Another twist in the tale of the Defamation Bill

Áras an Uachtaráin = Residence of the President of Ireland, via the President's siteThe saga of the Defamation Bill, 2006 is not over yet. Article 26 of Bunreacht na hÉireann (the Irish Constitution) allows the President, after consultation with Council of State, to refer a Bill to the Supreme Court for a determination of its constitutionality. President McAleese has chosen to convene the Council of State to advise her on the qustion of whether to refer not only the (controversial) Criminal Justice (Amendment) Bill, 2009 (an unsurprising move) but also the (equally controversial) blasphemy elements of the Defamation Bill, 2006 (which has come as a great surprise). (See Belfast Telegraph | | Bock the Robber | ICCL | Irish Emigrant | Irish Independent | RTÉ news | Irish Times | PA | Slugger O’Toole. Update (18 July 2009): see also Irish Examiner | Irish Times here and here | Irish Independent | MediaWatchWatch).

There have been 15 such references to date. If the Court holds that a Bill is unconstitutional, the President must decline to sign it; whilst if the Court decides a Bill is constitutional, the President must sign it into law, and the resulting Act is immune from constitutional challenge in the future. As my colleague Oran Doyle has pointed out, this means that

… unlike in ordinary constitutional litigation, a decision made under the Article 26 reference procedure without consideration of a particular issue cannot be reopened when that issue is brought to light by another aggrieved litigant. … The tenor of the court’s reasoning in several references suggests that the court is more likely to hold legislation unconstitutional when the effect of its decision is absolute immunity for legislation considered only in the abstract.

Admittedly, the reference procedure is imperfect (see, eg, Niamh Howlin “Shortcomings and anomalies: Aspects of Article 26” (2005) Irish Student Law Review 26 (pdf)), but if it means that the odds are in favour of striking down the blapshemy provisions of the Defamation Bill, then bring it on!

The last sentence of Article 40.6.1(i) of the Constitution provides that the publication or utterance of blasphemous material shall be an offence. In Corway v Independent Newspapers [1999] 4 IR 484 (SC), the Supreme Court declined to give any effect to the constitutional clause in the absence of a statutory provision, but that decision will be of little help in any Article 26 reference. Rather more recently, in R (on the application of Green) v The City of Westminster Magistrates’ Court [2007] EWHC 2785 (Admin) (05 December 2007) (discussed on this blog at the time), a Divisional Court of the English High Court held that it was the prevention of imminent public disorder probably which ensured the compatibility of the English common law offence of blasphemous libel with Article 10 of the European Convention of Human Rights:

[17] … The Article 10(2) basis for the crime of blasphemous libel is best found, as it seems to us, in the risk of disorder amongst, and damage to, the community generally.

The key question will be whether the influence of the Convention will mean that the Court will take a similar approach to the Constitution. Let us assume that it will. Section 36 of the Bill provides that

(2) … a person publishes or utters blasphemous matter if—
(a) he or she publishes or utters matter that is grossly abusive 10 or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion, and
(b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage.

(3) It shall be a defence to 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.

Subsection (3) is a welcome saver, but the main question will be whether subsection (2) is constitutional. There is a large gulf between the outrage envisage by the subsection and the risk of public disorder envisaged by Green. If that case is right, then this provision must be questionable under the Convention; and if a similar approach is taken under the Constitution, then this provision must also be of dubious constitutionality. I will therefore await with great interest both the President’s decision and any subsequent decision of the Supreme Court. Of course, even if she decides not to refer either Bill, a constitutional challenge is likely the first time any of the controversial provisions are invoked. Either way, therefore, the blasphemy provisions of the Defamation Bill will get their day in court.