What About Article 44.2.5?


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Roisín Shortall, co-leader of the Social Democrats

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Article 44 from Bunreacht na hÉireann

The Minister for Health’s announcement that he will re-examine the proposal to hand ownership of the publicly-funded National Maternity Hospital (NMH) to the privately owned St Vincent’s Healthcare Group is to be welcomed.

However, I would like to raise a matter of grave concern, hitherto overlooked, which needs to be addressed before any agreement on relocation can proceed.

At present, Article 44.2.5 of the Constitution confers on every religious denomination “the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.”

In the past the Supreme Court has emphasised the level of autonomy that this Article gives to religious organisations. It has been interpreted as conferring on religious institutions the right to apply their own doctrines in institutions under their ownership. It has also been successfully used to defeat well-founded cases taken against religious denominations under civil law.

For example, in a significant judgment in the 1979 case of McGrath and O Ruairc v The Trustees of Maynooth College, the Supreme Court cited Article 44.2.5 while upholding the right of the Bishop trustees of the college to dismiss two priests from their teaching posts because they wanted to leave the priesthood.

St Vincent’s Healthcare Group (SVHG) is an institution set up by a religious denomination, the Religious Sisters of Charity. As the company’s foundation document makes clear, SVHG is legally dedicated to providing healthcare, “in keeping with the mission of the Catholic Church,” and its facilities operate within that ethos. If the new National Maternity Hospital is part of the St Vincent’s group, it too will come under the umbrella of the Constitutional provision.

In return for being handed sole ownership of the new €300 million maternity hospital, SVHG says it will enter into agreements guaranteeing the clinical independence of the new hospital and permitting it to perform any medical procedures that are lawful in the land – presumably including abortions and various types of contraception including sterilisations.

However, I believe that if the current deal goes ahead, there will be inevitable conflict in the future over how much control St. Vincent’s is to have in the new hospital.

In light of Article 44.2.5, how can we be sure that in any future dispute over the interpretation or implementation of agreements on the new hospital, the courts would not favour the religious denomination and its Catholic ethos?

In the event of a dispute, it seems that the Supreme Court would have to ensure that the Constitutional protection for the religious order must prevail. A court might find it had no option but to favour the Constitution over any other civil contract or agreement, however solemnly and publicly it had been agreed upon by all the parties concerned.

In a prescient piece in this newspaper yesterday, Fintan O’Toole reminded us that a 1982 High Court ruling upholding the right of the Holy Faith nuns to sack school teacher Eileen Flynn because her lifestyle was not in keeping with the Catholic ethos of the order has never been overturned.

In my view, this grave constitutional complication is yet another reason why all parts of the deal that give St Vincent’s Hospital Group ownership of the new National Maternity Hospital should be dismantled, so that the new hospital remains in the hands of those who will pay for it and who will be relying on its services, the Irish public.

Róisín Shortall TD
Social Democrats
Leinster House
Dublin 2

State funds and private healthcare groups (The Irish Times letters page)

19 thoughts on “What About Article 44.2.5?

  1. ollie

    move the hospital to blanchardstown, loads of green field space available and no redesign needed. Let the nuns enjoy their big car park.

    1. Brother Barnabas

      I think the whole point is that it’s meant to be serving the southside. The Rotunda will be moving to Blanchardstown.

    2. Sheik Yahbouti

      Amen to that, Ollie, this arrogant and outrageous behaviour has to be curbed once and for all. I commend Ms Shortall (my local TD) for her diligence. A thought on this sacred ‘right to own and manage property ‘. Fine as far as it goes, until you remember that in this and other cases this ‘property’ was OURS but was ceded to the Church by a succession of pious, craw thumping Governments. I don’t recall ever being consulted.

        1. ollie

          the nuns were given it as part of a swap deal. they had some property in the city centre that they originally bought with the proceeds of slavery

        2. Sheik Yahbouti

          Yes, newsjustin, it was gifted to the Order by Government of the day. The Sisters who owned an immensely valuable property on St Stephen’s Green (bought with a grant from the State) took the Elm Park site, and trousered the profit from the sale of the St Stephen’s Green property. Wake Up.

        3. Increasing Displacement

          How did the church come to own it, just curious.
          They seem to have an incredible amount of land.
          Sisters of mercy in cork own huge plots

          1. Andy

            1. Donations & collections,
            2. In return for providing services,
            3. Grants.
            4. But most importantly, Ireland was an absolute dump in the 1800’s & 1900’s so land & property was cheap. All you have to so is 50 to 100 years and you’ll be rolling in the money.

  2. phil

    The pattern looks familiar to me , public concern , hand wringing, news paper articles, foreign news paper articles (which embarrass) , the appearance of reconsidering a deal, some time passes , deal quietly passed on original terms ….

    1. Goosey Lucy

      I know. All too familiar. Blah, blah, blah, blah blah! Frustrate the public imagination, tire us out. New scandal emerges. Everyone stops caring , same old crowd get their way.
      That is why it is vitally important NOT to stop talking about it. Sign petitions- they keep it in public eye. Contact your local representatives- let them know it’s an issue for you.
      Or we can all just moan about it and the same old s**t will continue on…

    2. classter

      Dunno, I don’t remember this topic getting anything like this level of sustained, critical scrutiny.

      Let’s see what happens…

      Even if this own is lost (and I’m quietly confident it won’t be) no future minister of health will make the same mistake

  3. Sheik Yahbouti

    Didn’t he just, Scottser? To be fair to the guy he actually wrote publically about what a scam it was – his adherents didn’t care!!!!!

  4. Sheik Yahbouti

    St. Vincent’s Hospital was founded in 1834 on St. Stephen’s Green, Dublin, by Mother Mary Aikenhead, foundress of the Roman Catholic order Religious Sisters of Charity. The hospital was open to all who could afford its services, irrespective of their religious persuasion.[1] Not a lot has changed in 183 years, has it?

  5. By Popular Demand, Frilly Keane

    that McGrath, PJ, from the ’79 case went on to do very well for himself

    had the Philosophy Chair in d’College
    Married a hospital consultant
    Garrett FitzGerald launched one of his books
    And was very highly regarded in his field – Moral Philosphy, lecture tours etc

    died a few years ago

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