THE SEAL of the confessional is generally respected in most western
jurisdictions, whether constitutionally or by custom and practice.
To
date, in the Republic, Northern Ireland and Britain it is respected
under custom and practice, while in the US it is protected under two
constitutional amendments.
Legislation to breach the seal of the
confessional would be “unenforceable”, “impractical”, and “a distraction
from the main issue”, chief executive of the Catholic Church’s child
protection watchdog, the National Board for Safeguarding Children, Ian
Elliott said.
A Presbyterian, he was not so much
defending the Catholic Church as pointing out that “such legislation is
unenforceable unless you bug the confessional”, he said.
Insistence
on doing so would “only antagonise and distract from the main issue
which is the protection of children. Why fight it, when we should
concentrate on priorities?” he asked.
He recalled from his
experience as lead child protection adviser in Northern Ireland that the
advice of civil servants there was to respect the seal.
There he
implemented a major reform programme for child protection services
within the region.
It was why he was headhunted by the Catholic Church
and appointed chief executive of its watchdog in July 2007.
In
Dublin, Minister for Children Frances Fitzgerald said child
protection was a non-negotiable issue and the sacrament of confession
could not be used as a defence to claim exemption from the new rules.
“If
there is a law in the land, it has to be followed by everybody. There
are no exceptions, there are no exemptions,” she said. “I’m not
concerned, neither is the Government, about the internal laws or rules
governing any body.
However, Dr Gerard Whyte, associate professor
of law at Trinity College Dublin, said “the seal of the confessional
enjoys some legal protection in civil law as well as under canon law and
so it is more accurate to characterise the issue here as one of
securing a balance between conflicting civil rights”.
It was “well
settled in Irish common law that a member of the clergy of any
denomination may not be compelled in law to disclose the content of any
conversation between him/her and a parishioner unless the parishioner
agrees to such disclosure”, he said.
In the US the seal of the
confessional is protected by the guarantee of religious freedom in the
first amendment and by a guarantee to a priest’s right to privacy under
the fourth amendment to the US constitution, he said.
“It is
therefore at least arguable that, under our Constitution, the seal of
the confessional is protected by the guarantee of freedom of religious
practice in article 44.2.1 and by the right to privacy implicitly
guaranteed by article 40.3,” he said.
But it was also the case that neither guarantee nor right were absolute.
“It
may be necessary to show, inter alia, that the legislative interference
with the seal of the confessional is necessary in order to prevent the
concealment of child abuse and that the proposed interference impairs
the right of free practice of religion as little as possible,” he said.
He
was “far from suggesting that such legislation would be
unconstitutional” but the matter was more complicated than ensuring the
applicability of State law to members of a private club.