I welcome the Minister of State, Deputy Stanton. No. 3, motion re statement for the information of voters on the Thirty-seventh amendment of the Constitution (Repeal of offence of publication or utterance of blasphemous matter) Bill 2018 will be debated in conjunction with Second Stage of the Bill but will not be moved until Fifth Stage has concluded.
An Bille um an Seachtú Leasú is Tríocha ar an mBunreacht (Cion a aisghairm arb éard é ní diamhaslach a fhoilsiú nó a aithris) 2018: An Dara Céim
On behalf of the Minister for Justice and Equality, I thank Senators for agreeing to deal with this Bill today. The House will be aware that under the Referendum Act 2001, polling must be not earlier than 30 days and not later than 90 days after the date of the polling day order which can be made only by the Minister for Housing, Planning and Local Government when the necessary referendum Bill has been passed by both Houses of the Oireachtas. It is intended that the referendum on blasphemy will take place on the same day as the presidential election, which is scheduled for 26 October. In these circumstances, there are inevitable time pressures and constraints when it comes to progressing the Bill.
The Bill's Title aptly describes the purpose and intent of what is a short, two-section Bill. The purpose and intent is to remove the reference to "blasphemous" from Article 40.6.1°.i of the Constitution.
Section 1 provides for the amendment of Article 40.6.1°.i by providing that "seditious" shall be substituted for "Blasphemous, seditious" in the English text. If this amendment is approved by the people in the forthcoming referendum, the relevant part of Article 40.6.1°.i of the Constitution will read as follows: "The publication or utterance of seditious or indecent matter is an offence which shall be punishable in accordance with law".
Section 2 is a standard provision and specifies the name of the constitutional amendment and of the Bill. The publication of the Bill fulfils one of the commitments in A Programme for a Partnership Government. It accords with the recommendations included in a series of reports which touched on the constitutional provision on blasphemy and which, without exception, favoured the deletion of that provision. Those reports include the Law Reform Commission, LRC, report on the crime of libel in 1991. The 1996 report of the Constitution review group came to the conclusion that the retention of the current constitutional offence of blasphemy was not appropriate. In 2008, the Joint Committee on the Constitution also considered this matter and concluded that the specific reference to blasphemy should be deleted from the Constitution. Most recently, we had the valuable work of the Convention on the Constitution in 2014. Following the trend of previous reports, the convention in its sixth report favoured, by a clear majority, the removal of the offence of blasphemy from the Constitution.
It is somewhat difficult to come to a common understanding on the nature of blasphemy within the framework of a modem society. We can take it that in simple terms "blasphemy" means to vilify or show contempt for God or to abuse or treat with contempt or disdain that which is sacred. However, there is a complex political and religious background to the development of this concept in this jurisdiction, which makes the simple definition less than helpful when it comes to considering the constitutional provision. It seems to be generally accepted that our legal understanding of the term "blasphemy" has grown out of the understanding at common law as it prevailed in England and Wales over the centuries. Once the Anglican Church of Ireland became the established church in the late 17th century, the rationale for maintaining blasphemy laws was inextricably linked with the need to protect that religion and, by extension, the State. Thus, as will be apparent to Senators, there was a clear and fundamental link between protecting the State on the one hand and, on the other, safeguarding the religious system of belief with which that State was identified. However, the intellectual and philosophical movements in the 18th century, which is now referred to as the age of enlightenment or the age of reason, brought about a change in that approach.
Over time, individual rights came to the forefront of social thinking. In the blasphemy context, the rationale for defending and securing the established belief system was overtaken by an emphasis on the need to protect the religious sensitivities of believers. By the time the Constitution was adopted, therefore, it would seem that the focus of blasphemy, as it was understood at the time, was very much directed towards speech likely to cause gross outrage to such sensitivities. Furthermore, it would seem to be the case that, arising out of the various equality provisions in the Constitution, the "protection" offered by the blasphemy provision, if it can be called such, was not confined to any one church or belief system.
The proposal in the Bill should not be viewed as an attack on belief, nor is it intended to privilege one set of values over another. It is simply an acknowledgement that a concept, the meaning of which is unclear and which is rooted in a past where loyalty to a state and loyalty to a particular religion were virtually synonymous, has no place in the Constitution. At the core of the proposal to remove the offence of blasphemy from the Constitution is the view that criminal sanctions are not appropriate in this context. In a modern and democratic society, we should not accept or condone the criminalisation of expression. That said, it is a different matter if that expression is geared towards inciting hatred or violence. Where such is the intention, the criminal law must come into play. In a society such as ours, whose members hold a wide array of beliefs, the State cannot guarantee that, on occasion, individuals will not be hurt and outraged because something which they might regard as deeply offensive is considered by others to be no more than humorous or satirical comment. Additionally, it is not in keeping with best international practice that there should be a possibility, however remote, that a criminal prosecution of blasphemy would be taken in such circumstances.
In our current society, maintaining the criminal offence of blasphemy in the Constitution and, as a consequence, on the Statute Book has more to do with an unnecessary and anachronistic check on freedom of expression than with the protection of religious values. Removal of the blasphemy clause from the Constitution would be a public affirmation of our belief in an inclusive society. It would underscore that communication between those with different belief and value systems should take place on the basis of mutual tolerance and respect. It would remove the inhibiting check on freedom of expression which a blasphemy law inevitably represents. The law on blasphemy has not been invoked with any frequency and it would seem that for more than a century and a half, there has been little interest in entertaining blasphemy prosecutions. The most recent prosecution for blasphemy in Ireland seems to have taken place in 1855 and that prosecution resulted in the acquittal of the person involved who was alleged to have burned a bible in the context of a general burning of "evil literature".
In more recent times, the position and particulars of the offence of blasphemy in Irish law were considered by the Supreme Court in the case of Corway and Independent Newspapers. During the course of the judgment the constitutional framework, which guarantees freedom of conscience, the free profession and practice of religion and equality before the law to all citizens, was discussed. It was noted that it was difficult to see how the common law crime of blasphemy, related as it was to an established church and an established religion, could survive in such a framework.
It should be borne in mind that the judgment gave particular emphasis to the fact that existing legislation had not adapted the common law crime of blasphemy to the circumstances of a modern state. The court concluded, therefore, that given the current state of the law and the absence of any legislative definition of the constitutional offence of blasphemy, it was impossible to determine the nature of that offence. This analysis, and the implied criticism of the Legislature it contained, brings us to the much-maligned provisions which are set out in sections 36 and 37 of the Defamation Act 2009. It would be fair to say that there is a high threshold to be met if the offence created under the Act is to be successfully prosecuted and the Department of Justice and Equality is not aware of any prosecutions having taken place under it.
If the constitutional amendment is agreed to by the people, it is the intention of the Government that sections 36 and 37 of the 2009 Act would be repealed. Provision for such repeal is contained in the general scheme of a Bill which has been published on the Department’s website, and which sets out the measures which would be drafted as a formal Bill in the event of the Thirty-seventh Amendment of the Constitution being approved.
I am not going to deny that the proposal before the House is a modest one. There are those who say it is without point or purpose, especially having regard to the Corway judgment and to the general lack of prosecutions in this area. However, there are good, sound justifications for removing the reference to blasphemous matter from the Constitution and I will enumerate these reasons.
It is an undeniable fact that for as long as it remains in the Constitution, we have in being a constitutional offence of publishing or uttering blasphemous matter. We cannot wilfully ignore this constitutional provision. There is also our international reputation to consider. In 2013 the United States Commission on International Religious Freedom identified 71 countries where blasphemy was punished. The ranking of our provisions as being at the upper end of mild does not gainsay the fact that we are in a minority of EU countries which featured on that list. Since the data for that report were collated, both Malta, in 2016, and Denmark, in 2017, have moved to abolish their blasphemy laws. Notwithstanding our relative ranking on the list, there is a fundamental problem with the fact that we feature on such a list at all.
I have referred to the difficulties in reaching a common understanding in this society as to the practical workings of a blasphemy offence. Imagine, therefore, the widely varying understandings of the concept of blasphemy which may exist in other countries which do not necessarily share our liberal values. In some countries blasphemy laws are applied in a discriminatory manner in order to protect a particular religion. In effect, the laws are used to justify the persecution of religious minorities, as well as the persecution of those who have a value system which is not based upon religious belief.
In addition, there is a wide divergence in the sanctions which may apply when blasphemy laws are breached. Such sanctions range from fines, terms of imprisonment of varying lengths, physical punishment, hard labour and even death. While we in Ireland may have our own particular views on our blasphemy provisions, when we think about them at all, an outsider looking in sees that Ireland is a country with a blasphemy law in its Constitution and at the heart of its legal system. In tandem with possible false impressions as to the nature of our blasphemy law, its very existence in this jurisdiction offers apparent comfort to those in other jurisdictions who can point to it in order to justify the more extreme regimes which they apply and this is something about which we should all be disturbed.
I acknowledge that the removal of the offence of blasphemy from teh Constitution is, on the face of it, a relatively small step. Nevertheless, taking this step would represent a deeply symbolic and tangible affirmation of our status as a modern and democratic society, where free speech is valued and where multiculturalism is embraced. I commend the Bill to the House.
I thank the Minister of State, not just for his very comprehensive outline of what is being proposed but for the brevity with which he delivered it. Fianna Fáil believes the current provisions on blasphemy in the Constitution are outdated and should be removed. Ireland is one of only seven countries in Europe where blasphemy is still an offence. The Bill proposes the removal of the offence of blasphemy from the Constitution by way of referendum. Article 40.6.1°.i provides that the offence of blasphemy is punishable according to law, and the Defamation Act 2009 defines that offence, and provides that a person shall be liable upon conviction or indictment for a maximum fine of €25,000. The Minister of State outlined many reasons that we should remove blasphemy.
Freedom of expression is very important. It is the cornerstone of a democratic society and any constraint on it must be clear and limited and this is not the case with blasphemy in Article 40.6.1°.i It tends to protect believers over non-believers in its current form. Ireland has changed very significantly in recent times. The Minister of State made the point that Islamic and other states are using Ireland's law as a defence of their blasphemy laws.
Hate crime legislation will protect deeply-held beliefs more effectively than the blasphemy laws by ensuring all religious groups are protected from incitement without unduly constraining freedom. My party, Fianna Fáil, introduced the Criminal Justice (Aggravation by Prejudice) Bill 2016 in July of that year and despite having undergone pre-legislative scrutiny in May 2017, the Government has not issued a message pursuant to Article 17.2 of the Constitution in order that a money message provision be issued in relation to the Bill; therefore, it has been prevented from proceeding. The Government sought and was granted an exemption from pre-legislative scrutiny for this Bill by the Dáil Business Committee, but it is noteworthy that Bills introduced by other parties, in particular, the Social Democrats' 2017 Bill on this issue, have not been allowed to pass beyond Second Stage.
I am certainly not going to delay this legislation. We all understand the need for it and the speed with which it needs to go through both Houses because of the presidential election and having the referendum on the same day. I do not doubt but that Senators Conway and Ó Donnghaile will try to be as brief as I have been. I thank the Minister of State. We will try to proceed with as much speed as we can for the rest of the afternoon.
I intend to be more brief than my colleague and agree with everything he said. I want to commend the Minister of State for a very comprehensive speech which outlined exactly where we are. It troubles me that some of these Islamic countries are using our constitutional provision to defend their position. I saw a programme on BBC two years ago which convinced me that we needed to do something about this provision in the Constitution because Ireland was referenced on numerous occasions as part of a very disturbing report.
This should have happened a long time ago. It is outdated, not required and not reflective of us. Many elements of the Constitution could be changed. The woman's place in the home is one on which I sincerely hope we have a referendum in 2019. I was not convinced that pre-legislative scrutiny was required for it, but the National Women's Council of Ireland seemed to think differently. It took place at the justice committee yesterday and that is democracy. Let us hope something positive comes out of the pre-legislative scrutiny because it certainly has delayed that referendum now until at least next May. That referendum should have happened alongside the blasphemy referendum in order to help to bring the Constitution into line with society as it is today.
The referendum will take place. I commend our colleagues across the House for their co-operation in putting this through as quickly as possible. That is reflective of what happens in this Chamber most of the time. There is collaboration and co-operation for the good of society and that is why we are here. Obviously, the presidential election is going to dominate proceedings in the run-up to 26 October but I encourage the people to give deep consideration to this issue because it is very important that this proposal receives major endorsement to remove this from the Constitution.
Go raibh maith agat, a Chathaoirligh, agus a Aire féin, as a bheith linn don díospóireacht seo inniu. I apologise to the Minister of State for arriving late and missing his contribution but I was at a meeting elsewhere. I wanted an opportunity to speak on this proposed amendment of the Constitution. The blasphemy clause in the Constitution was the product of another time. We need a Bunreacht for today's society. It is important the Constitution reflects today's values, and central to those values is freedom of expression and freedom of speech. I am confident, as has been said by colleagues, that the people will vote to delete it from the Constitution, as they have voted for on marriage equality and abortion reform in recent times. These are expressions for the modern era in which we now live.
On our island, partition created two conservative states. The conservatism was reflected in the political culture and the religious ethos of both those states. In the North the culture and ethos were used to create a one-party unionist religiously Protestant state which discriminated against an entire community on the grounds of political, cultural and religious identity.
This was also reflected in the social morals of that state. In the South the State used its power differently but, nonetheless, the consequences were similar with power and privilege being in the hands of a political and Catholic religious elite. Out of that, a society was created where the Catholic Church and its attitude to public and private morality held sway. It suited the political interests of those in Government to cultivate a special relationship and special status for the Catholic Church. The place of the church in the 1937 Constitution institutionally enshrined the power of the Catholic Church. It was a different Ireland where the State and the Catholic Church moved hand in hand. This hand in glove relationship prevented public accountability of both State and church and this unaccountability space was filled with scandals such as child abuse and its cover up, mother and baby homes, Magdalen laundries, industrial schools and the list could go on.
This amendment, like the marriage equality and abortion reform amendments, is a step towards a new Ireland, a diverse Ireland culturally and spiritually powered by people of all faiths and none. Today, there is much more open criticism of the State and the church and that is good. It is the core tenet of any republic. No institution or body should be immune from challenge and criticism but it would be unacceptable if this were to extend to religious intolerance or prejudice against any particular faith or creed. An inclusive Ireland must recognise and accept all religious faiths and none. Religion plays a huge part in people's lives and is a source of great strength and solace. Society is in a state of flux. Each generation brings its own attributes with it and we have arrived at a point where an informed and an informative debate needs to take place in areas to do with health and education and the place of the Catholic Church therein.
There can be no special place for any one religion now or in a future independent Ireland. I stand for the republic of Wolfe Tone of Protestant, Catholic and Dissenter. The upcoming referendum could be about embracing an ever changing Ireland and I hope it is successful and that we continue to move towards a society that respects people of all religions and none.
I will oppose this legislation and the referendum on three grounds. It is entirely unnecessary and ignores the legal historical context of this constitutional provision. It does nothing to protect or promote free speech, which is the stated the aim of the proposal, and the cost of this referendum is an unnecessary and scandalous waste of taxpayers' money because it will cost at least €3 million. Unfortunately, this proposal is typical of the Government and the political classes and underscores the hypocrisy and tokenism that pervades so much of the Government and political agendas. We have just come through a summer where controversies have raged in respect of health, post office closures and the disgraceful treatment of women at the hands of the CervicalCheck programme. What does it say about the Government that the first Bill to be put before the Dáil this term is not related to these issues but to remove the constitutional offence of blasphemy? It is almost hard to believe but taxpayers have forked out more than €150 million on holding referenda since the year 2000, with each trip to the polls costing between €15 million and €20 million.
It is democracy.
Since Fine Gael entered government in 2011, we have had nine referenda. While it is proposed to hold this referendum on the same day as the presidential election, holding this poll is not without costs all the same. Each additional referendum held on the same day will add approximately €4 million to the overall cost due to additional ballot papers, counting staff and so on. It was the former Chief Justice, Mr. Justice Ronan Keane, not the Archbishop of Armagh or Dublin or any other religious leader that one might care to mention, writing in the LRC report on this topic in 1991, who said a referendum devoted to removing blasphemy "would rightly be seen as a time wasting and expensive exercise". How right he was and how true that still is. Why are we here ramming this through the Seanad in just one day? Is it the case, as on many issues, that the Government believes this issue is uncontroversial because Opposition and other non-Governmental parties are supine when it comes to any of these big philosophical discussions? Why does the Government believe it is so uncontroversial or with little or no opposition to it? Does the Government, therefore, think debate on it is unnecessary?
In introducing the legislation the Minister of State referred to Ireland's reputation being somehow impugned by the blasphemy provision. He made a spurious comparison between Ireland and those countries, chiefly in the Islamic world, that have the death penalty for uttering blasphemy against Islam. This demonstrates the crass level of analysis which is being brought to this discussion. A report just last year by the United States Commission on International Religious Freedom found that the current laws on blasphemy in Ireland are among the least restrictive in the developed world. So much for the notion that Ireland is some kind of international pariah. What is really going on here is another expensive photo opportunity for the Government to talk about how progressive it is by proposing yet another amendment to the Constitution. The fact that it has moved against the purely symbolic reference to blasphemy, in addition to proposing a similar deletion of the purely symbolic reference to women in the home, gives us a clue to the real intention here - more politically correct red meat to the liberal gallery of media supporters that fawn uncritically over the Government. I refer, in particular, to the people who cannot help scratching the itch that is the God question.
At least the Minister conceded in the Dáil that there had been no prosecutions for blasphemy in this country. The most recent one occurred in 1855 when we were still in the grip of the neighbouring jurisdiction. The reference to blasphemy has effectively been rendered a dead letter by virtue of the decision of the Supreme Court in Corway v. Independent Newspapers in 1999 when a private prosecution against newspapers for blasphemy was thrown out. The Defamation Act 2009 - I participated in the debate in this House - introduced hurdles which effectively ensure no prosecution could ever be brought and the then Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, openly admitted that this was the aim of that legislation. As the 2009 Act was going through the House, many Senators, including Senator Bacik and her Labour Party colleagues, made outlandish claims that the 2009 Act would open the door to future prosecutions for blasphemy. That scaremongering has been shown to be entirely and predictably wrong.
In view of all of this, why not simply introduce a Bill to amend the 2009 Act and remove the offence from our law altogether? That could be done in short order and at almost no expense. It would also leave the purely symbolic words in the Constitution where they pose no threat to pluralism and free speech, but of course that would not allow any virtue signalling. That is the problem and that is why we have to have a costly referendum. It will not happen because there is a vocal minority of commentators and politicians, mainly on the political left, who are deeply offended by the reference to blasphemy and any reference to religion in the Constitution. As I said, the God question is the itch they cannot help scratching. Let us remember that we have no problem with legislation that protects certain classes of people from statements made by others through, for example, the Prohibition of Incitement to Hatred Act 1989. Through those laws, we acknowledge that speech is not unlimited, yet there are no proposals to repeal these laws in the name of free speech.
In 2013, the Convention on the Constitution suggested the proscription of blasphemy should be replaced with a new general provision to include incitement to religious hatred. All religious denominations should be given equal protection. Unsurprisingly, the Government ignored that suggestion. Religious freedom is a fundamental right protected in international human rights law, yet we seem to be happy to erode it progressively in Ireland. If we were going to spend millions of euro of taxpayer's money on a referendum, would it not be a more appropriate gesture to insert clear protections for believers, non-believers and others in the Constitution instead of just deleting words? It seems that the aim is to ensure speaking out against certain belief structures will be unlimited. That is a good whereas the profession or support for those same beliefs is to be limited and proscribed because they are bad. That is the new definition of tolerance that is regnant in this country. To be more specific, an American author wrote some years ago that anti-Catholicism is the last acceptable prejudice. This is the bizarre form of free speech that many seem to have in mind.
Just listening to the previous speaker, to link the wrongs of our past on the side of the Church and the State and to see it as somehow relevant to this debate on a rather meaningless and toothless provision on blasphemy in the Constitution shows the superficial level of the debate that has been ongoing in this country. I have been clear and consistent in my view that a blasphemy provision should not be in place to protect one religion or to protect God from offence. God is not quaking in his boots at the thought of the Minster abolishing the constitutional provision on blasphemy. However, the hard-pressed taxpayer should be livid at this latest raid on the public purse by our political rulers to pander to their liberal base, their cheerleaders in the media and the usual human rights quangos. As I said in 2009, I find persuasive comments made in the past on the difficulty of determining what is offensive to God.
One person’s meat is another person'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, but that is not how it has been understood.
There is a distinction between seeking to protect God from offence and seeking to protect the reasonable and lawful practice of religion and religious expression. A significant number of people in this country from all denominations and faiths have a profound religious belief which anchors the manner in which they view the world, interact with their fellows and seek the welfare of their families and their community. We had an opportunity to amend the Constitution, if we were going to spend public money, to recognise the harmful effect of gross offence aimed at these people, but the Government has not taken that route. Why?
The Government enjoys using the word "progress" in relation to its proposals to amend the Constitution, but it is a very strange concept of progress and one that is riven with hypocrisy. We have heard much talk about championing rights, but there is no consideration of the rights of increasingly marginalised groups such as people with religious beliefs. In addition to the reasons mentioned regarding costs and so on, I will oppose this proposal because it is a missed opportunity to achieve generous and appropriate protection for the rights of people of all faiths and none and because it is a scandalously self-indulgent raid on the public purse on behalf of an elite group of people in our society who are radically out of touch with the problems that beset most ordinary people.
I welcome the Minister of State and I am grateful for the opportunity to contribute to this debate. On behalf of the Labour Party group in the Seanad, I speak in support of the Bill. I am delighted that we will finally have the opportunity to vote on the removal of the offence of blasphemy from the Constitution. The continued presence of this offence in the Constitution is not tenable in a modern, democratic state. It is not tenable in the context of our international obligations and does not serve any purpose other than to send out an unfortunate and outdated signal.
I have listened with disbelief to the somewhat populist and strange position taken by my colleague, Senator Mullen. If I recall correctly, when we were debating the blasphemy offence in the Defamation Act in 2009, Senator Mullen was against the creation of that statutory offence, as I was. I think-----
I think I sought to amend it.
I will check but certainly we were assured by the then Minister with responsibility for justice, former Deputy Dermot Ahern, that he was obliged to introduce a statutory offence of blasphemy because of the constitutional position. As far as I can see, this is a tidying-up exercise to ensure the Constitution is modernised and brought into line with contemporary thought. As a criminal lawyer, I do not think it is appropriate that we would have criminal offences in the Constitution. In that context, I am critical of the fact that we are leaving any offence within the Constitution. I would like to see "publication or utterance of seditious or indecent matter" removed too. I think the Government's proposal is simply to remove "blasphemous", but it is a missed opportunity not to take the offence out in its entirety. I do not think the Constitution is an appropriate place for us to define criminal offences. It is not our criminal code nor should it be. It is a broad statement of aspirations and of governance of the State. That is my only quibble.
The Minister of State has set out very clearly that this is not some sort of whimsical, sudden move by the Government. This is something that has been recommended for a long time. As far back as 1991, the Law Reform Commission recommended that the constitutional prohibition on blasphemy be removed. The expert Constitution Review Group made the same recommendation in 1996. In 2013, I was proud to be a member of the Constitutional Convention which considered in great detail, with expert opinion and advice, the question of the removal of the offence of blasphemy and recommended same by a strong majority. In 2014 the previous Government, of which my party was a member, through the then Minister of State, now Senator Ó Ríordáin, announced in September that the Government had agreed to put the question of the removal of blasphemy from the Constitution to the people. Agreement was reached that a referendum would be held on the question of amending Article 40.6.1°.i of the Constitution to remove the offence. The previous Government accepted the report of the Constitutional Convention and I am glad that the Government has continued with that position and is now proposing to put it to the people.
It seems sensible that it would be done on the same day as the presidential election so that the cost will be minimal, given that polling stations will be open. There will be some additional costs through printing extra ballot papers, but to start quibbling about the cost of this measure, as with any constitutional referendum, misses the point. Let us look at the substance of this and be clear that this referendum has been recommended over many years by many expert groups, peoples' groups and successive Governments. The Minister of State also mentioned the Corway and Independent Newspapers case in 1999 in which Mr. Justice Barrington noted that it was for the Legislature to define the crime rather than for the courts. It was that case which the then Minister, Deputy Dermot Ahern, referred to when he brought the Defamation Bill before the Houses, proposing to create a new statutory offence of blasphemy in section 36.
Some, including Senator Mullen, have argued that this has not had any real impact, but I beg to differ on that point. It is very clear that the existence of that offence and its relatively recent introduction had an international impact. Ireland went against the EU norm in adopting a new statutory definition of blasphemy. We are an outlier within the EU in that regard. Other states have used our blasphemy offence as a model. It is fair to say that Pakistan and other states have pointed to our law as an example of a law they wish to pursue. It has also been used as a stick with which to beat us when we have been critical of regimes that have, for example, discriminated against religious minorities, including Christian minorities that have been repressed in certain countries. We need to be very clear that the existence of an offence of blasphemy, even if there have been no prosecutions, sends out a signal that other countries, individuals or regimes may use against us or against minorities in their own state. While no one has ever been charged with this offence, back in 2015 there was a rather embarrassing case of a complaint made at Ennis Garda Station about comments made by the actor Stephen Fry on the "The Meaning of Life" programme. At the time, former Minister Dermot Ahern said the blasphemy provision had been implemented with a view to making it virtually impossible to prosecute. That is not an appropriate way to legislate for a criminal offence either.
They would settle for it in Pakistan.
I am glad that the Government has stated it will repeal section 36 of the Defamation Act if the constitutional amendment is passed. That is appropriate. There should be no place in our law any more for blasphemy offences. We know from the history of blasphemy offences, which I will not rehearse again because we went through it in 2009, that they have typically been used by individual religions or members of a religion against others. They tend to be used not against non-religious people but rather to pursue religious ideological battles. There is no place in modern law for this sort of offence, in either the Constitution or in statute. The story about the actor Stephen Fry was picked up by the international media. It was an embarrassing moment and it highlighted the need to delete this outdated and obsolete section of the Constitution.
It is far from the case that believers are a persecuted minority in Ireland. Anyone with a passing knowledge of the school system will be well aware that 90% of primary schools remain controlled by and under the governance of the Catholic Church and 95% are under some form of religious control. Yesterday, I raised in the Seanad the very current issue concerning a particular school in Greystones. It is a Church of Ireland school in which a linkage has been made between church attendance and school enrolment to the distress of many parents in that community. I will be raising the matter further with the Minister for Education and Skills, Deputy Bruton. We need a further debate on the separation of church and State in reality and practice in our education and healthcare systems. Senator Ó Ríordáin has also been raising this issue in the House.
I am sorry that we will not have the opportunity to modernise the Constitution in one other respect on 26 October with the deletion of the outdated and sexist reference to women's place in the home. I know that the Minister of State wanted to put that to a referendum and I am sorry that we will not have the opportunity to vote on that too. The delay is unfortunate. We have had decades of debate on the matter and, like the blasphemy provision, there have been many reports that have recommended deletion. The time was now to delete that article and to have the bigger debate that is also necessary about how we can recognise the very important role of carers and the very important rights and needs of those who are cared for as well. It is unfortunate that this referendum has been delayed and I hope it will happen early in the new year.
The Labour Party group in the Seanad is proud to support the Bill.
The proposal to amend the Constitution is something which needs much more consideration than it has been given in public for a number of reasons. If one looks at the entire section of the Constitution and the article to do with free speech, it is quite clear that free speech and freedom of expression are guaranteed, subject to public order and morality. It is not an unqualified right of free speech and this amendment will not change that.
It is a curious feature of the proposed amendment of the Constitution that there has not been a fair analysis of what the term "public morality" as a constraint on the general right of freedom of expression actually means. Would there be a right to use freedom of expression as a defence for making statements in public, or publishing them, that would be considered blasphemous by most people if the right of the State to protect public morality is taken into account?
I approach this from a liberal perspective but I wonder why, in the terms of the Constitution, the criminalisation of blasphemy, indecency and sedition were expressly inserted by the sentence and paragraph with which we are dealing. They were expressly inserted as a qualification of the right to free speech. I have no doubt that historically it emanated from a desire to ensure free speech would not have been used, in the context of 1937, as a defence for what would otherwise have been considered outright blasphemy in publications or utterances. Therefore, this provision and this sentence must be looked at carefully.
We are leaving an article in the Constitution which says, oddly, that the utterance of sedition or indecency is an offence that is, and must be, punishable by law. That is an interesting concept. To utter something indecent is mandated by the Constitution as a criminal offence and punishable in accordance with law. The same is currently true of blasphemy. When one thinks about it, clearly it was not desirable that this kind of criminal legislation was inserted into the Constitution and that something was asserted to be a crime without defining it and it had to be a crime as a matter of constitutional obligation on the State and punishable in accordance with law. What is left when the word blasphemy is taken out? There remains an article saying the utterance or publication of indecency or sedition is an offence punishable by law. Sedition has a clear meaning. It is an undermining of the State and a challenge to the State's authority combined with some kind of urge of rejection and overthrow of the State's authority. That is what most people would understand by the term "seditious".
Indecency, on the other hand, is a concept that is utterly flexible depending on the mores of the time. What was considered indecent in 1937 is different to what is considered indecent today. Many things that are published and uttered today and are not considered indecent in 2018 would certainly have scandalised and shocked jurors and judges to the point of a certain conviction in 1937. We have a conundrum now that a paragraph is being left in the Constitution that says that the publication of seditious or indecent matter is an offence which shall be punishable in accordance with law but that blasphemy can never fall into that category.
Senator Bacik said she welcomed the proposal to repeal the section. I wonder about a possible case in which utter and gross blasphemy is published in a magazine. If something is published that would offend the great majority of practising Catholics, like a black mass, a complete inversion of the mass, or an association of it with something sexual, or defecatory, or something similar, is that not to be a criminal offence? Is that to be decriminalised but indecency to remain criminalised?
A better amendment would have been that the right of free speech and freedom of expression guaranteed by the article may be regulated by the State on the grounds of blasphemy, indecency or sedition and not to say it is a criminal offence punishable by law but merely say there is a right on the part of the Oireachtas to defend religious sensibility at some extreme level. I am mystified that we should now say nothing in Ireland can be prosecuted on the grounds that it causes massive offence by its blasphemous character and it cannot be restrained in any way, whereas something which is indecent - pornography of some kind, although these days it would have to be extreme pornography - is still to be criminalised under the Constitution.
This is an all Stages debate and it can be discussed again later, since we are dealing with the Second Stage now, but I would like the Minister of State to explain to me if he thinks that nothing could be published in Ireland of a blasphemous nature that should attract any sanction at all in any circumstance. To those who say we need to consider Islam, Judaism, Christianity and various other religions, I say we should remember that Christianity was the central religion of the community that adopted the Constitution and the Preamble still reflects that. I ask the Minister of State to be clear. Is it to be the case, as we discuss the principle of this, that nothing of whatever foul, offensive and demeaning nature, striking at the very heart of the Christian faith, can be sanctioned in any way by the State? That is a radical proposal.
I would like people to realise the withdrawal of this word from the Constitution, coupled with the Minister's stated intention to repeal the relevant sections of the Defamation Act, means that this is the situation that will exist after these two steps are taken. I wonder if the great majority of Irish people think that is a good idea. It could have been done differently. We could have said that the State "may" curtail the right of free speech to protect its authority through sedition, protect public morality through laws on indecency or protect religious sensibility on the grounds of blasphemy. We could have had a different clause in the Constitution. I doubt that most people would, hand on heart, say that in the future anything, no matter how offensive, no matter how repugnant to religion, can be published with impunity in the IState. Is that where we are going?
I thank Senators for what I first thought would be a brief debate but which has turned out to be a considered and thoughtful input into this discussion. Obviously, we are putting the question to the people, who will make the decision at the end of the day as to whether this is to be changed. It is the people's decision and, as has been mentioned by Senator Bacik and others, there have been many reports over the years which have advised that this be put to the people. The people will decide. Colleagues who do not agree can obviously campaign on it but we will see what happens when it goes to the people.
Again, I thank the Seanad for facilitating this debate. Most speakers have welcomed the proposal to remove the offence of blasphemy from the Constitution. If it is passed here today, the work of the Referendum Commission can begin in earnest. An order has already been made under the Referendum Act to establish the independent statutory Referendum Commission for the purpose of the referendum which is planned to be held on 26 October next, at the same time as the presidential election. Again, I think it is good practice to do that because, as mentioned by Senator Bacik and others, it reduces the cost and also facilitates people going to the polls in that they will be voting in the presidential election, and when they are there, they can also give their views on this. I understand that, in accordance with the Act, the Chief Justice has nominated Ms Justice Isobel Kennedy to act as chairperson to the commission. The principal purpose of the commission is to prepare, publish and distribute to the electorate statements containing a general explanation of the subject matter of the referendum proposal, to promote awareness of the referendum and to encourage the electorate to vote. The Government is immensely grateful to the commission for the work it will undertake.
A number of points have arisen in the debate. Some Senators, in particular Senator McDowell, queried the retention of the reference to sedition or indecent matter. I agree that the language is somewhat outdated but this referendum is not a general modernisation of the Constitution. The context is one aimed at removing a provision which may inhibit legitimate freedom of expression because it has the potential to criminalise that expression. There is positive harm here which the proposed constitutional amendment is intended to address. That amendment, if agreed, will also be a small step in emphasising the fact we are a tolerant and inclusive society where diversity and pluralism are evident and where engagement between those with different value systems can take place free of the shadow which the constitutional provision creates. These broader issues around diversity and tolerance do not arise in respect of the reference to sedition and indecency. I am sure we can all agree it is right and proper that there would, for example, be an offence relating to the production and distribution of child pornography. Senator McDowell mentioned in his comments that it would want to be very extreme indecency. However, such damaging material is out there and very available, about which we should all be very concerned.
As the years and decades go by, our understanding and definitions of these matters develop and change. Some of what was considered indecent in 1937 would not be considered indecent today. Likewise, I contend that some material and some offences will always be indecent, no matter what or when. That is the way it should be. We must be alert to that and keep debating it and I welcome the questioning on it. I agree with regard to the logic behind offences intended to criminalise acts aimed at attacking the constitutional order and institutions of the State and I suggest we are at one on that matter. However, there is not the same imperative to amend the Constitutioni n regard to these matters as there is in regard to blasphemy. The Senator spoke about extremes where religion is concerned. If we go that far, we get very quickly into the area of incitement of hatred. There is a balance to be struck in that regard also.
I am not sure whether Senator McDowell is for or against the proposal. I did not hear him say one thing or the other in the end. However, I welcome the questioning, which is important. We have general support for the Government's proposal in the House, which I welcome. I hope the tone of the campaign to come will also be respectful. I hope that when people see the merits of the proposal, they will vote for deletion. As I said, there have been repeated calls over the years for the removal of the blasphemy reference from the Constitution and there have been many advocates for change in this area. It has taken quite a while to bring this to the Houses but we now have an opportunity to deal with the matter and put it to the people. We are a modern and democratic society where freedom of expression is a core value and we no longer need a constitutional provision, however notional, that acts as an undesirable check to that value. I very much hope the proposal to remove the offence of blasphemy will get widespread support on 26 October next.
By way of response to Senator Mullen, the existence of the current constitutional provisions in regard to blasphemy creates an imperative to give effect to that provision in primary legislation. It does not matter that there have been no successful prosecutions of the offence in living memory. The provision is there and it identifies Ireland, however incorrectly, as a country which does not value freedom of expression and as a country which gives constitutional protections to a concept which many would regard as obsolete. Its very existence supports those in other countries where the concept of blasphemy has a very real meaning, a meaning which can entail considerable suffering for those who fall to be punished under the law which supports it. Senator Bacik and others have alluded to the fact that our situation has been used in other jurisdictions in support of that position.
Senator Mullen also raised the possibility that the blasphemy reference should be replaced by a general provision to include a prohibition on incitement to religious hatred. In reaching its decision as to the course of action to be followed, the Government is conscious of the fact the provision relating to incitement to hatred is likely to prove very difficult to draft at a practical level. Furthermore, the Government took the view that the Constitution was not the place to address this matter and that the specifics of any incitement to hatred provisions were best addressed in primary legislation, which could, if necessary, evolve over time in an organic way.
Again, I thank colleagues for a good debate and raising some important matters. I look forward to the remaining Stages.
- Thirty-seventh Amendment of the Constitution (Repeal of offence of publication or utterance of blasphemous matter) Bill 2018: Second Stage
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- Thirty-seventh Amendment of the Constitution (Repeal of offence of publication or utterance of blasphemous matter) Bill 2018: Committee and Remaining Stages