A last-minute government amendment, published in the final few days and available here (see Gov NC64-NC70), obliges a number of categories of people working with young people to report child abuse or any suspicion of it, including any information received from a third party, to the police or the local authority. Of itself breach of this duty carries no legal sanction (though professionals can expect to face regulatory consequences.) Fair enough, you might say. But that is not the end of it. There is also a proposed new Clause 78, which would make it a crime, carrying a potential seven year’s imprisonment, for anyone who knows that someone is subject to the otherwise unenforceable duty to report abuse to “engage in any conduct with the intention of preventing or deterring that person from complying with that duty”.
The problem is obvious. The formal duty to report would be placed on anyone providing children with any form of teaching, training or instruction, or with guidance relating to their physical, emotional or educational well-being. This would include the vast majority of parish priests in the country with responsibility both for hearing confession and for inducting the young into the faith. And there is no exception for secrets revealed in solemn confession.
True, there would be no secular sanction on a priest himself for failing to divulge these. But what of others within the church? On a literal reading of Clause 78, it now seems that a potential seven years in prison would face any member of the hierarchy, or for that matter any other principled Catholic layman, if the priest consulted them and they advised him of the inviolability of the confessional or reminded him that in this respect his duty to God had to prevail over over that owed to the secular power. Such a person would, after all, have engaged in conduct with a clear intention of preventing compliance with the new duty. Indeed, it gets worse. Although the government apparently sees the new crime as limited to those who know of a particular episode and seek to cover it up, the new clause is widely enough drawn to catch even a much more general case. Think, for example, of the writer of a devotional book or pamphlet which as a matter of principle expresses the entirely orthodox view that if a priest cannot persuade a confessed child abuser to turn himself in, in the last resort he has to take the secret to the grave. Is he not also acting with intent to prevent a breach of the duty to the state?
It seems likely that this over-wide provision is simply a matter of hasty drafting, and its implications an unintended consequence arising from a desire to penalise over-cosy managers in schools and other organisations who conspire to cover up cases of child abuse while gently getting rid of the person who did it. Certainly, at least for the moment, there is no indication that the government has any desire to pick a fight with the Church (or for that matter with ultra-high Anglicans, who in a few cases also take confession and are similarly bound by canon law to keep its secrets).
Nevertheless, we should fight strongly to safeguard the Church’s interests here. Now is the time to make the point to any Parliamentarians we know that there is a vital need for a specific protection for confessional secrets as an exception to the duty to report (and hence also to Clause 78). This is for a number of reasons. A future government armed with this legislation might take a less obliging approach, as others elsewhere have done (notably Australia, where five out of six states have now quite deliberately passed laws requiring a breach of the confessional seal). Furthermore, however principled our priests may be, the proposed law may in practice have the effect of discouraging confession of certain sins and thus driving a wedge between parishioners and their God, not to mention putting an entirely inappropriate legal brake on the provision of advice to priests on how to deal with cases where they have received compromising confessions.
Can we obtain this protection? There is a chance. True, some members of the House of Commons, like a number of the great and the good in England, are hostile to religion and may be glad of any excuse to attack the church with Clause 78. But most Parliamentarians are either non-aligned or sympathetic. Furthermore, they can always be reminded that the practical scope of the necessary exception would actually be quite small. Anecdotally, we hear that a good many admissions by parishioners to priests of previous child abuse are made outside the strict confessional, where the strict rules about absolute confidentiality do not apply anyway; the number of cases covered by a confessional exception to the duty to report would thus be very limited in practice.
And, of course, even if the arguments are unsuccessful in the Commons, there is always the Lords, which could well be more sympathetic. Here we might indeed see a rare opportunity for the Church to seek to make common cause with the Anglican Lords Spiritual and ultimately to persuade Parliament to do the right thing by both Caesar and God.