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

Question proposed: "That the Bill be now read a Second Time."

It gives me great pleasure to be with Senators to present the Blasphemy (Abolition of Offences and Related Matters) Bill 2019. It is always a privilege to come before this House to advance new legislative proposals, and I am particularly happy to be here today to propose legislation that is intended to give effect to the outcome of a referendum to amend the Constitution.

Senators will recall that until late last year, Article 40.6.1°.i of the Constitution specified that the publication or utterance of blasphemous, seditious or indecent matter was an offence which should be punishable in accordance with law. Senators will also recall that in early autumn of last year, this House approved the Thirty-seventh Amendment of the Constitution (Repeal of offence of publication or utterance of blasphemous matter) Bill 2018. The proposal in the referendum Bill was not brought forward in a vacuum. Over the years, there have been a number of reports in which the constitutional reference to blasphemy was considered. All of those reports recommended that it should be deleted.

Following the passage of the Bill, a referendum was held in October 2018 on the proposition that the reference to "blasphemous" should be removed from the Constitution. That proposal was approved by the people in all 40 constituencies, and by 64.85% of voters nationally, in the referendum which took place on 26 October last. The Bill was signed by the President on 27 November 2018. During the progress of the Bill and in the course of the referendum campaign, it was made clear that the implementing legislation would be advanced as quickly as possible. Subsequent prioritisation of Brexit-related projects in early 2019 resulted in a slight delay. I thank the Members of this House for their co-operation in making the necessary time available for us to deal with the Bill at this time.

The legislation before us is short and technical, which reflects the outcome of the referendum in October last. Its Title, the Blasphemy (Abolition of Offences and Related Matters) Bill 2019, describes in precise terms the purpose and intent which underlie this five-section Bill.

It is important to bear in mind the policy of the Bill has already been settled by the referendum result and that the legislation simply gives effect to that policy choice. At the time of the publication of the Thirty-seventh Amendment of the Constitution (Repeal of offence of publication or utterance of blasphemous matter) Act 2018, the Government also agreed to the publication of a general scheme to implement the consequential legislative changes required if the referendum proposal was agreed. The key element in that scheme was the repeal of the statutory offence of blasphemy which is contained in the Defamation Act 2009. That scheme does not vary materially from the Bill before the House today with one point of difference relating to section 1.

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

Sections 2 and 3 provide for the deletion of the reference to "blasphemous" in section 7 of the Censorship of Films Act 1923 and section 3 of the Censorship of Films (Amendment) Act 1925. These amendments are not strictly necessary to implement the referendum result but they were included in the general scheme to remove all references to blasphemy in primary legislation.

In terms of historical background, surviving records from the Irish Film Classification Office do not always give a detailed reason for the initial prohibition of particular films. Accordingly, it is not clear how much usage has ever been made of these sections. According to a search of surviving records since 1968, only ten titles have been prohibited on grounds of blasphemy, sacrilege or heresy, or where offence to religious convictions was cited as a reason. The last such prohibition was in 1981 and it was successfully appealed in the same year.

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

In the Supreme Court judgment, the late Mr. Justice Barrington considered the framework of the Constitution which stated in Article 40(6) that "the publication or utterance of blasphemous matter is an offence which shall be punishable in accordance with law" while also guaranteeing freedom of conscience, the free profession and practice of religion, as well as equality before the law for citizens of different religious beliefs or of no such belief. The judgment underlined that the Constitution did not define what this offence of blasphemy involved. The common law offence of blasphemy, which the drafters of the Constitution seemed to have had in mind, was bound up with historic ideas of an established church and an established religion. The court held that it was difficult to see how such an offence could have survived the adoption of a Constitution that guaranteed freedom of conscience. The Supreme Court concluded, therefore, that in the absence of any constitutional or legislative definition, it was impossible to say of what the offence of blasphemy consisted.

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

The Government previously signalled its intention that sections 36 and 37 would be repealed in the event that the constitutional amendment was agreed to by the people. We are fulfilling that undertaking today.

Section 5 is a standard citation and commencement provision. The offence of blasphemy created by the 2009 Act is quite difficult to prove. There appears to have been no prosecution to date. The last recorded State prosecution for blasphemy in Ireland took place in 1855. Even then, it resulted in an acquittal. However, that analysis misses a more important and fundamental point which was clearly underlined by the outcome of the referendum on this issue. It is that criminalising blasphemy, with the risk of a chilling effect on free expression and public debate, has no place in the Constitution or the laws of a modern republic. Ireland is a country of increasing diversity and the right to express differing viewpoints in a forceful and critical manner is a right to be cherished and upheld.

The removal of references to blasphemy from the Statute Book is not an attack on belief nor is it intended to privilege one set of values over another. It is a simple acknowledgement that the meaning of the concept of blasphemy is unclear and that the concept is rooted in a past where fealty to the State was conflated with fealty to a particular religion.

There is also the international dimension. It may seem abstract to devote time to abolishing an offence which has not been prosecuted in practice but not when several countries actively prosecute charges of blasphemy. Those charges can carry severe penalties, including terms of imprisonment, physical punishments and even the death penalty. They have also been applied in a discriminatory manner to justify the persecution of dissidents or of religious minorities. Such countries justify those regimes by referring to the continuance of blasphemy as a criminal offence in Ireland. That is a disturbing reality, and I am happy to propose a Bill which will address it.

The criminalisation of expression alone is not something which we should stand over. It is, of course, a different matter if that expression is geared towards inciting hatred or violence. Where that is the intention, the criminal law must indeed come into play. I acknowledge that the abolition of the offence of blasphemy is, on the face of it, a relatively small step. Nonetheless, it is both an important symbol and a tangible expression of our status as a modern and democratic society where free speech is valued and where multiculturalism is embraced.

I commend the Bill to the House.

The Fianna Fáil Party will support this legislation.

On 26 October 2018, citizens voted overwhelmingly - 64.85% - in favour of removing blasphemy from the Constitution. In 2009 the then Fianna Fail Minister for Justice and Law Reform, Dermot Ahern, stated that as a republican his personal opinion was that church and State should separate and that he favoured abolishing the offence of blasphemy. However, the economic climate at the time ruled out the proliferation of referenda that we have these days. It is good that it has come to fruition now.

With this Bill, we are putting into effect the wishes of the people. Ireland was just one out of seven countries in Europe where blasphemy was an offence prior to the referendum. The Constitution had provided that the offence of blasphemy was punishable according to law and provided that a person could be liable upon conviction for a maximum fine of €25,000.

Why should we remove blasphemy? Freedom of expression is the cornerstone of democratic society. Any constraints on it must be clear and limited. This is not the case with Article 40. The provision does not protect non-believers and elevates religion over other forms of discrimination. Ireland has changed immensely since the 1937 Constitution was promulgated. The most recent census figures in 2016 show that no religion is the second largest category of respondents after Roman Catholic, accounting for 9.8% of the population.

Autocratic regimes have cited Ireland as an example of blasphemy laws when creating their own stringent limits to freedom of expression. Indonesia is one of several Islamic states which cited Ireland’s blasphemy legislation in support and defence of its own. Irish blasphemy law was cited as an authority in support of Indonesia’s constitutional court decision to uphold its law prohibiting blasphemy in 2010.

We must draw attention to the Government’s failure to legislate against hate crime. Hate crime legislation has the potential to protect deeply-held religious beliefs far more effectively than blasphemy laws ever could. Effective hate crime legislation would ensure that all religious groups are protected from incitement without unduly constraining freedom. In 2016, Fianna Fáil introduced the Criminal Justice (Aggravation by Prejudice) Bill. It has cross-party support and passed Second Stage. It has undergone pre-legislative scrutiny but the Government has not issued a money message pursuant to Article 17.2 of the Constitution. This is needed for the Bill to proceed further. The Republic of Ireland is one of a small minority of EU countries which does not have legislation to deal with hate crime. The Bill’s provisions have been supported by all the eminent relevant bodies, namely, the Law Reform Commission, the Constitution Review Group, the report of the special rapporteur on freedom of religion and belief, the report of the Oireachtas Joint Committee on the Constitution, the Venice Commission and the UN Human Rights Committee. The Convention on the Constitution voted 61% in favour of removing blasphemy from the Constitution.

They were more ambivalent on legislative provision, with only 50% voting for legislation to protect against incitement to be included. That is something of an anomaly.

All present know of the most celebrated cases in which blasphemy charges were laid. Twelve people were killed in the office of Charlie Hebdo as a result of the publication of a satirical cartoon depicting the prophet Muhammad. Stephen Fry did us all a great service when he was interviewed on "The Meaning of Life with Gay Byrne" television programme some years ago. Although it did not convince me, it was the most cogent argument in favour of atheism I have ever seen. Stephen Fry was entitled to make that argument. The frankness with which he addressed the issue was somewhat shocking and I can understand why people of deep belief may have been upset, but that upset pales into insignificance against his right to express that opinion. The programme was a landmark in many ways and he is to be thanked for that.

I could go on, but I think we are all on the one hymn sheet. It is to be hoped that the Government will expedite what needs to be done in regard to hate crime. If it does, we will be with it all the way.

I will not oppose the Bill, but I will make some passing remarks on it because there are certain consequences of its enactment which deserve to be, at least, considered or noted before we give it the nod through the House. One of the most cogent arguments for its adoption is the fact that legislatures across the world point to Ireland as a reason to have blasphemy laws in their jurisdictions which are much more severe in terms of consequences for ordinary individuals. I am a liberal and have no problem with people mocking the religious views of others if they so wish. It has been part of society on these islands for a long time. Popery and Protestantism were the subject of mutual abusive remarks for many years at the highest and lowest levels of public discourse. The utterance of words directed at one side or the other through the centuries was not and is not the problem. Senator O'Sullivan pointed out that we may have to look at hate crime in the context of scrapping the laws of blasphemy. For instance, I have no interest in protecting the Book of Mormon from ridicule or satire or according the protection of religion to Scientology, for example, which does not merit any protection in a rational society.

The Government, perhaps with a view to ushering through the blasphemy referendum, failed to carefully consider the remainder of the Constitution. As Senators know, Article 44 was amended to remove the special position of the Roman Catholic Church and references to various other denominations, including the Jewish denomination. The inclusion of the reference to the latter domination was quite a progressive and enlightened measure for a Constitution adopted in 1937 in light of native anti-Semitism in Ireland and prevalent anti-Semitism across Europe at the time and not just within the Nazi ideology. Article 44.1° of the Constitution as it currently stands provides:

The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.

The Constitution still contains a provision that "the homage of public worship is due to Almighty God" - presumably the Christian God referred to in the Preamble to the Constitution - and states that "It shall hold His Name in reverence, and shall respect and honour religion." Does a state respect and honour religion if it allows unrestricted assaults of the most insulting kind on religion?

An interesting definition was included in the Defamation Act in response to comments by the Judiciary regarding the difficulty of prosecuting for blasphemy in the absence of its definition. Section 36(2) states:

a person publishes or utters blasphemous matter if— (a) he or she publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion, and (b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage.

A complete defence to prosecution was provided in cases where it is possible to prove that "a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates". In other words, one would have to be able to prove that the utterance or publication was for the purpose of argument, etc. Under the Bill, a gratuitous attack on another person's religion, without reasonable foundation in political or moral discourse or elsewhere and based on an intention to cause offence to the adherents of that religion, would be legalised. Such an attack would involve an intent to cause offence and outrage without a reasonable basis for so doing, such as trying to promote debate and so on. A person such as myself may query whether Joseph Smith ever had a Book of Mormon, whether the Angel Moroni ever appeared to him and whether that religion is based on a fraud, or assert that L. Ron Hubbard, the founder of Scientology, is a complete fraud. One can make cases such as those for the purpose of argument, as happens on a frequent basis. However, I am referring to a person doing something designed to cause outrage. For example, one may seek to offend Catholics by publishing material designed to cause outrage and involving associating footage of a Mass with lewd, indecent or revolting aspects of human behaviour. Under the Bill, that would be legalised. It is not sufficient for Senator O'Sullivan to state that this can be dealt with under legislation relating to hate crime. If I publish something appalling about the act of transubstantiation as it is understood by Catholics, combine it with lewd or filthy material and put it up on advertising hoardings around the country and my intention is to offend and cause deep distress among Catholics, I would be committing an offence under the existing law. However, doing so would not be an offence if the Bill is enacted unless it could be proved that it was an attempt to cause hatred against Catholics, which is quite different from shocking them to their core and causing them to be upset to the marrow of their bones.

I am a liberal who is in favour of freedom of speech and the right of anybody to mock and deride vigorously the philosophical and religious views of others. However, this Bill goes a little further than that. I do not have to bring a placard or a draft of a hoarding into the House to show how one could put something up that is designed simply to offend, disgust and antagonise. It would not be an attempt to incite hatred but rather an attempt to show contempt for, rubbish and insult a particular view without involving hatred. Perhaps it is time for Article 44.1° of the Constitution to be repealed. To reiterate, it states:

The State acknowledges that the homage of public worship is due to Almighty God [capital "A" and capital "G"]. It shall hold His Name [capital "H" and capital "N"] in reverence, and shall respect and honour religion.

That was clearly inserted as a Christian provision, not one representing Scientology or any other religion. Would we be wise at this stage simply to say that there is nothing wrong whatsoever in setting out to disgust people and having no protections for the persons who are disgusted? I acknowledge the difficulty in making that case. If we look at the preamble and various portions of the Constitution, it still has what was once described by the Judiciary as the character and flavour of a Christian and democratic society. That is not necessarily a bad thing.

The Senator is making very interesting points. However, I must warn him that he is in injury time. I thought we all accepted that regardless of religion, there is but one God.

I do not have much more to say. I do not care what a person's religious opinions are. I do not care whether a person is a militant atheist or agnostic. My position is that we should not enshrine in law a right to disgust other people on a matter of such centrality to their personality while Article 44.1° remains in the Constitution. I do see that the other side of this coin is Charlie Hebdo. Discrimination between practitioners of various religions is a problem. My view - I say this very carefully - is that the failure of many prominent people in Islam to distance themselves from the death penalties being handed down in certain countries to Christians accused of blasphemy is a black mark against those people, whether they reside in Ireland or elsewhere.

I do not intend to oppose the Bill. I emphasise, however, that in getting rid of what is in the Defamation Act, we are stating categorically that it is henceforth lawful to disgust other people for the purpose of disgusting them and without any other excuse except for the pleasure of attacking their religion gratuitously in the most insensitive way. I wonder whether that will be a positive step forward. My view is that there must be some counterbalancing legislation that does something about community relations rather than simply taking out the scalpel and removing all protections for religion, especially in a context where Article 44.1° of the Constitution is retained.

The Senator has highlighted what may be an interesting contradiction in the Constitution.

I welcome the Minister of State, who is a regular visitor to the House. As I was overseas yesterday, I missed the first day of the new Seanad term. I commend all involved in restoring the Chamber to its natural beauty. The historical parts of Leinster House are looking very well. It is good to be back home in the old Chamber where many good laws were passed over the years.

As spokesperson on justice, I am honoured to steer this legislation through the House on behalf of the Fine Gael group. It is one of those unique Bills whose content was decided by the people in the referendum that was held last May. All we are doing is putting into effect their decision. I listened carefully to the points made by the two previous speakers. Senator McDowell raised some of the same well-articulated concerns during the debate on the referendum Bill. The reason we are here is to point out where there may be challenges and difficulties. With his immense legal expertise, Senator McDowell's contribution must receive due consideration. I hope that in devising future legislation, the counterbalance he articulated will be taken into consideration.

I agree with Senator O'Sullivan, always a man of wisdom in these matters, on the need for legislation to deal with hate crime. He is absolutely right that we need stronger, tighter and more effective provisions to deal with such crime. I am a member of the Oireachtas Joint Committee on Justice and Equality, where next week representatives of the social media companies will speak to us about what they are doing to deal with cyberbullying, cyber harassment and cybercrime, and their immense responsibility to ensure people's freedoms and integrity are protected. There is a bible of work to be done in this fast-moving area. Every week there are new social media websites, apps and other ways of communicating. There are platforms where messages can be posted for a few seconds before disappearing. That is the type of nonsense we are seeing. As legislators, we must try to keep up with developments and ensure people's privacy, decency and integrity are respected. The Leas-Chathaoirleach is Chairman of the Seanad Public Consultation Committee, which does fantastic work. It might consider examining the issue of hate crime and what we can do as legislators to protect people.

As the Minister of State explained, this Bill is largely technical, its purpose being to give effect to the decision of the people in the referendum. It was a massive endorsement of reform, with 86% voting yes. The only referendum in recent times that was passed by a larger margin was the proposal for the removal of Articles 2 and 3, which was almost unanimous at something like 90%. It is good that we are dealing with all Stages today so that the Bill is done and dusted.

It is another incremental step in the direction of modernising the Constitution and making it reflective of our society as it is today.

I speak from the point of view of a believing, churchgoing Christian. I go to St. Patrick's Cathedral and to St. Bartholomew's Church in Clyde Road, where I sang in the choir as a child every Sunday for holy communion. I am not an militant atheist and I am not trying to wreck the Christian context of this country. However, I believe also, as strongly as I believe in my religion, in the separation of Church and State. We have heard that 10% of the Irish people in the last census identified as atheist, and there are Muslims - those of Islamic faith - and Buddhists. A substantial section of our population do not necessarily believe in Jesus Christ and the invocation of the Trinity in the opening of the Constitution, which means nothing to them or is offensive to them. That should all be removed. As a believing Christian, I believe it appropriate to remove all those references, including the one in Article 44.1 of the Constitution which states that we acknowledge the homage that is due to God Almighty, and so on. Those are inappropriate, in my opinion.

To look at it this way, the great dean of St. Patrick's, Jonathan Swift, would be absolutely banged up on a blasphemy charge for A Modest Proposal and for his various diatribes on religion. The great dean, Jonathan Swift, would be up in court if we maintained this legislation.

There have been a series of reports that concluded that we should get rid of blasphemy. A referendum went through and was approved by people in all 40 constituencies. However, I have to correct my good friend, Senator Martin Conway, that it was not 88% but 64.5%, so it was not as overwhelming as might at first have been thought.

In my opinion, God - if one believes in God - is well able to look after himself or herself. The Garda Síochána is not needed to provide protection for God. It is absolute nonsense. However, it does damage, and there is no question or doubt about that. I was here when the Fianna Fáil Minister, Dermot Ahern, was speaking about this and refusing to remove blasphemy. I argued that if we continued it, and if we re-enacted this Bill, which is what he was about, within a very short space of time, some of the Islamic countries would turn to us and say, "You accuse us of harassing, torturing and killing people on an offence of blasphemy, and look at Ireland, in the middle of 21st century Europe, it is introducing its own blasphemy legislation", and they would be followed by Indonesia. These are places where the most terrible revenge is wreaked on people, simply for being Christian, which they regard as blasphemous. I thought it was politically very counterproductive.

I am glad to see film included. I remember when "The Life of Brian" was banned in this country for blasphemy, which was ridiculous. It was a thoughtful, wonderful, marvellously comic investigation of the situation in which the wrong person was chosen as Jesus. It was a wonderful film. I would hate to think of that being got rid of again.

With regard to "The Book of Mormon", I have been visited by the Mormons and I have always tried to be courteous to them. However, when they told me that the Holy Ghost had flesh and bones but no blood, I suggested an immediate transfusion for the poor old boy. I suppose I could have been done for blasphemy under that. The one really good thing about "The Book of Mormon" is that it shows so reassuringly that God is still speaking the English of the King James Bible, which is so reassuring to those of us of the Anglican faith.

There are also other issues. I remember when Gay News was banned and we used to distribute it through the Hirschfeld Centre. It was banned in Britain as a result of a prosecution taken by Mrs. Whitehouse and our copies were seized at the airport. Therefore, I have direct experience of the operation of this kind of legislation.

I speak from the situation of somebody who is a believer. I am not frightened by blasphemy coming out. There are other ways of dealing with this. If a grave offence is being committed by some public act of blasphemy, we have breach of the peace legislation which can cover that quite easily. I am not so despondent as Senator McDowell, despite his very wide legal experience, about the question of hate crimes. I would strongly support Fianna Fáil in the introduction of legislation on hate crimes. That seems to me to be a practical and efficient thing, and it might get rid of some of the worst excesses. However, I honestly do not think this country is boiling over with people who want to desecrate the communion, hold black masses, blackguard the holy family and all of that. It is just not Irish. I am quite confident this Bill is a good thing and I will be thoroughly supporting it.

I was listening to Senator McDowell's remarks before leaving my office and I was very impressed by everything he had to say, particularly in the way he pointed to the incoherence between the constitutional change that the Government went to great efforts to bring about and the remaining existing provisions in the Constitution. He is warning about absolutely gratuitous attacks on religion now being facilitated by this. His point was very wisely delivered in the context of his very liberal concern to protect and guarantee free speech.

I was also struck by what Senator O'Sullivan had to say in regard to hate crimes. I might take this opportunity to say that I do not believe legislation on hate crime is at all a solution to the kind of problems we are facing. There is real confusion in people's minds when they seek to criminalise the motivation for crime. It is the action that is criminal. The motivation might very well go to sentencing, but it is cultural solutions we need in order to tackle the hatred that underlies certain crimes. There is a real confusion in significant parts of the cultural establishment about this issue.

Was what happened to Mr. Lunney in recent days, one of the most brutal things to happen in the history of this State, and something that make us all sit up and think about what is happening to our society in a way that may or may not be connected to with the decline in religious practice - was what happened to him a hate crime? Was it any less serious for not being a hate crime of the kind that some people would like to define in this country? We need to be very careful when we fail to make the distinction between the motivation and the action.

Today, the Seanad is again devoting time to an issue which is so divorced from the concerns of ordinary people, so totally irrelevant to their daily lives, as to almost reduce what we are doing in these Houses at this moment to the level of a joke. It was the widely respected former Chief Justice, Mr. Justice Keane, who said in 1991 that a referendum to remove the blasphemy provision would be a time wasting and expensive exercise, and he was correct. After wasting millions of euro on a referendum to abolish a dead letter constitutional provision last October, we are now devoting our time to abolishing a number of dead letter legislative provisions which flowed from it. Why? I think it is the intention to provide more politically correct red meat to the now-dominant cultural elite in this country. I can see no other good reason all of this is happening. There is no significant cultural mischief that is being addressed here.

What about Pakistan and Indonesia?

I was about to say that I do accept there is a certain legitimacy to what the Minister of State said in regard to other countries invoking Ireland's law. However, the logical and sensible thing to do is not to endorse their point of view by pretending that our law was ever the same as theirs, but to take every opportunity in diplomatic fora to condemn them for making such bogus comparisons.

It is an intellectual and political weakness that fails to see that distinction.

The abolition of the offence of blasphemy has been packaged by the Government as if it is some great advance for human freedom, correcting a serious injustice. The Minister of State, Deputy Stanton, introduced the Bill in the Seanad and seemed to suggest that the existing blasphemy law had made Ireland an international pariah. I do not believe that. It ignored the fact that there has not been a prosecution for blasphemy in this country since we gained our independence, the most recent prosecution having been in 1855 when we were still part of the United Kingdom.

The provision on blasphemy was rendered a dead letter in 1999 in the Supreme Court decision of Corway v. Independent Newspapers in 1999 when a private prosecution, referred to by the Minister of State, was thrown out. A 2017 report by the United States Commission on International Religious Freedom found that our laws on blasphemy were among the least restrictive in the developed world.

Sections 36 and 37 of the Defamation Act 2009, which the Bill proposes to repeal, were deliberately drafted to effectively ensure that no prosecution could ever be brought. The then Minister for Justice and Law Reform, Mr. Dermot Ahern, openly admitted that this was its aim. This did not stop many Senators, particularly in the Labour Party, from making outlandish claims that those sections would open the door to a slew of prosecutions. I doubt that any of those Senators, if they are still with us - I know one of them is - will now acknowledge that they were entirely wrong.

In summary, the laws on blasphemy, as they existed, have never impinged, even in the slightest way, on any Irish person. In spite of this, we have spent millions of euro and wasted much Oireachtas time in an effort to abolish them. We should think about what is going on in our country when those are the kind of political priorities we have.

The Bill before us proposes to repeal two sections of the Defamation Act. I had understood that a statutory review of that Act was under way. Such a review was announced in December 2016 and I am not aware of any conclusion having been brought to that process, although I may be wrong in that regard. Perhaps the Minister of State will clarify that point. Could the Government not have waited until the conclusion of that process and removed sections 36 and 37 at that stage? With no prosecutions in 150 years, was it really so urgent to proceed with the amendment now?

There are other aspects of the Defamation Act which need to be amended. I am aware that a lacuna was exposed in section 23 of the Act in two recent cases of the Court of Appeal, White v. Sunday Newspapers Limited and Higgins v. Irish Aviation Authority, both of which were heard in 2016. Those judgments require that damages in cases where an offer of amends had been made be assessed by a jury and not by a judge, causing additional cost and clogging up the jury list in clear contravention of the intention of the Act. The Government has not addressed that issue, yet it is now rushing through this amendment to the Act on an entirely separate matter.

Last year, I stated that I saw no reason we should not have purely symbolic words in our law which recognise religious practice and expression but which pose absolutely no threat to pluralism and free speech. We could have left the general provision against blasphemy in our Constitution. I say that somewhat in the spirit of what Senator McDowell was saying. While not in any way wishing to put words in the Senator's mouth, he was clearly saying that we need to protect a civility in our discourse in society and that there is a value in having some nod in the direction of the undesirability of blasphemous commentary, but with due regard to the almost always overriding imperative of protecting free speech. This issue has nothing to do it with free speech. We have no problem with legislation that prohibits certain other statements being made outside of religious contexts. In the Prohibition of Incitement to Hatred Act 1989, for example, we clearly acknowledged that speech is not to be unlimited. Perhaps the Minister of State can explain the reason we can support that legislation while, at the same time, rushing this irrelevant legislation.

In 2013, the Convention on the Constitution proposed that the proscription of blasphemy should be replaced with a new general provision which would ban incitement to religious hatred, whereby all religious denominations should be given equal protection. Not surprisingly, the Government ignored that suggestion. Religious freedom is considered a fundamental right protected in international human rights law across the world. There is rarely any discussion of Article 18 of the Universal Declaration of Human Rights in these Houses because the mere acknowledgement of any right to religious freedom in this time and place and in this cultural establishment would be a no-no and would run contrary to a certain national self-image that is being promoted, namely, that Ireland is now a new, liberal, tolerant, post-religious society. Whatever about a desirable secularism and a healthy separateness between the business of the churches and the State, which we would all support, there is a difference between being a modern, secular, tolerant, pluralist society and being an anti-religious society. That is what many people seek to turn Ireland into.

I am certainly not referring to Senator Norris. The people who seek that outcome are undermining Ireland's future and opening up a future where populists will thrive because there will be no desire-----

The Senator is well over his time.

-----to reflect on our heritage and on the things that bind us and have bound us in the past, for good or ill. The only policy that seems to satisfy some people these days in relation to religious practice is one of erosion and denigration. This is the problem of people scratching an itch. There is a certain itch about religion and faith that people feel they have to scratch. Unfortunately, they should not be scratching it at the expense of the taxpayer and wasting so much time in the process.

I welcome the Minister of State, Deputy Stanton, to the House. I am delighted to express my support and the support of the Labour Party Senators for this Bill.

I listened, not exactly with surprise, to the previous speaker. I was disappointed that so much of Senator Mullen's input was devoted to saying what a waste of time this all was. The waste of time was the introduction in 2009 by the then Minister for Justice and Law Reform, Mr. Dermot Ahern, of a new statutory offence of blasphemy.

That was the waste of time, which Senator Norris and I opposed when we argued that its introduction was pointless. We further argued at that point for the removal of the constitutional offence. The referendum was necessary to tidy up what is the foundational legal document of the State. As I think Senator Mullen will agree, the text of the Constitution matters. Having gone through all of the consultations, which Senator Ned O'Sullivan and others spoke about, it is very important that we move to hold the referendum. This legislation is now necessary to give effect to the desire of the people who voted by a majority of 64.85% to remove the offence of blasphemy. I was involved as one of the political representatives on the Constitutional Convention in 2013, which also recommended the removal of the offence of blasphemy. It should never have been in the Constitution and should certainly not have been enacted into statutory format in 2009. This is a long overdue measure to give effect to the will of the people on this issue.

I do not believe that any one in this House is anti-religion. I am certainly not anti-religion and I believe very strongly in the need to ensure freedom of religious belief. As with freedom of expression, this freedom is important in any modern pluralist state. I spoke recently on this at an event with Archbishop Eamon Martin. We had something of a disagreement on the role of religion in the public sphere in that the archbishop seemed to suggest that politicians should be beholden in some way to religious institutions in bringing forth political views. I spoke very strongly in support of the separation of church and state because that separation enshrines religious freedom for individuals. If we start to give a dominant position to one religion in our laws or foundational documents, that would clearly be at the expense of people of other religions and none. That is a very dangerous position to be in and one we see in theocracies around the world.

We may also ask what tangible effect the text of a constitutional document or the existence of a statutory of blasphemy has. I have come from an excellent symposium in Trinity College this morning on diversity and inclusion in the workplace which we ran with the law school of Trinity College in conjunction with Matheson lawyers. The symposium heard powerful and poignant testimony from individuals who have come out as LGBTQ, including one woman who was the first person in Ireland to make a workplace gender transition. We heard very poignant testimonies about the chilling effect that laws that were discriminatory against LGBTQ people had on them and on the conditions in their workplace and how proud they were of an Irish society that is now much more inclusive. One woman, a senior executive, spoke about how proud she is to live openly as a gay woman in Ireland but how fearful she was on a recent holiday to a country which did not enshrine the same freedoms in law for gay people. We have to remember the tangible effect that laws can have, even if no prosecutions are brought. The existence of laws on the Statute Book have a chilling effect.

On Culture Night, the Minister of State's Department in its offices on St. Stephen's Green organised an excellent exhibition on the history of censorship in Ireland and I was delighted to go into it. One might ask what impact censorship laws have. For a long time they had a very chilling effect on freedom of expression in this country not only for authors whose books were banned but for anyone who sought to speak about sexuality, women's sexual expression or reproductive rights in this country. Laws have a chilling effect. It does not need prosecutions or convictions to feel that chill. No one knows that better than my dear friend and colleague, Senator Norris, who was so brave for so long in standing up against laws that were discriminatory and that had that chilling effect. I wanted to put that on the record.

As I said previously about the referendum of 26 October last year, the continued presence of the offence of blasphemy in the Constitution was not tenable in a modern democratic state. Any one who reads the history of it will know it is a medieval crime. It has no place in the Constitution or on the Statute Book of a modern republic. The change, as others have said, was one that was recommended for a long time, by the Law Reform Commission back in 1991, by the expert Constitution Review Group in 1996, and by the Constitutional Convention in 2013. My only regret about the referendum is that we did not also delete the other similarly anachronistic offences referred to Article 40.6.1o.i of the Constitution relating to seditious or indecent matter. I put this on the record when we were debating the referendum Bill. My only quibble with the referendum is that we should have taken the opportunity to delete those other references which are also there in the article.

A constitution is no place - I speak as a criminal lawyer - to declare acts to be criminal offences. That is a matter for statute and for legislators. Those anachronisms should be deleted also. Again, text matters. They may not be in use nor prosecuted every day nor anything like that, but they should not be there in our Constitution, just as the references to women's place in the home should no longer be there. I know the Minister of State is aware of that also.

There are three crucial reasons to welcome this legislation. First, this is outdated, and I have explained that with respect to the origins of blasphemy. Anyone who looks at the history of the use of blasphemy offences will be aware of that, particularly when we have a Republic that is, as it should be, premised on the separation of church and State. We have a long and shameful history of collusion between church and State authorities that has manifested in the oppression of women and children from disadvantaged backgrounds, notably in industrial schools, Magdalen institutions and so forth. As we have seen in recent votes, not only in the blasphemy referendum but in the referenda on marriage equality and repeal of the eight amendment last year, we have, thankfully, moved or are moving out of that era, but we still see dominant position for religious instruction in our schooling system. Today, I was proud to support Education Equality which is seeking the moving of religious instruction to at least the end of the school day in our school system so that children of minority faiths or no faiths do not feel discriminated against within the school day. That is an ongoing issue where we see 90% of our primary schools still under the patronage of different religions and predominantly under Catholic patronage. We have not moved fully out of an era where we have undue breaches of the doctrine of the separation of church and State.

The second reason is that the blasphemy offence is not only outdated but also unnecessary. It is an undue encroachment on free speech. Others have spoken about the growing recognition that blasphemy is an obsolete offence across Europe. The third reason, which is important, and I will finish on this point, as others have trespassed on colleagues' time and I will not do that-----

That is why I am being lenient with the Senator.

It is good to have one virtuous Senator.

I thank the Leas-Chathaoirleach and am indebted to him. Blasphemy law is dangerous and others have spoken about this. The continued existence of not only a constitutional but a statutory offence since 2009 here has been used in other jurisdictions where we have seen people of minority faiths, especially those who are Christians, being oppressed, abused or suffering terrible physical danger as a result of the continued existence of blasphemy laws and regard being had to our legal system as a justification. Others have spoken about that. It was another key reason I spoke strongly against that change in 2009 by the then Minister, Dermot Ahern, and why I am so glad to see us finally repealing sections 36 and 37 of the Defamation Act in this important legislation and giving effect to the very important vote of the people by more than two thirds last October to delete this anachronistic, outdated, medieval and dangerous offence from our Constitution.

Having heard all the speakers, I must say: "Long live the Seanad".

We can all agree on that.

I call the Minister of State to respond to the debate.

I agree with the Leas-Chathaoirleach that the debates in the Seanad are always very constructive, thoughtful, useful and welcome. I sincerely thank the Members present for their considered contributions and their views on this Bill in particular. I thank everybody for their co-operation in making extra time available to deal with all Stages of the Bill today.

Deputy Ned O’Sullivan rightly raised the issue of hate speech, hate crime and racism. As usual, the Senator's contribution was insightful. It is important to remember that the Prohibition of Incitement to Hatred Act 1989 already prohibits threatening, abusive or insulting conduct that is intended or likely to stir up hatred against a group or persons on account of, inter alia, their religion. The Department of Justice and Equality is carrying out a review of the 1989 Act to identify how it can be improved and made more effective in a modern democracy. As part of this review, a public consultation process will open up shortly to gather views on how our legislation on criminal hate speech can be updated to ensure it works effectively. The issues to be examined in the consultation will include the limits it is appropriate to place on freedom of expression when it comes to hate speech; the forms of hate speech that are serious enough that they should be criminal offences; whether the list of protected characteristics included in the legislation should be changed; whether the existing legislation is adequate to deal with online communications; and whether the requirement to prove intent to stir up or a likelihood of stirring up hatred should be altered. In addition, under the Criminal Law Act 1997, any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as a principal offender.

Separately, the Department is also undertaking research into hate crime and examining approaches taken in other jurisdictions. The research results are expected at the end of this year and will also help to ensure that hate crimes are addressed effectively in this jurisdiction. I thank the Senator for his interest in this issue and for raising it.

The Defamation Act was mentioned on a few occasions in the debate. The particular Bill before us proposes the repeal of the two sections of the Defamation Act 2009 that provide for an offence of blasphemy. Those sections were expressly excluded, from the beginning, from the statutory review of the Defamation Act, which was mentioned in the debate also, because they deal only with the offence of blasphemy and the Government had already committed to holding a referendum on the constitutional reference to that offence.

The Department of Justice and Equality is completing the review of the Defamation Act. I understand the review has undergone some delay due to other urgent legislative reforms and a number of important judgments of the Supreme Court, the Court of Appeal and the European Court of Human Rights, which had to be taken into account. However, extensive work has been done and the review is being finalised. The Minister, Deputy Flanagan, has indicated its completion as a priority for him and for the Department. He expects a draft report with options for reform to be submitted to him in the coming weeks with a view to his bringing forward proposals for legislative change to Government in early course. The review is addressing all the issues raised in submissions made to it, including the role of juries in High Court cases and the level of awards made.

The objective set for the Defamation Act review from the outset is to ensure that our defamation law strikes the right balance between protecting an individual’s good name and privacy and protecting the right to freedom of expression, taking account of the vital role in our democracy played by a free and independent press. I am sure Senators will agree these are important issues in a complex area of law, and the review will also draw on experiences of reform in other jurisdictions.

I listened to what Senator Bacik said about diversity in the workplace. I visited a number of workplaces recently and I am glad to say many businesses and companies recognise the importance of diversity in the workplace in all its aspects. They go so far as to say it not only makes for a better and happier workplace where people can be themselves and where they are recognised for their different abilities but it also impacts positively on the bottom line for companies. They recognise that and an increasing number of companies have diversity committees and subgroups extolling, championing and recognising diversity. That is to be welcomed.

I listened very carefully to the point made by Senator McDowell. I thank him for his thoughtful contribution to the debate, which is important, but I believe we can agree that current blasphemy law is not working. It has not proved in practice to be a proportionate or a satisfactory response to the concerns the Senator raised, so I am glad he is supporting the legislation.

I refer to the importance of calling out racism and hatred for what they are when we come across them. Part of my role concerns asylum seekers, refugees and all that space. There are tens of millions of people displaced across the world. We are doing our bit here as best we can to support people who come here looking for protection and to support refugees also.

We should be doing more and we can debate that on another occasion. I would be very concerned if people were to use religion as an excuse for not supporting people who come here for protection or were to make statements such as "This is a Catholic country for Catholic people" or "This is a white country for white people."

We should call that out for what it is. I welcome the recent support of, and remarks by, certain religious figures who have called that out for what it is and expressed their disgust that in some instances people have used religion as an excuse for not helping people who badly need our help and support. I encourage more people from all spheres of society to call out such behaviour for what it is because we cannot allow it to take root here. There are very evil and dangerous forces trying to gain a foothold in our country. I ask all Senators to stand up, be brave and identify and condemn racism and intolerance at every opportunity. I commend the religious figures who have done so and ask that more people do so. We must start preaching about love, not hate. I thank Senators for their time.

Question put and agreed to.