This Government Amendment 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 often factually incorrect.
Thus, it might be useful if I set out some of the background involved.
Deputies should note that the Bill before us now 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 think we would all agree that the optimal approach, and certainly the one that I find most preferable, would be to abolish it.
As a Republican, my personal position is that Church and State should be separate.
But I do not have the luxury of ignoring our Constitution.
So, as Minister for Justice I faced a choice – referendum or reform.
I chose reform, as did my immediate predecessor who indicated clearly in the Seanad, both during the Committee Stage on 11 December, 2007 and at 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 as follows:
"The publication or utterance of blasphemous, seditious or indecent matter is an offence which shall be punishable in accordance with law.
Minister Lenihan said in the Seanad on 11 March, 2008 that
"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 very clear position at Second Stage debate in the Dáil on 8 May, 2008. Thus, both my predecessor as Minister and I have publicly indicated that a new legislative proposal regarding blasphemous libel would have to be made at Committee Stage in the Dáil.
I am, therefore, puzzled as to the hysterical and incorrect reaction whipped up by some media reporters and commentators on this point.
There was no surprise development here on my part or the Government’s part. This was not something conjured up out of thin air in the past number of weeks.
Let me address the constitutional position. The deletion of Article 40.6.1.i. was recommended by the Constitutional Review Group in 1996 and, again, 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 also recommended by The Law Reform Commission, in its Report in 1991.
The Joint Oireachtas 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 felt that it is more appropriate that this be dealt with by legislative intervention with due regard to freedom of expression.
However, that said, the Committee saw no need for a constitutional amendment in the short term, but rather that we might avail of any 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 ECHR 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 wait for an opportune moment to move a constitutional amendment.
I should say that I do not intend to consider a proposal for a constitutional amendment on blasphemy at this time.
This then leads me to a question which has been posed in this matter – why am I proposing to address this issue now? The answer is very simple.
In considering the reform legislation before us, we are repealing the 1961 Defamation Act. 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 of the Defamation Act 1961 provides penalties in regard to blasphemous 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.
Therefore, to continue with the reform of our defamation legislation, I must, as Minister, respect the advice of successive Attorney’s General, when consulted on this point, that there is a constitutional obligation on me not to leave a legal void.
To claim or suggest – as some commentators who should know better have done - that I can do otherwise as a Minister is 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 relation 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 must make provision for punishment of this crime. There is no alternative to this position.
Might I put clearly on the record, that in bringing forward this legislative proposal, neither I nor my Department consulted with any religious organisations, nor did we seek or receive any representations in that regard.
Nor, as it has been ludicrously suggested am I seeking to raise revenue by encouraging blasphemy actions. I would expect few, if any such actions. We have proposed a significant monetary penalty which would only follow a successful prosecution on indictment by the DPP.
This level of potential penalty is designed to ensure that there is no trivialisation of the constitutional position. That said, I am, however, prepared to consider arguments from Deputies that the fine level might be reduced somewhat.
I hope that my foregoing explanation will help to put at rest the minds of all those fantasy conspiracy theorists that have detected dark machinations and bogey men behind this proposal and have attributed to myself the most debased motives. I am sorry to disappoint you on that point and, of course, those all-knowing commentators of the media.
Today, it is incumbent on us as legislators to provide for a legislative provision. We cannot shirk it though we are all uncomfortable in this particular context.
My revised proposal now includes a defence for 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.
My proposal mirrors somewhat that proposed by the Labour Party. However it would require, in regard to the onus of proof, for "genuine value" as opposed to just "any value". It would not include the very wide and somewhat vague "social value" test.
I apologise for my quite lengthy explanation here, but I think it is valuable for the Committee to understand the constitutional constraints involved. I am endeavouring to provide a legislative provision – because I am obliged to do so 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 would hope that Deputies can reflect positively on the new provision which has been drawn up in close consultation with the Attorney General and Parliamentary Counsel. They might facilitate it by the withdrawal of the other proposals.