I welcome Mr. Eamonn Kennedy, solicitor with RTE, and all the members to the first public meeting of the Joint Committee on the Constitution. As members are aware, we are examining the article on fundamental rights, which is timely as the Lisbon treaty includes the Charter of Fundamental Rights and will incorporate it into law. We are specifically examining Article 40.6 of the Constitution which relates to the rights of freedom of expression, assembly and association. We have decided to commence with the articles on freedom of expression. We have very generous assistance from Dr. Gerard Hogan, SC, on the question of these fundamental rights and he has very kindly agreed to continue that assistance to the committee into the future. We are also assisted by Mr. Stephen Dowling, BL. We have invited responses from a cross-section of various interest groups and are delighted to have received a number of submissions, a number of which we have decided to hear. The first body that is making a submission on this is RTE. I draw the witnesses' attention to the fact that while members of the committee have absolute privilege, the same privilege does not apply to witnesses. Mr. Kennedy is aware of this. I invite him to make his presentation which will be followed by questions and answers.
Freedom of Expression: Discussion.
Mr. Eamonn Kennedy
I thank the Chairman. Committee members have our written submission on the issue, which is the wording of Article 40.6.1°(i) of the Constitution. There was a recommendation some years ago by the constitutional review group that the particular wording might be amended at a referendum to reflect the wording of Article 10 of the European convention, which protects freedom of expression.
I will start with some general points useful in looking at the issues because constitutional amendments can often bring about heated debates. Constitutions, by their nature, are legal documents but they are also political. They are a product of their own time and the Constitution of 1937 is certainly in that mould.
A fundamental point which might be made is a constitution providing citizens with a form of Government and protecting rights depends on how the actors in the constitution perform. In any country, these comprise the government, legislature, judiciary and people at large. The Soviet constitution is often cited as one which was quite lengthy and protective of rights, at least on paper. The reality was less so.
Typically, compared with legislation, constitutions tend to be relatively short. They provide structure for the form of government, the courts, rights of citizens and the shape and form of a particular political system and democracy. That is critical as we are considering, with the wording of Article 46.1.1°, whether it requires amendment. There was a feeling nearly a decade ago that it did not sufficiently protect freedom of expression.
In terms of how constitutions are interpreted, it is very different from interpreting a statute, and the courts go about it in a different way. A constitution can be contrasted very easily with a Finance Act, for example, or a statute dealing with criminal law. The ways they are interpreted by the courts are very different.
Constitutions, including the Irish Constitution, have specific rules, particular words and specific meanings, but it is invariably the case that fundamental rights, in particular, are described in general terms. Property rights, rights of expression and personal rights are all very general. Many of the personal rights of the citizen are not set out in specific language.
Considering whether the language of Article 46.1.1° should be amended, we should bear the above in mind. The history of this is important and there was relatively little Supreme Court and High Court jurisdiction on Article 46.1.1° until relatively recently. That point could also be made of the European Convention. There were very few cases on the right of freedom of expression in Article 10 until the mid-1980s, and since then there has been much more. This is important because the Irish courts have taken on board the methods of the European Court of Human Rights in dealing with these types of issues.
The submission deals with this issue in some detail. In 1998 there were two significant cases and decisions of the Supreme Court dealing with Article 46.1 and Article 43, which is the right to communicate. In those decisions, Murphy v. IRTC and The Irish Times v. Ireland, we had for the first time considered how expression is protected. With regard to Article 46.1, Mr. Justice Barrington indicated it related to the public activities of the citizen. That was the first time we saw a distinction between different types of speech and how the Constitution might protect it.
That starting point has enabled the Irish courts to take on board in recent years the case law of the Strasbourg court and differentiate between varying types of speech so different protections would be afforded, depending on the nature and importance of the speech. In recent times there have been a number of cases involving tribunals where the courts have indicated speech is important and will not be restricted. In other cases they have indicated it will be restricted.
We have moved on significantly in the past 15 years, which is an important point to bear in mind in any consideration of whether it is necessary to put a referendum to the people on amending Article 46.1 to insert wording similar to Article 10 of the European example.
The conclusion of this submission is there is no necessity to do so and the approach of the Irish courts at this point is such that there is a sophisticated way of approaching questions of dealing with restrictions of speech and treatment of different rights, particularly relating to the use of proportionality.
I thank Mr. Kennedy, we appreciate that.
I thank Mr. Kennedy. Our concern is the kind of recommendation we will bring with our report. I suppose we will be recommending a change. In summary, Mr. Kennedy's submission indicates that while the current provision is somewhat dated, there is no urgent need for change. Is that a fair point?
Mr. Eamonn Kennedy
That is a fair summary. The language is of its time but it has not produced any particular problems for the courts in dealing with more recent and modern problems which have arisen. The essential point is there is no impediment in the language. Speech is protected and the question now is how different rights are reconciled. If somebody asserts a right to freedom of expression, somebody else's right to privacy or reputation may be affected. The real question is what methods are used to balance the two rights.
The Irish courts have taken on board the way the Strasbourg court does that in these particular cases. They have also, for the first time, looked at how the Irish system itself works, concluding that they are not entirely different.
There was no particular focus on the blasphemy issue.
Mr. Eamonn Kennedy
No.
The witness has no strong view on that.
Mr. Eamonn Kennedy
In a 1999 decision, the Supreme Court effectively said that was a dead letter, unless the Oireachtas legislated for it. This goes back to my earlier point about specifics. If one puts specific elements in a constitution, invariably one must deal in very specific terms. The problem one must consider is how to deal with the concept of blasphemy where there are different views of faith and God. That becomes a tricky issue to deal with, and all the more so if criminal offences are created. It is quite a difficult issue.
With regard to blasphemy, Tommy Tiernan on the "Late Late Show" brought up a particular issue. Was thought given to that within the organisation or did it not know it was coming?
Mr. Eamonn Kennedy
I do not know the answer to the question. I suspect many of these things arise by way of surprise.
Were there any consequences, as we are considering blasphemy?
Mr. Eamonn Kennedy
Perhaps this illustrates the point. People would not have considered it in terms of blasphemy but in terms of causing offence. The concepts of blasphemy and blasphemous libel are difficult to import into a legal system nowadays. In terms of broadcasting, the issue is perhaps better dealt with in the context of broadcasting standards.
I thank Mr. Kennedy and RTE for the submission. Like a good politician, I read the submission seeking a conclusion and the conclusion seems to be that everything is fine. It gives much food for thought and useful speech material for everything from trade union law to much else and I thank Mr. Kennedy for this.
There are some general points I would like to raise. We spoke of the work programme of this committee and the general approach is that, unless there is a compelling reason for change, one should not propose changes to the Constitution. This is because, as has been well argued, case law, over time, gives clarity to an old Constitution that could not be achieved if a new set of words were inserted that would have to be tested in the courts. As we have discovered, the intention of the Oireachtas in constitutional matters is not what the courts ultimately determine.
I ask Mr. Kennedy to comment, in general terms, on the issue of freedom of information. Taking case law into account, in dealing with issues like acting in good faith and accuracy in reporting is there anything we should focus on, in terms of tightening up wording?
Some of the submissions we received related to Article 10 of the European Convention offering broader or more generous protection. Mr. Kennedy's argument is that this is not necessarily the case and many learned opinions of the High Court concur. What is the view of RTE in this regard?
My final point relates to the last clause of the article we are looking at. It mentions more than blasphemy. Blasphemy may be less of a problem today for Christianity than for Islam. We could legislate for the existing provision, which might be problematic enough, but to amend it could stir an interesting debate. Is Mr. Kennedy happy with this as it stands? Sedition is another issue that is touched on and it was more important in former times than now, we hope.
Is it Mr. Kennedy's conclusion that, in general terms, from the perspective of the national broadcaster, the rights to freedom of expression that are enshrined in the Constitution and determined by the courts need no amendment?
Mr. Eamonn Kennedy
Yes, that is the conclusion. On sedition, the possibility of proceedings in this regard, in any shape or form, is virtually nil.
Some people would argue that it is the job of the national broadcaster to be seditious.
Mr. Eamonn Kennedy
I am sure some people would argue that. In terms of legal issues, I would love to see the Irish State mount a prosecution for sedition. The submission approaches this issue in a practical way. If one had a blank sheet of paper and had the chance to start again one would probably not write Article 40.6.1°(i) in the terms in which it is written in. This is also probably the case for Article 10 of the European Convention, which was written in the 1950s. This is not about perfection because that cannot be achieved. These documents are meant to last for decades and longer so amending them frequently can create problems.
Freedom of information was mentioned as was the issue of reporting standards and impartiality. The issue of freedom of information is interesting because an area that has not been well canvassed here yet but has been canvassed in Strasbourg on a couple of occasions is whether there is a right to information. Does the State have an obligation, under Article 10, to provide information to citizens? There have been relatively few cases in this regard - only two or three - so it is not a well developed area and it may or may not become so. Article 10 covers expression but the extent to which that requires a state to provide information is unclear. This area will develop far more slowly than the enunciation of how Article 10 works in terms of protecting speech.
The point relating to impartiality and reporting may, potentially, arise in the context of defamation law. There is a question as to the extent to which the Constitution will protect published statements that are proven to be factually incorrect. To what extent should a publisher be held liable when it is proved, after court proceedings, that facts, as published, were not correct? To an extent this issue was addressed in a European case and is being addressed in the Defamation Bill at the moment. This goes back to the Reynolds defence whereby a publisher is allowed publish defamatory information if it is in the public interest and the publisher has followed certain procedures in investigating the story before publishing. The European Court in Strasbourg looked at the English equivalent, the Reynolds privilege, and commented that it was an exceptional defence. This issue will only arise in exceptional circumstances, it will be one case in 100 rather than a typical case. There is certainly an issue attached to this but I do not think it will be specifically dealt with in the wording of either Article 10 or Article 40.6.1°(i). It will arise in the process of determining where the line is drawn between rights of reputation and rights of expression.
I have a number of people who have indicated they wish to ask questions, including Senator Alex White, Senator Dan Boyle, Deputy Barry Andrews and Senator Eugene Regan. I will ask Mr. Kennedy to answer all of the questions together due to time constraints. I am sorry about this but it is necessary.
I thank the Chairman and wish Mr. Kennedy a good morning. I must profess that I am perplexed by the attitude shown, though I understand it from the practical point of view of a broadcaster. This seems to come down to the proposition that we should leave well enough alone in respect of Article 40.6.1°. While this is a legitimate position for practitioners of broadcasting and the media to take in the circumstances they face, we must take responsibility for examining the various provisions in the Constitution. We may feel it is appropriate to lead in proposing changes to the Constitution, where we deem them necessary.
One submission from the Bar Council says, in the context of Article 40.6.1°, Irish law simply does not live up to the standards required by Article 10 of the Convention. That is quite a strong statement and many of the submissions before us concur with this viewpoint. This point has been argued by many commentators, particularly in the past decade or so. Would Mr. Kennedy not agree that, putting it at its minimum, the convention affords a far more generous understanding of freedom of expression and what it ought to consist of and is also qualified by restrictions? Article 10 does not go in one direction. It sets out restrictions that are appropriate. As Mr. Kennedy said, Article 40.6.1° is of its time and the language may be anachronistic but would he not go further than that and say it requires a rigorous comparison with the guarantees contained in the convention and that this committee should take some time to consider whether we might be better off, as the constitutional review group said ten or 11 years ago, replacing the rather grudging guarantees of freedom of expression in the Constitution, as some people have described them, with the more generous guarantees afforded by Article 10? I would have thought that might have been the position RTE would have taken from the point of view of broadcasting.
On the question of blasphemy, Mr. Kennedy summarised it by stating that blasphemy, essentially, was dead letter. To return to the point I made at the outset, and I am not laying this at RTE's door because it has a particular job to do and we have a different job to do, the notion that we would agree it is dead letter and leave it as it is would not be an acceptable proposition in society generally, to say nothing of what this committee ought to be doing. If we believe it is dead letter, should we not take it out of the Constitution? Why is it in the Constitution if it is dead letter?
I wish the Senator well.
I am simply saying that 30 minutes into a discussion on blasphemy are we to say it means nothing and we will leave it alone?
My third point relates to something TV3 suggested to us and I wonder if Mr. Kennedy agrees with it. That company suggested in its submission that the requirements for balance in the coverage it gives to political parties, for example, also should extend to the print media and that freedom of expression should apply to all media in the State. It appears to believe there are restrictions that apply to broadcasting which do not apply to the print media and in those circumstances it says they should be extended to the print media. What is Mr. Kennedy's view on that?
On the blasphemy point, given that the understanding of blasphemy as mentioned in the Constitution refers to the belief system of Christian churches, I would be curious to know how that reflects a modern and changing Ireland and the way that should be represented in the Constitution or in any laws devised by the Oireachtas. We appear to be given three options: to leave well enough alone, do what Senator White has just suggested and remove the reference, or define a definition of "blasphemy" that is inclusive of all religious values and belief systems. I would incline towards the view Senator White expressed because the third option would open up a far bigger can of worms. I would be interested to know, and Mr. Kennedy is representing RTE, how that conundrum is being addressed. Is RTE approaching it, as the courts seem to have done, on the basis that blasphemy is dead letter or is it addressing the wider question of religious offence and hatred in a legal sense and in a way whereby it is ignoring the Constitution?
I thank Mr. Kennedy for his very helpful submission. He said that Article 10 has a greater gravitational pull on the Judiciary than our Constitution in that, effectively, this article can be put in mothballs without worrying what is contained in it. I have a problem with that. I do not accept that the situation regarding freedom of expression in Ireland is satisfactory. This is a political committee, not a legal committee, and it is not satisfactory that a High Court will make a judgment on the revelation of sources and that a media outlet - The Irish Times in this case - would destroy those sources. It is not satisfactory that there is no clarity. It is well known that the only person convicted arising from the beef tribunal was Susan O’Keeffe, a journalist. Some clarity must be brought to the question of how sources can be protected. I do not know whether that should be done in the Constitution or legislation but it is something we must explore and we must consider the distinction between revealing sources from whistleblower types or from a properly set up judicial inquiry, as occurred in the case of The Irish Times.
Is the Deputy saying it should be protected in cases where that would be likely?
I do not agree with that. Sources that emanate from properly constituted inquiries should not be protected. That distinction must be made.
I do not agree that it could be satisfactory that our Constitution is clear on this issue. Either we change the Constitution or we legislate on that. I would be interested in hearing Mr. Kennedy's views on that.
Regarding Susan O'Keeffe's case, we are not sure whether she was charged or convicted so I ask members to be careful on that point.
I thought she was convicted.
I want to focus on the issue of blasphemy because the position on that is unsettled. There is a constitutional requirement regarding the crime of blasphemy. We have a new Defamation Bill which has been debated by the Seanad and is before the Dáil. I am aware the Minister is reflecting on whether to include in that the issue of blasphemy.
The Tommy Tiernan incident, and something he said earlier, highlighted the religious sensitivities that exist and perhaps he has helped to clarify minds on this issue. How sensitive is RTE to the issue of blasphemy in its broadcasting policy in a broad sense? Mr. Kennedy defined it as the possibility of giving offence to certain people of a particular religion or otherwise but is it an element in RTE's broadcasting policy because it helps to clarify for us the importance of this issue? It may be premature to say that it is a complete anachronism to have a crime of blasphemy in the Constitution.
Mr. Kennedy may respond to the questions in whichever order he wishes.
Mr. Eamonn Kennedy
I will take the blasphemy questions first. The issue of blasphemy as a criminal offence is something the committee will have to examine in terms of whether it is necessary to amend the Constitution. The submission does not deal with how it might or might not deal with that. I cannot answer the point Senator Regan raises in terms of broadcasting standards. I am a lawyer by trade and so I am not familiar with that. I can get some information on it for him but that is a different issue. I understand his point is that it is important how it is dealt with and he is right. The issue is how material that is published that may cause serious offence is dealt with and that probably applies to all forms of media but it is not an issue that has a constitutional import, and I will come to this shortly in the context of sources. If very specific issues are put in a constitution, the possibility is raised of having to deal with them head on, and it is not always easy to do that.
On the issue of sources, Deputy Andrews is concerned about that but can it be dealt with in a constitution? I am not aware of any constitution in the world that could deal with the issue of sources. It appears to me that legislation is the vehicle to deal with that. There is a British statute, the Contempt of Court Act, which deals with protection of sources and a section of it deals with that issue. It has been litigated in the British system on a number of occasions in the past 15 years or so. They have latched on to European jurisprudence in regard to sources. That may or may not be a way forward for dealing with the issue of protection of journalistic sources. I do not understand how a constitutional amendment would be helpful in this area.
Another issue raised was the question of balance and whether that could be applied to all media. My initial reaction to that suggestion is that it would not be constitutionally possible. Traditionally, none of the obligations that has been imposed on broadcasters has not been imposed on the print media. Decisions of the European Court in Strasbourg specifically refer to the differences between print and broadcast media. I cannot recall any Irish decision which specifically deals with the issue but certainly the Strasbourg jurisprudence has pointed specifically to the difference between print and broadcast media on a number of occasions.
I will return to the Murphy case. It ended up in the court in Strasbourg. It was a challenge to the Irish legislation which prohibits advertisements towards a religious end. It was challenged here and the Supreme Court ultimately ruled there was no breach of the Irish Constitution and the case was appealed to the court in Strasbourg when the applicant sued the Irish State. The judgment of the court in Strasbourg specifically referred to the fact that although the individual could not advertise through television and radio, he had the facility of using print and other media to promote the message. Therefore, a distinction is made between print and broadcast media. On a first pass, so to speak, I doubt that the application of the types of obligations that are imposed on broadcasters and the print media will be constitutional.
On the question that by leaving well enough alone we could be more generous, that is absolutely correct. We could start with a proposition that it would be better to have a more modernised wording, but the real issue is whether we want a proposal put to the people which, in substance, will not change the way freedom of expression is protected. That is the core question.
I thank Mr. Kennedy for attending, for his submission and for so clearly answering the questions that have been put to him. It has been helpful to us. It will help us in our considerations of the fundamental rights we have been talking about.
I welcome the representatives of the Bar Council, Mr. Turlough O'Donnell, SC, chairman, and his colleagues. We are examining the fundamental rights section of the Constitution, in particular Article 40.6 dealing with freedom of expression, freedom of assembly and freedom of association. In particular, we are examining freedom of expression today. The representatives of the Bar Council kindly sent us a submission, for which we are thankful, and they have also accepted our invitation to attend today, for which we are grateful.
Tributes will be made to the Taoiseach in the Dáil at 10.30 a.m. This was not announced until yesterday, therefore, we were not aware of it. It is intended that the tributes will take 35 minutes. It is our intention to suspend the meeting at 10.30 a.m. and resume as soon as the tributes are concluded. If the representatives wish to attend in the Gallery to see Members of the Dáil make those tributes to the Taoiseach, the clerk and his staff would be delighted to escort them there. I hope that will not inconvenience Mr. Turlough O'Donnell. I know that time is his currency. I hope that will be okay.
Mr. Turlough O’Donnell
We arevery happy to be here. Speaking for myself and, I hope, for the others, we would be happy to stay until the tributes to the Taoiseach have been completed. I do not believe we are under any particular time constraints. We are happy to be here and to contribute to this discourse.
Dr. Neville Cox made the point, in the submission he drafted, that the Bar Council hopes not to take a political or an ideological position on issues of this nature. It would be impossible to extract a coherent political or ideological view from the Bar Council as a whole but we are anxious and privileged to be here and to co-operate in whatever we can.
I invite Mr. O'Donnell to introduce his colleagues. Before Mr. O'Donnell makes his presentation, I want to make him aware again that Members of the Oireachtas have absolute privilege but that privilege does not extend to the representatives. They will be already aware of that, as most of them have attended before various committees previously. I invite Mr. O'Donnell to introduce his colleagues and then make his presentation.
Mr. Turlough O’Donnell
I am accompanied by threedistinguished members of the Irish Bar, Dr. Neville Cox, who is also a lecturer in Trinity College and is the principal author of the paper members have before them, Ms Siobhán Ní Chulacháin, barrister, and Mr. James O’Reilly, SC, and also by Mr. Jerry Carroll, director of the Law Library. It is not in any way an indication of false modesty to say that the committee might be better advised to direct substantive questions to Dr. Neville Cox, Ms Siobhán Ní Chulacháin and James O’Reilly, although I am anxious to help in any way I can.
Is it Mr. O'Donnell's intention that the presentation would be made within the 13 minutes remaining before 10.30 a.m. and that we can put questions thereafter?
Mr. Turlough O’Donnell
We are anxious to proceed in whatever way is helpful. We could either make a short presentation, which Dr. Neville Cox might do, or we could move to questions immediately, whichever the Chairman considers preferable.
I would prefer if a representative made a short presentation to refresh for members what is included in the submission.
Mr. Turlough O’Donnell
I ask Dr. Cox to introduce his paper.
Dr. Neville Cox
To repeat what Mr. O'Donnell said, the objective behind this submission, as far as the Bar Council was concerned, was to add to the debate on the issue and certainly not to take any particular political position because such a political position could not possibly hope to be representative of the Bar at large.
As requested, the written submission sent to the committee focused on, first, the general position in respect of freedom of expression in the Constitution and, second and specifically, the position in respect of the existing offence, crime and constitutional provision of blasphemy. What I propose to do is to briefly reiterate, and I will do so within the 13 minutes available, what has been stated in the submission or, at least, to highlight what I believe are the most significant aspects of it.
We began by examining the protection of free speech generally in the Constitution. The point was made that for an allegedly revolutionary Constitution, the clause on free speech is perhaps remarkably conservative and is drawn in terms which are unwieldy and difficult to operate. Nor is it any coincidence that only one piece of legislation has ever been struck down on the basis of the free speech protection, despite the fact that Ireland had a rigorous censorship regime until comparatively recently. The manner in which it is drafted undoubtedly owes a considerable amount to the religious and conservative overtones of the people who drafted it. Whereas the protection of free speech under the American Constitution was drafted by people who were concerned to move away from oppression, it is arguable that Article 40.6 owes much to the fact that it was drafted to some extent by people who were perhaps less concerned with moving away from oppression and concerned with moving towards a slightly different and socially conditioned oppression rather than oppression that is political in nature. In any event, the terms set out in Article 40.6 have proved, certainly from a liberal agenda, to be relatively useless. What has been interesting and, perhaps, the catalyst for change has been the extent to which Article 10 of the European Convention on Human Rights has been superimposed on the existing Irish constitutional protection. There has been comparatively recent case law in the civil libel area in which the courts have suggested that there is no difference in practice between the terms of Article 40.6 of the Constitution and Article 10 of the European Convention. However, I am not sure that this can necessarily be upheld as a view. Quite demonstrably, Article 10 has had more impact in terms of protecting free speech and it is no coincidence that the constitutional review group essentially recommended moving towards a position where Article 10 or an Article 10 type model would represent the constitutional ideal.
We make the point that there are significant philosophical arguments why any democratic society would benefit from an enhanced protection of free speech, but that is not to say that any protection of free speech within a constitutional ideal should or must be absolute in nature. We draw attention to the fact that, for example, in many continental states Holocaust denial is a crime and that law is enforced rigorously. Most recently, in Germany, that law has been extended, perhaps optimistically, to Internet publication. The notion, therefore, that free speech in a liberal democracy should or must trump other values is not necessarily borne out. The ideal would be a situation where a genuine and reflective balance is found to exist between the grounding right of free speech and other important social values which must be represented as well. How that is to be done is a matter for politicians, not lawyers. The point can be made, however, that what is currently in force is an uneasy protection of free speech in the sense that social and cultural change means that free speech is prized as a right to some extent but that the existing constitutional protection does not reflect that both in terms of what happens in practice and in terms of the theoretical basis of the clause in question.
We move on to examine the specific issue of blasphemy. It is remarkable, by comparative standards, that the Irish Constitution specifically criminalises any offence but to criminalise the offence of blasphemy, certainly in a contemporary society, has anachronistic overtones. Whether it is anachronistic in nature, it certainly seems slightly odd that this Old Testament type offence of blasphemy is reflected in a modern constitution. We make the point that when this clause was originally inserted into the Constitution, Mr. de Valera said its impact would simply represent the existing common law offence of blasphemy. The difficulty, however, is that there is no certainty, certainly in modern Ireland, as to what the existing common law offence of blasphemy actually entails.
There appears to have been a major change in Britain at the end of the 19th century where blasphemy was no longer deemed to represent a crime against the state and, therefore, simple denial of Christianity could never be a criminal offence to a position where blasphemy essentially represented a protection for people in respect of their religious sensitivities, so that grossly scurrilous treatment of something which was religiously sensitive could constitute a blasphemy.
The position has been muddied significantly by the Supreme Court decision in Corway v. Independent Newspapers, which is the only blasphemy case to have taken place in Ireland since 1850, where the Supreme Court said that by virtue of its inability to define the term “blasphemy”, it would essentially have to wait for legislation in the area to give effect to the blasphemy clause. The court recognised that by virtue of the constitutional term, there must be a crime of blasphemy, but it was unable to define precisely what that meant and, therefore, was not going to give effect to that.
What we have is a constitutional clause which necessitates the existence of the crime of blasphemy, an undoubted common law offence of blasphemy which runs through Irish law and, if the Defamation Bill passes, a dying statutory mechanism whereby this crime is policed both privately, that is, an individual seeking leave to bring a private prosecution for blasphemy, and also with the possibility of the Director of Public Prosecutions issuing proceedings.
It remains a matter for the politicians whether this crime can continue to exist in the Constitution. The European Court of Human Rights has said on three occasions that there is no difficulty with a state that wishes to retain a crime of blasphemy doing so. It is a matter for the politicians whether this crime or constitutional reference to blasphemy should be retained and, if not, how to deal with it. It is arguably anachronistic and it will be very difficult to appease the public if they try to remove it because, inevitably, some people will say it represents the thin edge of the wedge and is a manifestation of a growing secularisation which they oppose. There would be a significant lobby against it.
However, the question of how best to deal with it remains. Legally, it is a mess at present because there is a constitutional crime and the Supreme Court says, perhaps uncharacteristically, that it is not prepared to interpret that crime because it feels unable to do so. Therefore, we have a law that undoubtedly is a dead letter, not because it needs to be but because it has been rendered so.
I thank Dr. Cox. That was most interesting and I am sure it will generate a number of questions which we will deal with after the break. We will suspend the meeting and return immediately after the tributes to the Taoiseach.
Dr. Cox has made a presentation for which we are grateful and we will now take questions.
We acknowledge that the submissions made and the contributions so far and no doubt to come, will be of great assistance to us in forming our views and in producing a report for the Oireachtas from this committee. It is helpful that we are in a position to explore the submissions a little more, particularly in a situation where there is at least a subtle contrast between the view emerging from the RTE submission and that emerging from the Bar Council. It is fair to say that the RTE submission really represents the view that the Article in the Constitution is dated but that there is no great urgency to do anything about it. Essentially, leave well enough alone seems to be the general tenor of the approach.
On the Bar Council submission, I accept that it is clearly stated that there is no political or ideological view expressed. I suppose I should make clear - I can do so as a member of the Opposition - that this really is not a political issue. We usually try to find our way by consensus to agreed recommendations.
If I might probe the matter a little further, I get the feeling from reading Mr. Cox's submission, and from listening to him, that the main thrust of his approach is that we really would be better off with an Article that was modelled on Article 10 of the European Convention, which Article would be a preferred option if he was choosing options in the interests of the country. Would that be a fair summary of his main recommendation?
Mr. Turlough O’Donnell
I suppose that is a fair summary. I will leave it to Dr. Cox and the others to deal with that. The other alternative might be to have nothing to at all in the Constitution and deal with it by legislation.
Dr. Neville Cox
The essence of Article 10 of the Convention is that there is a right to free speech. It can be limited having regard to appropriate justifications for so doing. The attractiveness of Article 10 is that it represents a consistent ideology on free speech but does so in clear terms. That would be the principal advantage, both in terms of the ideology which it represents and the clarity.
Is there any other view on that?
Mr. James O’Reilly
There is another point of view. I am not sure I mentioned it, namely, legislation. As emphasised by Dr. Cox in his submission, that recent Supreme Court judgment in the Corway case has rendered the present law effectively a dead letter. If one wanted to do something about it without asking the voters of Cork South-West to come and say we should amend the Constitution - it may not go down that well in Clonakilty and Deputy O'Keeffe would know better than I whether it would - legislation that would make it--
They have a different issue to address before he comes to this one.
Mr. James O’Reilly
There is a legislative issue involved but there has been no attempt to legislate in this matter. That is what Mr. O'Donnell has emphasised. That is another way of looking at it, that legislation might give something to work on so far as every day application of this part of the law is concerned.
I will probe that a bit further. When he talks of legislation, is he speaking more in the context of the blasphemy aspect. I was dividing my question in two parts. I was taking the main issue, as it were, and then coming to the blasphemy one.
Mr. James O’Reilly
We can park it then.
We can park it for the moment.
Ms Siobhán Ní Chulachain
No modern democracy would dispose of the freedom of expression from its constitution, and that is not really our proposition here today. The freedom of expression remains a value which ought to be reflected in the Constitution. As a criminal practitioner at the Bar, however, I know that in a non-scientific way members of the criminal Bar have indicated that the Constitution is a blunt instrument when it comes to defining or setting down criminal offences. In fact, the Supreme Court acknowledge that in the Corway case where they effectively stated that they could not give any force to that provision of the Constitution because there was no legislation.
The Oireachtas does not require a constitutional imperative to legislate for a criminal offence. Murder, rape, theft and road traffic offences are all successfully prosecuted on foot of legislation passed by the Oireachtas. Blasphemy has never been successfully prosecuted.
The job of the committee is two fold on the blasphemy aspect. First, there is the question of whether it ought to be removed from the Constitution. The only other offence mentioned in the Constitution is that of treason, a crime against the State. I am not sure that blasphemy deserves such a unique position in terms of lower ranking offences. That would be the first matter, whether or not to remove the crime of blasphemy from the Constitution. The second matter is the committee's role as legislator to provide for a crime of blasphemy in a practical way by legislating for it.
The point is that to some degree, because of what is there already, we are like the fellow who got the following response in Ballydehob to his question as to what was the shortest road to Durrus, "If I were you, I would not start from here."
I wish to discuss the aspect of blasphemy. Problems in this regard arose in other countries. I refer, for example, to the difficulties relating to Salman Rushdie's The Satanic Verses, certain cartoons published in Denmark and the case involving an English teacher in Sudan. There does not appear to be any real urgency in respect of this matter but during the calmness of the day is the best time to prepare for the wind of the night. If we were to remodel the provision, would it be better to exclude blasphemy and recommend that the issue be dealt with by way of legislation?
Dr. Neville Cox
One could quite easily and legally deal with an issue such as that relating to the Danish cartoons or Salman Rushdie, where grave offence is caused to religious sensibilities, under a free speech model without making reference to blasphemy. The existing model may prove to be counterproductive for two reasons in dealing with matters of this nature. First, the offence with which Salman Rushdie was charged by the Ayatollah in Iran was not one of blasphemy because, paradoxically, Islam does not have such a concept and has instead one of apostasy, which is different. More importantly, there is definitely some uncertainty whether the existing common law offence of blasphemy covers non-Christian religions. There is a good argument for saying that it does do so but the argument that would probably be accepted by the courts would be that it does not. The existing term may prove to be counterproductive.
Blasphemy prosecutions were taken against Salman Rushdie and the publishers of the Danish cartoons in England and Denmark, respectively. The Salman Rushdie case was lost on the basis that the court concluded that the common law offence of blasphemy only protected the established Anglican Church. The Danish cartoons case was lost on the basis that the court found there was not sufficient public interest in allowing the prosecution to proceed.
I agree with the Deputy that the emerging religious minorities in this country reflect a concern that there may be more to life than free speech. Religion may be one such thing. However, I am not sure if the common law offence of blasphemy is the best way to try to protect religious sensibilities, especially those of religious minorities.
It appears that, as in many other areas of life and law, we are inclined to give ourselves false comfort in the sense that we know blasphemy is outlawed in the Constitution and that, therefore, everything is fine. However, as Dr. Cox just very helpfully stated, when one comes to consider the practical effect of that, it is difficult to see what it actually achieves in the context of people's concerns regarding abuses, regardless of whether one is referring to Tommy Tiernan's jokes or offences against those of Islamic faith.
Is Dr. Cox aware of any jurisdiction in the modern era which has attempted to address the concerns to which I refer through a blasphemy law? The notion of blasphemy, like that of sedition, is deeply anachronistic. I am not stating that issues which are important for a society to address do not arise. However, is it possible to address them by means of this deeply anachronistic notion of blasphemy? The latter is quite ancient in its genesis and does not seem to be particularly useful. Incitement legislation, however, may prove useful. We have such legislation but perhaps it requires improvement. An area of productive discussion could revolve around, for example, the making of statements which could cause people to take up arms or do something else. However, it seems the notion of blasphemy is peculiarly unsuitable to addressing these issues.
Dr. Neville Cox
I agree with the Deputy. His assertion is absolutely accurate in the sense that the Judeo-Christian understanding of blasphemy sees the latter exclusively as an offence against God. When the English Parliament originally enacted blasphemy laws, it was with a view to appeasing an angry God who was irritated by despicable literature and who was causing plagues and fires to occur in London. That was the historical reason for the law.
The Law Commission in England suggested that there were two types of situation where what had previously been characterised as blasphemous material might generate a public interest in its prohibition. The first is where there is incitement to hatred and the second is where there is simply an excessive offence to religious sensibilities. The term "blasphemy" does not relate to either of these. It is, therefore, a misdescription of a changed law.
I agree with the Deputy that the word "blasphemy" is anachronistic. If we had a law or a justification which stated that we were stopping someone from saying or doing something because it is so grossly offensive to sensibilities, be it on the grounds of race, religion, gender, sexual orientation or whatever, that would represent a language with which the modern population is comfortable. However, blasphemy conjures up images of stoning in "The Life of Brian" or relates to the Book of Genesis.
Deputy Jim O'Keeffe referred to the possible replacement of the current constitutional provision with either something directly lifted from the convention or some variation thereof. Dr. O'Dowd has a view in respect of a more detailed or nuanced version of what is contained in the convention. I am not sure if Dr. Cox is aware of Dr. O'Dowd's opinion in that regard. If not, that is fine. If he is, however, perhaps he might comment on it. It appears that what is contained in the Bar Council's submission draws to a large degree and without qualification on the provisions in Article 10 of the convention. In other words, it would favour an Article 10-type formulation over what is currently contained in Article 40 of the Constitution.
RTE effectively stated that we should leave well enough alone. However, Dr. Cox makes the interesting point in his submission that Irish law simply does not live up to the standards required by Article 10 nor is Article 40.6.1o capable of engendering such standards. He proceeded to make the further point that some of the more recent English judgments in areas relating to breach of confidence and defamation were influenced by the convention being incorporated into English law. He states that it is inarguably necessary for the Irish guarantee of free speech to become more effective if our obligations under the convention are to be fulfilled. Is it possible to argue that the convention is washing its way through the law? Can it be argued that we do not need to change the Constitution because the convention will have an impact on case law in any event?
Dr. Neville Cox
I will make a brief reply before allowing my colleagues to contribute. I do not believe we advocated replacing the existing constitutional provision with Article 10. In fact, I do not believe we advocated anything. We stated that this was an option. To some extent, I agree with the RTE point to the effect that irrespective of the language of the Constitution, the reality is that quite apart from incorporation of the European Convention, the Strasbourg logic is bound to flow through our laws. I refer, for example, to developments in defamation law. None the less and in as much as the Constitution represents a statement of the ideals of a nation, it would be appropriate for that statement to be consistent with the modern view of how the nation operates.
Mr. James O’Reilly
Senator Alex White made an interesting observation. We now have the benefit of having two fundamental laws in our legal system. The first was the Constitution in 1937. A plebiscite was held on 1 July and the people adopted the document. The second is the European Convention on Human Rights, which has been in place since the end of December 2003. Senator White will know from his own experience of practice, as will Deputy O'Keeffe and Senator Regan, that whenever a public policy or law challenge is raised, one will first address it on an administrative law-public law basis. One does not want to be Samson in the temple with Delilah pulling down the entire infrastructure. One will then, if need be, look for a constitutional interpretation and if that does not work, one will say it is invalid having regard to the provisions of the Constitution. As a further fallback, one will rely on the convention and seek a declaration of incompatibility under it. One has the benefit of both worlds. This overlay is unusual but it is there. Cases are only starting to come before the courts and we are only now getting reserve judgments in this field.
For example, the Housing Act 1966 provides for an expedited means of a tenant being removed from occupancy by the making of an order but not otherwise going into the merits of the case. I have seen that challenged both on constitutional grounds and on human rights grounds both under the Constitution and the convention. There has been one High Court case and two or three are in the pipeline. It is only a matter of time before their lordships in the Supreme Court will have to decide on and address this issue. We have not had a Supreme Court judgment yet saying how that balance is to be addressed. It is relevant to what Senator White talked about, which is this rushing through of the convention and our laws anyhow.
The submission is excellent, as it elucidates the issues very well. While the committee is discussing the right to free speech, the right to privacy must also be considered but the submission does not refer to this. It is a consideration we should always have in mind when discussing freedom of expression. Dr. Cox said Article 40.6.1° has been ineffective as a mechanism for the protection of free speech. Is that because few laws have been struck down on the basis of the article? Is it an appropriate test? Currently, there is greater clarity on the law relating to freedom of expression because of the constitutional protection in addition to the interpretation applied and informed by the European convention. There is a further step to go.
Dr. Cox gave two reasons the law has to be strengthened. One is the European convention but that has been addressed. He states regarding the second reason, "It is suggested that the very strict defamation laws have contributed sharply to the level of unchecked corruption in high places in the recent past and people, especially, journalists were simply afraid to publish material that they believed but could not prove to be true". The Defamation Bill is before the Oireachtas and it endeavours to deal with the issue of qualified privilege. I believe it should be left to the courts. However, I do not know whether Dr. Cox's statement is factually correct in that there is an acceptance of political corruption. It is not a question of journalists being able to expose that. It is a question of the general culture of acceptance in the political world and those who have been found to be corrupt are not necessarily dented at the polls nor are their political parties.
I refer to the document on blasphemy, which is an open question for the committee. Dr. Cox provided clarification on blasphemy. While it may be considered a misnomer or an anachronism, its meaning is outlined in paragraph 26 and Dr. Cox referred to case law to deal with protecting the sensitivities of religious devotees. That is the general sense of blasphemy and that is why Tommy Tiernan provokes a reaction on RTE and the company receives complaints from the Advertising Standards Authority of Ireland regarding "blasphemy". Under the Constitution, it is a criminal offence and that cannot be ignored in the Defamation Bill and other legislation. We must address that issue. The submission clarifies the issue very well for the committee.
I thank the Bar Council for its detailed and informative submission. I refer to the jurisdictional issue and the problem of the Internet and the influence of opinion. Constitutions and laws are in place to protect young vulnerable people, most of whom do not read newspapers and do not allow their opinions to be formed by newspaper editorials, RTE news or similar organs. Their opinions are significantly informed by the Internet. How is law evolving on this issue in the context of blasphemy and freedom of expression? Is there any way we can hold back the tide in that regard? Will laws protect us against opinions expressed outside the State through the Internet?
I must honour Senator Regan's comment that there is an acceptance of corruption in Ireland. I read the other day two studies conducted by Transparency International Ireland, an independent group, and Eurobarometer, which both concluded that confidence in the institutions of state is higher nowhere else in Europe than in Ireland and Ireland ranks among the highest in confidence in the way in which corruption is analysed and detected. There is neither a complacency nor an acceptance. I do not deny it is there but I do not believe there is an acceptance or a complacency.
The blasphemy issue has been made clear and it revolves around people's sensitivities. I envisage great difficulty if an attempt is made to change the offence in a significant way. I am concerned about the issue of corruption. When one meets people outside Ireland, they have a high regard for Ireland, as I have myself. However, this is part of our freedom of expression. Sometimes we must listen to things we do not want pay much attention to in the long run and other times something definite must be done about them. The perception of corruption covers all politicians and not only a few, which is very wrong. I agree with Deputy Andrews. I made some suggestions on how Transparency International Ireland might improve the way it goes about its business because some of the countries that come highest on its list - we are quite high on it - are those where the drug barons and others keep all their money.
As I would expect, the exposition is very clear, certainly in regard to blasphemy. It would be difficult to remove it because people would believe something was being done to them when it might not be used that much. However, the Director of Public Prosecutions must bear it in mind when he examines a particular case.
This is not the forum under any circumstances for dealing with corruption or--
I did not introduce it.
We are dealing with the Constitution.
It has obviously touched a sensitive note but we should not ignore the fact that we have had ten years of tribunals which have disclosed unimaginable levels of corruption. That is important to note.
The Senator should mention that on television and on radio. We are talking about the Constitution. I ask the representative of the Bar Council to respond to the items Senator Regan and Deputy Andrews mentioned.
May I come back in briefly on an item because it may help the flow of the discussion?
Yes.
The paper from the Bar Council is extremely helpful to the committee. As the Chairman may be aware, I also pay my subscriptions to the Bar Council but the last thing I want to do is hold it to any particular position.
What about the return on it?
It has been very fair in saying it is not here to advocate that any particular action be taken. I am sure all the members of the committee will fully respect that but it may have been a little stronger on the question of the replacement of the current constitutional provision with something along the lines of the convention in the paper. Paragraph 11, for example, states that there is considerable merit to the approach and paragraph 13, with which I agree, states: "It is strongly arguable that this kind of approach [the Article 10 approach] is the preferable future for the Irish guarantee of free speech". I agree with both of those statements but I remind the representatives that they have gone a little further than they were allowing. That is fair enough as far as I am concerned.
Is it because you pay your fee that you can give that rap on the knuckles?
I was just concerned about any conflict anybody might believe I had but--
Mr. Turlough O’Donnell
I do not know whether that is a rap on the knuckles or a compliment, Chairman. I will discuss that later.
I appreciate what Senator White has said and would agree with him but we are anxious, out of respect to this committee and our place before it, to elucidate matters. It is impossible to elucidate matters in an entirely neutral way and implications can be drawn but we take the obligation seriously that we are not trying to interfere in matters which are not within our province.
We are grateful that you accept our invitation and assist us in our deliberations.
Senator Regan, what was the core of your initial question?
I am sure Mr. Cox has taken a note. On the point that the article of the Constitution has not provided a defence, I am not sure that is convincing.
Dr. Neville Cox
I will deal with that and let someone else deal with the developing of speech on the Internet.
It is difficult in a liberal democracy to witness, for instance, the strictness of the defamation laws, which are the strictest in Europe, and the censorship regime through the 1950s, 1960s and 1970s without concluding, by comparison with other European states, that the protection of free speech was relatively and comparatively low. It may be that this was deemed appropriate because of the level of constitutional balancing between rights and morals that was going on but by comparison with the rest of Europe, having a censorship and a defamation regime like that, it would be difficult to conclude that free speech protection was anything other than relatively low.
On the reference to corruption, I appreciate this committee is not dealing with that issue but the reference is not saying that people have a view either way of politics in contemporary terms in Ireland. In my researches in this and related areas I have talked to numerous journalists who told me they had stories throughout the 1980s, not just about politicians but about priests and bishops, which they were scared to publish because of the strictness of the defamation laws and the comparative poverty of our right to free speech. That is the only context in which I would refer to it. I do not know if anyone wants to deal with the Internet aspect.
Ms Siobhán Ní Chulachain
Before I deal with the Internet issue, it is ironic that our national broadcaster would say let sleeping dogs lie. To have a completely ineffective restriction on the right to freedom of expression is better than to have a restriction that must be considered. From their point of view it makes life a little easier but whether that is in the public interest is a matter for the committee.
The issue of the Internet is particularly interesting because Article 10 of the convention protects the right to receive ideas and information regardless of frontiers. When the convention was drafted they were not thinking about the Internet--
I do not think Mr. de Valera was either.
Ms Siobhán Ní Chulachain
No. That is in the European convention. Mr. de Valera did not mention frontiers but the European Union to some extent has tried to grapple with the issue of the Internet and has provided a directive which deals with responsibilities of Internet service providers. I understand it is based on the jurisdictions in which they have their registered offices. I am not completely au fait with that but it is an area on which we could probably provide the committee with more information. Some of the practitioners who are working on intellectual property rights would know more about that area of the law.
The current article of the Constitution does not assist or hinder the development of legislation to deal with the Internet and the publication of material on the Internet. Prosecutions have come before the courts for possession of illegal material, for example, pornography, which has been made available across international frontiers and not just across Europe.
If this committee were making a recommendation to amend the Constitution or indeed to introduce legislation I do not believe it would be necessary to refer to the Internet specifically. It is such a new area and it is developing so quickly it is difficult to see how it could be addressed. For example, my friends in IT have indicated to me that in two years' time the DVD will be defunct and people will just download new films from the Internet directly. The DVD has served its purpose and its time is over. It is difficult to know how legislation could be prepared now to cope with the speed at which is developing.
On the strong statement about the freedom of expression, an underpinning of that by comprehensive legislation which would cover not just blasphemy but other areas we mentioned without going into in any detail. Contempt of court and other matters we mentioned in our submission would be useful and might even stimulate some public debate about freedom of expression. It is always welcome to see the citizens exercising their freedom of expression.
I thank the representatives. The discussion has been helpful to us and we are very grateful to the Bar Council for coming before the committee again and helping us. When I had the justice portfolio its members were always very willing to attend. They have shown that willingness again today and we appreciate it. We look forward to seeing them again.
Mr. Turlough O’Donnell
I thank you, Chairman, and all the members of the committee and wish them well in their endeavours.
I thank Mr. O'Donnell. We will now hear from Dr. Eoin O'Dell of the school of law in Trinity College. He is a director of research, a senior lecturer and a fellow of the college. I invite Dr. O'Dell to make a short presentation, which will be followed by a questions and answers session. Dr. O'Dell can take it that the committee has already received and read through his presentation. Therefore, he might just cover the main points. I advise him that the members of the Oireachtas have absolute privilege, but that same privilege does not apply to him.
Dr. Eoin O’Dell
It is a great pleasure to be here. I was privileged to be invited to make a written submission and am honoured to have been invited to make this oral submission. As the Chairman indicated, I will speak briefly against the background of the written submission members will have already received. I will make three brief points. One relates to the existing text of Article 40.6.1° on protecting freedom of expression. The second relates to some comparative textual reflections and the third to a possible future text for that article. Under each of these headings I will make two separate points, reflecting on the question Deputy Jim O'Keeffe asked initially. I will make a make a general point and a specific point about blasphemy under each of those three headings.
My first point relates to the existing text of Article 40.6.1°. Unlike the Bar Council, which tried scrupulously to stay neutral, or the RTE submission, which I understand indicated that everything is okay, I will start off by saying that the existing draft of Article 40.6.1° is a badly drafted protection of freedom of expression, especially having regard to modern constitutional norms. It is unclear. It is riven with ambiguity. The right is stated very grudgingly and it has been interpreted in the past very narrowly by the courts. The restrictions are stated very broadly. They have been interpreted even more broadly again by the courts and sometimes almost treated as more important than the right. The middle clause relating to the press is, at best, obscure and cryptic.
It is true that the courts have in the recent past begun to try to set this to rights, but I suggest they are simply making the best of a bad lot. They are trying to make a silk purse out of a sow's ear. However much help they might have from Strasbourg it will not be enough given the starting point they have been given by Article 40.6.1°. That is the general point.
The specific point relating to blasphemy in terms of the blasphemy provisions is, first, that the word "blasphemy" is hard to define and, second, we have achieved a constitutional position of two extremes. We either have, on the one hand, a constitutional crime, which is an extraordinary thing to find in a freedom of expression clause or, on the other hand, what the Supreme Court has done in Corway, which is to render it a constitutional dead letter. For a committee charged with coming to a balanced decision, extremes like that are, to say the least, unhelpful. The existing text of Article 40.6.1° is, frankly, terrible. This is borne out by comparison with other freedom of expression guarantees the world over.
That is the thrust of the main body of my written submission. I described a general approach to constitutional rights in principle and to freedom of expression in particular. I pointed out that rights are generally clearly and comprehensively stated and broadly interpreted. Reasons for restrictions tend to come afterwards. There is usually a full and complete list of reasons for restrictions such as public order, the rights of others and, as referred to by Senator Regan although he has left, reasonable expectations of privacy. This complete list tends to have clearly stated restrictions. They are generally cast, understood to be subsidiary to the right and not vice versa, usually narrowly interpreted and always required to be substantial and not trivial in the individual cases and in practice.
Third, a clear standard for determining whether a particular restriction is justifiable, having regard to the reason relied upon, is usually articulated on the face of the text as well. The Constitution fails all these standards and requirements. More to the point, blasphemy is not usually stated expressly on the face of any such constitutional text. The essence of the existing crime of blasphemy, to the extent that it is enforceable at all after Corway, is that it reflects public order concerns, which are the traditional common law understandings, or reflects the need to protect the rights of others, which is the emerging understanding. These more general things are more appropriate to a constitutional text rather than an expressed reference to blasphemy.
That brings me to my third main point, the possible future of freedom of expression under the Constitution. As Senator Alex White indicated, I would replace the existing text with a more appropriate one. The thrust of my submission is that the existing text does not work, and if it is broken, we should fix it. The more appropriate one should have a better, more comprehensive and clearer statement of the right referring, for example, not merely to expression but also to thought, belief, speech, freedom to receive ideas and an express and clear statement of freedom of press and other media. There should be a complete and closed list of restrictions, which could include matters such as public order and the rights of others, which might encompass blasphemy legislation.
The full text of my proposal is available by submission, but I make the point, as trailed by Senator Alex White, that while Article 10 of the convention is one obvious influence, it is not the only one. Many other constitutions and conventions have also been considered. I have made an alternative proposal developing the convention language.
The general grounds of restrictions, as stated in any new constitution should not expressly include the word "blasphemy" but blasphemy legislation might be justified on the basis of restriction to protect the rights of others or restriction to prevent public disorder. Whether legislation to prevent incitement or blasphemy on the basis of such restrictions ought to be introduced would then become a matter for legislators such as the members here, which is the more appropriate forum for making this determination than a constitutional crime.
I thank Dr. O'Dell for his interesting presentation.
As they would say down the country, a camel is a horse designed by a committee. Clearly, this article was the result of a committee drafting amendments at the time our Constitution was being put in place. I understand from the historical backdrop that late amendments came in during the course of the debate on this article and, for one or other reason, some of them were accepted, not least because one of them came from an Opposition source.
At 4 a.m. probably.
We are starting with what has been aptly described by Dr. O'Dell as a disorderly article. The description "muddling through a disorderly article" beautifully encapsulates the current position. What we have before us is a detailed scholarly analysis of the article. It is helpful to us in our deliberations. Dr. O'Dell has broadened the debate by referring us to considering the possible contribution that could be made by examining the Canadian Charter, the First Amendment of the United States Constitution and the New Zealand Bill of Rights. We were tending to focus exclusively, from the point of view of drafting an alterative article if we come to that recommendation, more on the European Convention.
Dr. O'Dell has expressed his views so succinctly and clearly that I have no great questions to put to him. His is a very scholarly analysis. We have, in his recommendation, an initial draft, if we opt for a replacement of this article. I will confine myself to commending Dr. O'Dell on a most helpful contribution to our deliberations.
Having listened to what Deputy O'Keeffe said and reflected on the debates that took place in 1937 in respect of these clauses, it is interesting to look back at some of the reports. In fact, objections were raised to the manner in which the right to freedom of expression was to be expressed in the Constitution. I am happy to say objections were raised at the time by my party in respect of how restrictive it might end up becoming and also concerning the language of the article as it was put in place. We should look at what we might be able to achieve were we to consider amending and replacing this article.
I join Deputy O'Keeffe in thanking Dr. O'Dell for a prodigious and impressive submission. We can spend some time cogitating and reflecting upon it. It is extremely helpful. As Dr. O'Dell indicated, he takes a clear view of Article 40.6.1° of the Constitution. He makes no bones about the fact that it ought to be replaced.
The following is a question I asked some of the Bar Council representatives. It has been observed that the development of some English case law in recent years - one thinks about the Reynolds case and others - has been influenced to a considerable extent by the convention. Leaving aside the longer, more detailed version that Dr. O'Dell is proposing and sticking to Article 10 as a template, it has been observed that the convention is finding its way into case law in England. That is likely to be influential here, as in our experience it tends to be so. Does Dr. O'Dell think that is much of an argument in respect of somebody arguing that perhaps we should leave well enough alone? We get the benefit of the convention because if we hang on long enough, it will find its way into decisions here.
I would like to put to Dr. O'Dell the question I posed in respect of blasphemy. Is he aware of any international experience in the modern era where the concerns communities and societies legitimately have in respect of offending against religious sensibilities, excessive or offensive commentary have been approached by way of a blasphemy law? Blasphemy is such an anachronistic concept but, nevertheless, we cannot exclude it entirely. If there are legitimate concerns in a society or community about the expression of particular views, including excessive, offensive or insulting statements on people's religious sensibilities or otherwise, perhaps a blasphemy law is one way of dealing with the matter. I remain to be convinced but, as this committee is at a relatively early stage of its discussions, I would like to know whether anybody else has approached the matter in that way.
Dr. O'Dell has brought a detailed presentation to us into which he has put a lot of work. He has elaborated on the issues behind it. How many of them would require legislation or a constitutional amendment? It would certainly stress the right to freedom of expression and also include the caveats and restrictions that might go with it. It is certainly something on which we can take further advice and examine from the point of view of how far one should go in elaborating on the Constitution, whether it would be wise to go that far, how much should be left to legislation, and if that legislation should be introduced sooner rather than later. Dr. O'Dell has left us with plenty to think about.
Senator White referred to the influence of European decisions on this article. Does it become redundant because of what is happening in the European Union? Is Dr. O'Dell aware of whether the Lisbon treaty will have an effect on strengthening the European position, effectively making the article in the Constitution redundant?
Dr. Eoin O’Dell
I thank the Chairman and other members of the joint committee for their kind comments. I echo Deputy O'Keeffe's comment about a camel being a horse devised and designed by a committee. I hope this committee does not design a camel, but designs a better thoroughbred that will protect freedom of expression.
We may even send it to Punchestown.
Dr. Eoin O’Dell
To take the points made by the Chairman and Senator White about European protections, it is true that European standards are finding their way in and having an effect, but it is happening slowly. Moreover, it is happening in an inhospitable context. My girlfriend is a keen gardener and has taught me the importance of ensuring plants are transplanted into the appropriate soil. European freedom of expression norms find a cold climate when compared with Article 40.6. Moreover, the point made by Mr. O'Reilly, senior counsel, on behalf of the Bar Council - that the European Convention on Human Rights Act adds another ground of argument for lawyers and therefore another way by which European convention issues can become part of Irish law - is incomplete because the protections and remedies provided by the Act are far narrower than those provided by the Constitution. Therefore, the protections are much narrower and fewer in number. For all these reasons, if one wants to ensure proper protection for freedom of expression, one must go a lot further than the current text interpreted in the light of European norms.
As to the specific question on the Lisbon treaty, there is a European Charter of Fundamental Rights, Article 11 of which protects freedom of expression, in terms not dissimilar to the first paragraph of Article 10 of the European convention. However, it will not be given legal force by the Lisbon treaty if it is adopted. Therefore, it will make no significant difference to the protection of freedom of expression as a matter of Irish law.
On Senator White's question about the use of blasphemy legislation in similar jurisdictions in the modern era to meet legitimate concerns about the need to protect religious sensibilities, I felt sorry for the Bar Council representatives when he asked that question because there are 190 countries or thereabouts and it is not possible to answer for all of them. However, from the viewpoint of common law jurisdictions with which we share the same cultural heritage, the short answer is no. Blasphemy laws tend not to be enacted now. To the extent that there are legitimate reasons to protect religious or cultural heritage they tend to be protected, as the Senator suggested in his earlier question, by incitement legislation. As the committee is well aware, legislation is passing through parliament in England to abolish the crime of blasphemy and replace it with a crime of inciting religious hatred but in language compatible with the European Convention on Human Rights. That seems to reflect the modern standard approach.
On Deputy Woods's point about what is appropriate for inclusion in a constitution and what is appropriate for inclusion in legislation, in general terms, constitutions should speak at a general and abstract level, leaving the detail to legislation. It is a bad idea to add the word "blasphemy" in Article 40.6.1°(i). because it is a matter of detail rather than of general constitutional principle. It is better to define the right as broadly as possible and to state the grounds for restrictions as clearly as possible and then have reasons, such as religious sensibility and blasphemy, dealt with by way of legislation.
I forgot to ask Dr. Eoin O'Dell about the formulation he put forward, which is very interesting. I believe all the members of the committee would agree the Constitution is the place for the declaration of general principles and, in so far as it is necessary to expand or elaborate on them, it should be a matter for legislation.
Again, not to drag out too far the analogy about the camels, horses, and so on, Deputy O'Keeffe spoke about the original article having been designed by a committee. To paraphrase Peadar O'Donnell, he once said to de Valera that it may have been designed by a committee but that he might have put different members on to the committee.
To come back to this proposal, it struck me as Dr. Eoin O'Dellwas arguing it that he was taking the reader through the different points which should be encompassed in a new article but it was getting more complex as one went through it. I do not know whether it is fair for me to put that to him. I do not know if this proposal for a new provision in the Constitution for freedom of expression will ever see the light of day, although I hope it will. The more detailed, complex and controversial, the less likely it is, in practical and political terms, that it will see the light of day. Therefore, I wonder whether the formulation is not too complex for politicians to ever believe they might grab hold of, and run with, it.
Dr. Eoin O’Dell
That is why Senator Alex White is a politician and I am an academic. It covers a great deal of ground but the need to protect freedom of expression covers much ground. Other constitutions use these phrases, as the Senator pointed out. Each of these phrases covers different things. There are things I considered putting in but did not do so. For example, some constitutions include freedom of information as an element of freedom of expression. For instance, Article 11 of the European charter refers not only to media freedom but to securing media pluralism. These are the kinds of things that might be added as well.
I was conscious of complexity and length and did not want to deviate from the specific task of sketching general principles and then applying them in the context of blasphemy. It may be that this committee will start with this clause and go somewhere else with it. That would be its job. However, if it wants a starting point, this is one. I hope that it does not become another camel.
Thank you very much. We are very grateful to you for your submission, contribution and this question and answer session which was very help to us.
Dr. Eoin O’Dell
I thank the Chairman and members of the committee.
We will continue our public hearings at our next meeting when we will hear submissions from the national newspapers of Ireland and TV3.