37th Amendment of the Constitution (Repeal of offence of publication or utterance of blasphemous matter) Bill 2018

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At the outset, on behalf of the Minister for Justice and Equality, CharIie Flanagan TD, I would like to thank Senators for agreeing to deal with this Bill today. The House will be aware that under the Referendum Act 2004, 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 the 26th of October. In these circumstances there are inevitable time pressures and constraints when it comes to progressing this Bill.

The Bill before the House is the Thirty-seventh Amendment of the Constitution (Repeal of offence of publication or utterance of blasphemous matter) Bill 2018. The title aptly describes the purpose and intent of what is a short, 2 section, Bill. That purpose and intent is to remove the reference to “blasphemous” from Article 40.6.1˚i of the Constitution.

Section 1 of the Bill provides for the amendment of Article 40 by providing that:

If that 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:

Section 2 of the Bill is a standard provision and specifies both the name of the constitutional amendment and of the Bill itself.

The publication of this Bill fulfils one of the commitments included in 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.

To outline briefly those reports, the Law Reform Commission published its Report on the Crime of Libel in 1991. The report referred to the constitutional provision as anachronistic and anomalous in nature.

In 1996, the Constitution Review Group came to the conclusion that the retention of the present 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. They further concluded that blasphemy was not a phenomenon against which there should be an express constitutional prohibition. Protection against religious offence or incitement could more appropriately be dealt with by legislation which would have due regard to the fundamental right of free speech.

I will conclude this summary with reference to the very 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 can be seen therefore that a range of expert groups from disparate backgrounds have formed the view that the constitutional provision concerning blasphemy is inappropriate and anachronistic and that it should be deleted from the Constitution.

The previous government reacted positively to the recommendations contained in the Sixth Report of the Convention on the Constitution. More recently, in September last year, this government agreed that a referendum would be held in 2018 to repeal the offence of publication or utterance of blasphemous matter from the Constitution.

In bringing this Bill before you today, it is clear that it is somewhat difficult to come to a common understanding as to the nature of blasphemy within the framework of a modern 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. The common law offence of blasphemous libel applied only to Christianity. Blasphemy could be committed by written or spoken words, by pictures or gestures, and profanity was generally regarded by legal scholars as synonymous with blasphemy. 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 safeguarding the religious system of belief with which that State was identified on the other. 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. The Enlightenment generated a range of ideas centred on reason as the primary source of authority and legitimacy, and came to advance ideals like liberty and tolerance and the separation of church and state. Over the course of time therefore, individual rights came more 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.

Before proceeding further, I want to put on the record of this House that the proposal in the Bill should not be viewed as an attack on belief. Nor it is 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. That Constitution must have regard to the needs of all who live in our country and to their right to express differing viewpoints in a forceful and critical manner.

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 neither accept nor condone the criminalisation of expression. Having said that, it is, of course, a different matter if that expression is geared towards inciting hatred or violence. Where such is the intention, then the criminal law must indeed come into play.

In a society such as ours, whose members hold a wide array of beliefs, the State simply cannot guarantee that, on occasion, individuals will not be hurt and possibly 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.

Senators will be aware that the Department of Justice and Equality has a wide range of responsibilities, including responsibility for equality matters. I am strongly of the view that we need to promote and encourage respect and tolerance for the various belief systems which now exist within our country. Undoubtedly, when it comes to matters of faith, or absence of faith, we need to be sensitive to the feelings of others. However, the application of the full apparatus of our criminal justice system is not required to uphold the obligations of the State in respect of tolerance and sensitivity. Ideally, basic human decency and good manners should ensure that that objective is achieved.

The Venice Commission, which is the Council of Europe’s advisory body on constitutional matters, has stated that a democracy should not fear debate, even on the most shocking or anti-democratic ideas, and that mutual understanding and respect can only be achieved through open and public debate. The Venice Commission also noted that it was not essential that criminal sanctions be imposed for an insult based on belonging to a particular religion. Essentially therefore, if a statement or work of art does not constitute incitement to hatred, then it should not be the object of criminal sanctions.

It is part of the human condition to be attached to our own views, and I acknowledge that it can be difficult to accept that religious or other groups must tolerate critical public statements and debate about their activities, teachings and beliefs, even if such criticism may be seen by some as hurtful and offensive. In saying this I am not saying that people can or should go out of their way to be gratuitously offensive or insulting to the beliefs of others. The test which should always be applied is that such criticism or comment should not amount to incitement to hatred, should not constitute incitement to disturb the peace and should not amount to discrimination. Rather, we should try to reach an understanding and tolerance of each other’s beliefs and practices. That endeavour requires us to deal responsibly towards each other and one element of that responsibility is the requirement that we respect the legitimate exercise of freedom of expression.

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 in relation to blasphemy has certainly not been invoked with any frequency and it would seem that, for over a century and a half, there has been little interest in entertaining blasphemy prosecutions. Indeed, 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. The case itself involved an application by an individual to institute a criminal prosecution for blasphemy. 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, while the crime of blasphemy existed as an offence in Irish law, because the Constitution said so, 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. Senators will recall that section 36 sets out the elements which characterise the statutory offence of blasphemy. For the purposes of that section, a person publishes or utters blasphemous matter if he or she publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion, intentionally causing outrage among a substantial number of the adherents of that religion. Upon conviction, a person is subject to a fine not exceeding €25,000. Section 37 concerns powers of entry to premises by the Garda Síochána, and related powers for the search and seizure of blasphemous statements.

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. I should say that, 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. So, let me 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 a duty to ensure that it is operable and, for as long as the existing Constitutional provision remains, even if many members of our society view it as being antiquated and archaic, the offence of blasphemy must also remain on our statute book.

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 if you will, 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. Even if the nature of our provision is misunderstood, the mere fact of its existence places us in a position analogous to that in those countries which do not share our belief in freedom of conscience and in freedom of expression. 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.

The Constitution is at the heart of our legal system and it is a privilege for me to come before this House to propose legislation which, if passed by the Oireachtas and agreed to by the people, will result in a useful amendment being made to it. Our Constitution is a document which has withstood the test of time while evolving to reflect the changes in our country as it has moved into the 21st century. Fundamental values of the type enshrined in the Constitution are timeless but some concepts are deeply rooted in a particular time and in a particular view of what is socially appropriate. Blasphemy is such a concept.

I acknowledge that the removal of the offence of blasphemy from our Constitution is, on the face of it, a relatively small step. Nonetheless, 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 multi-culturalism is embraced.

I commend this Bill to the House.

ENDS