Carol Coulter, Legal Affairs Correspondent, examines the relationship between civil law and the Church in the light of the proposed Ferns inquiry
The first issue to be decided concerning clerical sex abuse in the Ferns diocese is whether the inquiry announced by the Government will be a formal or informal one.
Many of the most effective recent inquiries have been informal, like the McGuinness inquiry into the Kilkenny incest case, and the Murphy and Macken inquiry into the sexual abuse of young swimmers. They were able to conduct their business quickly and produce comprehensive reports. They benefited from the co-operation of the bodies concerned.
A formal, or statutory, inquiry is likely to take much longer and be much more expensive. It has the power to compel people to give oral evidence and produce documents. However, the other side of this is that people appearing before it have the right to legal safeguards of their rights, and may seek the assistance of legal teams to uphold these rights.
For reasons of speed and efficiency, therefore, an informal inquiry would be preferable for both the victims and the State.
The kind of inquiry likely to take place will be determined by the extent of the co-operation offered by the Catholic Hierarchy. If the man charged with recommending the nature of the inquiry, Mr George Birmingham SC, is convinced that there will be sufficient co-operation to permit an informal inquiry, he will be able to recommend this to the Government. This depends on the commitments given by the bishops, which in turn will be at least coloured by canon law.
Canon law has no status in civil law, though one particular aspect of it has won recognition over the years. The relationship between a priest and penitent in the confessional is recognised as privileged, which means that a court cannot order the disclosure of what occurs.
A case granting recognition of the secrecy of the confessional was one of the first instances where the newly-independent Irish courts departed from the precedent of the British courts.
The privilege this granted to the confessional is similar to the privileged relationship between a solicitor and his or her client, where what passes between them cannot be revealed to third parties without the permission of the client.
However, other relationships also governed by canon law, like those between priests and bishops, for example, are not covered by privilege in civil law.
This does not mean they have no legal existence. Canon law, in the eyes of the State, is analogous to the rules of a club or society. A golf club can state in its rules what relationship exists between voluntary officers and employees, for example, and these relationships will have a legal status. Matters relating to them can be explored in court or in bodies like the Employment Appeals Tribunal.
Some aspects of Church organisation are already regulated by civil law. This is true of its ownership of and dealings in property, which is usually conducted by trusts. These are governed by company and property law.
The likely attitude of the bishops to the inquiry was indicated by Archbishop Sean Brady at yesterday's press conference when he said that the bishops were citizens of the State and subject to its laws. This seemed to suggest that the bishops would not seek to invoke canon law to avoid handing over documents and providing other information.
Once the nature of the inquiry has been decided, it will be necessary to decide what it will examine. It is likely it will look at what was known, when it was known, and by whom. This is likely to extend to the civil as well as the Church authorities. Already questions have been asked about a report to the Garda of the activities of a priest in the parish of Manager, Co Wexford. If allegations were not acted upon, explanations are likely to be sought for the inactivity.
The Laffoy Commission is already examining a range of instances of child abuse, much of it by religious. However, its brief is confined to institutions. Although these are broadly defined, that definition could not extend to abuse which occurred in a purely pastoral context, as appears to be the case in Ferns.
Unlike in the institutions, the State had no responsibility for the behaviour of priests in a pastoral context. But the Church authorities had a responsibility to bring crimes to the attention of State agencies, and the State then had a responsibility to act on the allegations.
Whether this happened, and if not why not, will be at the centre of this inquiry.