Atheist Ireland met yesterday with officials from the Department of Justice to discuss the Irish blasphemy law. Our delegation included Chairperson Michael Nugent, Human Rights Officer Jane Donnelly, blasphemy campaign coordinator John Hamill, and independent blasphemy expert Professor David Nash of Oxford Brookes University.
Following this meeting, we are more optimistic about the eventual removal of blasphemy from the constitution, and of its possible replacement with a more positive clause about freedom of expression, that Atheist Ireland had proposed to the Constitutional Convention, but that the Convention had not voted on.
However, we remain concerned about the timescales that are ultimately dictated by the Government’s seemingly shifting policy priorities. We will be asking the Taoiseach next Tuesday to consider separating the removal of the blasphemy clause, which could be done quickly, with preparing a proposed replacement clause, which could take more time.
We are reassured that the Department of Justice is still working professionally and diligently on the task given to it by the Government, which is to consult with relevant parties and prepare options for the Government to consider about the wording of the proposed referendum to remove the blasphemy clause from the Irish Constitution.
Despite the public statements by Enda Kenny to the effect that there will be no referendum on the issue within the lifetime of this Government, the preparation of the referendum legislation remains in the Government’s Legislative Programme for 2015 and the Department is continuing to do this work.
Freedom of expression
As well as considering the report of the Constitutional Convention, the Department is also considering the reports of the 1996 Constitutional Review Group and the 2008 the Joint Oireachtas Committee on the Constitution.
In considering options for the wording, they are not restricted to the specifics of the recommendations made by the Convention, which were (a) remove the offence of blasphemy from the Constitution, and (b) replace it with a general clause including incitement to religious hatred.
They are also able to consider other options, including a positive proposal contained in the Convention’s report, that Atheist Ireland and Eoin O’Dell had proposed to the Convention, but which the Convention did not vote on, and which we discussed with the Department at our meeting yesterday.
That option is to revise Article 40.6.1 generally, modeled on Article 10 of the European Convention of Human Rights, as recommended by the 1996 Constitution Review Group.
If such an option was to be investigated, it would raise wider issues about freedom of expression than would be raised by blasphemy alone, and they would have to consult more bodies, for example media outlets, and the process would consequently take longer.
However, it would mean that the options being considered by the Government would include a positive one based on enshrining freedom of expression in the Constitution, rather than merely a negative one that just removes the blasphemy law or even replaces it with an incitement to hatred clause.
We consider that the balance to be weighed is between the benefits of a (possible) positive clause about freedom of expression, and the benefits of removing the blasphemy clause more urgently, so that Ireland is no longer reinforcing the barbaric blasphemy laws of some Islamic States, who like to cite the hypocrisy of western democracies to support their own blasphemy laws.
Incitement to Hatred
The Department officials asked us our opinions on Incitement to hatred laws. We said that different atheists have different positions on this. People should be protected from harm and violence, and hatred should not be encouraged. However, it is not illegal to hate people, yet such laws make it illegal to incite somebody to do something that is not illegal.
We also suggested that, whatever the merits of incitement to hatred laws, they should not be included in the Constitution. The Convention recommended only including incitement to hatred on religious grounds, but why should that be given precedence over the other grounds for prohibiting incitement to hatred, such as race, gender etc.?
And if the Constitution was to include a list of grounds based on the law, what would happen if the law was changed to include other grounds? We have had enough problems before enshrining specific restrictions in our Constitution that should be dealt with by legislation, and we should not repeat that mistake.
We suggested that public order is a more useful starting point than blasphemy or hatred when framing laws that are intended to protect people rather than ideas, and that we should separate thought crimes from behaviour crimes. This is another reason for removing the blasphemy law independently of whatever may be done about incitement to hatred laws.
Interpreting the current law
Atheist Ireland gave the Department examples of the chilling effect of self-censorship that the current blasphemy law results in, particularly in local media that cannot afford either the legal fees to examine possible breaches of the law or a €25,000 fine if they were to be convicted of blasphemy, but also in the national media.
We highlighted the legal problems with a law that is unclear in its application. For example, what is a religion? The blasphemy law simply excludes groups who exploit member or pursue profit, but that could arguably apply to mainstream religions as well as what are traditionally called cults.
In Ireland there are about 150 religions recognised as nominating bodies to solemnise marriages under the Civil Registration Act. Some of these are small and have unique theological views. If they were all to have their religious feelings protected in our blasphemy law, the situation would get very complicated.
Also, just yesterday Ahmed Hasain, the executive secretary of the Islamic Cultural Centre in Dublin, said: “In our view, the sale of the Charlie Hebdo magazine is a breach in Irish law. It is blasphemous and it is illegal under the legislation. It’s against the law here in Ireland, that is quite clear.”
On the face of it, this suggests that it is the view of the Islamic Cultural Centre in Dublin that the publication is grossly abusive or insulting in relation to matters held sacred by their religion, that this has caused outrage among a substantial number of adherents of their religion, and that this outrage was intended. So how is this claim that the law has been broken to be investigated?
We asked what are the formal procedures for interpreting and implementing the law. How is religion defined? Outrage? Substantial number of adherents? The procedure seems to be that a person would make a complaint to the Gardai, who may or may not pass it on to the DPP, who may or may not prosecute to the courts, and that each level of authority would assess it based on the legislation itself and any precedents, rather than there being an overall set of formal guidelines for interpretation.
Atheist Ireland informed the Department of the feedback that we get about the impact of the Irish blasphemy law internationally, with Islamic States at the United Nations citing the hypocrisy of western States having their own blasphemy laws while complaining about Islamic ones, and in particular Ireland where we have passed a new blasphemy law in the 21st century rather than merely retaining an archaic one.
Professor David Nash highlighted the view of Professor Heiner Bielefeldt, United Nations Special Rapporteur on Freedom of Religion, who has advised Atheist Ireland as part of our campaign against this law:
“Of course you are right that the major damage done by this legislation is the international one. I wouldn’t expect any harsh verdicts being handed down in Ireland, but those countries that continue to have an intimidating anti-blasphemy practice like to quote European countries to unmask Western hypocrisy. So I hope things will be moving in the right direction.” David will be reporting back to the UN rapporteur on the progress in Ireland on removing the law.”
We informed the Department of the new International Coalition Against Blasphemy Laws, was co-founded last month by Association Humaniste de Quebec, Atheist Alliance International, Atheist Ireland, Centre for Inquiry Canada, the European Humanist Federation, Humanist Canada, the Humanist Society of New Zealand, and the Icelandic Ethical Humanist Association and the International Humanist and Ethical Union.
Atheist Ireland will continue to liase with the Department officials as they work on the task given to them by the Government of preparing options for the Government to consider, and we will be raising with the Taoiseach next Tuesday our concerns about the delays that are being caused by the Government’s seemingly shifting priorities on the issue.