Article says indemnity was unconstitutional

The Irish Times – Friday, June 5, 2009

PATSY McGARRY

2002 AGREEMENT: THE INDEMNITY element of the 2002 agreement between the State and the 18 religious congregations which ran institutions for children was unconstitutional, according to an article in the latest edition of the Irish Law Times .

Titled The Congregational Indemnity Agreement: An Unconstitutional Endowment of Religion , it is written by Eoin Daly, a PhD candidate at the faculty of law in UCC and a Government of Ireland research scholar in the humanities and social sciences.

He writes that the indemnity offended Article 44.2.2 of the Constitution, which states that “the State guarantees not to endow any religion”.

In 2002, and in exchange for contributing €128 million in cash and property to a State redress scheme for former residents of the institutions, the 18 congregations were indemnified by the State until the end of 2005 against any legal actions taken against them by the former residents.

December 15th, 2005, was the deadline for receipt of applications from former residents of institutions run by the 18 religious congregations at the Residential Institutions Redress Board.

On foot of the indemnity, €745,000 compensation was awarded by the High Court against the State following actions by three former residents of St Joseph’s orphanage in Kilkenny. It was run by the Sisters of Charity.

Mr Daly argues that “since this constitutional prohibition on the endowment of religion appears to prevent the State from subsidising a religious body, in whatever form, other than for a purpose which is constitutionally mandated, it must be interpreted as precluding a State indemnity for the liabilities of a religious body”.

He continues that “the Constitution cannot be read as mandating, implicitly or otherwise, an indemnity for liabilities of religious bodies which the State would otherwise not bear”.

Article 44.2.2 “must be interpreted as preventing the State from bestowing financial largesse upon favoured religious bodies, in whatever form; the congregational indemnity must be considered equivalent to a subsidy for religious bodies, and therefore as constitutionally unsound”, he says.

He says that “the aim of guaranteeing compensation to abuse victims is of course a legitimate one, but it does not necessitate an indemnity for those bearing liability for abuse”.

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14 Comments.

  1. Hanora Brennan

    Noel Barry boasted to me in the Marble City Bar here in Kilkenny that he was instrumental in getting the Redress Deal pushed through as there was to be a change of govt. and he didn’t want any further delays.

    When Woods and the two crones were doing the devil’s work, the latter insisted that the A.G. not be informed!!

    Nobody in the Govt. had any say in the matter and therein lies the problem.

  2. I respectfully suggest that we all take serious note of what MM is saying. By our silence we are appeasing the Government and the religious orders. They’ve got off the hook once, we can’t let that happen again. Can we?

  3. I think we must bear in mind…
    1.
    I believe that we should read the main article itself prior to any comment generally as it may lead to a misunderstanding of the authors point.
    While I take the point that is made I would be mindful of the preamble to the constitution, although not forming part of an article , it may be a leading influence in any interpretation of same by any party not in agreement with the authors work. 2. While it may be a noble idea to consider a challenge to the deal the question remains
    Who will pay for it ??? or or or me thinks
    Do we have a point of public importance not losing sight of our convention rights .
    Convention= European convention on human rights .
    Eric 59

  4. Hi:

    With regard to the Constitution question about who can bring a case: in the case of State v King 1978, the Supreme Court decided not to judge on the question of whether the Constitution applied to citizens of another country and reserved their judgement for a more appropriate case.

    Note: I am unaware of subsequent case law that redefined this.

    By projection, it appears to me at least, that if this were applied in the matter of the Redress Board, then it would need a person who was “Involved with this Board, had a claim against the Church for abuse etc. would then be the most appropriate person to take a test case under the Constitution.

    In the matter of the Redress Board and action against clerics who were believed to have committed abuse, then this matter has been “aired” in the public domain and the media.

    My understanding is that the Minister for Justice could and should have instructed the appropriate authorities to investigate and report; as these matters would be of grave public concern.

    Maybe it is simply a case that the Minister (and his staff) have managed NOT to have heard this information.

    Maybe it would be good to have a question raised in Dail Eireann underlining the above issues of public concern, their sources and bringing these to the attention of the Minister and his department for their reaction and possibly even action.

    One area that has always been of interest to me is the actual chain of events around the Church / State agreement.

    To me, it seems to have been presented, and I do not mean to sound trite; as a set of events that seemingly were initiated by an outgoing Minister and presented to the Government effectively as a “fait accompli” an accomplished fact; an action which is completed before those affected by it are in a position to query or reverse it.

    If my understanding of the run up to these events is indeed correct, then the time and activity preceding this is worthy of investigation.

    Did the then Minister suddenly decide?

    Did he do this in isolation of the other members of that said Government and indeed his Civil servants, who then also decided not to share this and its potential impact with their counterparts in other departments?

    How much information on this time and sequence of events is already or can be put into the public domain under Freedom of information?

    And importantly, I believe was, “what was the spirit” held by the Minister and Government in negotiating and reaching this agreement seemingly laden with largesse to in effect many departments of one organisation, the Catholic Church.

    This area, time and the sequence of events, to my understanding, has never been sufficiently understood; so never fully investigated and seemingly terminated by the fact that the responsible Minister apparently and conveniently retired the day after.

    It does not seem to rest well with myself who as part of an action ensured that the agreement and other supportive documentation was made available on the web to survivors and others with interest in this.

    My reasoning is that this apparently Ministerial initiative was better known to the Department and assumably other arms of the government than they pretend.

    My reasons for saying this are simple. I loaded the document onto the ‘net at approximately 8.10 in the evening and it was checked as being active and available externally at around the same time.

    The following morning at approximately 9.20 every telephone line that I had and followed by ISDN lines went “dead”. It was only after the threat to issue on Eircom, a State side Mandamus that same morning in the High Court that services were resumed.

    Strange that a government and its agents whose most notable qualities would never appear, at least to many in the public, to be speed of action were indeed able to appear guilty of both when the circumstances apparently suit.

    The other question of course is how did they know? How did they notice a couple of documents appearing on the web, then to be able to act, through back channels to influence an Irish company into a speedy but decisive action, (effectively one and a half hours of their official working day!)

    Only the threat of a forced appearance in a public forum and the potential associated publicity seems to have installed them with the necessary energy to reverse their action with appropriate speed.

    The government and Irish authorities have indeed questions to answer in their dealings and their actions in this Church / State affair.

    The 2 main opposition parties to this government have to date been seemingly unable to unseat their political rivals.

    Apart from the consideration of a test constitutional case, has anyone or indeed any of the “representative” groups approached the opposition parties to seek the appropriate responses for guarantees from them should they reach a position of government and power, to open the other Pandora’s boxes that surround this and indeed, how can we know, other areas that have and may continue to actively influence public policy.

    All I can say is that you, the survivors, have been victims under what we have assumed to be our understanding of what democratic government is. The only truth to this that has, to my mind been established so far is that apart from democracy being hard work, we also have to consider that underlining this system was and is a cruel, but pragmatic realisation that full blown democracy has been seen to be counter productive to development, the popularly assumed priority of any society, or government.

  5. Hanora Brennan

    I spoke with Eoin Daly in UCC and he assures me that this is unprecedented in law, so it will be an interesting point.

  6. Hanora Brennan

    Section 44.2.2 of the Constitution.

  7. The article above is dated June 5th 2009.

    If anyone has acces to the Irish Law Times this is the information:

    The Congregational Indemnity Agreement : an Unconstitutional Endowment of Religion? / Eoin Daly

    Irish law times, ISSN 1649-4164
    vol. 27, issue 8, page 111-116

  8. barry clifford phone: 0877511113

    OUR MEANS TO AN END Part [3]
    The Congregational Indemnity Agreement with the Irish Government was and is unconstitutional. It violates Article 44.2.2 of the constitution which states that “the State guarantees not to endow any religion”. The literal translation of the word endow goes even further: It means to give or bequeath monies, special treatment, income or properties to a person or institutional. This on its own terms should bring the Catholic Church to its financial knees right across the country and go some way to restoring some kind of democracy at last to this green and fair land.
    Of course our present Government went on regardless of some relatively minor point like the Constitution, and indemnified the Catholic Institutions until the end of 2005 against any legal actions taken against them by former prisoners. That was a big break for us for haste will make waste of many things.
    By the only definition available to it the constitution forbids the state to engage in any indemnity deal that would forgive, nullify, or cancel the liabilities of a religious body against any injured party. Furthermore that would also prevent the state from giving financial favor or other supports to a religious body in any form. Any indemnity would be the equivalent to a subsidy for religious bodies and by itself directly violates the constitution.
    Please do not take only my word for it, this is also very much the opinion of Eoin Daly. Eoin who?
    Mr. Daly carries around in his back pocket a PHD from the faculty of law in the University College Of Cork and is employed as well as a Government of Ireland research scholar in the humanities and social sciences.
    Underpinning all of the above is what I have written in our means to an end document [1] and re affirmed in part [2] of that document. But there is more….
    A very important and no less damaging component to all of this is the original agreement itself not withstanding all of the above:
    Any agreement under any statue is built on the principle that all sides are giving full disclosure of assets, accountability, and above all given to truth itself. Right up to just days if not hours before the Ryan Report, most if not at all religious were denying abuse ever existed in these prisons. Hours after it came the usual heartfelt outpourings of grief from them for the extra pain and anguish that they had caused us. Sorry does seem to be the hardest word but it does not give reflective compensation one way or the other.
    It is also interesting to note that because of their lies and ‘mental reservations’ none of the religious have been brought by the Redress Board to the notice of the director of public prosecutions for their crimes of perjury. I will always ask the question, what are you doing about this?
    If nothing else this document removes the last pitiful remnants of defense that the government, the Religious, and the Redress Board could possibly mount against us. The world is watching us in this fight and history waits for its end.

    Barry Clifford e mail: bgclifford@iol.ie
    This was already posted up in December on Paddy;s site. Be aware, be very aware

  9. “… the indemnity offended Article 44.2.2 of the Constitution, which states that “the State guarantees not to endow any religion”.”

    Is that why the Catholic Church still has control over 90% of our National Schools?

    Let’s face it folks, the Irish Government, like all their predecessors, cede the control of our Schools and our Hospitals to the Catholic Church. Its still “Business as Usual” as far as the Irish socio-political system goes and that’s because the vast majority of the Irish people are symbiotically-attached to their Roman Catholic masters in government. It took 800 years to convert us, after all…

  10. I’m not sure what the legal position is Frank. Can anyone ask a lawyer to have a look it and offer an opinion? Perhaps then we could move things forward. Paddy.

  11. Bernadette Fahy

    Mr O Brien is an expert on this – perhaps he can assist us all on this complex matter

  12. Is it not the case that anyone can bring a court action where they believe the constitution has been violated or does it have to be a person who suffered loss or injury because of an unconstitutional action?

  13. Thanks MM……………..and the appropriate action being? Maybe I’m just a bit thick when it come to the interpretation of messages written so concisely. Paddy

  14. Great confirmation – but it needs someone who was directly affected needs to initiate the appropriate action.

    MM

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