Denis O'Donovan (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

We move to the Title.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

I wanted to debate section 2.

Denis O'Donovan (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

We have already agreed it. I do not want to be dismissive so I will allow a brief debate. However, it was technically already agreed.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

I wanted to discuss this further, however. The Minister of State indicated in his speech that he intends to repeal the criminalisation of blasphemy. I should say that when I introduced a Bill to replace the Defamation Act 1961 I, as Minister for Justice, Equality and Law Reform, included nothing in respect of blasphemy, although I understand that a subsequent Attorney General was of the view that repealing the 1961 Act without substituting a corresponding offence might itself be seen to be unconstitutional. I doubted that at the time. I thought the provision in the Constitution made the offence of blasphemy much like a common law misdemeanour, something that was unlawful and punishable. I thought that the phrase "punishable in accordance with law" did not require a statute but merely that there could be a criminal procedure to punish it and that a just penalty could be applied by the courts, as was the case with many common law misdemeanours for which no maximum penalty was ever set. In any event, the Attorney General who advised the Government after me apparently came to the view that it was mandatory to include in the Defamation Bill some alternative criminalisation of blasphemy on the basis that it was requisite on foot of the-----

Denis O'Donovan (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

For the record, this section is already agreed. There cannot be a vote on it. It has been agreed. I am allowing the Senator speak because he wanted to make a point but I am not going to open up a full debate again.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

I do not want to have to table a Report Stage amendment but I think that when we are amending the Constitution we should discuss what we are doing.

Denis O'Donovan (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The difficulty for me as Cathaoirleach is that when I put section 2 to a question it was agreed with no opposition.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

Unfortunately, I did not-----

Denis O'Donovan (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The Senator raised his objection when I went on to the Title of the Bill.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

I did not have the text of section 2 in front of me. When I was speaking I did indicate that I intended to return to the matter at a later Stage in the debate.

Denis O'Donovan (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

It is a little bit like an auction. When the hammer falls I cannot row back on the final bid.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

That is fair enough. May I make the following point? If the Minister of State does proceed with his stated intention to repeal the provisions of the Defamation Act he will be saying that nobody, in any circumstances, can ever be prosecuted for publishing anything which deeply offends the religious sensibility of the Christian faith in Ireland no matter how gross the offence is. No matter how gross or how grotesque what is said or done, nobody can be punished. I do not think that most people are aware that the Government proposes not merely to remove from the Constitution the obligation to criminalise blasphemy, but that it also intends to declare it absolutely open season to say or do anything in public which outrages religious sentiment without any sanction of any kind whatsoever. I do not think most people are aware that is his intention and I do not think he has made that clear. I do not think the Government - and I do not mean to personalise it to the Minister of State, Deputy Stanton, in any way - has said that it intends that, as of next week, any citizen will be able to put up on the Internet the grossest attack on religious belief in the most appalling and filthy way and that it will not be possible to do anything about it unless the Internet service provider intervenes to remove such material on the grounds of its own policies.

By all means the Government could take this one word out of the Constitution, but if it goes the second step and says that it feels that a consequence of removing it is the decriminalisation of every form of blasphemy, no matter how gross it may be, and if that is its thinking, it should face up to the consequences. God knows - and I use that phrase loosely - that we have many people here who will choose to go as far as the law permits to offend others and to cause them distress and anger. We know that will happen. We really should consider carefully whether we want to go that second step.

The second point I want to make is that if we do repeal this particular reference to blasphemy in the Constitution it does not follow, either logically or in good sense, that any criminalisation of blasphemy must necessarily fall with it. The right to free speech is subject to public order and morality. It strikes me that there is a limitation written into the Constitution, which will not be affected by the particular amendment, which says that the exercise of freedom of expression is guaranteed subject to public morality. Can the Minister of State say, on behalf of the Government, that anything, not matter how offensive or outrageous, can be published about religion and, at the same time, not involve an infringement of public morality? I do not think he can.

If the Government does table legislation to amend the Defamation Act in order to decriminalise all forms of blasphemy, on the assumption that this particular measure will be passed by the people, that will have to be considered on its merits in those circumstances. This is not just a package to be sold to the people like repealing the eight amendment and outlining the legislative consequences. This is not the same as that. I do not believe that the great majority of people in this country want to have absolute and total open season on causing religious offence by publication. I do not believe that the people would be happy to see every single vestige of protection of religion from premeditated and vicious blasphemy swept away in the name of liberalism - and I speak as a liberal on that. People are entitled to have some basic standards of decency or public morality enshrined in the law with regard to the protection of religion. It is not a great expansion of freedom to tear down every barrier surrounding the sacredness to individuals of their religious beliefs.

Denis O'Donovan (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The section has been agreed and I do not want to open up a debate because I was just about to read the Title to the Bill.

David Stanton (Cork East, Fine Gael)
Link to this: Individually | In context | Oireachtas source

It is quite unusual to come back in again when a section has been agreed.

Denis O'Donovan (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

That is why I am saying the Minister of State might be better off not-----

David Stanton (Cork East, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I just want to make it clear that this Bill should not be viewed as an attack on belief. Let us make that clear. It is not that.

Denis O'Donovan (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Obviously Senator McDowell can make these points, which he feels are very valid, during the debate on this matter.

David Stanton (Cork East, Fine Gael)
Link to this: Individually | In context | Oireachtas source

The points will be welcomed in the debate on the Bill when it comes before the House. That is probably the right time to hear them. I just want to be clear that this is not an attack on belief. It is an acknowledgement that a concept whose meaning is unclear, and which is rooted in a past in which loyalty to a state and loyalty to a particular religion were synonymous, has no place in our Constitution today. Yes, the debate which the Senator has mentioned on the issue can certainly be had when that Bill comes before the House.

Denis O'Donovan (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Obviously there will be a debate on this before the referendum is held if this Bill is agreed. Therefore, there will be ample time to debate the issue.

David Stanton (Cork East, Fine Gael)
Link to this: Individually | In context | Oireachtas source

Yes, if the amendment is agreed to. We cannot assume what the people are going to say.It is a different matter if expression is geared towards inciting hatred or violence. I think the Senator is gesturing in that direction. That debate would be very important and very useful. Where that intention is there, the criminal law must indeed come into play.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

I want to make a few observations. Indecency is as flexible a concept as blasphemy. There were times when people who doubted and publicly refuted the biblical explanation of the garden of Eden and the story of Adam and Eve were accused of blasphemy. Obviously blasphemy as a concept is one which has changed with the passage of time, as has indecency. There is no doubt about that. The mere fact that the term "blasphemy" is difficult to pin down is not the problem here, because Members are quite happy to leave "indecency" in the Constitution and to say that the publication or utterance of indecent matter, whatever that means, must be punishable in accordance with law. That is what this amendment is actually setting out to do; to consciously leave that in the Constitution and to leave it to the law, to lawyers and juries in certain circumstances, to decide whether something is or is not indecent in the context of a criminal prosecution.

I would not have put this phrase into the Constitution at all had I been a constitutional draftsman. I do not think it is particularly necessary. However, the stated intention of the Government as announced by the Minister of State here is to decriminalise everything that up to now could have been considered blasphemy. It is not just a matter of hatred or violence.

I refer to the Charlie Hebdo incident in Paris. The mere fact that one could say something about the Prophet Muhammad which was so offensive to people that they became violent could not possibly be grounds for prohibiting one from publishing the cartoon in the Charlie Hebdo case. It is not the reaction, the extremity of the reaction or the probable consequences that I am talking about. It is the actual concept of saying that freedom of expression carries with it the right to utterly deride, devalue and create contempt for the religious thoughts of others. What we are actually doing in twinning this constitutional amendment to a proposal to decriminalise blasphemy of whatever kind and in whatever circumstance is declaring open season for blasphemy hereafter. I repeat, open season. There is no constraint, unless, of course, some clever lawyer comes up with the idea that public morality brings blasphemy back in through the back door.

I do not believe that we should simply passively watch this be removed in the context of a Government commitment to utterly decriminalise all forms of blasphemy no matter how extreme and let it go without comment. That is the only reason I am contributing. I am a liberal. I have no problem whatsoever with people mocking each other's religions. I am not simply talking about "Father Ted" or something like that. I have no problem at all with people deriding the views of the Mormons or the Scientologists, if Scientology was to be considered a religion, or whoever. I have no problem with people mocking and knocking the religious views of others. I am saying there are things at the very extreme about which a society is entitled to say, "That goes too far". I would like it to be noted that if, in the wake of this amendment being accepted by the people, legislation comes before the House to decriminalise all forms and all degrees of blasphemy of every kind, I think we should have a long and searching debate, far more elaborate than we are having this afternoon, as to whether that is what the people really want to do.