Government efforts to persuade religious groups to pay money for mother-and-baby home redress have run aground, after prolonged talks finished with only one “serious offer” of cash from an order of nuns.
Four years after talks began, a report delivered to Minister for Equality Norma Foley suggests the end point is rather like the 2021 starting point. The Bon Secours sisters committed again to paying, but there was little or nothing by way of cash offers from any other order.
Now, Taoiseach Micheál Martin is facing Opposition demands to force religious orders to make a contribution.
“When will the State finally flex some legal muscle when it comes to these religious orders?” Social Democrats deputy leader Cian O’Callaghan asked Martin in the Dáil. “Why are these orders not raided by the Garda? Why are their assets not seized?”
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Martin was non-committal, rejecting claims that ministers went “cap in hand” to the religious orders and now had nothing to show for it. “We will assess the report and see where we go next. One cannot simply go in and raid people.”
Lawyers say any attempt at compulsion would face huge legal hurdles and run the risk of flouting constitutional property rights. “Property rights can be regulated but they can’t be expropriated,” said a senior Dublin solicitor.
“An act of the Oireachtas imposing liability without judicial process would be manifestly unconstitutional. It would [be] Trumpian in terms of its level of unconstitutionality.”
For all the controversy that followed the October 2020 report of the commission of investigation, the grave harm caused to thousands of unmarried pregnant girls and women is well-established.
But most religious groups said they would not, could not or should not pay money into the €800 million State redress scheme for survivors.
The position taken by most religious groupings is similar to the stance of drug company GSK, formerly GlaxoSmithKline. Urged to accept “corporate responsibility and moral obligation” arising from clinical trails on 1,148 children without the consent of parents or guardians, GSK refused outright to pay reparations.
When then minister and now Green leader Roderic O’Gorman failed to make headway in talks, he hired former trade unionist Sheila Nunan in May 2023 with directions to strike a deal within six months. Nunan finally sent her report to Foley on Monday afternoon, the final day of her 23rd month as negotiator.
The Catholic orders in question are: the Daughters of Charity of St Vincent de Paul; Sisters of the Sacred Heart of Jesus and Mary; Our Lady of Charity of the Good Shepherd; the Sisters of Mercy; the Sisters of St John of God; and the Legion of Mary, a lay organisation.
Talks were also held with the Church of Ireland, which insists “it did not found, own or manage any of the homes”.
Excluding Bon Secours’ money and any prospective property transfers from other orders, taxpayers are on the hook for almost all redress costs.
So what happens next? Foley’s spokesman declined to comment and would not say when the minister will publish the Nunan report.
Whether the report embraces the financial assessment of orders’ resources that was carried out by accountants EY is unclear. Although EY conclusions remain under ministerial seal, public filings to the Charities Regulator show religious orders hold valuable assets.
Data for 2023 show the Sisters of Bon Secours Ireland had net assets of €106.8 million. The Daughters of Charity of St Vincent de Paul had assets of €88.9 million. The assets of the Our Lady of Charity of the Good Shepherd congregation were valued at €74.5 million. The Irish province of the Sisters of St John of God had €50.5 million in assets. The assets of the leadership of the Sisters of Mercy were valued at €35.4 million. The net assets of the Representative Body of the Church of Ireland were €632.5 million.
After the moral argument failed, the question now is whether the Government has any appetite to deploy legal means to extract contributions from naysaying religious. This is a matter for Foley in the first instance but is also one for Rossa Fanning, the Attorney General.
The Dublin solicitor, speaking on condition of anonymity, said there were many potential pitfalls. “The imposition of civil liability is a matter for the court,” he said.
“If you’re contending as a TD that the Oireachtas is going to pass an Act saying that ‘you are going to pay this because you are liable for that’, you’re breaching the separation of powers.”
Any historical legal claims also face challenges under the statute of limitations, which sets the maximum period for starting an action. The limit for breach of contract claims is six years from the breach, and the limit for negligence is six years from the date of damage. This is relevant to the mother-and-baby homes inquiry, which covered the years 1922-1998.
Decades after the last home closed, church reparations seem as far away as ever.
