Alan Shatter (Dublin South, Fine Gael)

I again thank Senators for their considered contributions. I will first make a general point and then I will deal with the specific queries that have been raised. I wish to be absolutely clear, because there have been interesting reports in the media. I have seen two reports which contain a variety of different things. In one case there was a suggestion that the entire clergy in the Catholic Church is exempt from the provisions of the Bill. On the other hand I have seen articles saying that I am persecuting the church and that the clergy is bound by the Bill. It is extraordinary how one can have such different views in print depending on the story one is writing.

Sections 2 and 3 of the Bill set out clearly criminal offences which apply to children on the one hand and vulnerable adults on the other. Should an individual know of particular offences, not just confined to sexual abuse or sexual offences, there is an obligation to assist the Garda by furnishing to it the information that is available to them. If they fail to meet their obligations under the legislation they can be prosecuted. No one is exempt from prosecution.

There are defences prescribed by the legislation. I heard my good friend and colleague, Senator Bradford, expressing some disappointment that the defences in some way – I paraphrase what he said – water down the legislation. There are defences because, first, it is important that the legislation is fair and proportionate and, second, because this is legislation protective of children and vulnerable adults. It addresses the position of children and vulnerable adults as victims and ensures that it does not erect any barrier to them seeking help in circumstances in which they require help. Likewise, it does not erect a barrier which inhibits a parent making a decision in the interests of the welfare of their children. This would be the case in circumstances where neither the parent nor any other family member is the perpetrator of an offence in any shape or form. The Bill ensures that when they need and seek professional help, be it from the Rape Crisis Centre, some other counselling organisation, a social worker, psychologist or psychiatrist, there is no barrier erected to them seeking that help so they can get what assistance they require.

In the same way victims should not feel under immediate pressure if they have a reservation about giving information to the Garda. It is desirable that they would give the information. However, they should know they have the space and that they are not required to give it. This was a concern expressed in regard to the heads of the Bill by some of the organisations that provide these services. The concern was that if people need help they do not fail to seek it for fear they will find themselves immediately in a Garda investigation at a time of enormous personal stress. Having said that, it is desirable and of huge importance that any individual who is a victim of serious crime, including sexual abuse, report it to the Garda. It is of huge importance that they co-operate with the Garda. The Garda now has a special unit with individuals specially trained to deal with individuals who, sadly, find themselves the victim of such offences. It is very important that the message goes out that the Garda is very well equipped nowadays to provide help. People should not feel scared or intimidated by virtue of having a conversation with the Garda and advising gardaí of what occurred. At a time of enormous personal stress it is recognised that people - first and foremost, children and vulnerable adults - should get help if they require it and they should not feel there is a barrier to them getting that help.

In a nutshell, that is what the defence provisions are about. They are not about a third party being allowed to conceal something for some invidious reason. They are all about the welfare of the victim or the vulnerable adult. In this context, I draw attention to something that encapsulates the philosophy of the defence provisions very well. Section 4(15) which deals with prescribed persons - we have dealt with who they are - reads:

The defence provided for in subsection (14) shall be established only if--

(a) the prescribed person concerned had reasonable grounds for forming the view concerned in relation to the child or vulnerable person concerned for the purpose of protecting the health and well-being of that child or vulnerable person, and

(b) the prescribed person concerned, in forming that view in relation to the child or vulnerable person, as the case may be, concerned--

(i) acted and continues to act in a manner, and

(ii) applied and continues to apply the standards of practice and care,

that can reasonably be expected of a prescribed person forming such a view in the circumstances concerned.

This deals with the prescribed person in a designated organisation who is dealing with issues relating to vulnerable adults or children who seek his or her help. It is particularly important that these provisions are in place, but they do not take away from the serious obligation imposed by the legislation on the generality of people to report serious offences, including child sexual abuse and other offences perpetrated on a vulnerable adult.

There are two issues involved. We will revert to the concept of reasonable excuse, referred to in sections 2 and 3, and the issue raised by Senator David Cullinane and others, namely, privilege. Senator Paul Bradford is right, in that much of the public discussion on the Bill - it is not really a public discussion; it is a tabloid media discussion - has obsessively focused on the issue of either sacerdotal privilege or whatever other privilege there may be in the communications that take place between a member of the Catholic Church particularly, what is being focused on, and another individual. I will emphasise this point and cannot say more clearly that the legislation contains no express exemption that applies to a member of a religious faith.

The next question that arises is whether there is an implied exemption. What is the law in this regard? Could a priest say that, because Mrs. McGrath came to him to say Fr. Murphy had abused her son or daughter, being a priest exempts him from reporting it to the Garda? I am saying nothing about the confessional. By virtue of the individual being a priest, does he have an exemption under the legislation from applying its provisions? Let us presume the individual is a bishop and Mrs. Murphy names the particular priest within a diocese who has abused the child. She tells the bishop that it has occurred and that she wants him to do something about it. Is the bishop exempt? Under this legislation, he has no exemption, explicit or implicit. That is absolutely clear.

I have read with some interest much of what has been written about various court judgments. There is a court judgment in the case Cook v. Carroll which has been produced. Selective bits have been taken from it. It was an interesting case in which judgment was delivered on 31 July 1945 by Mr. Justice Gavan Duffy. For some reason, the law report carries two dates - 14 and 31 July. The judgment was reported on page 515 of Irish Reports for that year. I will explain it in order that Members of the House will know what it is about, as it has been referred to repeatedly in the media. A parish priest interviewed together in his home a girl parishioner who alleged she had been seduced and the parishioner whom she held responsible for the seduction. Subsequently, an action for damages was brought by the girl's mother against the parishioner and the priest was called to give evidence of what had occurred in the interview. He refused to give evidence and claimed privilege. It is stated in the headnote of the report that Mr. Justice Gavan Duffy held that his refusal to give evidence was justified and not in contempt of court, with the court expressing the view that "communications made in confidence to a parish priest, in a private consultation between him and certain of his parishioners, are privileged, and that such privilege cannot be waived by a party thereto without the consent of the priest". Let us assume that this is the current law which it is not for reasons I will come to. This case involved a communication made "in confidence". It was described by the judge as the equivalent of a "without prejudice" conversation with a priest who was trying to assist in solving a problem, either by the parishioner admitting paternity or the mother admitting she had made a false allegation. Clearly, he was unsuccessful in both. It was a confidential conversation, as everyone agreed at the time. If Mrs. Murphy says to the bishop that Fr. So-and-so has abused her daughter and that he must do something about it, is the bishop obliged to report? Of course, he is. It is not a confidential communication, as Mrs. Murphy is making a complaint. It does not fall under this umbrella.

The case had nothing to do with the confessional. Although Mr. Justice Gavan Duffy considered there was a need to stray off on a tangent and talk about the confessional, at some point even he admitted that the confessional was not an issue in the case. What is interesting about this judgment is, in so far as issues arose, that it was speaking about confidences given outside the confessional and reference was made to how "the inviolable secrecy of the sacrament of penance stands alone and unique". He also talked about other things, but this was a conversation outside the confessional. He said:

I have to determine the issue raised in this case on principle and in conformity with the Constitution of Ireland. That Constitution in express terms recognises the special position among us of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens; and that special recognition is solemn and deliberate. The same Constitution affirms the indefeasible right of the Irish people to develop its life in accordance with its own genius and traditions.

This was a judgment based on the Catholic Church having a special position in the Constitution which, as far as I can recollect, we held a referendum to remove in or about 1972. The basic philosophy behind this decision was that it derived from the constitutional peculiarities of the Irish church.

Mr. Justice Gavan Duffy explored English law, on which Irish law had previously relied, and noted that, under it, there was no such privilege granted to members of the Catholic Church. He put this down, more or less, to the fact that England was a Protestant country, that this was a Catholic country and that we dealt with things differently. He then tried to hang his hat on the principle he was enunciating on a very well written and famous book dealing with the Anglo-American system of evidence.

The third edition was published in Boston in 1940 by Wigmore, an individual famous in the law of evidence.

On whether privilege should be granted or not, Wigmore set out a series of principles which were elaborated in four headings. It is worth drawing attention to these because of the superficial nature of the media coverage of this particular issue. I will quote from the book from which Gavan Duffy quoted:

Looking back upon the principle of Privilege, as an exception to the general liability of every person to give testimony upon all facts inquired of in a court of justice … four fundamental conditions may be predicated as necessary to the establishment of a privilege against the disclosure of communications between persons standing in a given relation.

Before I go through the principles, Members should remember this is about privilege in the context of civil proceedings, not criminal. The first principle is, "The communication must originate in a confidence that they will not be disclosed". I approach the bishop and tell him that I want him to tell the Garda about an incident. It is the exact opposite. It is not applicable. The second principle is, "This element of confidentiality must be essential to the full and satisfactory maintenance of the relation". Mrs. Murphy does not care about the relation. Is one supposed to look at the broader relation of the church with all of its communicants? That is an interesting theoretical question but is not directly relevant to what we are dealing with. The third principle is, "The relation must be one which in the opinion of the community ought to be sedulously fostered". That is an interesting one. Would the community in Ireland now regard it is as more important to protect the clergy from allegations of sexual abuse or more important that reports of abuse be given to the Garda? Whatever they might have thought in 1945, I think we currently occupy a different space. The clincher in the whole thing is the fourth principle which states, "The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation." From the perspective of the church – this State does not legislate specifically for one church – it would see it as damaging that communications given to a bishop about sexual abuse would be given to the Garda Síochána. I do not believe the general community, nor our courts in this day and age, would take the view that the damage done to the church was of far greater concern than the likely damage done to the children who might be the victims of perpetrators of abuse.

If one looks behind this judgment, the very principles prescribed from which this judge made his decision are the very principles which a modern court today would probably utilise to ensure in criminal proceedings that one would not have a defence for failing to provide information. There is, of course, an issue that could arise which is the constitutional right to freedom of religion. That, however, is circumscribed in a very specific way in the Constitution. I believe the manner in which it is circumscribed deals adequately with this issue.

As it has got some considerable mileage, it is worth drawing attention to another aspect of this particular judgment delivered by Mr. Justice Gavan Duffy. In it he stated:

The relation that concerns me directly is that of the Irish parish priest towards two of his parishioners and theirs towards him at a crisis, in a moment of gravest anxiety, which he will often be in a much better position to relieve than anyone else. As a rule, he is regarded as being truly the spiritual father of his people and his traditional devotion to the people through generations has won for him in Ireland the prerogative of an extraordinary moral authority; he is, therefore, more likely than others to get the truth in a matter of extreme delicacy and so was more likely to induce the delinquent here (seducer or calumniatrix) to make proper amends. It cannot be taken as a matter of course that Wigmore's conditions, if they apply here, will apply to every confidential communication made by anyone to any priest or any clergyman as such, but I must not travel outside the relation constituted by the consultation in strict confidence of a parish priest as such by a parishioner.

Even Mr. Justice Gavan Duffy recognised in circumstances where the Catholic Church had a constitutional special position that every communication to a priest was not and could not be confidential and omitted from court proceedings. That is absolutely clear. What makes it very interesting is in the context of the final part of the judgment. In it he stated:

[T]reating the question as one of substantive law, I hold that the emergence of the national Constitution is a complete and conclusive answer to the objection that I have no judicial precedent in favour of the parish priest.

The Constitution has been changed since this particular judgment was delivered on in the context of communications that have nothing to do with the confessional and are made directly to a priest, rabbi or rector.

What is particularly interesting is another judgment that never appears in dispatches, the High Court 1999 case Johnson v. Church of Scientology Mission of Dublin Limited. In dealing with the issue of claims of privilege - the Church of Scientology tried to claim the same privilege the priest sought to claim in 1945 - Mr. Justice Geoghegan stated:

It went beyond the relationship of parish priest and parishioner but on the other hand it seems to repudiate the idea that the priest counsellor himself could have a privilege which he would have to waive.

I think that the waters were muddied to some extent in Cook - v - Carroll with all respect to Gavan Duffy J. by the references to the confessor penitent relationship in the sacrament of confession and by references also to the then existing article in the Constitution referring to the special position of the Roman Catholic Church. Gavan Duffy J. appears to have been of the view that there were constitutional and legal effects arising out of the so-called special position of the Roman Catholic Church. However, in other decided cases the view was expressed that it had no such legal effect and that it was really nothing more than a statement of fact. It being a fact, then as a matter of common sense and justice, it was reasonable for the Courts to revive what Gavan Duffy J. says was the pre-reformation common law protecting the seal of the confessional even against waiver by the penitent. However, that is merely an opinion I express because I do not think it arises in this case.

He went on to state he accepted, "there can be situations where a privilege may arise in relation to counselling by a priest or minister". They are different where someone is providing counselling. A privilege may arise if one seeks counselling.

Where does that leave us with this legislation? Yes, it is possible if a priest or bishop is prosecuted under this legislation that they may claim they are entitled to some form of privilege. The legal basis for that claim, as detailed in civil proceedings by Mr. Justice Gavan Duffy and based on the special position of the Catholic church, no longer exists. If they claim it is based on freedom of religion, the courts may be called upon to decide if it is an important matter of religious freedom to grant some general absolution to ministers of religion from ever reporting child abuse. Will the courts take a view on the balance of society's interests, referring back to the principles used by Mr. Justice Gavan Duffy?

Will the courts form the view that "the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation"? I do not believe that where a child or vulnerable adult has been a victim of abuse, the Irish courts will hold that it is of benefit to the State that those who know of abuse conceal it as opposed to it being of benefit to the State and in the interests of children or vulnerable adults that the information be furnished to An Garda Síochána. I do not see this in the Ireland of 2012 giving rise to a decision based on a civil case from 1945 based on the church having a special position.

I apologise if that is a long-winded response. I repeat that under this legislation there is no express or implied exemption granted to anybody. I know capable lawyers can argue all sorts of cases but there is no need for us to address it any further than we have done in the legislation. At some stage there may be a court case and Supreme Court judgment but with the balance of public policy, the interests in the welfare of children and the recognition that children have rights, which I hope will be copperfastened when we hold our children's rights referendum, will ensure that this, in practical terms, will not be an issue.

One or two other issues were raised that are worth mentioning in passing. I probably have covered much of what was raised already. Senator Keane referred to a recent publication in Italy which appeared to come from the Congregation for the Doctrine of the Faith. I know the Senator did not mean it in such a way but the reference was made to our boss being in Rome. The boss, in the context of Irish civil and criminal law, is the Oireachtas and it does not exist in Rome. It is for the Houses of the Oireachtas to prescribe what legislation should be enacted.