Government must declare abuse deal void
Over the past week we have all been shocked at the scale of the abuse uncovered by the Ryan Report. As a result of that report the 2002 deal between the State and the relevant religious orders must be declared void by the government. The Attorney General is soon to deliver his advise on the issue and it is vital that this advise be release to the public so that we can have a full debate on the issue. Over the past few days I have been on Newstalk, TV3 and published in the Sunday Tribune saying that legally the State can and should declare the deal void.
To watch the interview on Ireland AM on TV3, click here.
Any contract formed on the basis of a mistake is null and void. It is a fundamental principle of contract law that all parties to a contract must have a ‘meeting of minds’. They must make an agreement on the basis of the same information. If the religious orders knew that the scale of the abuse was greater than that disclosed to the state then the contact may be void.
When the deal was signed in 2002 the total compensation was estimated to be somewhere between €300 million and €500 million. The most recent estimate is €1.3 billion. Our understanding of what happened is totally different today than in 2002. The victims of abuse must be compensated, the question now is who pays.
This principal of a “meeting of minds” must exist in all contacts, from the most simple consumer contract to complex commercial agreements. Although the abuse compensation agreement is more serious and more complex it must still follow the same basic principle. If the religious orders withheld information from the State, then the agreement may be void. There is also an obligation on the religious orders to make inquiries as to the level of abuse. The legal test is what did the religious orders know, or what they ought to have known. So there is a requirement on them to have made reasonable internal inquires.
The central question was the level of knowledge of the then Minister for Education and the religious orders, and the exact wording of the agreement. “We need full disclosure of all the facts surrounding this deal in order to limit the taxpayers’ liability. This is a classic example of the need for open government.
There are very limited risks for the government in re-negotiating the deal. The religious orders would be forced to take a High Court case arguing that they should not be liable to pay a fair amount of compensation to the victims of these horrible crimes. Even if the State lost, the total legal bill would be €1 million while the possible saving to the taxpayer a staggering €500 million. It is time for the State to be much more assertive with powerful vested interests.