Privileged power

Privileged power

http://www.irishexaminer.com/world/privileged-power-206738.html

By Mark Daly

Friday, September 07, 2012

In summer last year, Senator Mark Daly used parliamentary privilege to name an alleged child abuser. Here, he explains the choices with which he was faced

ONE in Four executive director Maeve Lewis said on Jul 27, 2011: “Senator Daly was placed in an impossible position. He was contacted as a public representative by people who gave him plausible and compelling information that they had been abused by this person and that they had exhausted all possible legal avenues.
“Senator Daly had two choices: To do nothing and hope that another child would not be sexually abused or to act in order to protect children. I do not envy him this moral quandary. Ultimately, he decided to act. We are all well aware of the horrendous consequences of secrecy and silence, therefore, in this particular instance, One in Four supports his decision.”

The right to be presumed innocent until proven guilty is a central right of our legal system and modern democracies. It is a fundamental principle afforded to citizens and one that needs to be defended. It is particularly important to protect against populist sentiment and against vigilante actions.

But what if the organs of the State fail in their role to protect potential victims and to provide justice for the victims of alleged crimes? What if such a failure is compounded by the failures of other institutions to undertake their responsibilities? And what if such failures lead to the gross breach of other citizens’ rights and that those citizens happen to be among the most vulnerable in society?
What if you are a public representative and due to your position you are given such information as to make you painfully aware of the risks to those vulnerable citizens involved; what would you do?
In July of last year, I faced such a dilemma.

In 2010, a former pupil of the Missionaries of the Sacred Heart-run (MSC) boarding school in Carrignavar, Co Cork, made me aware of allegations of abuse perpetrated by a retired staff member. This prompted investigations on my part that culminated in access to files relating to the matter. The files listed the names of those who had made allegations against the person in question.
It showed that the seven alleged victims had made statements to the authorities between 1986 and 2008. Yet incredibly the DPP decided in all seven cases not to prosecute the alleged perpetrator.

At my request Dermot Ahern, the then justice minister, asked the Garda commissioner to review the files. However, with the DPP not willing to prosecute, the commissioner said nothing more could be done unless new evidence or victims came forward. The minister suggested I speak to Judge Murphy’s team, who were investigating the Diocese of Cloyne, in which Carrignavar is located.
As the MSC is a religious order I was informed it did not come under the terms of reference of Judge Murphy’s investigation.
As I pointed out in my statement to the Senate, the Journal of Interpersonal Violence had concluded that in a lifetime a single child abuser will sexually abuse and rape 150 children, on average. However, from talking to experts I am told that given the decades of access as a teacher in a boarding school and also from being involved in juvenile sports, that the number of victims in the case of Carrignavar was likely in the thousands.
I resolved that my duty was to ensure that there were to be no further victims to add to the terrible catalogue of abuse that had already occurred. I therefore sought direct action from MSC and, following advice from the Bishop of Boston, Cardinal O’Malley, I requested that the order take out advertisements in the national newspapers and write to past pupils, as the archdiocese had done in Boston, encouraging those who needed help to get it and to make a complaint to the authorities. Ian Elliot of the National Board for Safeguarding Children in the Catholic Church accompanied me to a meeting in Leinster House where the MSC initially agreed to this plan. The order later reversed its decision and declined to seek out and help victims.
The disturbing issue in this case was that the order was failing to implement the Church’s own child protection policy in terms of monitoring, and limiting activities and access of those who were known to be a risk to children. Set against this background and having exhausted the orthodox channels of action, I faced a daunting dilemma of how to deal with the information I had in my possession regarding alleged abuse by members of the MSC.

The use of parliamentary privilege is a seldom used provision in the Constitution, of which Justice Geoghegan has said “in my view the Constitution recognised that it is of the upmost importance that members of the Oireachtas should be entitled to raise matters within either House… without any fear”. The use of privilege in the Houses of the Oireachtas has been used on various occasion in the past. In 2006 Enda Kenny, now the Taoiseach, read extracts from an unpublished report on Leas Cross nursing home into the record of the House. In 2005 Pat Rabbitte used parliamentary privilege to name two Ulster Volunteers Force leaders who were informers for the RUC Special Branch. In 2010, Alan Shatter, the current justice minister, used parliamentary privilege to publish a draft HSE report into the death of teenager Tracey Fay.

For my part, I had to consider what any reasonable or prudent person would do in my position given the information I had received. In addition I had to consider my responsibilities being an elected representative and the threat that the alleged abuser in question would continue to abuse, as research suggested he would, ruining further lives due to the lack of action on the part of the authorities and the order. I therefore took the difficult decision to use my parliamentary privilege, an extraordinary power afforded by Bunreacht na hÉireann to just 226 citizens. If we do not use this privilege in circumstances such as this, where our most vulnerable citizens are at risk, then when should we ever invoke such a privilege?

While I do not regret using such privilege and I believe my actions have subsequently been justified, it is something I hope I will never have to invoke again. It is the responsibility of all of us as members of the Oireachtas and those who administer justice in the country along with all institutions, to put in place and implement the structures and safeguards to ensure such rare privileges never need to be invoked in this matter ever again.
* Mark Daly is a Fianna Fáil senator

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