Joe O'Toole (Independent)

Even if defining the offence of blasphemy were a constitutional imperative, and I do not accept that is the case, it would not constitute a sufficient reason to support the Minister's logic.

The Minister referred to the Law Reform Commission's report on the crime of libel. The report stated there is no place for the offence of blasphemous libel in a society which respects free speech and recommended that the reference to blasphemy be deleted from the Constitution. It is interesting to note how selective are the views that have been assembled.

A significant point arises to the extent that society must organise itself in an orderly fashion and ensure tolerance does not reach a level that tolerates abuse. How do we order society in such a way as to ensure religious beliefs are respected and people do not go too far in abusing people? A number of steps can be taken to achieve this, the most obvious of which is to seek recourse to the Incitement to Hatred Act 1989. The burden of proof in that legislation relies strongly on intent, which I note also features in this section. Those who were present for debates in the House in 1989 on the Incitement to Hatred Act will recall that the purpose of the legislation was precisely to cover circumstances in which people seek to create hatred against particularly groups, including religious groups. This is, therefore, an easy offence to deal with.

A second option is to use the Criminal Justice (Public Order) Act 1994 which makes it an offence in a public place to distribute or display any writing, sign or other representation which is threatening, abusive, insulting or obscene, with intent to provoke a breach of the peace. Given that extant legislation addresses the issue of blasphemy, it is that on which we should focus.

Several speakers referred to the Supreme Court decision in Corway v. Independent Newspapers. It is clear from this judgment that in the absence of the intention to blaspheme, a prosecution cannot be sustained or proven. The question of intent is all over the place and inserting it in the legislation does not add anything new to the general body of legislation. In that sense, the Incitement to Hatred Act 1989 and Criminal Justice (Public Order) Act 1994 would be much more appropriate vehicles to address this issue than defamation legislation.

I am not certain how the measure on blasphemy will work in practice and to be fair to the Minister and his Department the burden of proof in the section makes its application virtually impossible. I cannot envisage a court finding a case of blasphemy on the basis of this legislation, which is another good reason for removing the section. The worst type of law is that which cannot be implemented. Given the burden of proof required and the inclusion of a wide-ranging defence of literary, artistic, political, scientific or academic value, the legislation will be virtually impossible to implement. I completely support Senator Mullen's argument in that regard. The first time I came face to face with this was in 1977 when I organised a private weekend conference in Belfast which brought together people of different religious and political views. I asked them to speak freely about how they saw each other. I remember Unionists speaking out strongly about how they perceived the Catholic church in dealing with issues such as the Real Presence and the Eucharist, in language which most Catholics would find offensive. It was not intended to offend, it was simply their understanding. It gave me a greater understanding about how pluralism needs to be developed. It shows how people with wrong beliefs can get themselves into areas of blasphemy and it is only one small step to include intent. This is more likely to arise in a religious discussion or argument than in any other case.

I also do not understand how one could make a judgment on what has literary value, which has a high bar in itself. Books are published every day of the week that have no literary value whatever. In addition, articles are published that have no literary value and are not artistic, political, scientific or academic. That is not an exclusive list. Another phrase should be inserted to widen it out. Senator Mullen's point is absolutely correct, that it is more likely to arise in the context of religion with people of different beliefs and faiths in opposition to each other. It needs to be changed in that regard as well, but preferably omitted. In fairness, the quotation from Senator Regan, which I had not heard before, about the Vatican legate speaking at the UN about where this sits in a modern society, allowing for free speech and demanding tolerance, captures exactly what Members on this bench have been saying. This is how society finds its own levels and it does not require legislation to do that.

In his summing up, perhaps the Minister will explain how the question of outrage among a substantial number of adherents would work. For example, somebody who feels a sense of outrage because of something that has been published or some other imagery, may bring the matter to the attention of the Gerda Síochána. I presume the first thing the Garda Síochána must establish is that there is a substantial number of adherents. Probably the first thing that would happen is that the person making the complaint would try to gather as many adherents together who had never seen it before. The complainant would then show it to them thereby extending it beyond wherever it had been before, in order to prove his or her point that there are a substantial number of adherents to the religion who supported the same viewpoint. I think that is nonsensical. It is bound to happen and there is no way of stopping it. In terms of how we use the time of State services, including the Garda Síochána and the courts, this is ridiculous. There is enough legislation to deal with these issues and that is the way we should be looking at it.

Ireland is a republic and Tone's republicanism was founded on the tenet of Catholic, Protestant and dissenter. In modern terms, that translates as a pluralist society where there is space for everybody to engage. In his definition, Newman pointed to tolerance as being the first quality of an educated person. If we put all those things together, we are really talking about a societal matter. We must order and deal with the issues of concern. If we want to ensure that people are not abused in this respect, we should deal with it through incitement to hatred legislation, the Criminal Justice (Public Order) Act, or the common law offence as it currently stands. Judges should be allowed to decide these matters in court. There is no need for all these provisions. Much has been said about the matter and I do not want to take up any more time except to say that Senator Regan's amendment captures it quite well. We should eliminate this offence. If it is to stay in any way, Senator Mullen's amendment should be considered. However, I think we should get rid of it, move on and order our society in a different way.