Seán Sherlock (Cork East, Labour) | Oireachtas source

This Bill implements the referendum result by removing statutory references to the offence of blasphemy. The Labour Party supports the Bill. The sentence in paragraph 5 of Article 40.6.1 of the Constitution originally read: "The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law." As amended, the sentence now reads: "The publication or utterance of seditious or indecent matter is an offence which shall be punishable in accordance with law." We are now tidying up the Statute Book in order to take account of the removal of blasphemy from the Constitution. In the case of Corway v.Independent Newspapers (Ireland) Ltd in 1999, the Supreme Court pointed out the difficulty in prosecuting blasphemy, given that neither the Constitution nor any other legislation had provided a definition setting out the ingredients of the offence. Mr. Justice Donal Barrington gave the lead judgment, which stated:

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 ... The task of defining the crime is one for the legislature, not for the courts.

While it is not as interesting, we can make exactly the same criticism about at least one of the two offences left in this Article of the Constitution. There is no clear or comprehensive definition of the offences of indecent publication or sedition. What was the thinking behind the decision to keep some of the offences in Article 40 while deleting this one, given that all three give rise to the same difficulties?

I refer to the Fianna Fáil contribution to this debate from last night. The following was said in relation to the views of the former Minister, Dermot Ahern:

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 ... yet it did not have a place on the Statute Book.

The Government of the day should have had the moral courage to hold a referendum on this issue. Instead of doing so, the Government introduced an Act which arguably made matters worse. By removing a formal link between Judeo-Christianity and blasphemy, it became a matter for each religious group to define for itself what matters were sacred. There was no free speech provision in subsection 3 of the 2009 Act. An example of the effect of that was that Salman Rushdie's guilt or innocence depended on a court's finding that his book, The Satanic Verses, had genuine literary value. Under section 36(2)(a), individual sects or religions would be left free to police what was considered blasphemous. It did not address a lacuna, as was stated last night, but in effect made matters worse.

See this speech in context