The Shame of Ireland
I believe this to be a Thesis for a Masters Degree in Law?
By Eoin Daly*
The aftermath of the report of the Commission to Inquire into Child Abuse has provoked renewed controversy surrounding the State indemnity for the liability of religious congregations to victims of institutional child abuse. In 2002, the Fianna Fáil/Progressive Democrat government negotiated an agreement with the Conference of Religious in Ireland (Cori), representing the Roman Catholic orders implicated in institutional abuse, granting them indemnity against claims in return for a contribution of €127 million towards the State redress scheme. The final cost of the redress scheme has been estimated at approximately €1.3 billion, thus limiting the contribution of the orders responsible for the management of the relevant institutions at some 10% of the total cost – despite the fact that the State has been held to bear no vicarious liability towards victims of abuse in educational institutions which are owned and managed by private religious bodies. The public outcry following the Ryan report has seen calls for the termination of this indemnity arrangement. Members of the current government have insisted that the arrangement cannot be revisited. However, this article argues that the agreement was concluded contrary to Article 44.2.2º of the Constitution, which states that the “the State guarantees not to endow any religion.” To the extent that the endowment clause precludes the State from enriching “any religion” with property, in whatever form, for a purpose which may not be justified by any other constitutional provision or value, it must be interpreted as precluding a State indemnity for the liabilities of a religious body.
The Campaign Ruling: a Restrictive Interpretation of the Endowment Clause
Despite the controversial history of the Church-State relationship in Ireland, the constitutional prohibition on the endowment of religion has essentially laid dormant. It has never been successfully used to define the explicit constitutional boundaries of the Church-State relationship, which therefore remain unclear. As Casey notes, these issues “await authoritative resolution by the Supreme Court.” The only comprehensive judicial interpretation of the endowment clause is provided in Campaign to Separate Church and State v. Minister for Education, which involved a constitutional challenge to the State payment of chaplains’ salaries in community and comprehensive schools. The Campaign decision has significantly restricted the scope of the endowment clause, at least in terms of its application to the specific context of State-funded religious education. Although the Supreme Court accepted, following evidence from archbishops, that the scheme conferred indirect financial benefit on just two religious denominations, the scope of the endowment clause was limited with reference to a number of qualifications. Firstly, Barrington J, delivering the majority opinion, qualified the clause with reference to the constitutional imperative of State support for religious education. Noting that the Constitution envisaged the provision of public education through denominational institutions, he held that the purpose of the scheme in question was less to confer financial benefit on these denominations than to provide for religious education in accordance with principles “approved and recognised” by Articles 42 and 44 of the Constitution. Parents who availed of such secondary schools enjoyed a “right to have religious education provided in the schools which their children attend”, with this right extending to provide constitutional cover for the State payment of chaplains’ salaries. Thus, the scope of the clause was restricted in view of a perhaps dubious conception of what Hogan and Whyte term “the principle of State support for denominational education.” Secondly, a historical interpretation was used to justify the system of State support for religious chaplaincies. Barrington J noted that “the system of denominational education was well known to the framers of the Constitution,” and that “clearly the framers of the Constitution did not consider [payments to teachers in denominational schools] to be an endowment of religion.” Thus, the endowment clause could not strike at forms of State support for religious education, because the constitutional founders implicitly did not intend it as such.
These qualifications are certainly susceptible to criticisms, whose elaboration is beyond the scope of this article. However, none of these qualifications imposed on the endowment clause by Barrington J are incompatible with the argument that the congregational abuse indemnity, as a State intervention seeking to avoid or reduce the financial liabilities or losses of religious bodies, offends the endowment clause. First, if the indemnity arrangement appears to offend the clause prima facie in financially assisting or indirectly enriching a religious body, there is no obvious historical reason, comparable to the longstanding tradition of State support for denominational education, which indicates that the endowment clause was not intended to apply in the manner suggested. Even if the intentions of the constitutional framers are regarded as determinative in constitutional interpretation, there is little to suggest that the endowment clause was not intended, implicitly or otherwise, to strike at instances of State largesse towards religion in the indirect form of indemnity. While the concept of endowment was not intended to encompass State support for denominational schools, there would appear to be no similar historical precedent legitimising the indemnity arrangement. Secondly, to the extent that the Campaign majority, excluding Keane J, appeared to accept the payment of chaplains’ salaries as a prima facie “endowment” of religion, which was nonetheless qualified by the constitutional imperative of State support for religious education, it would appear, in contrast, that the indemnity agreement, while clearly constituting a prima facie endowment of religious bodies, cannot be similarly justified with reference to a competing constitutional imperative. Finally, if there is doubt as to whether the indemnity constitutes a prima facie endowment of religion by virtue of its indirect nature, the Campaign majority appears to accept as a prima facie endowment a measure which benefits religious bodies in a quite indirect sense, in that the relevant religions were benefited only to the extent that were the State to not fund this service, they would, according to the archbishops, “feel obliged” to fund it themselves. Aside from the absence of a legitimising educational or other purpose, the indemnity appears to confer financial benefit on the orders in a markedly less indirect fashion, as it commits the State to meet liabilities, rather than mere expenses which the orders would merely otherwise “feel obliged” to meet. As further discussed below, the fact that this measure takes the form of a commitment to meet certain costs, rather than a direct subvention, cannot be considered determinative.
As for the absence of a legitimising purpose which might provide constitutional cover for a measure prima facie conferring financial benefit upon religion, it has been suggested that the State’s role in committing the victims, and providing funding to the relevant institutions, as well as its failure to adequately inspect these, may justify its assumption of the congregations’ liabilities. However, this is to confuse what some may regard as the moral duty of the State towards victims with the attribution of liability between the State and the congregations. That the State might itself bear some separate liability towards abuse victims by virtue of its role in institutional committal, funding and inspection does not justify a commitment to indemnify others for costs for which it would not otherwise bear liability, where such a commitment constitutes a prima facie breach of the endowment clause. The aim of guaranteeing compensation to abuse victims is of course a legitimate one, but it does not necessitate an indemnity of those bearing liability for the abuse. This disconnection between means and end suggests a further object of the indemnity arrangement, other than that of adequately compensating victims, of financial largesse or benevolence towards religious bodies. This, as discussed below, must be regarded as the object against which the constitutional endowment clause is directed.
It has been suggested, in defence of the agreement, that if the State were not to indemnify the congregations against abuse claims, the financial burden on the religious congregations be such as to make them insolvent, in which case the State would ultimately bear the cost of redress. If anything, however, this strengthens the constitutional argument outlined. If any of the relevant orders were to suffer financial collapse, their contribution to redress would nonetheless far exceed that agreed at present. There is a considerable difference between a commitment to guarantee redress to victims of institutional abuse, and a commitment to indemnify the religious congregations against victims’ claims, notwithstanding the limited consideration provided. The latter does not logically proceed from the former; therefore, what may constitute a prima facie endowment of religion cannot be justified through the imperative of redress for the victims of institutional abuse. Accordingly, preventing the collapse, or severe financial difficulty of religious congregations, does not provide constitutional cover for the indemnity arrangement, but rather the reverse: if its purpose is to “rescue” the congregations from collapse or severe burden, this in turn indicates the absence of a purpose or object behind the arrangement which may be regarded as constitutionally legitimate. It clearly seeks to ensure the survival or welfare of religious bodies against liabilities – which must be regarded as indistinguishable, for current purpose, from running costs – which is indistinguishable from a purpose of advancing, assisting or propagating religion, an object against which the endowment clause must obviously be directed, if it is to be vested with any significant role. Thus, State intervention having as its object the financial welfare or survival of a religious body must logically be considered as offending the clause, notwithstanding the fact that such intervention may simultaneously pursue other, constitutionally legitimate objectives, where the achievement of these goals does not necessitate such financial largesse towards religion. This reflects the liberal-democratic orientation which at least partly underpins Article 44 of the Constitution: the success, prosperity or failure of religious movements and bodies must not be determined by State largesse or grace, in order to ensure an equal and unburdened religious choice for individuals. As argued below, the financial welfare of religious bodies is an object which is placed, by the Constitution, beyond the scope of legitimate State intervention.
Keane J’s Campaign Opinion: an Excessively Formalistic and Literal Interpretation of the Endowment Clause
Keane J’s opinion was also joined by a majority of the Supreme Court (by two of the remaining justices, while the opinion of Barrington J was joined by three). His interpretation of the endowment clause accords it a significantly more restrictive scope than Barrington J’s judgment. While agreeing that the system of State support for denominational education, and for school chaplains, was legitimate both in view of the implicit constitutional mandate for State support of religious education and the intentions of the constitutional framers, Keane J went much further in suggesting, obiter, that such support does not even constitute the prima facie endowment of religion. He went so far as to suggest that the State could constitutionally “confer benefits” on religious bodies, albeit in a non-discriminatory fashion, even, apparently, in the absence of such a constitutionally-mandated imperative as the provision of religious education. Therefore, his dicta might be interpreted as militating against the argument that the indemnity agreement, as a measure conferring financial benefit upon religion, offends the endowment clause.
Firstly, Keane J limited the scope of the endowment clause with reference to the (purported) literal meaning of the term “endowment”. He referred to the Oxford English Dictionary definition, as “to enrich with property; to provide [by bequest or gift] a permanent income for a person, society or institution”. Therefore, he confined the scope of the endowment clause to “the vesting of property or income in a religion as such in perpetual or quasi-perpetual form.” He stated that “there is no reason in principle why the State, through its different organs, should not confer benefits on religious denominations ... provided that in doing so it remains neutral and does not discriminate in favour of particular religions.” His stance implicitly limits the establishment clause to what would effectively approximate to an outright establishment of a State religion, involving the provision of funds or property on a permanent or quasi-permanent basis, while precluding its application to other measures entailing financial or other benefits for religious denominations. While there is both judicial and academic authority to suggest that the Constitution implicitly forbids the establishment as well as the endowment of religion, his ruling goes some way to approximating the meaning of endowment to that of establishment, and therefore, to an almost absurdly restrictive definition of the former, outlined by Hamilton CJ in the previous Employment Equality Bill 1996 ruling, as entailing “the selection of a favoured State religion for which permanent provision is made out of taxation or otherwise.” Hogan and Whyte suggest that Keane J’s ruling might be interpreted as suggesting that the endowment clause “does not preclude the State from making occasional financial contributions in money or money’s worth to religious bodies,” in which case it certainly would not preclude the indemnity of religious bodies against liabilities or other costs.
Secondly, Keane J also relied on the historical fact of State support for denominational education. Of course, this consideration has no bearing upon the constitutionality of the indemnity arrangement. However, Keane J qualified the scope of the provision with reference to a set of much wider contextual considerations. He noted that “religion plays an important part in Irish life and has done so for many centuries”, observing “the importance of the part played by religion in the lives of so many people.” This observation partially grounded his aforementioned assertion that the State could legitimately “confer benefits” on religious denominations, provided that it “does not discriminate in favour of particular religions.”
This represents an implicit scepticism, tinged with Burkean conservatism, as to the possibility or desirability of an axiomatic constitutional re-shaping of the historical Church-State relationship, in deference to the historical proximity of civil and religious authority. Certainly, these restrictive dicta may be considered as implicitly militating against the argument that the indemnity agreement offends the endowment clause. The literalist insistence that the endowment clause encompasses only permanent and direct financial support for religion, or “the vesting of property or income in a religion as such in perpetual or quasi-perpetual form,” would mean that the indemnity, as a non-permanent and at least arguably “indirect” measure, lay outside the scope of the clause. The idea that the broader constitutional framework permits State support for religion falling short of outright establishment restricts the scope of the clause even further and would mean that the indemnity’s implicit object in assisting or benefiting a number of religious denominations would not in itself incur constitutional impropriety.
However, these dicta rest on a very weak textual basis, and cannot be considered determinative of the question under consideration. In the first place, the use of a narrow literal interpretation may be considered inappropriate for a provision such as this. Since the endowment clause is, when read in the broader constitutional context, directed at serving a broader purpose, it is a mistake to focus on the form, rather than the object, of State measures benefiting religion. As O’Connell states, “it is when the text is ambiguous that we most need a theory of interpretation rather than a dictionary.” The necessity of applying a more purposive interpretation to the endowment clause is further elaborated upon below. Leaving aside the rather theoretical question of whether a literal interpretation, through the use of a dictionary, is appropriate to this type of constitutional provision, it is unclear that, even on the literal terms of the Oxford English Dictionary definition relied upon, the meaning of the term “endowment” is limited, in the manner suggested, in terms of the permanence and directness of the subvention. While Keane J suggested that Article 44.2.2º is directed at permanent and direct financial assistance to religions (the second criterion is implicit in his opinion), neither of these criteria is necessitated by the outlined dictionary definition of the term “endow” as “to enrich with property; to provide (by bequest or gift) a permanent income for (a person, society or institution).” Although the second clause of this definition indeed includes the term “permanent”, the first, alternative clause simply states, “to enrich with property.” Under this definition, a measure or act does not have to meet the terms of the second clause, as a “permanent income”, to be an “endowment”: it merely has to “enrich with property.” A body may of course be enriched with property on neither a permanent nor direct basis. In any case, the application of these criteria would clearly lead to absurdities which the constitutional framers could not have intended, as they would obviate the rationale of the clause. It is clearly possible to significantly enrich a religion through occasional or irregular payments as well as through a permanent arrangement; such criteria would allow the State to defeat the purpose of the clause merely by supplying the same benefit to favoured religion(s) as would accrue under a permanent, direct arrangement through irregular, indirect means. If the aim of the endowment clause, as considered below, is to prevent the State from bestowing financial largesse upon favoured religions, it is surely inappropriate to regard the form of support as determinative. Thus, the fact that the indemnity arrangement does not take the form of a permanent income can hardly be regarded as decisive.
Furthermore, the suggestion that the contextual importance of religion in Irish society may justify a certain degree of State largesse towards religion is difficult to justify in textual terms. Keane J’s reference to the religious nature of the Irish people, reflected in the stipulation in Article 44.1 that the State must “honour and respect” religion, overlooks the fact that a strong constitutional separation of State and religion is not necessarily incompatible with such a stance. Concern for the importance of religion may plausibly motivate a desire to maintain its distance, independence and integrity vis-à-vis public authority. Little else would explain why the Constitution amply recognises the importance of religion as a category, yet explicitly precludes the State from endowing any particular religion. Recognition of the historical importance of religion in Ireland may ground a justification as much for its separation from, as its proximity to the State, with the endowment clause evidently reflecting the former view. Articulating the social importance of religion in Ireland blatantly overlooks the counter-majoritarian purpose of the endowment clause: it certainly envisages the preponderance of religion, but aims to provide constitutional safeguards in view of this, rather than to justify its institutional consecration. The Constitution does not, as is sometimes assumed, provide justification for a quasi-confessional State, or necessarily reflect Roman Catholic teachings as to the appropriate Church-State relationship. As Hogan argues, the Constitution reflects “secular and rationalist theory” as its foundational source, tempering the influence of Catholic social teachings. Despite the acknowledgment in Article 44.1 of the “honour and respect” due to religion generally, this is synthesised with extensive protection for rights of religious freedom, and against sectarian discriminations, in the remainder of Article 44.
It might be claimed that the stipulation of “honour and respect” towards religion might justify State intervention, such as the indemnity arrangement, which assumes as an object the financial welfare of religious bodies. However, as a matter of textual construction, if there is a tension between the latter imperative, and the prohibition on the endowment of religion, it is more logical to qualify the broad stipulation of “honour and respect” for religion with reference to the more specific injunction against endowment, rather than the reverse, in order to do the least possible violence to the constitutional text. Such an interpretation may accord due weight to both clauses; it is certainly possible for the State to “honour and respect” religion, in the negative sense of non-intervention, while not endowing any religion in particular, while to qualify the endowment clause with reference to the former imperative would deny any role or purpose whatsoever for the prohibition on endowment. Accordingly, taking Article 44 as a whole, the stipulation of “honour and respect” for religion may not justify the bestowal of financial benefit, whether through indemnity or otherwise, upon a limited number of religious bodies.
Keane J qualifies his suggestion that the State might legitimately confer financial benefits upon religion, that “in doing so it remains neutral and does not discriminate in favour of particular religions.” However, it is unclear how the State might administer a system of support or financial assistance to religion(s) in a “neutral” or non-discriminatory fashion, while privileging the beliefs of some at the expense of others. While an attempt at equalising such a system would necessitate recognition of the different religious identities prevailing in the State, any scheme for ensuring equality and proportionality in the funding of religions could not possibly account for the potentially infinite range of religious beliefs prevailing both within and outside recognised religious groups; it would entail a crude group-based assessment of the relative prevalence of different identities which itself would be constitutionally problematic. A crude scheme of equality between recognised religious groups could not account for the rights of individuals for whom “neutral” State support would entail the levying of general taxation to support an inevitably limited range of religious beliefs and activities, a concern which, as argued below, must be regarded as the object against which the endowment clause is directed. It is impossible to administer a system of support for religion in a fair, equal or “neutral” way; it is this understanding which clearly underpins the constitutional prohibition on the endowment of “any religion.” Even if criteria of formal non-discrimination were appropriate, if is difficult to see how they might apply to the question under consideration: no suitable comparators exist to determine whether the indemnity arrangement represents a discriminatory bias in favour of a particular religion in relation to others. The absence of any direct discrimination in the terms of the arrangement does not necessarily mean, of course, that it is “neutral” or non-discriminatory; such an assessment might necessitate inquiry into the motivations of those who concluded the indemnity agreement, but such criteria are hardly susceptible to judicial inquiry. These considerations militate against the idea that formal non-discrimination might legitimate measures which would otherwise constitute the endowment of religion.
Towards a Purposive Interpretation of the Endowment Clause
It has been argued that it is inappropriate to interpret the endowment clause through narrow literal construction, and through emphasis on the form, rather than the object, of State measures providing financial benefit to religious bodies. Of course, as the Campaign ruling outlines, such measures cannot be considered an endowment of religion if their object lies in the fulfilment of a constitutionally-mandated purpose, such as the provision of religious education in accordance with parental wishes. If the endowment clause targets State measures of a particular object, rather than a particular form, however, it is necessary to ascertain the purposes and values which the endowment clause embodies, when considered within the broader constitutional framework.
In the Paperlink case, Costello J suggested that the nature of the Constitution as “a political instrument as well as a legal document” warrants a purposive rather than a literal interpretation. Undoubtedly, the endowment clause does not represent a stridently secularist attempt to rigidly separate Church and State, in the vein of the establishment clause of the United States; this is evident alone from the constitutional mandate for State funding for religious education. However, that the Constitution permits collaboration between Church and State in the advancement of certain causes which are not synonymous, per se, with the advancement of religion, is not incompatible with the argument, which I have previously made elsewhere, that the endowment clause embodies a rights-based rationale, which prevents the State from undermining the freedom and equality of those not affiliated with the confessional identities which the State may seek to privilege through financial or other benefits. In Campaign, Barrington J noted the historical connection between the establishment of religion, and the placing under civil disabilities of those who opposed favoured religions, without fully drawing out the consequences of this connection between the Church-State relationship and individual rights. Of course, the endowment clause may be regarded as concurrently serving other purposes, including a concern for the corrupting effect upon religion of State interference, termed by Keane J as, “the powerful erastian current of belief … which regarded any State aid to religion as repugnant to the nature of Christianity,” as well as, perhaps, the teleological belief that progress is served by the separation of civil and religious concerns, secured by excluding religious concerns from secular governance. However, when read in the broader context of Article 44, whose “overall purpose” is deemed in Quinn’s Supermarket v Att. Gen. to be “freedom of practice of religion,” the most obvious purpose of the clause lies in preventing State measures which, in furthering religious causes, whether on a plural basis or otherwise, undermine the equal religious freedom of individuals, whose choice of religious affiliation must remain unburdened by State privileges or largesse. Constitutional Church-State separation may thus be regarded as ancillary to religious freedom guarantees, in precluding State measures which “skew the choice of conscience, encumber the exercise of religion and upset the natural plurality of faiths.” Therefore, since the object of the indemnity for Roman Catholic congregations clearly lies in their financial welfare – at the expense of general taxation, and going beyond what is necessary to achieve any legitimate civil or secular purpose – it offends the principles on which the endowment clause is grounded.
Keane J’s Campaign ruling reduces the scope of the endowment clause, through an excessively formalistic and literalist approach, in such a manner as obviates its very rationale. The qualifications which he articulated would almost certainly preclude the argument which this article advances. However, the aspects of his judgment suggesting that the conferral of financial benefit upon religions may not even constitute a prima facie endowment of religion rest on a very weak basis, not least because the condition of non-discrimination in the conferral of such benefit is, a priori, impossible to fulfil. Moreover, those aspects of his opinion which suggest this literalist qualification are obiter dictum, and therefore far from fatal to the argument that the congregational indemnity is constitutionally unsound. For reasons whose full elaboration is beyond the scope of this article, Barrington J’s majority opinion is also unsatisfactory in many respects. However, as the only relevant Supreme Court precedent for the question under consideration, the qualifications which it interpreted in the endowment clause are not incompatible with the argument that the provision precludes the State’s indemnity for the liabilities of religious bodies, where such funding serves no purpose warranting constitutional legitimacy, other than the “rescue” of religious denominations from potentially ruinous costs.
Ah But Yes Always William!
As they are the highest funded group here there are alot of questions they need to answer, it is very strange that a survivor would consider such a thing, i have never heard anything good about that group all bad, i contacted them myself years ago talked to someone for a few minutes and was told they would call me in a few days, some lady rang a week later to make some excuse as to why the guy didnt ring me back then i never heard from them again ever, i was homeless at the time. Also caught one of them lying through their teeth some time after on the comment section of an article on the journal, she was telling everyone that they were fast tracking thousands of applications through caranua, there is not and never was a method of fast tracking applications and as there were less than 2000 total application from all over the world at that time, total lie, people were actually praising her for this, little did they know it was all lies.
It Appears To Be The Case That Very Few Survivors Out Of Many Thousands Abused Applied To The Child Abuse Commission, The Redress Board , The Old Fund And It's Replacement Caranua . Guess Most Survivors If They Ever Heard Of The Child Abuse Commission, The Redress Board , The Old Fund And Caranua Chose Not To Go There. Some May Never Have Told Their Partners (and Children) Of That Part Of Their Story. It Takes Courage To Apply For Justice. It Was Never Going To Be Easy. Opening Up Old Wounds And Memories. This Should Not Be Done With Legal Representation. Doubtless Members Of This Group Were Led To Believe They Did Not Need Legal Representation At The Child Abuse Commission And The Redress Board. Yet The Government Had It's Legal Representation At Both Places! Law Firms Across The Country Not Interested In Taking Cases To Court.
Put together a letter outlining our concerns with funded groups, what we would like to see in the legislation and send it to him,
I wonder how many of these friends are actual survivors, they cannot exclude us from this we need to be heard, who wants to get a draft started, Michael
Arrange a meeting with the minister
We Have To Represent Ourselves With Or Without Legal Representation.
The Shame Of Ireland Is Our Group And The One That Can Not Be Excluded In Any Dialogue.
Email just sent to the ministe
Hi as a member of the shame of ireland survivors group with some 400 members, given that a review of the legislation is about to take place we would like to submit what we would like to see happen, could we arrange a meeting to discuss this, also i would hope that any group claiming to represent survivors can prove that this is what they are indeed doing and not merely jumping through hoops for funding or looking to advance ideas that will directly benefit these groups, it is not about groups it is about survivors, we are not funded and we dont want any, our requests are quite simple protection of survivors, i dont feel that vested interests can get this done, i look forward to your response.
Beautifully Crafted Michael.
Cheers Jack i would love to meet him and show him that despite applying to caranua in jan of 2014 the state of my teeth and pics of the house, so with all the money flowing into caranua and groups how is it that survivors are left like this.
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