Defamation Bill 2006 [Seanad]: Committee Stage (Resumed).

Debate resumed on amendment No. 36:
In page 22, between lines 19 and 20, to insert the following subsection:
"(5) Where a payment to which this section applies is made, the court before which the defamation action is brought may make such order in relation to costs as it considers appropriate having regard to the manner in which the action has been defended by the defendant, and this subsection shall apply notwithstanding any provision in relation to the payment of costs in a defamation action contained in rules of court.".
—(Minister for Justice, Equality and Law Reform).

A revised grouping list has been circulated. Does the Minister wish to add anything on this amendment?

Under this legislation, defendants will be allowed to make a lodgement to court, a procedure not in place heretofore. There was some bemusement on the other side of the House as to why I was tabling this amendment.

I had considered excluding the possibility of a lodgement concerning a plea of section 24, fair and reasonable publication. I considered the opening up of the legislation to the provision of fair and reasonable publication was a significant move. I also considered allowing the possibility of a lodgement by the defendant would put a plaintiff on extremely hazardous ground in that they could potentially have a double whammy against them. This could prevent many plaintiffs from considering that option.

Having discussed it with my officials and the Attorney General's office, I decided, however, not to exclude the issue of the lodgement from one particular type of defence. Rule 22.6 of the superior courts allows a judge to have discretion in how to allow a lodgement be treated regarding costs. Given this, I tabled this amendment which mirrors in a statutory provision what is already in the rules of the superior courts. There is nothing further in this proposal than is already contained in the existing court rules. I am sending a signal from the Oireachtas that there is this provision and that the Judiciary should use it, if necessary.

The amendment is superfluous as this provision is already in the rules of the superior courts. If it were highlighted in black and white in the legislation, it might have the effect of rendering the lodgement system less attractive. It may actually encourage plaintiffs to run cases where an acceptance of a lodgement should be normally done.

The judge always has the discretion to follow the proposed action under the existing superior court rules. I do not see why it is necessary to insert it into the legislation. The legislation aims to reduce court actions and costs through apologies, etc. However, this provision may encourage plaintiffs to go ahead with a trial and take a chance on the issue of costs. Normally, the purpose of a lodgement is to avoid that predicament. I wonder if we should be adding this section.

I agree with my colleague and ask the Minister to reconsider this amendment. It singles out the media in particular. It could undermine the role of juries in cases where they make a decision which comes into conflict with a judge.

I am somewhat surprised to see a line-up of Government backbenchers asking the Minister to reconsider this amendment. I do not believe it is a coincidence but a concerted effort requesting him to review the matter.

Why is the Minister departing from the time-honoured convention in the courts that costs follow an award? If a lodgement is beaten, the matter of costs is dealt with in an accepted way. If a lodgement is not beaten, there is also a convention which is backed up by the rules of the Superior Courts. What practical effect does the Minister see his amendment having in defamation actions?

This provision is rather a late insertion at the 23rd hour. I am curious as to the reasoning behind it. What submissions were made to the Minister on this? On what grounds is he basing this change?

Apropos of what my party's Deputies have said, there has been a substantial discussion in our parliamentary party on this Bill and my proposed intention, not least around the issue of fair and reasonable publication. Deputies Thomas Byrne and Connick are articulating some of the views expressed at our parliamentary party deliberations on the matter. I recall in the Seanad, some Fianna Fáil Senators were just as opposed to this as the Opposition.

I am not proposing to deviate from time-honoured practice. Rule 22.6 states:

If the plaintiff does not accept, in satisfaction of the claim or cause of action in respect of which the payment into Court has been made, the sum so paid in but proceeds with the action in respect of such claim or cause of action, or any part thereof, and is not awarded more than the amount paid into Court, then, unless the Judge at the trial shall for special cause shown and mentioned in the order otherwise direct, the following provisions shall apply:....

I am simply putting a rule of the superior courts into legislation. At the last day's proceedings I found myself defending the provisions because Deputies Rabbitte and Ó Snodaigh had issues with the fair and reasonable publication defence. I considered the provisions allowing a defence plea of fair and reasonable publication and at the same time putting a plaintiff at considerable jeopardy by making a lodgement could be a double whammy. As a solicitor, does Deputy Flanagan accept the intention of the amendment? It is a nod in the direction of the fact that this is a substantial widening of the law of defamation and at the same time we are putting a plaintive in jeopardy in regard to the lodgement.

I do not want to repeat what has been said. However, my understanding is that this Bill has emerged as a result of a great deal of discussion between the interested parties. That, in the main, has not included the Opposition parties. The architecture we now have in terms of the Press Council and the Press Ombudsman, etc., was put in place in the fashion it was on the expectation that a defamation Bill would be enacted. Talking about representations, as I understand it, the newspaper proprietors did not understand that this amendment would be brought forward in this fashion by the Minister. I do not know whether a concern arises in this regard in terms of the entire foundations that have been laid for the voluntary style Press Council-Press Ombudsman mechanism in the fashion that we have put it in place if there is a new matter of some considerable significance introduced by way of amendment at this stage.

This has nothing to do with whether there is a Press Council, good, bad or indifferent. One of the things we are doing in this legislation is allowing defendants, for the first time, to lodge money in court in defamation actions. What I am trying to do in this amendment is to remind the Judiciary that this already exists in the superior courts, but also to put defendants on notice regarding the publishing of the alleged defamation and the way in which the cause of action is conducted. They are in jeopardy in that while they are getting the ability to lodge without admission of liability, it will not be automatic that if the plaintiff fails to beat the lodgement that he or she will have to pay the costs.

It might not be automatic but it is accepted as being the case. It is most unusual to have a departure from that time-honoured convention.

It is not a departure. I have already——

It can be because the Minister is allowing the judge, in effect, a wider discretion to that which is currently in use.

That is absolutely not the case. It is already there. I take it the Deputy has Order 22, Rule 6 in front of him.

I read it exactly and it states that "unless the judge at the trial shall, for special cause shown and mentioned in the court order, otherwise direct".

If there is no change at all, why introduce a separate item of legislation in statutory form to deal with it? There obviously has to be a change or the Minister would not raise this hare now in the manner in which he has.

Deputy Flanagan has rambled on there and finally come to the point made by Deputy Connick and I initially. He made some comments about Fianna Fáil backbenchers. I have significant experience in this area, as it happens.

I was not rambling on. That was at the beginning.

Deputy Flanagan rambled on before finally coming to the point that I and Deputy Connick made. We disagree with the Minister in this instance because I believe it is already there in the superior court rules. Why then put this into primary legislation? The judges have discretion already to do this, and I am sure it is appropriate in certain circumstances. However, I do not see the point of amplifying this in legislation — by putting this into primary legislation rather leaving it the courts to decide how they operate, as they know how to do their job. That is my simple view on it and Deputy Flanagan came to that point at the very end of his contribution.

I am being very honest in saying that I have no particular reason for proposing this other than that I believe the Oireachtas needs to give a signal. Even this debate itself is a signal, I believe, to the wider public. This is an issue we could come back to, although I do not know whether we will return to another defamation Bill in the future.

I will undertake to look at it again on Report Stage. One of the reasons this was delayed was because I believe strongly in giving a defence of fair and reasonable publication, which allows someone publishing a completely untrue serious allegation about a public figure to subsequently have a defence if he or she can show various things. Here we are, also, putting the person against whom the allegation has been made, in effect, in a double jeopardy situation by giving the defendant an opportunity to put it up to the plaintiff that he or she runs the risk of losing the costs. I am trying to be fair, particularly in the context of how this section potentially will be used.

I am a rusty lawyer at this stage. I always held the view that defendants lodging in court had the entitlement to know that almost certainly — if the lodgement was not beaten — that costs would then follow the event. As has been mentioned, this is the situation, except in the most exceptional circumstances. I believe it is sending out a very dangerous signal to change the existing situation. As the Minister has wisely said, he will rethink the situation between now and Report Stage and I suggest very strongly that he adopts that approach.

On balance, I favour what Deputy Byrne has said, even if I do not agree with his impatience with the legislative process. Nobody is rambling here. This is not the hill-walking Bill but rather the normal attention that those of us who attend the committee regularly give to legislation.

I fully understand that this does not have anything to do with the Press Council, except as regards the question I put to the Minister on whether an understanding was entered into at the time of the gestation and construction of the Bill that this measure would not be in it — in terms of one of the interested parties to the voluntary architecture we have put in place. Is this a breach of faith? That is the only connection it has to the Press Council and the manner in which the Press Ombudsman is set up. I find it hard to see why a signal needs to be sent to the Judiciary. The Judiciary is very mindful, I would have thought, of the superior court rules and does not need to be reminded by the Legislature as regards a particular rule. I am not entirely persuaded by that.

I see what the Minister is saying about the double whammy effect. That is the point of substance he has made, but I would not like to see all of this tumbling down because there is a breach of faith at a late stage in terms of what was committed to as the Bill was being put together.

I accept that the majority of the media behave responsibly. However, there are sections of the media that might not do so, whether they are in the Press Council or not. My rationale in trying to do something about the ability to lodge was due to the fact that it is possible that a very irresponsible media organisation could effectively defame somebody, plead the defence of fair and reasonable publication, lodge a sum of money in such a way that the plaintiff would effectively capitulate, and then the organisation could go back out and do it again once that is finished. That is quite possible. It is probably unlikely, but it is not impossible. I have seen it done before in circumstances where once something is published, it is then amplified in other organs because it has already been published once. Given the fact that there is a wide opening of the law on matters of public interest and public figures, there should be some easing of the scales of justice.

I have read things in the media about "understandings". I am not privy to any such understandings or breaches of faith. I regard myself as a Member of the Oireachtas. Of course we are lobbied by interests, but at the end of the day I believe we should make our own decisions on the Bill, because it does not just apply to organisations, but to the general public. Ultimately, we are responsible to the general public and not to organisations or individuals who lobby us on this. We have a responsibility to legislate for the wider community.

Are there any other comments?

In view of what has been said, I will come back on Report Stage regarding the issue of the libelled.

Amendment, by leave, withdrawn.
Section 27 agreed to.
Section 28 agreed to.
Question proposed: "That section 29 stand part of the Bill."

Section 29(4)(h) deals with “evidence given concerning the reputation of the plaintiff”. That provision would allow for hearsay evidence to be taken into account. That would provide for discrimination and would act as a deterrent for many people who want to take a case. It does not define exactly what evidence means. A civil court provides a different weight to evidence, and hearsay can be accepted. I intend to propose an amendment to that on Report Stage.

Is the Deputy saying that there is a possibility of hearsay evidence being given?

Evidence in a civil court could in fact be hearsay evidence, but here we are talking about a reputation. It is not evidence in the criminal court, which makes it difficult and would discourage people from taking defamation cases if that is what will be taken into account by the court in making an award of general damages. Having regard to hearsay evidence is incorrect, because it is not supported evidence.

I think I understand what the Deputy is saying, but ultimately it is up to the court to decide whether it would allow evidence, and normally the Judiciary is fairly adept at ruling out hearsay evidence once it is tendered. This subsection allows the court to have regard to the evidence given concerning the reputation of the plaintiff. The court could take a positive view or a negative view regarding that evidence. I will await the Deputy's amendment and will have a look at it then.

Question put and agreed to.
Section 30 agreed to.
Question proposed: "That section 31 be deleted."

Section 31, dealing with dismissal for want of prosecution, provides that subject to provisions in rules of court, that where a plaintiff does not do anything required of him or her within one year, a defendant may apply under notice for dismissal of the action. The original intention behind the section, arising from the Law Reform Commission report in 1991, was to seek to prevent UK-style “gagging writs”.

The Courts Service has raised a reservation with the approach in the section. It has pointed out that currently, rules of court — Order 122, rule 11 — impose no such "positive obligation" on the plaintiff and allow for up to two years grace period. Having consulted further with the Courts Service and the Office of the Attorney General on the matter, I now propose to delete the provision. I should add that the proposed deletion is not considered to detract from the overall objective that the time limits for the taking and prosecuting of defamation actions should be reduced.

Order 122, rule 11, provides that:

In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month's notice to the other party of his intention to proceed. In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the court to dismiss the same for want of prosecution, and on the hearing of such application the court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the court may seem just. A motion or summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a proceeding within this rule.

Will the Minister leave it unchanged? Will that effectively continue to be the case?

Question put and agreed to.

I move amendment No. 37:

In page 25, subsection (1), line 13, after "The" to insert "Circuit Court or the".

We were talking about costs earlier. Given the high level of legal costs, it would seem sensible to give the lower courts jurisdiction here. There are no damages for a declaratory action. I do not see any reason that it ought to be confined to the High Court. I am merely seeking to make it plain that the Circuit Court has jurisdiction on this.

I am informed that this is unnecessary. Section 32 (1) states "The High Court, or where a defamation action has been brought, the court in which it was brought, may...". It is clear from the text of section 32(1) — concerning an order prohibiting the publication of a defamatory statement — that the Circuit Court has jurisdiction to hear such an application if the action has been brought there. I understand that this was debated in the Seanad and the same position was adopted.

If that is the Minister's advice, then I will withdraw the amendment.

Amendment, by leave, withdrawn.
Section 32 agreed to.
Section 33 agreed to.

We move to amendment No. 38. There is an amendment to amendment No. 38, which will be discussed with the main amendment. Amendments Nos. 38a and 39 are also related and amendment No. 39 is alternative to amendment No. 38a. The amendments may be discussed together.

I move amendment No. 38:

In page 26, before section 34, but in Part 5, to insert the following new section:

34.—The offence of defamatory libel is abolished.".

I withdraw my original proposal for amendment No. 38 in favour of new amendment No. 38a. This new amendment and amendment No. 39, which is tabled by Deputy Rabbitte, essentially relate to the same issue. My new proposal refines the text of section 34 to use the more correct term “defamatory libel” rather than the previous “criminal libel”, which is more of a catch-all title for various types of libel. This change has been advised by the Attorney General’s office and the Parliamentary Counsel.

The issue of not abolishing the common law offences of seditious libel and obscene libel have been considered. This was on the basis, following initial discussion with the Attorney General's office and the Parliamentary Counsel, that such abolition might risk losing some aspects of the common law which could potentially be useful in the future. However, following further consideration I am content to abolish all of the common law offences.

In regard to Deputy Rabbitte's other amendment, there is no need to specifically refer to the abolition of the common law offence of blasphemous libel. I am advised by the Attorney General's office that given the Supreme Court decision in the Corway case, there are considerable doubts as to whether such an offence in fact exists so it is unnecessary to make such a provision here.

I accept the re-worded ministerial amendment. I will consider the new amendment before Report Stage.

I have a problem with this section. I am not sure where the Minister is coming from in terms of his new section. I am somewhat surprised that this has not been the subject of debate on the Bill heretofore. I note the Minister's amendment No. 38a. Are we also discussing amendment No. 40?

No. We are discussing amendments Nos. 38, 38a and 39.

I will withhold until we come to amendment No. 40.

I will also wait for amendment No. 40.

Are there any other comments?

I have said what I had to say.

Is the Minister withdrawing amendment No. 38?

Yes, and I am substituting amendment No. 38a.

Amendment No. 1 to amendment No. 38 not moved.
Amendment, by leave, withdrawn.

I move amendment No. 38a:

In page 26, line 3, to delete "criminal" and substitute "defamatory".

Amendment agreed to.
Amendment No. 39 not moved.
Question proposed: "That section 34, as amended, stand part of the Bill."

I want to reserve my position on the question of criminal libel until Report Stage.

Question put and agreed to.

Amendments Nos. 40 and 41 are related and may be discussed together.

I move amendment No. 40:

In page 26, before section 35, but in Part 5, to insert the following new section:

35.—(1) A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on indictment to a fine not exceeding €100,000.

(2) For the purposes of this section, 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.

(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates.".

I propose to deal with both of my amendments and those tabled by Deputies Rabbitte and Flanagan together.

Amendment No. 40 provides for a new section setting out our approach to legislating in regard to the matter of blasphemous libel. It has attracted considerable attention and comment, most of it uninformed and very often factually incorrect. In fact, since the last session I have been accused of everything from having made this up as I go along to trying to in some way to divert attention from other issues. I have been accused of trying to curry favour with religious groups such as Muslims and Catholics. I have been called a Catholic fundamentalist by someone who I believe has the brain the size of a pea. I have been accused of being a serial visitor to Rome. I have to admit I am, because I believe Rome is one of the nicest cities in the world and I have frequented Rome many times——

The Minister is saying nothing about the other allegations.

——mainly to see Lazio play Roma in the Rome derby, which I have been to many times. Any of my friends would know I am a serial visitor to Rome but not for religious purposes, although when I was Minister for Foreign Affairs I was there on at least two occasions.

I have been accused of hyping up all of this. I have said nothing publicly other than to respond to what I felt were inaccuracies in the media comment. Thankfully, The Irish Times allowed me to make a response, which I believe set the position straight. Other than that, I have said nothing publicly to date apart from dealing with a question on today’s “Morning Ireland”.

This shows that when one scratches the surface, there is an incredible intolerance among the pseudo-liberals in this country. In any event, it is important I have this opportunity. I decided I would wait to deal with this. We are often accused of making statements outside the House and not giving due deference to the House, so I decided I would not make a comment in this regard until I came back into the House. It is only fair that I do so and I will now outline the position.

Deputies should note that the Bill introduces no new statutory offence in regard to criminal or defamatory libel. My ministerial predecessor, during the course of the Seanad debate, did not proceed with a proposed criminal provision concerning publication of gravely harmful statements which were in the Bill as originally published. This proposal to delete that provision was widely acclaimed.

As regards the offence of blasphemous libel, I believe we would all agree that the optimal approach, and certainly the one I would probably find most preferable, would be to abolish it altogether. However, we are where we are in regard to what is in the Constitution. To refer again to the somewhat hurtful suggestions that I have some ideological hang-up in this regard, I am first and foremost a republican and, in my political life, I have always had a strong regard for the clear separation of powers between Church and State, which there must be.

In this regard, I am responding to what is in the Constitution. I do not have, nor has the Oireachtas, the luxury of ignoring what is in the Constitution. Therefore, as Minister for Justice, Equality and Law Reform, based on the advice of the Attorney General and of previous Attorneys General to previous Ministers, I am faced with a choice, namely, whether to have a referendum or whether to reform the existing offence in section 13 of the Defamation Act 1961. I chose to reform the existing legislation, as did my immediate predecessor who, despite what was claimed in the newspapers, indicated clearly in the Seanad, both during Committee Stage on 11 December 2007 and on Report Stage on 11 March 2008, that an outstanding issue remained to be addressed in making the appropriate legislative provision on blasphemous libel in regard to the offences contained in Article 40.6.1°i of the Constitution, which states: "The publication or utterance of blasphemous, seditious or indecent matter is an offence which shall be punishable in accordance with law". The Minister, Deputy Brian Lenihan, said in the Seanad on 11 March 2008:

If we repeal in full the provisions of the 1961 Act in reforming the defamation laws, we create a gap unless some provision is made for the constitutional offences. We must be mindful also of the decision of the Supreme Court in the case of Corway v. Independent Newspapers in 1999 where the Supreme Court indicated a need to address the law on blasphemy. At this stage I would suggest our duty is to ensure there is no gap created in the case of these offences which are recognised by the Constitution.

I reiterated this clear position on Second Stage in the Dáil on 8 May 2008. Thus, both my predecessor and I have publicly indicated that a new legislative proposal regarding blasphemous libel would have to be made on Committee Stage in the Dáil. Once the 1961 Act is repealed, we cannot, because of the constitutional imperative which says that blasphemy is an offence punishable in accordance with the law, leave a void. I am, therefore, puzzled by the hysterical and incorrect reaction whipped up by some commentators on this point. I have been accused of hyping up this issue. That is not the case. I set out the argument in an article in The Irish Times and have said nothing in the meantime. There was no surprise development on this issue on my part or on the part of the Government. It was not something conjured up out of thin air in recent weeks.

I now propose to address the constitutional position. The deletion of Article 40.6.1°i. was recommended by the Constitution Review Group in 1996 and more recently, in July 2008, by the Joint Oireachtas Committee on the Constitution in its report entitled Article 40.6.1°i — Freedom of Expression, which dealt, inter alia, with blasphemy. Deletion was also recommended by the Law Reform Commission in its report in 1991. The joint committee recommended that the specific reference to blasphemy should be deleted and was of the view that in a modern constitution, blasphemy is not a phenomenon against which there should be an express constitutional prohibition. If there is a need to protect against religious offence or incitement, the committee was of the view that it is more appropriate that this be dealt with by legislative intervention, with due regard to freedom of expression.

The committee saw no need for a constitutional amendment in the short term but suggested that we might avail of an appropriate opportunity in the future. In the interim, the committee noted that judges might approach any potential cases from the perspective of Article 10 of the European Convention on Human Rights, which provides for freedom of expression. However, I, as the responsible Minister, and we as legislators, do not have the luxury of pursuing a do-nothing approach while we await an opportune moment to move a constitutional amendment. The public would not thank us for introducing a referendum at this stage on the issue of blasphemy, whether on its own or linked with a proposal on the Lisbon treaty or any other issue.

This leads me to a question that has been posed in this matter, namely, why I am proposing to address this issue in this particular way and at this particular time. The answer is simple. In considering the reform legislation before us, we are repealing the Defamation Act 1961 which sets out the criminal offence of blasphemy. The continuation of the current provision at section 13 of that Act, which provides for both monetary and prison sanctions, is not a desirable option. Section 13 provides for penalties in regard to blasphemous and obscene libel, offences which were presumed to exist at common law. However, the decision of the Supreme Court in 1999 in the case of Corway v. Independent Newspapers — the only blasphemy case brought since the Constitution came into effect — held that the common law offence of blasphemous libel did not survive the adoption of the Constitution. That decision created an anomaly in regard to the obligation to respect the constitutional provision.

In continuing with the reform of our defamation legislation, I must respect the advice of successive Attorneys General when consulted on this point that there is a constitutional obligation on me not to leave a legal void. This obligation also applies to the Oireachtas. To claim or suggest, as some commentators who should know better have done, that I can do otherwise is absolute nonsense. The legal advice available to me in the context of blasphemy is that we must address, as a constitutional obligation, the default in compliance with the Constitution in regard to Article 40.6.1°i. This advice is in the context of a repeal of section 13 of the 1961 Act.

While some may regard the constitutional provision as "redundant", as the Joint Oireachtas Committee on the Constitution did, the legal advice available to me indicates that the committee's report does not change the legal position. Until the Constitution is amended, it is necessary that blasphemy remain a crime and that the relevant legislation make provision for the punishment of this crime. There is no alternative to this position for me as Minister or for the Oireachtas.

In bringing forward this legislative proposal, neither I nor my Department consulted any religious organisations, nor did we seek or receive any representations in that regard. I suspect some media organs may have submitted freedom of information requests on this point. Nor, as it has been ludicrously suggested, am I seeking to raise revenue by encouraging blasphemy actions. I expect few if any such actions will arise. We have proposed a significant monetary penalty which would only follow a successful prosecution on indictment by the Director of Public Prosecutions. This level of potential penalty is designed to ensure that there is no trivialisation of the constitutional position. That said, I am prepared to consider arguments from Deputies to reduce the fine level somewhat.

I hope my foregoing explanation will put at rest the minds of those fantasy conspiracy theorists who have detected dark machinations and bogey men behind this proposal and have attributed to me the most debased motives. I am sorry to disappoint all of them, including the so-called experts who have commented on this issue. I have suggested to anybody who has raised the issue with me that they should seek out one lawyer with experience in the area of defamation who disagrees that the course I am pursuing is the correct one in the absence of a constitutional referendum. I am confident they will find nobody who will make that case with any seriousness. It is incumbent on us as legislators to bring forward a legislative provision on this issue. We cannot shirk that responsibility even though we are all uncomfortable in this particular context.

My proposal for a new section 35 has regard to the constitutional provision, the decision of the Supreme Court in the Corway case in 1999 and the earlier recommendations of the Law Reform Commission. This new section includes a definition of "blasphemous matter" along the lines proposed by the commission in its report. In addition, the term "outrage" as proposed by the commission is used so as not to widen the scope of the offence. There is also a requirement for a mens rea for the offence. A person should only be criminalised for the offence if he or she intended to cause outrage. We must avoid criminalising a person who might not have known that the matter in question was insulting because he or she was not aware of the teachings of a particular religion. The provision does not include a definition of religion; that interpretation must be left to the courts. The term “religion” was used in the Prohibition of Incitement to Hatred Act 1989 where it was clearly intended that all religions be covered without being defined. The new section also provides for a monetary sanction only, with the removal of the prison sanction. I am also ensuring that any future prosecutions are taken by the Director of Public Prosecutions and not by individuals, as has occurred on several occasions since 1961.

In addition, my revised proposal now includes, in a new subsection 35(3), a defence in proceedings for an offence under this section whereby the defendant may prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates. My proposal mirrors somewhat that proposed by the Labour Party. However, it requires, in regard to the onus of proof, for "genuine value" as opposed to merely "any value". It does not include the broad and somewhat vague "social value" test.

I again apologise for the lengthy explanation but I decided to use Committee Stage to answer some of the incredible allegations that have been made in this respect. I am endeavouring to provide a legislative provision because I am obliged to so do by the Constitution. I am respecting that imperative while at the same time having regard to our more evolved thinking on this arcane part of the law.

I hope members can reflect positively on the new provision, which has been drawn up in close consultation with the Attorney General and the Parliamentary Counsel and not with anyone else, including anyone from a religious faith. I suggest members might facilitate it by the withdrawal of their proposals. While I do not make this point in a political manner, the Labour Party, which tabled amendments to my original proposals, clearly had advice that was similar to the advice I received, namely, that there is a constitutional imperative in this regard and that, as legislators, members cannot ignore the Constitution. The alternative is hold a referendum.

As for amendment No. 41, this proposal essentially restores the original section 36 of the Bill concerning the seizure of copies of blasphemous statements. The only changes to the section as originally drafted relate to the changed title and similar subsequent textual amendments to reflect that it now will deal with seizure of blasphemous material that may be ordered by the court. This section is a technical provision which would come into play only after the unlikely event of a successful prosecution in regard to blasphemy. I reiterate that I am prepared to reduce the monetary penalty. It was originally included at that level to demonstrate that I did not want trivial prosecutions in respect of this offence. As I noted, I have nodded in the direction of what the Labour Party was trying to do in respect of Salman Rushdie-type cases, whereby literary or academic comment may be perceived to be blasphemous. My particular action in this regard is to take away the ability of individuals and from henceforth, the Director of Public Prosecutions will decide. I have raised the bar in respect of the onus of proof, have removed the possibility of prison sentences and have introduced intention, malice aforethought and mens rea into the offence. In addition, blasphemous libel has been defined. Without incurring the expense of holding a referendum, I am including as much as possible with regard to what is, in effect, an arcane concept. Because of the constitutional imperative, I propose the inclusion of a changed section that will raise the bar pretty high for a possible prosecution. Consequently, I ask members to consider and to accept what I have said in this regard.

The Minister commenced what he admitted was a rather lengthy explanation of the reason for the inclusion into the Bill of this new section by speaking of his visits to Rome and what he did while there as though it bears any relevance to the Bill. I can draw one inference from his visits to Rome, which is that he certainly has engaged in something of a circus in respect of this legislation. His belated attempt to introduce a good defence procedure makes the Bill less operable than was the case heretofore.

How is it introducing good defence?

The amendment provides "it shall be a defence ... for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter". Although the Minister proposed this provision as an attempt to justify the reason blasphemous libelshould be enshrined in legislation, he has ensured that this section of the Bill is completely unworkable. This is a classic example of an Irish solution to an Irish problem.

What is the Deputy's alternative?

This is a civil Bill and in a previous amendment, members agreed to delete "criminal" and substitute "defamatory" on the basis that this Bill is almost exclusively civil in nature. However, the Minister has introduced criminal sanctions and a new crime.

Blasphemous libel already is contained in the 1961 Act as a criminal offence.

Yes, but members are updating and in effect replacing the 1961 Act. They are modernising the laws, which I thought was a fundamental basis of this legislation in the first instance. This is a civil Bill, not a criminal justice Bill. The Minister is introducing a new law that is undefinable, unenforceable, unclear, unquantifiable and ultimately unworkable. Consequently, I wonder why the Minister is engaging in this process. He draws heavily on the main plank of his argument, that is, the Corway case heard in the Supreme Court in 1999, about which the Minister quite correctly stated that the court adverted to uncertainty and I accept the court stated that it was for legislators and not for the courts to define the crime.

However, the Supreme Court will only comment on the law in front of it. In that regard, it is important for members to be mindful of the statements of the State-sponsored law reform bodies to the effect that blasphemy should be removed from the Constitution. In 1991, the Law Reform Commission stated "there is no place for the offence of blasphemous libel in a society which respects freedom of speech". Five years later, in 1996, the constitutional review group commented "the retention of the present constitutional offence of blasphemy is not appropriate". In July 2008, Deputy Jim O'Keeffe was a member of the all-party Oireachtas Joint Committee on the Constitution that advised that the deletion of the reference to blasphemy might be advisable in the circumstances. It makes the same point in respect of seditious libel by noting it is a redundant reference in the Constitution that should be abolished.

While I acknowledge the reference in the Constitution to blasphemous libel, all-party committees of the Oireachtas have commented in detail on the outdated nature of much of the Constitution, which is a product of and for its times, namely, the 1930s. I am unsure whether it is a sustainable argument for the Minister to state the do-nothing option only can be replaced by this legislation. I do not envisage a great burden being placed on the State by having this matter decided by referendum. A referendum has been mandated for later this year because we already have agreed with our European partners to hold one on the Lisbon treaty.

Is it Fine Gael policy to have a blasphemy referendum at the same time as the referendum on the Lisbon treaty?

I am not saying that. It could be both advisable and the best practical approach to consult the people in the manner designed under our laws.

I consider what the Minister is doing in this instance to be unworkable. It is bad law and I am unsure from where comes the demand for this legislation. One should consider what has been done in comparable common law jurisdictions throughout the world in respect of similar laws. The blasphemy laws of England and Wales were abolished last year and the Commonwealth of Australia does not recognise blasphemy as an offence. However, given the Minister's previous utterances on legislation in other countries, he has no regard for what other jurisdictions may have enshrined in their legislation.

The fact of the matter is that this legislation will run contrary to the modernisation of our laws. There is nowhere in our society for such an offence. The Minister has as much as admitted this by his late introduction of section 35(3), which will ensure that it will be almost impossible for any prosecutions to be successful before the courts. I do not know why the Minister is doing it. He has adverted to various charges levelled against him and many of which were probably over the top. However, he has not given the committee an adequate explanation or reasoned argument as to why what he is proposing by way of a new offence of blasphemy is advisable or necessary in these circumstances. If his only argument is that of the Constitution, we can consider a constitutional referendum.

I have nothing to add because the Deputy has not addressed the core issue, that is, how to deal with this matter. Should it be done via a constitutional referendum——

——or this Bill? If that is Fine Gael's position, it should say so.

I have said that the matter could be put to the people at any time. We will have a referendum this year.

That is live horse and eat grass. The Deputy wants it both ways. He wants it the same way as the joint committee, which, after considering this matter, agreed that, while the provision should be removed from the Constitution, the change should be left to a later date.

This is a nod and wink law.

It is still an offence. The fact is that——

No. It is a nod and wink Bill. It will be in the law, but nothing will occur.

We are dealing with the Defamation Bill. We either pass it or we do not. There are three options. We could legislate as I am doing, which will raise the bar in respect of the type of prosecution that could be taken. If the Bill passes, it is more than unlikely that a prosecution will be taken. We can change the Constitution or——

——not go ahead. It is very unlikely.

Perhaps the Minister will allow me in briefly before we adjourn. To trace his argument, he stated that we should not have been surprised to have been presented by this. I am surprised and, after going back over the statements of one of the Minister's predecessors, Michael McDowell, I could not find a pledge that there would be such an amendment. When the next Minister, Deputy Brian Lenihan, said that an outstanding issue remained to be addressed, he was not prescriptive about how to address it.

In this sense, we have returned to the question of whether there is a constitutional imperative. Opinion is divided in this regard. I have had contrary opinion to that expressed by the current Minister. As he mentioned, the Constitution Review Group remarked that there has never been a prosecution for blasphemy in the history of the State. Once one declared, which is what I believe the former Minister, Deputy Brian Lenihan, was doing, that there was an outstanding issue to be addressed, it would be sufficient and we would address it as soon as may be by way of a constitutional referendum to excise the particular reference in the Constitution.

The Minister referred to the all-party committee. It stated that an appropriate opportunity should be availed of in the future. This recommendation was based on legal advice, contrary to the Minister's, to the effect that we are respecting the Constitution once we commit to excising the reference at a suitable opportunity down the line. I will not get into the argument on whether it should be taken with the Lisbon referendum. The fact of the matter is that we are having referendums with increasing regularity. It seems to me that, as the Minister has said, everyone present agrees that there is no place in the modern republican state for such a provision. If so, it would be logical to seek to excise it.

I was not acting on the constitutional imperative argument when I tabled my amendments. I tabled them because I was advised tactically that, since the Minister appeared from his comments to be determined to press ahead, we should take a belt and braces approach and constrain it in so far as is possible to make it meaningless. On reflection, the Minister may be right, that is, one cannot trivialise the Constitution. It would not be the way to go. The only way to go is a clear excision.

Since all parties were prepared to sign the report of the Joint Committee on the Constitution, published in 2008, and to give their allegiance to it as the way forward, I would have thought this would have been good enough to allow the Government to give the signal that it would deal with the matter at the first opportunity, as the Whitaker review group and the all-party committee recommended, by way of excising the reference from the Constitution. If my history is correct and while we are on a deadline, the framers of the Constitution included the reference. Rather, it was included in the ensuing political debate. The founder of the Minister's party inserted it, maybe for reasons not that far removed from the dreadful comments being made about the Minister and none of which I associate with. They are outrageous.

They are blasphemous.

Given the Minister's self-image, it could very well be that we are blaspheming.

Deputy Rabbitte says that I am close to the baby Jesus, I am so pure.

That is right. We are blaspheming against the Minister. We do not intend to, but freedom of expression in this society is highly valued. He should reconsider before we meet again.

Just the Minister to reply to Deputy Rabbitte.

The issue of freedom of expression is explicitly referred to in the Constitution. The reference stands. In trying to address the Deputy's amendment on artistic, academic and literary matter, I have amplified the reference in the defence to ensure that the declaration of a freedom of expression is confirmed——

It has gone from being unworkable to totally unworkable.

——as a defence. The all-party committee stated that a future opportunity should be availed of to make the change, but we do not have that luxury. In recent times, it has been mentioned that the previous Ministers, Michael McDowell and Deputy Brian Lenihan, were able to say that they would not go ahead with the issue. Michael McDowell did not reach Committee Stage or the relevant section of the Bill, but the Minister for Finance, Deputy Brian Lenihan——

Neither Minister included it in the Bill.

No, but it needed to be addressed. If one were to repeal a provision——

If the then Minister, Michael McDowell, had the same advice as the current Minister,——

They had a——

——why was this provision not in the original Bill?

During Report and Final Stages in the Seanad on 11 March 2008, the then Minister, Deputy Brian Lenihan, explained the position and stated:

I intend to bring forward proposals for sanctions in the Dáil and I will bring them to the Seanad. I have no option but to do that under the Constitution.

Senator Alex White of Deputy Rabbitte's party stated: "I misunderstood what the Minister said. That makes sense."

He did not bring them to the Seanad.

He said he would be coming back to the Dáil. The other two Ministers had the luxury of doing nothing with regard to this because they were not finalising the Bill. We are now coming to the final part of the Bill and we must deal with these outstanding issues. The advice from the Attorney General and the previous Attorney General is that in the context of repealing section 13 of the 1961 Act we cannot leave a void because of the constitutional imperative that says blasphemy must be treated as an offence punishable by law.

Can we commit to excising it?

We can have a constitutional referendum and that will deal with it or else we can deal with it this way. In effect, we raise the bar so high that it is more than likely no prosecutions will be brought.

Can we bring the discussion to a close?

When will the meeting resume?

We will discuss it with the Minister.

I must respond to a private notice question at 3.45 p.m. and then I am on front bench duty with regard to the Criminal Justice (Miscellaneous Provisions) Bill from 5 p.m. to 6 p.m. I cannot come back today.

Deputy Rabbitte and I are speaking on another Bill, so it is not practical to return to this today. We will return to this matter another day.

Progress reported; Committee to sit again.
The select committee adjourned at 3.20 p.m. sine die.