Addressing the Dáil last week on the extraordinary indemnity deal that protects the assets of religious orders from the victims of abuse, the Taoiseach insisted that the details must be considered in the context of "a bigger issue", writes Fintan O'Toole.
That issue is the need to protect the orders from bankruptcy. "Was it," he asked rhetorically, "the wish of the State that all of the religious orders would essentially be made bankrupt? Was it the intention of the State that the organised life of religious orders would come to an end?"
His meaning was clear: the Government had decided that the taxpayer should bear the cost of redress for the victims of abuse in religious-run institutions, at least in part, because it wanted to protect the financial stability of the orders.
This may or may not be a good idea. But it is almost certainly an unlawful one. Article 44.2 of the Constitution says emphatically that "the State guarantees not to endow any religion". Along with the other articles dealing with religion, it lays down the basic ground rules for church-state relations in a republican democracy: on one hand, no interference with religious freedom and, on the other, no use of State money to prop up any church. By acting as it did to rescue Catholic religious orders from potential bankruptcy, the Government has surely broken these fundamental rules.
Which brings us to the attorneys general - Michael McDowell, who held the post at the time the deal was agreed, and Rory Brady, who does so now. The Supreme Court has found in both the X case and the cabinet confidentiality case that the attorney general has not merely a right but a duty to intervene when the provisions of the Constitution are being breached. Although appointed on the nomination of the Taoiseach, the AG is an independent constitutional officer. He is, in the words of Mr Justice Kingsmill Moore, "a great officer of State" and "it may be his business to adopt a line antagonistic to the Government".
This is not an academic question. If the deal is unconstitutional, it is invalid, and the general assumption that we are stuck with it is wrong. At the very least, however, it was surely Michael McDowell's responsibility to warn the Government before the deal was approved by the Cabinet and, if necessary, to test the question in court. Given the Taoiseach's open admission that the deal was intended, at least in part, to save religious orders from bankruptcy, it is surely incumbent on the current AG to refer the deal to the Supreme Court.
The constitutional prohibition on the endowment of religion is a separate question, of course, from the actual effect of the orders facing up to their moral responsibilities. The Taoiseach conjures up the spectre of vital services suddenly cut off, with fine church-run institutions being sold off to property developers. But we don't need the spectre. We've been living with the reality for many years now. Orders have had few qualms about closing schools and selling property to developers. Parents and students have, in a number of cases, been abruptly informed that they will have to go elsewhere because an order has received an offer it can't refuse.
The Taoiseach told the Dáil: "Assets held by religious orders, on foot of charitable trusts, would have to be used for those trusts."
This must have brought an ironic smile to the leadership of the National Council for the Blind (NCB). They were outraged just two years ago when the Sisters of Charity - the first order to actually use the indemnity deal - sold 14.5 acres on Merrion Road in Dublin, attached to a school for the blind, for more than €40 million, none of which was allocated for services for the blind.
When the NCB complained that the land was held in trust, the order was quick to dismiss the suggestion. "There is no trust which says that the sisters cannot sell the land at Merrion. The sisters own the land freehold."
In general, religious orders are often exempt from the accountability for the disposal of assets that is rightly imposed on lay charities.
The Sisters of Mercy, to take another example, has no trouble in allowing a private profit-making company, Copperway Limited, (€7.6 million in profits last year) to run a private hospital in the Mater in Dublin. The company's accounts note that its liabilities include a €15 million finance lease payable to the Sisters of Mercy. Does anyone seriously suggest that, if that lease were transferred to the State as part of a reasonable fifty-fifty compensation deal, the Mater Private would simply close down?
What might happen in some cases is simply that the State would take ownership on behalf of the public of privately owned institutions. In many cases, this would actually open up the possibility of improved services.
There is, for example, a huge unmet demand for multidenominational schools, yet we have had cases where the church has not allowed them to use empty church-owned school buildings. By scrapping a deal that offends the principles of our democracy and of morality, the public interest and the credibility of the church can still be rescued.