Thursday 17 October 2019

Paying their fair share was never on the cards

Those who suffered as children are still suffering as adults (picture posed by model).
Those who suffered as children are still suffering as adults (picture posed by model).

Colin Murphy

In reality, the State's side was greatly sympathetic to the plight of the congregations

So, the Christian Brothers have made a commitment to making additional "reparation" for abuse, and the Government has called for a "substantial additional contribution" from the congregations. But additional to what?

The original indemnity deal was valued at €128m. The suggestion has been that this was an amount the congregations contributed to the cost of the redress scheme, for which they received an indemnity. This is spin.

The congregations' contribution to the cost of the scheme was far less than €128m, but the congregations successfully sought to have various other monies, assets and projects included in the valuation of their offer and written in to the indemnity.

Department of Education documents, obtained under Freedom of Information legislation, show that the congregations, represented by CORI, early on in the negotiations insisted that their contribution be seen not as compensation for alleged abuse, but as an extension of their pastoral remit.

Where this had implications for the language used in the legislation for the redress scheme, the state officials were happy to concede this. But the congregations used this approach to turn the function of the negotiations on its head.

The indemnity was a financial transaction, effectively an insurance scheme for the congregations against current and future claims of abuse. The State initially sought to have the congregations contribute an amount that was (poorly) estimated at half the cost. Officials recognised that, were CORI not to agree to an adequate contribution, the State could go it alone with the redress scheme, leaving the congregations to the peril of the courts.

Such hard bargaining was never followed through in practice. In reality, the State's side was greatly sympathetic to the plight of the congregations. Rather than pursuing a deal based on a proportionate sharing of the cost of the redress scheme, or based on some estimate of the congregations' ability to pay, the State ultimately conceded CORI's point that the redress scheme should recognise the congregations' historical contribution to Irish life, and not in any way compromise their ability to make such a contribution in the future.

Even as the estimated cost of abuse was spiralling higher, state officials fixed on the lower end of an original 50/50 split of the estimated total cost as the figure they would pursue. This was £100m, or €127m. But CORI made a "final offer" worth far less than that: they offered £20m in cash, plus £10m in property.

On top of this, they sought to have two pastoral projects included. One was a £10m education trust fund, to provide grants for further education for former residents of their institutions (something entirely consistent with their remit, and entirely unrelated to any indemnity they might wish to buy from the State). The other was a counselling service they had established for abuse victims. They valued this contribution at £5m, and much of it had already been spent.

The religious congregations own many properties where the services or institutions provided on those properties are run and funded by other organisations, either public ones (such as schools and hospitals) or charitable ones. In the 1990s, with falling membership numbers, the congregations transferred ownership of many such properties over to the organisations that ran the services. The losses to the congregations and gains to the organisations, in these cases, were largely paper ones; the effect was primarily one of greater administrative coherence.

Thus CORI sought to include such property transfers in the deal. In that "final offer", they included £10m of property, but also noted that they had previously transferred property to the value of £40m, and argued that this could be taken into account.

That offer was forcefully rejected by the then Finance Minister, Charlie McCreevy, and the Education and Science Minister recognised there was so little chance of the Government accepting it that he opted not to bring it to Cabinet.

Negotiations then stalled, and during this time there was a series of blunders by the Department of Education and Science. One unidentified leak, and one off-the-record briefing by the department, led to stories in the media that gave broadly accurate assessments of the State's position in the negotiations. The negotiations nearly collapsed, and a Department of Education official wrote a grovelling letter to CORI to apologise.

Then Michael Woods intervened. In two short meetings between Woods and his secretary general, John Dennehy, and the four-person CORI team (made up of Sr Elizabeth Maxwell and Sr Helena O'Donoghue, both Sisters of Mercy; Br Kevin Mullan of the Christian Brothers; and their lawyer, Donal O'Donnell), Woods made two crucial concessions. The first was to accept an offer from CORI that included no extra cash on top of that which had been previously offered, and rejected. The second was to agree to include previously transferred properties in calculating the congregations' contribution.

Ultimately, the congregations bought an indemnity for €25.3m in cash, plus €40m in property (totalling €65.3m); much of that property, however, does not have realisable value for the State, as it is tied up in existing services. Included in the wording and publicity of the deal were three additional components that made no contribution whatsoever to the cost of that indemnity to the State: €40m in past property transfers, €12.7m in an education trust fund, and a further €10m (much of it already spent) on counselling and other services.

The deal has improved slightly subsequently, as various properties were replaced by cash. The final contribution from the congregations to the actual cost of the indemnity, in cash and real property terms (not including previously transferred property), is likely to be somewhere in the region of €80m.

The percentage of the likely final abuse bill that the congregations will pay is thus not even 10pc; it is roughly 6pc of the estimated total bill of €1.3bn. But then, it was never about paying a share of compensation for abuse, in CORI's perspective at least: it was all about their "pastoral mission".

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