Michael Woods TD, while he was Minister for Education etc., made an arrangement with certain religious orders as to the obligation of the orders to pay for the physical, including sexual, abuse of children in their care.
That arrangement, it transpires, was astonishingly generous to the religious orders. Their liability was limited to €127,000,000; the real cost of the liability will exceed €1,000,000,000.
The real cost has emerged from the Commission to Inquire into Child Abuse. The Commission has recorded the instances of abuse; looked at the general circumstances in which the abuse took place, and has determined the sum appropriate to compensate the individual victim.
The Government has said that it cannot, for legal reasons, (unexpressed and unexplained) re-open the arrangement with the religious orders.
Presumably, (we do not know) this is a suggestion that the “arrangement” is
a contractually binding agreement.
That suggestion is questionable. Firstly, such a “contract” would be very unusual. To see how unusual it would be, it is necessary to reflect on what a religious order is; generally, it is a group of people with fluctuating and varying membership but enduring through time. It would closely resemble a partnership. Often the property of the order would be held by trustees for the purposes of the order.
In principle, and it has been found to be so in the abuse cases, the order can itself be guilty of crimes committed by its individual members.
It is the criminal element that makes the arrangement very unusual. It is not often that a criminal seeks the protection of the courts to enforce an agreement absolving him/her from the consequences of criminal behaviour.
Secondly, the criminal parties to the arrangement with Michael Woods knew of their crimes; he, presumably, did not. Even if he did, an agreement to suppress the State’s obligation to prosecute crime or to relieve the perpetrators of liability in whole or in part for those crimes would be contrary to public policy. The agreement, far from being binding, would be unenforceable.
This would be just. To conceal their criminal responsibility was a deceit. Deceit in the making of a contract is a basis for claiming a repudiatory breach of condition.
In short, the Government, far from claiming it cannot, for legal reasons, re-visit the question of the liability of the orders to pay for the abuse should be claiming it cannot, for legal reasons, avoid re-opening the issue.
(The title to this post is a reference to a phrase popular in France during the Napoleonic era of propaganda – “to lie like a bulletin”).