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Removing the consitutional protections for churches.
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Couple of thoughts:
“Religious denomination”: I don’t think “denomination” is being used in Art. 44 quite the technical sense that Absolam suggests.
“Denomination”, in the religious context, means a collection of believers/practitioners who have enough in common that they can be grouped together under a single name, used both to identify them and to distinguish them from other believers/practitioners. So, within Christianity, “Catholic”, “Orthodox” and “Protestant” are denominations. But this is a multi-layered thing; within Protestantism, “Anglican”, “Baptist”, “Methodist”, etc are all denominations. Within Anglicanism, you have “Church of England”, “Church of Ireland” and so forth. But there does come a point where we make distinctions that, while valid, are not sufficiently significant to be considered denominations. Evangelicals in the Church of Ireland, for example, or Charismatics within the Catholic Church, are not considered to be “denominations”.
“Non-denominational” churches usually call themselves that because they don’t belong to any larger organisation which provides direction, oversight or control. Each congregation governs itself, and is not accountable to any outside body. But they are certainly “denominational” in the sense that they can meaningfully and accurately be categorised as, e.g, Baptist and Protestant in belief and practise, congregational or presbyterian in government, etc.
I seriously doubt that because a particular church describes itself as “non-denominational”, it therefore takes itself outside the scope of Art 44. I suspect the word “denomination” was chosen not to invoke the sense of an organised structure controlling or directing more than one Christian congregation, but simply as a non-specific alternative to the word “church”. If Art. 44 protected only churches, then Jews, Muslims, etc would enjoy no protection, and we know that Dev wanted to avoid that. So I think Art 44 uses the term “religious denomination” in the sense of any organised group of beleivers/practitioners than we can meaningfully name, including an individual independent congregation.
The other point worth noting is that if “denomination” is understood only to mean, e.g., the Roman Catholic Church, the Church of Ireland, the Irish Jewish communities, etc, then Art. 44 provides very little protection at all. The truth is that the Roman Catholic Church in Ireland owns no property at all, any more than the feminist movement or the sceptical movement or the rationalist movement owns property. Church property is typically owned by a diocese, a religious congregation, etc (or by trustees on behalf of one of these). But I think if you tried to argue that, e.g., the assets of the Diocese of Cork or the assets of the Society of Jesus were not protected by Art. 44, the Supreme Court would go through you for a short cut. Given the rationale for Art. 44 which Absolam points to, can anybody really doubt that the intent of Art. 44 is to cover assets of this kind?
So, basically, I think whatever protection Art. 44 affords extends to the assets of religious organisations of all kinds, including dioceses, parishes, religious orders, and individual self-governing congregations.
Scope of the Protection: Absolam suggests that Art. 44.6 means that religious and educational properties are immune from the powers of a receiver under insolvency laws. There aren’t (SFAIK) any cases on this, but I’m not entirely convinced that this is correct. If it is correct, then I think a corollary would be that religious/educational properties are similarly immune from other civil enforcement mechanisms, e.g being compulsorily sold to satisfy a judgment debt. More to the point, this wouldn’t just protect them from seizure by the state; it protects them from seizure by any creditor at all. And, as Absolam points out, this applies not just to land and buildings but to everything they own, including cash, bank deposits, valuable objects, investments - the lot.
If that were the case, it would actually create considerable problems for religious bodies (and schools and universities, whether religious or not). They couldn’t borrow more than a trivial amount, because any borrower would know that the loan was legally irrecoverable (unless a mortgage were granted). Nobody would provide them with any goods or services on credit, since payment could not be enforced. Employees couldn’t recover unpaid wages. The Revenue couldn’t recover social insurance contributions or PAYE withholding in relation to the employees of religious bodies, schools or universities. Etc, etc. You can see how destabilising this would be. It would make it difficult or impossible for religious and educational bodies to enter into normal commercial, financial, employment, etc relationships.
I don’t think anybody thinks that this is how it works, and I can’t imagine that the Supreme Court would eagerly adopt that reading of Art. 44.6, if it were ever argued before them.
I think that there would be a strong impulse to interpret Art. 44.6 in the light of Art 44.1 (“The State acknowledges that the homage of public worship is due to Almighty God . . . “) We have already seen that, recedite’s fears notwithstanding, this can’t be used to compel citizens to worship God ; Art.44.2.1. prevents that. I think that, harmoniously interpreted, Art. 44 is about how the State approaches religion and religious questions. Consequently Art. 44.6 is intended to prevent the exercise of State power to “divert” religious property on behalf of the State, but it doesn’t prevent normal procedures for enforcing debts, judgments, etc.
(And it’s worth pointing out that the Catholic church certainly doesn’t think it gives them that kind of protection. If it did, they would never have needed to take out liability insurance against claims for child sexual abuse, but they did take out such policies. (Indeed, they wouldn’t need liablity insurance of any kind, for any purpose.) Nor would they have needed to enter into the controversial indemnity agreement in the first place; they would have needed no indemnity, since there assets would not have been at risk.)0 -
Interesting legal niceties and discussion. Dev didn't want the Churches given the Henry 8th treatment so they got protection. Absolam is I think correct when he gives primacy to the Irish language version "a bhaint diobh" which is very clear ie torn or pulled from them.
But that's suitable discussion for a seminar in law or over a sherry in a presbytery. In the real world it's about seeing if Dev's vision should bind parents and children in 2015. IMHO Ireland has turned away from that and the state has to ensure equal access to equal education for its citizens. It will happen but hopefully without Henry 8th approach. I have no time for the RCC but I have huge admiration for individual members who as sisters or brothers or priests lived decent lives and spent their lives trying to improve the lives of the ordinary people among whom they lived. I would hate to see these, many of whom that I know, are now aged and infirm threatened in their weakness.
It's not an easy topic but there is no doubt for me that the state must be neutral among the competing gods of modern Ireland.0 -
So the church still owes tens of millions in debt for making redress to victims of abuse, yes? If I owed a debt to the government they would have no qualms about seizing my assets to pay that debt, right? Why should the church's assets not be seized to pay their debt and the constitution be changed to allow this if necessary? I get that the clause was put there to avoid, as has been said, the government doing a Henry VIII grab, but when the constitution was written no-one could have guessed that the RCC would drag its heels about making restitution for the rapes, abuses, and incarcerations performed by its members.0
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What about the Victory Christian Fellowship case then? They don't seem to have been immune. I have to admit that I thought Absolam was just being a bit mischievous, but now I'm starting to think some people really do believe that the word denominational as used in Article 44 confers immunity on some churches but not others. Which would actually constitute "endowing" any religion categorizing itself as "a denominational church".Peregrinus wrote: »Absolam suggests that Art. 44.6 means that religious and educational properties are immune from the powers of a receiver under insolvency laws. There aren’t (SFAIK) any cases on this, but I’m not entirely convinced that this is correct. If it is correct, then I think a corollary would be that religious/educational properties are similarly immune from other civil enforcement mechanisms, e.g being compulsorily sold to satisfy a judgment debt.
Perhaps the Irish Times journalist also thought there was some significance, otherwise it seems strange to begin the account with a specific mention of "non-denominational";
Following this kind of logic, if the VCF had changed their status to denominational they could have protected their assets. Simply find a similar church somewhere, and agree with each other that you are both denominations of the same religion.The trustees of a non-denominational church, the Victory Christian Fellowship, have lost their appeal....
Or if they had opened a school before going into receivership, would it have been a non-denominational school? :pac:
Its amazing that two people can sometimes read the same thing, but come to completely different conclusions about its meaning.0 -
I think the point here is that Devs vision does not give them special immunity. It does protect them from having their assets transferred to another denomination, Henry VIII style.Interesting legal niceties and discussion. Dev didn't want the Churches given the Henry 8th treatment so they got protection. Absolam is I think correct when he gives primacy to the Irish language version "a bhaint diobh" which is very clear ie torn or pulled from them.
But that's suitable discussion for a seminar in law or over a sherry in a presbytery. In the real world it's about seeing if Dev's vision should bind parents and children in 2015....
But somehow, the RCC canon lawyers have managed to convince the politicians (and a large portion of the population) that they do have this special immunity.
But when you actually take off the blinkers and look closely.....the emperor has no clothes.0 -
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I think you are trying to say that a CPO as applied to a "private citizen" for installation of public works such as roads and public transport infastructure etc.. is different to a "religious" CPO for works of public utility defined as “roads, railways, lighting, water or drainage …” , but I can't see any substantial difference there myself.In the case of privately held property State bodies have a more extensive right to enforce a compulsory purchase order; the acquisition need only be in order to secure, facilitate, control or improve the frontage of any public road by widening, opening or enlarging it, in order to provide areas with roads and other infrastructure facilitating public transport, for such services and works as may be needed for development, or for a local authority to deal with a property or site deemed to be dangerous or derelict.
In the case of religious properties, they can only be acquired for necessary works of public utility; works of public utility are not defined in the current Constitution, but The Irish Constitution by Kelly, Hogan & White (a King's Inns Constitutional Law textbook) points out that that Article 8 of the 1922 Constitution is helpful here, as it specifies “roads, railways, lighting, water or drainage …”, suggesting that the Government could not rely on this wording to justify taking property for some grander function.
Yes, I think this is a good summary of the RCC position. Which seems to have been swallowed by numerous of our politicians. And I'm saying I don't accept it, because I see no evidence that it is true.What's probably more appropriate to Recedites point, is that the High Court can appoint a receiver or assignee empowered to dispose of the property and other assets of a company, organisation or person in order to discharge their debts (though those powers are specifically limited, particularly in the case of personal insolvency). The properties of a religious denomination or educational institution are Constitutionally protected from such a disposal; they would have to voluntarily liquidate their properties for them to be used to discharge their debts. If they choose not to liquidate their properties, they cannot be compelled to do so. And of course, under Irish Law 'Property' is defined as 'that which can be owned', so the protection isn't limited to sites and buildings; it arguably extends to all assets owned by the religious denomination.0 -
I think the point here is that Devs vision does not give them special immunity. It does protect them from having their assets transferred to another denomination, Henry VIII style.
But somehow, the RCC canon lawyers have managed to convince the politicians (and a large portion of the population) that they do have this special immunity.
But when you actually take off the blinkers and look closely.....the emperor has no clothes.
I don't think it's just limited to transfer to another denomination. RCC canon lawyers have no particular expertise in constitutional law but some are also qualified solicitors and there used to be a few who were barristers. A detailed interpretation would only ever be done in case law anyway I.e. an interpretation which would be binding other than expensive or casual speculation (legal opinion or Boards discussion). The curious thing is the status of a diocese or parish in state law. A company is recognized as a body which can be sued and its liabilities are limited. Seizing schools would require a legal case against each parish and diocese. It's a quagmire.0 -
How do you explain the VCF case above then? Immunity fail.I don't think it's just limited to transfer to another denomination.
Its worse than that, because around the time the redress scheme was set up, and entirely by coincidenceThe curious thing is the status of a diocese or parish in state law. A company is recognized as a body which can be sued and its liabilities are limited. Seizing schools would require a legal case against each parish and diocese. It's a quagmire.
, the property belonging to some of the most abusive offenders such as the Christian Brothers was transferred into various trust funds. So we have the likes of Edmund Rice Trust and Le Cheile trust being the beneficial owners of property, and these trusts themselves have committed no crimes.
Similarly we have the RCC saying they are not responsible for the actions of any priests, because the priests are not employees, but more like sub-contractors.
All these obstacles have been placed in the way of justice, but they are not insurmountable. Even trust funds can be cracked open if it can be shown that they were originally created for the wrong reasons; ie to hide the assets.0 -
Perhaps the Irish Times journalist also thought there was some significance, otherwise it seems strange to begin the account with a specific mention of "non-denominational"
"non-denominational" is just lazy journalistic shorthand for "not roman catholic and not mainstream protestant".Fingal County Council are certainly not competent to be making decisions about the most important piece of infrastructure on the island. They need to stick to badly designed cycle lanes and deciding on whether Mrs Murphy can have her kitchen extension.
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Mmm.. some interesting points.
I didn't intend Religious denomination to be construed in all that technical a sense; I'd fully agree that it ought be construed as property which, directly or indirectly, comes under the aegis of a religious denomination, so would include property held by the denomination in trust for a parish, a diocese, or for educational or charitable purposes. However, I don't think 'religious denomination' would be considered synonymous with 'church' by the SC; I think the SC would require more than just the name church to rise to that level. For instance the fact that the Victory Christian Fellowship was a registered charitable trust whose charitable status had been revoked by the Revenue Commissioners due to engaging in commercial activities would certainly influence the HC in deciding whether they should be dealt with as a religious congregation, or a commercial entity. The HC didn't need to do so though, and I think one reason for that is what I will set out on the subject of scope.Peregrinus wrote: »Couple of thoughts:
“Religious denomination”:
Whilst I believe it is the case that religious and educational properties are immune from the powers of a receiver under insolvency laws (and agree, this has not been tried in court); I don't think it follows that religious/educational properties are similarly immune from other civil enforcement mechanisms, e.g being compulsorily sold to satisfy a judgment debt. the reason being, if a religious congregation offers property as security against a loan, that property has been set to a purpose by the religious congregation, and if the property is then required to make good on the loan it is not being diverted, it is being used as the religious congregation set out to use it; as a payment on a debt. So even if the Victory Christian Fellowship were considered to be a religious congregation, the HC did not need to consider whether their properties were being diverted; they were not, they were being used exactly as the VCF had committed to using them.Peregrinus wrote: »Scope of the Protection:
I do agree that the Article does protect RCs not just from seizure by the State; there is no limit there so it protects them from seizure by anyone (though realistically no one else would be in a position to make such a seizure).
Which of course also means that there is no issue with RCs borrowing against their assets, because once set to the purpose of security by the RC, they are not being diverted by anyone else. As for wages, social insurance contributions, PAYE etc; these are potentially unsecured debts. Religious congregations would likely be no different from the myriad international companies we've seen who have abandoned responsibility for exactly such debts whilst removing the value of their assets to outside the jurisdiction, so I don't think it's likely to be much easier for a RC to do so than it is for a corporation, or even an indiginous company that becomes insolvent; the very reason we have an Insolvency Payments Scheme is because these companies don't pay those debts.
So yes, Art. 44.6 is intended to prevent the exercise of State power to “divert” religious property on behalf of the State (but I don't believe it is limited to the State), and it doesn’t prevent normal procedures for enforcing debts, judgments, etc. where the RC has offered it's assets as security against those debts.
As for the Catholic Church and it's liability insurance; the fact that the assets of the Church cannot be diverted doesn't immunize them from owing money, or from their various sub-entities being made insolvent or uninsurable, and being unable to engage in activities within the State. The very fact of owing such substantial sums, regardless of whether assets could or couldn't be seized to satisfy the debt, and the difficulties that entails, is reason enough to insure themselves and indemnify themselves against those potential debts.0 -
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Maybe; the various organisations involved might well have paid over everything required by their original indemnity deal with the Government, the full figures haven't been released. None of them seem to be saying they have no intention of paying the amounts they agreed to though.So the church still owes tens of millions in debt for making redress to victims of abuse, yes?
Well, you'd have to change the constitution first; there's no guarantee that would pass a referendum. Then you'd have to hope that the various bodies involved (bearing in mind it's not the Catholic Church as a whole, it's eighteen specific religious orders) haven't moved to place their assets beyond the reach of the State during that time. If they're not prepared to pay what they owe, there's no reason to think they'd balk at moving their assets.If I owed a debt to the government they would have no qualms about seizing my assets to pay that debt, right? Why should the church's assets not be seized to pay their debt and the constitution be changed to allow this if necessary?
Regardless of the notion that they might be doing it for a very good reason (not that Henry thought his was a bad reason), it would still be a Henry VIII grab though. That might not be sufficiently popular to pass a referendum.I get that the clause was put there to avoid, as has been said, the government doing a Henry VIII grab, but when the constitution was written no-one could have guessed that the RCC would drag its heels about making restitution for the rapes, abuses, and incarcerations performed by its members.0 -
As I said, I don't think how a 'church' regards itself is what is significant, it's whether the Courts consider it to be a religious congregation or not. I think the High Court has sufficient reason to not consider the VCF a religious congregation, but the VCF didn't try to use Article 44 as protection, so we'll never know. Even if they did, as I said, I believe the fact that they had offered the properties as security placed the properties outside the scope of 'diversion' anyway.What about the Victory Christian Fellowship case then[/URL]? They don't seem to have been immune. I have to admit that I thought Absolam was just being a bit mischievous, but now I'm starting to think some people really do believe that the word denominational as used in Article 44 confers immunity on some churches but not others. Which would actually constitute "endowing" any religion categorizing itself as "a denominational church".
I think if they has retained their status as a charity, they might have had more chance of being considered a religious denomination, but since it wasn't argued, we can't really say.Perhaps the Irish Times journalist also thought there was some significance, otherwise it seems strange to begin the account with a specific mention of "non-denominational";Following this kind of logic, if the VCF had changed their status to denominational they could have protected their assets. Simply find a similar church somewhere, and agree with each other that you are both denominations of the same religion.
I think we all tend to look for what supports our preconceived notions when we look at things like this, particularly in the context of a debate.Or if they had opened a school before going into receivership, would it have been a non-denominational school? :pac:Its amazing that two people can sometimes read the same thing, but come to completely different conclusions about its meaning.
It doesn't say to another denomination though. Absent the words, it's impossible to see why you think it could be restricted in such a way.I think the point here is that Devs vision does not give them special immunity. It does protect them from having their assets transferred to another denomination, Henry VIII style.
That's really not true in any regard though, is it?But somehow, the RCC canon lawyers have managed to convince the politicians (and a large portion of the population) that they do have this special immunity.
Canon lawyers deal in Canon Law; hardly well placed to argue Irish Constitutional Law. Nor is there any evidence any lawyers acting on behalf of any religious congregation have convinced any politicians of anything regarding immunity, is there?
As far as I know, not a single case has been brought before the Irish courts under clauses 5 & 6 of Article 44, so beyond the specific words as they stand no one knows to what extent the judiciary may find the clauses protect the Churches.
The most basic difference is that the scope of a CPO is laid out in legislation, and can be amended by an Act of the Oireachtas to include pretty much anything. A private citizen (or company) has no Constitutional right not to have their property diverted if the State decides to do so. Whereas a religious denomination does, and the scope of 'public utility' is not laid out anywhere; since it's a Constitutional term it can only be finally determined by the Supreme Court, who would be likely to consider it to be as set out in the 1922 Constitution, given that there was no other definition set at the time of writing. So the diversion of the properties of religious denominations is severely restricted, compared to the diversion of the properties of citizens and companies.I think you are trying to say that a CPO as applied to a "private citizen" for installation of public works such as roads and public transport infastructure etc.. is different to a "religious" CPO for works of public utility defined as “roads, railways, lighting, water or drainage …” , but I can't see any substantial difference there myself.
Since, as far as I know, the Catholic Church hasn't put forward a position on the subject, I can't say whether it is a good summary of their position or not, and I can only assume you're guessing, unless you have evidence to the contrary?Yes, I think this is a good summary of the RCC position. Which seems to have been swallowed by numerous of our politicians. And I'm saying I don't accept it, because I see no evidence that it is true.
I think the only evidence we'll ever have if it's a true reflection of the Article is if someone brings it before the Supreme Court. I doubt that's going to happen.
Or not, as the case may be.How do you explain the VCF case above then? Immunity fail.
Oh, I reckon even the Christian Brothers would tell you it's no coincidence. There's a very real possibility that these scandals will spell the end of some of these religious Orders in Ireland. By creating these Trusts, the educational institutions they've created may survive the demise of the Orders; I don't think the Trusts will prevent the State from obtaining assets that it was to obtain from the Orders.Its worse than that, because around the time the redress scheme was set up, and entirely by coincidence, the property belonging to some of the most abusive offenders such as the Christian Brothers was transferred into various trust funds. So we have the likes of Edmund Rice Trust and Le Cheile trust being the beneficial owners of property, and these trusts themselves have committed no crimes.
Similarly we have the RCC saying they are not responsible for the actions of any priests, because the priests are not employees, but more like sub-contractors.
All these obstacles have been placed in the way of justice, but they are not insurmountable. Even trust funds can be cracked open if it can be shown that they were originally created for the wrong reasons; ie to hide the assets.0 -
I think that clarity and precision has been brought to the legal and constitutional aspects with contributions above.
Which brings us back to the OP. I think its clear that only a constitutional amendment would deal with the issue. I don't think that would pass now; not for any religious reason but we are a nation who aspires to or owns property and people would get nervous. Given the state's infantilism for years in dealing with the churches and its manifest incompetence in many areas people would be rightly suspicious.
The Constitution is also a barrier to state education: parents are the primary educators under 1937 and it is they who subcontract it to others including religions. Would an amendment to that pass? Probably not: in any event would it be wise to gift the state such unregulated control of its citizens? I say that as someone who as recently as 1991 could be regarded as a criminal for who I loved. Having said that, I would prefer the State because it is possible to argue rationally with an entity that can't retreat to a position of "god said so in a holy book thousands of years ago, so there". Equally infantile.
The problem when you look at it isn't the churches: the problem is that generations of people perpetuate a system which is past its sell by date. Politicians hate to get too far ahead of public opinion: if they think the numbers are there they will jump. It's time to talk to people.0 -
All these obstacles have been placed in the way of justice, but they are not insurmountable. Even trust funds can be cracked open if it can be shown that they were originally created for the wrong reasons; ie to hide the assets.Oh, I reckon even the Christian Brothers would tell you it's no coincidence. There's a very real possibility that these scandals will spell the end of some of these religious Orders in Ireland. By creating these Trusts, the educational institutions they've created may survive the demise of the Orders; I don't think the Trusts will prevent the State from obtaining assets that it was to obtain from the Orders.
Indeed, He who comes to equity...
MrP0 -
That is basically the same as my interpretation now. The word denomination is used in the Constitution to prevent a Henry VIII type sleight of hand which seized property from one denomination and gave it to another, while still saying the property remains in the hands of "the church". It clarifies that an individual denomination can be the owner of its own property.I didn't intend Religious denomination to be construed in all that technical a sense; I'd fully agree that it ought be construed as property which, directly or indirectly, comes under the aegis of a religious denomination, so would include property held by the denomination in trust for a parish, a diocese, or for educational or charitable purposes.
That is very different to saying that only self-described "denominational" churches are covered by a blanket immunity.
This is a good point. But...just because the pastor of a church is convicted of a fraud, that does not mean that the church ceases to exist as a religion. AFAIK the congregation of VCF were still believers, in good faith, but they were duped....the fact that the Victory Christian Fellowship was a registered charitable trust whose charitable status had been revoked by the Revenue Commissioners due to engaging in commercial activities would certainly influence the HC in deciding whether they should be dealt with as a religious congregation, or a commercial entity.
From the perspective of many outside it, the RCC and its congregation are in the same position, except that they still have the charitable status. Arguably, the ongoing series of abuse scandals, cover-ups, homophobic lobbying, misogyny etc is enough to warrant the revenue commissioners withdrawing their charitable status. However, this would not affect the RCC having the status of a church in terms of the Constitution. The Constitution does not place a value judgement on any individual denomination, but it protects any individual assets from being devoured by any other denominations that might become more especially favoured by the State.
What the revenue commissioners consider to be "a charity" is a separate issue to the question of what is "a church" in normal parlance.
Again, this is very different to saying that church property cannot ever be seized. You are now saying that if money is owed as part of a debt, church property can be seized. So that is similar to the situation pertaining to the property rights of any private citizen....if a religious congregation offers property as security against a loan, that property has been set to a purpose by the religious congregation, and if the property is then required to make good on the loan it is not being diverted, it is being used as the religious congregation set out to use it; as a payment on a debt. So even if the Victory Christian Fellowship were considered to be a religious congregation, the HC did not need to consider whether their properties were being diverted; they were not, they were being used exactly as the VCF had committed to using them.
Redress compensation can be considered a debt, can it not? Certainly all the money that was supposed to be paid to secure a 6 year indemnity can, and it seems that has not all been paid yet. And any redress costs that arose outside of that 6 year indemnity period are an additional debt.
You are assigning a very specific meaning to the word "diverted" by claiming that it does not include seizing property in payment of a debt. The primacy to the Irish language version "a bhaint diobh" was mentioned earlier as meaning "torn or pulled from them". IMO the more common sense English translation for this seems to be the word "seized". Which comes down to us from the Normans who considered property seized at the point of a sword to have a perfectly valid title, hence the somewhat archaic legal term "seise" is still around. Its strange that the word seized was not used instead of diverted, but maybe Dev wrote the Irish version first, and then somebody translated it using an Irish-English dictionary.
So yes, I do agree with this definition of "divert", but it brings us right back to square one; ie the church having no special property rights compared to the private citizen. Given that seizing property by the crown or state using military might is nowadays frowned upon, whether seized/diverted from the private citizen or the church.
With CPO's, this is the exception where the state can seize property, provided it also pays compensation. But all the examples you have given have been land for public works, or some works needed for public infrastructure. I don't see any difference there between the treatment of property belonging to church or to private citizens.0 -
Couple of points:
Henry VIII didn’t take the property of one denomination and give it to another. He took monastic property and dealt with it as he pleased. Some he kept for the State, much he handed out to local bigwigs to secure their loyalty and ensure that they bought into the English reformation, and some he handed to dioceses, schools, colleges and the like. That last category was much the smallest.That is basically the same as my interpretation now. The word denomination is used in the Constitution to prevent a Henry VIII type sleight of hand which seized property from one denomination and gave it to another, while still saying the property remains in the hands of "the church". It clarifies that an individual denomination can be the owner of its own property.
That is very different to saying that only self-described "denominational" churches are covered by a blanket immunity.
So, no, if you think Art 44.6 is directed against a repeat of the Henrician reformation, then it
its not about preventing the state from taking the property of one denomination and giving it to another. At a minimum, it’s about preventing the State from taking the property of any denomination, no matter what they do with it afterwards. Absolam and I disagree about the extent to which it prevents parties other than the state from seizing church property.
I agree. Charitable status is irrelevant here.From the perspective of many outside it, the RCC and its congregation are in the same position, except that they still have the charitable status. Arguably, the ongoing series of abuse scandals, cover-ups, homophobic lobbying, misogyny etc is enough to warrant the revenue commissioners withdrawing their charitable status. However, this would not affect the RCC having the status of a church in terms of the Constitution.
Churches are free to deal with their own property, including selling it or granting mortgages over it. So if the Armalite Sisters want to borrow a bunch of money from the Bank, they can secure the loan with a mortgage over the Convent of the Divine Perpetual Candles. And if they default on the loan, the Bank can take the usual enforcement procedures, including getting a court order to have the Convent sold and the proceeds paid to the Bank, up to the amount owing on the loan. Why? Because the Armalite Sisters granted them that right when they mortgaged the Convent, which they were free to do. And the Bank using the courts to exercise rights granted to them by the Armalite Sisters is not the Sisters’ property being “diverted”.Again, this is very different to saying that church property cannot ever be seized. You are now saying that if money is owed as part of a debt, church property can be seized.
But if the Sister take out an unsecured loan and default on it, then Abolam and I disagree about the position of the Bank. If I understand Absolam correctly, he’s of the view that the Bank can’t enforce its loan against the Convent - or, for that matter, against any other property of the Sisters. Which effectively means they can’t enforce their loan at all. I doubt that Art 44.6 has that effect.
Yes, subject to two important qualifications. First, it’s not a debt to the State; it’s a debt (or a large number of individual debts) to individual victims of abuse. So the State can’t sue to recover redress compensation. And, secondly, it’s not a debt even to the victims until the victims sue, and get judgment against the religious orders. Prior to that point it’s just a claim, or a potential claim.Redress compensation can be considered a debt, can it not?
Not necessarily. It depends on the wording of the agreement. If I agree to pay you a thousand euros for the hire of your car for three months but then I don’t pay, you may or may not be entitled to sue me for a thousand euros. Quite possibly, all you are entitled to do is not give me the car. Much will depend on the wording of the agreement and on the facts of the case. And of course in this case we don’t know the wording of the agreement.Certainly all the money that was supposed to be paid to secure a 6 year indemnity can . . .
And we also don’t know, do we, if the religious orders are even in breach? Did the agreement specify a timescale for property transfers, and has that timescale been met? I don’t know the answers to questions like that. But without knowing that kind of thing, it’s impossible to say whether the State could succeed in an action against the religious orders.
Dev has been mentioned a few times in this thread but, actually, he has nothing to do with this. And the English version came first. The “diverting the property” wording in the 1937 Constitution wasn’t dreamed up by Dev; it was copied from the 1922 Constitution (Art. 8),which in turn took it from the Anglo-Irish Treaty of 1921 (Article 16), which copied it from the Government of Ireland Act 1920 (s. 5), which copied it from the Government of Ireland Act 1914 which copied it from the Home Rule Bill of 1893 (s. 4). So not so much Dev, then, as Gladstone. And, if we’re honest, not so much about protecting the position of the Catholic church as about protecting the position of minority churches.Its strange that the word seized was not used instead of diverted, but maybe Dev wrote the Irish version first, and then somebody translated it using an Irish-English dictionary.
(And, for the record, all the stuff in Art. 44 about the rights of churches to run schools, and the rights of students to attend publicly funded schools without receiving religious instruction? None of it is Dev’s. It all goes back to the Home Rule Bills of 1893 and 1886.)
I think the difference is that the grounds on which the State can CPO religious/educational property are constitutionally restricted. The Oireachtas cannot pass a law allowing religious/educational property to be compulsorily purchased for anything other than “necessary works of public utility”. Whereas there is no similar restriction on legislation providing for the compulsory acquisition of other property. Under Art 43 the State can’t abolish private property outright, but it can “delimit by law” the exercise of property rights “with a view to reconciling their existence with the exigencies of the common good”.With CPO's, this is the exception where the state can seize property, provided it also pays compensation. But all the examples you have given have been land for public works, or some works needed for public infrastructure. I don't see any difference there between the treatment of property belonging to church or to private citizens.0 -
Actually, the transfer of the assets of religious orders into educational, etc, trusts has been ongoing since the 1980s, and it has largely been driven by demographic considerations; vocations basically fell off a cliff in the 1970s and have kept falling, with the result that in time the orders couldn't staff, and then could even manage, the institutions they had established. Hence the transfer to lay-led trusts which share the general vision of the order, but can operate independently of it (and can therefore operate when the order has disappeared entirely). And of course this problem was thirty or forty years in the coming, so there was plenty of time to plan how to manage it.. . . Oh, I reckon even the Christian Brothers would tell you it's no coincidence. There's a very real possibility that these scandals will spell the end of some of these religious Orders in Ireland. By creating these Trusts, the educational institutions they've created may survive the demise of the Orders; I don't think the Trusts will prevent the State from obtaining assets that it was to obtain from the Orders.
That's not to say that there is no instance in which the transfer of a property to a trust wasn't accelerated by the knowledge that it might be a risk from compensation claims in the future. But anyone chasing the property, and seeking to get the transfer set aside, has to find evidence showing that this actually was the case in relation to the property they are chasing, which is not a trivial matter to show.
Two other thoughts occur to me:
First, educational trusts running schools enjoy the same constitutional protection against "diversion" under Art. 44.6 as churches do. But trusts running hospitals, residential homes, etc, etc do not. So if it is right that church property is protected by Art 44.6 from being seized to satisfy a civil judgment, then by transferring properties of that kind to charitable trusts the religious orders may actually have weakened whatever protection that the properties enjoy.
Secondly, whatever the motivation for the transfers, they do seem to have been genuine transfers. The schools, hospitals, homes etc really do not belong to the religious orders concerned. So if the State does take them in satisfaction of sums due, that is not done at the expense of the religious orders, but at the expense of the educational, medical, etc trusts.
Which means, of course, that once the properties are gone the trusts have no further purpose, and will fold. And in order to realise any value from the assets they have seized the state will have to close the schools, hospitals, care homes, etc and sell the land and buildings. Which, of course, just means that someone will have to open other schools, hospitals, care homes, etc. And we know who that someone will be, don't we?
In short, most of the assets that were transferred to educational, etc, trusts, are probably assets that are not of much interest to the state. As long as they operate as schools, hospitals, and such they don't generate any return for the owners. If they cease to operate as schools, etc then either you have some very angry voters, or the State is going to have to find the money to open replacement schools, etc.0 -
Which I think goes to the heart of the situation both of religious properties and of the divestment question; I believe it's likely that the religious orders in placing these assets into trusts have all along been doing so in order to ensure the institutions continue to serve people for as long as possible in the manner they believe is best for their communities.Peregrinus wrote: »Actually, the transfer of the assets of religious orders into educational, etc, trusts has been ongoing since the 1980s, and it has largely been driven by demographic considerations; vocations basically fell off a cliff in the 1970s and have kept falling, with the result that in time the orders couldn't staff, and then could even manage, the institutions they had established. Hence the transfer to lay-led trusts which share the general vision of the order, but can operate independently of it (and can therefore operate when the order has disappeared entirely). And of course this problem was thirty or forty years in the coming, so there was plenty of time to plan how to manage it.
That's not to say that there is no instance in which the transfer of a property to a trust wasn't accelerated by the knowledge that it might be a risk from compensation claims in the future. But anyone chasing the property, and seeking to get the transfer set aside, has to find evidence showing that this actually was the case in relation to the property they are chasing, which is not a trivial matter to show.
Two other thoughts occur to me:
First, educational trusts running schools enjoy the same constitutional protection against "diversion" under Art. 44.6 as churches do. But trusts running hospitals, residential homes, etc, etc do not. So if it is right that church property is protected by Art 44.6 from being seized to satisfy a civil judgment, then by transferring properties of that kind to charitable trusts the religious orders may actually have weakened whatever protection that the properties enjoy.
Secondly, whatever the motivation for the transfers, they do seem to have been genuine transfers.
In short, most of the assets that were transferred to educational, etc, trusts, are probably assets that are not of much interest to the state. As long as they operate as schools, hospitals, and such they don't generate any return for the owners. If they cease to operate as schools, etc then either you have some very angry voters, or the State is going to have to find the money to open replacement schools, etc.0 -
I don't think there's any evidence the word 'denomination' is used for any reason at all; I would still say that it is up to the Courts to decide what does or does not constitute a 'religious denomination'.That is basically the same as my interpretation now. The word denomination is used in the Constitution to prevent a Henry VIII type sleight of hand which seized property from one denomination and gave it to another, while still saying the property remains in the hands of "the church". It clarifies that an individual denomination can be the owner of its own property.
That is very different to saying that only self-described "denominational" churches are covered by a blanket immunity.
I was less thinking of the status of the pastor and more of the status of the Church; being a registered charitable organisation might be considered characteristic of a religious denomination, and loosing that characteristic as a result of commercial activity might call into question the religious nature of the fellowship. I'm not saying this is a definitive requirement for a religious denomination, but that it is something a Court might consider in determining if something were a religious denomination.TThis is a good point. But...just because the pastor of a church is convicted of a fraud, that does not mean that the church ceases to exist as a religion. AFAIK the congregation of VCF were still believers, in good faith, but they were duped.
I don't think the Revenue Commissioners withdrew their status as a punishment for perceived improper behaviors; I think they withdrew it because their commercial activities surpassed their charitable activities in financial terms.From the perspective of many outside it, the RCC and its congregation are in the same position, except that they still have the charitable status. Arguably, the ongoing series of abuse scandals, cover-ups, homophobic lobbying, misogyny etc is enough to warrant the revenue commissioners withdrawing their charitable status.
Of course; I simplyu think that charitable activity and status might be considered indicative, if not definitive, of the nature of a grouping such as a religious denomination.However, this would not affect the RCC having the status of a church in terms of the Constitution. The Constitution does not place a value judgement on any individual denomination, but it protects any individual assets from being devoured by any other denominations that might become more especially favoured by the State.
What the revenue commissioners consider to be "a charity" is a separate issue to the question of what is "a church" in normal parlance.
I'm not, I'm saying the church has already stipulated its consent to a new use by entering into an agreement, but I think Peregrinus has already set that out well, including your idea about redress compensation, though absent my own opinion that as a debt not secured on any church properties, it would to my mind not be recoverable from Church properties.TAgain, this is very different to saying that church property cannot ever be seized. You are now saying that if money is owed as part of a debt, church property can be seized. So that is similar to the situation pertaining to the property rights of any private citizen.
I think Peregrinus has addressed all of this perfectly well, including the historical aspect of the provisions.So yes, I do agree with this definition of "divert", but it brings us right back to square one; ie the church having no special property rights compared to the private citizen. Given that seizing property by the crown or state using military might is nowadays frowned upon, whether seized/diverted from the private citizen or the church. With CPO's, this is the exception where the state can seize property, provided it also pays compensation. But all the examples you have given have been land for public works, or some works needed for public infrastructure. I don't see any difference there between the treatment of property belonging to church or to private citizens.0 -
Why the whole abuse repatriation thing happened. Something along the the lines of CAB should have been set up seize all schools and places of worship from the catholic church and them made tenants of the state. The state had their part to play in how long the abuse went on, and they have a role in paying compensation, but the church have a bigger part and their compensation bill dictates.0
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I think that's right. And whether you think they saw the threat to the continued use of the properties for those purposes as coming from litigation by abuse victims or from their own demographic decline, the outcome would be the same; they would have a reason for transferring the properties to continuing trusts.Which I think goes to the heart of the situation both of religious properties and of the divestment question; I believe it's likely that the religious orders in placing these assets into trusts have all along been doing so in order to ensure the institutions continue to serve people for as long as possible in the manner they believe is best for their communities.
Which means that showing that any particular property was transferred to defeat the claims of abuse victims will be tricky. Not necessarily impossible, but certainly tricky.
(It's worth nothing that lots of orders against which few or no abuse claims have been brought have been transferring their assets to lay trusts in this way.)0 -
beliefs aside
The church is part of Irish heritage and deserves protection
Why? And as to the church being part of Irish heritage, shouldn't we just be bringing back Lugh worship in that case? An authentically Irish celtic god, one of our very own.
As regards the church being part of Irish heritage, it's amazing how secular the island was up until 150 years ago, about 20 years after the rcc got their hands the levers on mass education. While the majority of the population held a nominal alleigance to Rome, the Irish church was almost an independent entity for most of the last 1,000 years and outside of the religious orders most people had very little to do with religion on any basis other than a vaguely defined belief in god and the baby Jesus (this was common around the whole of Europe until the printing press made books affordable and the reformations made vernacular bibles common).Here we go here we go here we go!
parents have abused children too.....Oh hold on, lets say the family is not part of culture too?
The problem within the church of child abuse, as you well know, is not the simple fact of the ubiquity of it (though the fact that patriarchical sexually-controlling religions have a greater tendency towards sexual and child abuse is in itself frightening) but that the church have for years engaged and are still engaging in pracitises of protecting the guilty, making the innocent look guilty, and not paying the proper compensation for both the church's crimes and those of its agents (i.e. priests, nuns, monks and other persons within the church). The fact that, after all that has come out, the church is still trying to brazen it out and evade the law of many lands is the real problem currently with the church abuse scandals.0 -
The Redress Board pays out the claims. If the State has paid its share to fund the Redress Board, but the religious denominations primarily responsible for the abuse have not, then those denominations owe a debt of money to the Redress Board. Otherwise the taxpayer has to fund the shortfall. The State is then entitled to recover that shortfall.Peregrinus wrote: »Yes, subject to two important qualifications. First, it’s not a debt to the State; it’s a debt (or a large number of individual debts) to individual victims of abuse. So the State can’t sue to recover redress compensation. And, secondly, it’s not a debt even to the victims until the victims sue, and get judgment against the religious orders. Prior to that point it’s just a claim, or a potential claim.
I agree we don't know exactly. There is a lack of transparency. But that is different to saying there is a constitutional barrier preventing the State from collecting the money and/or seizing property in lieu of any money owed.Peregrinus wrote: »And we also don’t know, do we, if the religious orders are even in breach? Did the agreement specify a timescale for property transfers, and has that timescale been met? I don’t know the answers to questions like that. But without knowing that kind of thing, it’s impossible to say whether the State could succeed in an action against the religious orders.
Its worth remembering at this point that the divestment of schools is central to this whole issue. Its not just some obscure legal argument with no practical relevance. If the State were to seize some schools in payment of a debt, then the Dept. of Education would hold a competition for patronage in the same way they do for brand new schools. If the patronage changed, the school would continue to operate with the same number of school places, but under new management and with a new ethos.
On the subject of the Trusts, you said..
If you take the examples of two trusts I gave earlier. Let me just say first that I am not necessarily saying that all the congregations/denominations involved owed money for redress, though I think it likely that at least some of them did.First, educational trusts running schools enjoy the same constitutional protection against "diversion" under Art. 44.6 as churches do. But trusts running hospitals, residential homes, etc, etc do not. So if it is right that church property is protected by Art 44.6 from being seized to satisfy a civil judgment, then by transferring properties of that kind to charitable trusts the religious orders may actually have weakened whatever protection that the properties enjoy.
Secondly, whatever the motivation for the transfers, they do seem to have been genuine transfers. The schools, hospitals, homes etc really do not belong to the religious orders concerned. So if the State does take them in satisfaction of sums due, that is not done at the expense of the religious orders, but at the expense of the educational, medical, etc trusts.
Which means, of course, that once the properties are gone the trusts have no further purpose, and will fold. And in order to realise any value from the assets they have seized the state will have to close the schools, hospitals, care homes, etc and sell the land and buildings. Which, of course, just means that someone will have to open other schools, hospitals, care homes, etc. And we know who that someone will be, don't we?
One Trust was formed in 2008 and one in 2009. After the Redress board was set up in 2002, and after a more than expected number of victims came to give their traumatic verbal accounts to that Board over the following couple of years. So these Trusts were set up just when the full scale of the abuse and its potential cost was becoming known. Not in the 1980's as a result of declining vocations... the property belonging to some of the most abusive offenders such as the Christian Brothers was transferred into various trust funds. So we have the likes of Edmund Rice Trust and Le Cheile trust being the beneficial owners of property, and these trusts themselves have committed no crimes.
These two trusts list between 50 and 100 secondary schools each, many of them are so-called "private schools" (although still mostly state funded) with extensive playing fields etc..That's a substantial property portfolio.
If some of these were divested, there would be no overall loss of school places, just a change of ethos.
As they both appear to control schools only, and not hospitals, they won't have any less constitutional protection than the original congregations had. Also, in a situation where they have mixed in the property of various congregations into one portfolio owned by a single Trust, they may think that any liability attached to the original owner cannot be separated out, or tracked directly to the new owner. Similar to the principle of money laundering.
However, as already pointed out, if the Trust "came into equity" as a means of hiding it from the abuse compensation claims, then the Trust is not necessarily the rightful owner of that property.0 -
Peregrinus wrote: »Henry VIII didn’t take the property of one denomination and give it to another. He took monastic property and dealt with it as he pleased. Some he kept for the State, much he handed out to local bigwigs to secure their loyalty and ensure that they bought into the English reformation, and some he handed to dioceses, schools, colleges and the like. That last category was much the smallest...
So, no, if you think Art 44.6 is directed against a repeat of the Henrician reformation, then it
its not about preventing the state from taking the property of one denomination and giving it to another. At a minimum, it’s about preventing the State from taking the property of any denomination, no matter what they do with it afterwards. Absolam and I disagree about the extent to which it prevents parties other than the state from seizing church property.
Dev has been mentioned a few times in this thread but, actually, he has nothing to do with this. And the English version came first. The “diverting the property” wording in the 1937 Constitution wasn’t dreamed up by Dev; it was copied from the 1922 Constitution (Art. 8),which in turn took it from the Anglo-Irish Treaty of 1921 (Article 16), which copied it from the Government of Ireland Act 1920 (s. 5), which copied it from the Government of Ireland Act 1914 which copied it from the Home Rule Bill of 1893 (s. 4). So not so much Dev, then, as Gladstone. And, if we’re honest, not so much about protecting the position of the Catholic church as about protecting the position of minority churches.
(And, for the record, all the stuff in Art. 44 about the rights of churches to run schools, and the rights of students to attend publicly funded schools without receiving religious instruction? None of it is Dev’s. It all goes back to the Home Rule Bills of 1893 and 1886.)
That is interesting alright. It ties in with the Stanley Letter and the attempts by the British govt. around that time to set up a 32 county multi-denominational free national school system.
Also I think there would have been a justifiable fear at the time that an independent Free State would attempt to "make right" previous wrongs.
For example it would seem fair enough to me that the State would seize either Christchurch Cathedral or St Patricks Cathedral from the CoI and give one of them to the RCC. I think the Pro-Cathedral in Dublin was only ever meant to be "provisional" so in the glory years of the 1950's when Archbishop McQuaid had a major political influence, he was perhaps not too bothered about this issue because he expected that a new cathedral would be built, whose magnificence would eclipse both of the CoI ones. But now that looks unlikely ever to happen. And the Constitution does prevent the State from making that transfer without the agreement of the CoI.
So this is a good example of what that Article 44 really means in practical terms.
AFAIK the State does not place CPOs on the property of private citizens except when the land is needed for works of public utility, which is always for the common good. So maybe you are suggesting that some day CPOs might be extended to privately owned lands wanted "not for public works, but still for the exigencies of the public good" but this could not happen with church owned lands. That is a highly obscure, theoretical and inherently self-contradictory proposal. I can't think of any practical example where this could happen.Peregrinus wrote: »I think the difference is that the grounds on which the State can CPO religious/educational property are constitutionally restricted. The Oireachtas cannot pass a law allowing religious/educational property to be compulsorily purchased for anything other than “necessary works of public utility”. Whereas there is no similar restriction on legislation providing for the compulsory acquisition of other property. Under Art 43 the State can’t abolish private property outright, but it can “delimit by law” the exercise of property rights “with a view to reconciling their existence with the exigencies of the common good”.
In the case of CAB seizing property from criminals, that is done for the public good, but not for the purposes of "public works" because they sell the property after seizing it, without ever doing any "works". I suppose this is possibly the one difference in the treatment of churches compared to the private citizen. Churches and educational institutions are immune to the activities of CAB, except where CAB are acting to collect an actual debt. The property cannot be seized from a church (or a school) as a punitive measure, or just because it was originally acquired by the church/school criminal through the proceeds of crime.
Unfortunately, this takes us back to the Trusts. Unlike the original congregations, the Trusts themselves don't owe a debt for compensation, so they are immune to any asset seizure on those grounds.
But if they are protected by Article 44, as educational trusts, then the assets may be protected even if they are the proceeds of crime. So the congregations could openly admit they hid the assets in the trusts to avoid paying a debt of compensation.
If this was the case, the Constitution would be overruling the normal rules of equity and the necessity of coming into it with "clean hands". A very unsatisfactory situation.0 -
Only if the denominations have committed to providing funds that they haven't subsequently provided, which we don't know to be the case. If for instance, the Redress Board has paid out more than expected, and exceeded the amount agreed in the Congregational Indemnity Agreement, then the State has already indemnified the denominations; it has specifically and legally excluded the denominations from picking up the shortfall.The Redress Board pays out the claims. If the State has paid its share to fund the Redress Board, but the religious denominations primarily responsible for the abuse have not, then those denominations owe a debt of money to the Redress Board. Otherwise the taxpayer has to fund the shortfall. The State is then entitled to recover that shortfall.
It is relevant to convincing the electorate that the Constitutional barriers should be removed though; if there is no money owed and no need to remove the Constitutional protections, a lot of people would likely think there's not a lot of point in spending money to have a referendum to remove them.I agree we don't know exactly. There is a lack of transparency. But that is different to saying there is a constitutional barrier preventing the State from collecting the money and/or seizing property in lieu of any money owed.
Not necessarily central; there's good reason to think that those schools would go to patrons with the same or a similar ethos, based on the information received from parents in the earlier discussion on the School Patronage thread. The net result (from a school point of view) might well be simply moving from one Catholic patron to another, or even the same one, simply no longer owning the property.Its worth remembering at this point that the divestment of schools is central to this whole issue. Its not just some obscure legal argument with no practical relevance. If the State were to seize some schools in payment of a debt, then the Dept. of Education would hold a competition for patronage in the same way they do for brand new schools. If the patronage changed, the school would continue to operate with the same number of school places, but under new management and with a new ethos.
If the State doesn't close the schools, it won't realise the value of the assets; so where will the money for the Redress Board come from? If it has to come from somewhere else, then seizing the assets of the congregations doesn't serve the Redress scheme at all, it's just a land grab from the religious. Welcome back Henry.On the subject of the Trusts, <...> there would be no overall loss of school places, just a change of ethos.
The principle is "He who comes into equity must come with clean hands"; coming into equity is not the act of acquiring property, it is the act of seeking an equitable remedy before a court. So long as the Trust has not acted improperly they have clean hands when brought to equity, though arguably the State by changing the law specifically in order to obtain the Trusts assets might well be considered to be coming to equity with unclean hands, intending to profit by it's own wrongdoing.However, as already pointed out, if the Trust "came into equity" as a means of hiding it from the abuse compensation claims, then the Trust is not necessarily the rightful owner of that property.0 -
The sum of the notion is that the degree to which the State can CPO properties not belonging to religious denominations is limited only by law, but the degree to which the State can CPO properties belonging to religious denominations is limited by the Constitution. The former can be altered by the Oireachtas, the latter can only be altered by plebistice.AFAIK the State does not place CPOs on the property of private citizens except when the land is needed for works of public utility, which is always for the common good. So maybe you are suggesting that some day CPOs might be extended to privately owned lands wanted "not for public works, but still for the exigencies of the public good" but this could not happen with church owned lands. That is a highly obscure, theoretical and inherently self-contradictory proposal. I can't think of any practical example where this could happen.
I think you're confusing yourself by thinking in terms of 'seizing'. CAB is empowered to take possession of assets that are derived or suspected to derive from criminal conduct; as proceeds of crime they are not the lawful property of the possessor. It is not empowered to act to collect an actual debt; in the case of a debt, an execution order is required from a Court which directs the Sheriff or County Registrar to seize goods and sell them in order to raise the amount of money owed. Neither the CAB nor the Sheriffs or County Registrars are empowered to take punitive measures against anyone.In the case of CAB seizing property from criminals, that is done for the public good, but not for the purposes of "public works" because they sell the property after seizing it, without ever doing any "works". I suppose this is possibly the one difference in the treatment of churches compared to the private citizen. Churches and educational institutions are immune to the activities of CAB, except where CAB are acting to collect an actual debt. The property cannot be seized from a church (or a school) as a punitive measure, or just because it was originally acquired by the church/school criminal through the proceeds of crime.
I don't think so; first and foremost, there's no reason to imagine the assets are the proceeds of crime. It's not enough to simply to be a criminal (not that the denominations are criminals) and also possess properties; the latter must be the fruits of the former. And if that is the case (and to be clear, there's absolutely no reason to think it is), then the properties are not the lawful possessions (or property) of the denomination, and can be confiscated.Unfortunately, this takes us back to the Trusts. Unlike the original congregations, the Trusts themselves don't owe a debt for compensation, so they are immune to any asset seizure on those grounds.
But if they are protected by Article 44, as educational trusts, then the assets may be protected even if they are the proceeds of crime. So the congregations could openly admit they hid the assets in the trusts to avoid paying a debt of compensation.
Of course, the Constitution overrules all other law, so the maxims of equity are subject to it. In this case though it doesn't arise anyway; if the Trust did no wrong, it comes to equity with clean hands.If this was the case, the Constitution would be overruling the normal rules of equity and the necessity of coming into it with "clean hands". A very unsatisfactory situation.0 -
SFAIK it works like this:The Redress Board pays out the claims. If the State has paid its share to fund the Redress Board, but the religious denominations primarily responsible for the abuse have not, then those denominations owe a debt of money to the Redress Board. Otherwise the taxpayer has to fund the shortfall. The State is then entitled to recover that shortfall.
There isn’t a Redress Board which receives money from (a) the State and (b) the religious congregations, pools it and then makes compensation payments to victims who apply. Rather, the redress board is the State, just like the Guards or the Board of Works or the Department of Education. It’s the department of the public service whose job it is to assess claims for compensation for abuse in residential institutions and arrange payment of the amount awarded. 100% of the amount awarded comes from the Central Fund, like any other government expenditure.
This arrangement has been set up so that the victims don’t have to go through adversarial court proceedings to establish the fact that they were abused and the extent of that abuse, which would be traumatic in most cases and difficult or impossible in some. There would also be endless argument in each individual court case about the respective degree of responsibility of the state and the particular religious order concerned - paradise for lawyers, but of no benefit to victims.
So, the State makes a deal with the religious orders - you chip in an agreed amount towards the overall cost of compensating victims, and we will pick up 100% of the cost of payments to victims.
We’re now at the point where the payment of compensation is largely complete. The State has picked up 100% of the cost of this and has indemnified the religious orders against any liability (to abuse victims) which they might have, in return for which the religious orders agreed in 2002 to transfer €128 million in cash, property and the provision of counselling services.
At the time, €128 million was the State’s estimate of 50% of the cost of providing the compensation. But the agreement was not that the religious orders would pay 50% of the cost; it was that they would pay €128 million
An I am guessing that the reason for this was as follows; if the religious orders and the state were each to pay 50% of whatever compensation might be awarded then, logically, they should both have had the same degree of control over the process of awarding compensation. It doesn’t make sense for the state to have the final say in agreeing the amount of compensation to be paid, but only have to pay half of what it might agree to, with the religious orders bound to pay the other half of whatever the state might agree to. If they are to share the risk on the final amount of compensation, then they should also share the management of that risk.
So the choice was between (a) the religious orders pay a fixed sum, and the state then has total control over agreeing the final amount of compensation and bears both the upside and the downside risk should this be more or less than projected, or (b) both sides agree to pay 50% of the compensation bill, and the Redress Board becomes a joint church-state operation.
I can think of two reasons why option (b) might not look so good. First, victims might have less confidence (or no confidence) in a compensation scheme partly controlled by the religious orders, and might feel they had no choice but to sue in the courts, and the whole point of the deal was to avoid them having to do this. Secondly, the religious orders aren’t bottomless pits of money. If the compensation bill was high enough, a point would be reached where the only assets they would have to cover their 50% share would schools, hospitals, nursing homes and the like; these assets can’t be turned into cash without huge costs falling back on the state. So they might end up ceding a signficant degree of control over the process to the religious orders in return and still end up, in the heel of the hunt, bearing most of the compensation bill, indirectly if not directly.
Whatever the reason, they went with the fixed sum agreement.
And, of course, it didn’t work out well. The amount of compensation awarded vastly exceeded what the state had projected in 2002. Hence in 2009 there was a demand to increase the religious orders’ contribution.
Legally, the State was in a weak position. They had done a deal - a legally binding deal. While you can get contracts set aside for fraud, duress, undue influence and the like, there was no realistic chance of the State succeeding in doing this. There was no fraud. The State had access to the best available legal and professional advice when it made the 2002 deal. Etc, etc.
Under political and public pressure, the religious orders did offer an increase in their payment, to €348.5 million, but two points have to be borne in mind. First, this was a voluntary offer. They were not obliged to make it and, unless it is formalised in a contract and something is given in return (which hasn’t happened) they can’t be compelled to follow through. The State has in fact rejected this offer, and discussions have continued on and off since then about the terms of any second contribution. Secondly, the offer explicitly included €235.5m in property, which now would be worth considerably less than that. (Indeed, the increased offer was only possible partly because the religious orders’ properties had appreciated so much since 2002. Now, of course, they have depreciated again.)I agree we don't know exactly. There is a lack of transparency. But that is different to saying there is a constitutional barrier preventing the State from collecting the money and/or seizing property in lieu of any money owed.
Yes. But the question of whether there is a constitutional objection to the state recovering money by taking and selling the assets of religious orders doesn’t arise unless the state has a right to recover money in the first place. And so far as I can see the only right of recovery which the state might have is for the unpaid amount of the original agreement covering €128 million. I don’t know how much (if any) of that amount remains unpaid. I also don’t know which of the 18 religious orders who were party to the agreement have failed to pay or transfer what they agreed to pay or transfer, and I don’t know whether those orders have assets that are worth pursuing. The subsequent offer, in 2009, to increase this amount was a voluntary offer which the State did not accept and it can’t be enforced by the state because it hasn’t yet been turning into a binding agreement.
But none of that would raise even a shilling to cover compensation paid to abuse victims, would it? (Unless you are proposing that the state should auction off the patronage ;-)) A change in patronage might be desirable for other reasons, but I think abuse victims could reasonably take the view that the proper response to their plight is not to treat it as an opportunity to advance a campaign to rebalance the patronage distribution of Irish schools.Its worth remembering at this point that the divestment of schools is central to this whole issue. Its not just some obscure legal argument with no practical relevance. If the State were to seize some schools in payment of a debt, then the Dept. of Education would hold a competition for patronage in the same way they do for brand new schools. If the patronage changed, the school would continue to operate with the same number of school places, but under new management and with a new ethos.
The Le Cheile Trust was formed in 2009, but was in fact announced in 2004, at a time when SFAIK it was generally thought that the indemnity agreement had settled compensation matters. In any event,, while there are 18 religious orders who are party to the indemnity agreement and 14 religious orders whose former schools are now held by the Le Cheile Trust, the overlap between those two lists is only two orders (the De la Salle Brothers and the Institute of St. Louis). And I don’t know whether those two orders have any outstanding obligations under the 2002 agreement.On the subject of the Trusts, you said..If you take the examples of two trusts I gave earlier. Let me just say first that I am not necessarily saying that all the congregations/denominations involved owed money for redress, though I think it likely that at least some of them did.
One Trust was formed in 2008 and one in 2009. After the Redress board was set up in 2002, and after a more than expected number of victims came to give their traumatic verbal accounts to that Board over the following couple of years. So these Trusts were set up just when the full scale of the abuse and its potential cost was becoming known. Not in the 1980's as a result of declining vocations.
But let’s assume they do. You might then possibly argue that the De la Salle Brothers and the Institute of St Louis transferred their schools to the Trust to avoid liabilities under the 2002 agreement, but that’s not shown simply by pointing to the fact that the transfer happened in 2009. Twelve other orders, with no such liabilities, transferred their schools to the same trust at the same time. And in the years before and after, other religious orders (with no liabilities under the 2002 agreement) made similar transfers; Loreto schools to the Loreto Trust in 2003; Holy Ghost schools to the Des Places Educational Association in 1999; Missionaries of the Sacred Heart to the Ceist Trust in 2014; and so forth. If all these orders had good reasons to make such a transfer, then it’s entirely possible that the same or similar reasons motivated the transfer of the De la Salle/St Louis schools. You’d need to show that that wasn’t the case in order to have any chance of setting the De la Salle/St Louis transfers aside.
And, for the record, I didn’t say that all the trusts were set up in the 1980s; just that the process of religious orders divesting themselves of their assets in response to institutional decline began then. Seminaries were the first to go; they are the first things to be affected by a decline in vocations. For example, the Christian Brothers seminary in Marino was opened to lay students as a teacher training college in the 1970s. (Though in fact the Brothers continued to own it, and SFAIK still do own it. It’s now the Marino Institute of Education.) In the 1980s, their other seminary in Dublin, St Helen’s, was closed entirely (and sold). Throughout the 1980s and 1990s, they were withdrawing from teaching, and later from management, of their secondary schools, and they got out of the national school business entirely. In 2007 they not only set up the Edmund Rice Schools Trust, but also the Edmund Rice Development Trust, to which they didn’t transfer any property. (It funds and runs development projects in other countries.) The argument that the establishment of the Edmund Rice Schools Trust was wholly disconnected from this process, and was undertaken purely to prevent schools from being seized and sold to meet compensation liabilities, is not going to get very far unless accompanied by some actual evidence.
There wouldn’t necessarily be even a change of ethos, since the ER Trust could presumably tender for the patronage position, and might well win, depending on the perceived pattern of demand. And, either way, there wouldn’t actually be any money generated, so this is not an effective way of recovering what is thought to be due to abuse victims.If some of these were divested, there would be no overall loss of school places, just a change of ethos.
True.As they both appear to control schools only, and not hospitals, they won't have any less constitutional protection than the original congregations had.
\Also, in a situation where they have mixed in the property of various congregations into one portfolio owned by a single Trust, they may think that any liability attached to the original owner cannot be separated out, or tracked directly to the new owner. Similar to the principle of money laundering.
If they do think that, they are very badly advised. Properties, unlike cash or shares or similar, always retain their identity and can’t be lost by mixing them in pooled accounts like cash can. The owner of Blackacre may own any number of other properties, but Blackacre will always be Blackacre, and will always once have been owned by the Christian Brothers. And if we have grounds for setting aside the transfer of Blackacre made by the Christian Brothers, we don’t lose those grounds merely because the present owner of Blackacre also owns Whiteacre, Blueacre and Greenacre, which he didn’t get from the Brothers.
Yes, but that’s a huge “if”. And the onus is on the person chasing the property to establish it through evidence.However, as already pointed out, if the Trust "came into equity" as a means of hiding it from the abuse compensation claims, then the Trust is not necessarily the rightful owner of that property.0 -
Actually, the State does CPO property for purposes other than "public utility". It probably doesn't happen a lot just a the moment, but it has happened on a large scale in the past - land purchase. The state compulsorily acquired huge tracts of privately-owned land, divided it into small-holdings and gave the small-holdings to former tenant farmers. That wasn't for "public utility", since the land all ended up in private hands. And of course at the time these provisions were being written into Home Rule Bills and Free State Constitutions and the like, land purchase was very much a live thing. (One of the first things the Free State government did was to widen the scope fo the scheme and throw a bunch more money at it.) The only reason we don't have land purchase nowadays is because the project has been completed.AFAIK the State does not place CPOs on the property of private citizens except when the land is needed for works of public utility, which is always for the common good. So maybe you are suggesting that some day CPOs might be extended to privately owned lands wanted "not for public works, but still for the exigencies of the public good" but this could not happen with church owned lands. That is a highly obscure, theoretical and inherently self-contradictory proposal. I can't think of any practical example where this could happen.
Similarly, putting a CPO on land in order to construct housing estates with houses which will eventually be privately occupied would not be for a "public utility", since the housing would be private. We could do this nowadays but we don't, since direct provision of housing by the State is currently not politically fashionable. (But it could become so again in the future, I suppose.)
So just at the moment Art 44.6 probably doesn't get in the way of any compulsory purchases that the State might like to make. But it could have done in the past and it could conceivably do so in the future.0 -
Peregrinus wrote: »An I am guessing that the reason for this was as follows; if the religious orders and the state were each to pay 50% of whatever compensation might be awarded then, logically, they should both have had the same degree of control over the process of awarding compensation. It doesn’t make sense for the state to have the final say in agreeing the amount of compensation to be paid, but only have to pay half of what it might agree to, with the religious orders bound to pay the other half of whatever the state might agree to. If they are to share the risk on the final amount of compensation, then they should also share the management of that risk.
So the choice was between (a) the religious orders pay a fixed sum, and the state then has total control over agreeing the final amount of compensation and bears both the upside and the downside risk should this be more or less than projected, or (b) both sides agree to pay 50% of the compensation bill, and the Redress Board becomes a joint church-state operation.
Or c) An Independent Redress board could have been setup to prevent interested parties influencing any of the claims or payments and with the remit to set the amount payable per 'party'.
No?0 -
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Well, how would that be different from a court? Would this really amount to setting up a special court to hear redress claims? Would anything be achieved by doing that?Deleted User wrote: »Or c) An Independent Redress board could have been setup to prevent interested parties influencing any of the claims or payments and with the remit to set the amount payable per 'party'.
No?
The benefit of the Redress Board system for claimants was that (a) the principle that the state and the religious orders were liable for abuse was conceded, and (b) there didn't need to be a case-by-case investigation into the respective responsibilities of the state and the relevant religious order for each instance of abuse, and (c) the claimant didn't have to worry that the particular religious order which had a liability to him might not have enough assets to meet all the claims on it. (He would have had no claim on the assets of any other religious order, typically.)
You could, I agree, have all that with an independent redress board - a "redress court", if you like. But to get all that I think you still have to cap the liability of the religious orders. There is no reason why they would simply concede that they had a liability in all cases, unlimited in amount; they would be better off keeping the option of dealing with each claim on a case-by-case basis.
In short, I think getting the religious orders not to contest liability on a case-by-case basis is closely tied to giving them a cap on the total liability they are thereby accepting. Without that, I don't think the redress board compensation scheme could have worked.0
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