Eugene Regan (Fine Gael)

The Minister is right on some of the points he has made, but he is fundamentally wrong on the principle and in his analysis of what could be done to deal with the problem he has identified. The manner in which he has dealt with this issue makes a nonsense of the legislation before the House. He mentioned that the matter was not dealt with between the agreeing of the 1937 Constitution and the introduction of the Defamation Act 1961. There is a time to let sleeping dogs lie. If the Minister had done so in this case, we would not have to waste our time on this issue.

I would like to deal with the principle that is at stake. The 1937 Constitution has been quite considerably modified to make it more suitable for a more modern Ireland, as an EU member state. It is far removed, in many respects, from the 1937 version. Various issues, such as the special position of the Catholic Church, the claim on Northern Ireland and divorce, have been dealt with. I suppose the current version of the Constitution reflects the type of constitution that was envisaged by Dr. Garret FitzGerald when he launched his constitutional crusade. The measure the Minister proposes to introduce is more than a step back in time - it is a giant leap back in time. The legislation before the House, properly interpreted, makes the humour of Tommy Tiernan, "Father Ted" and "The Life of Brian" a criminal offence. The reality is that the 1961 offence and the 1937 constitutional provision have fallen into desuetude, to use a legal term. Therefore, the Minister's approach is fundamentally flawed.

The Minister has referred to the various bodies that have suggested this offence should be removed from the Constitution. The Law Reform Commission made such a recommendation in 1991, as did the Constitutional Review Group and the Joint Committee on the Constitution, of which I am a member, in 2008. The Minister has argued that the joint committee did not say the provision in question should be removed now, but I remind him that it recommended in its report that it should be removed, essentially, when the next pragmatic opportunity arises. Such opportunities present themselves from time to time. This technical constitutional provision, which is antiquated and anachronistic, could be dealt with on 2 October when the people vote in the second Lisbon treaty referendum. It is absolutely clear that the members of the Oireachtas committee intended for this provision to be removed from the Constitution. The problem that arose in the case of Corway v. Independent Newspapers, which has been mentioned by the Minister, was that the offence in question had not been defined. The court pointed out that it was a matter for the Oireachtas, rather than the courts, to define the offence. That is the issue.

This offence was abolished in the United Kingdom following the 2007 case of Green v. City of Westminster. The claim of blasphemy in that case, which concerned a screening of "Jerry Springer: The Opera", was rejected. It is worth quoting what the former UK Parliamentary Under-Secretary of State, Baroness Andrews, said in 2008 when she was introducing an amendment to the UK Criminal Justice and Immigration Bill to abolish this offence. She stated:

The Government are of the view that it is now time that Parliament came to a settled conclusion on this matter for two key reasons. First, the law has fallen into disuse and therefore runs the risk of bringing the law as a whole into disrepute. Secondly, we now have new legislation to protect individuals on the grounds of religion and belief.

That issue also arises in the context of this debate. I suggest that the Minister, Deputy Dermot Ahern, is bringing this country's law into disrepute. By his own admission, he has designed this legislation to ensure no prosecution will succeed. While it is clearly intended that no prosecution will ever be brought, he has suggested that there is an obligation to legislate in this specific way to adhere to a constitutional imperative and obligation on the Oireachtas. It is a nonsense from the beginning.

At my request, in May of this year the Oireachtas Library and Research Service prepared a research paper on blasphemy laws in other EU member states. The paper is largely based on a survey of blasphemy laws that was prepared for the Council of Europe when it was producing a report. I refer to the work of the European Commission for Democracy through Law, which is better known as the Venice commission, when it examined member states' legislative provisions dealing with freedom of expression, blasphemy laws and hate speech for the Council of Europe. The survey found that national legislation tends to deal in large measure with freedom to practise religion, statements that might incite hatred or disturb the peace, and discrimination against people on the grounds of religion. In Belgium, it is illegal to desecrate religious objects or interfere with religious observance. There is no offence of blasphemy in France. Article 166 of the German penal code provides that anyone who publicly insults, by acts or published words, the contents or beliefs of a religion in a manner likely to disturb the peace, may be punished by up to three years imprisonment or a fine. Under the Polish penal code offending religious feelings through public calumny of objects or places of worship is outlawed. In Portugal whoever publicly offends another person or mocks him or her on account of religious beliefs commits a criminal offence. The Spanish penal code has similar provisions as regards whoever publicly mocks doctrines or beliefs.

Then we come to the United Nations and what is current practice and thinking on the whole issue of defamation of religions, as very much highlighted in the Danish cartoons case. The report from the Oireachtas Library says that the non-binding resolutions condemning defamation of religion have been adopted by the UN General Assembly and Human Rights Council. A report dated 2 September 2008 by a special rapporteur of the UN's Human Rights Council strongly recommends:

[T]hat the Human Rights Council encourage a shift away from the sociological concept of the defamation of religion towards the legal norm of non-incitement to national, racial or religious hatred, on the basis of the legal provisions laid down in international human rights instruments, in particular articles 18 to 20 of the International Covenant on Civil and Political Rights and article 4 of the International Convention on the Elimination of All Forms of Racial Prejudice.

That is very helpful because the Minister for Foreign Affairs, Deputy Micheál Martin, in that international forum, follows the line I have just outlined and takes a totally different approach from that reflected in the legislation before us. When he was dealing with this issue at the United Nations he stated in a response to a question raised in the Dáil on the matter:

We believe that the concept of the defamation of religion is not consistent with the promotion and protection of human rights [Presumably, because it interferes with freedom of speech]. It can be used to justify arbitrary limitations on, or the denial of, freedom of expression. Indeed, Ireland considers that freedom of expression is a key and inherent element in the manifestation of freedom of thought and conscience and as such is complementary to freedom of religion or belief.

He pointed out that Ireland supported a UN resolution on the elimination of all forms of intolerance and discrimination, based on religion and belief.

The Holy See, at a United Nations meeting in Geneva, pledged its support for the International Covenant on Civil, Cultural and Political Rights as the best protection for religious freedom and as an alternative to prohibiting the defamation of religions. An article in The Irish Times of 1 May 2009 stated:

At a meeting of the Human Rights Council on All Forms of Intolerance and Discrimination last September, Msgr Silvano Marie Tomasi, the Holy See's permanent observer at the UN, said: "This delegation ... fully supports the reaffirmation, by the Human Rights Council, of the right to freedom of religion, conscience, belief and religious practice ... It concurs also with the advice of the special rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, offered to this council, to refocus its reflection away from the vague sociological concept of 'defamation of religions' to the juridical norm of non-incitement to national, racial or religious hatred, and to the rights well summed up in the International Covenant on Civil, Cultural and Political Rights."

That is the thinking internationally and those are the views of the Holy See. We now recognise that Article 40 of the Constitution provides that the publication of blasphemous matter is an offence which shall be punishable in accordance with the law. It is true, as the Minister has said, that in the Defamation Act 1961 it is set down as an offence. How do we deal with that? The Minister has said there is no alternative to this legislation.