The State deliberately excluded its legal advisers from crucial meetings, writes Mark Brennock
"The Attorney General and his office was involved throughout the entire period." The Taoiseach to the Dáil, February 11th, 2003.
"Two meetings took place, one in November of 2001 and another in January 2002, from which the Attorney General's office was excluded." Michael McDowell to reporters yesterday morning.
"I will continue to say for as long as I am around this House, or outside it for that matter, that it was a good deal." The Taoiseach yesterday.
"I wasn't present for those negotiations nor was anyone from my office and I'm not in a position to comment on whether he [Dr Michael Woods\] did the best deal or the worst deal." Mr McDowell yesterday.
There were more contradictions yesterday as details of the deliberate exclusion of the Attorney General and his officials from key negotiations leading to the controversial church/State deal on compensating child abuse victims became clear.
Amid the political storm surrounding this deal, it is important to remember what it was about. The intention was to give justice to the victims of what Enda Kenny yesterday called "a vile episode of a generally proud national history: the sadistic terror inflicted on children by their elders, their teachers, their carers, by the 'respectable' pillars of society, their State-funded, State-appointed betters. We betrayed them. We owe them," he said.
And while there was broad agreement that "we owe them", there was a sordid squabble in 2001 and early 2002 between church and State over how that debt would be paid.
While the abuse had been carried out in religious institutions by members of religious orders, the children were legally in the care of the State at the time. So the question of how much the church and State were each liable was at the core of the issue of who would pay.
The religious orders took this issue very seriously, bringing along a major law firm to fight their corner. The State, in response, chose to deliberately exclude its own legal advisers from crucial meetings at which the deal was agreed in principle. Talks with the religious orders by a State team which included an official representing the Attorney General reached an impasse in late 2001. Then the Minister for Education at the time, Dr Michael Woods, excluded this official from two meetings at which the deal was done in principle.
A Government spokeswoman last night repeated Dr Woods's line that this was designed to bring the religious back into talks for which their enthusiasm had waned. Why excluding the AG's office from the process was helpful in this regard has not been explained. However, it clearly worked.
Since the start of this year the Opposition, in particular the Labour Party leader, Mr Pat Rabbitte, has questioned whether the then Attorney General, Mr McDowell, was involved in striking the controversial deal. The Taoiseach and Dr Woods have constantly stated that Mr McDowell was involved at all times.
Yesterday the Taoiseach adverted for the first time to the fact that Mr McDowell's office had in fact been excluded from two crucial meetings. He did this a half an hour after Mr McDowell had told reporters about it.
Ministers, including Mr McDowell, have said the State was in a weak position to demand more money from the religious than they were prepared to give. Without a compensation scheme, each individual abuse victim could go to the courts.
Whatever the court decided on the question of who was liable, a victim who won an award could seek the entire amount from the State, if he or she chose.
In addition, the Taoiseach yesterday raised the prospect that seeking more from the orders could have bankrupted them and wondered whether this would have been an acceptable outcome.
So it was agreed that if the religious orders whose members were accused of abuse paid some €128 million into a compensation fund, the State would pick up the tab for the rest and agree to indemnify the religious orders against any future compensation claims from victims.
Opposition claims that the religious got away very lightly have grown as the estimated compensation bill has grown. If the bill rises to the €1 billion warned of by the Comptroller and Auditor General this week, they will have got away very lightly indeed.
Up to yesterday, Mr McDowell was being criticised by the Opposition either for overseeing and agreeing a bad deal, or paying no attention to its negotiation as he was too busy electioneering. His decision to give his own detailed account yesterday has made it clear that he was excluded, and had told the Taoiseach he was unhappy about this.
The Comptroller and Auditor General's report has also shown that before the Cabinet finally approved the deal, he had warned it might be a bad one.
Dr Woods repeated to RTÉ's Morning Ireland yesterday that the Attorney General had been involved at all times at the appropriate level. In direct response Mr McDowell said: "I'm not satisfied that that is correct."
Mr Ahern and Dr Woods's version is that the agreement was negotiated with the full involvement of the Attorney General. The version given yesterday by Mr McDowell was that it was not.
Indeed, after his office's exclusion from the talks and the bringing of an outline deal to Cabinet, Mr McDowell says he arranged to meet Dr Woods and the Taoiseach "and brought to Minister Woods's attention my unhappiness that what seemed to be very important decisions were being made without adequate legal input".
Dr Woods says no important legal matters were involved at all at the meetings at which his office was not present.
Mr McDowell then wrote to Dr Woods on January 31st seeking notes of all meetings he had had and details of proposals that had been accepted and rejected. This was to ensure his officials could understand what had gone on before offering advice. However, there were no such records.
On March 12th, after complaining that he had received no response to his January 31st letter, Mr McDowell was given a retrospectively written account of the negotiations.
We know from the Comptroller and Auditor General that when the final deal came to Cabinet in June 2002, at the last Cabinet meeting before the new Government was formed, Mr McDowell advised that the contribution of the religious could be seen as low and there was no mechanism to increase it should the cost of compensation rise from the €250 million to €400 million being talked about at the time.
The Cabinet went ahead and approved the deal anyway.
Sure enough, the C & AG has now advised that the compensation bill could rise to €1 billion. The Taoiseach - and indeed Mr McDowell - dispute this.
The State has been having difficulty extracting suitable property from the religious to make up their €128 million. It has rejected some €10 million worth as unsuitable and is still considering other properties.
The Minister for Education says he will demand cash if he doesn't get suitable property, but there appears to be no mechanism in the deal allowing him to set a deadline after which he can do this.
Mr McDowell says it was not "a wise decision" to exclude his office from what he sees as a crucial part of the negotiations. "If you're asking me whether the Attorney General's office was involved to an appropriate level at all times, the answer is that I have to candidly disagree with the former minister," he said yesterday.
He is careful not to say whether he thinks the deal was good or bad from the State's point of view. This is "arguable", he said at the weekend. Yesterday he said he couldn't say whether the deal was good or not as he wasn't there when it was done.
Today at the Public Accounts Committee, the deal will be examined further when TDs question the secretary general of the Department of Education, Mr John Dennehy, and a senior official of the Department of Finance about it.