James Lawless (Kildare North, Fianna Fail) | Oireachtas source

I will be sharing time with colleagues. I commend the Minister's contribution. It was an interesting tour of jurisprudence on the issue of blasphemy, how it came into being, its position in Bunreacht na hÉireann and the small degree of case law which has prevailed on the article and, more recently, the offence in the past number of years. As the Minister outlined, very few cases ever arose and I am not sure if there were any prosecutions. We had the famous Corway v. Independent Newspapers case and a few others the Minister outlined. I commend him on a detailed, relevant and interesting tour of that jurisprudence.

Importantly, the people had their say on this matter. On 26 October 2018, the citizens of Ireland voted overwhelmingly in favour of removing the reference to blasphemy from the Constitution. Not only was that approved by a majority of the citizenry, it was approved by a majority of people in every constituency.

The issue had arisen when my party was last in government in 2009. At the time the then Minister, former Deputy Dermot Ahern, stated his view, which I adhere to, that as a republican his personal position was that church and State should be separate. Indeed, a republic is not a theocracy of any religion or none. That should be the case and this Bill is another step along the path of separating church and State. We must leave our beliefs at the door if we are to come into this Chamber and act as legislators for a republic and our citizens. We must do so free of dogma, religious or otherwise. When the debate took place at that time, the economic climate was such that spending on a referendum might not have been prudent or even financially feasible, so the Defamation Act 1961 was updated instead because there was a lacuna in which there was an offence defined in the Constitution, and I believe it is the only such offence, yet it did not have a place on the Statute Book. Constitutional offences are rare, and rightly so. Éamon de Valera did an excellent job, by and large, in enacting a constitution that was strong on civil and political liberties, particularly given the era in which it was drafted and enacted. However, perhaps this was one blind spot and the offence was created. Indeed, a constitutional offence is probably not appropriate for any offence and particularly this one. It would have been better had it never been included in the Constitution.

The Thirty-seventh Amendment of the Constitution (Repeal of offence of publication or utterance of blasphemous matter) Act 2018 gave effect to the referendum result. The legislation has been enacted since the referendum and that brings us to this point today. This Bill went before the Seanad before coming to this House. It gives effect to those provisions and related legislation. I presume it updates the Defamation Act 2009 and other measures. Fianna Fáil supported the referendum and will support the Bill in the House. To give the context for this, prior to 2018 Ireland was one of only seven countries in Europe in which blasphemy remained an offence. Article 40.6.1° of the Constitution provided that the offence of blasphemy was punishable according to law, although it did not say what the punishment was. It did not set out what type of offence or crime it was and whether it was indictable, summary or anything else. That constitutional lacuna is being addressed by this Bill. The Defamation Act 2009 defined the offence and provided for a significant penalty of a maximum fine of over €25,000.

It is worth reflecting on the fact that when there was an attempt to tackle that legislative anomaly with the Defamation Act 2009 it came in for criticism at the time. To be constitutionally coherent, it was necessary to legislate for it. Sometimes it was said that this was a one-faith State, a theocracy or in the throes of one religion or another. When the offence was defined it was defined as a statement or utterance that would offend against the large portion of adherents of any religion. It was not tied to a single religion, as is often stated or misrepresented. It applied to those who sought to offend the adherents of any religion and if they did so on scale. It was quite difficult to commit the offence, and it was possibly deliberately drafted in that way. It is worth putting on the record that there was an attempt at proportionality and to draft the offence in such a way that it was quite difficult to satisfy, so perhaps it was not quite as outrageous or unreasonable as some have suggested. It did not adhere to a particular faith or theological viewpoint. It is agnostic across all of them. It is worth acknowledging that.

Thankfully, we are now in a position to remove the provision. Freedom of expression is a paramount cornerstone of a democratic society. Constraints on freedom of expression can be provided for by law. Again, all laws are proportional and all rights are proportional. The exercise of one right cannot impinge upon another right to the extent that it is negated. However, we must be very clear, limited and careful when we attempt to qualify the exercise of rights, and freedom of expression is paramount among them. Blasphemy impinged on that right and that is one of the reasons we are removing it. While I said the provision did not discriminate between religions, it discriminated against those of no religion. Atheists, agnostics and people of no faith were not included in the definition, so it could have been seen as a pro-religious article if not pro a particular religion. That was a form of discrimination as well.

In terms of social mores, demographics, education and outlook, Ireland is a very different country from what it was in 1937, when the Constitution was promulgated. While the most recent census figures show that the Roman Catholic religion remains the single biggest bloc, there are many others. The second largest category of respondents was those who chose no religion. There is a degree of inertia when people define themselves so one is not quite sure whether people default to a particular religion when doing so. I wonder about it. Sometimes there is a selective bias in terms of how we phrase these questions and answers and the results we get. However, the point is that this is a different country now, with different demographics and people, from the position in 1937 and our Constitution and laws must reflect that.

Another concern that emerged over the last decade and particularly when we defined blasphemy in primary legislation and highlighted its existence as an offence in 2009, unwittingly and unintentionally we had a situation where some autocratic and dare I say despotic regimes, in which people did not enjoy the same civil liberties and freedom of speech that we and European nations enjoy, began to point to Ireland as an exemplar. It was an unfortunate and unintended consequence. Indonesia was an Islamic state that began to cite Irish blasphemy law as a model to follow. That is not a path any of us expected or wished for, but this was the scenario that was unfolding. We began to see some of the more extreme fringes of some of the quite hard core religions elsewhere and some states that would have far less focus on civil liberties looking to us as a model to follow. That was certainly unintentional and undesirable.

We have tidied this up and moved forward. We held the referendum when time permitted and passed it. We are now about to pass the legislation. The negative I return to on the Government side, and the Minister mentioned a consultation on it in his speech, is that we still must enact hate crime legislation. While we are tidying up the constitutional situation and the legislative lacuna with this Bill, we still await the enactment of meaningful hate crime legislation. In fact, hate crime legislation might be far more effective than blasphemy laws ever could have been. Fianna Fáil introduced the Criminal Justice (Aggravation by Prejudice) Bill 2016 in July 2016. The Bill had cross-party support and passed Second Stage in October 2016. In spite of having launched pre-legislative scrutiny in May 2017, the Government still has not issued a money message on this matter.

There was a debate in the Chamber today on money messages. It is one to which I am sympathetic because one of the failures of new politics is that there has been a lost opportunity in this House. With the parliamentary arithmetic there was an opportunity for the Oireachtas to do its job under Article 15 of the Constitution and for Members on any side of the House to put forward legislative ideas, have them debated and have the aspiration that they would be passed and become law. The parliamentary Chambers of the Oireachtas are the right and appropriate place for them to do so. Unfortunately, that has been stymied by the Government. I put the blame squarely on the Government's shoulders. It must answer for that, if not in the debate that is supposed to take place tomorrow or at some stage then before the people a few months hence.

While we are supporting this Bill, I highlight that hate crime legislation is among more than 100 Bills introduced from the Opposition benches on this side of the House that have not had the opportunity to become law, despite enjoying majority support. That is entirely anti-democratic.

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