Denis O'Donovan (Fianna Fail) | Oireachtas source

At the outset, I also welcome the Minister back to the House, and I wish her well in her future life and work in the Oireachtas. My concerns with this Bill mostly relate to legal and constitutional issues. I am deeply concerned about Article 38.1 of the Constitution of Ireland, which states that, "No person shall be tried on any criminal charge save in due course of law." I have concerns about the shift in the burden of proof here, and I will have difficulty in supporting it. Article 40.6.1° states that citizens have a right to "express freely their convictions and opinions." I think there is a conflict there. Article 10.1 of the European Convention on Human Rights 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 ...

Article 10.2 of the European convention provides that any restriction on freedom of expression must pursue one of the aims recognised as legitimate and necessary in a democratic society.

I recognise that even though this is by and large a tolerant and diverse society, appalling incidents have happened to which the Minister has referred. My concern, and I believe it is a fair one, is that we may be using a sledgehammer to crack an ugly nut. I do not think we should. In no way do I condone things that have happened in the Minister's county or in other places. They are appalling and must be condemned. However well intended, to legislate as this Bill proposes will create major conflicts. It conflicts with the Constitution. While I may not be as well qualified as others here, I started studying law in 1972 and I have spent almost 30 years in the Oireachtas, between the Dáil and the Seanad. If the constitutional conflicts are such as I believe, then I am certain this will be contested in the Supreme Court on a constitutional basis. Furthermore, it may be taken to the European Court of Human Rights. I have great worries that such a challenge may be successful in both of those courts. The slant or conflict with the Constitution of Ireland is so strong in this instance that I think it warrants considering a referendum to change the Constitution before this legislation is passed. I acknowledge that is a far-reaching view, and one might say it is a strong stance. I think the people of this country should have a view and a vote as to where we are going in this regard. We should study other legislatures. I looked at the Scottish law. While it is similar in many ways, it does not impinge on the rights I have already outlined. I have grave worries that the Bill as drafted does not have the intended consequences that many who have spoken believe it to have.

I believe it was rushed through the Dáil and I do not say that lightly. I am concerned that this Bill will be rushed through here too. The view I am getting is that this legislation must at all costs be passed before the summer recess, which is Thursday, 13 July. That is about 12 sitting days. Apart from the Second Reading we also have to deal with the other Stages of the Bill. I appeal to the Minister that we look at this in the cold light of day. Let us have Second Stage today. While I may allow this to go through because we must have Second Stage, I have sincere and deeply-held reservations. This is hugely important and significant legislation that impacts many lives and many people in different ways. If we proceed in rushing this through in the 12 working days that are left, I would have great reluctance in putting my name to it before it is completely finished and before knuckling down to the final Stage. On only three occasions in the almost 30 years I have been in the Oireachtas, have I stood up for issues important to me, mainly against my own Government. I will not go into those. Three contests in 30 years with the Government and parties I was with, in coalition or otherwise, is not a bad record.I am not being an oddball, or at least I hope I am not, but I have deep concerns here. I am satisfied with the intent and with what we are trying to achieve but the manner in which it is being done is of deep worry to me, primarily in the context of constitutional rights. That is what I have honed in on. I have read Bunreacht na hÉireann again. I have gone through the articles I have quoted and I am not happy at all, in this little head of mine, that we are actually achieving what we are setting out to achieve. In actual fact, we might be going down a cul-de-sac that we might find it hard to recover from, we may be embarrassed in our own Supreme Court and possibly even in the European Court of Human Rights, ECHR. I ask the Minister to stand back a little and give us all time to reflect on this legislation. While it is important in many ways, rushing legislation through is not a good thing, ever. I can honestly say, with hand on heart, that this legislation did not get due consideration in Dáil Éireann, in the Lower House to be precise, and that troubles me.