Removing the consitutional protections for churches.

Fred Swanson

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Zamboni

Fred Swanson wrote: »

Would a referendum that removes all protections the church enjoys like how their property cannot be used by the state for projects like schools etc be ever possible to pass?

It would be a complete game changer in the whole school patronage game.

A sure ticket to a civil war.

dvdman1

beliefs aside
The church is part of Irish heritage and deserves protection

Fred Swanson

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eviltwin

I think it would probably succeed. Why shouldn't churches pay tax and be transparent? Surely those involved in the church would want that.

frostyjacks

I think the constitution is fine the way it is. The Church is part of our culture, leave it alone.

Second Toughest in_the Freshers

eviltwin wrote: »

I think it would probably succeed.

Ah now...

Fred Swanson

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dvdman1

Fred Swanson wrote: »

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Here we go here we go here we go!

parents have abused children too.....Oh hold on, lets say the family is not part of culture too?

expectationlost

its a constitutional chruch

the_syco

Zamboni wrote: »

A sure ticket to a civil war.

I'd doubt it. If worded correctly, you'd probably get it to be wanted by the people.

Not a NSA agent

Removing it wouldnt change culture or heritage so I dont know why that would be brought up. If the first thing you go to is tradition or culture then you dont have any actual reasons.

dvdman1 wrote: »

Here we go here we go here we go!

parents have abused children too.....Oh hold on, lets say the family is not part of culture too?

When parents join together and start moving parents around then we can compare them.

magicbastarder

dvdman1 wrote: »

parents have abused children too

yeah, but parents don't get away with covering it up.

MrWalsh

frostyjacks wrote: »

I think the constitution is fine the way it is. The Church is part of our culture, leave it alone.

The Constitution is hopelessly outdated and needs a complete rewrite.

These days most people have little use for the Church outside of it being a pretty background for the wedding pics and a gathering place for funerals. Culture changes and evolves, it is a constantly shifting construct.

I absolutely think the Church should have any special constitutional protections removed, it seems bizarre to me that anyone would think otherwise in this day and age.

lazygal

magicbastarder wrote: »

yeah, but parents don't get away with covering it up.

And they aren't moved around to abuse other families or don't take out insurance policies to indemnify themselves against claims or don't hold canonical inquiries where children are sworn to secrecy.

recedite

dvdman1 wrote: »

beliefs aside
The church is part of Irish heritage and deserves protection

Even if there was only one church, and even if that one true church was an important part of Irish history and heritage, that still would not mean it deserved this special immunity. If it genuinely owes money for compensation to abuse victims, and won't pay, then we should seize some of their property assets.
Govt. would have to call the referendum though, and they won't do that unless they think its going to be a popular move.

Cabaal

dvdman1 wrote: »

Here we go here we go here we go!

parents have abused children too.....Oh hold on, lets say the family is not part of culture too?

So all family members knowingly cover up child abuse and allow further abuse on non family members?

The Catholic Church in Ireland in league with the Vatican knowingly silenced victims and moved priests to allow them to abuse again,

Your comparison is deeply flawed,

Cabaal

recedite wrote: »

Even if there was only one church, and even if that one true church was an important part of Irish history and heritage, that still would not mean it deserved this special immunity. If it genuinely owes money for compensation to abuse victims, and won't pay, then we should seize some of their property assets.
Govt. would have to call the referendum though, and they won't do that unless they think its going to be a popular move.

It won't be a popular move, many TDs won't support it just like marriage equality. But it would pass.

When the campaign airs the dirty laundry of the church and refreshes people's memory's to the horrendous crimes carried out and the utter refusal to pay compensation the church won't be protected.

jank

Is the OP stating that the state should have the right to tell private citizens and organisations what it can and cannot do with its own property? What exact special conditions is he referring to?

Absolam

Cabaal wrote: »

So all family members knowingly cover up child abuse and allow further abuse on non family members?
The Catholic Church in Ireland in league with the Vatican knowingly silenced victims and moved priests to allow them to abuse again,
Your comparison is deeply flawed,

So all of the members of the Catholic Church knowingly cover up child abuse and allow further abuse on non church members?
If you're going to complain about flawed comparisons, you could at least try to make sure your own are consistent.....

Peregrinus

jank wrote: »

Is the OP stating that the state should have the right to tell private citizens and organisations what it can and cannot do with its own property? What exact special conditions is he referring to?

Most of the constitutional provisions dealing with religion (which are in Art 44) deal with religion, not churches - e.g.
- guarantee of freedom of conscience and the free profession and practice of religion
- prohibition on endowment of religion
- prohibition on the State imposing disabilities or making discriminations on the basis of religious profession, belief or status
- State aid for schools not to discriminate between schools under the management of different religious denominations, nor prejudice the right of any child to attend a school receiving public money without attending religious instruction

On the first three of these I don't think the the OP is calling for any change.

On the last, he might call for change, but I don't think it's the focus of the current thread.

When he talks about "all protections the church enjoys" I think what he's really challenging are the two provisions which deal with religious denominations, rather than religion:

- "Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes."
-"The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation."

And I think the real focus of his call is on the last point. He is suggesting, I think, that religious denominations shouldn't enjoy any special constitutional protection for their property; they should have the same protections as everybody else (under Article 43) - neither more nor less.

Is that right, Fred?

Absolam

Cabaal wrote: »

It won't be a popular move, many TDs won't support it just like marriage equality. But it would pass.

I'm not so sure. I don't know which I'd trust less, priests or politicians, when it comes to money, but I very much doubt there would be anything left to take from the Churches once the referendum was passed, which would make it a pointless exercise.
Additionally, 44(2,5&6) do serve a purpose; they prevent the State from suppressing religions by seizing their assets and preventing them from engaging in the activities of a religion. Any referendum that aims at increasing the States ability to suppress expression of faith, may encounter resistance from all sorts of quarters.

Cabaal wrote: »

When the campaign airs the dirty laundry of the church and refreshes people's memory's to the horrendous crimes carried out and the utter refusal to pay compensation the church won't be protected.

I imagine the Churches would be quick enough to point out that they haven't utterly refused to pay compensation; they've offered to pay €348.5 million, they had paid €70 million by July 2013, and were expected to have paid the bulk of what they owed by the end of that year. Not that that even approaches what they should pay, but that's a different matter.

robdonn

Absolam wrote: »

Additionally, 44(2,5&6) do serve a purpose; they prevent the State from suppressing religions by seizing their assets and preventing them from engaging in the activities of a religion. Any referendum that aims at increasing the States ability to suppress expression of faith, may encounter resistance from all sorts of quarters.

If a religious practise promoted human sacrifice, the state can step in to stop this and no amount of claims of "suppression of faith" would stop them. As long as a religion is practised within the confines of the law then they would have no issues. The government cannot stop a company from operating as it does unless they operate outside of the law. Religions can register as a business and they can receive tax relief on charitable donations, or they can register as charities themselves.

recedite

Probably worth posting the full Article 44 at this point;

1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.
2. 1° Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
2° The State guarantees not to endow any religion.
3° The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.
4° Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school. 5° Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.
6° The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.

On this last point (6°) there is no particular public "value" or "merit" in giving a church (or a "denomination" if you prefer) a complete immunity to having their property seized, if it is being seized justifiably.
I mean for example, if they owed a debt to the residential abuse redress scheme, or if they had taken out a mortgage on some property and were not making the repayments. Yet this is the interpretation that RCC have taken, and strangely the spineless politicians that are supposed to represent the public interest have accepted it. Even if they didn't owe money to the state, the divestment of schools in the public interest would still be justifiable where the state has been paying for salaries, upkeep and maintenance costs, building extensions etc.. for donkey's years.
But no matter what the RCC do, their property is apparently sacrosanct.

This constitutional article was obviously intended to prevent religious assets from being seized by the state for political or religious reasons, such as when Henry VIII famously set up his own denomination and then seized the RCC monasteries and all their lands for himself. Its fair enough to protect religions against that sort of thing.
However there are a couple of serious holes in the current RCC interpretation of Article 44.

1. As above, my interpretation above that it does not prohibit justified seizing of religious property where a debt remains unpaid is backed up by actual case law, unlike the RCC interpretation.
The fact that the State chooses not to seize the property of RCC, while at the same time appointed a receiver for the property of a minority church, which property has now been seized by the banks, is itself a violation of 2° The State guarantees not to endow any religion.

2. Instead of paying for the redress board indemnity deal in cash, the RCC paid an inadequate amount of cash (probably about €40M), and also threw in some property towards it. Some of the property they didn't even own, because they had already transferred it to charities.
But if we take their own interpretation literally and consistently, then it was illegal for this property to be diverted to the state in the first place. A contract that contains illegal terms is null and void. Therefore the indemnity deal is null and void, and they now owe the full €1.5 Billion.

3. The Constitution is a living document and can easily be amended if there is some problem with it. If somebody wants to start enforcing something we don't like, then change it. We are not stuck with. Take for example the first part of the article above; "1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion."
The RCC could in theory say that all citizens must attend mass/church/whatever once a week for their "homage of public worship" and demand that the Gardai start enforcing the law. Obviously then, people would notice that something stupid was in the Constitution, and just remove it.

Absolam

robdonn wrote: »

If a religious practise promoted human sacrifice, the state can step in to stop this and no amount of claims of "suppression of faith" would stop them. As long as a religion is practised within the confines of the law then they would have no issues. The government cannot stop a company from operating as it does unless they operate outside of the law. Religions can register as a business and they can receive tax relief on charitable donations, or they can register as charities themselves.

Sure.. it just can't step in and impose any disabilities or make any discrimination on the ground of religious profession, belief or status, or divert the property of any religious denomination for necessary works of public utility and on payment of compensation, or deny a religious denomination the right to manage its own affairs, own, acquire and administer property, and maintain institutions for religious or charitable purposes.
These Constitutional provisions preclude the State from acts which could be used to suppress religious denominations.

Absolam

recedite wrote: »

On this last point (6°) there is no particular public "value" or "merit" in giving a church (or a "denomination" if you prefer) a complete immunity to having their property seized, if it is being seized justifiably.

But the Article makes no provision for value or merit? A religious denomination may only have it's property diverted by the State for necessary works of public utility and on payment of compensation. It's pretty clear; there's nothing to say the Article can be set aside if there is sufficient public value or merit.

recedite wrote: »

1. As above, my interpretation above that it does not prohibit justified seizing of religious property where a debt remains unpaid is backed up by actual case law, unlike the RCC interpretation.

If you avoid imaginative interpretation for a second and consider the actual words of the first line of the article you quoted:
"The trustees of a non-denominational church, the Victory Christian Fellowship, have lost their appeal against a High Court ruling that Bank of Scotland was entitled to appoint joint receiver over three of its properties."
then compare them to the Article:
"The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation."
You may notice a disparity. I've added italics to indicate where your interpretation may have gone astray... in short, a non denominational church isn't protected by a provision protecting religious denominations.

recedite wrote: »

The fact that the State chooses not to seize the property of RCC, while at the same time appointed a receiver for the property of a minority church, which property has now been seized by the banks, is itself a violation of 2° The State guarantees not to endow any religion.

Well, obviously not, per the above, though in fairness not taking money from someone is not all the same as endowing someone with money either.

recedite wrote: »

2. Instead of paying for the redress board indemnity deal in cash, the RCC paid an inadequate amount of cash (probably about €40M), and also threw in some property towards it. Some of the property they didn't even own, because they had already transferred it to charities.

Wow. According to the Times they've paid €81.44 million in cash amd transferred properties valued at €42 million to the State. No mention of not owning any of them, and the Times set the cost of the redress scheme at €1.45 billion, not €5 billion. Odd.

recedite wrote: »

But if we take their own interpretation literally and consistently, then it was illegal for this property to be diverted to the state in the first place. A contract that contains illegal terms is null and void. Therefore the indemnity deal is null and void, and they now owe the full €5 Billion.

We have been here before; there is no way to interpret the Constitutional Amendment that prevents the Church using it's properties in any way it sees fit. No amount of imaginative interpretation can make that happen. It's frankly ludicrous.

recedite wrote: »

3. The Constitution is a living document and can easily be amended if there is some problem with it. If somebody wants to start enforcing something we don't like, then change it.
We are not stuck with.

Sure; the thing is though, it takes a referendum to change the Constitution, and the agreement of the majority of the electorate. If you're looking to change it based on the arguments you're putting forward here, I don't think there's much chance of it even making it to the polling booths.

recedite wrote: »

Take for example the first part of the article above; "1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion." The RCC could in theory say that all citizens must attend mass/church/whatever once a week for their "homage of public worship" and demand that the Gardai start enforcing the law. Obviously then, people would notice that something stupid was in the Constitution, and just remove it.

I think you're taking 'interpretation' to a whole new level there to be honest. The RCC could say whatever they want, but the law doesn't say hat all citizens must attend mass/church/whatever once a week for their "homage of public worship", does it? I very much doubt the Gardai will feel under much pressure to enforce a law that doesn't exist.....

magicbastarder

can someone explain in what ways the clause above differs from the state's 'rights' over property not held by religious orders?

recedite

magicbastarder wrote: »

can someone explain in what ways the clause above differs from the state's 'rights' over property not held by religious orders?

That would be an ecumenical matter. IMO Article 44 is merely giving churches the same property rights that you or I have as individual people.

recedite

Absolam wrote: »

If you avoid imaginative interpretation for a second and consider the actual words of the first line of the article you quoted:
"The trustees of a non-denominational church, the Victory Christian Fellowship, have lost their appeal against a High Court ruling that Bank of Scotland was entitled to appoint joint receiver over three of its properties."
then compare them to the Article:
"The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation."
You may notice a disparity. I've added italics to indicate where your interpretation may have gone astray... in short, a non denominational church isn't protected by a provision protecting religious denominations.

Well, this is a charming piece of sophistry. However, I'll think I'll have to just call bull$hit on it, rather than waste time discussing it further.

According to the Times they've paid €81.44 million in cash amd transferred properties valued at €42 million to the State. No mention of not owning any of them, and the Times set the cost of the redress scheme at €1.45 billion, not €5 billion. Odd.

Yes, you're right there; that was a typo, I meant €1.5 billion so I have edited that. I'll await further evidence for the €81.5 M. Even if they have got it up to that, its still way short.

We have been here before; there is no way to interpret the Constitutional Amendment that prevents the Church using it's properties in any way it sees fit. No amount of imaginative interpretation can make that happen. It's frankly ludicrous.

It literally says church property cannot be diverted. "Diverted" is a strange choice of words, except when talking about rivers. But here it seems to mean "to change hands" or to be appropriated or otherwise sold.
As I said before, the sensible interpretation of this wording is that the state cannot steal church property like Henry V111 did by creating an alternative denomination and then "diverting" the property from one denomination to the other, while ostensibly still calling it "church property".

Absolam wrote: »

The RCC could say whatever they want, but the law doesn't say hat all citizens must attend mass/church/whatever once a week for their "homage of public worship", does it? I very much doubt the Gardai will feel under much pressure to enforce a law that doesn't exist.....

It does say "The State acknowledges that the homage of public worship is due to Almighty God." As I have been neglecting this duty for many years, I must owe the Almighty a huge amount of homage by now. If it really is the State's view that this homage is due, then the state should enforce payment.

I am only making this point in a lighthearted way to highlight the fact that the correct response to a ridiculous constitutional claim by the RCC is first to laughingly reject it, and secondly to amend the wording of the Constitution if that is felt legally necessary.
The incorrect response, which we have seen so far, is to doff the cap and say to the public "sorry we can't do anything here, our hands are tied legally".

Absolam

magicbastarder wrote: »

can someone explain in what ways the clause above differs from the state's 'rights' over property not held by religious orders?

In the case of privately held property State bodies have a more extensive right to enforce a compulsory purchase order; the acquisition need only be in order to secure, facilitate, control or improve the frontage of any public road by widening, opening or enlarging it, in order to provide areas with roads and other infrastructure facilitating public transport, for such services and works as may be needed for development, or for a local authority to deal with a property or site deemed to be dangerous or derelict.
In the case of religious properties, they can only be acquired for necessary works of public utility; works of public utility are not defined in the current Constitution, but The Irish Constitution by Kelly, Hogan & White (a King's Inns Constitutional Law textbook) points out that that Article 8 of the 1922 Constitution is helpful here, as it specifies “roads, railways, lighting, water or drainage …”, suggesting that the Government could not rely on this wording to justify taking property for some grander function.

What's probably more appropriate to Recedites point, is that the High Court can appoint a receiver or assignee empowered to dispose of the property and other assets of a company, organisation or person in order to discharge their debts (though those powers are specifically limited, particularly in the case of personal insolvency). The properties of a religious denomination or educational institution are Constitutionally protected from such a disposal; they would have to voluntarily liquidate their properties for them to be used to discharge their debts. If they choose not to liquidate their properties, they cannot be compelled to do so. And of course, under Irish Law 'Property' is defined as 'that which can be owned', so the protection isn't limited to sites and buildings; it arguably extends to all assets owned by the religious denomination.

Absolam

recedite wrote: »

Well, this is a charming piece of sophistry. However, I'll think I'll have to just call bull$hit on it, rather than waste time discussing it further.

In fairness, sophistry would be trying to pretend that 'denomination' means 'church' so that you can present an argument that the High Court appointed a receiver to dispose of a 'church'es properties which means it can do the same to a 'denomination'.
When in reality, a ' non-denominational church' simply isn't a 'religious denomination'.

recedite wrote: »

It literally says church property cannot be diverted. "Diverted" is a strange choice of words, except when talking about rivers. But here it seems to mean "to change hands" or to be appropriated or otherwise sold.

It is a quite specific word; peculiar to it's time I'd say. Luckily we have the definitive Irish text “a bhaint díobh” which clarifies that diverted means taken or deprived of.

recedite wrote: »

As I said before, the sensible interpretation of this wording is that the state cannot steal church property like Henry V111 did by creating an alternative denomination and then "diverting" the property from one denomination to the other, while ostensibly still calling it "church property".

Such a sensible interpretation would require the text to specify to whom the property should not be diverted; specifically to another denomination. But it doesn't; the diversion is not limited, therefore includes all diversion, wherever it may go.

recedite wrote: »

It does say "The State acknowledges that the homage of public worship is due to Almighty God." As I have been neglecting this duty for many years, I must owe the Almighty a huge amount of homage by now. If it really is the State's view that this homage is due, then the state should enforce payment.

Right, it says homage is due; it doesn't say it must be paid though, does it?

recedite wrote: »

I am only making this point in a lighthearted way to highlight the fact that the correct response to a ridiculous constitutional claim by the RCC is first to laughingly reject it, and secondly to amend the wording of the Constitution if that is felt legally necessary.

Certainly, though (in a light heated way) you really ought to acknowledge that in order to correctly respond to a constitutional claim you must correctly construe it. Before you even get to the notion that the nation might think your construal is worthy of support in a referendum.

recedite wrote: »

The incorrect response, which we have seen so far, is to doff the cap and say to the public "sorry we can't do anything here, our hands are tied legally".

It seems to me that "our hands are tied legally" is always going to be a response when someone proposes an illegal act. Though of course another response that has been put forward to the proposal to seize Church assets is that the State has already entered into an agreement on compensation; reneging on that agreement presents it's own legal issues.

Peregrinus

Couple of thoughts:

“Religious denomination”: I don’t think “denomination” is being used in Art. 44 quite the technical sense that Absolam suggests.

“Denomination”, in the religious context, means a collection of believers/practitioners who have enough in common that they can be grouped together under a single name, used both to identify them and to distinguish them from other believers/practitioners. So, within Christianity, “Catholic”, “Orthodox” and “Protestant” are denominations. But this is a multi-layered thing; within Protestantism, “Anglican”, “Baptist”, “Methodist”, etc are all denominations. Within Anglicanism, you have “Church of England”, “Church of Ireland” and so forth. But there does come a point where we make distinctions that, while valid, are not sufficiently significant to be considered denominations. Evangelicals in the Church of Ireland, for example, or Charismatics within the Catholic Church, are not considered to be “denominations”.

“Non-denominational” churches usually call themselves that because they don’t belong to any larger organisation which provides direction, oversight or control. Each congregation governs itself, and is not accountable to any outside body. But they are certainly “denominational” in the sense that they can meaningfully and accurately be categorised as, e.g, Baptist and Protestant in belief and practise, congregational or presbyterian in government, etc.

I seriously doubt that because a particular church describes itself as “non-denominational”, it therefore takes itself outside the scope of Art 44. I suspect the word “denomination” was chosen not to invoke the sense of an organised structure controlling or directing more than one Christian congregation, but simply as a non-specific alternative to the word “church”. If Art. 44 protected only churches, then Jews, Muslims, etc would enjoy no protection, and we know that Dev wanted to avoid that. So I think Art 44 uses the term “religious denomination” in the sense of any organised group of beleivers/practitioners than we can meaningfully name, including an individual independent congregation.

The other point worth noting is that if “denomination” is understood only to mean, e.g., the Roman Catholic Church, the Church of Ireland, the Irish Jewish communities, etc, then Art. 44 provides very little protection at all. The truth is that the Roman Catholic Church in Ireland owns no property at all, any more than the feminist movement or the sceptical movement or the rationalist movement owns property. Church property is typically owned by a diocese, a religious congregation, etc (or by trustees on behalf of one of these). But I think if you tried to argue that, e.g., the assets of the Diocese of Cork or the assets of the Society of Jesus were not protected by Art. 44, the Supreme Court would go through you for a short cut. Given the rationale for Art. 44 which Absolam points to, can anybody really doubt that the intent of Art. 44 is to cover assets of this kind?

So, basically, I think whatever protection Art. 44 affords extends to the assets of religious organisations of all kinds, including dioceses, parishes, religious orders, and individual self-governing congregations.

Scope of the Protection: Absolam suggests that Art. 44.6 means that religious and educational properties are immune from the powers of a receiver under insolvency laws. There aren’t (SFAIK) any cases on this, but I’m not entirely convinced that this is correct. If it is correct, then I think a corollary would be that religious/educational properties are similarly immune from other civil enforcement mechanisms, e.g being compulsorily sold to satisfy a judgment debt. More to the point, this wouldn’t just protect them from seizure by the state; it protects them from seizure by any creditor at all. And, as Absolam points out, this applies not just to land and buildings but to everything they own, including cash, bank deposits, valuable objects, investments - the lot.

If that were the case, it would actually create considerable problems for religious bodies (and schools and universities, whether religious or not). They couldn’t borrow more than a trivial amount, because any borrower would know that the loan was legally irrecoverable (unless a mortgage were granted). Nobody would provide them with any goods or services on credit, since payment could not be enforced. Employees couldn’t recover unpaid wages. The Revenue couldn’t recover social insurance contributions or PAYE withholding in relation to the employees of religious bodies, schools or universities. Etc, etc. You can see how destabilising this would be. It would make it difficult or impossible for religious and educational bodies to enter into normal commercial, financial, employment, etc relationships.

I don’t think anybody thinks that this is how it works, and I can’t imagine that the Supreme Court would eagerly adopt that reading of Art. 44.6, if it were ever argued before them.

I think that there would be a strong impulse to interpret Art. 44.6 in the light of Art 44.1 (“The State acknowledges that the homage of public worship is due to Almighty God . . . “) We have already seen that, recedite’s fears notwithstanding, this can’t be used to compel citizens to worship God ; Art.44.2.1. prevents that. I think that, harmoniously interpreted, Art. 44 is about how the State approaches religion and religious questions. Consequently Art. 44.6 is intended to prevent the exercise of State power to “divert” religious property on behalf of the State, but it doesn’t prevent normal procedures for enforcing debts, judgments, etc.

(And it’s worth pointing out that the Catholic church certainly doesn’t think it gives them that kind of protection. If it did, they would never have needed to take out liability insurance against claims for child sexual abuse, but they did take out such policies. (Indeed, they wouldn’t need liablity insurance of any kind, for any purpose.) Nor would they have needed to enter into the controversial indemnity agreement in the first place; they would have needed no indemnity, since there assets would not have been at risk.)

Fleawuss

Interesting legal niceties and discussion. Dev didn't want the Churches given the Henry 8th treatment so they got protection. Absolam is I think correct when he gives primacy to the Irish language version "a bhaint diobh" which is very clear ie torn or pulled from them.

But that's suitable discussion for a seminar in law or over a sherry in a presbytery. In the real world it's about seeing if Dev's vision should bind parents and children in 2015. IMHO Ireland has turned away from that and the state has to ensure equal access to equal education for its citizens. It will happen but hopefully without Henry 8th approach. I have no time for the RCC but I have huge admiration for individual members who as sisters or brothers or priests lived decent lives and spent their lives trying to improve the lives of the ordinary people among whom they lived. I would hate to see these, many of whom that I know, are now aged and infirm threatened in their weakness.

It's not an easy topic but there is no doubt for me that the state must be neutral among the competing gods of modern Ireland.

kylith

So the church still owes tens of millions in debt for making redress to victims of abuse, yes? If I owed a debt to the government they would have no qualms about seizing my assets to pay that debt, right? Why should the church's assets not be seized to pay their debt and the constitution be changed to allow this if necessary? I get that the clause was put there to avoid, as has been said, the government doing a Henry VIII grab, but when the constitution was written no-one could have guessed that the RCC would drag its heels about making restitution for the rapes, abuses, and incarcerations performed by its members.

recedite

Peregrinus wrote: »

Absolam suggests that Art. 44.6 means that religious and educational properties are immune from the powers of a receiver under insolvency laws. There aren’t (SFAIK) any cases on this, but I’m not entirely convinced that this is correct. If it is correct, then I think a corollary would be that religious/educational properties are similarly immune from other civil enforcement mechanisms, e.g being compulsorily sold to satisfy a judgment debt.

What about the Victory Christian Fellowship case then? They don't seem to have been immune. I have to admit that I thought Absolam was just being a bit mischievous, but now I'm starting to think some people really do believe that the word denominational as used in Article 44 confers immunity on some churches but not others. Which would actually constitute "endowing" any religion categorizing itself as "a denominational church".
Perhaps the Irish Times journalist also thought there was some significance, otherwise it seems strange to begin the account with a specific mention of "non-denominational";

The trustees of a non-denominational church, the Victory Christian Fellowship, have lost their appeal....

Following this kind of logic, if the VCF had changed their status to denominational they could have protected their assets. Simply find a similar church somewhere, and agree with each other that you are both denominations of the same religion.

Or if they had opened a school before going into receivership, would it have been a non-denominational school? :pac:

Its amazing that two people can sometimes read the same thing, but come to completely different conclusions about its meaning.

recedite

Fleawuss wrote: »

Interesting legal niceties and discussion. Dev didn't want the Churches given the Henry 8th treatment so they got protection. Absolam is I think correct when he gives primacy to the Irish language version "a bhaint diobh" which is very clear ie torn or pulled from them.

But that's suitable discussion for a seminar in law or over a sherry in a presbytery. In the real world it's about seeing if Dev's vision should bind parents and children in 2015....

I think the point here is that Devs vision does not give them special immunity. It does protect them from having their assets transferred to another denomination, Henry VIII style.

But somehow, the RCC canon lawyers have managed to convince the politicians (and a large portion of the population) that they do have this special immunity.

But when you actually take off the blinkers and look closely.....the emperor has no clothes.

recedite

Absolam wrote: »

In the case of privately held property State bodies have a more extensive right to enforce a compulsory purchase order; the acquisition need only be in order to secure, facilitate, control or improve the frontage of any public road by widening, opening or enlarging it, in order to provide areas with roads and other infrastructure facilitating public transport, for such services and works as may be needed for development, or for a local authority to deal with a property or site deemed to be dangerous or derelict.
In the case of religious properties, they can only be acquired for necessary works of public utility; works of public utility are not defined in the current Constitution, but The Irish Constitution by Kelly, Hogan & White (a King's Inns Constitutional Law textbook) points out that that Article 8 of the 1922 Constitution is helpful here, as it specifies “roads, railways, lighting, water or drainage …”, suggesting that the Government could not rely on this wording to justify taking property for some grander function.

I think you are trying to say that a CPO as applied to a "private citizen" for installation of public works such as roads and public transport infastructure etc.. is different to a "religious" CPO for works of public utility defined as “roads, railways, lighting, water or drainage …” , but I can't see any substantial difference there myself.

Absolam wrote: »

What's probably more appropriate to Recedites point, is that the High Court can appoint a receiver or assignee empowered to dispose of the property and other assets of a company, organisation or person in order to discharge their debts (though those powers are specifically limited, particularly in the case of personal insolvency). The properties of a religious denomination or educational institution are Constitutionally protected from such a disposal; they would have to voluntarily liquidate their properties for them to be used to discharge their debts. If they choose not to liquidate their properties, they cannot be compelled to do so. And of course, under Irish Law 'Property' is defined as 'that which can be owned', so the protection isn't limited to sites and buildings; it arguably extends to all assets owned by the religious denomination.

Yes, I think this is a good summary of the RCC position. Which seems to have been swallowed by numerous of our politicians. And I'm saying I don't accept it, because I see no evidence that it is true.

Fleawuss

recedite wrote: »

I think the point here is that Devs vision does not give them special immunity. It does protect them from having their assets transferred to another denomination, Henry VIII style.

But somehow, the RCC canon lawyers have managed to convince the politicians (and a large portion of the population) that they do have this special immunity.

But when you actually take off the blinkers and look closely.....the emperor has no clothes.

I don't think it's just limited to transfer to another denomination. RCC canon lawyers have no particular expertise in constitutional law but some are also qualified solicitors and there used to be a few who were barristers. A detailed interpretation would only ever be done in case law anyway I.e. an interpretation which would be binding other than expensive or casual speculation (legal opinion or Boards discussion). The curious thing is the status of a diocese or parish in state law. A company is recognized as a body which can be sued and its liabilities are limited. Seizing schools would require a legal case against each parish and diocese. It's a quagmire.

recedite

Fleawuss wrote: »

I don't think it's just limited to transfer to another denomination.

How do you explain the VCF case above then? Immunity fail.

Fleawuss wrote: »

The curious thing is the status of a diocese or parish in state law. A company is recognized as a body which can be sued and its liabilities are limited. Seizing schools would require a legal case against each parish and diocese. It's a quagmire.

Its worse than that, because around the time the redress scheme was set up, and entirely by coincidence , the property belonging to some of the most abusive offenders such as the Christian Brothers was transferred into various trust funds. So we have the likes of Edmund Rice Trust and Le Cheile trust being the beneficial owners of property, and these trusts themselves have committed no crimes.
Similarly we have the RCC saying they are not responsible for the actions of any priests, because the priests are not employees, but more like sub-contractors.
All these obstacles have been placed in the way of justice, but they are not insurmountable. Even trust funds can be cracked open if it can be shown that they were originally created for the wrong reasons; ie to hide the assets.

Hotblack Desiato

recedite wrote: »

Perhaps the Irish Times journalist also thought there was some significance, otherwise it seems strange to begin the account with a specific mention of "non-denominational"

"non-denominational" is just lazy journalistic shorthand for "not roman catholic and not mainstream protestant".

Absolam

Mmm.. some interesting points.

Peregrinus wrote: »

Couple of thoughts:
“Religious denomination”:

I didn't intend Religious denomination to be construed in all that technical a sense; I'd fully agree that it ought be construed as property which, directly or indirectly, comes under the aegis of a religious denomination, so would include property held by the denomination in trust for a parish, a diocese, or for educational or charitable purposes. However, I don't think 'religious denomination' would be considered synonymous with 'church' by the SC; I think the SC would require more than just the name church to rise to that level. For instance the fact that the Victory Christian Fellowship was a registered charitable trust whose charitable status had been revoked by the Revenue Commissioners due to engaging in commercial activities would certainly influence the HC in deciding whether they should be dealt with as a religious congregation, or a commercial entity. The HC didn't need to do so though, and I think one reason for that is what I will set out on the subject of scope.

Peregrinus wrote: »

Scope of the Protection:

Whilst I believe it is the case that religious and educational properties are immune from the powers of a receiver under insolvency laws (and agree, this has not been tried in court); I don't think it follows that religious/educational properties are similarly immune from other civil enforcement mechanisms, e.g being compulsorily sold to satisfy a judgment debt. the reason being, if a religious congregation offers property as security against a loan, that property has been set to a purpose by the religious congregation, and if the property is then required to make good on the loan it is not being diverted, it is being used as the religious congregation set out to use it; as a payment on a debt. So even if the Victory Christian Fellowship were considered to be a religious congregation, the HC did not need to consider whether their properties were being diverted; they were not, they were being used exactly as the VCF had committed to using them.
I do agree that the Article does protect RCs not just from seizure by the State; there is no limit there so it protects them from seizure by anyone (though realistically no one else would be in a position to make such a seizure).
Which of course also means that there is no issue with RCs borrowing against their assets, because once set to the purpose of security by the RC, they are not being diverted by anyone else. As for wages, social insurance contributions, PAYE etc; these are potentially unsecured debts. Religious congregations would likely be no different from the myriad international companies we've seen who have abandoned responsibility for exactly such debts whilst removing the value of their assets to outside the jurisdiction, so I don't think it's likely to be much easier for a RC to do so than it is for a corporation, or even an indiginous company that becomes insolvent; the very reason we have an Insolvency Payments Scheme is because these companies don't pay those debts.

So yes, Art. 44.6 is intended to prevent the exercise of State power to “divert” religious property on behalf of the State (but I don't believe it is limited to the State), and it doesn’t prevent normal procedures for enforcing debts, judgments, etc. where the RC has offered it's assets as security against those debts.

As for the Catholic Church and it's liability insurance; the fact that the assets of the Church cannot be diverted doesn't immunize them from owing money, or from their various sub-entities being made insolvent or uninsurable, and being unable to engage in activities within the State. The very fact of owing such substantial sums, regardless of whether assets could or couldn't be seized to satisfy the debt, and the difficulties that entails, is reason enough to insure themselves and indemnify themselves against those potential debts.

Absolam

kylith wrote: »

So the church still owes tens of millions in debt for making redress to victims of abuse, yes?

Maybe; the various organisations involved might well have paid over everything required by their original indemnity deal with the Government, the full figures haven't been released. None of them seem to be saying they have no intention of paying the amounts they agreed to though.

kylith wrote: »

If I owed a debt to the government they would have no qualms about seizing my assets to pay that debt, right? Why should the church's assets not be seized to pay their debt and the constitution be changed to allow this if necessary?

Well, you'd have to change the constitution first; there's no guarantee that would pass a referendum. Then you'd have to hope that the various bodies involved (bearing in mind it's not the Catholic Church as a whole, it's eighteen specific religious orders) haven't moved to place their assets beyond the reach of the State during that time. If they're not prepared to pay what they owe, there's no reason to think they'd balk at moving their assets.

kylith wrote: »

I get that the clause was put there to avoid, as has been said, the government doing a Henry VIII grab, but when the constitution was written no-one could have guessed that the RCC would drag its heels about making restitution for the rapes, abuses, and incarcerations performed by its members.

Regardless of the notion that they might be doing it for a very good reason (not that Henry thought his was a bad reason), it would still be a Henry VIII grab though. That might not be sufficiently popular to pass a referendum.

Absolam

recedite wrote: »

What about the Victory Christian Fellowship case then[/URL]? They don't seem to have been immune. I have to admit that I thought Absolam was just being a bit mischievous, but now I'm starting to think some people really do believe that the word denominational as used in Article 44 confers immunity on some churches but not others. Which would actually constitute "endowing" any religion categorizing itself as "a denominational church".

As I said, I don't think how a 'church' regards itself is what is significant, it's whether the Courts consider it to be a religious congregation or not. I think the High Court has sufficient reason to not consider the VCF a religious congregation, but the VCF didn't try to use Article 44 as protection, so we'll never know. Even if they did, as I said, I believe the fact that they had offered the properties as security placed the properties outside the scope of 'diversion' anyway.

recedite wrote: »

Perhaps the Irish Times journalist also thought there was some significance, otherwise it seems strange to begin the account with a specific mention of "non-denominational";Following this kind of logic, if the VCF had changed their status to denominational they could have protected their assets. Simply find a similar church somewhere, and agree with each other that you are both denominations of the same religion.

I think if they has retained their status as a charity, they might have had more chance of being considered a religious denomination, but since it wasn't argued, we can't really say.

recedite wrote: »

Or if they had opened a school before going into receivership, would it have been a non-denominational school? :pac:Its amazing that two people can sometimes read the same thing, but come to completely different conclusions about its meaning.

I think we all tend to look for what supports our preconceived notions when we look at things like this, particularly in the context of a debate.

recedite wrote: »

I think the point here is that Devs vision does not give them special immunity. It does protect them from having their assets transferred to another denomination, Henry VIII style.

It doesn't say to another denomination though. Absent the words, it's impossible to see why you think it could be restricted in such a way.

recedite wrote: »

But somehow, the RCC canon lawyers have managed to convince the politicians (and a large portion of the population) that they do have this special immunity.

That's really not true in any regard though, is it?
Canon lawyers deal in Canon Law; hardly well placed to argue Irish Constitutional Law. Nor is there any evidence any lawyers acting on behalf of any religious congregation have convinced any politicians of anything regarding immunity, is there?

As far as I know, not a single case has been brought before the Irish courts under clauses 5 & 6 of Article 44, so beyond the specific words as they stand no one knows to what extent the judiciary may find the clauses protect the Churches.

recedite wrote: »

I think you are trying to say that a CPO as applied to a "private citizen" for installation of public works such as roads and public transport infastructure etc.. is different to a "religious" CPO for works of public utility defined as “roads, railways, lighting, water or drainage …” , but I can't see any substantial difference there myself.

The most basic difference is that the scope of a CPO is laid out in legislation, and can be amended by an Act of the Oireachtas to include pretty much anything. A private citizen (or company) has no Constitutional right not to have their property diverted if the State decides to do so. Whereas a religious denomination does, and the scope of 'public utility' is not laid out anywhere; since it's a Constitutional term it can only be finally determined by the Supreme Court, who would be likely to consider it to be as set out in the 1922 Constitution, given that there was no other definition set at the time of writing. So the diversion of the properties of religious denominations is severely restricted, compared to the diversion of the properties of citizens and companies.

recedite wrote: »

Yes, I think this is a good summary of the RCC position. Which seems to have been swallowed by numerous of our politicians. And I'm saying I don't accept it, because I see no evidence that it is true.

Since, as far as I know, the Catholic Church hasn't put forward a position on the subject, I can't say whether it is a good summary of their position or not, and I can only assume you're guessing, unless you have evidence to the contrary?
I think the only evidence we'll ever have if it's a true reflection of the Article is if someone brings it before the Supreme Court. I doubt that's going to happen.

recedite wrote: »

How do you explain the VCF case above then? Immunity fail.

Or not, as the case may be.

recedite wrote: »

Its worse than that, because around the time the redress scheme was set up, and entirely by coincidence , the property belonging to some of the most abusive offenders such as the Christian Brothers was transferred into various trust funds. So we have the likes of Edmund Rice Trust and Le Cheile trust being the beneficial owners of property, and these trusts themselves have committed no crimes.
Similarly we have the RCC saying they are not responsible for the actions of any priests, because the priests are not employees, but more like sub-contractors.
All these obstacles have been placed in the way of justice, but they are not insurmountable. Even trust funds can be cracked open if it can be shown that they were originally created for the wrong reasons; ie to hide the assets.

Oh, I reckon even the Christian Brothers would tell you it's no coincidence. There's a very real possibility that these scandals will spell the end of some of these religious Orders in Ireland. By creating these Trusts, the educational institutions they've created may survive the demise of the Orders; I don't think the Trusts will prevent the State from obtaining assets that it was to obtain from the Orders.

Fleawuss

I think that clarity and precision has been brought to the legal and constitutional aspects with contributions above.

Which brings us back to the OP. I think its clear that only a constitutional amendment would deal with the issue. I don't think that would pass now; not for any religious reason but we are a nation who aspires to or owns property and people would get nervous. Given the state's infantilism for years in dealing with the churches and its manifest incompetence in many areas people would be rightly suspicious.

The Constitution is also a barrier to state education: parents are the primary educators under 1937 and it is they who subcontract it to others including religions. Would an amendment to that pass? Probably not: in any event would it be wise to gift the state such unregulated control of its citizens? I say that as someone who as recently as 1991 could be regarded as a criminal for who I loved. Having said that, I would prefer the State because it is possible to argue rationally with an entity that can't retreat to a position of "god said so in a holy book thousands of years ago, so there". Equally infantile.

The problem when you look at it isn't the churches: the problem is that generations of people perpetuate a system which is past its sell by date. Politicians hate to get too far ahead of public opinion: if they think the numbers are there they will jump. It's time to talk to people.

MrPudding

recedite wrote: »

All these obstacles have been placed in the way of justice, but they are not insurmountable. Even trust funds can be cracked open if it can be shown that they were originally created for the wrong reasons; ie to hide the assets.

Absolam wrote: »

Oh, I reckon even the Christian Brothers would tell you it's no coincidence. There's a very real possibility that these scandals will spell the end of some of these religious Orders in Ireland. By creating these Trusts, the educational institutions they've created may survive the demise of the Orders; I don't think the Trusts will prevent the State from obtaining assets that it was to obtain from the Orders.

Indeed, He who comes to equity...

MrP

recedite

Absolam wrote: »

I didn't intend Religious denomination to be construed in all that technical a sense; I'd fully agree that it ought be construed as property which, directly or indirectly, comes under the aegis of a religious denomination, so would include property held by the denomination in trust for a parish, a diocese, or for educational or charitable purposes.

That is basically the same as my interpretation now. The word denomination is used in the Constitution to prevent a Henry VIII type sleight of hand which seized property from one denomination and gave it to another, while still saying the property remains in the hands of "the church". It clarifies that an individual denomination can be the owner of its own property.
That is very different to saying that only self-described "denominational" churches are covered by a blanket immunity.

Absolam wrote: »

...the fact that the Victory Christian Fellowship was a registered charitable trust whose charitable status had been revoked by the Revenue Commissioners due to engaging in commercial activities would certainly influence the HC in deciding whether they should be dealt with as a religious congregation, or a commercial entity.

This is a good point. But...just because the pastor of a church is convicted of a fraud, that does not mean that the church ceases to exist as a religion. AFAIK the congregation of VCF were still believers, in good faith, but they were duped.
From the perspective of many outside it, the RCC and its congregation are in the same position, except that they still have the charitable status. Arguably, the ongoing series of abuse scandals, cover-ups, homophobic lobbying, misogyny etc is enough to warrant the revenue commissioners withdrawing their charitable status. However, this would not affect the RCC having the status of a church in terms of the Constitution. The Constitution does not place a value judgement on any individual denomination, but it protects any individual assets from being devoured by any other denominations that might become more especially favoured by the State.
What the revenue commissioners consider to be "a charity" is a separate issue to the question of what is "a church" in normal parlance.

Absolam wrote: »

...if a religious congregation offers property as security against a loan, that property has been set to a purpose by the religious congregation, and if the property is then required to make good on the loan it is not being diverted, it is being used as the religious congregation set out to use it; as a payment on a debt. So even if the Victory Christian Fellowship were considered to be a religious congregation, the HC did not need to consider whether their properties were being diverted; they were not, they were being used exactly as the VCF had committed to using them.

Again, this is very different to saying that church property cannot ever be seized. You are now saying that if money is owed as part of a debt, church property can be seized. So that is similar to the situation pertaining to the property rights of any private citizen.
Redress compensation can be considered a debt, can it not? Certainly all the money that was supposed to be paid to secure a 6 year indemnity can, and it seems that has not all been paid yet. And any redress costs that arose outside of that 6 year indemnity period are an additional debt.

You are assigning a very specific meaning to the word "diverted" by claiming that it does not include seizing property in payment of a debt. The primacy to the Irish language version "a bhaint diobh" was mentioned earlier as meaning "torn or pulled from them". IMO the more common sense English translation for this seems to be the word "seized". Which comes down to us from the Normans who considered property seized at the point of a sword to have a perfectly valid title, hence the somewhat archaic legal term "seise" is still around. Its strange that the word seized was not used instead of diverted, but maybe Dev wrote the Irish version first, and then somebody translated it using an Irish-English dictionary.
So yes, I do agree with this definition of "divert", but it brings us right back to square one; ie the church having no special property rights compared to the private citizen. Given that seizing property by the crown or state using military might is nowadays frowned upon, whether seized/diverted from the private citizen or the church.

With CPO's, this is the exception where the state can seize property, provided it also pays compensation. But all the examples you have given have been land for public works, or some works needed for public infrastructure. I don't see any difference there between the treatment of property belonging to church or to private citizens.

Peregrinus

Couple of points:

recedite wrote: »

That is basically the same as my interpretation now. The word denomination is used in the Constitution to prevent a Henry VIII type sleight of hand which seized property from one denomination and gave it to another, while still saying the property remains in the hands of "the church". It clarifies that an individual denomination can be the owner of its own property.

That is very different to saying that only self-described "denominational" churches are covered by a blanket immunity.

Henry VIII didn’t take the property of one denomination and give it to another. He took monastic property and dealt with it as he pleased. Some he kept for the State, much he handed out to local bigwigs to secure their loyalty and ensure that they bought into the English reformation, and some he handed to dioceses, schools, colleges and the like. That last category was much the smallest.

So, no, if you think Art 44.6 is directed against a repeat of the Henrician reformation, then it
its not about preventing the state from taking the property of one denomination and giving it to another. At a minimum, it’s about preventing the State from taking the property of any denomination, no matter what they do with it afterwards. Absolam and I disagree about the extent to which it prevents parties other than the state from seizing church property.

recedite wrote: »

From the perspective of many outside it, the RCC and its congregation are in the same position, except that they still have the charitable status. Arguably, the ongoing series of abuse scandals, cover-ups, homophobic lobbying, misogyny etc is enough to warrant the revenue commissioners withdrawing their charitable status. However, this would not affect the RCC having the status of a church in terms of the Constitution.

I agree. Charitable status is irrelevant here.

recedite wrote: »

Again, this is very different to saying that church property cannot ever be seized. You are now saying that if money is owed as part of a debt, church property can be seized.

Churches are free to deal with their own property, including selling it or granting mortgages over it. So if the Armalite Sisters want to borrow a bunch of money from the Bank, they can secure the loan with a mortgage over the Convent of the Divine Perpetual Candles. And if they default on the loan, the Bank can take the usual enforcement procedures, including getting a court order to have the Convent sold and the proceeds paid to the Bank, up to the amount owing on the loan. Why? Because the Armalite Sisters granted them that right when they mortgaged the Convent, which they were free to do. And the Bank using the courts to exercise rights granted to them by the Armalite Sisters is not the Sisters’ property being “diverted”.

But if the Sister take out an unsecured loan and default on it, then Abolam and I disagree about the position of the Bank. If I understand Absolam correctly, he’s of the view that the Bank can’t enforce its loan against the Convent - or, for that matter, against any other property of the Sisters. Which effectively means they can’t enforce their loan at all. I doubt that Art 44.6 has that effect.

recedite wrote: »

Redress compensation can be considered a debt, can it not?

Yes, subject to two important qualifications. First, it’s not a debt to the State; it’s a debt (or a large number of individual debts) to individual victims of abuse. So the State can’t sue to recover redress compensation. And, secondly, it’s not a debt even to the victims until the victims sue, and get judgment against the religious orders. Prior to that point it’s just a claim, or a potential claim.

recedite wrote: »

Certainly all the money that was supposed to be paid to secure a 6 year indemnity can . . .

Not necessarily. It depends on the wording of the agreement. If I agree to pay you a thousand euros for the hire of your car for three months but then I don’t pay, you may or may not be entitled to sue me for a thousand euros. Quite possibly, all you are entitled to do is not give me the car. Much will depend on the wording of the agreement and on the facts of the case. And of course in this case we don’t know the wording of the agreement.

And we also don’t know, do we, if the religious orders are even in breach? Did the agreement specify a timescale for property transfers, and has that timescale been met? I don’t know the answers to questions like that. But without knowing that kind of thing, it’s impossible to say whether the State could succeed in an action against the religious orders.

recedite wrote: »

Its strange that the word seized was not used instead of diverted, but maybe Dev wrote the Irish version first, and then somebody translated it using an Irish-English dictionary.

Dev has been mentioned a few times in this thread but, actually, he has nothing to do with this. And the English version came first. The “diverting the property” wording in the 1937 Constitution wasn’t dreamed up by Dev; it was copied from the 1922 Constitution (Art. 8),which in turn took it from the Anglo-Irish Treaty of 1921 (Article 16), which copied it from the Government of Ireland Act 1920 (s. 5), which copied it from the Government of Ireland Act 1914 which copied it from the Home Rule Bill of 1893 (s. 4). So not so much Dev, then, as Gladstone. And, if we’re honest, not so much about protecting the position of the Catholic church as about protecting the position of minority churches.

(And, for the record, all the stuff in Art. 44 about the rights of churches to run schools, and the rights of students to attend publicly funded schools without receiving religious instruction? None of it is Dev’s. It all goes back to the Home Rule Bills of 1893 and 1886.)

recedite wrote: »

With CPO's, this is the exception where the state can seize property, provided it also pays compensation. But all the examples you have given have been land for public works, or some works needed for public infrastructure. I don't see any difference there between the treatment of property belonging to church or to private citizens.

I think the difference is that the grounds on which the State can CPO religious/educational property are constitutionally restricted. The Oireachtas cannot pass a law allowing religious/educational property to be compulsorily purchased for anything other than “necessary works of public utility”. Whereas there is no similar restriction on legislation providing for the compulsory acquisition of other property. Under Art 43 the State can’t abolish private property outright, but it can “delimit by law” the exercise of property rights “with a view to reconciling their existence with the exigencies of the common good”.

Peregrinus

Absolam wrote: »

. . . Oh, I reckon even the Christian Brothers would tell you it's no coincidence. There's a very real possibility that these scandals will spell the end of some of these religious Orders in Ireland. By creating these Trusts, the educational institutions they've created may survive the demise of the Orders; I don't think the Trusts will prevent the State from obtaining assets that it was to obtain from the Orders.

Actually, the transfer of the assets of religious orders into educational, etc, trusts has been ongoing since the 1980s, and it has largely been driven by demographic considerations; vocations basically fell off a cliff in the 1970s and have kept falling, with the result that in time the orders couldn't staff, and then could even manage, the institutions they had established. Hence the transfer to lay-led trusts which share the general vision of the order, but can operate independently of it (and can therefore operate when the order has disappeared entirely). And of course this problem was thirty or forty years in the coming, so there was plenty of time to plan how to manage it.

That's not to say that there is no instance in which the transfer of a property to a trust wasn't accelerated by the knowledge that it might be a risk from compensation claims in the future. But anyone chasing the property, and seeking to get the transfer set aside, has to find evidence showing that this actually was the case in relation to the property they are chasing, which is not a trivial matter to show.

Two other thoughts occur to me:

First, educational trusts running schools enjoy the same constitutional protection against "diversion" under Art. 44.6 as churches do. But trusts running hospitals, residential homes, etc, etc do not. So if it is right that church property is protected by Art 44.6 from being seized to satisfy a civil judgment, then by transferring properties of that kind to charitable trusts the religious orders may actually have weakened whatever protection that the properties enjoy.

Secondly, whatever the motivation for the transfers, they do seem to have been genuine transfers. The schools, hospitals, homes etc really do not belong to the religious orders concerned. So if the State does take them in satisfaction of sums due, that is not done at the expense of the religious orders, but at the expense of the educational, medical, etc trusts.

Which means, of course, that once the properties are gone the trusts have no further purpose, and will fold. And in order to realise any value from the assets they have seized the state will have to close the schools, hospitals, care homes, etc and sell the land and buildings. Which, of course, just means that someone will have to open other schools, hospitals, care homes, etc. And we know who that someone will be, don't we?

In short, most of the assets that were transferred to educational, etc, trusts, are probably assets that are not of much interest to the state. As long as they operate as schools, hospitals, and such they don't generate any return for the owners. If they cease to operate as schools, etc then either you have some very angry voters, or the State is going to have to find the money to open replacement schools, etc.

Absolam

Peregrinus wrote: »

Actually, the transfer of the assets of religious orders into educational, etc, trusts has been ongoing since the 1980s, and it has largely been driven by demographic considerations; vocations basically fell off a cliff in the 1970s and have kept falling, with the result that in time the orders couldn't staff, and then could even manage, the institutions they had established. Hence the transfer to lay-led trusts which share the general vision of the order, but can operate independently of it (and can therefore operate when the order has disappeared entirely). And of course this problem was thirty or forty years in the coming, so there was plenty of time to plan how to manage it.

That's not to say that there is no instance in which the transfer of a property to a trust wasn't accelerated by the knowledge that it might be a risk from compensation claims in the future. But anyone chasing the property, and seeking to get the transfer set aside, has to find evidence showing that this actually was the case in relation to the property they are chasing, which is not a trivial matter to show.

Two other thoughts occur to me:

First, educational trusts running schools enjoy the same constitutional protection against "diversion" under Art. 44.6 as churches do. But trusts running hospitals, residential homes, etc, etc do not. So if it is right that church property is protected by Art 44.6 from being seized to satisfy a civil judgment, then by transferring properties of that kind to charitable trusts the religious orders may actually have weakened whatever protection that the properties enjoy.
Secondly, whatever the motivation for the transfers, they do seem to have been genuine transfers.
In short, most of the assets that were transferred to educational, etc, trusts, are probably assets that are not of much interest to the state. As long as they operate as schools, hospitals, and such they don't generate any return for the owners. If they cease to operate as schools, etc then either you have some very angry voters, or the State is going to have to find the money to open replacement schools, etc.

Which I think goes to the heart of the situation both of religious properties and of the divestment question; I believe it's likely that the religious orders in placing these assets into trusts have all along been doing so in order to ensure the institutions continue to serve people for as long as possible in the manner they believe is best for their communities.

Absolam

recedite wrote: »

That is basically the same as my interpretation now. The word denomination is used in the Constitution to prevent a Henry VIII type sleight of hand which seized property from one denomination and gave it to another, while still saying the property remains in the hands of "the church". It clarifies that an individual denomination can be the owner of its own property.
That is very different to saying that only self-described "denominational" churches are covered by a blanket immunity.

I don't think there's any evidence the word 'denomination' is used for any reason at all; I would still say that it is up to the Courts to decide what does or does not constitute a 'religious denomination'.

recedite wrote: »

TThis is a good point. But...just because the pastor of a church is convicted of a fraud, that does not mean that the church ceases to exist as a religion. AFAIK the congregation of VCF were still believers, in good faith, but they were duped.

I was less thinking of the status of the pastor and more of the status of the Church; being a registered charitable organisation might be considered characteristic of a religious denomination, and loosing that characteristic as a result of commercial activity might call into question the religious nature of the fellowship. I'm not saying this is a definitive requirement for a religious denomination, but that it is something a Court might consider in determining if something were a religious denomination.

recedite wrote: »

From the perspective of many outside it, the RCC and its congregation are in the same position, except that they still have the charitable status. Arguably, the ongoing series of abuse scandals, cover-ups, homophobic lobbying, misogyny etc is enough to warrant the revenue commissioners withdrawing their charitable status.

I don't think the Revenue Commissioners withdrew their status as a punishment for perceived improper behaviors; I think they withdrew it because their commercial activities surpassed their charitable activities in financial terms.

recedite wrote: »

However, this would not affect the RCC having the status of a church in terms of the Constitution. The Constitution does not place a value judgement on any individual denomination, but it protects any individual assets from being devoured by any other denominations that might become more especially favoured by the State.
What the revenue commissioners consider to be "a charity" is a separate issue to the question of what is "a church" in normal parlance.

Of course; I simplyu think that charitable activity and status might be considered indicative, if not definitive, of the nature of a grouping such as a religious denomination.

recedite wrote: »

TAgain, this is very different to saying that church property cannot ever be seized. You are now saying that if money is owed as part of a debt, church property can be seized. So that is similar to the situation pertaining to the property rights of any private citizen.

I'm not, I'm saying the church has already stipulated its consent to a new use by entering into an agreement, but I think Peregrinus has already set that out well, including your idea about redress compensation, though absent my own opinion that as a debt not secured on any church properties, it would to my mind not be recoverable from Church properties.

recedite wrote: »

So yes, I do agree with this definition of "divert", but it brings us right back to square one; ie the church having no special property rights compared to the private citizen. Given that seizing property by the crown or state using military might is nowadays frowned upon, whether seized/diverted from the private citizen or the church. With CPO's, this is the exception where the state can seize property, provided it also pays compensation. But all the examples you have given have been land for public works, or some works needed for public infrastructure. I don't see any difference there between the treatment of property belonging to church or to private citizens.

I think Peregrinus has addressed all of this perfectly well, including the historical aspect of the provisions.

Greenmachine

Why the whole abuse repatriation thing happened. Something along the the lines of CAB should have been set up seize all schools and places of worship from the catholic church and them made tenants of the state. The state had their part to play in how long the abuse went on, and they have a role in paying compensation, but the church have a bigger part and their compensation bill dictates.