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 last night.
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 yesterday 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.
