Child Abuse
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THERE is something wrong with Sean O'Leary's valedictory message, published posthumously yesterday. (Supreme Court judges must show 'spirit of independence')
His overall pleadings - with the Supreme Court, the legal profession and the Irish public - concern those he describes as "morally undesirable or socially unacceptable". And he goes on to quote George Bernard Shaw's description of "the undeserving poor" whose rights, Judge O'Leary says, have been denied.
Yet he says nothing at all about the people whose welfare he presided over in his last judicial appointment, that of chairman of the Residential Institutions Redress Board. They, more than any other group in the care of the State during its whole history, belonged in the category for which he expresses such concern in his article. They were the undeserving poor, criminalised for being that, or for being illegitimate, abandoned, or having inadequate parents. They were judged morally undesirable. They were regarded as socially unacceptable.
Sean O'Leary implemented and presided over the secretive, prejudicial and deeply flawed legislation governing the Redress Board of which he was chairman until his untimely death. He implemented the law as it was - despite its serious defects.
In as far as it is possible to assess from the few cases where the details have become known to me during the past years of its operation, dating from well before O'Leary's own appointment - the general view clearly is that he was parsimonious and restrictive in what he did.
Known awards given out by the Redress Board for personal injury have been at a level unacceptably below what an open court system would have awarded. The scale of payments set against any free and open-court judgment or agreed settlement, has been repeatedly revealed as derisory.
It is extremely difficult to make the comparisons, even if we had constructed a fair and open form of assessment of claims before the Board. Much of the abuse that happened in residential institutions was carried out in circumstances of imprisonment, secrecy, and the exercise of unfettered and unchallenged power.
It was quite wrong of the State to set up a compensation machinery that was equally secretive and covert, open to no cross-checking by the legislature or the judiciary, and to do this in supposed exculpation of its own neglect. It was far worse to establish a pattern of compensation amounts that was at an unacceptably lower level of payment than would have been the outcome in open court. And it was wrong of the State not to structure the hearings so as to achieve fair recompense rather than the self-serving level of awards that have been the sad reality for those abused men and women brave enough to bring their anguish before the noble judge.
For him to remain silent on this aspect of judicial balance and fairness - which is the main case he levels against other courts and judges - while coming out so strongly in supposed support of the 'undeserving poor' elsewhere in our system, is nothing short of hypocritical.
I knew Sean O'Leary over a number of years, well before his appointment, and, both professionally and privately, discussed legal issues with him. In his last appointment I raised with him the issue of the secrecy of the Redress Board and requested a briefing on why it had to be so. This was declined, on legal grounds which I was unable to query with the judge, since he refused communication on any terms.
I did, however, query them with other senior and distinguished lawyers. The response was simple and straightforward. The State had copper-fastened all the legislation dealing with institutional abuse by the religious orders in the industrial schools and reformatories. The State had done so in ways that were regarded by legal experts as unjust and pejorative to the interests of the plaintiffs while at the same time being protective of the interests of the defendants.
This is how the Redress Board is now widely viewed, and the same applies to the Commission on Child Abuse. In both of these bodies, carefully constructed in their operation by laws which the Oireachtas passed in good, if flawed faith, judges dictate the secrecy or otherwise of hearings. They refuse to answer questions about their actions. They administer - in the case of the Redress Board - settlements that cannot be appealed or made public. And Sean O'Leary was in charge of part of this.
IT IS painful to call him hypocritical, in writing about other judicial circumstances, when he completely ignores his own performance as a judge. It is doubly so to do so after his recent death. Yet his career closed in what should have been a humanitarian concern for the most extreme cases of what George Bernard Shaw called 'the undeserving poor'. And Sean O'Leary - in so far as he can be judged on the indifferent information that has come out - did so with little compassion and even less fairness than he calls for in other courts and before other judges.
As a definition of hypocrisy I can think of no better example.