The investigation committee of the Laffoy Commission inquiry into child abuse in institutions would be unable to do its work in "any meaningful way" if a legal challenge by the Christian Brothers' Congregation to the committee's procedures was upheld, lawyers for the commission have told the High Court.
Mr Frank Clarke SC, for the Laffoy Commission, said the Christian Brothers were effectively saying that the commission might collect evidence in relation to allegations of child abuse against members of the order but could not make any findings on that evidence.
If the Brothers were correct, phase two of the commission's work, which involves the investigation committee making findings on the causes, nature, circumstances and extent of abuse in institutions, and whether persons in management contributed to such abuse, could not proceed as that phase was dependent on there being a finding of abuse, he said.
Counsel was opening his opposition to an application by the Christian Brothers for a number of declarations against the commission, including declarations that the procedures which the investigation committee proposes to adopt in carrying out its investigations contravene fair procedures and the principles of natural and constitutional justice.
The congregation also argues that the commission cannot make findings of abuse against deceased, elderly, infirm, untraceable members of the order or those unable to give instructions.
It wants a declaration that a ruling of the investigation committee of October 18th last in relation to how it proposes to investigate allegations of abuse against such members of the order arises from an incorrect interpretation of the commission's powers under the Commission to Inquire into Child Abuse Act 2000.
Alternatively, if the court rules the procedures are lawful under the Act, the congregation wants a declaration that the Act is unconstitutional.
The proceedings are against the commission, the Minister for Education and Science, and the Attorney General, all of whom are opposing the application.
Some 700 allegations of abuse have been received to date by the commission.
It argues it is entitled to investigate allegations made against deceased, elderly, infirm, untraceable persons and those unable to give instructions and pleads that its proposed procedures are fair and do not contravene the principles of natural and unconstitutional justice.
Yesterday, Mr Clarke said counsel for the Brothers had failed to show how the committee was not entitled to go about its work in the manner proposed.
He said the courts and tribunals had made adverse findings against dead persons, for instance in murder cases where a successful defence of provocation was made.
That necessarily involved a finding of adverse conduct by the deceased which would cause distress to the victims's family.
In the ongoing inquiry into the shooting dead by gardaí of John Carty at Abbeylara, Co Longford, the Barr tribunal was also necessarily examining the conduct of Mr Carty.
Mr Clarke noted the Brothers had made a public apology for what happened to persons in institutions operated by it over the years but accepted that was "neither here nor there" in terms of legal effect.
Mr Justice Abbott remarked the apology was "a pastoral response" rather than a response regarding any legal liability.
It was, he said, a "request for general absolution rather than an appearance in a confession box".
Mr Clarke said the commission believed its procedures were fair and lawful but if they were not, the commission would prefer if that was decided now rather than when work was well under way.
The hearing resumes on Tuesday.
