European Lawyer journal debates blasphemy law

In the current edition of The European Lawyer magazine, I argue against the new Irish blasphemy law and Thomas Byrne TD of the Oireachtas Justice Committee argues in favour of it. I am publishing the text of both articles here, and I will analyse the arguments made by Thomas Byrne TD in a separate post.

(The European Lawyer is the leading monthly magazine for the legal profession across Europe. Its subscribers – predominately senior private practice and in-house lawyers – are based in jurisdictions across the European continent as well as the UK and North America.)

This is the argument for the law:

Necessary modernisation

Thomas Byrne TD is a solicitor and a member of the Oireachtas Justice Committee

Long awaited reform and modernisation of defamation law in Ireland has unfortunately been overshadowed by ill informed and somewhat hysterical campaigning over the arcane issue of blasphemy libel.

The Defamation Act 2009 came into operation at the beginning of this year and introduces a modern statutory framework, providing for:

• comprehensive reform;
• statutory expression to developments in the jurisprudence of Irish courts, and elsewhere, including the European Court of Human Rights;
• respect for the necessary balance between the competing rights of freedom of expression (article 40.6.1 of the Irish Constitution) and of respect for ones good name and reputation. (article 40.3).

In completing the reform and modernisation of defamation law, the Minister for Justice had to consider the provision on blasphemous libel contained in section 13 of the old Defamation Act 1961. That section provided for the offence to be punishable by monetary and prison penalties (a term of up to two years’ imprisonment was possible). The section gave expression to article 40.6.1.i. of the Constitution, which is its only criminal offence provision, stating: ‘The publication or utterance of blasphemous, seditious or indecent matter is an offence which shall be punishable in accordance with law.’

This issue has onlv come to prominence in the context of the reform of Ireland’s defamation legislation. The minister had previously explained in some detail, both before the Oireachtas (the parliament) and in the media, the position in relation to the constitutional obligation involved here.

The Irish government was required to respect the provision of our constitution. Successive attorneys general advised that until the constitution is amended, by referendum of the Irish people, it is necessary that blasphemous libel remain a crime and that legislation must make provision for sanctions for this crime. Thus, to proceed with the reform of defamation law, it was necessary to address this issue.

At the Dail (the lower house of parliament) committee stage examination of the Defamation Bill last May, Justice Minister Dermot Ahern made it clear that (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’. He set out all the relevant elements involved and drew particular attention to the nature of the constitutional obligation imposed.

The government’s preference, which I believe was widely supported, was to proceed with reform of defamation legislation rather than postpone it to await a possible referendum on blasphemous libel. I have expressed the hope that sanctions in regard to blasphemous libel will be little, if ever, a point of issue in the future. This was the case in the past under the provisions of the previous Defamation Act of 1961.

It is important to understand, despite claims to the contrary, that the provisions in the Defamation Act 2009 are not designed for the protection or promotion of any particular religion. I received no representations from any particular religion in regard to the drafting of those provisions.

Despite the criticism directed towards Mr Ahern by some, as a minister he is not in a position to advise anyone as to any potential breach of the law nor to offer a view as to any possible prosecution. Prosecution of criminal offences in Ireland is a matter solely for the independent Director of Public Prosecutions.

I hope that we will not have to wait a long time before a suitable occasion arises to put a proposal to the Irish people to delete the reference to blasphemy from our constitution. This course of action was proposed by the Joint Oireachtas Committee on the Constitution in July 2008, which suggested that we might avail of any appropriate opportunity in the future.

However, I am not necessarily convinced that a referendum needs to be held as a matter of urgency, given the other serious challenges facing our country. I should also point out that one should not anticipate a positive result in a referendum.

And this is the argument against the law:

Blaspheme and be damned

Michael Nugent is an Irish writer and chairperson of the advocacy group Atheist Ireland.

Why has the Irish Government introduced a medieval canon law offence into the criminal law of a modern pluralist democratic republic? Officially, it is because blasphemy is an offence under the Irish Constitution. But in 1999, the Supreme Court had found that the existing law was unenforceable, as blasphemy was not defined. However, between 1996 and 2008, four Constitution Review Committees had called for the deletion of religious references, including blasphemy, from the Constitution.

And in 2008, the Venice Commission, the body that advises the Council of Europe on constitutional matters, recommended that incitement to hatred, including religious hatred, should be a crime; that insult to religious feelings should not be a crime; and that the offence of blasphemy should be abolished (which is already the case in most European States) and should not be reintroduced.

In this context, nobody in Ireland expected the offence of blasphemy to survive the recent updating of the Defamation Act which contained it. The Justice Minister had three options: to leave the law as it was, to seek a referendum to remove blasphemy from the Constitution, or to make the law enforceable by defining blasphemy. He chose the third option. And so, for the first time, Ireland now has an enforceable blasphemy law.

This new law is both dangerous and silly. It incentivises religious outrage by making it the first test of blasphemy, in a Europe where cartoons or novels can trigger such harmful behaviour. The new law also treats religious beliefs as more valuable than secular, scientific or political beliefs. But the criminal law should protect people from harm, not ideas from criticism. In any case, we should be removing 1930s religious references from our Constitution, not legislating to enforce them. For example, you cannot become President or a Judge in Ireland without taking a religious oath.

Even if the Minister felt obliged to bring in a blasphemy law, he was certainly not obliged to bring in this particular one. It is too vague to enable citizens to regulate their conduct, and is discriminatory in its ambiguities. For example, what is “a substantial number of adherents” of a religion? If it is an actual number, it discriminates against smaller religions. If it is a proportion, it discriminates against larger religions.

In 2007, the English High Court held that it was the prevention of imminent public disorder that made the old English blasphemy law compatible with Article 10 of the European Convention of Human Rights. But “causing outrage” is a far lower hurdle than the risk of public disorder. If the Irish Supreme Court were to use the same criteria as the English High Court, it could find this law unconstitutional.

The new law also discriminates against atheists. In 1999, the Irish Supreme Court said the old common law of blasphemy would have to be adapted to the circumstances of a modern State which guarantees freedom of conscience and of religion. The new law attempts to do this by redefining blasphemy as protection from outrage and extending such protection to citizens of any religion. However, it arbitrarily excludes such protection from citizens whose fundamental belief system is based on no religion.

Under political pressure, the Minister reduced the fine from €100,000 to €25,000 and introduced some safeguards that merely add more problems. The ‘genuine value’ defence shifts the burden of proof to the defendant in a criminal trial. And the exclusion of so-called ‘cults’ from being classified as religions is an arbitrary interference in the constitutional rights to freedom of religion and from discrimination.

The Minister just doesn’t get it. The problem with a blasphemy law in a modern republic is its existence, not its detail. On the day it became operational, Atheist Ireland published 25 blasphemous statements on our website. If we are prosecuted, we will challenge the constitutionality of the law. If we are not prosecuted, it strengthens the political case for the repeal of a law that serves no purpose.

Worryingly, this law is also harmful outside Ireland. In recent years, Islamic States have been trying to make defamation of religion a crime at UN level. Ireland has voted with our fellow EU States against this concept. Now Pakistan, on behalf of the Islamic States, has adopted the wording of the new Irish law to advance their agenda at UN level. This silly and dangerous Irish law will eventually be repealed. For everybody’s sake and for the reputation of Ireland, this should happen sooner rather than later.

As mentioned earlier, I will analyse the arguments made by Thomas Byrne TD in a separate post.

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