David Stanton (Cork East, Fine Gael) | Oireachtas source

On behalf of the Minister for Justice and Equality, I thank Senators for agreeing to deal with this Bill today. The House will be aware that under the Referendum Act 2001, polling must be not earlier than 30 days and not later than 90 days after the date of the polling day order which can only be made by the Minister for Housing, Planning and Local Government when the necessary referendum Bill has been passed by both Houses of the Oireachtas. It is intended that the referendum on blasphemy will take place on the same day as the Presidential election, which is scheduled for 26 October. In these circumstances, there are inevitable time pressures and constraints when it comes to progressing the Bill.

The Bill's Title aptly describes the purpose and intent of what is a short, two-section Bill. The purpose and intent is to remove the reference to "blasphemous" from Article 40.6.1°.i of the Constitution.

Section 1 provides for the amendment of Article 40.6.1°.i by providing that "seditious" shall be substituted for "Blasphemous, seditious" in the English text. If this amendment is approved by the people in the forthcoming referendum, the relevant part of Article 40.6.1°.i of the Constitution will read as follows: "The publication or utterance of seditious or indecent matter is an offence which shall be punishable in accordance with law.".

Section 2 is a standard provision and specifies the name of the constitutional amendment and of the Bill. The publication of the Bill fulfils one of the commitments of the programme for a partnership Government. It accords with the recommendations included in a series of reports which touched upon the constitutional provision on blasphemy and which, without exception, favoured the deletion of that provision. Those reports include the Law Reform Commission, LRC, report on the Crime of Libel in 1991. The 1996 report of the Constitution review group came to the conclusion that the retention of the current constitutional offence of blasphemy was not appropriate. In 2008, the Joint Committee on the Constitution also considered this matter and concluded that the specific reference to blasphemy should be deleted from the Constitution. Most recently, we had the valuable work of the Convention on the Constitution in 2014. Following the trend of previous reports, the convention in its sixth report favoured, by a clear majority, the removal of the offence of blasphemy from the Constitution.

It is somewhat difficult to come to a common understanding as to the nature of blasphemy within the framework of a modem society. We can take it that in simple terms "blasphemy" means to vilify or show contempt for God or to abuse or treat with contempt or disdain that which is sacred. However, there is a complex political and religious background to the development of this concept in this jurisdiction, which makes the simple definition less than helpful when it comes to considering the constitutional provision. It seems to be generally accepted that our legal understanding of the term "blasphemy" has grown out of the understanding at common law as it prevailed in England and Wales over the centuries. Once the Anglican Church of Ireland became the established church in the late 17th century, the rationale for maintaining blasphemy laws was inextricably linked with the need to protect that religion and, by extension, the State. Thus, as will be apparent to Senators, there was a clear and fundamental link between protecting the State on the one hand and, on the other, safeguarding the religious system of belief with which that State was identified. However, the intellectual and philosophical movements in the 18th century that is now referred to as the age of enlightenment or the age of reason brought about a change in that approach.

Over time, individual rights came to the forefront of social thinking. In the blasphemy context, the rationale for defending and securing the established belief system was overtaken by an emphasis on the need to protect the religious sensitivities of believers. By the time our Constitution was adopted, therefore, it would seem that the focus of blasphemy, as it was understood at the time, was very much directed towards speech likely to cause gross outrage to such sensitivities. Furthermore, it would seem to be the case that, arising out of the various equality provisions in the Constitution, the "protection" offered by the blasphemy provision, if such it can be called, was not confined to any one church or belief system.

The proposal in the Bill should not be viewed as an attack on belief, nor is it intended to privilege one set of values over another. It is simply an acknowledgement that a concept whose meaning is unclear, and which is rooted in a past where loyalty to a State and loyalty to a particular religion were virtually synonymous, has no place in our Constitution. At the core of the proposal to remove the offence of blasphemy from our Constitution is the view that criminal sanctions are not appropriate in this context. In a modern and democratic society, we should not accept or condone the criminalisation of expression. That said, it is a different matter if that expression is geared towards inciting hatred or violence. Where such is the intention, the criminal law must come into play. In a society such as ours, whose members hold a wide array of beliefs, the State cannot guarantee that, on occasion, individuals will not be hurt and outraged because something which they might regard as deeply offensive is considered by others to be no more than humorous or satirical comment. Additionally, it is not in keeping with best international practice that there should be a possibility, however remote, that a criminal prosecution of blasphemy would be taken in such circumstances.

In our current society, maintaining the criminal offence of blasphemy in our Constitution, and as a consequence, on our Statute Book, has more to do with an unnecessary and anachronistic check on freedom of expression than with the protection of religious values. Removal of the blasphemy clause from our Constitution would be a public affirmation of our belief in an inclusive society. It would underscore that communication between those with different belief and value systems should take place on the basis of mutual tolerance and respect. It would remove the inhibiting check on freedom of expression which a blasphemy law inevitably represents. The law on blasphemy has not been invoked with any frequency and it would seem that for more than a century and a half, there has been little interest in entertaining blasphemy prosecutions. The most recent prosecution for blasphemy in Ireland seems to have taken place in 1855 and that prosecution resulted in the acquittal of the person involved who was alleged to have burned a bible in the context of a general burning of "evil literature". In more recent times, the position and particulars of the offence of blasphemy In Irish law was considered by the Supreme Court in the case of Corway and Independent Newspapers. During the course of the judgment the constitutional framework which guarantees freedom of conscience, the free profession and practice of religion, and equality before the law to all citizens was discussed. It was noted that it was difficult to see how the common law crime of blasphemy, related as it was to an established church and an established religion, could survive in such a framework.

It should be borne in mind that the judgment gave particular emphasis to the fact that existing legislation had not adapted the common law crime of blasphemy to the circumstances of a modern state. The court concluded, therefore, that given the current state of the law and the absence of any legislative definition of the constitutional offence of blasphemy, it was impossible to determine the nature of that offence. This analysis and the implied criticism of the Legislature it contained brings us to the much-maligned provisions which are set out in sections 36 and 37 of the Defamation Act 2009. It would be fair to say that there is a high threshold to be met if the offence created under the Act is to be successfully prosecuted and the Department of Justice and Equality is not aware of any prosecutions having taken place under it.

If the constitutional amendment is agreed to by the people, it is the intention of Government that sections 36 and 37 of the 2009 Act would be repealed. Provision for such repeal is contained in the general scheme of a Bill which has been published on the Department’s website, and which sets out the measures which would be drafted as a formal Bill in the event of the Thirty-seventh Amendment of the Constitution being approved.

I am not going to deny that the proposal before the House is a modest one. Indeed, there are those who say that it is without point or purpose, especially having regard to the Corway judgment and to the general lack of prosecutions in this area. However, there are good, sound justifications for removing the reference to blasphemous matter from our Constitution and I will enumerate those reasons.

It is an undeniable fact that for as long as it remains in our Constitution, we have in being a constitutional offence of publishing or uttering blasphemous matter. We cannot wilfully ignore this constitutional provision. There is also our international reputation to consider. In 2013 the United States Commission on International Religious Freedom identified 71 countries where blasphemy was punished. The ranking of our provisions as being at the upper end of mild does not gainsay the fact that we are in a minority of EU countries which featured on that list. Indeed, since the data for that report was collated, both Malta, in 2016, and Denmark, in 2017, have moved to abolish their blasphemy laws. Notwithstanding our relative ranking on the above-mentioned list, there is a fundamental problem with the fact that we feature on such a list at all.

I have already referred to the difficulties in reaching a common understanding in this society as to the practical workings of a blasphemy offence. Imagine, therefore, the widely varying understandings of the concept of blasphemy which may exist in other countries which do not necessarily share our liberal values. In some countries blasphemy laws are applied in a discriminatory manner in order to protect a particular religion. In effect, the laws are used to justify the persecution of religious minorities, as well as the persecution of those who have a value system which is not based upon religious belief.

In addition, there is a wide divergence in the sanctions which may apply when blasphemy laws are breached. Such sanctions range from fines, terms of imprisonment of varying lengths, physical punishment, hard labour and even death. While we in Ireland may have our own particular views on our blasphemy provisions, when we think about them at all, an outsider looking in sees that Ireland is a country with a blasphemy law in its Constitution, and at the heart of its legal system. In tandem with possible false impressions as to the nature of our blasphemy law, its very existence in this jurisdiction offers apparent comfort to those in other jurisdictions who can point to it in order to justify the more extreme regimes which they apply and this is something about which we should all be disturbed.

I acknowledge that the removal of the offence of blasphemy from our Constitution is, on the face of it, a relatively small step. Nevertheless, taking this step would represent a deeply symbolic and tangible affirmation of our status as a modern and democratic society, where free speech is valued and where multiculturalism is embraced. I commend this Bill to the House.