Ivana Bacik (Independent) | Oireachtas source

I will check but certainly we were assured by the then Minister with responsibility for justice, former Deputy Dermot Ahern, that he was obliged to introduce a statutory offence of blasphemy because of the constitutional position. As far as I can see, this is a tidying-up exercise to ensure that the Constitution is modernised and brought into line with contemporary thought. As a criminal lawyer, I do not think it is appropriate that we would have criminal offences in the Constitution. In that context, I am critical of the fact that we are leaving any offence within the Constitution. I would like to see "publication or utterance of seditious or indecent matter" removed too. I think the Government's proposal is simply to remove "blasphemous", but it is a missed opportunity not to take the offence out in its entirety. I do not think the Constitution is an appropriate place for us to define criminal offences. It is not our criminal code nor should it be. It is a broad statement of aspirations and of governance of our State. That is my only quibble.

The Minister of State has set out very clearly that this is not some sort of whimsical, sudden move by the Government. This is something that has been recommended for a long time. As far back as 1991, the Law Reform Commission recommended that the constitutional prohibition on blasphemy be removed. The expert Constitution Review Group made the same recommendation in 1996. In 2013, I was proud to be a member of the Constitutional Convention which considered in great detail, with expert opinion and advice, the question of the removal of the offence of blasphemy and recommended same by a strong majority. In 2014 the previous Government, of which my party was a member, through the then Minister of State, now Senator Ó Ríordáin, announced in September that the Government had agreed to put the question of the removal of blasphemy from the Constitution to the people. Agreement was reached that a referendum would be held on the question of amending Article 40.6.1°.i of the Constitution to remove the offence. The previous Government accepted the report of the Constitutional Convention and I am glad that this Government has continued with that position and is now proposing to put it to the people.

It seems sensible that it would be done on the same day as the Presidential election so that the cost will be minimal, given that polling stations will be open. There will be some additional costs through printing extra ballot papers, but to start quibbling about the cost of this measure, as with any constitutional referendum, misses the point. Let us look at the substance of this and be clear that this referendum has been recommended over many years by many different expert groups, peoples' groups and by successive governments. The Minister also mentioned the Corway and Independent Newspapers case in 1999 in which Mr. Justice Barrington noted that it was for the Legislature to define the crime rather than for the courts. It was that case which the then Minister, Deputy Dermot Ahern, referred to when he brought the Defamation Bill before the Houses, proposing to create a new statutory offence of blasphemy in section 36.

Some, including Senator Mullen, have argued that this has not had any real impact, but I would beg to differ on that point. It is very clear that the existence of that offence and its relatively recent introduction had an international impact. Ireland went against the EU norm in adopting a new statutory definition of blasphemy. We are an outlier within the EU in that regard. Other states have used our blasphemy offence as a model. It is fair to say that Pakistan and other states have pointed to our law as an example of a law they wish to pursue. It has also been used as a stick with which to beat us when we have been critical of regimes that have, for example, discriminated against religious minorities, including Christian minorities that have been repressed in certain countries. We need to be very clear that the existence of an offence of blasphemy, even if there have been no prosecutions, sends out a signal that other countries, individuals or regimes may use against us or against minorities in their own state. While no one has ever been charged with this offence, back in 2015 there was a rather embarrassing case of a complaint made at Ennis Garda Station about comments made by the actor Stephen Fry on the "The Meaning of Life" programme. At the time, the former Minister Dermot Ahern said that the blasphemy provision had been implemented with a view to making it virtually impossible to prosecute. That is not an appropriate way to legislate for a criminal offence either.