Check Against Delivery
2 October 2014
I propose to report to the Dáil, on behalf of the Government, on its response to the Sixth Report of the Constitutional Convention, which proposes to remove the offence of blasphemy from the Constitution.
The Convention was established by Government in 2012 to consider a range of issues on which constitutional change may be needed, and to report on its conclusions to the Houses of the Oireachtas. This House approved the Convention’s terms of reference and the issues to be considered. They include ‘the removal of the offence of blasphemy from the Constitution’, which is the subject of the Convention’s Sixth Report.
The Government welcomes the Sixth Report of the Convention on the Constitution, and thanks the Convention and its members for their high level of engagement. The Government accepts the main recommendation of the Report, which is that a referendum should be held on removing the offence of blasphemy from the Constitution.
We can recall that the ‘freedom of expression’ guarantee in the Constitution, at Article 40.6.1(i), also includes, by way of limit to the general guarantee, a sentence providing that publishing or uttering blasphemous material is to be a criminal offence, punishable by law. The crime of blasphemy at common law referred to material insulting to the State-established (i.e. Church of Ireland) religion. The Supreme Court in the Corway case in 1999, underlined that the Constitutional reference to an offence of blasphemy could not be interpreted in such a narrow sense, and would have to be understood in a manner appropriate to ‘the circumstances of a modern State which embraces citizens of many different religions, and which guarantees freedom of conscience and a free profession and practice of religion.’ The Supreme Court added that it was for the Legislature to define how this would operate in practice.
The Defamation Act 2009 at section 36 duly defines the offence of blasphemy as publishing or uttering material which is grossly abusive or insulting regarding matters held sacred by any religion, and which intentionally causes outrage to a substantial number of that religion’s adherents. There is a defence if a reasonable person would find genuine literary, artistic or other value in the material. The penalty on conviction is a fine not exceeding 25,000 euros.
In practice, there have been no prosecutions under the 2009 Act, and the last public prosecution for blasphemy in Ireland appears to have been brought in 1855.
The Convention devoted its seventh plenary meeting, on 2-3 November 2013, to the question of whether the Constitution should be amended to remove the offence of blasphemy. The Convention’s Report indicates that it received very many submissions on this issue. It notes that the submissions suggested a very high level of support for removing the offence of blasphemy from the Constitution. And that it was clear that this issue was regarded by many of those who made submissions as forming part of a much wider debate, including the role of religion in the Constitution and the relationship between religion and the State.
The Convention reports that, in keeping with its general principles of fairness and efficiency, it sought to present the fullest possible range of perspectives to its participants, both for and against retaining the existing text. It also heard detailed expert presentations on the origins and development of the offence of blasphemy, on its practical operation in Ireland historically and today, and on how this compares with other jurisdictions.
The outcome of the Convention’s deliberations was that a substantial majority of its members recommended that the offence of blasphemy should be removed from the Constitution, with 61% voting in favour of removal, 38% voting against, and only 1% undecided. The Sixth Report of the Convention therefore recommends that the offence of blasphemy is removed from the Constitution.
I am pleased to inform the House that the Government has agreed, at its meeting on 30 September, to put this question to the people, and that a referendum should be held on the question of amending Article 40.6.1(i) of the Constitution to remove the offence of blasphemy.
As regards the detailed content of any Constitutional or legislative change, the Convention’s Report raises a number of further issues:
- Whether the offence of blasphemy should simply be deleted from the Constitution, or replaced with a new provision prohibiting incitement to religious hatred,
- Whether there should continue to be a legislative provision for the offence of blasphemy, or whether this should be replaced, at the statutory level, by provisions prohibiting incitement to religious hatred.
The Convention has voted in favour of including a new Constitutional provision against religious hatred (53% in favour, 38% against, 9% undecided).
There was no clear majority on whether to keep a legislative provision for the offence of blasphemy (49% in favour, 50% against, 1% undecided.)
If a legislative provision is retained, the Convention favoured replacing the existing offence with detailed legislative provisions against incitement to religious hatred (82% in favour, 11% against, 7% undecided.)
These recommendations will require some more detailed legal and other consideration: for example, there is already relevant legislative provision in the Prohibition of Incitement to Hatred Act, which will need to be taken into account.
The Minister for Justice and Equality has been charged by the Government with the task of further examining these issues, and undertaking the work necessary to prepare a Referendum Bill, and a Bill to amend the current legislative provision for the offence of blasphemy.
In relation to timing, the referendum will take place at an appropriate date to be decided by Government, after the necessary further consultations have been completed and the required legislation has been prepared.
Finally, I would like to update the House on the overall position regarding the Government response to the Convention’s Reports.
The Convention produced nine reports in total, all of which have been laid before the Houses of the Oireachtas.
The Government has already agreed to the holding of three referendums in 2015, arising from the Convention’s first 3 Reports. These are on: (1) reducing the voting age, (2) reducing the age of candidacy for Presidential elections and (3) same sex marriage. Preparation of these referenda is relatively advanced.
As regards the fourth report, Government has agreed that work should commence on the establishment of an Electoral Commission.
Work is ongoing on the remaining reports, which as the House will be aware, deal with such matters as giving citizens resident outside the State the right to vote in Presidential elections; Dáil reform; economic, social and cultural rights and the Convention’s conclusions and final recommendations. The Government expects to respond to all of these reports before the end of the current Dail session.
There is merit, therefore, in ensuring that the timing of referendums can be decided in the context of the overall programme of proposed reform. Not least so that the costs of holding referendums can be combined, where feasible, in the public interest.
In conclusion, I would like to express once again the Government’s appreciation of the innovative, thoughtful, and participatory way in which the Convention and its members have debated these questions. I commend the work of the Convention and thank them on behalf of the Government for this Report, whose recommendations we intend to take forward as I have just indicated.