Charles Flanagan (Laois, Fine Gael) | Oireachtas source

Tairgim: "Go léifear an Bille an Dara hUair anois."

I move: "That the Bill be now read a Second Time."

I apologise to the House, to the Ceann Comhairle and Deputy O'Callaghan. I did not realise that matters were running as they were.

I am always pleased to come to the House to advance new legislative proposals, many of which have the capacity to impact, often in a most significant way, on the lives of those who live in our country. It is an even rarer privilege to be in a position to propose legislation which, if passed by the Oireachtas and agreed to by the people, will result in an amendment to our Constitution. The Constitution is at the heart of our legal system. It is a document which has withstood the test of time but, as time has passed, it has also gradually evolved to reflect our country and its people as together we have moved from the 20th into the 21st century. Fundamental values are timeless, but some concepts are deeply rooted in a particular time and a particular view of what is socially appropriate. Blasphemy is one such concept, and it is with the removal of the reference to blasphemy from our Constitution that we are concerned this evening.

Before proceeding further, I express my gratitude to the House for agreeing to deal with this Bill in the first week of its return. It was inevitable that some discussion of the Bill would have to take place during the month of September. This is because under the referendum Act 2004, polling must be not earlier than 30 days and not later than 90 days after the polling day order, which can only be made by the Minister for Housing, Planning and Local Government when the necessary referendum Bill has been passed by both Houses. As it is intended that the referendum on blasphemy will take place on the same day as the presidential election, which is 26 October, I am sure that the timing constraints in respect of the passage of the Bill are apparent to everyone.

The Bill I introduce this evening is the Thirty-seventh Amendment of the Constitution (Repeal of offence of publication or utterance of blasphemous matter) Bill 2018. This is a somewhat lengthy Title for what is undeniably a very short Bill. However, the Title describes in very precise terms the purpose and intent which underlies the Bill. The Bill consists of two sections. The key section is section 1, which sets out the terms of the amendment proposed. The proposal set out in the section is for the substitution of the word "seditious" for "blasphemous, seditious" in paragraph i of subsection 1° of section 6 of Article 40 in the English text. If this amendment is approved by the people in the forthcoming referendum, the relevant part of Article 40.6.1°.i of the Constitution will read as follows: "The publication or utterance of seditious or indecent matter is an offence which shall be punishable in accordance with law."

Section 2 is a standard citation provision, citing both the name of the amendment and the name of the Bill.

One of the problems in addressing this topic is that in a modern society it is very hard to reach a common understanding on the precise meaning which attaches to the concept of blasphemy. A very simple definition is perhaps one which focuses on the act of expressing contempt or a lack of reverence for God or sacred things. That apparent simplicity is, however, misleading in terms of the complexity which in reality underlines this subject. From presentations made at the Constitutional Convention and other analytical work, it is clear that the understanding of the concept has evolved greatly over a period of time.

Within the Irish context, the analytical work suggests our legal understanding of blasphemy essentially derives from the common law as it prevailed in England and Wales over the centuries. Thus, in the late 17th century, the rationale for maintaining blasphemy laws was inextricably linked with the need to protect the Anglican religion as the established church. In other words, there was a fundamental link between protecting the state, on the one hand, and the religious system of belief which sustained that state on the other. However, as individual rights came more and more to the fore in social thinking, a new rationale, that of protecting the religious sensitives of believers, became more prominent. By the time the Constitution was adopted, it seems that the focus of our blasphemy laws was very much directed towards speech likely to cause gross outrage to such sensitivities. In addition, by virtue of the various equality provisions in the Constitution, it also seems that the perceived protection offered by the blasphemy provision was not confined to any one church.

The law on blasphemy has been invoked rarely. For example, it appears that the last recorded prosecution for blasphemy in Ireland took place back in 1855 and even that resulted in an acquittal. The public appetite, therefore, for entertaining blasphemy prosecutions does not seem to be that significant. In recent times the position and particulars of the offence of blasphemy in Irish law were considered by the Supreme Court in the case of Corway v.Independent Newspapers which involved an application by an individual to institute a prosecution for blasphemy. During the course of that judgment the constitutional framework which guarantees freedom of conscience, the free profession and practice of religion and equality before the law to all citizens was under discussion. It was noted that it was difficult to see how the common law crime of blasphemy, related as it was to an established church and an established religion, could survive in such a framework. The judgment placed particular emphasis on the fact that, while the crime of blasphemy existed as an offence in Irish law because the Constitution said so, existing legislation had not adapted the common law crime of blasphemy to the circumstances of a modern state. The court, therefore, concluded that, given the current state of the law and the absence of any legislative definition of the constitutional offence of blasphemy, it was impossible to say of what the offence of blasphemy actually consisted. This analysis and the implied criticism of the Legislature it contained are essentially what led to the much maligned provisions which were set out in sections 36 and 37 of the Defamation Act 2009. Section 36 sets out the elements which characterise the statutory offence of blasphemy. Section 37 concerns powers of entry to premises by An Garda Síochána and related powers for the search and seizure of blasphemous statements. It is fair to say the offence created under the Act is quite difficult to prove. I am not aware that any prosecution under it has taken place. However, Members will probably have read in the newspapers, as I did at the time, that a member of the public had made a complaint to An Garda Síochána about comments made by Stephen Fry in an interview with Gay Byrne on his television programme "The Meaning of Life" in 2015.

Deputies will be aware that a general scheme has been published on my Department’s website setting out the measures which will, in the event of the amendment being approved, be drafted in a formal Bill. While the scheme will be subject to change during the formal drafting process, the core provision it contains - the repeal of sections 36 and 37 of the Defamation Act 2009 - is one to which the Government and I are fully committed. This proposal is not being brought forward in a vacuum. There have been a number of reports in which the constitutional provision on blasphemy has been considered. All of the reports have recommended that the provision be deleted. In 1991 the Law Reform Commission published a report. In 1996 the Constitution review group came to the same conclusion. In 2008 the Joint Committee on the Constitution also concluded that the specific reference to blasphemy should be deleted from the Constitution, as did the Convention on the Constitution in 2014.

I am not going to deny that the proposal before the House is modest. However, there are good reasons for removing the reference to blasphemous matter from the Constitution. One relates to the fact that, for as long as it remains in the Constitution, we have in being a constitutional offence of publishing or uttering blasphemous matter. The provision must be operable. It is clear to me that, for as long as the existing constitutional provision remains, the offence of blasphemy must also remain on the Statute Book, even if it is viewed as being obsolete and alien to the minds of many within our society.

Another reason relates to our international reputation. An outsider looking in sees Ireland as a country with a blasphemy law not just on its statute book but also in its constitution. Even if the view is ill-informed, it marks us out as a country which keeps company with those who do not share the fundamental values we cherish such as belief in freedom of conscience and expression. Not only may there be misapprehension about the nature of our blasphemy laws and how they are applied in practice but the very existence of such laws in this jurisdiction gives comfort to other jurisdictions that can use it to justify the more extreme regimes they apply. At a minimum, therefore, there is considerable merit in putting distance between ourselves and such illiberal regimes.

In a society where there is a wide diversity of beliefs, it is simply not possible for the State to guarantee that from time to time individuals will not be hurt and possibly outraged because a form of expression which they might regard as deeply offensive is considered by others to be no more than comment which is humorous or, oftentimes, satirical in nature. Furthermore, notwithstanding the very high threshold which must be met if there is to be a successful prosecution of blasphemy, it is not in keeping with best international practice that there should be even the most remote possibility that a criminal prosecution would be taken in such circumstances.

In our current society maintaining the criminal offence of blasphemy in the Constitution and, as a consequence, on the Statute Book has less to do with the protection of religious values and more to do with an unnecessary and anachronistic check on freedom of expression. It is time for us to move away from the inhibiting effect which a blasphemy law has on our fundamental freedom, even where the effect might be subliminal rather than to the forefront of our minds. It is timely that we affirm our belief in a more inclusive society where communication between those with different belief systems can take place on an equal basis, with tolerance and respect as guiding principles. I acknowledge that the removal of the offence of blasphemy from the Constitution is, on the face of it, relatively small. Nonetheless, it would be deeply symbolic and, in a very tangible way, confirm our status as a modern democratic society where free speech is valued and multiculturalism is embraced. I commend the Bill to the House.

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