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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 | BreakingNews.ie | 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.

13 Responses to “Another twist in the tale of the Defamation Bill”

  1. […] (18 July) cearta.ie, the blog of Trinity College law lecturer Dr Eoin O’Dellcearta.ie, has an […]

  2. Kevin says:

    Eoin, you say that in Corway the SC refused to apply the constitutional crime of blasphemy in the absence of statute. However, on reading the case, I find it confusing how the court could refuse to apply section 13 of the DEfamation Act 1961 which prohibits-without defining-blasphemous publications. I understand how the SC can refuse to apply the common law crime of blasphemy, but how can it ignore a statute without striking it down as unconstitutional?

  3. Eoin says:

    Hi Kevin. Thanks for this. The technical answer is that section 13 did not create any offence; it smply assumed the common law offence and provided penalties. The Supreme Court in Corway said that there was in effect no common law offence, which undercut the assumption on which section 13 was based. But this is a technical answer. I suspect the real answer has to do with the discomfort the Court (as then constituted) felt with a crime of blasphemy at all. That being so, they held that the common law was too unclear to embody that crime or to fulfil the direction in the last line of Article 40.6.1(i). Section 36 of the Bill calls that bluff by seeking to give content to that direction.

  4. Jon Pierson says:

    I am but a humble (mature) law student so I ask this long-winded question in light of the constitutional interpretation lectures I received a couple of years ago, in particular the possibility of the Supreme Court using extrinsic information – for example, looking to Oireachtas debates – to assist in the interpretation of the sense or meaning of a particular provision.

    I wonder, then, how the Supreme Court would interpret the following comments made by Dermot Ahern during the progress of the Bill through the Oireachtas?

    Wednesday, 29th April 2009 – Select Committee on Justice, Equality, Defence and Women’s Rights
    “As the Deputy knows, I am as close to baby Jesus as one can get…”

    Wednesday, 20th May 2009 – Select Committee on Justice, Equality, Defence and Women’s Rights
    “As regards the offence of blasphemous libel, I believe we would all agree that the optimal approach, and certainly the one I would probably find most preferable, would be to abolish it altogether.”

    “…I have always had a strong regard for the clear separation of powers between Church and State, which there must be.”

    “I expect few if any such [blasphemy] actions will arise.”

    “… section [37] is a technical provision which would come into play only after the unlikely event of a successful prosecution in regard to blasphemy”

    “…I propose the inclusion of a changed section that will raise the bar pretty high for a possible prosecution”

    “If the Bill passes, it is more than unlikely that a prosecution will be taken.”

    “In effect, we raise the bar so high that it is more than likely no prosecutions will be brought.”

    Thursday, 9th July 2009 – Report and Final Stages, Seanad
    “I would not disagree that the optimal approach, and certainly one which I would find most preferable, would be to abolish the offence of blasphemous libel.”

    “Some people have suggested that we should reduce [the €25,000 fine] further. I would like to do that, but then the offence will be brought into the jurisdiction of the Circuit Court, and I think we would all prefer if it was dealt with in the High Court.”

    “Again, I can put it no further. Probably most of us accept that having the offence of blasphemy is anathema to the type of society we have today.”

    Etc.

    It is quite possible Dermot Ahern would have expanded upon these comments during the Report and Final Stages of the Bill in the Dáil on Wednesday, 8th July 2009 but, since he guillotined the debate on the Bill, the blasphem sections were never reached.

  5. An Fear Bolg says:

    Eoin,

    I’m no constitutional scholar but I do wonder about the constitutional requirement of Article 40.6.1(i).

    “The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law. ”

    Is it open to the Oireachtas to provide in legislation that there shall be no punishment for blasphemy? In addition, if it is a requirement of the Constitution, why is Mr. Ahern not providing for an offence of sedition or indecent publication?

  6. Eoin says:

    Thanks guys for your comments. As to Jon’s question, in Crilly v Farrington [2001] 3 IR 251, [2002] 1 ILRM 161, [2001] IESC 60 (11 July 2001), the Supreme Court held that the doctrine of separation of powers forbids it from admitting extrinsic evidence such as Oireachtas debates for the purposes of interpreting legislation. The quotes are interesting, but not admissible.

    As to the ceist curtha ag an fear bolg (I’m sure I’m getting the case wrong there), I agree that what’s sauce for the goose is sauce for the gander, so that if content is given to the reference to blasphemous matter in Article 40.6.1(i), then content must also be given to the references to seditious and indecent matter. I think that the answer must be that this is already done, in the case of sedition by the Offences Against the State legislation, and in the case of indecency by the various Censorship Acts.

  7. […] is also an interesting article on the background here. Possibly related posts: (automatically generated)But not yet, LordWhy They FoughtWe Do Not Honor […]

  8. […] Read all about it here (it’s a development of my argument here). […]

  9. […] as I am to find out what President McAleese has decided after her meeting this evening with the Council of State, the RTÉ News website is reporting: The meeting of the Council of State called by the President […]

  10. […] the notion that the taking of offence is more important than free expression.” Despite an eleventh-hour twist and the best efforts of a newly formed lobby group, the defamation bill was passed today, including […]

  11. Social comments and analytics for this post…

    This post was mentioned on Twitter by RedDave14: RT @dariuswirl: Constitutionality of blasphemy in Defamation Bill http://bit.ly/NqHaq (Eoin O’Dell)…

  12. […] Of course, this might not be necessary in the short term, since the provisions might very well conflict with the current text of the constitution in any […]

  13. […] issues with blasphemy provisions of Defamation Act, 2009, and although President McAleese convened the Council of State to consider the issue, she did not refer the Bill to the Supreme Court. I […]

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Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

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