Blasphemy (Abolition of Offences and Related Matters) Bill 2019 [Seanad]: Second Stage

I move: "That the Bill be now read a Second Time."

I am pleased to be here with the Deputies to present the Blasphemy (Abolition of Offences and Related Matters) Bill 2019, which gives effect to the outcome of a referendum to amend the Constitution.

Deputies will recall that until late last year, Article 40.6.1°i of the Constitution specified that the publication or utterance of blasphemous, seditious or indecent matter was an offence that should be punishable in accordance with law. Members will also recall that in the autumn of last year, this House approved the Thirty-seventh Amendment of the Constitution (Repeal of offence of publication or utterance of blasphemous matter) Bill 2018.

The proposal in the referendum Bill was not brought forward in a vacuum. Over the years, there have been a number of reports where the constitutional reference to blasphemy was considered. All of those reports recommended that the reference be deleted.

Following the passage of the Bill, a referendum was held in October of last year on the proposition that the reference to "blasphemous" should be removed from the Constitution. That proposal was approved by the people in all 40 constituencies, and by 64.85% of voters nationally, in the referendum which took place on 26 October last year. The Bill was signed by the President on 27 November 2018. During the progress of the Thirty-seventh amendment Bill, and in the course of the referendum campaign, the Government made it clear that the implementing legislation would be advanced as quickly as possible. Subsequent prioritisation of Brexit-related legislation early this year, however, resulted in something of a delay in our being able to publish the present Bill.

The Bill before us is short and technical in nature. It reflects the outcome of last year's referendum. Its Title, the Blasphemy (Abolition of Offences and Related Matters) Bill 2019, describes, in precise terms, the purpose and intent which underlies this five-section Bill. It is important to bear in mind that the policy has already been settled by the result of the referendum and that the legislation we are discussing simply gives effect to that policy choice. At the time of publication of the Thirty-seventh amendment of the Constitution Bill last year, the Government also provided the text of a proposed general scheme to implement the consequential legislative changes that would be required if the referendum proposal was agreed. The key element in that scheme was the repeal of the statutory offence of blasphemy, which was contained in the 2009 Defamation Act. That scheme does not vary materially from the Bill before the House, with one point of difference relating to section 1.

Section 1 of the Bill is an avoidance-of-doubt provision, which aims to make it absolutely clear that the common law offences of blasphemy and blasphemous libel no longer exist. This section is included on foot of advice from the Attorney General that, notwithstanding a view that such offences did not survive the enactment of the Constitution, it is desirable to include such a provision to ensure there is no possible doubt on this point.

Sections 2 and 3 provide for the deletion of the references to "blasphemous" in section 7 of the Censorship of Films Act 1923 and section 3 of the Censorship of Films (Amendment) Act 1925. These amendments are not strictly necessary to implement the referendum result but were included in the general scheme in order to remove all references to blasphemy in our primary legislation. In terms of historical background, surviving records from the Irish Film Classification Office do not always give a detailed reason for the initial prohibition of particular films, so it is not clear how much usage has ever been made of these sections down the years. Indeed, according to a search of surviving records, since 1968, only ten titles have been prohibited on grounds of blasphemy, sacrilege or heresy, or where offence to religious convictions was cited as a reason. The last such prohibition was in 1981, and it was successfully appealed within the same year.

Section 4 repeals sections 36 and 37 of the Defamation Act 2009. Deputies will remember the background to these provisions, which were included in the 2009 Act following the judgment of the Supreme Court in the case of Corway v. Independent Newspapers, in 1999. That case referred to a cartoon featuring a priest holding the Holy Sacrament, whose point was to suggest that Irish politicians were moving away from following the views of the Catholic Church on social issues such as the availability of divorce. A private individual whose religious convictions were offended by the cartoon sought to institute a private criminal prosecution for blasphemy against the newspaper. The possibility of individuals taking private prosecutions for blasphemy was afterwards abolished by the 2009 Act.

In the Supreme Court judgment, the late Mr. Justice Barrington considered the framework of our Constitution, which, at Article 40.6, states, "The publication or utterance of blasphemous . . . matter is an offence which shall be punishable in accordance with law", while also guaranteeing freedom of conscience, the free profession and practice of religion, and equality before the law for citizens of different religious beliefs, or of no such belief. The judgment underlined that the Constitution did not define what this offence of blasphemy involved. The common law offence of blasphemy, which the drafters of the Constitution seemed to have had in mind, was bound up with historical ideas of an established church and an established religion. The court held that it was difficult to see how such an offence could have survived the adoption of a Constitution that guaranteed freedom of conscience. The Supreme Court concluded therefore that, in the absence of any constitutional or legislative definition, it was impossible to say of what the offence of blasphemy consisted.

As we know, sections 36 and 37 were later included in the Defamation Act 2009, in an attempt to define an offence of blasphemy which could be consistent with the Supreme Court's judgment in the Corway case. Section 36 sets out the elements which characterise this new statutory offence of blasphemy, requiring grossly abusive or insulting statements that are intended to cause outrage to a substantial number of adherents of a religion, and providing a defence where a reasonable person would find genuine artistic, literary, political, scientific or academic value in the statements. Upon conviction, a person is subject to a fine not exceeding €25,000. Section 37 provides powers for An Garda Síochána to enter premises and seize blasphemous statements, following a conviction under section 36.

The Government previously signalled its intention that sections 36 and 37 would be repealed in the event that the constitutional amendment was agreed to by the people, and we are now fulfilling that undertaking today. Section 5 is a standard citation and commencement provision.

It would be fair to say that the offence of blasphemy created by the 2009 Act is quite difficult to prove. There appears to have been no prosecution over the period to date. In fact, it seems that the last recorded prosecution in the State for blasphemy in Ireland took place in 1855 and, even then, it resulted in an acquittal. However, that analysis misses a more important and fundamental point, which was clearly underlined by the outcome of the referendum on this issue. It is that criminalising blasphemy, with the risk of a chilling effect on freedom of expression and public debate, has no place in the constitution or the laws of a modern republic. Ireland is a country of increasing diversity. The right to express differing viewpoints in a forceful and critical manner is a right to be cherished and at all times upheld.

I would like to emphasise that the removal of references to blasphemy from the Statute Book is not an attack on anybody's religious belief. Nor is it intended to privilege one set of values over another. It is a simple acknowledgement that the meaning of the concept of blasphemy is unclear in a modern state, and that the concept is rooted in a distant past where fealty to the state was conflated with fealty to a particular religion.

There is also the international dimension to which I wish to make brief reference. It may seem abstract to devote time to abolishing an offence which has not been prosecuted in practice, but not when we recall that a number of countries actively prosecute charges of blasphemy. Those charges can carry severe penalties, including terms of imprisonment, brutal physical punishments or even the death penalty. They have also been applied in a discriminatory manner to justify the persecution of dissidents, the socially excluded or religious minorities. Such countries justify these regimes by referring to the continuance of blasphemy as a criminal offence in Ireland and in the Constitution. That is a very disturbing reality, and another reason I am happy to propose a Bill which addresses it directly. The criminalisation of expression alone is not something we should stand over. It is a different matter if that expression is geared towards inciting hatred or violence and where that is the intention, in this regard or in these cases the criminal law must come into play.

Deputies will be aware that Minister of State, Deputy Stanton, and I recently launched a public consultation on hate speech which will run until 13 December this year. The outcome of that consultation will help to shape an amendment of our existing law on incitement to hatred. A separate consultation on the subject of hate crime will follow in the new year.

I acknowledge that the abolition of the offence of blasphemy is, on the face of it, a relatively small step. Nonetheless, it is both an important symbol, and a tangible expression, of our status as a modern and democratic society in which free speech is valued and multiculturalism embraced. It is with pleasure, therefore, that I commend the Bill to the House.

I will be sharing time with colleagues. I commend the Minister's contribution. It was an interesting tour of jurisprudence on the issue of blasphemy, how it came into being, its position in Bunreacht na hÉireann and the small degree of case law which has prevailed on the article and, more recently, the offence in the past number of years. As the Minister outlined, very few cases ever arose and I am not sure if there were any prosecutions. We had the famous Corway v. Independent Newspapers case and a few others the Minister outlined. I commend him on a detailed, relevant and interesting tour of that jurisprudence.

Importantly, the people had their say on this matter. On 26 October 2018, the citizens of Ireland voted overwhelmingly in favour of removing the reference to blasphemy from the Constitution. Not only was that approved by a majority of the citizenry, it was approved by a majority of people in every constituency.

The issue had arisen when my party was last in government in 2009. At the time the then Minister, former Deputy Dermot Ahern, stated his view, which I adhere to, that as a republican his personal position was that church and State should be separate. Indeed, a republic is not a theocracy of any religion or none. That should be the case and this Bill is another step along the path of separating church and State. We must leave our beliefs at the door if we are to come into this Chamber and act as legislators for a republic and our citizens. We must do so free of dogma, religious or otherwise. When the debate took place at that time, the economic climate was such that spending on a referendum might not have been prudent or even financially feasible, so the Defamation Act 1961 was updated instead because there was a lacuna in which there was an offence defined in the Constitution, and I believe it is the only such offence, yet it did not have a place on the Statute Book. Constitutional offences are rare, and rightly so. Éamon de Valera did an excellent job, by and large, in enacting a constitution that was strong on civil and political liberties, particularly given the era in which it was drafted and enacted. However, perhaps this was one blind spot and the offence was created. Indeed, a constitutional offence is probably not appropriate for any offence and particularly this one. It would have been better had it never been included in the Constitution.

The Thirty-seventh Amendment of the Constitution (Repeal of offence of publication or utterance of blasphemous matter) Act 2018 gave effect to the referendum result. The legislation has been enacted since the referendum and that brings us to this point today. This Bill went before the Seanad before coming to this House. It gives effect to those provisions and related legislation. I presume it updates the Defamation Act 2009 and other measures. Fianna Fáil supported the referendum and will support the Bill in the House. To give the context for this, prior to 2018 Ireland was one of only seven countries in Europe in which blasphemy remained an offence. Article 40.6.1° of the Constitution provided that the offence of blasphemy was punishable according to law, although it did not say what the punishment was. It did not set out what type of offence or crime it was and whether it was indictable, summary or anything else. That constitutional lacuna is being addressed by this Bill. The Defamation Act 2009 defined the offence and provided for a significant penalty of a maximum fine of over €25,000.

It is worth reflecting on the fact that when there was an attempt to tackle that legislative anomaly with the Defamation Act 2009 it came in for criticism at the time. To be constitutionally coherent, it was necessary to legislate for it. Sometimes it was said that this was a one-faith State, a theocracy or in the throes of one religion or another. When the offence was defined it was defined as a statement or utterance that would offend against the large portion of adherents of any religion. It was not tied to a single religion, as is often stated or misrepresented. It applied to those who sought to offend the adherents of any religion and if they did so on scale. It was quite difficult to commit the offence, and it was possibly deliberately drafted in that way. It is worth putting on the record that there was an attempt at proportionality and to draft the offence in such a way that it was quite difficult to satisfy, so perhaps it was not quite as outrageous or unreasonable as some have suggested. It did not adhere to a particular faith or theological viewpoint. It is agnostic across all of them. It is worth acknowledging that.

Thankfully, we are now in a position to remove the provision. Freedom of expression is a paramount cornerstone of a democratic society. Constraints on freedom of expression can be provided for by law. Again, all laws are proportional and all rights are proportional. The exercise of one right cannot impinge upon another right to the extent that it is negated. However, we must be very clear, limited and careful when we attempt to qualify the exercise of rights, and freedom of expression is paramount among them. Blasphemy impinged on that right and that is one of the reasons we are removing it. While I said the provision did not discriminate between religions, it discriminated against those of no religion. Atheists, agnostics and people of no faith were not included in the definition, so it could have been seen as a pro-religious article if not pro a particular religion. That was a form of discrimination as well.

In terms of social mores, demographics, education and outlook, Ireland is a very different country from what it was in 1937, when the Constitution was promulgated. While the most recent census figures show that the Roman Catholic religion remains the single biggest bloc, there are many others. The second largest category of respondents was those who chose no religion. There is a degree of inertia when people define themselves so one is not quite sure whether people default to a particular religion when doing so. I wonder about it. Sometimes there is a selective bias in terms of how we phrase these questions and answers and the results we get. However, the point is that this is a different country now, with different demographics and people, from the position in 1937 and our Constitution and laws must reflect that.

Another concern that emerged over the last decade and particularly when we defined blasphemy in primary legislation and highlighted its existence as an offence in 2009, unwittingly and unintentionally we had a situation where some autocratic and dare I say despotic regimes, in which people did not enjoy the same civil liberties and freedom of speech that we and European nations enjoy, began to point to Ireland as an exemplar. It was an unfortunate and unintended consequence. Indonesia was an Islamic state that began to cite Irish blasphemy law as a model to follow. That is not a path any of us expected or wished for, but this was the scenario that was unfolding. We began to see some of the more extreme fringes of some of the quite hard core religions elsewhere and some states that would have far less focus on civil liberties looking to us as a model to follow. That was certainly unintentional and undesirable.

We have tidied this up and moved forward. We held the referendum when time permitted and passed it. We are now about to pass the legislation. The negative I return to on the Government side, and the Minister mentioned a consultation on it in his speech, is that we still must enact hate crime legislation. While we are tidying up the constitutional situation and the legislative lacuna with this Bill, we still await the enactment of meaningful hate crime legislation. In fact, hate crime legislation might be far more effective than blasphemy laws ever could have been. Fianna Fáil introduced the Criminal Justice (Aggravation by Prejudice) Bill 2016 in July 2016. The Bill had cross-party support and passed Second Stage in October 2016. In spite of having launched pre-legislative scrutiny in May 2017, the Government still has not issued a money message on this matter.

There was a debate in the Chamber today on money messages. It is one to which I am sympathetic because one of the failures of new politics is that there has been a lost opportunity in this House. With the parliamentary arithmetic there was an opportunity for the Oireachtas to do its job under Article 15 of the Constitution and for Members on any side of the House to put forward legislative ideas, have them debated and have the aspiration that they would be passed and become law. The parliamentary Chambers of the Oireachtas are the right and appropriate place for them to do so. Unfortunately, that has been stymied by the Government. I put the blame squarely on the Government's shoulders. It must answer for that, if not in the debate that is supposed to take place tomorrow or at some stage then before the people a few months hence.

While we are supporting this Bill, I highlight that hate crime legislation is among more than 100 Bills introduced from the Opposition benches on this side of the House that have not had the opportunity to become law, despite enjoying majority support. That is entirely anti-democratic.

Debate adjourned.