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Removing the consitutional protections for churches.
Comments
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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 -
Even if the RCC won the new patronage, the big difference is that the school property (buildings and lands) would be owned by the State. As such, the Dept of education would be in a position to set down conditions for enrolment and admissions policies etc..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.
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.
Also any future capital spending on extensions or new roofs etc..paid for by grants from the dept. would accrue to the State, not the Church.
Its an extremely complicated legal situation, and probably the RCC had teams of lawyers to put it into place.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.
Its beyond me to get through it, but the Attorney General should be examining the whole situation. I feel that somehow or other, this is the greatest asset laundering operation perpetrated since the foundation of the State. If it is deemed that trust funds or trusts were set up to hide assets from the State which would otherwise have had to be sold to pay compensation for victims of child abuse, then the AG should now decide on the best course of action.
Good point. So CAB is probably not relevant here at all. Hiding the assets is different to stealing the assets.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.
I don't know much about a second offer, but I think it would have been accepted if it had been genuine. It may have had strings attached (further indemnities), and the property involved may not have been clearly defined property with good title.Peregrinus wrote: »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.)
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.
Also bear in mind that although property values did crash after the original indemnity deal, but before they were handed over, they have been on the rise again over the last couple of years. Those convents and associated schools with extensive grounds, especially around the Dublin suburbs would be highly sought after at the moment. Waiting for property values to rise might explain a lot of the footdragging involving the RCC payments.
The connection between schools and the Redress Board compo is that the State pays for both out of the same kitty.
Again, one for the AG to sort out.Peregrinus wrote: »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.0 -
No. Setting admission policies, etc, is the prerogative of the patron, not of the owner of the land.Even if the RCC won the new patronage, the big difference is that the school property (buildings and lands) would be owned by the State. As such, the Dept of education would be in a position to set down conditions for enrolment and admissions policies etc..
If the political will is there, the State can change the rules so that patrons have less freedom on enrolment policies (and, in particular, the use of religion as an admission criterion is limited or forbidden altogether). But they don’t need to acquire the title to the school buildings to do that.
Legally, it’s not that complicated. The principles of law surrounding fraudulent preference (arranging your affairs to deny your creditors recourse to your assets) are well-established. The difficulty you usually come across in practice is not legal uncertainty but simply a lack of evidence. You may feel that this is the greatest laundering operation etc etc, but your feelings are not evidence. And one of the consequences of living in a democracy characterised by the rule of law is that, in any legal proceedings that it brings the state has the same burden of proof, and onus of proof, that any other party in legal proceedings has.Its an extremely complicated legal situation, and probably the RCC had teams of lawyers to put it into place.
Its beyond me to get through it, but the Attorney General should be examining the whole situation. I feel that somehow or other, this is the greatest asset laundering operation perpetrated since the foundation of the State. If it is deemed that trust funds or trusts were set up to hide assets from the State which would otherwise have had to be sold to pay compensation for victims of child abuse, then the AG should now decide on the best course of action.
Nothing we have seen suggests that the State has evidence of fraudulent preference here. Your feeling don’t seem to be evidence-based at all; it seems more probable that they arise out of wishful thinking – you hope that this situation can be exploited to advance change in the patronage system in Ireland. You’re not suggesting – rightly – that what you want to happen here would be of any benefit at all to the victims of abuse, or would do anything to alleviate the cost of compensating them.
It wasn’t accepted, I suspect, because the State hoped or thought that it could drive a harder bargain. It probably treated the religious orders’ offer as the opening move in negotiations and it’s response was to dismiss the offer and make a counter-suggestion of its own. (This would be fairly typical of how these things usually play out.) But the negotiations were derailed when the property market collapsed.I don't know much about a second offer, but I think it would have been accepted if it had been genuine. It may have had strings attached (further indemnities), and the property involved may not have been clearly defined property with good title.
Yes, on both sides. The State might be in no hurry to conclude an agreement on a further contribution because they calculate that, if property values recover, they’ll be in a better position to press for a bigger contribution out of the religious orders.Also bear in mind that although property values did crash after the original indemnity deal, but before they were handed over, they have been on the rise again over the last couple of years. Those convents and associated schools with extensive grounds, especially around the Dublin suburbs would be highly sought after at the moment. Waiting for property values to rise might explain a lot of the footdragging involving the RCC payments.
But we can’t get away from the fact that, in so far as the properties handed over comprise schools, etc, they really have no monetary value to the state, since they have to continue to be schools, or if sold they have to be replaced by other schools. It would be different if birthrates where declining and school roles were projected to fall; it would then be possible to take over a bunch of schools with the expectation that you could close some of them and turn at least part of the assets transferred into cash. But that’s not the situation we’re in.
If there are still convents and monasteries and seminaries and such with imposing buildings and spacious grounds then, yes, they could be sold to developers for cash if handed over. (And I would point out that none of those have been transferred to educational trusts – they have only received actual working schools.) But I don’t think there are many of those left, and quite possibly none at all in the hands of the 18 religious orders that we are speaking of here. Off-hand, can you think of any?
Which just underlines the point that the only way you can get more money for redress at the expense of the schools is by stopping the funding of the schools. Which the State is not going to do.The connection between schools and the Redress Board compo is that the State pays for both out of the same kitty.
(And which, if it was minded to do, it could do without acquiring the school properties. Couldn’t it?)0 -
In theory, the State could dictate the admissions policies of any publicly funded denominational school. But in practice, and under current equality legislation, they don't interfere with the ethos.Peregrinus wrote: »No. Setting admission policies, etc, is the prerogative of the patron, not of the owner of the land.
If the political will is there, the State can change the rules so that patrons have less freedom on enrolment policies (and, in particular, the use of religion as an admission criterion is limited or forbidden altogether). But they don’t need to acquire the title to the school buildings to do that.
More importantly though, if the ownership of the school was transferred (divested), the state could allocate the school to a completely different patron.
If the denominations were planning on paying with unspecified property + cash, then by waiting for property values to increase they would be paying less cash.Yes, on both sides. The State might be in no hurry to conclude an agreement on a further contribution because they calculate that, if property values recover, they’ll be in a better position to press for a bigger contribution out of the religious orders.
The properties transferred retain their full monetary value, but have a new owner. You might as well say that if one person gives their car to another as payment of a debt, that the car has no monetary value to the new owner because its still a car. Suppose the church decides to close a school and sell the site to a developer, and then spend the money on golden chalices. The state then has to purchase another site and build a new school.But we can’t get away from the fact that, in so far as the properties handed over comprise schools, etc, they really have no monetary value to the state, since they have to continue to be schools, or if sold they have to be replaced by other schools.
Whoever owns the asset chooses what to do with it. The State is obliged to "provide for" enough schools for the whole population. The RCC is not. It makes a huge difference which of them owns the school.
I'm not too well versed on who owns what. Perhaps the huge estates with farmland are all gone, but off-hand there seems to be a fair bit of land around the Goldenbridge area of Inchicore still owned by congregations or their trusts. Google aerial view here shows green areas owned by Oblate fathers and Mercy sisters. These apartments went on sale last year, on what seems to be part of the historical Christian brothers industrial school or mercy nuns site, but there are still various buildings and green areas left around the original site, including a school and a small chapel or church, and a cemetery. You could probably scan the map for green areas around other suburbs and find a lot of them were owned by religious congregations. Old cemeteries have been bulldozed before BTW. Usually some effort is made to relocate any bones dug up.If there are still convents and monasteries and seminaries and such with imposing buildings and spacious grounds then, yes, they could be sold to developers for cash if handed over. (And I would point out that none of those have been transferred to educational trusts – they have only received actual working schools.) But I don’t think there are many of those left, and quite possibly none at all in the hands of the 18 religious orders that we are speaking of here. Off-hand, can you think of any?
The Archbishop was also trying to close this school not far away. Not sure about the current situation with it.0 -
And what about property owned by Google ? Tesco, me, you ,etc?Fred Swanson wrote: »Would a referendum that removes all protections the church enjoys like how their property cannot be used by the state for projects like schools etc be ever possible to pass?
It would be a complete game changer in the whole school patronage game.0 -
Fred Swanson wrote: »part of the culture of defending child abuse? No thanks!
As has helping the homeless and poor, SVdP? , Gosl, Trocaire, etc0 -
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magicbastarder wrote: »yeah, but parents don't get away with covering it up.
yes they do get away0
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