Swimming inquiry decision permits State to stand back Coalition feared flood of abuse inquiries into similar organisations
Four weeks from now Dr Roderick Murphy SC will produce his report on the swimming sex abuse scandal to the Minister for Sport, Dr McDaid.
Covering a period of 23 years the report, essentially, should explain how the Irish Amateur Swimming Association, its Leinster branch and affiliated clubs detected and prevented child abuse and handled complaints regarding two convicted swimming coaches, Derry O'Rourke and George Gibney.
The Government's weekend drift towards the judicial inquiry option went into sharp abeyance on Monday and total reverse yesterday as Cabinet Ministers met to discuss this potentially boundless predicament.
It appears that the change of direction was sparked by a flow of calls on Monday to the Department of Tourism, Sport and Recreation - and to Government Ministers - from victims and parents protesting against the notion of a judicial inquiry.
Certainly, by the end of the Cabinet's two-hour discussion yesterday, the decision not to proceed with a sworn investigation was practically cast in stone. It was based on several concerns, some legal, some financial, some emotional.
The issue of "public policy" weighed heavily with Ministers. According to the Taoiseach in the Dail, no less than 1,000 cases of child sex abuse are pending in the Eastern Health Board area alone. Instances of child violation straddle all classes, creeds and, apparently, several sporting organisations. To allow a judicial inquiry into the swimming abuse cases would set a precedent that could be followed by a succession of similar sworn investigations into other allegations.
In short, the State does not want to get involved. Unlike the hepatitis C scandal, when women were infected with contaminated blood products supplied by the Blood Transfusion Supply Board, none of the State's agencies is responsible for perpetrating a wrong.
As a result, it will not countenance the funding of every single sworn inquiry which could arise from the dark world of child abuse. The afflicted victims or their parents, meanwhile, can pursue civil actions through the courts against the organisation involved.
Second, there is apparently strong resistance among some victims and their families to a judicial inquiry. They are loath to risk a breach in anonymity - if they had to attend a tribunal, say, in Dublin Castle - or to reopen old psychological wounds.
The Government's argument against a judicial inquiry yesterday leaned heavily on the reluctance of the victims' families to engage in a sworn investigation. It practically ignored the counter-argument from solicitor, Mr David Coleman, that his clients want a public sworn inquiry as the only vehicle for unveiling the truth and they would not co-operate with anything less.
The measure of when to hold a judicial inquiry is laid out in the Tribunal of Inquiries Act and this was pragmatically applied by Cabinet. Though the Cabinet only applied itself to the issue yesterday, there has been much political and legal conferring over the past five days.
After the conviction of Derry O'Rourke, Mr McDaid suspended aid to the IASA. Last Monday week he met Mr Coleman and his clients and told them that any terms of reference for an investigation could be vetoed by them; they would also have a veto on the chairman.
On Wednesday the Minister announced an independent open inquiry but was immediately told by Mr Coleman that his clients would not participate. Dr McDaid defended his plan, citing non-judicial inquiries like Goldenbridge and Madonna House as evidence of success.
On the question of a non-judicial inquiry being unable to compel witnesses to attend or to procure documentation, he replied: "If people have nothing to hide, why not come forward and tell the truth . . . Give the inquiry a chance."
In spite of this, and following more discussions between the Minister, the Attorney General, the Taoiseach, and the Tanaiste, the message from Government changed as the weekend progressed.
By Sunday strong signals from Government sources suggested that a judicial inquiry was indeed the way forward. It appeared that the lack of co-operation from O'Rourke's victims and their argument about the absence of compellability in a non-judicial investigation was swaying the Coalition.
With three tribunals already running, would the public not ask why child abuse did not merit the same status? Was this not as serious as the source of Charles Haughey and Ray Burke's money?
But these signs began to flicker on the eve of yesterday's Cabinet discussions. The certainty which prevailed on Sunday had faded, making way for a more clouded picture.
The Tanaiste, Ms Harney, was making extremely reluctant noises about the benefits of a judicial inquiry but, on balance, it seemed that this remained the most likely option. Then, on Monday night, the families against a sworn tribunal had made private contact with the Government and the scales were tilting again.
It was with a touching naivety that the Government unveiled its plan for a private investigation in the expectation that all sides would come forward to co-operate with Dr Murphy's inquiry. It is depending heavily on the "moral compellability" that Dr McDaid spoke about last week as a motivation to witnesses. Unfortunately, moral compellability will hardly weigh down persons with something to hide.
Notwithstanding the serious problems concerning the presentation of evidence and the protection of witnesses who have suffered gravely at the hands of O'Rourke, the Government could, if it wished, re-adopt the strategy employed in the Finlay Tribunal.
When that inquiry was established in 1996 to investigate the hepatitis C scandal, the then Minister for Health, Mrs Maire Geoghegan-Quinn, included a clause allowing for the preservation of anonymity. Two people, known as Donor L and Witness 1A, took positions behind a screen when delivering evidence.
All of this is cosmetic, however, for the present at least.