Ivana Bacik (Independent)

If I may have the Minister's attention, I wanted to ask again about the jurisdiction of the court dealing with the proposed offence. The Minister said he envisaged it would be the High Court, that would be the Central Criminal Court, and that he did not envisage it would be in the Circuit Court, if I heard him correctly. The stipulation that the fine would not exceed €25,000 is not enough to confer jurisdiction on the High Court because the Circuit Court has jurisdiction to impose unlimited fines in criminal matters. It would require some express provision to ensure these trials would proceed in the Central Criminal Court, as was provided for when rape trials were moved to the Central Criminal Court following the Rape (Amendment) Act 1990. I wanted to clarify that with the Minister.

I want to address the substance of these provisions and express my strong opposition to the statutory definition of the offence of blasphemy. I do not say the Minister is creating a new offence of blasphemy. I accept he seeks to insert a statutory definition of a common law offence that is also stated in the Constitution. Looking at the Corway judgment I do not accept that it is necessary to pass this legislation to give statutory definition of this sort. The Corway judgment was given almost exactly ten years ago, on 30 July 1999, by the Supreme Court. To suggest there is any urgency or imperative about doing this now rings somewhat hollow when there has been a ten-year lapse.

Mr. Justice Donal Barrington for the court, in the critical passage in his judgment, said, "In this state of the law and in the absence of any legislative definition of the constitutional offence of blasphemy, it is impossible to say of what the offence of blasphemy consists". He went on to say, "In the absence of legislation and in the present uncertain state of the law the court could not see its way to authorising the institution of a criminal prosecution for blasphemy against the respondents". The effect of the judgment is to make the offence unworkable.

Mr. Justice Barrington did not find section 13 of the Defamation Act repugnant to the Constitution so there was no imperative to enact a new definition, as the Minister has suggested, just because we are reforming the Defamation Act. The court simply said it was too vague for the court to be able to authorise the institution of a prosecution. The subtext is interesting because the court clearly suggested the crime of blasphemy is outdated. In the previous page of his judgment Mr. Justice Barrington said, "It would appear that the Legislature has not adverted to the problem of adapting the common law crime of blasphemy to the circumstances of a modern State which embraces citizens of many different religions and which guarantees freedom of conscience and a free profession and practice of religion". The court was suggesting the Legislature should adapt the common law crime of blasphemy which, as we know, has changed many times over the years.

To suggest there is only one possible way of defining blasphemy is wrong. The original definition of blasphemy related only to the Christian religion and any challenge to the fundamentals of Christianity was blasphemy. That changed over the years as different clerics were prosecuted for challenging tenets of other branches of Christianity. The definition has changed. As Senator Regan said, the most appropriate way to adapt the offence of blasphemy to today's world, if we accept that some sort of statutory definition might be required, would be to amend the Prohibition of Incitement to Hatred Act. That amendment should have been inserted here instead of the amendments proposed by the Minister in the new sections 35 and 36. That would have been a far more appropriate approach and I would be grateful if he would outline why that approach was not taken. Clearly the status quo could have been preserved in some other manner given that it has been preserved for the past ten years. The Minister has said that the section 13 offence could not have been repealed at this point. The Government could have given a commitment to amend the Constitution to remove the reference to the crime of blasphemy if not at the time of holding the referendum on the Lisbon treaty at some future date. That is in line with all recommendations of previous groups, in particular the Law Reform Commission.

I am grateful for the Minister's comment - I hope I am not misquoting him - that the most optimal approach would be to abolish the offence of blasphemy by removing it from the Constitution. However, what he has done here is the worst of all possible worlds. He proposes to include a new definition of blasphemy based very much on the old law on blasphemy, in which there has not been a successful prosecution for more than 150 years. He proposed to base the definition on the 19th century understanding of blasphemy without seeking to adapt it as the Supreme Court has suggested to the circumstances of a modern state. Perhaps I will await the Minister's attention again.