Brian Lenihan Jnr (Dublin West, Fianna Fail)

We are now discussing an obscure corner of the law, namely, the law relating to criminal libel. Section 35 relates to the proposal to establish an offence of the publication of a gravely harmful statement. I indicated on Committee Stage that I was considering this matter. On reflection, I do not think it is desirable to create a criminal offence of the publication of gravely harmful statement. It is a substantial intrusion on freedom of speech to say to any individual that he or she has published a gravely harmful statement for which one can be made accountable in the criminal code of this country. Therefore, I have decided to propose the withdrawal of that particular section.

Article 40.6.1° creates an offence relating to the publication of blasphemous, seditious or indecent matter. These offences are created in and form part of the Constitution. Sanctions for the offences of blasphemous and indecent matter, which include both fines and imprisonment, are contained in Part 2 of the 1961 Defamation Act. The sanctions for seditious matter are dealt with in the Offences Against the State Act 1939.

If we repeal in full the provisions of the 1961 Act in reforming the defamation laws, we create a gap unless some provision is made for the constitutional offences. We must be mindful also of the decision of the Supreme Court in the case of Corway v. Independent Newspapers in 1999 where the Supreme Court indicated a need to address the law on blasphemy. At this stage I would suggest our duty is to ensure there is no gap created in the case of these offences which are recognised by the Constitution. Essentially, there is a problem of timing. I am anxious to expedite the passage of this Bill. I note the Oireachtas Joint Committee on the Constitution has sought submissions from interested parties on issues concerning freedom of expression, including blasphemy.

At this stage, I propose to delete section 35 from the Bill — the Labour Party had tabled an amendment in that connection — and to reflect on what sanctions I provide for blasphemy and the publication of seditious and obscene matter. I will have to provide for a sanction and that is provided for in the 1961 Act. I will have to restate some provisions for a sanction for these offences but I do not propose to go beyond that. I do not think we need go beyond that in the context of legislating in this area.

One must bear in mind that in our law it is a criminal offence for a person to utter or publish words which are directly calculated to provoke a breach of the peace. A person who uses words of religious incitement at an occasion with the deliberate intention of formenting a breach of the peace commits an offence in our law. It is likewise with the publication of seditious or obscene matter. That should be borne in mind by anyone commenting on this provision.

I am constrained by the Constitution to provide for sanction. Candidly and as a personal opinion which I am not sure is shared by the Government, I do not see much prospect of a referendum on blasphemy, obscenity and sedition. We must provide for the penalties of these offences and I must reflect on that, provide for it in another place and come back to the House on it at that stage.