Charles Flanagan (Laois, Fine Gael) | Oireachtas source

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

I am pleased to be here with the Deputies to present the Blasphemy (Abolition of Offences and Related Matters) Bill 2019, which gives effect to the outcome of a referendum to amend the Constitution.

Deputies will recall that until late last year, Article 40.6.1°i of the Constitution specified that the publication or utterance of blasphemous, seditious or indecent matter was an offence that should be punishable in accordance with law. Members will also recall that in the autumn of last year, this House approved the Thirty-seventh Amendment of the Constitution (Repeal of offence of publication or utterance of blasphemous matter) Bill 2018.

The proposal in the referendum Bill was not brought forward in a vacuum. Over the years, there have been a number of reports where the constitutional reference to blasphemy was considered. All of those reports recommended that the reference be deleted.

Following the passage of the Bill, a referendum was held in October of last year on the proposition that the reference to "blasphemous" should be removed from the Constitution. That proposal was approved by the people in all 40 constituencies, and by 64.85% of voters nationally, in the referendum which took place on 26 October last year. The Bill was signed by the President on 27 November 2018. During the progress of the Thirty-seventh amendment Bill, and in the course of the referendum campaign, the Government made it clear that the implementing legislation would be advanced as quickly as possible. Subsequent prioritisation of Brexit-related legislation early this year, however, resulted in something of a delay in our being able to publish the present Bill.

The Bill before us is short and technical in nature. It reflects the outcome of last year's referendum. Its Title, the Blasphemy (Abolition of Offences and Related Matters) Bill 2019, describes, in precise terms, the purpose and intent which underlies this five-section Bill. It is important to bear in mind that the policy has already been settled by the result of the referendum and that the legislation we are discussing simply gives effect to that policy choice. At the time of publication of the Thirty-seventh amendment of the Constitution Bill last year, the Government also provided the text of a proposed general scheme to implement the consequential legislative changes that would be required if the referendum proposal was agreed. The key element in that scheme was the repeal of the statutory offence of blasphemy, which was contained in the 2009 Defamation Act. That scheme does not vary materially from the Bill before the House, with one point of difference relating to section 1.

Section 1 of the Bill is an avoidance-of-doubt provision, which aims to make it absolutely clear that the common law offences of blasphemy and blasphemous libel no longer exist. This section is included on foot of advice from the Attorney General that, notwithstanding a view that such offences did not survive the enactment of the Constitution, it is desirable to include such a provision to ensure there is no possible doubt on this point.

Sections 2 and 3 provide for the deletion of the references to "blasphemous" in section 7 of the Censorship of Films Act 1923 and section 3 of the Censorship of Films (Amendment) Act 1925. These amendments are not strictly necessary to implement the referendum result but were included in the general scheme in order to remove all references to blasphemy in our primary legislation. In terms of historical background, surviving records from the Irish Film Classification Office do not always give a detailed reason for the initial prohibition of particular films, so it is not clear how much usage has ever been made of these sections down the years. Indeed, according to a search of surviving records, since 1968, only ten titles have been prohibited on grounds of blasphemy, sacrilege or heresy, or where offence to religious convictions was cited as a reason. The last such prohibition was in 1981, and it was successfully appealed within the same year.

Section 4 repeals sections 36 and 37 of the Defamation Act 2009. Deputies will remember the background to these provisions, which were included in the 2009 Act following the judgment of the Supreme Court in the case of Corway v.Independent Newspapers, in 1999. That case referred to a cartoon featuring a priest holding the Holy Sacrament, whose point was to suggest that Irish politicians were moving away from following the views of the Catholic Church on social issues such as the availability of divorce. A private individual whose religious convictions were offended by the cartoon sought to institute a private criminal prosecution for blasphemy against the newspaper. The possibility of individuals taking private prosecutions for blasphemy was afterwards abolished by the 2009 Act.

In the Supreme Court judgment, the late Mr. Justice Barrington considered the framework of our Constitution, which, at Article 40.6, states, "The publication or utterance of blasphemous . . . matter is an offence which shall be punishable in accordance with law", while also guaranteeing freedom of conscience, the free profession and practice of religion, and equality before the law for citizens of different religious beliefs, or of no such belief. The judgment underlined that the Constitution did not define what this offence of blasphemy involved. The common law offence of blasphemy, which the drafters of the Constitution seemed to have had in mind, was bound up with historical ideas of an established church and an established religion. The court held that it was difficult to see how such an offence could have survived the adoption of a Constitution that guaranteed freedom of conscience. The Supreme Court concluded therefore that, in the absence of any constitutional or legislative definition, it was impossible to say of what the offence of blasphemy consisted.

As we know, sections 36 and 37 were later included in the Defamation Act 2009, in an attempt to define an offence of blasphemy which could be consistent with the Supreme Court's judgment in the Corway case. Section 36 sets out the elements which characterise this new statutory offence of blasphemy, requiring grossly abusive or insulting statements that are intended to cause outrage to a substantial number of adherents of a religion, and providing a defence where a reasonable person would find genuine artistic, literary, political, scientific or academic value in the statements. Upon conviction, a person is subject to a fine not exceeding €25,000. Section 37 provides powers for An Garda Síochána to enter premises and seize blasphemous statements, following a conviction under section 36.

The Government previously signalled its intention that sections 36 and 37 would be repealed in the event that the constitutional amendment was agreed to by the people, and we are now fulfilling that undertaking today. Section 5 is a standard citation and commencement provision.

It would be fair to say that the offence of blasphemy created by the 2009 Act is quite difficult to prove. There appears to have been no prosecution over the period to date. In fact, it seems that the last recorded prosecution in the State for blasphemy in Ireland took place in 1855 and, even then, it resulted in an acquittal. However, that analysis misses a more important and fundamental point, which was clearly underlined by the outcome of the referendum on this issue. It is that criminalising blasphemy, with the risk of a chilling effect on freedom of expression and public debate, has no place in the constitution or the laws of a modern republic. Ireland is a country of increasing diversity. The right to express differing viewpoints in a forceful and critical manner is a right to be cherished and at all times upheld.

I would like to emphasise that the removal of references to blasphemy from the Statute Book is not an attack on anybody's religious belief. Nor is it intended to privilege one set of values over another. It is a simple acknowledgement that the meaning of the concept of blasphemy is unclear in a modern state, and that the concept is rooted in a distant past where fealty to the state was conflated with fealty to a particular religion.

There is also the international dimension to which I wish to make brief reference. It may seem abstract to devote time to abolishing an offence which has not been prosecuted in practice, but not when we recall that a number of countries actively prosecute charges of blasphemy. Those charges can carry severe penalties, including terms of imprisonment, brutal physical punishments or even the death penalty. They have also been applied in a discriminatory manner to justify the persecution of dissidents, the socially excluded or religious minorities. Such countries justify these regimes by referring to the continuance of blasphemy as a criminal offence in Ireland and in the Constitution. That is a very disturbing reality, and another reason I am happy to propose a Bill which addresses it directly. The criminalisation of expression alone is not something we should stand over. It is a different matter if that expression is geared towards inciting hatred or violence and where that is the intention, in this regard or in these cases the criminal law must come into play.

Deputies will be aware that Minister of State, Deputy Stanton, and I recently launched a public consultation on hate speech which will run until 13 December this year. The outcome of that consultation will help to shape an amendment of our existing law on incitement to hatred. A separate consultation on the subject of hate crime will follow in the new year.

I acknowledge that the abolition of the offence of blasphemy is, on the face of it, a relatively small step. Nonetheless, it is both an important symbol, and a tangible expression, of our status as a modern and democratic society in which free speech is valued and multiculturalism embraced. It is with pleasure, therefore, that I commend the Bill to the House.

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