Updated, 12:22
THE CONTROVERSIAL new legislation which would make it a criminal offence not to disclose information relating to the abuse of a child would not address the current exemptions granted to priests, it has emerged.
A briefing paper for TDs and Senators, produced by the Oireachtas library service, has noted that the Withholding of Information on Offences against Children and Vulnerable Persons Bill does not remove the privilege given to priests under a court ruling from 1945.
In that ruling – in the case of Cook v Carroll – the High Court held that priests enjoyed “sacerdotal privilege”, which gives them the right to “refuse to divulge any confidential communication whatever made to him as a priest”.
That means that any disclosures made to a priest – even if they are not given through the sacrament of confession – do not have to be referred onwards, as they are considered to have been made in confidence.
The report, covered by the Irish Daily Mail this morning and seen by TheJournal.ie, notes that the Bill being brought through the Oireachtas at the moment does not make reference to, or rescind, any privileges – meaning it would continue after the Bill is enacted.
The Children’s Ombudsman, Emily Logan, had recommended that the legislation include clauses which removed sacerdotal privilege, “given the serious nature of arrestable offences against children”, but such legislation was not included.
“While it is for the Attorney General to advise on the constitutionality of any proposed legislation, this Office does not believe that it would be unconstitutional for the legislation to be extended to the confessional and this Office recommends that it be so extended,” Logan said.
In any event, it should be clarified that sacerdotal privilege in respect of communications outside the confessional cannot give rise to a reasonable excuse.
Some jurisdictions limit privileged communications where alleged child abuse is involved; a number of states in the US recognise only client-lawyer privilege in such cases, while others do not recognise any privilege in communications relating to suspected child abuse.
The Oireachtas library routinely compiles objective and impartial briefing papers on legislation, to help legislators understand the implications of each Bill that comes before them.
A Leinster House spokesman said the service produced a Bills Digest and Debate Pack, which together were “designed to assist members in their scrutiny of legislation before the Houses”, though neither constituted formal legal advice.
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