Defamation Bill 2006 [Seanad Bill amended by the Dáil]: Report and Final Stages.

This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 103 it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. The Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, will explain the purpose of the amendments made by the Dáil and this is looked upon as the report of the Dáil amendments to the Seanad.

For the convenience of Senators, I have arranged for the printing and circulation to them of those amendments. Also, there are two amendments in the names of Senators Regan and Cummins to pages 26 and 27 of the Bill. The Minister will explain by way of five groupings the 31 amendments made by the Dáil. Senators make speak once on each grouping. With the agreement of the House, I propose to deal with Senator Regan's amendments under group 5 to which they are related. Is that agreed?

This Bill was recently passed by the Dáil. It would be helpful if in respect of future amendments from the Dáil Senators could be circulated with a background note setting out the reasons for the amendments and so on.

A list of the amendments has been circulated.

I am not speaking about the list of amendments, which we received only this morning.

We only received them now.

I am making the point that it would be helpful if we could in future be given an information note in regard to the amendments. Often, reading the Dáil debate does not clarify the purpose of amendments. I am merely suggesting that — I know the Clerk does not agree with this — it would be helpful if in future we were given a background note explaining the reasons for the amendments.

The Minister will set out the background to each amendment now. Is it agreed that Senator Regan's amendments will be taken with group 5? Agreed.

I remind Senators that the only matters that may be discussed are the amendments made by the Dáil and the two amendments tabled by Senators Regan and Cummins. I call on the Minister to speak on the subject matter of the amendments in group 1.

A total of 31 amendments were proposed and accepted during Committee and Report Stages of the Bill in the Dáil, including 30 Government amendments and one amendment from the Labour Party. It was possible to incorporate the spirit of a number of amendments proposed by the Opposition.

On group 1, amendments Nos. 1 and 2 concern the saver provisions and the insertion of a new review mechanism. Amendment No. 1 deletes the original section 3(2) of the Bill dealing with the operation of law immediately before commencement of the Act and substitutes new text which provides improved clarity in the matter. I have been advised it is important to ensure that current case law in regard to specific legal terms used in the Bill such as "publication", would be carried forward. The saver now proposed in section 3(2) seeks to achieve this.

Amendment No. 2 inserts a new section into the Bill to provide for a review mechanism to facilitate the assessment of the operation of the legislation. A review will take place not later than five years after the enactment of the Bill. Subsection 5(2) takes account of a proposal from Fine Gael that the review be completed within a particular timeframe. The amendment will ensure that the review of the Act should be completed within one year of the commencement of the Bill.

I have no observations but I support the review of the legislation so I agree with these amendments.

Are we speaking on Senator Regan's amendment?

No, we are discussing the subject matter of the amendments in group 1 that were made in the Dáil.

I support these amendments because it is important that there should be a review and if there is no timescale, it could go into limbo. In light of the considerable debate, particularly when the Bill was before the House in its previous incarnation and a number of us on both sides tried to sabotage elements of it because we were concerned about the effect its operation would have on libel law and citizens' rights, it is important that there should be a review within a specified time to ascertain if our fears were justified and to take into account case law.

There was a celebrated case in recent times where an unfortunate man was murdered in a Dublin suburb and the newspapers got hold of a story, describing him as being trussed up like a pig, suggesting it was some kind of bizarre sexual experimentation. The fact he was gay was bandied about the papers to the intense distress of his family. No proper apology or recompense was made by certain sections of the press that published this to the distress of the family. There is nothing in the law that gives the families in these circumstances any right to secure real retribution. This sort of case should be reviewed when the law is being looked at again.

It is very important, particularly when we are making significant changes, that we monitor implementation of legislation and its consequences so we can improve the legislation in the light of experience. To hold the review within one year is a very good idea.

We had a long debate on this Bill on a couple of occasions, first when it was aborted with the 2007 general election and then subsequently when it was reintroduced by the current Government. Concerns were expressed in this regard and it is imperative that the review takes place within the five years. It should happen as cases evolve.

I was appalled, but not surprised, at the reaction of the newspaper group involved in the Leech case. Instead of issuing an apology in the face of the severe findings of the jury in the case, it looked for changes in the defamation legislation so people could be deliberately defamed. It was a disgrace and it brought home to me the need for the privacy legislation that was initially promised in tandem with this Bill. It would be useful if the Minister would outline to the House when he intends to bring the privacy Bill before the Oireachtas. The response of the newspaper in that regard did not meet the requirements and spirit of the debate we had on all sides.

Within the last day there were significant breaches of privacy revealed in the neighbouring island by one of its major newspapers. It breached the law by bugging people's telephones, including that of the Deputy Prime Minister. We cannot allow the media to go unfettered.

Much was made of the Press Council of Ireland by the industry itself. Many of us argued strongly against this self-regulatory body with very few effective powers. It is significant that the press council to date has had some of its findings disputed by some of the major newspapers. That shows that self-regulation does not work. I was critical at the time of its establishment that the Press Council is nominated and paid for by the industry. It is absolutely compromised so privacy legislation is essential to protect people's rights.

I have great sympathy with the Dwyer family whose son was killed in Bolivia. Through the intervention of Deputy Máire Hoctor, a number of us met the family. To hear their tale of the intrusion of the press even before they were aware their son had been killed and subsequent to their becoming aware of it is appalling. We must regulate this area to ensure people's privacy is protected. Freedom of speech must be protected but the concoction of stories to support headlines is not good enough.

We depend on editors in the newspaper industry to apply standards. In many of the articles we see, the most defamatory comments are within the headline, while the article often bears no relation to it. It is set to attract attention and sell newspapers. That level of irresponsibility applies within an industry that is under pressure at present. There is, however, a need for privacy legislation, particularly following the Leech case and the response to it, which displayed an arrogance and a total lack of respect for compliance with defamation regulations.

I am glad to see these amendments being made. I would like to see a review within the next few years, particularly of areas such as defamation of the dead. There are many cases where dead people have been defamed. The family that has been left behind must cope with this and must deal with the often scurrilous articles in the media. We could revisit that area when the Minister re-examines it within the next five years.

I apologise for my confusion earlier, I thought we were dealing with the Seanad Report Stage amendments first.

I welcome amendments Nos. 1 and 2 made by the Dáil providing for a review of the Act. Given the level of controversy about the content of the Bill, particularly the insertion of amendments Nos. 29 and 30 that cover the offence of blasphemy, it is important if that offence is to be provided for — something I will oppose — that the legislation should be reviewed. There is no need to insert those provisions into the Bill.

We will have the opportunity to debate them but I would like to say how bad an idea I think they are, particularly in light of the Supreme Court decision in the Corway case. At the very least, a review is important.

I also take on board the comments of other Senators about the need to review other aspects of the Bill, particularly the unjust operation in the past of the rule about the defamation of the dead.

The review is to happen "not later than" five years, so it could take place after five months. This is an area of law that evolves on a daily basis. One of the reasons for the delay in passing this legislation since its publication is that things have changed not just on this island but also across the water. Many judgments handed down in the UK have implications for our law. I hazard a guess that we will be coming to review this legislation sooner than the time limit of five years. A Fine Gael amendment specified that the review be completed in three months but we felt that was too short a period because of the requirement for consultation, thus, it is up to one year.

The issue of defamation of a deceased person has been subject to much examination by me, my officials and others. We have considered whether such provisions exist in other jurisdictions that have similar defamation laws to ours and we have not come across anything that would help us in that regard. Section 39 allows for the survival of causes of action on death, but that obviously does not take care of the situation raised by Senators Norris and Walsh. As I said in the Dáil, this is a subject that needs to be revisited.

Senators may recall that my immediate predecessor suggested that the Privacy Bill 2006, which is on the Order Paper in this House, be left aside for a period to allow the Press Council to become established. At the launch of the annual report of the Press Council and the Office of the Press Ombudsman I indicated that I would progress that issue and spoke of the necessity of a period of consultation with the wider public. There was consultation with the various interests on the Privacy Bill but I am always suspicious of such consultation; there should also be consultation with the wider community, particularly in an area such as this in which the wider public are not really interested until they or people in their families are affected. To a certain extent there is a silent majority who would have a view, I have no doubt, if they were put in particular circumstances, as happened to the family in Clontarf mentioned by Senator Norris. They feel helpless and that there is nowhere for them to go. In that context we will commence the wider consultation process on the issue of privacy and then return to the Bill.

I raised the issue of defaming deceased people with the chairperson of the Press Council and the Office of the Press Ombudsman. In the code of practice of the Press Council, principles Nos. 4 and 5 are of particular relevance. Principle No. 4 sets out the standards to be met in respect of the right to protect one's good name, while Principle No. 5 sets out the standards for respecting the privacy of individuals. Paragraph 5.3 sets out the standards to be adhered to with regard to situations of grief or shock and the respect to be afforded to grieving families. My information is that the press ombudsman and Press Council are taking a proactive stance to ensure the print media adhere to those standards. That will give some comfort to families such as those mentioned by Senators Walsh and Norris. It is an issue we can return to, particularly in the context of a review.

The second group of amendments deals with verifying affidavits and the abolition of certain offences and covers amendments Nos. 3 to 11, inclusive.

These are drafting amendments, based on advice from the Office of the Attorney General and the Parliamentary Counsel. They propose to delete sections 7(1)(b) and 7(2)(b), which refer to the provision of further information by plaintiffs or defendants under sworn affidavits. I am advised that retention of the provisions would require the addition of a detailed definition as to what constitutes further information. The deletion of the references in question does not materially affect the provision of information between plaintiffs and defendants. The text is also being amended on a technical basis to ensure correct reference is made to assertions or allegations. Amendment No. 11 is a new section which abolishes any defence that might be pleaded in a libel or slander action under the common law immediately before the commencement of Part 2 of the Bill. The amendment is consequential on amendment No. 1, which was referred to earlier.

The third group of amendments deals with the abolition of certain offences, absolute and qualified privilege, apology and fair and reasonable publication, the subject matter of amendments Nos. 12 to 22, inclusive, and No. 31.

Amendments Nos. 12 and 15 are drafting amendments to correct the required reference to section 1 in sections 15 and 16. Amendments Nos. 13 and 14 are linked: amendment No. 13 provides absolute privilege for statements made in the course of proceedings during an arbitral tribunal where the statement is connected with those proceedings, while amendment No. 14 is a technical amendment consequential on amendment No. 13. Amendment No. 16. is also technical and the effect is mainly to provide for two separate subsections making the text clearer.

With regard to amendment No. 17, section 17(1) originally expanded the number of situations in which the defence of qualified privilege would fail. However, following consultation with the Attorney General on the legal issues involved, I am advised it would be prudent to amend section 17(1) so as not to alter the existing law. The revised position now reflects the existing position in law. It makes loss of defence of qualified privilege solely dependent on proving that the defendant acted in malice. Amendment No. 18 is a Labour Party amendment to section 22, which was accepted on Report Stage — if my memory serves me correctly, it was also a Sinn Féin amendment — and which is intended to encourage the making of an early apology. This matter was debated at some length in this House during the debate on this section.

Amendment No. 19 provides for a new section in section 24 concerning fair and reasonable publication of a matter of public interest. Subsection (4)(a) provided that the defendant be required to believe in the truth of the statement at the time of publication though it subsequently transpired to be false. It was brought to my attention that this could hinder the reporting of stories which contain a number of conflicting opinions and that it appeared to conflict with the provisions of subsection (2)(1), which allowed for the extent to which the statement drew a distinction between suspicions, allegations and facts. Having consulted further with the Office of the Attorney General on the matter, I came to the view that the provision in subsection (4) could add an additional bar to the Reynolds test developed originally by the UK courts. The effect could be to make the defence of reasonable publication more difficult to prove. Subsection (4) is now deleted. The amendments essentially restate subsection (1) while relocating to it certain elements of subsection (4). Amendments No. 22 is consequential on amendment No. 19, providing for the deletion of the former subsection (4).

Amendment No. 20 is a drafting amendment regarding standards adhered to by members and non-members of the Press Council. Section 24(2)(f) now applies to members of the Press Council, while the new paragraph 24(2)(g) applies to non-members. Amendment No. 21 seeks to improve the drafting of subsection (2)(1) so that it refers clearly to attempts made and means used by the defendant to verify assertions and allegations made by the plaintiff in his or her statement. Amendment No. 31 inserts a new paragraph in Schedule 1 Part 1 of the Bill to provide for qualified privilege with regard to defamation actions where the statement is required by statute to be made available for public inspection or publication.

It is a mixed bag and I welcome some of the amendments. Amendment No. 18, as the Minister said, is intended to facilitate an early apology, because apologies are more effective the closer they are to the commission of the offence by publication. However, the Minister knows well I am not a fan of the defence of fair and reasonable publication. Much material appears in the press which is very dubious and the idea that it is published in good faith is questionable. There is quite a lot of bad faith around and I am not convinced these amendments address it or the questions of public interest and benefit.

This morning it was revealed byThe Guardian that agents of Mr. Rupert Murdoch — that cancer on the face of the media — have managed to corrupt the British process almost entirely. It has been drawn to the attention of the courts that agents of Mr. Murdoch’s news empire suborned third parties and paid them illegally to hack into e-mail systems and eavesdrop on telephone conversations, and did so in the interest of publishing scandalous material about people in the public eye. It was done in the case of Mr. Prescott. Apparently his private arrangements were displayed in public to the distress of him and his family.

I am not certain there is any public interest in that at all. Yet, as a result of that the case never really came to a conclusion. I understand Mr. Murdoch and his agents bought the people off for millions of pounds. Therefore, there was no ultimate judgment and the police collaborated in the suppression from the public of the commission of criminal offences by major newspapers in Britain and the invasion and violation of peoples' privacy. That is a very serious matter.

Despite what the Minister said, I retain my reservations about the idea of fair and reasonable publication. I do not like it and it is something we imported via the UK from the United States of America. It is a matter I hope the Minister will review. I understand there is no possibility of a vote on this issue, so once more I want to put my reservations on the record.

The Minister will regret the new defence of fair and reasonable publication, the introduction of which he is presiding over, and will also regret the strengthening of that defence, which is imported in his Dáil amendment to the Bill. The Minister has the reputation of being quite critical of the media and its abuse of its privilege and the position of trust it enjoys in our country. That is understood, rightly or wrongly, to be part of the context for putting the Defamation Bill back on the agenda.

When the defence of fair and reasonable publication was discussed in the Seanad on Committee and Report Stages, I shared Senator Norris's concerns about it. At that time, I noted the Minster's predecessor, the Minister for Finance, Deputy Brian Lenihan, said he was essentially philosophically opposed to the defence of fair and reasonable publication. The Minister, Deputy Lenihan, said at the time that the defence of fair and reasonable publication, even though he was philosophically opposed to it, had to be introduced because it was the direction the courts were taking in their jurisprudence. I understood it was the job of the Oireachtas to determine, subject to the provisions of Bunreacht na hÉireann, what position the courts should take when dealing with certain matters by defining precisely what the law is and should be.

If I was a citizen of Burma perhaps I would take a different view, but we live in a free society where the media enjoys a largely unfettered role in its analysis of and commentary on public affairs. It is a role we have often seen abused. The only agenda being served by the introduction of a defence of fair and reasonable publication is the agenda of those who do not ultimately respect fairness or prioritise sensationalism, the need to sell newspapers and the promotion of a culture of controversy above fairness.

It is bad policy to provide that where a person defames another, he or she should enjoy a defence of fair and reasonable publication. A defence of mistake, as well as all the other provisions contained in the Bill, might apply but not a defence of fair and reasonable publication, especially given the step the Minister has taken, that is, the elimination of the proviso concerning belief or otherwise in the truth of the statement. It amounts to providing that a person may be in doubt as to the truth of what he or she is publishing because there are conflicting opinions, as the Minister has said, but he or she will go ahead with publication none the less.

I respect the Minister and his views as reported in the media and agree with a lot of them. However, he does a disservice to the cause of good journalism by including in this Bill a defence of fair and reasonable publication. His predecessor said he was philosophically opposed to such a provision and I am not misquoting him. The Minister should have gone one step further and eliminated it when he had the opportunity to do so.

This new defence was discussed in great depth in the Seanad when the Bill was initiated. I have not tabled an amendment or mentioned my opposition to the provision at this time, but I reiterate a point I made during the first debate on the Bill in the Seanad. The jurisprudence in this area changed in the United Kingdom as a result of two cases, that is, Reynolds and Jameel. They were very particular cases. In the Jameel case the decision was spilt. We are basing this defence on UK jurisprudence when the jurisprudence in Irish courts has not yet been decided.

It is an error to legislate at this juncture on this area when matters are still before the Irish Supreme Court, and it would have been preferable to leave it to the courts to refine the law in this area rather than to legislate for a defence that is of a rather crude formulation. We will have to see how it is interpreted by the courts, but it will give rise to a lot of litigation and will create many problems, not least for parliamentarians.

I am not sure these amendments do anything to safeguard the public from irresponsible journalism. There are, as Senator Mullen said, many good journalists and it would be wrong to taint everyone with the same brush, as is the case for all professions. However, there are irresponsible elements within the media who seem to be able to function unfettered. Our duty is to ensure they cannot do so because the damage done to people's reputations and the psychological damage done may be enormous.

Amendment No. 17 states: "In a defamation action, the defence of qualified privilege shall fail if, in relation to the publication of the statement in respect of which the action was brought, the plaintiff proves that the defendant acted with malice." It is not always easy to do this. In light of this requirement, when a defendant is found to have acted with malice the penalties are probably insufficient. In such circumstances, not only should the plaintiff receive ordinary damages, but exemplary damages should also be awarded, as occurs in other cases. While the matter is to be examined in the review, I ask the Minister to consider, in light of experience, beefing up this provision.

I was shocked by the response of a newspaper group to a hammering it received in the High Court. Its response to the decision was not what one would wish from a responsible newspaper organisation or publication in respect of how it proposes to adhere to the law. It appeared to decide it would operate to its rules and change the law to meet its rules. This appears to be what we have done in the legislation by allowing newspapers to establish a press council. Given that press nominates the council's members, it will be far from independent.

I am not sure whether Senator Norris agreed with an argument I made previously in the House on the matter of sanctions. One of the sanctions which applies under the licensing laws is that a premises can be closed for up to seven days. Senators have argued that in extreme circumstances in which a defendant is found to have acted demonstrably with malice and clear intent to damage someone, a sanction of closure of publication for a period should be available. I ask that this option be considered in the review.

I am concerned about the amendment to the previous section 24 and seek clarity from the Minister. Amendment No. 19 appears to remove the obligation on the defendant to prove that he or she believed at the time of publication that a statement was true. I understand this requirement has been removed which effectively means that a plaintiff will be unable to mount a case on that basis and a statement which the author knew to be untrue at the time of publication may be published. The Minister has argued that reports may contain a number of conflicting opinions and the obligation in the previous section 24 could interfere with the ability to publish such reports.

Newspaper articles are now practically free of reporting and even main articles contain a great deal of opinion. One must go back to older editions of newspapers to see reporting. While one knows what one will get when one reads the opinion section of a newspaper, frequently news reports are used to mask opinion and prejudice.

I have concerns about the implications of amendment No. 19 for the reputations of individuals. I am particularly concerned that the removal of the obligation in question creates a weakness in the system which will make it difficult for those who have been defamed to secure redress.

I thank Senators for their remarks. All those in public life, not only politicians, will have some difficulty with a defence of fair and reasonable publication. If any Bill was to feature on my Christmas card list, the Bill before us is not it. Before my appointment to this Department I looked long and hard at section 24, now section 26, on the defence of fair and reasonable publication. It is not correct that the provisions on this matter have been driven solely by court decisions in the United Kingdom. They were driven by the Reynolds case of, I believe, 1999. The Reynolds test has been adopted by the Irish courts in a number of cases. For instance, it was cited in the Leechv. Independent Newspapers case in June 2007. In his decision in that case, Mr. Justice Charlton was of the opinion that a fair and reasonable type defence existed in Ireland for the media. He drew heavily on the Jameel judgment. The defence did not feature in the jury’s consideration of the case.

The purpose of section 26 was to impose parameters on what has developed here and abroad regarding a defence of fair and reasonable publication. It is better that the Oireachtas, taking into account the development of the law in this area, endeavour to sculpture the law in a way that suits what we believe the people we represent desire. That is the reason that, on balance, it is better to have this defence on a statutory basis rather than leaving it up to the courts to state the law in this area.

On the question raised regarding the removal of the obligation on the defendant to prove he or she believed in the truth of a statement at the time of publication, it was brought to our attention that it could be argued that this requirement could hinder the reportage of stories which contain a number of conflicting opinions. It also appeared to conflict with the provision in subsection (2) which allowed for consideration to be given to the extent to which the statement drew a distinction between suspicions, allegations and facts.

We must accept that if an investigative reporter or other member of the media is carrying out an investigation, he or she may produce a number of conflicting opinions as to what took place in a particular incident. To impose a requirement that the author believe in the truth of such opinions, even though they may be conflicting, is not logical. It was, therefore, correct to delete the requirement while retaining the other significant requirements under various headings in section 24, now section 26. As Senators will note, under this section, the court will consider relevant a series of factors set out in paragraphs (a) to (j), inclusive. A significant number of hurdles must be overcome by anyone pleading this defence. For example, subsection (1) requires that a statement must be shown to have been published in good faith and in the course of discussion of a subject of public interest, the discussion of which was for the public benefit. It will be a matter for the court to decide on these matters. The strong view impressed upon me is that this is not an easy defence to claim and a significant number of hurdles must be overcome before a defendant can claim it. We have achieved the right balance in this regard.

Through a previous amendment, I endeavoured to ensure there was some restriction on the ability of the media to lodge when they are claiming this particular defence. I had in mind that if the defendant wished to plead this defence, he or she would not be able to lodge at the same time. In other words, they would not get a double whammy against a plaintiff. It is the case that, under the rules of the superior courts, a judge already has the power to make a decision regarding costs. It does not necessarily have to follow the event. I was going to raise that to a statutory level, in other words, I was going to confirm what was already in the rules of the superior courts. However, it was impressed upon me, both inside and outside the House, that this might be seen as another imposition. I relented therefore and withdrew the amendment. As I say, however, all these things are constantly evolving. The law on defamation and privacy is literally evolving on a daily basis. We only have to see what is the subject of significant speculation in the UK today concerning alleged abuses. Thankfully, and I think it is to their credit, the media here have not been as intrusive into the lives of public figures as the UK media. In a contracting market where there are more players than heretofore, people are scrambling around for stories and to a certain extent standards may drop. However, the Press Council and the Press Ombudsman have worked well to date and should be given a fair wind.

Most of us would have suspicions about self-regulatory bodies, not least in my own profession for many years. I am always suspicious of self-regulatory bodies as would most people in public life. We would rather have independent regulation, not least of our own existing profession, but we are where we are. The legislation sets the parameters within which the Oireachtas wishes to see a self-appointed Press Council and Press Ombudsman operate. In fairness, they should be allowed to proceed because, despite what was said earlier, they have shown an independence of mind. We have seen recent reports that there are some difficulties. There will be disputes, naturally, as media organs will not be happy with the judgments that have been handed down by the Press Council from time to time.

I call the Minister on group 4 — clarity orders and dismissals for want of prosecution — which is the subject matter of amendments Nos. 23 to 27, inclusive.

Amendments Nos. 23 to 26 support amendments tabled by the Labour Party on Committee Stage regarding the jurisdiction of courts in dealing with applications for declaratory orders under section 26. The Labour Party had proposed to widen the jurisdiction to both District and Circuit Courts in addition to the High Court. Fine Gael supported this proposal. Of course, the District Court has no jurisdiction in defamation. Having consulted with the Attorney General, the Parliamentary Counsel and the Courts Service, I am now proposing to have a declaratory order application process dealt with exclusively by the Circuit Court, rather than the High Court. This approach should provide a much more cost-effective and swift procedure. Thus amendments Nos. 23, 25 and 26 provide the necessary arrangements for the new approach.

In examining the issues raised concerning section 26, I had the opportunity to reconsider the reference to "false" in section 26(1). Having consulted with the Office of the Attorney General, there was a concern that this reference might somehow be interpreted as requiring the applicant of a declaratory order to prove that the statement concerned was false. Such a situation would, of course, reverse the presumption of falsity approach taken in this Bill and make this new remedy less attractive. Thus for the avoidance of doubt, amendment No. 24 provides for a new subsection (3) to ensure the intended purpose, that is, that the applicant does not have to prove the falsity of the statement.

As regards amendment No. 27, section 31, as passed by the Seanad, provided that subject to provisions in the rules of the court, where a plaintiff does not do anything required of him or her within one year, a defendant may apply upon notice of dismissal of the action for defamation. However, current rules of court 122, rule 11, impose no such positive obligation on the plaintiff and allow for up to two years' grace period. Having consulted further with the Office of the Attorney General, I proposed the deletion of the provision on Committee Stage in the Dáil. The effect of that is that the rules of court will continue to apply.

The amendment makes perfect sense in terms of bringing into play the jurisdiction of the Circuit Court, rather than the High Court. It was the subject of debate here on Second Stage. It is in the interests of the media, but it is also in the interests of somebody who has to defend their good name and does not have to undertake the enormous cost involved in High Court proceedings. That amendment is particularly welcome.

Does the Minister wish to reply to group 4?

Group 5 concerns the abolition of certain common law offences — blasphemy and libel — and the seizure of copies of blasphemous statements, the subject matter of amendments Nos. 28 to 30, inclusive.

Amendment No. 28 refines the text of amendment No. 34 to use the more correct term "defamatory libel", rather than the previous "criminal libel", which is more of a catch-all phrase for various types of libel. This change has been advised by the Offices of the Attorney General and the Parliamentary Counsel.

Amendment No. 29 provides for a new section to modernise the current law in section 13 of the Defamation Act 1961 in regard to providing sanctions for the constitutional offence of blasphemous libel. Senators should note that, despite what one might read in the papers, the Bill introduces no new statutory offence of criminal and defamatory libel.

The Minister, above all, should know that one cannot believe what one reads in the papers.

Does the Senator mean even in the paper of record? Senators may recall that this House agreed the deletion from the Bill of a provision regarding the publication of gravely harmful statements, which were in the Bill as originally published. The decision of the then Minister for Justice, Equality and Law Reform to delete that provision was widely acclaimed. He did, however, indicate clearly both on Committee Stage in the Seanad, on 11 December 2007, and on Report Stage, on 11 March 2008, that we had to address the issue of an appropriate legislative response on blasphemous libel in regard to offences contained in Article 40.6.1° of the Constitution. I would not disagree that the optimal approach, and certainly one which I would find most preferable, would be to abolish the offence of blasphemous libel.

However, for a number of reasons, it would not be my intention to bring forward proposals for a referendum at this time. Thus, in order to complete the long awaited reform of defamation we must now — we have an obligation under the Constitution——

——address this matter. My immediate predecessor as Minister indicated here in the Seanad on two occasions that we must address the appropriate legislative provision of blasphemous libel in regard to offences contained in the relevant article of the Constitution. It is stated in plain English and one could not get any plainer than this. Article 40.6.1° states:

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.

It cannot be any plainer.

Why do we need to clarify it further if it cannot be any plainer?

It is because of the Corway case. It is being incorrectly alleged that neither of my predecessors felt there was a need for this. A member of the Labour Party was on a programme and said something that was a complete untruth, and he knew it. The Minister, Deputy Lenihan, said on 11 March 2008:

If we repeal, in full, the provisions of the 1961 Act in reforming the defamation laws, we create a gap unless some provision is made for constitutional offences. We must also be mindful of the decision of the Supreme Court in the Corwayv. Independent Newspapers in 1999, where the Supreme Court indicated a need to address the law on blasphemy. At this stage, I would suggest our duty is to ensure that there is no gap created in the case of these offences, which are recognised by the Constitution. [Indeed, they are the only criminal offences recognised in the Constitution.] I reiterated this very clear position on Second Stage during the debate in the Dáil on 8 May 2008. My predecessor as Minister and I clearly signalled that a new legislative proposal regarding blasphemous libel would have to be made at some stage on Committee Stage in the Dáil.

The deletion of Article 46.1.1° was recommended by the constitutional review group in 1996, and more recently in July 2008 by the Joint Oireachtas Committee on the Constitution in its report entitled "Article 46.1.1 — Freedom of Expression", which dealt,inter alia, with blasphemy. Deletion was also recommended by the Law Reform Commission in its report in 1991, but they also recommended a number of other matters. However, the committee saw no need for a constitutional amendment in the short term, but rather that we might avail of any appropriate opportunity in the future.

I do not know what the Senators are talking about.

He is suggesting that we add a referendum to remove blasphemy to the second referendum on the Lisbon treaty.

I understand. I do not know whether Senator Norris knocks on doors on North Great Georges Street, but I knock on doors in O'Hanlon Park in Dundalk, and when I go around knocking on doors asking people to vote in favour of the Lisbon treaty, I do not relish——

The Government can get the blasphemy law through first.

——asking at the same time if they want to take blasphemy out of the Constitution. I hazard a guess that Senator Norris might not get the response he wants when he knocks on doors in O'Hanlon Park.

I accept the Minister's invitation to travel to Dundalk and knock on doors with him. The Minister can do Lisbon and I will do blasphemy.

The Minister, without interruption. We must stick to the amendments. The Minister is inviting trouble.

The joint Oireachtas committee again saw no need for a constitutional amendment in the short term, but rather that we might avail——

That is because it is not being used, because——

——of an appropriate opportunity in the future.

The Minister, without interruption.

We do not have the luxury of a "do nothing" approach.

We have done nothing for ten years.

I will answer that. In the Bill, we are repealing the Defamation Act 1961. The continuation of the current provision at section 13 of that Act is not a desirable option. Section 13 provides for both monetary and prison sanctions in regard to blasphemous or obscene libel, offences which were presumed to exist at common law. However, the decision of the Supreme Court in the 1999 case of Corwayv . Independent Newspapers — the only blasphemy case brought since the Constitution came into effect — held that the common law offence of blasphemous libel did not survive the adoption of the Constitution. That decision created an anomaly in regard to the obligation in respect of the Constitutional provision. Therefore, to continue with and complete the reform of our defamation legislation, I must respect the advice of successive Attorneys General that there is a constitutional obligation and imperative on me not to leave a legal void following a repeal of section 13 of the 1961 Act. It is not just me as Minister; the Oireachtas is not entitled under the Constitution to leave that legal void.

While some may regard the constitutional provision as redundant, as the joint committee did, the legal advice available to me from the Attorney General indicates that the committee's report did not change the legal position. Until the Constitution is amended, it is necessary that a sanction be provided in regard to blasphemous libel. There is no current, credible alternative to this position. Amendment No. 30 has the effect of retaining in section 36 of the Bill the power to seize copies of blasphemous statements. The title has been changed and some textual amendments have been made, so that we are now dealing with the seizure of blasphemous material that may be ordered by the court on foot of a successful prosecution.

We have three options on this. We can have a referendum and change this. We can pass a section dealing with blasphemous libel in order to comply with the Constitution, or we could just drop this Bill altogether.

That was an option. Some people have suggested that we could repeal the entire Act and leave section 13, which contains the existing offence of blasphemous libel. However, we cannot do that because of the Corway case. The Corway judgment stated that there was a need to address this issue, and it stated that we effectively had to come back to address the existing offence of blasphemous libel. We cannot repeal the entire Act and leave section 13 in place. Even if we could leave section 13 in place, it would leave in place the possibility of imprisonment for blasphemous libel. It would leave the possibility that a private citizen could bring a prosecution for blasphemous libel. Our amendment takes out the threat of imprisonment, so there will only be a fine that is being reduced from €100,000 to €25,000. Some people have suggested that we should reduce that further. I would like to do that, but then the offence will be brought into the jurisdiction of the Circuit Court, and I think we would all prefer if it was dealt with in the High Court.

On a point of order, the Minister states that he wants to keep this in the High Court. We are clearly talking about a criminal offence. Does he mean that this would be prosecuted in the Central Criminal Court?

I understood that the jurisdiction of the Central Criminal Court is limited to murder, rape and treason. Where is the provision for such an offence?

It would be in the Central Criminal Court, which is in the jurisdiction of the High Court.

Where is the provision for that? This did not occur to me, as I assumed it would be in the Circuit Court.

Are we in a "Questions & Answers" situation?

Perhaps the Minister might clarify.

We are ensuring that only the DPP will take a prosecution, and not a private citizen. We are also taking the sentence of imprisonment out of the section, so what we are doing is better than leaving section 13 as it is, which we are not allowed to do anyway due to the Corway case. While the Senators shout and harangue——

We would never do that.

——we cannot ignore the Constitution. The Constitution is specific that this is an offence punishable in accordance with the law. We are the legislators and we must provide that law. If we decide to leave it to some future stage, we will be in dereliction of our duty as legislators under the Constitution. I have heard what the Joint Committee on the Constitution has had to say. I appreciate that it has received legal advice. It has suggested, on the basis of the legal advice it has received, that we should look into the hearts of the people who drafted the Constitution. That is the effect of what the committee is saying. We do not have that luxury, however. We cannot look into the hearts of Éamon de Valera and those who helped him to draft the Constitution. Whether we like it or not, we have to legislate on the basis of what the Constitution says in black and white.

There is nothing we can do about the failure of the Oireachtas to do anything between 1937 and 1961. The Members of the Oireachtas of that era obviously decided, as the Joint Committee on the Constitution did some time back, that a referendum on the matter should be postponed until another day. As I said in the Dáil, our legislators decided to flunk it between 1937 and 1961. When the Defamation Bill 1961 was eventually introduced, the Government obviously operated on the basis of the same advice we are being given today, which is that if one is to legislate for all aspects of defamation, under the Constitution one must provide for an offence of blasphemous libel. The crime of blasphemy has been included in our laws, in accordance with the Constitution, since 1961. Severe doubts about the definitions used in those laws were raised in the Corway case. Nothing has been done since then. I am advised that we cannot pass this legislation without addressing that issue. We cannot let it go until another day. In the absence of a referendum in the immediate future, we will have to agree this legislation. It is as simple as that. While Senators may criticise that approach, they cannot deny that we are constitutionally obliged to provide for an offence of blasphemy in our laws.

The Minister is right on some of the points he has made, but he is fundamentally wrong on the principle and in his analysis of what could be done to deal with the problem he has identified. The manner in which he has dealt with this issue makes a nonsense of the legislation before the House. He mentioned that the matter was not dealt with between the agreeing of the 1937 Constitution and the introduction of the Defamation Act 1961. There is a time to let sleeping dogs lie. If the Minister had done so in this case, we would not have to waste our time on this issue.

I would like to deal with the principle that is at stake. The 1937 Constitution has been quite considerably modified to make it more suitable for a more modern Ireland, as an EU member state. It is far removed, in many respects, from the 1937 version. Various issues, such as the special position of the Catholic Church, the claim on Northern Ireland and divorce, have been dealt with. I suppose the current version of the Constitution reflects the type of constitution that was envisaged by Dr. Garret FitzGerald when he launched his constitutional crusade. The measure the Minister proposes to introduce is more than a step back in time — it is a giant leap back in time. The legislation before the House, properly interpreted, makes the humour of Tommy Tiernan, "Father Ted" and "The Life of Brian" a criminal offence. The reality is that the 1961 offence and the 1937 constitutional provision have fallen intodesuetude, to use a legal term. Therefore, the Minister’s approach is fundamentally flawed.

The Minister has referred to the various bodies that have suggested this offence should be removed from the Constitution. The Law Reform Commission made such a recommendation in 1991, as did the Constitutional Review Group and the Joint Committee on the Constitution, of which I am a member, in 2008. The Minister has argued that the joint committee did not say the provision in question should be removed now, but I remind him that it recommended in its report that it should be removed, essentially, when the next pragmatic opportunity arises. Such opportunities present themselves from time to time. This technical constitutional provision, which is antiquated and anachronistic, could be dealt with on 2 October when the people vote in the second Lisbon treaty referendum. It is absolutely clear that the members of the Oireachtas committee intended for this provision to be removed from the Constitution. The problem that arose in the case of Corwayv. Independent Newspapers, which has been mentioned by the Minister, was that the offence in question had not been defined. The court pointed out that it was a matter for the Oireachtas, rather than the courts, to define the offence. That is the issue.

This offence was abolished in the United Kingdom following the 2007 case of Greenv. City of Westminster. The claim of blasphemy in that case, which concerned a screening of “Jerry Springer: The Opera”, was rejected. It is worth quoting what the former UK Parliamentary Under-Secretary of State, Baroness Andrews, said in 2008 when she was introducing an amendment to the UK Criminal Justice and Immigration Bill to abolish this offence. She stated:

The Government are of the view that it is now time that Parliament came to a settled conclusion on this matter for two key reasons. First, the law has fallen into disuse and therefore runs the risk of bringing the law as a whole into disrepute. Secondly, we now have new legislation to protect individuals on the grounds of religion and belief.

That issue also arises in the context of this debate. I suggest that the Minister, Deputy Dermot Ahern, is bringing this country's law into disrepute. By his own admission, he has designed this legislation to ensure no prosecution will succeed. While it is clearly intended that no prosecution will ever be brought, he has suggested that there is an obligation to legislate in this specific way to adhere to a constitutional imperative and obligation on the Oireachtas. It is a nonsense from the beginning.

At my request, in May of this year the Oireachtas Library and Research Service prepared a research paper on blasphemy laws in other EU member states. The paper is largely based on a survey of blasphemy laws that was prepared for the Council of Europe when it was producing a report. I refer to the work of the European Commission for Democracy through Law, which is better known as the Venice commission, when it examined member states' legislative provisions dealing with freedom of expression, blasphemy laws and hate speech for the Council of Europe. The survey found that national legislation tends to deal in large measure with freedom to practise religion, statements that might incite hatred or disturb the peace, and discrimination against people on the grounds of religion. In Belgium, it is illegal to desecrate religious objects or interfere with religious observance. There is no offence of blasphemy in France. Article 166 of the German penal code provides that anyone who publicly insults, by acts or published words, the contents or beliefs of a religion in a manner likely to disturb the peace, may be punished by up to three years imprisonment or a fine. Under the Polish penal code offending religious feelings through public calumny of objects or places of worship is outlawed. In Portugal whoever publicly offends another person or mocks him or her on account of religious beliefs commits a criminal offence. The Spanish penal code has similar provisions as regards whoever publicly mocks doctrines or beliefs.

Then we come to the United Nations and what is current practice and thinking on the whole issue of defamation of religions, as very much highlighted in the Danish cartoons case. The report from the Oireachtas Library says that the non-binding resolutions condemning defamation of religion have been adopted by the UN General Assembly and Human Rights Council. A report dated 2 September 2008 by a special rapporteur of the UN's Human Rights Council strongly recommends:

[T]hat the Human Rights Council encourage a shift away from the sociological concept of the defamation of religion towards the legal norm of non-incitement to national, racial or religious hatred, on the basis of the legal provisions laid down in international human rights instruments, in particular articles 18 to 20 of the International Covenant on Civil and Political Rights and article 4 of the International Convention on the Elimination of All Forms of Racial Prejudice.

That is very helpful because the Minister for Foreign Affairs, Deputy Micheál Martin, in that international forum, follows the line I have just outlined and takes a totally different approach from that reflected in the legislation before us. When he was dealing with this issue at the United Nations he stated in a response to a question raised in the Dáil on the matter:

We believe that the concept of the defamation of religion is not consistent with the promotion and protection of human rights [Presumably, because it interferes with freedom of speech]. It can be used to justify arbitrary limitations on, or the denial of, freedom of expression. Indeed, Ireland considers that freedom of expression is a key and inherent element in the manifestation of freedom of thought and conscience and as such is complementary to freedom of religion or belief.

He pointed out that Ireland supported a UN resolution on the elimination of all forms of intolerance and discrimination, based on religion and belief.

The Holy See, at a United Nations meeting in Geneva, pledged its support for the International Covenant on Civil, Cultural and Political Rights as the best protection for religious freedom and as an alternative to prohibiting the defamation of religions. An article inThe Irish Times of 1 May 2009 stated:

At a meeting of the Human Rights Council on All Forms of Intolerance and Discrimination last September, Msgr Silvano Marie Tomasi, the Holy See's permanent observer at the UN, said: "This delegation ... fully supports the reaffirmation, by the Human Rights Council, of the right to freedom of religion, conscience, belief and religious practice ... It concurs also with the advice of the special rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, offered to this council, to refocus its reflection away from the vague sociological concept of ‘defamation of religions' to the juridical norm of non-incitement to national, racial or religious hatred, and to the rights well summed up in the International Covenant on Civil, Cultural and Political Rights."

That is the thinking internationally and those are the views of the Holy See. We now recognise that Article 40 of the Constitution provides that the publication of blasphemous matter is an offence which shall be punishable in accordance with the law. It is true, as the Minister has said, that in the Defamation Act 1961 it is set down as an offence. How do we deal with that? The Minister has said there is no alternative to this legislation.

No, I did not say that. I said there is.

The Minister will have an opportunity——

I said there were three options.

——to respond. The Minister said there were different options and essentially he says there is an obligation——

I do not like being misquoted. That is the problem with much that goes on in this and indeed the other House, where people misquote.

A Chathaoirligh, I ask not to be interrupted. The Minister will have an opportunity to respond.

With due respect, I do not think I should be misquoted.

We can check the record, but the Minister's colleagues are agreeing with me. He has put forward legislation and indicated that this is the only way it can be dealt with. The alternative is to have a referendum on the matter and he does not propose to do that.

Or to drop the Bill altogether.

In a situation where the Minister says there is a constitutional obligation, not just on him but on the Oireachtas, to legislate, then it is not an option to do nothing. He says this is the only realistic approach to take on this. He says there is no alternative. We can look at that alternative because the whole sense and purpose of the issue of blasphemy and the way it is interpreted in other member states of the European Union, in the United Nations and in international law is to the effect that it is the issue of offending, discrimination and incitement to hatred on religious grounds or otherwise. The Corway case provided that what is required is to define the offence. The Minister will say there are limitations on how an offence may be defined. At the same time he purports to frame provisions in a Bill, and I shall just refer to the Minister's exact statement on this in the Dáil, lest I be contradicted. He said the legislation had been drafted and he believed the record showed it was virtually impossible to get a successful prosecution for blasphemy out of it. That is what the Minister purports to do here. It is a nonsense.

However, there is an obligation and it is in the Constitution. If we are not going to have a referendum on the matter, which I believe would be the pragmatic thing to do at the first available opportunity, then we just have to define the nature of the offence of blasphemy. We have latitude in doing that, and it may be done in a manner which reflects modern thinking, the thinking of other member states and the United Nations as well as the thinking which now reflects at least customary international law. We have the Prohibition of Incitement to Racial Religious or National Hatred Act. The Minister has said there is no alternative to the manner in which he can do this. Could we not deal with the definition of the offence in that Act? Hatred is defined in that Act as hatred against a group of persons in the State or elsewhere, on account of,inter alia, their religion. It seems to me that would suffice to define the offence of blasphemy and resolve the issues of defining the offence and complying with the constitutional obligation to have it as an offence. In defining it in that manner, we do not have to create an offence which is a complete nonsense in present day terms. On top of that it is highly dangerous because in its formulation it raises a host of issues. Apart from the definition of the offence, we are now defining religion. We will have litigation about what constitutes a religion. It:

does not include an organisation or cult——

(a) the principal object of which is the making of profit, or

(b) that employs oppressive psychological manipulation——

(i) of its followers, or

(ii) for the purpose of gaining new followers.

Where are we going with this? It is opening a vista of litigation and confrontation on issues pertaining to religion which we do not want to contemplate.

There is an easier alternative. It is a reflection of the manner in which the Minister adopts an approach and doggedly pursues it, entertaining no alternative, variation or nuanced thinking on how problems can be resolved in the legislative field. Lateral thinking such as this, defining blasphemy in a way that reflects in essence the purpose today of dealing with such issues, that it is essentially offending people and is a form of discrimination, disturbing the peace and unsettling people by offending followers of a particular religion or segments of the community, allows us to deal with this in a pragmatic, professional and progressive manner.

We live in a multi-religion society. We know the issues and sensitivities regarding the Danish cartoons and the Muslim religion. This raises all these issues again. We have grown out of and changed our Constitution regarding the preference given to the Christian and Roman Catholic religion. To reintroduce this type of provision is such a step backwards. For the Minister to tell this House there is no alternative to doing it this way is incorrect, a bad political decision and is legally flawed. I have suggested an alternative approach. On that basis I have submitted an amendment to delete these provisions from the Bill.

I second Senator's amendment to delete the Minister's amendments and express my very strong opposition to them. I will first respond to a couple of technical points the Minister made. He said he envisages no prosecution would be taken without the DPP's approval. I am surprised there is no provision in the proposed new sections that no prosecution may take place without the DPP's consent. I was going to raise this. The Minister will be well aware of the formula used, for example, in the offence of marital rape and a number of other offences where some sort of public policy issue is at stake. That would have been a sensible insertion into this section.

During the Minister's speech I made a point of order on his comment that he envisages that this offence would be tried in the High Court. I presume he means the High Court in its criminal jurisdiction of the Central Criminal Court. I expressed surprise at that, not because I am necessarily in opposition to that.

I think Senator Bacik has a telephone ringing and it is not good enough that anybody leaves a telephone turned on in the Chamber. I ask people to leave telephones off and respect the staff who have to listen to telephones ringing.

There is a telephone around the front of the Chamber.

It can be anywhere. I am not saying who has it but telephones are not allowed to ring here when there is business on.

I have no telephone ringing, but I thank the Chair. The Minister said he would prefer not to see this offence tried in the Circuit Court and I hope I am not——

I was just making a point about the mobile telephone.

I presume the Minister was making the same point I was, denying responsibility.

Given the job I have I require to be in 24-7 contact with the Garda. I have already asked Clerk of the Dáil to give me an exemption on the use of my mobile telephone.

Nobody was seeking to attribute blame for the mobile telephone to the Minister.

There could be blasphemers needing to be arrested even as we speak.

If I may have the Minister's attention, I wanted to ask again about the jurisdiction of the court dealing with the proposed offence. The Minister said he envisaged it would be the High Court, that would be the Central Criminal Court, and that he did not envisage it would be in the Circuit Court, if I heard him correctly. The stipulation that the fine would not exceed €25,000 is not enough to confer jurisdiction on the High Court because the Circuit Court has jurisdiction to impose unlimited fines in criminal matters. It would require some express provision to ensure these trials would proceed in the Central Criminal Court, as was provided for when rape trials were moved to the Central Criminal Court following the Rape (Amendment) Act 1990. I wanted to clarify that with the Minister.

I want to address the substance of these provisions and express my strong opposition to the statutory definition of the offence of blasphemy. I do not say the Minister is creating a new offence of blasphemy. I accept he seeks to insert a statutory definition of a common law offence that is also stated in the Constitution. Looking at the Corway judgment I do not accept that it is necessary to pass this legislation to give statutory definition of this sort. The Corway judgment was given almost exactly ten years ago, on 30 July 1999, by the Supreme Court. To suggest there is any urgency or imperative about doing this now rings somewhat hollow when there has been a ten-year lapse.

Mr. Justice Donal Barrington for the court, in the critical passage in his judgment, said, "In this state of the law and in the absence of any legislative definition of the constitutional offence of blasphemy, it is impossible to say of what the offence of blasphemy consists". He went on to say, "In the absence of legislation and in the present uncertain state of the law the court could not see its way to authorising the institution of a criminal prosecution for blasphemy against the respondents". The effect of the judgment is to make the offence unworkable.

Mr. Justice Barrington did not find section 13 of the Defamation Act repugnant to the Constitution so there was no imperative to enact a new definition, as the Minister has suggested, just because we are reforming the Defamation Act. The court simply said it was too vague for the court to be able to authorise the institution of a prosecution. The subtext is interesting because the court clearly suggested the crime of blasphemy is outdated. In the previous page of his judgment Mr. Justice Barrington said, "It would appear that the Legislature has not adverted to the problem of adapting the common law crime of blasphemy to the circumstances of a modern State which embraces citizens of many different religions and which guarantees freedom of conscience and a free profession and practice of religion". The court was suggesting the Legislature should adapt the common law crime of blasphemy which, as we know, has changed many times over the years.

To suggest there is only one possible way of defining blasphemy is wrong. The original definition of blasphemy related only to the Christian religion and any challenge to the fundamentals of Christianity was blasphemy. That changed over the years as different clerics were prosecuted for challenging tenets of other branches of Christianity. The definition has changed. As Senator Regan said, the most appropriate way to adapt the offence of blasphemy to today's world, if we accept that some sort of statutory definition might be required, would be to amend the Prohibition of Incitement to Hatred Act. That amendment should have been inserted here instead of the amendments proposed by the Minister in the new sections 35 and 36. That would have been a far more appropriate approach and I would be grateful if he would outline why that approach was not taken. Clearly thestatus quo could have been preserved in some other manner given that it has been preserved for the past ten years. The Minister has said that the section 13 offence could not have been repealed at this point. The Government could have given a commitment to amend the Constitution to remove the reference to the crime of blasphemy if not at the time of holding the referendum on the Lisbon treaty at some future date. That is in line with all recommendations of previous groups, in particular the Law Reform Commission.

I am grateful for the Minister's comment — I hope I am not misquoting him — that the most optimal approach would be to abolish the offence of blasphemy by removing it from the Constitution. However, what he has done here is the worst of all possible worlds. He proposes to include a new definition of blasphemy based very much on the old law on blasphemy, in which there has not been a successful prosecution for more than 150 years. He proposed to base the definition on the 19th century understanding of blasphemy without seeking to adapt it as the Supreme Court has suggested to the circumstances of a modern state. Perhaps I will await the Minister's attention again.

It is not up to Senator Walsh to direct the House; it is up to the Cathaoirleach.

We will have no comments across the floor from anyone.

That is a little constitutional point for Senator Walsh's delectation.

I am grateful to Senator Norris for clarifying constitutional points.

A point of etiquette.

And points of etiquette, especially when it is against Senator Walsh.

In that case it is a waste of time.

Please, Senators.

What the Minister is doing is the worst of all possible worlds. He is basing the new statutory definition on the old understanding of blasphemy from the 19th century, and including within the definition words and phrases that remain so vague as to render the new offence effectively unenforceable. Indeed I believe the Minister has said his intention is to make it virtually impossible to get a successful prosecution. It seems this stated intention undermines the entire point of introducing a new definition. While it is clearly welcome that no prison sentence is imposed, the fine is ludicrously high. We have not yet mentioned the proposed section 36. The powers of the Garda of entry by reasonable force if necessary and the seizure of copies of statements, etc., and the fine make it a draconian offence. However, it is still so vague in the terms used as to make it very difficult to see how any prosecutions could ensue and yet the danger is that they will ensue.

The Bill provides that persons who publish "matter that is grossly abusive or insulting in relation to matters held sacred by any religion" may be prosecuted for blasphemy. The concept of "matter that is grossly abusive or insulting" is extremely subjective and very vague. The Bill provides that it must thereby cause "outrage among a substantial number of the adherents of that religion". However, with the proliferation of the Internet we know how quickly substantial numbers of people might be offended and feel grossly abused or insulted.

I know. I do not know if I ever received as many e-mails on any other issue in my political career as I did on this.

I am glad the Minister pointed that out.

They showed outrage. They were all outraged.

They were all from the same sources.

There is considerable anger out there.

Senator Bacik only, please.

People justifiably feel outraged at the proposal to introduce the new statutory definition because they are rightly concerned that satirical matters, like the "Father Ted" series that poke fun at religion will now be subject to criminalisation. That is the fear.

Down with that sort of legislation.

I could not have put it better. I believe "Careful now" is the other phrase from "Father Ted". That is a matter of very serious concern.

And "Lovely girls".

I hope Senator Mullen was not accusing me of being a lovely girl, because that is something I would find grossly abusive or insulting.

It came from Senator Hannigan.

We are dealing with group 5 of amendments.

That is a compliment.

I know, but I could institute a prosecution.

I am sorry, but the Senator is not a goddess.

We are on group 5 now.

The definition of religion is very broad in its terms, which might make it easier for a prosecution to be instituted. The definition of religion in section 36(4) states what it does not include as follows:

(4) In this section "religion" does not include an organisation or cult—

(a) the principal object of which is the making of profit, or

(b) that employs oppressive psychological manipulation—

(i) of its followers, or

(ii) for the purpose of gaining new followers.

It clearly leaves wide open the possibility of all sorts of groupings of persons——

My recollection is that that was inserted to assuage the Labour Party.

Most people who have been contacting us have been opposing the idea of the blasphemy offence at all. Where we look at the definition of religion, the problem is that it is still too vague and leaves wide open the possibility of what I would describe as cranks. The danger is that it becomes a cranks' charter. The Minister has said he hopes the State will not proceed and that prosecutions will not ensue by the State. However, we should remember that the Corway case was not a prosecution taken by the DPP, but a case taken against Independent Newspapers——

That is why there is a change in law so that it will be on indictment.

——by an individual who took offence at a satirical cartoon that he claimed caused offence to the Eucharist. There are cranks in all sorts of religions.

No interruptions, please.

Anyone who has any regard for the history of censorship in Ireland will recognise a long history of repression in the name of religion. For a long time institutions such as the Magdalene laundries symbolised the sexual repression of women in particular in the name of religion and in the name of the domination in this society by the Catholic Church in particular. Anyone with regard for that would be very wary of the creation of a new statutory definition for an offence that seems to give this sort of elevated position to adherence to a religion to persons who may feel grossly abused or insulted in all sorts of ways in all sorts of satirical and political commentary and publications. That is the real concern. The Minister may have in effect said he does not want this to be a workable offence, but the reality is that by creating a statutory definition he is making an offence that will potentially be used against people. We will see a great deal of Garda time wasted if nothing else because cranks will come forward making complaints that they feel grossly abused or insulted by satirical matters.

I am very grateful to a new organisation, Atheist Ireland, which has made various comments about the legislation and has rightly criticised it as being both silly and dangerous in effectively reviving a medieval crime in a modern pluralist republic. It is quite right in that. When one considers the history of the blasphemy offence, that is what we are doing. We are changing thestatus quo of an unworkable offence. All the expert groups recognise it should be removed from the Constitution. We are actually making it more workable by placing a statutory definition in a modern law without considering ways to adapt it, particularly through the Prohibition of Incitement to Hatred Act in a way that would be much more appropriate to the needs of a modern pluralist state. The law will become absurd in practice. We will see groups rightly seeking to challenge the definitions etc. A great deal of time will be wasted in seeking to enforce it.

The writers of "Father Ted" and others have come out against it. Various people have pointed out different absurdities in it. This morning I suggested that Fr. Willie Russell from Rathkeale, County Limerick, who criticised those in his parish who appeared to be worshipping a tree because it took on the appearance, in their eyes, of the Blessed Virgin Mary, could be open to a charge of blasphemy because he said one cannot worship a tree. He was very critical — and perhaps insulting — of those who believe one could worship a tree. I urge the Minister at this late stage to accept Senator Regan's amendment and to delete these provisions which are silly and dangerous.

Apparently I come from a party of tree worshippers.

I believe "tree huggers" is the usual phrase.

The offence of blasphemy is archaic. It is borne out of a jurisprudence which saw the development of events in an era where church and State were seen as a single entity. It is an offence that should be made obsolete and has been made so in other jurisdictions. It cannot be confused with the right of people to believe and to have that right respected. The difficulty in continuing to legislate in regard to an offence of blasphemy is that it is open to all sorts of reinterpretations and may be used for purposes that might not be the reasons for which those with strong religious beliefs would wish to see such an offence enshrined in legislation.

The concept of blasphemy was brilliantly satirised by Monty Python in the film "Life of Brian" where a Pharisee was unintentionally stoned to death for repeatedly, although unwittingly, saying the word "Jehovah". Much of the debate on this issue is a political equivalent of repeatedly saying the word "Jehovah". It is something we need to get out of our political system as soon possible.

I accept this Bill is a development of something that is included Bunreacht na hÉireann and that subsequently will be included in legislation. The advice of the Attorney General is that because of the amending of the 1961 Act, it is necessary to have a clear offence in this legislation as regards the current provision in the Constitution. Therefore, such provision is necessary in this legislation, although ultimately and in the short term the question of having such provision in the Constitution must be addressed.

As a member of the Oireachtas Committee on the Constitution, of which Senator Regan is also a member, I accepted the committee's findings in this respect. The Minister pointed out that in the short term the committee recommended that the change does not occur, but in the medium and long term its members are of one mind that it must occur. It is also the view of the committee that legislation of any form in regard to this offence cannot work. It would be inoperable. Not only did we see that in regard to how the offence has been defined in this jurisdiction and how it has been subsequently brought before our courts, but Senator Regan has quoted the City of Westminster case in England, and other legal advice given to the Oireachtas committee included how other blasphemy laws, for instance those in Austria, have not been seen to work. On that ground, we need to examine how we address this issue in the medium term.

The original amendment, which more strongly defined the offence and offered no defence on any grounds, was not an amendment I could or would support. The subsequent amendment that outlines grounds of literary, artistic, scientific, political or academic defence makes a nonsense of the offence but it is an offence that is a nonsense. I am prepared to accept that particular amendment nullifies the existence of blasphemy even though it is codified in our system.

To move forward from here, we need to address the wider issue. This measure is nothing but a legalistic repair job in regard to a short term political expedient. We need to examine the wider constitutional issue.

Is that a Government commitment to introduce a referendum on this issue?

The Senator is not allowed to interrupt.

I am giving my view on these amendments and how I would like to progress this issue.

Will the Senator insert that in a revised programme for Government?

No interruptions, please.

Members can take that whatever way they like. Ultimately, while I accept the reasons this is being done in this way, the effect of it will be that we will codify an offence that most people do not believe in on grounds that people will not be able to bring actions and even if they were able to do so, it is unlikely there would be prosecutions on foot of such actions. That makes a nonsense of our process of defining laws. I will be supporting the amendments. I will also be supporting the Bill, but I put down a clear marker that for me and my party this is not an issue that we can avoid and it must be dealt with in the medium term.

Like Senator Boyle, I believe this is progressive legislation, but I do not accept that the way in which it has been proposed to deal with it is the correct way forward. I would like to know the motivation for introducing it now. It is more than ten years since it was first called for. The Minister mentioned that he has received many representations from people who are against the proposal. Has he received many representations from individuals who are in favour of it? If so, I would be delighted to know what is their reasoning in respect of it. I am not talking about organisations or court judgments, but individuals who are calling for the Minister to proceed with the legislation in the manner in which he is doing so.

I agree with Senator Bacik that there are problems in regard to the definition of blasphemy. The phrase "grossly abusive" is cited in the legislation. How do we define what is grossly abusive? That is not clearly set out . Another phase included in it is that of a substantial number of people being outraged, but what number constitutes a substantial number? Is it 20 people? If there are 20 people in the Gallery, that is a substantial number. Is a substantial number 100 or 1,000 people? We need that clarified.

In regard to the defence against prosecution, if a defendant can prove that a reasonable person would find genuine literary, artistic, political, scientific or academic values, that would constitute a defence, but who is a reasonable person? What is reasonable to one person is clearly not reasonable to another. There are too many woolly phrases in the legislation and that is a cause for concern. A consequence of that is that people will challenge this legislation. They will go to court. They will put themselves in a position that they can be brought to court.

I am aware the Minister has received a letter on this issue because it was sent to him byMr. Jonathan Pierson and copied to me. The Minister will probably have this in his in tray. Mr. Pierson wrote, "It would not surprise me to find a considerable number of citizens putting their names to a blasphemous statement the day that this Bill is enacted to show that such a provision in our legislation is nothing but a farce". He concludes, "I know that I would be one of the first to sign such a statement". If this legislation is enacted, we will have a mess on our hands. We will end up going to the courts on a ridiculous journey because we all know that this legislation is not needed. The Minister would agree that the best way forward is a constitutional amendment.

The Minister made a point about not wanting to go into O'Hanlon Park to try to win the referendum on the Lisbon treaty at the same time as trying to win a constitutional amendment on this issue. I can see his point. I am not convinced that there is need for us to rush to have a constitutional amendment on this issue this year. If such a referendum is not held at the time of the referendum on the Lisbon treaty, a constitutional amendment on children might be held. We will debate the Bill on the Lisbon treaty referendum this afternoon and it will be 28th amendment of the Constitution in the past 70 or 80 years. A referendum is held every two and half to three years. If there is not a referendum on this issue at the time of the referendum on the Lisbon treaty, it is likely a referendum will be held in the next two or three years. The Presidential election will be held in 2011. There will be plenty of occasions within the next three years when we could put a constitutional amendment on this issue to the people without going to the expense of having a referendum purely on this issue. I caution the Minister in this respect. We have waited long enough for this and we can afford to wait two or three years because there will be other opportunities shortly where a referendum on this issue could be put to the people.

I will wait to give the Minister a chance to hear my pearls of wisdom. Creidim go bhfuil botún déanta ag an Aire. Tá sé tar éis cosanta a thabhairt do chreideamh nach raibh siad ag siúl leis ach theip air an chosaint atá de dhíth orthu a chur isteach sa leasú atá sé ag cur leis an reachtaíocht.

The Minister has made a mistake in extending to religions a protection of sorts that they never sought but in doing so he has denied them a protection that they would need. I will explain what I mean. I would not have ever felt it was necessary to bring forward this section in the legislation, but I have been and am persuaded by the Minister's essential argument which is that there is a gap, that the Constitution provides for the offence of blasphemy and that the Minister is giving expression to that in circumstances where in the Corway case it was held that there was no definition in law to give effect to that. The Minister has filled the vacuum. He has probably done so pretty cleverly and sensibly by largely restricting the circumstances in which a person could be prosecuted for blasphemy. I note what the Minister has said. For example, by requiring that the conviction would take place on indictment he seals off the possibility that vexatious or excessively cranky litigants might seek to invoke that section against people they believe to have uttered a blasphemous matter.

I also accept that by introducing the issue of intentionality, the Minister has established a high threshold for a prosecution to meet. In defining what blasphemy is the Minister has redefined it dramatically from anything that it could ever have been interpreted to mean previously. I find very persuasive comments that have been made in the past, possibly by Senator Norris and others, on the difficulty of defining what is offensive to God. One man's meat is another man's poison and I suspect the same may be true for deities. Clearly, if blasphemy were to be understood as giving offence to God it would be completely unworkable in modern legislation. First, because people of different faiths and religions have different concepts about the ultimate questions of life, its meaning and the origin and destiny of human existence and, second, because of the major importance in any civilised society of freedom of conscience. It is on the issues that are most dear to us, what we believe about the origin and destiny of our lives and the purpose of our existence, that people must have maximum freedom of expression.

For those two reasons it seems to me that it would be inappropriate to have any crime of blasphemy, were that to mean a person could be prosecuted for saying something that was offensive to God in that traditional understanding of what blasphemy means. Let us examine what the Minister has done. In effect, he has given a definition to blasphemy that largely works. Whether it is necessary or desirable are separate questions. To some degree it is desirable, on balance, provided that it is something that requires a very high threshold for prosecution and that it would only ever be used sparingly. Perhaps the most common answer to what is the role of law is that of a teacher, where the law seeks to educate and bring about certain kinds of behaviour by what it provides theoretically rather than for what might be prosecuted in practice.

What I mean by that is that the Minister has provided that a person would be guilty of blasphemy were he or she to publish or utter a matter that is grossly abusive. There is a high threshold to be met in that the matter must be grossly abusive or insulting in matters held sacred by any religion. That is good because it is inclusive. The Minister does not seek to give preference to any established religious view and he also takes care in a later part of the proposed section to exclude forms or expressions of religion that in the views of most reasonable people would be undesirable, namely, a profit-making enterprise or religions or cults that are engaged in oppressive psychological manipulation. The Minister has been careful and he deserves credit for that. He has required that the matter must be grossly abusive or insulting and there is that inclusivity to put it in layperson's terms that the matter has to relate to matters held sacred by any "respectable religion".

The further requirement is that a matter must cause outrage among a substantial number of adherents. The significant point is that the Minister has created the requirement of intentionality; that the person must intend to be grossly abusive in matters held sacred by a religion and in so being causes outrage. There has to be that degree of intention, which it seems to me would be very difficult to prove. For that reason I disagree strongly with Senator Bacik who suggested that in the context of there not having been a prosecution for blasphemy in more than 100 years, this would somehow open the door, both because of the fact that the Minister requires the prosecution to be brought on indictment, which takes the private prosecution possibility out of the equation, and that he further creates the high threshold of that intention to cause outrage in matters held sacred by any religion by a substantial number of adherents. That is a clever approach. It is sensible and it respects the Constitution.

I note that the Minister has been at pains to express his own strong intellectual and political detachment from any notion that some kind of prosecution for blasphemy might ever be desirable. Whether he is right or wrong about that is another matter, but he rightly expressed the fact that there is a provision for this measure in the Constitution and that it should somehow be expressed in legislation. I agree with that.

The Minister is correct to not submit the matter to the people in a referendum on the question of whether there ought to be an offence of blasphemy under the Constitution. There are two reasons for that. The example of O'Hanlon Park has to do with one of them. It would be a bad idea if one were to present a blasphemy amendment together with the amendment on the Lisbon treaty. The late Pope Pius IX, who was famously known as Pio Nono, was possibly well capable of putting people into prison for blasphemy, despite his sanctity, being a 19th century pope. "No, no" might be the exact response one would get were one to submit two such amendments to the people in a referendum. Whether I am right or wrong in that is academic.

There is a second reason the Minister is correct in not seeking to propose the deletion of the offence of blasphemy from the Constitution. It is that in some limited way it makes sense to have the offence of blasphemy. The reason is that we have no problem with legislation that protects people from the utterances of others. For example, as has been said we have it in the incitement to hatred legislation. There are other examples as well. Perhaps the example of incitement to hatred gives us the best insight into how in a modern context it is sometimes necessary and desirable to have some limitations on freedom of speech because of the harm that can be done to others. That can apply in some situations to blasphemy, where a person intends to cause outrage among a substantial number of people in matters that they hold sacred. It is possible to conceive of that being damaging to the social order and offensive to the common good.

Given that it is a criminal legislative provision that could only be invoked in the most narrow and restrictive of circumstances, as the Minister has drafted and proposed it, there is no harm in its being in existence because it might act as an educator in terms of how we should treat others in society, and how we should treat the deeply held beliefs of other people. Whether we are religious believers ourselves is not the point. The point is how we should treat others. I strongly subscribe to freedom of speech but I also strongly subscribe to the notion that freedom of speech itself can be subject to limitations in certain circumstances in order to protect a higher good.

It is interesting to note what the European Convention on Human Rights has to say. It states:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

Clearly, the freedom of expression is understood primarily in a political sense; the freedom to hold opinions, to receive and impart information and ideas. Ideas in this regard perhaps connotes that which goes beyond the political and the serious and contemplates protection for comic or satirical ideas. We all agree that in general terms there must be freedom of the expression of such ideas, be they serious or not.

The second part of Article 10 deals with limitations. It states that the exercise of these freedoms, as it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of the rights of others, for preventing the disclosure of information received in confidence or for the maintenance of the authority and impartiality of the Judiciary. The rights of others is included as providing the context for a possible limitation on freedom of expression. This is where I believe there is justification for a limited provision for the offence of blasphemy which could in certain very limited circumstances be prosecuted. However, this must be done in a manner that protects people's need to express themselves fully in matters of deep importance to them or of great relevance to the common good. For this reason, I want to focus in particular on subsection (3).

Subsection (2)(b) creates a very high threshold to be reached in that it provides that a person must intend by the publication or utterance of the matter concerned to cause outrage. The Minister, for some reason, continues to believe there may be a problem in this area. In my initial consideration of the matter, I felt the Minister had set a high threshold in that a person would have to intend to cause outrage in which circumstances prosecution might be appropriate. Why then did the Minister feel it necessary to create a further bulwark against prosecution? It appears from subsection (3) that regardless of the intention to cause outrage, one shall not be liable to proceedings for an offence under this subsection if one can prove that a reasonable person would find genuine literary, artistic, political, scientific or academic value in the matter to which the offence relates.

There are three possible reasons the Minister believed it necessary to add that subsection: to placate public opinion led, interestingly, by the media on this issue, which is fair enough and does not mean in itself that this is not a desirable addition, and to protect people even where they intend by the publication or utterance of the matter to cause outrage. Perhaps the Minister's reason for doing this is that sometimes the intent of an expression of a genuine literary, artistic, political, scientific or academic view is to give offence in terms of provoking debate on an issue which is held to be important. Perhaps, however, there is another reason for this. Perhaps the Minister is taking the traditional legal view that a person shall be deemed to intend the natural and probable consequences of their actions. In other words, if he or she did not intend to offend the Muslim community in what was said about the prophet Mohammed, the fact that he or she knew the Muslim community might take offence and that a substantial number of people would be outraged in a matter sacred to them would comply with the requirement for intentionality. Perhaps that is the reason for the inclusion of subsection (3). While I agree with the inclusion of that subsection, I believe the Minister has made a mistake and I ask that he accept an amendment in that regard. I seek the guidance of the Cathaoirleach on this matter. I note it is open to me to propose a verbal amendment on Fifth Stage.

For whatever reason the Minister has deemed it necessary to buttress the requirement of intentionality with further protection where people can show that a reasonable person would find genuine literary, artistic, political, scientific or academic value in the matter which is alleged to be blasphemous. Unaccountably, however, the Minister has omitted the possibility that a reasonable person would find genuine religious value in the matter to which the offence relates. Here lies the great irony: in legislation which is designed to offer some protection to people of whatever faith, the Minister has included a bulwark against that protection to every category imaginable except the person of faith, despite the fact that it is most likely to be in matters of religion, through utterances of people of religion, including ministers or officials of religion, that the offence might be given. Let us take for example the Reverend Ian Paisley, who I am sure would have no problem saying the Catholic doctrine of the real presence is nonsense on stilts. While that may not be the most sympathetic example, given Reverend Paisley's particular personality, there is no protection for him in this legislation although there should be. If the Minister is offering protection to Mr. Richard Dawkins who in his artistic work of literary merit knocks the socks off the belief of papists, Muslims, Buddhists or anybody else who holds some class deity in high esteem, he should then extend the same protection to a minister of religion. It is in debates between religions that controversy is most likely to arise.

What I find hard to understand is this. The former Taoiseach, Deputy Bertie Ahern, established a forum for dialogue between the State and religious and ethical bodies, including non-confessional bodies such as the Humanist Association. It appears that there is no evidence of dialogue here. There is no evidence that the sensitivities of religious people, who might want to express religious views that may cause offence to others, are in any way considered here. The legislation as it stands exemplifies in a classic way the anti-religious dimension that forms part of aggressive secularism which often arises in our society, namely, that there is to be protection for every group except those with faith. That is intolerance, not tolerance, and it must be addressed. The Minister is sending out the message that all sorts of groups may enjoy protection against prosecution for blasphemy — ironically the section introducing that is supposed to in some way offer protection to communities of faith — but the people who are excluded from that protection are communities of faith. Sin botún a Aire. Níl aon fhocal eile dó, sin botún.

There has been much criticism of the Minister, some of it perhaps unfair, for being firm in terms of not accepting amendments and there has been some criticism of the Minister which I must confess is fair in terms of the amount of legislation rushed through this House in recent days resulting in our not having an opportunity to give it the scrutiny it deserves, thus vindicating our role as the Seanad. However, I understand there are times when legislation must be enacted quickly. For the Government to act with credibility in that regard it needs to be able to own up to a mistake when it makes one. A mistake has been made here, a mistake that will cause offence to people of faith of different religions and denominations. The Minister has correctly provided that a reasonable person would have to show that he or she could find genuine literary, artistic, political, scientific or academic value in the matter alleged to have caused offence. The reasonable person does not have to believe in the concept, he just must see genuine merit in it. I could say I did not like a particular episode of "Father Ted" but it has genuine artistic value.

The problem is that there are religious concepts and matters of controversy between religions where one cannot claim the necessary protection — I say this as someone who worked for five and a half years as press officer for the Catholic diocese of Dublin so I know a little about what I am saying — because one does not come under the heading of having literary, artistic, political, scientific or academic merit.

The Minister is rightly tabling these amendments to allay fears that this anti-blasphemy legislation would be used in a way that would be oppressive of the free expression of ideas. I applaud him for that. An American writer described anti-Catholicism as the last acceptable prejudice but we are not talking about that here because this applies not only to Catholics. We must not make the mistake of thinking that the only people who are not entitled to protection in society are people with religious views. That is what will happen when we extend a protection for free speech for people who produce material or express ideas in which a person might find genuine literary, artistic, political, scientific or academic merit while excluding the possibility of there being a religious value.

A person does not have to share a view to see it could have religious value. If I want to cause a debate as a religious commentator or polemicist and I say that what the prophet Mohammed said in the Koran is not conducive to the common good because it could be read in a violent way, I need protection in the expression of that view although it is not a political view. If I say that the Koran leads people away from God, that is a religious view, it is not political, scientific, academic or literary but the protection is still deserved.

The Danish cartoons controversy offers an example of the sorts of problems this section will bring about if it is left unamended. During that controversy the assertion was made that some sections of Islam regard it as blasphemy to depict the prophet Mohammed. If that view was to enjoy the protection of the law it would be excessive. Imagine a history teacher who produces a book illustrating the history of religions and just as he might try to illustrate Jesus Christ, he might try to illustrate Mohammed, in a respectful way but depicting him nonetheless. Mohammed belongs to all of us if he is a historical figure. He is part of the human heritage and, as such, a person producing a history book for children is entitled to depict him and must enjoy the protection of the law in so doing.

Suppose it is not an academic publication, suppose it is for Sunday school. In those circumstances that person might not enjoy protection because he can foresee the depiction of the prophet will cause offence and therefore he may be held to intend it. The Minister must protect the person who wants to express a view that is purely religious, uttered in good faith, not desiring in an aggressive way to be offensive but intending to be offensive in that he understands that the natural and probable consequences of his action in expressing the idea is that it will give offence. Given that the Minister requires a section to give further strength to the limitation entailed in subsection (2)(b), if he is a reasonable man, he must extend this protection to ministers of religion if he is going to give it to other sections of society. Otherwise the Minister will also be guilty of aggressive secularism.

Does Senator Mullen ever use the word "secularism" without placing the word "aggressive" in front of it?

I am using that phrase because it was popularised by the former Taoiseach, Deputy Bertie Ahern, who referred to "aggressive secularism" as part of a doctrinaire anti-religious approach that informed certain political views within society.

He was a very holy person, as we all know, a very ethical man, although not very good with money, as far as I remember.

I am reminded of the phrase "Let him who is without sin cast the first stone".

I am terrible with money and I am not great with the auld ethics either.

That is why I do not throw stones, I have too many sins. That is why I use the phrase "aggressive secularism", because there is a tendency in legislation to fail to vindicate——

The Senator has chased the Minister from the House.

It is nothing personal.

The Minister of State has not had the benefit of hearing my lengthy contribution.

I heard it in my office. Everyone is listening to the Senator.

I pity them all the more. I ask the Minister of State to give serious consideration to making the necessary change here, otherwise I will introduce an amendment on Fifth Stage.

I regret that the Minister for Justice, Equality and Law Reform has been driven into retreat but I welcome the Minister of State to the House.

This is a matter of the freedom of speech. One of the principal motivators of artists over the years has beenpour épater les bourgeois, to shock the middle classes. That is a very worthy aim. On introducing the amendment referred to by Senator Mullen, I completely oppose that, not that I am an atheist or a militantly aggressive secularist but because I am very familiar with God. He is a nice old Jewish gentleman with a long, white beard. I frequently converse with him and I find our conversations extraordinarily interesting. In view of his extreme age, however, I would be concerned that he might be the victim of friendly fire if there was an outbreak of bible throwing between different religious sects. Who knows what might happen? I am concerned for the preservation of the welfare of this elderly gentleman.

Or woman, but generally speaking the one I speak to is a gentleman.

The Senator is being sexist.

That is the tradition and the history of Senator Mullen's own sect.

Senator Norris is out of date theologically.

The Minister spoke about the urgent necessity for fixing this because there had been a case some time ago on blasphemy that was rather unusual and unlikely to be repeated. I do not believe the judges in that case directed the Oireachtas to make the changes the Minister is talking about. Even if they did, it is clear from a study of the record that this and many other Ministers have blithely ignored clear instructions from the High Court and the Supreme Court that legislation ought to be looked at and introduced to filllacunae in the law. If I am correct, the X case is a glaring example of that but it is a hot potato and they do not want to touch it so they retreated into this notion of blasphemy.

There is such a thing as blasphemy, as I said on the Order of Business. Blasphemy was outlined by Mr. Michael O'Brien, when he talked about the treatment he suffered in an institution where he was beaten and raped and the next day the host was placed in his mouth by the same men. That seems to be something that is blasphemous, being in defiance of the decency of God and man. In terms of literature,Ulysses by James Joyce, which was banned, would certainly be considered blasphemous under the terms we have been discussing in the House today. It contains prayers such as “Kidney of Bloom, pray for us” and the entire first section is a black Mass in its form. That would certainly raise some difficulties in terms of the reprinting of Joyce.

Some of this material is very offensive. I am not referring toUlysses but to the kind of thing that occurred in Wexford some months ago — which I spoke out against in the House and on the radio — in which, for purposes of promotion, a disco owner organised the whipping of a partly clad male figure around the disco to the accompaniment of disco music in a reproduction of the Crucifixion. That is deeply offensive and utterly childish and disgusting. On that occasion, public opinion provided the appropriate corrective. That was partly because of comments made in this House, on the radio and by people in the local authority. There is a self-correction mechanism. I am not defending that kind of behaviour, which I think is abhorrent and repellent, but the correct mechanism for dealing with it is the process of public disapproval which can be expressed.

The Minister's heart appears not to be in it. He has said, as I mentioned on the Order of Business the other day, that this law was deliberately framed so that it could not be used. That unquestionably brings the law into disrepute and is the wrong approach. However, I understand it has a long tradition in the Minister's party. It smacks of the Haughey idea of an Irish solution to an Irish problem. I remember saying at that time that the notion of an Irish solution demeaned the Irish people and held them up to ridicule and contempt.

I have been quite close to a blasphemy prosecution. In the 1970s a newspaper with which I had some involvement,Gay News, was successfully prosecuted by Mary Whitehouse on foot of a poem by Professor James Kirkup about the Crucifixion. When I first read the poem myself I found it extremely shocking because it suggested that there was an erotic sexual focus between the figure of Christ on the cross and the Roman legionaries who were guarding him. It certainly caught my attention and disturbed me, but that was what it was intended to do. Nowadays in theology there is considerable discussion on profound issues of the relationship between the erotic and the spiritual and Kirkup’s poem would be seen in that context. It was only a short poem on one page of a newspaper that took up about 20 pages, which was a lifeline for many people here because it contained interesting and useful news about legal advances, social events and so on. The issue was banned in England and we had great difficulty as a result. We had some discussions with the police because after that several editions were impounded, although only one edition had been banned, and the case was eventually appealed. Thus, the issue is not entirely a dead letter.

There is a long tradition of opposition to this form of censorship, which is dangerous in terms of both religious thought and literary experiment. The Earl of Chesterfield, in 1749, in the preface to a pamphlet which reproduced his speech in the House of Lords against the proposed Licensing Act which introduced the requirement for stage performances in the UK to be licensed by the Lord Chamberlain, wrote:

As we trace the genius of a nation by their taste in poetry and music, so by their encouragement of these we may judge of their rise or fall; good authors have never been wanting in happy climes. Barbarism begins her reign by banishing the Muses. Those who have ears to hear, let them hear!

I am grateful to Fintan O'Toole ofThe Irish Times for drawing my attention and that of other members of the public to the fact that it is almost exactly 100 years since the celebrated controversy about a play called “The Shewing-up of Blanco Posnet” by the late George Bernard Shaw. Shaw wrote the play deliberately and fomented a controversy precisely to focus the public’s attention on the issue of censorship, especially as it related to blasphemy. It was refused a licence for performance by the British censor, which was exactly what Shaw wanted. He managed to provoke a parliamentary select committee of inquiry into the matter at which he said, when summoned to appear before it: “I think that the danger of crippling thought, the danger of obstructing the formation of the public mind by specially suppressing such representations is far greater than any real danger there is from such representations.” He continued:

I am not an ordinary playwright in general practice. I am a specialist in immoral and heretical plays. My reputation has been gained by my persistent struggle to force the public to reconsider its morals. In particular, I regard much current morality as to economic and sexual relations as disastrously wrong; and I regard certain doctrines of the Christian religion as understood in England today with abhorrence. I write plays with the deliberate object of converting the nation to my opinions in these matters.

In Britain the play was suppressed. Shaw brought the project to Ireland and submitted it to the Abbey Theatre. Yeats and Lady Gregory took it up with alacrity and the play opened in August 1909, almost 100 years ago.

This is very much like a Second Stage speech.

Well, the Cathaoirleach has just listened to about six of them. I am sure he would not want to censor me because there would be the most ungodly row if that was attempted.

On the amendment, Senator.

I think it was meant as a compliment.

I do apologise, a Chathaoirligh. Thank you so much for your kind remarks. Please shower me with them as much as you can. I am giving clear and historically referenced reasons for my position on this.

The only complaint from the audience about Shaw's play, when shown in the Abbey Theatre, was that it was not half hot enough. No one was actually offended.

There was an interesting piece in theIrish Examiner a while ago whose headline was “Sinister blasphemy law would play into the hands of religious nut cases”. It continued:

If Jesus were in Ireland today, under the new law, wouldn't he be one of its first victims, held in Portlaoise, perhaps, while lawyers debated whether he should be deported to Israel, or the Palestinian Authority, or tried here? Muslims might find their mosques under close inspection, too.

The question raised, which the Minister has not answered, was that of a concrete example of the kind of blasphemy intended to be cured by this law. My colleague, Senator Mullen, provided a couple of examples, which I challenged. The Minister was not present at the time and he might like to be aware of this. I will paraphrase one example and I am sure Senator Mullen will correct me if I am incorrect. He thought there should be a law dealing with somebody who outrageously stood outside a mosque and said something along the lines of the Holocaust being a good thing. That is roughly what was said. The other example he gave was obnoxious treatment of the Host at the Eucharist.

I did not give either of those examples, but they appear persuasive.

They were the ones I remember him giving. Perhaps it was, as I suspected, a malign fantasy as a result of my eating cheese. I made the point at that stage that both of those were dealt with by other laws, for example, those pertaining to conduct likely to provoke a breach of the peace, public disorder or similar. Thus, they are already covered.

In other jurisdictions, of course, blasphemy is much more of a live concept. Quite recently the Pakistani Supreme Court upheld a judgment that only death was the appropriate punishment for blasphemy. The journalist Sayed Pervis Kambaksh received such a sentence last year. He distributed a pamphlet commenting in a critical way on the status of women within Islam. In Sudan a British teacher who was in charge of a school allowed a child to call a teddy bear Mohammed. She got into severe trouble and had to be recused by diplomatic intervention. This is where blasphemy can lead if we are not careful.

Senator Mullen and others raised, at some length and very interestingly, the question of freedom of speech and I wish to talk about it while my secretary is answering her telephone.

Sexist outrage number two today.

Or his telephone.

I thought it was Violet, but it is actually Senator O'Toole.

The preamble to the Universal Declaration of Human Rights states:

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.

Article 19 of it considers freedom of expression as a cornerstone right and something that enables all the other rights to be articulated, protected and exercised, and that the full enjoyment of the right of freedom of expression is to the enjoyment of those rights, but does provide for restrictions.

The restrictions are provided to protect the rights of others and public order, in so far as is necessary for a democratic society. This is the point Senator Mullen made. However, there is a three part test, a point Senator Mullen did not put on the record. For the test to be legitimate, all three parts must be satisfied. A restriction must pursue the legitimate aim it claims to pursue. Therefore, there is no point in writing a pornographically blasphemous novel simply to aggravate people and then pretending it is a work of art. The restriction must also be imposed in a democratic framework by Parliament or pursuant to powers granted by it. The last provision is where a test could be applied to this Bill, and by which it would fail. The restriction must be necessary in a democratic society, and the term "necessary" must be taken quite literally and means the restriction must not be merely useful or reasonable. The Minister suggested the re-introduction of the offence of blasphemy is useful. From his point of view politically it may well be. However, he has certainly demonstrated that it is unnecessary, and for that reason it fails the test of the fundamental document guaranteeing freedom of rights.

There is an obligation with regard to blasphemy laws on all member states and the United Nations to take measures to promote universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language and religion. There is no denial that certain forms of expression can threaten the dignity of targeted individuals and create an environment in which the enjoyment of equality is not possible, which introduced the notion of hate crimes and so on. There is no effective hate crime legislation in this country. I have tried, on several occasions, to initiate it and have never been able to. It might as well not exist and is a dead letter.

Article 19 recognises that reasonable restrictions on freedom of expression may be necessary to prevent advocacy of hatred but are not required to introduce legislation on blasphemy. Several established democracies still have blasphemy provisions on their statute books, but they are rarely, if ever, used. I understand the United Kingdom has recently reversed its legislation. There have only been two prosecutions since 1932 in the UK, one of which I have dealt with already. Norway had its last case in 1936 and Denmark in 1938. Other countries, including Sweden, Spain and the UK, have repealed their blasphemy laws. In the United States, which is frequently used as a persuasive precedent in legal cases in Ireland, the Supreme Court steadfastly strikes down any legislation prohibiting blasphemy for fear that even well-meaning censors would be tempted to favour one religion over another, and because it was not the business of government to suppress real or imagined attacks on particular religious doctrines.

Furthermore, there is absolutely no evidence that the right to freedom of religion is, under international standards, better served or religious ideas protected through blasphemy laws. Under international human rights law freedom of religion, for instance, is not about respecting a religion, but about respecting peoples' right to practice. The practice and not the religion is protected. I agree with that. Do offensive statements threaten the ability of adherents to religion to exercise and express their own beliefs? I do not think so. I do not think it is appropriate to introduce legislation merely to protect the sensitivities of people who might be offended.

Senator Bacik referred to communication from Atheists Ireland. I welcome the presence in the Gallery of the prophet Michael Nugent. I am in receipt of correspondence from him in which he makes a number of very serious points about the problematic behaviour indicated in the Bill regarding outrage and not the expression of a different belief, which is wrong. He makes the point that we should not be incentivising outrage and encouraging people to be outraged, because people will take the slightest hint. Look at Princess Diana's funeral, where people who had no inkling of her human reality were gushing tears.

What about the Joe Duffy show?

One can act as a catalyst for all kinds of odd emotions.

In 2005, Greek courts found a book of cartoons to be blasphemous and issued a European arrest warrant for the Austrian cartoonist who drew them. This point is important because the court issued an international warrant which could only be effected where there is a parallel offence. We are creating a parallel offence in this country. We might be initiating a situation where Irish citizens will be exposed to risk from other courts, which is highly dangerous.

The prophet Michael Nugent is the author of an entirely new religion and expects it to be protected from blasphemy. I regret the absence of the Minister, Deputy Ahern, because he would be very pleased to learn he is at the centre of this new devotion. It is called the "Church of Dermotology" and it believes ice-cream wafers are literally the body of the Minister, Deputy Dermot Ahern, and will issue fatwas against cartoonists who publish cartoons of him. It is a development which is to be very much welcomed.

I have a comment of some substance on the precise wording of amendment No. 29. It reduces the fine to €25,000, which shows a certain degree of nervousness on the part of the Minister. The amendment refers to matter that is grossly abusive or insulting to things held sacred by any religion, thereby causing outrage. Subsection(4) refers to the idea of religion and gives a partial definition of it. In this section religion does not include an organisation or cult, the principle object of which is to make a profit. That covers just about every religion. I am a church-going member of the Church of Ireland, but it is an undeniable fact that churches make profits and it gets worse the closer one gets to the United States of America.

Another point on subsection (4) is that an organisation that employs oppressive psychological manipulation of its followers or for the purpose of gaining new followers is not described as a religion. I would be very concerned about this if I were a member of the majority church. I am not unsympathetic towards it but I am not keen on some of its leaders.

Or its teachings.

Many of its teachings are alright, except for the odd neurosis about sexuality, which it holds in common with all churches and most religions, so I do not condemn it uniquely.

They are all equally wrong.

Exactly. No, no.

Nein, nein. Or even 666. This is a serious point.

Is it related to the amendments?

I want to show where this could lead. I am a great admirer of Fr. Brian D'Arcy. He has done enormously important work as a broadcaster and writer and has held out a lifeline to people whose lives have been fractured by personal circumstances of one kind or another. He is also a man I genuinely admire intensely. Fr. D'Arcy has the courage of his convictions and, in a gentlemanly way, challenged the senior authorities of his own church, including on television, which is extremely courageous. While I do not wish to embroil him in further controversy, he has published a book which I have been reading because I am interviewing him on Monday.

In the book,A Different Journey, Fr. D’Arcy describes his formation in a monastery near Enniskillen as follows:

There wasn't much formal education involved, except perhaps in spiritual practices: how to meditate, be silent and repeat endless rosaries. We memorised the monk's alphabet, which had quotes like, "I am a worm and no man". It was about killing your self-esteem, even though most of us hadn't much of it to kill...

Each of us had five whips about four inches long of this tightly knitted twine with a rope handle long enough to make sure you could beat your backside. After night prayers, three times a week, we went to our rooms and whipped ourselves on the bum for as long as it took to say five Our Fathers, five Hail Marys and five Glorias.

There was, Father D'Arcy writes, hardly any spirituality taught and most of the practices were designed to encourage blind obedience rather than an interior life of genuine holiness. He also describes a notorious case of a novice master telling a novice from a farming background to plant cabbages upside down. While the novice knew it was wrong, he did as he was told out of blind obedience. "Humiliations like that destroyed good young men", Fr. D'Arcy adds.

I do not refer to these passages to be provocative, nor do I wish to insult the Roman Catholic Church. The test of the greatness of the church is that a good and decent man such as Fr. D'Arcy survived these silly, dangerous practices and still does extremely good work. The definition of a cult provided in the legislation exactly coincides with the witness of a continuing priest of the Roman Catholic religion. This is the area into which the Minister is foolishly straying. It is for this reason that I support Senator Regan's amendment to delete the section.

Rather than repeat comments made by previous speakers, I propose examining where the proposal on blasphemy sits within the law, what is its intent and where it came from. I gently correct the Minister on the matter of where the offence of blasphemy stands in the Constitution. While the offence is referred to in the Constitution, it existed before the Constitution was drawn up, yet no one considered it necessary to define it. Were the offence to be removed from the Constitution, blasphemy would remain a common law offence and further legislation would be required to remove it as a common law offence.

This morning, I cited the words of the Archbishop of Dublin and yesterday I quoted the Pope of Rome. The Minister of State will take great pleasure in learning that I propose to quote the founder of his great party, Fianna Fáil. Paul O'Higgins, in an article entitled "Blasphemy in Irish Law", states that de Valera was of the view that no new offence had been created by Article 46.1 of the Constitution and that the provision simply referred to the common law offence. Removing the offence from the Constitution does not, therefore, remove the common law offence of blasphemy.

In light of these facts, why is the Minister going to such great lengths in this matter?Murdoch’s Dictionary of Irish Law states that it is impossible to say of what the offence of blasphemy consists. It also makes the point that the offence could be defined in legislation.

It is illogical to conclude that a constitutional imperative arises in this matter or that constitutional imperatives are something which bring Governments to attention. Imperatives in the Constitution are regularly ignored. The example which comes to mind is the requirement under the Constitution to define minimum standards of education. This refers to the basis of the education system, the rights of parents to educate, the requirements of the law etc. This requirement has been ignored and I understand we have not concluded the business arising from the X case which gave rise to certain requirements.

I do not believe we have.

Even if defining the offence of blasphemy were a constitutional imperative, and I do not accept that is the case, it would not constitute a sufficient reason to support the Minister's logic.

The Minister referred to the Law Reform Commission's report on the crime of libel. The report stated there is no place for the offence of blasphemous libel in a society which respects free speech and recommended that the reference to blasphemy be deleted from the Constitution. It is interesting to note how selective are the views that have been assembled.

A significant point arises to the extent that society must organise itself in an orderly fashion and ensure tolerance does not reach a level that tolerates abuse. How do we order society in such a way as to ensure religious beliefs are respected and people do not go too far in abusing people? A number of steps can be taken to achieve this, the most obvious of which is to seek recourse to the Incitement to Hatred Act 1989. The burden of proof in that legislation relies strongly on intent, which I note also features in this section. Those who were present for debates in the House in 1989 on the Incitement to Hatred Act will recall that the purpose of the legislation was precisely to cover circumstances in which people seek to create hatred against particular groups, including religious groups. This is, therefore, an easy offence to deal with.

A second option is to use the Criminal Justice (Public Order) Act 1994 which makes it an offence in a public place to distribute or display any writing, sign or other representation which is threatening, abusive, insulting or obscene, with intent to provoke a breach of the peace. Given that extant legislation addresses the issue of blasphemy, it is that on which we should focus.

Several speakers referred to the Supreme Court decision in Corwayv. Independent Newspapers. It is clear from this judgment that in the absence of the intention to blaspheme, a prosecution cannot be sustained or proven. The question of intent is all over the place and inserting it in the legislation does not add anything new to the general body of legislation. In that sense, the Incitement to Hatred Act 1989 and Criminal Justice (Public Order) Act 1994 would be much more appropriate vehicles to address this issue than defamation legislation.

I am not certain how the measure on blasphemy will work in practice and to be fair to the Minister and his Department the burden of proof in the section makes its application virtually impossible. I cannot envisage a court finding a case of blasphemy on the basis of this legislation, which is another good reason for removing the section. The worst type of law is that which cannot be implemented. Given the burden of proof required and the inclusion of a wide-ranging defence of literary, artistic, political, scientific or academic value, the legislation will be virtually impossible to implement. I completely support Senator Mullen's argument in that regard. The first time I came face to face with this was in 1977 when I organised a private weekend conference in Belfast which brought together people of different religious and political views. I asked them to speak freely about how they saw each other. I remember Unionists speaking out strongly about how they perceived the Catholic church in dealing with issues such as the Real Presence and the Eucharist, in language which most Catholics would find offensive. It was not intended to offend, it was simply their understanding. It gave me a greater understanding about how pluralism needs to be developed. It shows how people with wrong beliefs can get themselves into areas of blasphemy and it is only one small step to include intent. This is more likely to arise in a religious discussion or argument than in any other case.

I also do not understand how one could make a judgment on what has literary value, which has a high bar in itself. Books are published every day of the week that have no literary value whatever. In addition, articles are published that have no literary value and are not artistic, political, scientific or academic. That is not an exclusive list. Another phrase should be inserted to widen it out. Senator Mullen's point is absolutely correct, that it is more likely to arise in the context of religion with people of different beliefs and faiths in opposition to each other. It needs to be changed in that regard as well, but preferably omitted. In fairness, the quotation from Senator Regan, which I had not heard before, about the Vatican legate speaking at the UN about where this sits in a modern society, allowing for free speech and demanding tolerance, captures exactly what Members on this bench have been saying. This is how society finds its own levels and it does not require legislation to do that.

In his summing up, perhaps the Minister will explain how the question of outrage among a substantial number of adherents would work. For example, somebody who feels a sense of outrage because of something that has been published or some other imagery, may bring the matter to the attention of the Gerda Síochána. I presume the first thing the Garda Síochána must establish is that there is a substantial number of adherents. Probably the first thing that would happen is that the person making the complaint would try to gather as many adherents together who had never seen it before. The complainant would then show it to them thereby extending it beyond wherever it had been before, in order to prove his or her point that there are a substantial number of adherents to the religion who supported the same viewpoint. I think that is nonsensical. It is bound to happen and there is no way of stopping it. In terms of how we use the time of State services, including the Garda Síochána and the courts, this is ridiculous. There is enough legislation to deal with these issues and that is the way we should be looking at it.

Ireland is a republic and Tone's republicanism was founded on the tenet of Catholic, Protestant and dissenter. In modern terms, that translates as a pluralist society where there is space for everybody to engage. In his definition, Newman pointed to tolerance as being the first quality of an educated person. If we put all those things together, we are really talking about a societal matter. We must order and deal with the issues of concern. If we want to ensure that people are not abused in this respect, we should deal with it through incitement to hatred legislation, the Criminal Justice (Public Order) Act, or the common law offence as it currently stands. Judges should be allowed to decide these matters in court. There is no need for all these provisions. Much has been said about the matter and I do not want to take up any more time except to say that Senator Regan's amendment captures it quite well. We should eliminate this offence. If it is to stay in any way, Senator Mullen's amendment should be considered. However, I think we should get rid of it, move on and order our society in a different way.

The Minister has had the opportunity of getting some relief from the drudgery of debate for the past 90 minutes. Unfortunately, the rest of us have had to suffer it here. It is interesting that a topic such as this has taken up so much time and focus. The Minister suggested he had three options for dealing with the issue: dropping the Bill, legislating or holding a referendum. I am sorry he did not take the first option. I am sure that if he were here, Senator Norris would agree for other reasons, that would be a good choice.

Senator O'Toole's last point was an interesting one, that it should have been dealt with under the Incitement to Hatred Acts. Senator Bacik made a similar point in her submission. Blasphemy seems different, however, because incitement to hatred legislation deals with racism, including inciting people against minorities. I am not sure that legislation is relevant or applicable in this instance. It is interesting to hear some of the points being made by Members of the House who are barristers. We must accept that it is a constitutional matter. One Senator said that we should let sleeping dogs lie. Senators Regan and Bacik said that the "Father Ted" television series could be blasphemous. If the content of "Father Ted", which is a very humorous programme, is considered grossly abusive or insulting to religious matters that are held sacred and if the purpose of the programme is to cause outrage to believers, it is certainly news to me. That would not stand up to scrutiny.

I thought Senator O'Toole's contribution was more focused than others. In discussing this matter, we are dealing with respect and tolerance, which should underline anything we do or say. I will come back shortly to what Senator Mullen said because he put the matter in focus. Perhaps respect is lacking in society. It is only when one visits other jurisdictions, such as Asian countries, that one sees there is a real necessity for tolerance and respect in all sorts of ways, because of the density of population. In that regard, one can recognise some of the thrust of our society which is probably not to our benefit. I do not have a fundamental difficulty with the Oireachtas legislating in this area. We legislate in many areas.

Senator Norris referred to the Wexford disco issue and public opinion had the effect of causing that change. It might well be that the outrage in public opinion it engendered meant it was going to be a commercial failure, but I do not think it caused any change in the mindset of people who were prepared to adopt that approach which was offensive to people who believe. On the other hand, they saw it as being commercially advantageous. Let me compare it to the advertisement by Paddy Power, which showed a picture of the Last Supper. I think that kind of thing is unnecessary and gratuitously offensive to people. I am not saying it was designed to insult people. It was designed to exploit and create controversy which engenders the advertising benefits the company is seeking. I do not think that should be allowed in society and it does not matter what religion it offends.

The Danish cartoons have been referred to in the House. There are those who will argue that freedom of expression is valuable in society, and this is a fundamental principle in democracy. However, that this Bill is before us at all means it is not unfettered. Society does not regard it as being unfettered and uncontrolled and we in the Oireachtas do not regard it so either. In fact, those who work in the newspapers have themselves acknowledged it is not uncontrolled. Therefore, it comes back to a balanced view as to how we regulate it. I do not see anything unbalanced in the Bill. Liberals may well disagree with this.

Some people claimed that section 36(3) makes the thing meaningless, but I do not think so. We all remember the controversy about Salman Rushdie's book when there were many objections to it and his life was threatened as a consequence. There must be scope for artistic, scientific and even religious contrary views against some doctrines religions hold dearly. Senator Mullen strongly made this point but I do not think that necessarily means everything is fair game. When we speak about the Defamation Act, we may feel people's reputations are secondary to freedom of speech. They are not. People have these important rights.

Atheists can be very critical and abusive of religion. I do not find that trait in agnostics, who are trying to discover the truth. They do not believe but they are seeking the truth. They are not dismissive of others' views, even if they do not agree with those views. It comes back to respect and tolerance, which should permeate society. We should promote that within our laws and where it is not taking place, we should certainly oppose it.

Even though he was interrupted by some of his own colleagues, Senator Mullen put his finger on it. There are pseudo-liberals, some of whom are in this House, who pursue an aggressive secularism. There is no doubt about that, and it is obvious to anyone who follows public——

On a point of order, the speaker is asking for tolerance of language. I am not sure if it is in order for a speaker in this debate to be challenging other Members of the House and accusing them of being abusive. I do not think anyone who is critical of this offence made comments like that about anyone on the other side.

I have not been abusive to anyone. I will repeat what I said. There are pseudo-liberals in this House, as there are in society. There are also aggressive secularists in the House, as there are in society.

How does the Senator define himself?

Senator Walsh, without interruption.

I find they are tolerant of everything and anyone except those who have views contrary to their own. That is an absolute intolerance and we have seen examples of that many times in this House and elsewhere.

That is called freedom of expression.

People have the freedom to say those things in the same way I have the right to rebut what they are saying with the comments I have just made. That is the essence of free and democratic debate.

Unless one does not agree with the Senator.

I certainly make no apologies for it. I make the comparison with Senator O'Toole's contribution on Tone republicanism. I regard myself as a republican and the essence of that is tolerance for other viewpoints. That should be injected into the debate. I do not think anyone will be a victim of this Bill. It will be difficult to prosecute. It does not interfere with the freedom of speech but it does provide that those who are grossly abusive or insulting on matters held sacred by a religion and cause outrage among a substantial number of the people when their intention was to cause such outrage will be guilty of an offensive. I see nothing wrong with that. I do not see any reason anyone should embark on that course of action. That does not deprive people of the ability to put forward their points of view in a reasoned, measured way which are contrary to the views of people who have faith or whatever else. That is as it should be.

I find Senator Mullen's amendment quite persuasive. I do not necessarily have any objection to an offence of blasphemy and I can see why it was put in our Constitution. I do not agree with the modernists who feel we have gone past the 1937 Constitution. It has been held in the courts on many occasions as supporting the underlying principles of human rights. In the debates we had in this House on the European Convention on Human Rights, it was clearly stated by the Minister and by many of the contributors that our Constitution had most of those human rights covered. There should be a defence to section 36(3) and I think the amendment is a good one. I can obviously see why genuine literary, artistic, scientific and academic values are matters that can be used in the defence. I find it difficult to see why there would be a political element to that. However, if these are being put in, the compelling argument made by Senator Mullen about religious values is equally important. Our Constitution protects religious expression. Its inclusion here would certainly be compatible with that. The corollary of that would be that its exclusion might be unconstitutional.

I am not making any apology for this particular Bill. I notice that some of my colleagues mention that a referendum should be a priority. If that is the case, the people will decide. I am not quite as sure as some of them that they will get the answer they are looking for from the public, but it is their right to seek that. If this is a priority in the midst of the most serious recession we have had since the Great Depression, then our priorities might not be in the right order.

I welcome the Minister of State for this very interesting debate. He has been here for most of it and I have found it fascinating. I am certainly not a lawyer, and I am not rising with any confidence that I can handle many of the items that have been discussed. I listened very carefully to the Minister and I do not think he would have introduced this particular topic if he did not feel there was a need for it. The fact that the burden of proof has existed since the 1937 Constitution and that there has not been any prosecution seems a little bit strange. The Minister is introducing this on the belief that there is a need for it and I think he has covered the areas that would express concern. The fact that somebody "intends, by the publication or utterance of the matter concerned, to cause...outrage" means that intention is crucial to this. However, I have a concern about a second aspect of it, to which Senator Mullen also referred. I would like to formally second the verbal amendment that was proposed by Senator Mullen to try to rectify this problem. I do not think those who have supported the amendment have seconded it. Senator Mullen wants to add the word "religious" to section 36(3) of the Bill, which reads: "It shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates." It seems that the Bill needs to provide for the religious value of the matter to which the offence relates. It seems that freedom of religious expression, which is protected by the Constitution, should enjoy as much protection as freedom of literary, artistic, political, scientific or academic expression. If we do not meet the real need to provide such protection, we will be saying we do not regard freedom of religious expression as having the same validity as the other freedoms I mentioned. The manner in which the burden of proof is set out makes it highly unlikely that a prosecution will be secured.

Senator Norris mentioned a nightclub in Wexford that had proposed to make a scandalous and mocking use of the crucifixion as part of its efforts to attract attention. While public opinion and market forces forced the nightclub in question to close, that is not good enough. Some weapon should be available to the Minister and the State to contain or restrict such blasphemous abuses. I am one of the few people in this country who has ended up in the Supreme Court on the basis of Article 44 of the Constitution, which protects freedom of religion. Almost 40 years ago, I won a freedom of religion case on the basis that discrimination should be avoided in line with Article 44 of the Constitution. While I am not confident that I know a huge amount about the legality of our previous blasphemy laws, I have learned a lot today. I support the amendment the Minister made to the Bill and I urge him to accept Senator Mullen's verbal amendment. If we are to recognise "literary, artistic, political, scientific or academic" forms of expression, it is important that we recognise "religious" forms of expression too. On that basis, I urge the Minister to improve the legislation and ensure it is sound by accepting Senator Mullen's verbal amendment.

There is no verbal amendment before the House at this stage. Senator Mullen tried to submit an amendment on Report Stage, but it was ruled that he was too late.

When someone said that I would be out soon, I did not believe it for a minute as I knew this issue would attract lengthy discussion. The ability of the legal profession to engage in literary gymnastics when an issue is put before it never ceases to amaze me. I listened intently to Senator Regan and, whether we like it, he made his case. He acknowledged that we are obliged under the Constitution to provide for a criminal offence of blasphemy. There is no getting away from that. He tried to claim that I said there was no alternative, even though I made it clear that there are two alternatives — to hold a referendum on the matter or to drop the Bill altogether and leave this lacuna in our law. It was made clear in the judgment in the Corway case that blasphemy should be defined by the Legislature, rather than by the courts. That is why we are taking the first opportunity available to us to provide for such a definition. The Office of the Attorney General has given me strong advice to the effect that a defamation Bill that purports to repeal section 13 of the 1961 Act, which provides for the criminal offence of blasphemy, cannot be passed without saying something about this issue. The only alternative is to provide for an immediate referendum on the matter.

I agree with Senator Walsh that those who are calling for a referendum might not get the result they want. I am as good as the next person at understanding what is being said by grassroots people throughout the country. Those who called for a referendum on this issue to be tacked on to the second referendum on the Lisbon treaty, or to be held separately, should bear in mind that the political party that called for God to be taken out of the Constitution is no longer in existence. Where are the members of that party today?

I do not think their demise had anything to do with their desire to see God taken out of the Constitution.

We should be a little careful when we call for a referendum, in case we do not get the result we want. When I proposed an amendment in the Dáil to include in the Bill the section that is being discussed by this House now, the Labour Party tried to amend it. It was clear that the Labour Party, in tabling its amendments, had been advised that an offence of blasphemy needed to be provided for. Deputy Rabbitte ultimately spoke against his own amendments, which was ludicrous. I accept that Senator Bacik has not tabled any amendments today. The argument made in the Dáil by her colleague, Deputy Rabbitte, was inconsistent with his efforts to amend what is now section 36 of the Bill, which deals with the publication or utterance of blasphemous matter. His two amendments sought to reduce the fine provided for in that section and to provide, in effect, for the measures contained in the expanded section 36(3), which was included at a later stage. By tabling those amendments, the Labour Party acknowledged that an offence of blasphemy had to be provided for in this legislation. Ultimately, Deputy Rabbitte chose not to speak in favour of his amendments. He chose to go with Fine Gael because he saw what way the wind was blowing. It is typical of Opposition Members to speak out of both sides of their mouths in such a manner.

That is rich, coming from the Minister.

I will come back to Senator Regan, who took us on a tour of the world.

That is better than taking us back to 1937.

Senator Norris took us on a tour of the history of the world. It was interesting to hear what other countries are doing.

I hope it was an education

However, it does not change the hard fact that the Constitution, whether we like it, requires that blasphemy be an offence. It cannot be put any plainer than "the publication or utterance of blasphemous....matter is an offence which shall be punishable in accordance with law". If we choose to ignore the Constitution, or to take anà la carte approach to it, we will be abdicating our responsibility as legislators.

I would like to refer to an argument that has been made previously. It has not been made in this House today, although I thought it would be. God forbid that abortion should be brought into the debate. A recent editorial in the paper of record suggested that I was insisting on complying with the Constitution in respect of blasphemy, even though the Oireachtas is happy not to comply with the Constitution in relation to the right to life. I will not go into the very good and valid reason for that distinction. There is a definite answer to that accusation made by the newspaper. In the X case, neither the Supreme Court nor Mr. Justice McCarthy suggested that legislation was an essential ingredient in the protection of the constitutional right to life of the unborn, or the equal right to life of the mother.

However, opposite to that in the Corway case, the Supreme Court said that legislation was essential to give effect to the constitutional requirement of making blasphemy an offence. The main reason for that is that Article 40.3.3° of the Constitution provides a clear rule of law, authorising the courts, as organs of the State, to defend the constitutional rights guaranteed by that article in relation to the life of the unborn. In effect, the Constitution protects the right to life of the unborn, free-standing of any legislation. Therefore, those who raise that canard are wrong.

On the point raised by Senator Mullen, that is not allowable, but he makes a reasonable point in that regard. Nonetheless, it would be unworkable. If we were to amend that, we would have to look at other possible qualifications and areas where we might have to give expression to it. Ultimately, this comes back to the requirement ofmens rea, as he rightly said. It is possible that somebody may say something blasphemous without being necessarily aware of the teachings of a particular religion or certain aspects of it. Everything goes to the core of what the Senator describes as the “new” inclusion of an intent, the mens rea, which was not in the previous offence. If we were to open this up, it would have to be done for other issues to be included as a possible offence.

We are just being asked to protect freedom of religious expression.

On freedom of expression or any statement that might be made, while the courts have discretion and could narrowly interpret subsection (3), it is quite possible they could include what the Senator is suggesting, specifically, under the heading of academic value. It is possible for a court, taking a reasonable interpretation of subsection (3), to address the point the Senator is making on the inclusion of religion——

The Minister could make it explicit and guarantee its constitutionality.

——under the issue of academic value.

We are trying to comply with the constitutional requirement in relation to the article on blasphemy and the requirement that it is to be punishable in accordance with the law. We are not having a constitutional referendum for the reason Senator Walsh referred to, namely, we have other priorities as a Government and as a Parliament. We should stick to those priorities and deal with this as much as possible.

In the Dáil we listened to the Opposition, which put forward reasonable amendments, despite the play-acting of the Labour Party in particular and, indeed, Fine Gael. I have no doubt Fine Gael got strong advice from its legal advisers, but it chose to ignore it, to the effect that there had to be an offence. Fine Gael decided to oppose the section, knowing well that any lawyer worth his or her salt would say that under the Constitution there is an absolute requirement to have this. That is the situation unless we change the Constitution.

We phrased and framed the new section 35, putting in a new definition of "blasphemous matter" along the lines proposed by the Law Reform Commission in its report. We included the term "outrage" as proposed by the Law Reform Commission so as not to widen the scope of the offence. We inserted a requirement formens rea as regards intent. We wanted to avoid criminalising a person who might not know that the matter in question is insulting because he or she is not aware of a particular religion. There is no definition of religion. Again, in consideration of some of the points raised by Senator Mullen, that is to be left open to the court, which I believe will take a wide interpretation, particular on the issue of subsection (3).

We are taking out the imprisonment aspect. People say we should have left it alone, but we do not have that option because of the Corway case. However, if we were to leave it alone, it would mean someone could be put in prison for blasphemy for up to seven years. I am taking that out so there will be no provision for imprisonment under the legislation; there will be only a monetary sanction.

Senator Bacik raised the issue of the €25,000 — it was originally €100,000. This was to show that if there was to be a prosecution it should be in relation to a substantial rather than a relatively minor offence. As always, the jurisdiction on indictment is commenced in the Circuit Court and obviously there would be a right to appeal to the High Court ultimately. The reason we reduced the figure from €100,000 to €25,000 was to assuage some of the criticism that a fine of €100,000 was too large. The fine imposed was up to €100,000, it was at the discretion of the court. Reducing it to €25,000 still gives a signal to the effect that a prosecution is not to be taken unless a very serious offence is involved.

On a point of order, I wish to correct the record, I am grateful to the Minister for responding to my point and acknowledging it is a matter of Circuit Court jurisdiction on indictment. Clearly it is because the Circuit Court has jurisdiction——

That is not a point of order.

It is because the point of order applies to the Minister saying it would be possible to appeal to the High Court. More correctly, it would be possible to appeal to the Court of Criminal Appeal.

That is not a point of order either.

It is not a point of order.

I meant the jurisdiction of the High Court.

Again, I can put it no further. Probably most of us accept that having the offence of blasphemy is anathema to the type of society we have today. That reminds me of the linguistic gymnastics I mentioned. Senator Regan suggested, and Senator Bacik agrees, that we should deal with this in the incitement to hatred legislation. Although there may be a cross-over between blasphemy and incitement to hatred, they are two different things. I believe the Senator is really stretching the English language in saying that something which is blasphemous is not necessarily incitement to hatred. I cannot see how this could be addressed in this manner. It could be suggested that the amendment I tabled is an Irish solution to an Irish problem, admittedly, but at least it acknowledges what is in the Constitution and the requirement to have an offence. To try and hive it off into incitement to hatred legislation, however, would not do justice to our job as legislators. We would be just codding the people were we to try to include this under incitement to hatred legislation.

I thank all the Senators for their strongly held views on this issue. I hazard a guess to the effect that, whether in the form of referendum or otherwise, we may not necessarily come back to this issue for some considerable time.

I find the response of the Minister unconvincing. He referred to my presentation on outlining the position on this whole issue of blasphemy in other EU member states, the United Nations and the Holy See, and how it is generally interpreted and applied as being offensive to the followers of a particular religion, giving rise to civil unrest or other implications. That is the modern progressive approach to the whole issue of blasphemy.

The Minister, instead of looking outward, has looked backwards. I have acknowledged that if he feels it essential — nobody denies it is in the Constitution — Fine Gael's position is that this is not the way to deal with it; that is why the sections are opposed. The Law Reform Commission report of 1991 concluded that the offence of blasphemy had no place in a society which respects free speech, and recommended that the reference in the Constitution be deleted as part of any extensive revision of anachronistic or anomalous constitutional provisions. Perhaps I could draw the Minister's attention to what I am saying. That is Fine Gael's position. This should be taken out of the Constitution. We should not run away from the issue when it has been identified by all the relevant bodies.

If, however, we take the position that it must be established in legislation, based on the modern view of blasphemy and language which is offensive to followers of a particular religion, the progressive and modern approach to deal with that is through the Prohibition of Incitement to Hatred Act. It is a neat fit. Taking the Minister's premise, and as determined by the High Court in the Corway case, it is for the Oireachtas to define the offence of blasphemy. To define it in these terms resolves the issue.

If the Minister says we are not to have a referendum to act on the problem, to suggest the only option is the one the Minister has outlined in the Bill is incorrect. There is a more neat fit. I would have suggested in a verbal amendment to meet the Minister on this that the offence provided for at section 2 of the Prohibition of Incitement to Hatred Act 1989 constitutes the offence of the publication of blasphemous matter as provided for in Article 40.6.1° of Bunreacht na nÉireann. That would ensure that if we are not removing the provision of the blasphemous offence in the Constitution, that would fulfil any obligation which might rest with the Oireachtas to rectify this situation and implement that provision of the Constitution pending its deletion.

That is the appropriate way to deal with it. The explanation given by the Minister and the issues and problems which arise from the manner in which this is being dealt with in the legislation — where we are defining religion and providing for all sorts of provisions on Garda intervention, and where the Minister has acknowledged he has designed this so it will never happen — is not fulfilling the Minister's obligations under the Constitution to draft legislation of that order. On that basis I will press this amendment.

I have nothing more to say other than what I said about trying to suggest blasphemy and incitement to hatred are the same issue; they are not.

We define blasphemy.

The definition of blasphemy we have put in this Bill is along the same lines as that recommended by the Law Reform Commission. Senator Regan made the case that there needs to be an offence of blasphemy. He acknowledged that on his first and second interventions. However, his amendment proposes to delete the entire article.

I move amendment No. 1:

In page 26 to delete lines 5 to 25.

There is a verbal amendment as an alternative.

I second the amendment.

Question put: "That the words and figure proposed to be deleted stand."
The Seanad divided: Tá, 21 21; Níl, 21.

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • Ellis, John.
  • Hanafin, John.
  • Keaveney, Cecilia.
  • Leyden, Terry.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bacik, Ivana.
  • Bradford, Paul.
  • Burke, Paddy.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Donohoe, Paschal.
  • Fitzgerald, Frances.
  • Hannigan, Dominic.
  • McFadden, Nicky.
  • Mullen, Rónán.
  • Norris, David.
  • O’Reilly, Joe.
  • O’Toole, Joe.
  • Phelan, John Paul.
  • Quinn, Feargal.
  • Regan, Eugene.
  • Ross, Shane.
  • Ryan, Brendan.
  • Twomey, Liam.
Tellers: Tá, Senators Labhrás Ó Murchú and Diarmuid Wilson; Níl, Senators Maurice Cummins and Eugene Regan.

There is an equality of votes. Therefore pursuant to Article 15.11.2° of the Constitution, I must exercise my casting vote. I vote for the question in this case, the result of the vote now being: Tá, 22; Níl, 21.

Question declared carried.
Amendment declared lost.

I move amendment No. 2:

In page 26 to delete lines 26 to 42 and in page 27 to delete lines 1 to 10.

I second the amendment.

Question put: "That the words proposed to be deleted stand."
The Seanad divided by electronic means.

I wish to seek a manual vote.

Question again put: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 22 22; Níl, 22.

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • de Búrca, Déirdre.
  • Ellis, John.
  • Hanafin, John.
  • Keaveney, Cecilia.
  • Leyden, Terry.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bacik, Ivana.
  • Bradford, Paul.
  • Burke, Paddy.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Doherty, Pearse.
  • Donohoe, Paschal.
  • Fitzgerald, Frances.
  • Hannigan, Dominic.
  • McFadden, Nicky.
  • Mullen, Rónán.
  • Norris, David.
  • O’Reilly, Joe.
  • O’Toole, Joe.
  • Phelan, John Paul.
  • Quinn, Feargal.
  • Regan, Eugene.
  • Ross, Shane.
  • Ryan, Brendan.
  • Twomey, Liam.
Tellers: Tá, Senators Labhrás Ó Murchú and Diarmuid Wilson; Níl, Senators Maurice Cummins and Eugene Regan.

There is an equality of votes. Therefore pursuant to Article 15.11.2° of the Constitution, I must exercise my casting vote. I vote for the question in this case, the result of the vote now being: Tá, 23; Níl, 22.

Question declared carried.
Amendment declared lost.
Question put: "That the Bill be received for final consideration."
The Seanad divided: Tá, 23; Níl, 22.

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • de Búrca, Déirdre.
  • Ellis, John.
  • Feeney, Geraldine.
  • Hanafin, John.
  • Keaveney, Cecilia.
  • Leyden, Terry.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bacik, Ivana.
  • Bradford, Paul.
  • Burke, Paddy.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Doherty, Pearse.
  • Donohoe, Paschal.
  • Fitzgerald, Frances.
  • Hannigan, Dominic.
  • McFadden, Nicky.
  • Mullen, Rónán.
  • Norris, David.
  • O’Reilly, Joe.
  • O’Toole, Joe.
  • Phelan, John Paul.
  • Quinn, Feargal.
  • Regan, Eugene.
  • Ross, Shane.
  • Ryan, Brendan.
  • Twomey, Liam.
Tellers: Tá, Senators Labhrás Ó Murchú and Diarmuid Wilson; Níl, Senators Maurice Cummins and Eugene Regan.
Question declared carried.
Question, "That Fifth Stage be taken now", put and agreed to.
Question proposed: "That the Bill do now pass."

Pursuant to Standing Order 128, I want to propose a verbal amendment without notice, as I am entitled to do.

The amendment is pursuant to the matter discussed earlier in the presence of the Minister, that section 35 be amended, that in section 35(3), after the word "scientific," the words "or academic" be replaced with the words "academic, religious or other" so that the defence to proceedings provided for in subsection (3) shall now read, "It shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, academic, religious or other value in the matter to which the offence relates."

Senator Mullen already proposed this amendment for Report Stage and I ruled it was too late to table it because Report Stage had already commenced. The proposal the Senator is now making was discussed in detail on Report Stage, in the debate on the two amendments tabled by Senators Regan and Cummins. I am ruling that the proposal is not in order as a verbal amendment. Standing Order 128, which relates to Fifth Stage, cannot be used as a guise for resubmitting an amendment that I ruled was too late for Report Stage. The question is: "That the Bill do now pass."

On a point of order.

Senator O'Toole on a point of order.

I would like to correct one thing. I understand the Cathaoirleach's ruling, but this is not a resubmission. This amendment was never submitted as it was too late. This is the first time it has been submitted to the House. In that sense it is not a resubmission.

Senators

That is right.

I am sticking with the ruling I just made.

On a point of order, the fact is that it was not previously submitted. It was out of the discussion on the amendments that the necessity of the change emerged. I proposed a variation of this to the Minister which would take cognisance of the suggestion he makes that we have an obligation to make some provision for the offence of blasphemy, that is, to define that defence in the context of the legislation on incitement to hatred. My proposal was that the offence provided for under section 2 of the Prohibition of Incitement to Racial Religious or National Hatred Act 1989 constituted the offence of blasphemy. I wished to move a verbal amendment to that effect.

I am not allowing——

That would avoid——

I am not allowing any verbal amendments at this stage.

This is a different verbal amendment, a Chathaoirligh.

I have ruled on that and I am sticking with it.

It is a different amendment so it is allowed.

On a point of order, does the Cathaoirleach not have to give a separate ruling on a separate amendment?

I am giving the same ruling again.

This amendment was not submitted beforehand.

No, it was not submitted.

I am not saying it was, but I am not accepting it.

The Cathaoirleach should listen to what I am suggesting——

I have listened. I would not like anyone to think I do not listen to any Member.

——and I do not mean to be disrespectful but——

I have listened and I am ruling on it. The Senator is moving an amendment at this stage and I am not accepting it.

I did not finish the sentence on the amendment.

He did not give out the amendment yet.

The Cathaoirleach did not listen to the amendment.

The Cathaoirleach wants to make a ruling.

The Senator is entitled to——

The Minister has suggested we need to define the crime of blasphemy, which is an anachronism in itself. I have suggested a formula in this verbal amendment which would avoid the nonsense of the amendments the Minister has put in the Bill, which is the reason the House is so exercised, as was the Dáil. I ask the Cathaoirleach to allow this verbal amendment to be considered by the House.

I heard that being discussed and I heard the Minister replying to it during the debate. I am not accepting it at this stage. The question is: "That the Bill do now pass."

On a point of order, a Chathaoirligh——

(Interruptions).

Is that agreed?

Senators

There is a point of order.

On a point of order.

With regard to my earlier submission to you, a Chathaoirligh, I understand you are proposing not to accept my amendment on the grounds that I attempted to submit it on Report Stage but it was deemed to be too late. I could understand if an amendment were to be ruled out of order on grounds it would involve a charge on the Exchequer.

I have ruled on this.

Are you saying that if I had not sought to submit it on Report Stage but had merely discussed it when I got the opportunity, you would have accepted my amendment?

No, I would not. I said I was not accepting it on Report Stage.

That is presumptuous.

It was incapable of being accepted but may I ask why it is not being accepted on Fifth Stage——

I said it earlier——

——in circumstances where Standing Orders provide that one may make a verbal amendment on Fifth Stage?

Senators

Hear, hear.

If someone wishes to discuss something with me later he or she can, but I am not accepting it at this stage.

A Chathaoirligh, under Standing Orders——

I am putting the question, "That the Bill do now pass." Is that agreed?

Senators

No.

On a point of order——

I am putting the question.

On a point of order, a Chathaoirligh——

It is a point of order.

I am putting the question and I will take no interference or interruption when I am doing so.

(Interruptions).

I am putting the question. Once I put the question, that is it.

Question put.
The Seanad divided: Tá, 23; Níl, 22.

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • de Búrca, Déirdre.
  • Ellis, John.
  • Feeney, Geraldine.
  • Hanafin, John.
  • Keaveney, Cecilia.
  • Leyden, Terry.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bacik, Ivana.
  • Bradford, Paul.
  • Burke, Paddy.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Doherty, Pearse.
  • Donohoe, Paschal.
  • Fitzgerald, Frances.
  • Hannigan, Dominic.
  • McFadden, Nicky.
  • Mullen, Rónán.
  • Norris, David.
  • O’Reilly, Joe.
  • O’Toole, Joe.
  • Phelan, John Paul.
  • Quinn, Feargal.
  • Regan, Eugene.
  • Ross, Shane.
  • Ryan, Brendan.
  • Twomey, Liam.
Tellers: Tá, Senators Labhrás Ó Murchú and Diarmuid Wilson; Níl, Senators Maurice Cummins and Eugene Regan.

Is the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, returning to the House? I understand it is customary.

He may. I do not know. I will allow spokespersons and the Minister to speak on what is in the Bill. I ask Members to respect the House.

This aspect of the Defamation Bill, namely, blasphemy was not in the Bill that was initiated in this House. We never had the opportunity to debate and discuss the matter until today. It was tabled as an amendment to the Bill as passed by the Seanad by the Minister in the Dáil. The debate in the Dáil was guillotined, so there was no debate on this matter in the Dáil. As we are rushing the Bill and the Minister is choosing to rush legislation in this fashion, we have a situation today where we had a lengthy debate on the matter and identified alternative approaches which would make for better legislation, but because of the rush the Minister is not inclined to entertain the amendments tabled today. The blasphemy aspect of the Bill is a backwards step in legislation on the issue of defamation.

I am not allowing Second Stage speeches. I want comments on the Bill.

It damages the credibility of the entire Bill and the reform intended in it regarding defamation. I regret the method by which the Minister has dealt with this matter and the rushed manner in which he has pushed it through this House. The Seanad can contribute significantly to the refinement of legislation, whether instigated here or in the Dáil and that has been demonstrated today. The closeness of the vote might reflect the outrage at the formulation, method and provisions on blasphemy the Minister has brought to this Bill.

As Senator Regan said, it is most unfortunate that we had to vote against this Bill. I speak for Senator O'Toole and others when I say we welcomed much of what was in the Bill and recognised it represents a genuine attempt to reform the law on defamation.

However, the Minister scuppered the general support for the Bill with an ill-judged and unnecessary amendment which was brought in, as Senator Regan said, at very short notice, was subject to a guillotine in the Dáil and with which I fundamentally disagree. This amendment, which gave a statutory definition for the offence of blasphemy, was a most backward and regressive step which was not required by the Supreme Court in the Corway decision. Reading the Corway judgment again, it does not require legislation to be passed providing for a statutory definition of blasphemy.

The Senator may not make a Second Stage speech.

The Supreme Court did not strike down section 13 of the 1961 Act, nor was there any pressing urgency. Further, no prosecutions for blasphemy had been initiated which could not be sustained.

As I indicated, I disagree with the Minister on whether it was necessary to insert a statutory definition of blasphemy. It is unfortunate this has been done. If the interpretation had been agreed, an alternative approach was available, namely, Senator Regan's excellent verbal amendment to insert instead a proviso that the offence of——

I have ruled on this matter. Final Stage is a matter of thanking the Minister. The House must deal with other business.

On a point of order, given that the Bill has been guillotined, the Senator should be allowed to make final submissions.

The Senator is incorrect. The Bill was not guillotined.

I will conclude. An alternative proffered by Senators on this side was not countenanced by the Minister. The real alternative, however, is to change the Constitution to remove reference to the outdated offence of blasphemy.

One cannot claim the Bill was guillotined. Those who listened to this afternoon's debate will have noted that Senators adopted a pedantic approach and took the scenic route to finalising the legislation.

I thank the Minister for coming to the House, albeit not necessarily for bringing this legislation before the Seanad. I find the blasphemy section the least offensive part of the Bill. I remain concerned about the imbalance between citizens who are defamed and those who defame them, namely, the media with their power and financial resources. We have not struck the right balance and I hope the Privacy Bill will restore the necessary balance.

I thank the Minister for the courteous and interesting way with which he dealt with the Bill. I do not agree with him on the legislation and, unlike my colleague, Senator Bacik, I objected to many of its principal clauses. I urged my case but the Minister did not accept it. I found his interventions illuminating and interesting, particularly the story he told yesterday about a couple and the fact that he attached a clause——

The Minister was speaking on a different Bill.

I am not surprised the Senator is confused given the number of Bills introduced in the House this week.

In any case, the Minister is always interesting. My only regret is that due to the frailties of the flesh, which I have just demonstrated in another sense, I was deprived of his presence during the discussion of the Bill. I will continue to be an adherent of the cult of which he is at the centre.

I am not altogether sure I wish to speak because in doing so I may raise another hare. I thank Senators for their contributions. As Senator Walsh noted, we took a circuitous and scenic route around the Bill on which everyone had an opportunity to speak. As such, it is not correct to claim it was guillotined.

We have been dealing with this legislation since 2006. It was ventilated and, some would argue, delayed in the Seanad which took a long time deliberating on it. To be fair, however, the deliberations of the Seanad proved helpful in the Dáil because much of the teasing out of the legislation had been done at great length in this House.

I cannot abide hypocrisy. It is the case, and I say this advisedly, that the Labour Party——

The Minister is inviting a response.

I was subjected to criticism from Senator Regan but I can give it as much as the next fellow. The Labour Party tabled amendments in the Dáil and then spoke and voted against them and in favour of another amendment. Today, a similar approach has been taken, albeit by the Fine Gael Party, in that Senator Regan tabled an amendment but then sought to have another amendment passed when his initial amendment was not successful. In effect, he accepted the principle of my argument that there is a requirement under the Constitution to have blasphemy made an offence punishable in accordance with the law. We may not like it but, as I indicated, linguistic gymnastics will not get around this statement, which is one of the starkest in the Constitution.

I have no doubt that this matter will be subject to review by the Oireachtas, probably in the not too distant future. We need to examine the issue of balance raised by Senator Walsh. The Privacy Bill, which is on the Order Paper, will probably afford the Dáil and Seanad an opportunity to address the issue of privacy.

I am pleased the Bill will finally be passed today. As I stated earlier, it is not legislation I would have liked on my Christmas card list. We should now proceed to pass it into law, at which point I hope the President will sign it.

One genuine benefit of this legislation to ordinary people is that it enables apologies to be made without admission of liability. In my experience as a solicitor, litigants are much happier to receive an apology within a week of an offending article being published. In many cases, the media outlet in question would also prefer to issue an apology but its lawyers argue that an apology constitutes an admission of liability. The legislation will allow a media organ or an individual who is a defendant to make an apology without admission of liability. This is probably the most important advance in the Bill.

I am pleased to have been the Minister to have this legislation passed. I hope we will not have to use the review mechanism often. As I indicated, however, the legislation provides for a review by the Oireachtas within not more than five years. The review could be done earlier.

Question declared carried.