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.