There is probably no legal loophole through which the Catholic Church can escape a State investigation into clerical sex abuse, writes David Gwynn Morgan
One of the central questions about the appropriate form of enquiry into clerical child sex abuse is the status of canon law. If the Catholic Church is asked to provide evidence which, supported by church law, it considered confidential, could it decline to provide this evidence?
Canon law is the body of rules according to which the Catholic Church is run, dealing with such questions as the authority of bishops over priests and parishioners, and the ineligibility of women or married people for ordination.
It is probably best and fairest to see canon law in comparison with other types of domestic governance. The longest established of these is parliamentary privilege, which gives absolute immunity against defamation actions and also allows the Oireachtas internal autonomy in respect of matters like the procedure for debating legislation. Another example is the power of professional bodies, trade unions or even sports clubs to discipline and expel members. Again, local authorities enforce their own procedural rules and even make by-laws.
The essential question is: what attitude does the State law and its courts take towards these islands of non-State authority? The answer, broadly speaking, is that it allows some autonomy to freely formed associations and institutions and acknowledges their right to run their own affairs. Not to do so would be the mark of a totalitarian form of government. To do so demonstrates respect for civil society.
But the space allowed by State law stops where there is thought to be procedural or substantive unfairness to the individual. For instance, we have seen many judicial review cases against, say, the GAA or medical professional bodies, arising out of expulsions or disqualifications.
While it is useful to know, in general terms, where a dividing line runs, it is also important to know who applies it in particular circumstances. Some unease has been caused by suggestions from a canon lawyer that it is for the church to decide which files are relevant and should be disclosed. As a proposition of canon law, this may be so, but it would not be accepted by Irish State law.
Take, for instance, the Employment Equality Act 1998, which permits discrimination by a religious institution where this is necessary to maintain "the religious ethos" of the institution.
Commenting on this, the Supreme Court remarked: " . . . each religious denomination should be respected when it says what its ethos is. However, the final decision on this question, as well as the final decision on what is reasonable to protect the ethos, will rest with the court; and the court, in making its overall decision, will be conscious of the need to reconcile the various constitutional rights involved."
Against this background, what are the constitutional provisions dealing with the church which would guide the High Court in the event of a possible clash?
First, it should be noted that the provision establishing the "special position" of the Catholic Church was removed from the Constitution by a four-to-one majority in 1972.
The solid ground with which we are left as a possible foundation for some sort of special place for canon law is two-fold. The first relevant provision, Article 44.2.0, states: "Every religious denomination shall have the right to manage its own affairs . . . and maintain institutions for religious or charitable purposes." There is very little authority on this provision. However, it is unlikely to be read to subvert other articles of the Constitution on individual rights.
The closest we have to an authority is still the McGrath case, which arose in the mid 1970s out of the dismissal of the plaintiffs as lecturers at Maynooth. While the plaintiffs' case failed, it was remarked of the court's approach that it showed that "decisions by church authorities are not immune from judicial scrutiny".
The circumstances which might arise out of the present tragedies are rather different, but this general principle would apply.
The second relevant law is the privilege protecting the secrecy of the confessional. This was established in the Cook case, when a parish priest had refused to disclose, as a witness in a seduction, the content of a conversation between himself, in his pastoral capacity, and the woman concerned. The conversation, however, did not amount to a formal confession.
Conversations of this kind had not formerly been considered privileged, leading, in an English case, to the imprisonment of a priest who had refused to disclose something said in the confessional. In consequence, there was a riot by his parishioners in Birmingham. In the Cook case, the High Court here refused to follow English precedent or to hold the priest guilty of contempt. While the Cook case was decided in 1945, later decisions have confirmed it.
These noted that apart from religion, a case may also be grounded on the general idea of privilege, which can be deduced from the confidentiality granted by the law to the doctor-patient or lawyer-client relationship.
While there is a strong and long-established case for saying that there is a privilege for something resembling a confession - for instance, by a priest to a bishop or another priest - this privilege would not cover the circumstances likely to arise in an inquiry of the type presently contemplated into clerical abuse of children.
It would probably not cover, for instance, a letter from a priest to a bishop relaying complaints about alleged abuse by a cleric in a neighbouring parish, a phone call from a bishop warning off a suspected paedophile priest, a record of such a warning or a meeting of bishops to discuss the situation.
In short, there could theoretically be a clash between State and canon law, on the basis that each side claims the right to decide where the boundary between them runs. No doubt the authorities on each side will take care to avoid this because a fair, thorough investigation is in everyone's long-term interest.
The essential point is that, contrary to some alarmist suggestions, there is, in the eyes of State law, probably no loophole through which the Catholic Church could escape, any more than a Haughey or a Lawlor.
David Gwynn Morgan is a law professor at University College Cork