What's going on? How is it possible that the State did a deal with the religious orders which limited the exposure of those orders to law suits by victims of religious child-abuse, without the Attorney General being present?, writes Kevin Myers.
That's like buying a house without using a lawyer, when you already know that there's a boundary dispute with a neighbour, a public right of way through the living-room, death-watch beetle in the roof, a fresh-water spring beneath the kitchen-floor, and dry-rot in the hall.
With the agreement between the State and religious orders, the Irish people have bought a rotten house, and we did so without the protection of the primary law officer of the land, the Attorney General. He is the cabinet official whose duty is to give legal advice to the government and to protect the Constitution. That's his job. That's the very reason he sits in Cabinet, and why major Government decisions have to pass his supervision.
So how was it that Michael McDowell wasn't present when the final deal between the religious orders and the Government was reached? How could just two people, the then Minister Michael Woods, and his Department secretary general, John Dennehy, represent the Government in the vital meetings with the core group of religious representatives, which included a senior counsel? Given the preposterous disparity of strength, the real wonder is not that those representing the Government gave away so much, but that they didn't rezone Phoenix Park for housing and hand the lot over to the religious orders as well.
Colm Condon SC was Attorney General for eight years in the 1970s. On more than one occasion he had to warn the Government that certain proposals before the Cabinet were unconstitutional, and if there were any attempt to enact them, he would have to resign. He makes pertinent observations about this affair. "The Attorney General protects the Constitution. You can't properly make an agreement of that kind (between the religious and the State) without the consent of the Attorney General. I would like to know two things. Where was the agreement drafted, and who drafted it?"
We will take Michael McDowell at his word. It would, indeed, be a sorry day for Irish democracy if we couldn't accept a parliamentary undertaking from the former first law officer of the land, and now prime administrator of the system of justice. So, to return to Colm Condon's questions: How did this happen? In which Government office were the legal documents drawn up? Who drew them up? And why was Michael McDowell apparently excluded throughout?
We must certainly conclude that the deal did not have the authorisation of the Attorney General, if only because of its constitutional implications. And as Fintan O'Toole pointed out the other day, these are huge. Effectively, the State indemnity is serving as an endowment to the religious orders whose members were responsible for the abuse.
And if we were in any doubt about this, he quoted the Taoiseach's telling words in the Dáil. "Was it the wish of the State that all of the religious orders would essentially be made bankrupt? Was it the intention of the State that that the organised life of religious orders would come to an end?"
The State has no "intentions" about religious orders; otherwise it would have traditionally had policies about financing and raising recruits for them. Instead, the Constitution specifically forbids state endowments of any religious groups.
Moreover, the religious orders are free-standing institutions which, like Home Farm Football Club or the Irish Press, can exist one day, and be gone the next.
Most religious orders are going out of business anyway, and they have prospered remarkably well on the back of the land-boom: for the most part, they are hugely asset-rich. These are the assets which the State has walked away from, and - apparently - without proper legal advice.
If the Government has done a deal which is in violation of the Constitution, then it is no deal. It is worthless. And if that is so, then it's the duty of the present Attorney General, Rory Brady, to tell the Government that the terms that were agreed between the Minister and one civil servant and the representatives of the religious orders are almost certainly not binding in law; and that at the very least, they should be subject to Supreme Court review.
Already the indemnity clause has been invoked by the religious orders, and we, the Irish people, are paying for up to €200,000 to a man sexually abused at St Joseph's orphanage in Kilkenny. Brace yourself. This is just the beginning. We have no control over the size of the settlements, nor do we have any automatic rights of disclosure about the nature or size of the deals to come: and there are thousands.
For, notwithstanding the long-term existence of a virulent compensation culture in this country, often lawyer-led, the State has vigorously solicited for victims to come forward.
In a comparable mood of imbecilic fecklessness, the State then bought the rotten house of the Woods deal. As a consequence, we could well see a cataract of money sluicing out of the public purse, via the legal profession - where naturally much of it will stick - into the hands of people who say they have been abused by religious orders. There's absolutely no way of proving or disproving many of these allegations. We just pay. It is a financial, moral and legal nightmare.
Moreover, it might well be unconstitutional. It's time to find out.