How our top officials helped the Church make a fool of us all

THE following scenario is unimaginable, isn’t it? A religious brother, now in his 70s, is arrested and charged with a series of horrible crimes.

They include both physical and sexual abuse of the children in his care, who ranged in age from ten to 14.

The crimes with which he is charged cover a period of ten years in the late 1950s. Over 12 days in the criminal courts, grown men break down in tears at the sight of their abuser.

He is still powerful-looking, still arrogant, still confident in his denials. But their testimony tells, as one-by-one the men recount the terror and the pain they felt at his hands.

One phrase sticks in the jury's collective mind. "I can still remember the smell," one witness says, "as he pushed my head into the pillow."

It becomes clear as the trial goes on that this man operated with virtual impunity. Each of the witnesses revealed that they had confided in other brothers, but that it had never made any difference except in one case, where the witness was beaten by the brother superior for telling lies, while his tormentor looked on with a smirk. "And he raped me that night," said the witness, "before the welts had gone down on my bottom."

Eventually the trial ends. It takes the jury less than an hour to find the brother guilty and, as he is led away to begin a 12-year sentence, each of the men who had testified against him experience the beginnings of catharsis.

They resolve though that they will not let the matter rest there, and with the aid of a firm of solicitors, they set about lodging a series of high court actions against the guilty brother and the order who shielded him.

The solicitor who is handling their case is very confident that after the man has been found guilty, and with the accumulation of evidence that he was protected by others, there is every chance that the men will win their High Court action.

"But of course," he tells them, "in the old days we would have sued three co-defendants the brother, the order, and the state that put you all into that orphanage in the first place.

But under the indemnity deal that was done a few years ago, it is the state and the taxpayers that will have to pay. This won't cost the order, or even your abuser, a red cent, and we won't be suing them."

UNIMAGINABLE?

Unfortunately, it's not only imaginable, it's what would happen. The particular criminal case I outline above might never have happened (although the quotations are true, taken from other cases with which I am familiar). But if it ever happened in the future, the indemnity we have given to the religious congregations will fully protect them from any potential liability.

How did we manage to do that? I read one commentator at the weekend saying that the moment the Taoiseach apologised to survivors of abuse, and the moment a redress fund was set up, it was always going to involve large amounts of taxpayers' money.

According to this analysis if the opposition wanted to save taxpayers money they should have questioned the terms of reference of the redress fund.

That sort of analysis completely misses the point. As far as I'm aware, nobody objects to survivors of abuse being compensated and in large measure for the suffering they underwent. It was suffering caused by state neglect and by the inhumane attitude towards vulnerable children at the time. But it was suffering perpetrated by individuals, and all too often those individuals were shielded and protected by the orders of which they were members. Their deeds were covered up.

In any normal civil action arising from that kind of abuse, there would be three co-defendants the abuser, the order, and the state. Now there is only one.

In return for an amount of money (which I believe will only ever exist on paper, and very little actual cash) the religious orders and any individuals within those orders who have questions to answer have bought themselves an indemnity for all time and in all circumstances.

After the indemnity deal was done, in June 2002, the religious orders notified the Department of Education that there were 2,640 cases outstanding in which they and the state were possible co-defendants. In the absence of an indemnity, those 2,640 cases must have represented an appalling vista for the congregations.

Each one would have to be fought or settled. If the orders couldn't plead the statute of limitations, and depending on the severity and duration of the abuse involved, the orders could have been looking at damages running to hundreds of thousands of euros in each and every case.

If one were to take an average settlement of €100,000, the bill would have exceeded €250m. Legal costs would have doubled that to €500m. And that's not counting the cost of the never-ending publicity attaching to such cases.

So we should be very clear about one thing. It may well be that the congregations genuinely wanted, at some point, to make a contribution towards the redress due to victims. It may well be that they were at one point inspired by a feeling of contrition or penitence. But what they achieved would make the most mercenary capitalist proud. They made a contribution that involved little or no real sacrifice on their part, and in return they secured a deal that protected the vast bulk of their assets into the indefinable future.

They suckered the state. On behalf of all of us, a minister and a civil servant entered into a deal in principle that resulted in the state being exposed to a completely unlimited liability, and at the same time they precisely, to the penny, limited the exposure of the religious congregations.

Could they have done better? The answer is I don't know. They certainly caused no estimate of the exposure of the congregations to be carried out. They sought no audit of the assets of the congregations. At critical points in the negotiations, they excluded necessary legal advice.

In other words, they didn't try. They told the congregations how much they would accept, they told them how far the indemnity could go. And they told them all that before the negotiations even began.

I believe that evidence will emerge to show that they had plenty of advice, from officials in the Attorney General's office, that the course they were following was dangerous and wrong. Perhaps that was the very reason the AG's office was excluded.

And as for the AG himself, what are we to make of all the belated bleating on his part that he was left out of the loop? His colleagues spent last weekend pointing out to the media that his bleating was most muted when it should have been loudest, and he shares the collective responsibility for this bad deal whether he likes it or not.

As a result he is, to borrow a phrase he once used about someone else, something of a broken reed.