Sir, – The Minister for Justice informs us that “it was possible that if a priest or a bishop was prosecuted under withholding of information legislation they might claim entitlement to some form of privilege. However, the legal basis for such a claim no longer held, as the special position of the Catholic church had been removed from the Constitution” (Home News, June 13th). Without getting into the merits or otherwise of the continued existence of sacerdotal (priest-penitent) privilege in our law, one has to wonder if the Minister isn’t hoping that by wishing hard enough, he can change the Constitution without a referendum.
Tim Bracken (Letters, April 27th) has already drawn your readers’ attention to the 1945 High Court decision of Cook v Carroll, which lent constitutional force to the privileged nature of communications under the seal of the confessional. This case has never been overruled. The Minister seems to contend that due to the removal of the constitutional reference to the special position of the Catholic Church by the Fifth Amendment in 1973, this case is now a dead letter. This is, with respect, a matter of personal conjecture on the Minister’s part. As learned a lawyer as Mr Shatter no doubt is, he is not a judge, and therefore it is not within his province to decide what is or is not protected by our Constitution.
Furthermore, the High Court reaffirmed the existence of sacerdotal privilege in our law in a 1999 case, Johnson v Church of Dublin Mission of Scientology Limited. This case is notable in that it was decided some quarter of a century after the removal of the reference to the special position of the Catholic Church from Bunreacht na hÉireann, a fact which must seriously call the Minister’s contention into question.
As an aside, an impartial report prepared by the Oireachtas Library and Research Service for the assistance of TDs and Senators during the debate on this Bill supports the view that sacerdotal privilege lives on, regardless of the Minister’s most earnest wishes. If so, the Bill will change nothing as regards the seal of the confessional, and a referendum will be necessary. – Yours, etc,