Dáil Éireann Debate, Thursday - 25 March 2010
2 Deputy Pat Rabbitte asked the Minister for Justice and Law Reform his views on whether there should be a constitutional referendum on blasphemy; his further views on whether such a referendum will be held in 2010; and if he will make a statement on the matter. [13237/10]
View answerMy views on the question of a referendum on blasphemy are as stated in the House during the debate on 20 May 2009 on Committee Stage of the Defamation Bill 2006. I clearly stated that I hoped the matter could be addressed by referendum at a suitable opportunity in the near future. In debates on the Bill in this House, I explained the nature of the constitutional obligation imposed, not just on me but on Members of the Oireachtas generally, in Article 40.6.1°.i of the Constitution, in regard to blasphemous libel.
Section 13 of the Defamation Act 1961 provided for the offence of blasphemous libel, which was punishable by monetary and prison penalties. Up to two years' imprisonment was possible under that legislation. Successive Attorneys General had advised the Government that until the Constitution is amended by referendum, it is necessary that blasphemous libel remain a crime and that legislation must make provision for punishment of this crime. This presented a certain difficulty if we were to proceed to repeal the 1961 Defamation Act and bring to a conclusion the lengthy process of reforming our defamation legislation.
Having regard to the constitutional obligation, I was faced with essentially two choices — although, probably a third choice was that I could drop the Defamation Bill altogether. Of the other two choices, the first was to put on hold the reform of defamation legislation and seek the Government's approval to conduct a referendum to delete the provision on blasphemous libel from the Constitution. This choice would have involved considerable expense as a stand-alone referendum. I believe it would have been an unwarranted diversion and would have attracted significant criticism as such. I made clear at the time that I felt this was not a viable option, given the current circumstances.
The approach that I and my Government colleagues favoured mirrored that of the Joint Oireachtas Committee on the Constitution which, in its 2008 report, recommended that the specific reference to blasphemy in the Constitution should be deleted. They were of the view that if there was a need to protect against religious offence or incitement, it is more appropriate that this be dealt with by legislative intervention with due regard to freedom of expression. At that time, however, the committee saw no need — and, subsequently, neither did I — for a constitutional amendment in the short term. Pragmatically, the committee was of the view that any appropriate opportunity should be availed of in the future. In other words, the matter was not of immediate importance.
The approach, which I felt had significant support, was to proceed with the reform of the defamation legislation and to make minimum provision in regard to blasphemous libel in the new Act. Section 36 of the Defamation Act 2009, therefore, removes the possibility of prison sentences from the old section 13 of the 1961 Act, and also removes the possibility of private prosecutions for blasphemous libel, as laid down in the 1961 Act. It also provides for a defence to a defendant who proves that a reasonable person would find genuine literary, artistic, political, scientific or academic value in the matter to which the offence relates. I commenced operation of the Act by order on 1 January 2010.
I remain of the view that on grounds of cost, a referendum on blasphemy on its own should not be held. It should possibly be run together with one or more other referenda. I would be happy to propose to the Government a referendum on blasphemy at the appropriate time when there will be a possibility of other referenda, in order to save costs.
I did not ask the Minister to explain what is in the Defamation Act, as I know what it contains. I do not want a justification of the Minister's seamless thinking on this issue because it took a hell of a hammering to get him to admit that he might contemplate a referendum. The question I asked him was whether he intended to hold a referendum and, if so, whether he intended to hold it this year. Could he answer that for a start?
It is not for me to decide here on the floor of the House whether I should hold a referendum. That is a matter for Government to propose and for the Oireachtas to dispose of. The Government has no plans to hold a referendum on blasphemy in the immediate future. However, as the Deputy knows, the programme for Government did indicate the possibility of referendums on a number of issues being considered by the Joint Committee on the Constitutional Amendment on Children and these may very well take place in the near future; I do not know. In addition, the Government has indicated that at some stage between now and the end of the Government's term of office, we will hold a referendum on the setting up of a court of civil appeal. If we were to have a number of referendums on one day, it would be appropriate to put to the people a question on the section of the Constitution relating to blasphemous and seditious libel.
I am amazed at that answer. The Minister says he has no immediate plans to hold a referendum, but he told at least one Sunday newspaper that he had such plans.
No, I did not.
The Taoiseach told me yesterday that he interpreted the Minister as saying he did intend to have such a referendum, the implication being that it would be held along with the referendum on the rights of the child. Is the Minister now resiling from the position that he intends to recommend to Cabinet that a referendum be held to excise this reference and that it be held this year along with the referendum on the rights of the child?
What exactly is going on here? If the referendum on the rights of the child were to proceed this year, the Government could not reasonably prevent the holding of three by-elections. I wonder whether the Government is teeing up a range of other putative constitutional referendums to be tacked on to the referendum on the rights of the child, thereby delaying it until 2011. In the answer the Minister has given, he is backtracking on what I understood the position to be when I came into the House and on the answer the Taoiseach gave me yesterday.
Taking the Minister at his word that there will be a referendum some time within the lifetime of this Government, which is looking particularly rickety at the moment, I ask him to explain his intended proposition. He gave us a long justification of the re-installation of the section concerned in the Defamation Act, which relates to Article 40.6.1° of the Constitution. Is it his intention only to excise the word "blasphemous" from the article, or is it his intention, as recommended by the Constitution Review Group, to recast the entire article, which, at the moment, from the point of view of freedom of expression, reads more like something that might have been imported from a theocratic state in the Middle East?
To answer the first part of the Deputy's question, the last words of my original reply to the House were: "I would be happy to propose to the Government a referendum on blasphemy at the appropriate time." I did say that, given the fact that the programme for Government indicated there would be two or three referendums in the lifetime of the Government, if memory serves, it may be appropriate to add to these a referendum on the article to which the Deputy refers.
Does that mean it may not be appropriate?
I am sorry?
Does the Minister's use of the phrase "may be appropriate" imply there is a possibility it may not be appropriate?
No; I referred to the referendum taking place at the appropriate time.
Does he propose to add the referendum to the one on the rights of the child or not?
No decision has been made in that respect. As the Deputy knows, having been in Government for a short time——
Very short.
——a Minister cannot make such a decision in the House. It must be made by Government.
To come to the second part of the Deputy's question about how we would deal with the article in the Constitution — whether to remove it altogether and say nothing on the subject, or go along with the recommendations of the Joint Committee on the Constitution — all of these things will be taken into account and, based on the advice of the Attorney General, the Government will make a decision.
On the general principle, as I said before, the Government had three choices: we could forget about the Defamation Bill altogether, amend the Defamation Bill — as I said many times before in the House, the Attorney General gave strong advice that it was imperative that Members of the Oireachtas, as well as the Government, not stay silent with regard to the original section 13 of the Defamation Act 1961, which made blasphemous libel an offence punishable by law, as stated in the Constitution — or have a referendum. There were some suggestions. Deputy Flanagan actually agreed with me in the committee——
No, I proposed it. The Minister did not agree with it at all; he said it was a waste of money.
No, I am sorry——
Let us not get bogged down.
He said it was a waste of money.
I just want to indicate what the Deputy said in the committee.
The Minister flew a kite last week and now he cannot get it down. That is what is wrong.
He is filibustering again.
I am not filibustering. Deputy Flanagan said on 25 May, on Committee Stage——
The Minister of State, Deputy Andrews, should watch this guy. He is a master of evasion.
He flew a kite.
I asked him a direct question about whether it is Fine Gael policy to have a referendum on blasphemy at the same time as the referendum on the Lisbon treaty and he said he was not saying that.
What has that got to do with it?
I am just making the point that there was a suggestion, back at that time, that we would tack it on to the Lisbon treaty referendum. The wiser——
It was not from the Minister.
No, it was not from me — absolutely. The Deputy agreed with any suggestion——
Now he wants a referendum, but he did not then.
We must move on, as we have a number of other priority questions to deal with.
That suggestion was out in the ether——
The Minister flew a kite last week and now he cannot substantiate what he said.
——but the Government was absolutely adamant that we did not want a referendum to be tacked on to the Lisbon treaty referendum, and we were quite right. As I said, there may be an appropriate time at a later stage——
Or there may not.
——between now and the end of this Government's term to hold such a referendum. I am more than willing to present a proposal to Government to have a referendum on that article. I do not know whether it will be held along with the referendum on the rights of the child, the one on the court of civil appeal, some other referendum, or perhaps in conjunction with all of these. We will wait and see.
