although, if the review process should become protracted, legislation enabling suspension could be considered and the position could be reviewed in January 2003, and•
the Investigation Committee should proceed to take whatever steps it considered appropriate so as to operate within its existing remit.On 20th December, 2002,42 the Minister issued a press statement announcing the review, which was expected to be concluded in February 2003. It was also announced that, pending the implementation of the recommendations of the review, the Commission would continue to operate under its existing remit.