Rónán Mullen (Independent)

I will wait to give the Minister a chance to hear my pearls of wisdom. Creidim go bhfuil botún déanta ag an Aire. Tá sé tar éis cosaint a thabhairt do chreidimh nach raibh siad ag siúl leis ach theip air an chosaint atá de dhíth orthu a chur isteach sa leasú atá sé ag cur leis an reachtaíocht.

The Minister has made a mistake in extending to religions a protection of sorts that they never sought but in doing so he has denied them a protection that they would need. I will explain what I mean. I would not have ever felt it was necessary to bring forward this section in the legislation, but I have been and am persuaded by the Minister's essential argument which is that there is a gap, that the Constitution provides for the offence of blasphemy and that the Minister is giving expression to that in circumstances where in the Corway case it was held that there was no definition in law to give effect to that. The Minister has filled the vacuum. He has probably done so pretty cleverly and sensibly by largely restricting the circumstances in which a person could be prosecuted for blasphemy. I note what the Minister has said. For example, by requiring that the conviction would take place on indictment he seals off the possibility that vexatious or excessively cranky litigants might seek to invoke that section against people they believe to have uttered a blasphemous matter.

I also accept that by introducing the issue of intentionality, the Minister has established a high threshold for a prosecution to meet. In defining what blasphemy is the Minister has redefined it dramatically from anything that it could ever have been interpreted to mean previously. I find very persuasive comments that have been made in the past, possibly by Senator Norris and others, on the difficulty of defining what is offensive to God. One man's meat is another man's poison and I suspect the same may be true for deities. Clearly, if blasphemy were to be understood as giving offence to God it would be completely unworkable in modern legislation. First, because people of different faiths and religions have different concepts about the ultimate questions of life, its meaning and the origin and destiny of human existence and, second, because of the major importance in any civilised society of freedom of conscience. It is on the issues that are most dear to us, what we believe about the origin and destiny of our lives and the purpose of our existence, that people must have maximum freedom of expression.

For those two reasons it seems to me that it would be inappropriate to have any crime of blasphemy, were that to mean a person could be prosecuted for saying something that was offensive to God in that traditional understanding of what blasphemy means. Let us examine what the Minister has done. In effect, he has given a definition to blasphemy that largely works. Whether it is necessary or desirable are separate questions. To some degree it is desirable, on balance, provided that it is something that requires a very high threshold for prosecution and that it would only ever be used sparingly. Perhaps most answers to what is the role of law is that of a teacher, where the law seeks to educate and bring about certain kinds of behaviour by what it provides theoretically rather than for what might be prosecuted in practice.

What I mean by that is that the Minister has provided that a person would be guilty of blasphemy where he or she to publish or utter a matter that is grossly abusive. There is a high threshold to be met in that the matter must be grossly abusive or insulting in matters held sacred by any religion. That is good because it is inclusive. The Minister does not seek to give preference to any established religious view and he also takes care in a later part of the proposed section to exclude forms or expressions of religion that in the views of most reasonable people would be undesirable, namely, a profit-making enterprise or religions or cults that are engaged in oppressive psychological manipulation. The Minister has been careful and he deserves credit for that. He has required that the matter must be grossly abusive or insulting and there is that inclusivity to put it in layperson's terms that the matter has to relate to matters held sacred by any "respectable religion".

The further requirement is that a matter must cause outrage among a substantial number of adherents. The significant point is that the Minister has created the requirement of intentionality; that the person must intend to be grossly abusive in matters held sacred by a religion and in so being causes outrage. There has to be that degree of intention, which it seems to me would be very difficult to prove. For that reason I disagree strongly with Senator Bacik who suggested that in the context of there not having been a prosecution for blasphemy in more than 100 years, this would somehow open the door, both because of the fact that the Minister requires the prosecution to be brought on indictment, which takes the private prosecution possibility out of the equation, and that he further creates the high threshold of that intention to cause outrage in matters held sacred by any religion by a substantial number of adherents. That is a clever approach. It is sensible and it respects the Constitution.

I note that the Minister has been at pains to express his own strong intellectual and political detachment from any notion that some kind of prosecution for blasphemy might ever be desirable. Whether he is right or wrong about that is another matter, but he rightly expressed the fact that there is a provision for this measure in the Constitution and that it should somehow be expressed in legislation. I agree with that.

The Minister is correct to not submit the matter to the people in a referendum on the question of whether there ought to be an offence of blasphemy under the Constitution. There are two reasons for that. The example of O'Hanlon Park has to do with one of them. It would be a bad idea if one were to present a blasphemy amendment together with the amendment on the Lisbon treaty. The late Pope Pius IX, who was famously known as Pio Nono, was possibly well capable of putting people into prison for blasphemy, despite his sanctity, being a 19th century pope. "No, no" might be the exact response one would get were one to submit two such amendments to the people in a referendum. Whether I am right or wrong in that is academic.

There is a second reason the Minister is correct in not seeking to propose the deletion of the offence of blasphemy from the Constitution. It is that in some limited way it makes sense to have the offence of blasphemy. The reason is that we have no problem with legislation that protects people from the utterances of others. For example, as has been said we have it in the incitement to hatred legislation. There are other examples as well. Perhaps the example of incitement to hatred gives us the best insight into how in a modern context it is sometimes necessary and desirable to have some limitations on freedom of speech because of the harm that can be done to others. That can apply in some situations to blasphemy, where a person intends to cause outrage among a substantial number of people in matters that they hold sacred. It is possible to conceive of that being damaging to the social order and offensive to the common good.

Given that it is a criminal legislative provision that could only be invoked in the most narrow and restrictive of circumstances, as the Minister has drafted and proposed it, there is no harm in its being in existence because it might act as an educator in terms of how we should treat others in society, and how we should treat the deeply held beliefs of other people. Whether we are religious believers ourselves is not the point. The point is how we should treat others. I strongly subscribe to freedom of speech but I also strongly subscribe to the notion that freedom of speech itself can be subject to limitations in certain circumstances in order to protect a higher good.

It is interesting to note what the European Convention on Human Rights has to say. It states:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

Clearly, the freedom of expression is understood primarily in a political sense; the freedom to hold opinions, to receive and impart information and ideas. Ideas in this regard perhaps connotes that which goes beyond the political and the serious and contemplates protection for comic or satirical ideas. We all agree that in general terms there must be freedom of the expression of such ideas, be they serious or not.

The second part of Article 10 deals with limitations. It states that the exercise of these freedoms, as it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of the rights of others, for preventing the disclosure of information received in confidence or for the maintenance of the authority and impartiality of the Judiciary. The rights of others is included as providing the context for a possible limitation on freedom of expression. This is where I believe there is justification for a limited provision for the offence of blasphemy which could in certain very limited circumstances be prosecuted. However, this must be done in a manner that protects people's need to express themselves fully in matters of deep importance to them or of great relevance to the common good. For this reason, I want to focus in particular on subsection (3).

Subsection (2)(b) creates a very high threshold to be reached in that it provides that a person must intend by the publication or utterance of the matter concerned to cause outrage. The Minister, for some reason, continues to believe there may be a problem in this area. In my initial consideration of the matter, I felt the Minister had set a high threshold in that a person would have to intend to cause outrage in which circumstances prosecution might be appropriate. Why then did the Minister feel it necessary to create a further bulwark against prosecution? It appears from subsection (3) that regardless of the intention to cause outrage, one shall not be liable to proceedings for an offence under this subsection if one can prove that a reasonable person would find genuine literary, artistic, political, scientific or academic value in the matter to which the offence relates.

There are three possible reasons the Minister believed it necessary to add that subsection: to placate public opinion led, interestingly, by the media on this issue, which is fair enough and does not mean in itself that this is not a desirable addition, and to protect people even where they intend by the publication or utterance of the matter to cause outrage. Perhaps the Minister's reason for doing this is that sometimes the intent of an expression of a genuine literary, artistic, political, scientific or academic view is to give offence in terms of provoking debate on an issue which is held to be important. Perhaps, however, there is another reason for this. Perhaps the Minister is taking the traditional legal view that a person shall be deemed to intend the natural and probable consequences of their actions. In other words, if he or she did not intend to offend the Muslim community in what was said about the prophet Mohammed, the fact that he or she knew the Muslim community might take offence and that a substantial number of people would be outraged in a matter sacred to them would comply with the requirement for intentionality. Perhaps that is the reason for the inclusion of subsection (3). While I agree with the inclusion of that subsection, I believe the Minister has made a mistake and I ask that he accept an amendment in that regard. I seek the guidance of the Cathaoirleach on this matter. I note it is open to me to propose a verbal amendment on Fifth Stage.

For whatever reason the Minister has deemed it necessary to buttress the requirement of intentionality with further protection where people can show that a reasonable person would find genuine literary, artistic, political, scientific or academic value in the matter which is alleged to be blasphemous. Unaccountably, however, the Minister has omitted the possibility that a reasonable person would find genuine religious value in the matter to which the offence relates. Here lies the great irony: in legislation which is designed to offer some protection to people of whatever faith, the Minister has included a bulwark against that protection to every category imaginable except the person of faith, despite the fact that it is most likely to be in matters of religion, through utterances of people of religion, including ministers or officials of religion, that the offence might be given. Let us take for example the Reverend Ian Paisley, who I am sure would have no problem saying the Catholic doctrine of the real presence is nonsense on stilts. While that may not be the most sympathetic example, given Reverend Paisley's particular personality, there is no protection for him in this legislation although there should be. If the Minister is offering protection to Mr. Richard Dawkins who in his artistic work of literary merit knocks the socks off the belief of papists, Muslims, Buddhists or anybody else who holds some class deity in high esteem, he should then extend the same protection to a minister of religion. It is in debates between religions that controversy is most likely to arise.

What I find hard to understand is this. The former Taoiseach, Deputy Bertie Ahern, established a forum for dialogue between the State and religious and ethical bodies, including non-confessional bodies such as the Humanist Association. It appears that there is no evidence of dialogue here. There is no evidence that the sensitivities of religious people, who might want to express religious views that may cause offence to others, are in any way considered here. The legislation as it stands exemplifies in a classic way the anti-religious dimension that forms part of aggressive secularism which often arises in our society, namely, that there is to be protection for every group except those with faith. That is intolerance, not tolerance, and it must be addressed. The Minister is sending out the message that all sorts of groups may enjoy protection against prosecution for blasphemy - ironically the section introducing that is supposed to in some way offer protection to communities of faith - but the people who are excluded from that protection are communities of faith. Sin botún a Aire. Níl aon fhocal eile do, sin botún.

There has been much criticism of the Minister, some of it perhaps unfair, for being firm in terms of not accepting amendments and there has been some criticism of the Minister which I must confess is fair in terms of the amount of legislation rushed through this House in recent days resulting in our not having an opportunity to give it the scrutiny it deserves, thus vindicating our role as the Seanad. However, I understand there are times when legislation must be enacted quickly. For the Government to act with credibility in that regard it needs to be able to own up to a mistake when it makes one. A mistake has been made here, a mistake that will cause offence to people of faith of different religions and denominations. The Minister has correctly provided that a reasonable person would have to show that he or she could find genuine literary, artistic, political, scientific or academic value in the matter alleged to have caused offence. The reasonable person does not have to believe in the concept, he just must see genuine merit in it. I could say I did not like a particular episode of "Father Ted" but it has genuine artistic value.

The problem is that there are religious concepts and matters of controversy between religions where one cannot claim the necessary protection - I say this as someone who worked for five and a half years as press officer for the Catholic diocese of Dublin so I know a little about what I am saying - because one does not come under the heading of having literary, artistic, political, scientific or academic merit.

The Minister is rightly tabling these amendments to allay fears that this anti-blasphemy legislation would be used in a way that would be oppressive of the free expression of ideas. I applaud him for that. An American writer described anti-Catholicism as the last acceptable prejudice but we are not talking about that here because this applies not only to Catholics. We must not make the mistake of thinking that the only people who are not entitled to protection in society are people with religious views. That is what will happen when we extend a protection for free speech for people who produce material or express ideas in which a person might find genuine literary, artistic, political, scientific or academic merit while excluding the possibility of there being a religious value.

A person does not have to share a view to see it could have religious value. If I want to cause a debate as a religious commentator or polemicist and I say that what the prophet Mohammed said in the Koran is not conducive to the common good because it could be read in a violent way, I need protection in the expression of that view although it is not a political view. If I say that the Koran leads people away from God, that is a religious view, it is not political, scientific, academic or literary but the protection is still deserved.

The Danish cartoons controversy offers an example of the sorts of problems this section will bring about if it is left unamended. During that controversy the assertion was made that some sections of Islam regard it as blasphemy to depict the prophet Mohammed. If that view was to enjoy the protection of the law it would be excessive. Imagine a history teacher who produces a book illustrating the history of religions and just as he might try to illustrate Jesus Christ, he might try to illustrate Mohammed, in a respectful way but depicting him nonetheless. Mohammed belongs to all of us if he is a historical figure. He is part of the human heritage and, as such, a person producing a history book for children is entitled to depict him and must enjoy the protection of the law in so doing.

Suppose it is not an academic publication, suppose it is for Sunday school. In those circumstances that person might not enjoy protection because he can foresee the depiction of the prophet will cause offence and therefore he may be held to intend it. The Minister must protect the person who wants to express a view that is purely religious, uttered in good faith, not desiring in an aggressive way to be offensive but intending to be offensive in that he understands that the natural and probable consequences of his action in expressing the idea is that it will give offence. Given that the Minister requires a section to give further strength to the limitation entailed in subsection (2)(b), if he is a reasonable man, he must extend this protection to ministers of religion if he is going to give it to other sections of society. Otherwise the Minister will also be guilty of aggressive secularism.