A background to the Indemnity Deal, and Redress Board

[Rob Northall]

This is an extract from a letter circulated by a Fellow Activist

As we understand it in August 2000, a short newspaper report in the Irish Independent caught the eye of Sr Elizabeth Maxwell it was brought to the nun's
attention and she read it with interest.

It was over a year since the former Taoiseach, Bertie Ahern, had apologised for the abuse inflicted on children raised in homes and orphanages run by religious orders.

The former Taoiseach, Bertie Ahern set up a commission to investigate the abuses.

What Sr Elizabeth was reading now added another dimension: money.

The commission intended to compensate the victims.
Sr Elizabeth was then director general of Cori, an umbrella group of religious orders.

More than a dozen of them were facing claims of mistreating children, including her own order, the Presentation Sisters. Presumably, the State's plan to compensate some of those people would not
help their defence.
Sr Elizabeth rang the only contact she had in the
Department of Education, Tom Boland.

Mr Boland, who now heads the Higher Education Authority, was on holidays.

A few days later, Fergus Costello, another official in the Department, called her back.

Mr Boland was still on holidays but would the religious orders be interested in meeting? Sr Elizabeth agreed.
Their first meeting was on September 25, 2000, in the former Attorney General's
office.

Present at the meeting was Sr Elizabeth and Sr Helena O'Donoghue, provincial of the Sisters of Mercy, another order accused of abusing children.

The former Attorney General was represented by Liam O'Daly and Chris Boudren, with Tom Boland and Fergus Costello from the Department of Education. "It was made very clear to us that the scheme was being put in place whether or not we
contributed," Sr Elizabeth later told the Public
Accounts Committee. "The phrase used was: 'It is not predicated on your
becoming part of it or not'. I recall it because it was such a Latinate
word." With curious detachment, she recalled how the scheme was
"something we felt could be of interest to us". The alternative,
spelt out to them by the government's representatives, was that the State would
pay abused former residents, and then tell them to go after the religious for
the rest, she said. "That would still require the claimants to endure the
rigours of cross-examination in court. We all agreed this was not attractive to
former residents," she told the committee.
And so the negotiations began; the nuns and Brother Kevin Mullan
of the Christian Brothers and a battery of advisors were ranged against
officials from finance, education and the former Attorney General's office.

The talks centred on money; how much the Church was willing to give, not how much the abuse of those children was worth.

Being financial negotiations, the records make little or no mention of the plight of those who had been abused.
The religious orders played hardball.

Initially government officials were unequivocal; they wanted nothing less than a 50/50 deal.

They calculated that compensating victims would cost €254m and wanted a minimum of €127m from the religious orders.

Privately they acknowledged that they would cap the religious orders' contribution but this bargaining position was withheld from the orders.
The religious orders had done their own sums.

They counted up all the legal claims against the orders, calculated which might win and what they might cost and came up with between €50m and €60m.
That was their bottom line.

In June 2001 they made their offer: €57m in cash, property and counselling services.

Throw in a range of properties worth €51m that the religious orders had already donated to the State and charities in the past 10 years and their contribution came to €108m.
Most importantly, they wanted open-ended indemnity.

They drew up their own draft document setting out the terms by which they wanted the State to protect them from being sued by former residents. "We put an offer on the table. We were probably quite assertive
about it and we said it was our final offer, but we expected a response from
the Government. That was in June of that year. No response came," said Sr Elizabeth.
Perhaps the Department of Education thought it unworthy of one.

A Department memo said it fell "far short of the working objective of the negotiations from the State's viewpoint, which was a minimum contribution of £100m (€127m)".
The former Minister for Finance, Charlie McCreevy,
told Michael Woods, the former Education Minister, that it was "quite
disappointing", fell "far short" of a "meaningful
contribution" and was "quite inadequate".

On top of that, the potential costs were escalating.

By June, for instance, a Department memo stated it could reach €508m.
The frosty relations between Church and State further soured when the religious
orders saw details of the confidential offer splashed all over the News of the
World. "Today the Irish News of the World reveals that the Government is
furious at the attitude of negotiators acting for the religious orders,"
thundered a leader column, while revealing the offer towards the compensation
fund for victims.
The religious orders were "hurt" at the portrayal of their
contribution as "paltry" and "mean", the Public Accounts
Committee heard. "We felt -- and I am on record as saying -- that we were
being treated shabbily by somebody on the State's side. Efforts were being made
to bounce us from the offer we had made to a higher figure," Sr Elizabeth later told the Public Accounts Committee which
investigated the deal in 2004.
When talks resumed on October 16, a different civil servant was in the chair.
He was Paul Kelly, an assistant secretary in the Department of Education.

It was now the State's turn to play hardball. "It was a very different style of meeting at which it was put clearly to us that it was €127million or nothing. There was no use talking about anything else
€127million was required from us. There was no point in talking unless we were
in a position to agree to that. Frankly, we were not in a position to agree to
it. So that meeting ended rather unsatisfactorily," Sr
Maxwell recalled.

At this point, Michael Woods, a devout Catholic, took matters into his own hands.

That afternoon, his official, Tom Boland, telephoned Sr Elizabeth, inviting her to meet with Dr Woods. She agreed to meet him on November 7.
The former Education Minister -- who has denied links to Opus Dei or the
Knights of Columbanus -- later claimed credit for
"kick-starting" the talks. "My religion was an asset. They knew
me and they knew my work," he told the Sunday Independent in 2003.
The night before her meeting with the former minister, Sr
Elizabeth received an unexpected reply.

The letter changed the whole substance of the State's negotiations with the religious orders. The official, who had appeared so unequivocal to the nuns a couple of weeks before, now took a "very
different" tone, according to Sr Elizabeth.
The letter agreed to several of their demands. The State would provide a
"permanent indemnity" against litigation in cases which would come
under the remit of the Redress Board.

It would also accept part of the contribution property it had transferred in the past, along with other bits and pieces. And even though the State estimated the likely cost at €254m to €508m, the congregations'
contribution could be capped at €128m, which represented 50 per cent of the
lowest cost estimate.
The next day, the nuns and Brother Kevin Mullen met with Michael Woods and the
Department of Education former Secretary General John Dennehy.
"The minister asked that we meet without our advisors," Sr Helena O'Donoghue told the
Public Accounts Committee.
A second meeting followed on January 7 and the deal was done.

The religious orders brought their legal advisor. Michael Woods and John Dennehy didn't.

They tinkered with the educational package and the counselling of victims.

They discussed the press release that would be issued after the cabinet meeting to approve the deal, and the figures it would contain. "It was a question of presenting our package and putting all the elements
together to equate with £100m or €128m because we had just crossed into euro’s
at that stage," said Sr Elizabeth.
The only outstanding issue was protecting the religious congregations who
contributed to the pot from being sued.

The nuns tried to raise the indemnity but Dr Woods later said he refused to discuss it without legal advice from the former Attorney Generals office.
There is no contemporaneous record of either meeting. Sr
Elizabeth took "scrappy" notes during their meeting, as she had been
feeling under the weather, she later said.
Michael McDowell, who was the attorney general, later angrily claimed he had
been excluded from the meetings Dr Woods later claimed: "The legal people
simply couldn't have attended -- it was a no-go area for them -- they had
fallen out with the religious."
The deal was agreed in principle by the cabinet on January 30; along with the
former Taoiseach, Bertie Ahern, Mary Harney, who is now health minister, Noel Dempsey, Dermot
Ahern, now justice minister and the Tánaiste, Mary Coughlan,
now the present Minister for Education were amongst those who approved it.
By the time the deal was signed by the 18 religious congregation orders in June
2002, the religious had achieved even more than they initially bargained for.

They paid €128m in total -- comprising €28.44m in cash, €12.7m in an education fund, €40m in old property transfers, €36.54m in new property transfers, and €10m in counselling services.
A post-script to the negotiations is revealing about the attitude of religious
orders.

Six months after the deal was done, an insurance company agreed to cough up €6.5m claimed by the religious orders as cover for the abuse claims.
Noel Dempsey, who succeeded Dr Woods as minister, asked the religious orders to
contribute this money to the scheme.

They refused. Sr Helena told the Public Accounts Committee that the congregations believed the insurance money was "a means of recouping the losses they had experienced".
They never did relinquish that €6.5m.
Right from the outset, both the Government and
the religious orders knew that the €127 million contribution to the indemnity
deal was bogus, and that it represented only a fraction of the then projected
cost of the redress scheme to compensate victims of the criminal physical,
sexual and emotional abuse on children in the care of religious orders.
That deal involved the State indemnifying the religious orders for all claims
of compensation by the victims of the abuse, plus any legal costs arising from
such claims.

This was in return for an agreement on the part of the religious orders to make a cash payment to the redress scheme of just €28.44 million, at a time when the projected cost of the scheme was up to €500 million
– this represents just over 5 per cent.
In addition, it was claimed that property valued at €76.86 million was to be
transferred to the State as part of the deal.

This was a misrepresentation of the actual position.

As much as €50.8 million of such property transfer had nothing at all to do with the deal and was inserted into the agreement to confuse the issue.

A further €26.06 million of property transfer was also added, although it must have been known then that such property transfers could not be done legally, for much of the property was held in trust.
Also, there was a provision of €12.7 million for an educational trust for the
benefit of the residents where the criminal abuse had been inflicted.

And a provision of €10 million for counselling.

But neither the monies for the educational trust nor the provision for counselling went towards the redress scheme.
Michael Woods then intervened and the deal was finally concluded on June 5th,
2002.

What has happened here is entirely without precedent in our experience.

Senior Ministers and their most senior civil servants held meetings of which they kept no record.

They made an agreement in principle at those meetings that had huge implications for the State.

That agreement in principle was endorsed by the Government without so much as a scrap of paper being put in front of the cabinet, in defiance of all understood rules and guidelines.

It was publicly announced but with none of the terms of the actual indemnity being explained.

Detailed negotiations on this complex legal and financial matter were continued without the former Attorney General being properly involved.

And the final package was put to Government on its very last day, and past by the Government even though the former Attorney General had, belatedly, been able to put together a strong warning about the dubious nature
of the package.

This was an irresponsible, rushed and entirely disreputable process, which reflects no credit on anyone involved.

In fact many victims of institutional child abuse including myself raise serious concerns about how our cases were dealt with in relation to Education Finance Board, the Redress Board, and the Ryan Commission and Ryan
Commissions report – 2009.

Meanwhile the Taoiseach, the Religious Congregations, the aforementioned T.Ds and the groups representing survivors of residential institutional child abuse have spoken in relation to
the present compensation package at the aforementioned meeting.

Obviously more speaking will have to be done to clarify the reasons behind the failure of the present compensation package and what steps can be taken to revisit the 2002 indemnity agreement and the nuns and Catholic
brothers who ran the workhouse-style schools must drop their refusal to
renegotiate an intensely criticized 2002 agreement with the Irish government
over compensation for victims.

After reading the aforementioned its quite clear that the Taoiseach and the aforementioned T.Ds know quite well that that there has always been great difficulty, even for the State, in
estimating the value of properties and Lands belonging to the religious orders,
particularly the assets of the Christian Brothers, who have sold off large
tracts of land and properties and like the other religious orders, they have
invested in shares.

The Taoiseach, the Religious Congregations, the aforementioned T.Ds know quite well that there is a web of ownerships and trusts attached to the land and properties and many of
the ownerships are shared between the religious orders and school parents
bodies.

If you take lands belonging to operative schools, you could have legal actions from parents and boards.

Many of the 18 congregation orders land and property assets are held by trusts and, since they are charitable organisations, they do not have to file accounts or tax returns, so they can hide their wealth and assets.

The Government has made sure that the churches massive wealth will be barely dented by compensation claims by people who suffered in the industrial schools: a secret deal was arranged so that the religious orders
will have to pay no more than €128 million (and much of that in the form of
property already transferred to church – controlled charities), while the total
bill is likely to be over €1.36 billion.

Thus, through our taxes the working class will end up paying for the churches crimes.

Although, both the Religious Orders and the Government have persistently refused to reveal what land or properties are involved, the Taoiseach and the aforementioned T.Ds know quite well
that little if any of the land or properties transferred to the State can be
turned into hard cash.

It is for this reason that the groups representing survivors of residential institutional child abuse should consider revisiting the Institutional Child Abuse Bill 2009 because this Bill addresses the concerns
and issues of survivors and their families and the Bill confers power on the
Government to appoint an Auditor to examine the Financial Affairs of the 18
Religious congregations who signed the 2002 Indemnity Agreement.

This will put pressure on the Government to assess the true wealth of the Religious Orders for future renegotiation of the 2002 Indemnity Agreement.

Furthermore, the 2002 AGREEMENT: THE INDEMNITY element of 2002 agreement between the State and the 18 religious congregations which ran institutions for children was unconstitutional according to an
article in 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 exchange for contributing €128 million in cash and property to a State redress scheme for former residents of institutions, the 18 religious congregations were indemnified by the State until the end of
2005 against any legal actions taken against them by former residents.

December 15^th, 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 the 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 of abuse”.

Finally, when one looks at the aforementioned issues and
concerns and Article 44.2.2. of the Constitution it soon becomes clear that it
is not right or just for the Government to intervene in relation to the €110
million recently offered to victims of institutional child abuse by the Religious
Orders.

The Article Mentioned was based on a Students Thesis it can be Read @ http://theenchantingvalley.ning.com/forum/topics/the-congregational...

[William Delahunty]

We're well written when I put something like this on a Web site the solicitor that represented me at the Redress board told me she would sue me and a friend of mine that shared it. All I could do was inform her bring it on. Can a government one hundred per sent involved in the crimes give immunity to there partners involved in the same crime if this is justice what is a crime

[jack colleton]

Indeed William And Not All Issues Were Covered By The Redress Board .... Where Is The Legal Aid To Get Full Justice?

[micheal]

We all agreed this was not attractive to
former residents," she told the committee. Im sure our best i interests where served here, the indemnity agreement should of been the first thing explained to survivors, i myself would given the option, knowing what we now know, pick courtroom over redress board anyday. Michael

[jack colleton]

It Seemed As If All The Law Firms Would Only Take On Case If Went To The Redress Board Instead.