2002 AGREEMENT:THE INDEMNITY element of the 2002 agreement between the State and the 18 religious congregations which ran institutions for children was unconstitutional, according to an article in the latest edition of the Irish Law Times.
Titled The Congregational Indemnity Agreement: An Unconstitutional Endowment of Religion, it is written by Eoin Daly, a PhD candidate at the faculty of law in UCC and a Government of Ireland research scholar in the humanities and social sciences.
He writes that the indemnity offended Article 44.2.2 of the Constitution, which states that “the State guarantees not to endow any religion”.
In 2002, and in exchange for contributing €128 million in cash and property to a State redress scheme for former residents of the institutions, the 18 congregations were indemnified by the State until the end of 2005 against any legal actions taken against them by the former residents.
December 15th, 2005, was the deadline for receipt of applications from former residents of institutions run by the 18 religious congregations at the Residential Institutions Redress Board.
On foot of the indemnity, €745,000 compensation was awarded by the High Court against the State following actions by three former residents of St Joseph’s orphanage in Kilkenny. It was run by the Sisters of Charity.
Mr Daly argues that “since this constitutional prohibition on the endowment of religion appears to prevent the State from subsidising a religious body, in whatever form, other than for a purpose which is constitutionally mandated, it must be interpreted as precluding a State indemnity for the liabilities of a religious body”.
He continues that “the Constitution cannot be read as mandating, implicitly or otherwise, an indemnity for liabilities of religious bodies which the State would otherwise not bear”.
Article 44.2.2 “must be interpreted as preventing the State from bestowing financial largesse upon favoured religious bodies, in whatever form; the congregational indemnity must be considered equivalent to a subsidy for religious bodies, and therefore as constitutionally unsound”, he says.
He says that “the aim of guaranteeing compensation to abuse victims is of course a legitimate one, but it does not necessitate an indemnity for those bearing liability for abuse”.
