Finally, some sense on Article 40.6.1(i)

Leinster House, via the Oireachtas websiteToday, the Joint Oireachtas Committee on the Constitution, after a call for submissions and having taken evidence in public sessions, published its Report on Freedom of Expression. It is an extensive and well-written report, and will repay much further study. In the meantime, from the press release:

“The committee recommends that the current wording of the constitutional article on freedom of expression is unsatisfactory and drafted in such a way that the limitations on free speech are accorded undue prominence. The Joint Committee recommends that the freedom of expression as provided for in the constitution should be amended to be expressed along the lines of Article 10 of the European Convention of Human Rights, which will ensure greater emphasis on the freedom of speech whilst allowing for proportionate and measured restrictions on that freedom”, said Deputy Ardagh [Chair of the Committee].

“However, given the development in case law and the jurisprudence which has emerged on freedom of expression since 1996, the Committee is of the view that amendment is not immediately necessary but recommends that change be made when an appropriate opportunity presents”, he added.

This is a good starting point, but it is a pity that the Committee didn’t go further. I couldn’t agree more that the present constitutional protections of freedom of expression are weak, and circumscribed by exceptions that are too widely cast. I also agree that the courts in recent years have been heading in the right direction. But the raw material – the basic text of Article 40.6.1(i) – is not well-adapted for this purpose. So, the recommendation that it be amended is to be welcomed. But it is too tenative in two respects. First, the Committee did not see any urgency to the necessity of amending the Article. But this is short-sighted. The problems of the article are manifold, and the sooner they are sorted the better for the state of modern Irish democracy. Second, the text of Article 10 of the European Convention on Human Rights is not a bad template for reform but it was unimaginative of the Committee simply to have stopped there, and not have considered whether that text in turn could be improved by reference to other similar texts. Nevertheless, the Committee’s recognition that Article 40.61.(i) is in need of amendment is a major and very welcome development, and it is to be hoped that the “appropriate opportunity” to amend the text presents itself much sooner rather than later.

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