Brian Lenihan Jnr (Dublin West, Fianna Fail)

I did not expect such a welcome for a matter I thought was an exercise in common sense. I must warn Senator O'Toole that we still have three offences in the Constitution and out of respect for the Constitution I am obliged to provide penalties for those offences. All of those offences are subject to the sanction of the High Court before the offence can be prosecuted or proceeded with, which is a valuable safeguard. I am looking at the option of confining the penalty to the seizure of the offending item and seeing whether we need to go beyond that in the penalty clause.

There are difficult issues with a referendum. The House of Lords is currently examining in the legislative context the question of blasphemy and its possible abolition. In England and Wales blasphemy traditionally only consisted in the scandalising of the established church. It is probably the case in Ireland, with the enactment of the Article 44 provision in 1937, that blasphemy was extended to cover all of the denominations recognised in the Constitution and that in 1972 it passed into a stage where it extended itself to all theistic religions, since all theistic religions are honoured by the Constitution, although Christianity is uniquely invoked in the preamble.

Christianity in the general sense and, possibly, other theistic religions are protected by the law of blasphemy in our modern law. There has been no prosecution. The one attempted prosecution led to the Supreme Court consideration that we should consider modernising the law of blasphemy to protect all faiths. The difficulty in that regard is that the essence of the offence seems to consist of the hurt that is caused to the believer. This is a dangerous basis for an offence.

It is far safer to have an offence based on the incitement to hatred or the immediate proximity of the statement to the causing of a breach of the peace. If we could redefine blasphemy in that way and if that were acceptable, I would be much more comfortable with the offence. I am not sure we can do that constitutionally or whether the reference in the Constitution means it is frozen in time with the meaning it carried in 1937. The all-party committee can reflect on these matters.

Obscene libel and seditious libel are dealt with by the censorship legislation and the Offences against the State Act generally, in so far as they are mischiefs in society. There is a specific provision on seditious libel in the Offences Against the State legislation. The best I can do is to return to the House after the Bill has gone through the Dáil with the proposal for the sanctions that will apply to the constitutional offences.