David Norris (Independent)

It was charity, yes. That was an excellent intervention by the Cathaoirleach. My God, but there is wit in the Chair tonight. However, I wonder just how visible they should be and people have a right to know just who is collecting. I live on the other side of the river, not too far away. I walk down to the Oireachtas and sometimes there are eight to ten very good registered charities in evidence. On one occasion during the passage of this Bill, there were 15 collectors from the same charity, all in their uniforms, and I could not get past them. That was an ambush, not charity.

My good friend, Senator Buttimer, craved the indulgence of the Chair and got some. I have to raise a cognate matter that is so serious constitutionally that I would like to be given some indulgence in introducing it. My colleague, Senator Bacik, also referred to it during the debate on the Bill and I welcome the fact that the legislation has come back. I am referring to the troubled issue of mass cards because I believe we have walked ourselves into a constitutional mess. I have very distinguished legal opinion on this from a former Attorney General, Mr. John Rogers, SC. The whole idea of the mass cards initiative was to regulate this area. No one wants bogus mass cards sold. That is a given and we know that they are. We know they are manufactured and may never occasion a mass to be said. The card may not be signed by a priest. It could be a bogus priest or whatever. There is, therefore, an issue of control. However, the Bill as passed, with an amendment introduced at the suggestion of two of my colleagues in this House, in fact constricts religion in a dangerous manner. It also purports to establish bishops as specific licensing authorities and creates a new serious criminal offence which, in fact, can only operate in a sectarian manner.

The advice I have been given is to the effect that this is completely unconstitutional, apart from anything else, because it is excessive. I want to quote a couple of the relevant cases. As someone who is not a Roman Catholic, I must say the whole thing seems to be absurd anyway because it is clearly simoniacal. It is classic simony, an attempt to sell, and the word "sell" is used in the legislation and in the Minister of State's speech. One cannot sell things of the spirit because that is a blasphemy. I feel for my Roman Catholic friends who are bereaved, and I have often acquired these mass cards, to use a neutral word, to be told that the offering was €7.50 — a specific rate. From the cash registers to the rest, it is clearly a sale. It is too theological to debate the issues but the signing of the mass card by the priest is clearly a religious practice. The new section 96 purports to limit this by subjecting the sale of mass cards to the consent of a senior cleric, usually a bishop.

These issues have been considered by the very distinguished Mr. Justice Walsh in his 1972 judgment in Quinn's Supermarket v. Attorney General in which he stated: "Our Constitution reflects a firm conviction that we are religious people." That conviction has sometimes caused difficulties to me and others but there is no argument about it. He further argued, however:

It appears to me therefore that the primary object and aim of Article 44, and in particular the provisions of s.2 of that Article, was to secure and guarantee freedom of conscience and the free profession and practice of religion subject to public order and morality; and to ensure that the practice of religion and the holding of particular religious beliefs shall not subject the person [this is the important part] so practising religion or holding those beliefs to any disabilities on that account.

He argued in the same judgment that as a result of Supreme Court decisions, legislative intervention into religious practice, which is allowed under certain conditions because freedom of religion is not an absolute right under our Constitution, should be subject to the following test: "Any law which by virtue of the generality of its application would by its effect restrict or prevent the free profession and practice of religion by any person or persons would be invalid having regard to the provisions of the Constitution, unless it contained provisions which saved from such restriction or prevention the practice of religion of the person or persons who would otherwise be so restricted or prevented."

The question then arises of the application of a test for legislative intervention in the regulation of the practice of religion, in which regard the former Attorney General, Mr. John Rogers, opines:

Section 96 will impose a disability on persons seeking to buy Mass cards for the purpose of professing their religion in that in seeking Mass cards they will not be able to acquire Mass cards other than those made available pursuant to an arrangement with a bishop or provincial of a religious order. It is difficult to see how the imposition of this disability is mandated or required by public order criteria or by the requirements of morality. On the face of it, section 96 seems designed simply to ensure that Mass cards have authentic provenance but it does so by way of an absolute blanket prohibition on the sale of Mass cards which are made available for public sale but which are not so available pursuant to an arrangement with a bishop or provincial of a religious order. There seems not to be a justifiable basis for imposing this disability on the getting of Mass cards; the dictum of Walsh J. that the law "shall not subject the person so practising religion or holding those beliefs to any disabilities on that account" appears to be offended by this absolute bar to access to Mass cards which derive from a source not the subject of an episcopal arrangement.

It may be perceived that in the absence of regulation of the kind contemplated:

A person might sell a Mass card which was fraudulent, in the sense that it was not signed by a priest, and/or in the sense that the seller would not procure the saying of a Mass for the deceased;

A person might sell a Mass card to a person who believed that the price which he paid for the card would go for a charitable purpose, in circumstances in which this was not the case.

The proposed legislation goes further than is reasonably required to address these evils, in that it renders a sale unlawful simply because it is unauthorised, the matter of unauthorised sales may well be a matter of concern to the Catholic Church, but does not appear to constitute an issue of public order or morality which would justify limiting religious freedom in the manner contemplated.

The criminalisation of the sale of Mass cards is another aspect of the disproportionate nature of this piece of legislation. The criminalisation of the sale of Mass cards by those outside the categories of recognised persons will involve the State in the adoption in criminal jaw of restrictions in the practice of religion in a manner which is not supported by Article 44.

I am grateful for the Cathaoirleach's indulgence in allowing me to set out the opinion of a man who held the highest legal office in the State regarding this important constitutional issue. Although I can put aside my reservations on the question of simony, it appears that in addressing a scandalous issue a dangerous situation has developed, albeit unintentionally and with goodwill. It is dreadful to think of old ladies in my area scraping their pennies together to purchase mass cards which are sold by people who have no real spiritual interest and simply want to make money. However, a sledge hammer is being used to crack a nut and it may well be unconstitutional. I do not know what mechanism exists at this stage to test the section but I have been briefed by an old friend with whom I attended school. This man, who is of considerable eminence, forwarded Mr. Rogers's opinion to me.