Professional Documents
Culture Documents
Trinity College,
Dublin 2,
Ireland.
Mr Alan Guidon,
Clerk to the Joint Committee on the Constitution,
Houses of the Oireachtas,
Kildare House,
Kildare Street,
Dublin 2.
Eanáir 3, 2010
Dear Mr Guidon,
Structure
There is a reasonably standard structure of analysis to be applied when a
statute is challenged as contrary to a constituiton or similar text such as the
European Convention on Human Rights.
Even so, there are several problems with this analysis. The language in which
Article 40.6.1(i) expresses its reasons for restrictions upon speech is, to say
the least, unusual. For example, in similar provisions in other constitutional or
similar documents, the rights are stated first, and the restrictions come
afterwards. But, in the Irish context, before we get to the rights protected by
Article 40.6.1 (expression, assembly, and association), we are told that they
are guaranteed to citizens “subject to public order and morality”. Again, in
what must be a rare provision in a speech clause in the constitution of a
democratic society, Article 40.6.1(i) concludes with three constitutional crimes.
All of this bears contrast with Article 10 of the ECHR, where the right is stated
in Article 10(1) and the reasons for restriction are stated in a straightforward
way in Article 10(2). Moreover, the Article 40.6.1(i) reasons are especially
particular, whereas the Article 10(2) ECHR reasons are cast at a much higher
degree of generality. Hence, since the matters iterated on the face of Article
40.6(1)(i) which might be seen as reasons for restrctions are not really
expressed in those terms, it is only with difficulty that the courts might come to
see them in this way; and in the meantime, we must all muddle through with a
disorderly Article 40.6.1(i).
In this discussion, I will leave aside several matters of which the Committee is
already undoubtedly well aware:
• first, the current state of constitutional blasphemy law after the decision
of the Supreme Court in Corway v Independent Newspapers [1999] 4
IR 484 (SC) all but rendering the last line of Article 40.6.1(i) a
constitutional dead letter;
• second, the historical evolution of modern blasphemy law as described
by the Law Reform Commission’s 1991 Consultation Paper and Report
on the Crime of Libel and by my colleague Dr Neville Cox in his
magisterial Blasphemy and the Law (Edwin Mellen Press, NY, 2000);
• third, the long line of official reports which have called for the abolition
of the crime of blasphemy at Irish law and/or its excision from the
Constitution (see, eg, Law Reform Commission Report on the Crime of
Libel (LRC 41-1991) p 12, para 21; Report of the Constitution Review
Group (The Stationery Office, Dublin, 1996) p 274; Report of the Legal
Advisory Group on Defamation (Dublin, 2003) pp34-35, para 59 giving
rise to section 34 of the Defamation Bill, 2003 (which is being debated
in the Seanad today on the Bill’s Report and Final Stages even as I
belatedly complete this submission);
• fourth, only a very narrow version of the common law crime of
blasphemy is compatible with Article 10 of the European Convention on
Human Rights, according to a Divisional Court of the High Court in
England in R (on the application of Green) v The City of Westminster
Magistrates’ Court [2007] EWHC 2785 (Admin) (05 December 2007)
(leave to appeal to the House of Lords refused: 5 March 2008), finding
that Jerry Springer. The Opera was not blasphemous; and
• fifth, the vote of the House of Lords on 5 March 2008 to include a new
clause 129 in the Criminal Justice and Immigration Bill abolishing the
common law offences of blasphemy and blasphemous libel at English
law (Lords Hansard 5 March 2008, cols 1118-1148).
Instead, I would like to focus on the very existence and express terms of the
last line of Article 40.6.1(i), which provides that
The publication or utterance of blasphemous, seditious, or indecent
matter is an offence which shall be punishable in accordance with law.
Let us assume, for a moment, that there are good reasons for the State to
regulate blasphemous speech; let us even assume that there are good
reasons for the State to do so by means of the criminal law. Even granting
those assumptions, it is quite clearly misconceived for such criminal regulation
to form part of the constitutional text. In essence, constitutions should speak
at a relatively abstractly level, sketching headlines and general principles,
rather than descending to specifics and detail. The precise enumeration of a
requirement for crimes of blasphemy, sedition and indecency runs contrary to
this general principle. Instead, constitutional provisions should seek to
enumerate at a high degree of generality the reasons underlying why speech
should be restricted, much as Article 10(2) of the ECHR does. Hence, in the
context of blasphemy, it can be argued that the justification for such a law lies
either in historical public order concerns or perhaps in the rights of the
religiously observant to the free exercise of their religion. In which case, it
should be these more general concerns which ought to be recorded on the
face of the constitutional text. As was explained in the first part of this
submission, this principled approach is adopted in texts such as the European
Convention on Human Rights, which protect freedom of expression in a
simple introductory clause, and then iterate reasons which can justify
restriction. Such iterated reasons include, for example, the prevention of
disorder and crime, and the protection of the rights of others; and these
matters are more than capable of providing an underlying justification for
blasphemy and similar offences. If Bunreacht na hÉireann is to allow for
offences such as blasphemy (or, for that matter, sedition or indecency) then
this is how it should do so.
The merits of such a general approach are underscored by the Corway case,
which demonstrates that a more particular approach is unworkable in a
constitutional context. Moreover, such general grounds for restrictions would
allow any necessary work to be done, and done more efficiently, by broader
legislation such as the Prohibition of Incitement to Hatred Act, 1989.
And this, in turn, raises the wisdom of attempting any statutory regulation of
blasphemy. The practical social pressures which might make such legislation
necessary are not obvious to me, and I will leave the extent to which they
might nevertheless be found to the Committee. And if the Committee does
decide that such statutory regulation is necessary, then it will need
appropriate constitutional backing. For the reasons outlined above, it is clear
that the current wording of Article 40.6.1(i) does not provide that. This, then,
raises the question of the structure of a possible replacement for Article
40.6.1(i).
Replacement
Given how far Article 40.6.1(i) deviates from the standard pattern of analysis
set out in the first part of this submission, it would make sense for the
Committee to recommend its deletion and replacement with a more
appropriately adapted clause. However, unlike the Constitution Review
Group, I do not think that Article 40.6.1(i) should be replaced simply by Article
10 of the European Convention on Human Rights. To be sure, that Article is a
fine piece of drafting, but many of its advantages are the product of
interpretation by the European Court of Human Rights, and a new article
protecting freedom of expression should seek to take account not only of the
text of the Article but also of its interpretation by the Court, as well as other
subsequent developments in case law and theory. Rather, I suggest that the
four questions of the standard pattern of analysis outlined above should guide
the process of constructing a replacement for Article 40.6.1(i). We can leave
the challenged restriction to one side for the time being, and proceed straight
to the definition of the right.
As to the definition of the right in question, we have already seen that Article
40.6.1(i) is altogether unsatisfactory in this regard – it is only with difficulty that
the courts have been able to bring forms of expression beyond literal
“convictions and opinions” within its ambit. By contrast, Article 10(1) of the
ECHR provides more expansively that “Everyone has the right to freedom of
expression. This right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by public authority …”.
But even this is capable of improvement in the light of the still more
comprehensive section 2(b) of the Canadian Charter, protecting “freedom of
thought, belief, opinion and expression, including freedom of the press and
other media of communication”. The oldest speech protection of all, the First
Amendment to the US Constitution protects “freedom of speech, or of the
press”. And section 14 of the New Zealand Bill of Rights provides that
“Everyone has the right to freedom of expression, including the freedom to
seek, receive, and impart information and opinions of any kind in any form”.
Nor must we forget Article 40.6.1(i)’s right “to expressly freely convictions and
opinions” (even though this wording has caused its fair share of problems). A
combination of these various provisions could provide something like:
Once the right has been adequately defined, the next question concerns the
reasons which could justify restrictions upon it, provided that any enumerated
reasons are substantial, pressing, compelling, or sufficiently important. For
example, Article 10(2) provides a comprehensive and complete (and therefore
closed) list of such legitimate reasons for restrictions:
This would provide a more than adequate starting point for the Committee in
seeking to generate a list of legitimate reasons for restrictions appropriate to
the Irish context, but it should not unthinkingly be the end point. For example,
it might be modified by the addition or substitution of some of the potential
grounds for restriction mentioned in Article 40.6.1(i).They include public order
(twice), morality (twice), the common good (arguably), the authority of the
State, blasphemy, sedition, and indecency. And most of them are covered by
terms in Article 10(2). Hence, the Irish “public order” is reflected in the ECHR
“prevention of disorder”; the Irish “public morality” and “indecency” are better
reflected in the ECHR “protection of … morals”; the Irish “authority of the
State” and “sedition” are better reflected in the ECHR “national security” and
“territorial integrity”; and the Irish “blasphemy” is one aspect of the ECHR
“public safety”, “the prevention of disorder”, and “the protection of … the rights
of others”. There is, however, no ECHR equivalent of the Irish constitutional
concept of “the common good”, a concept which is deeply embedded in the
Irish constitutional order. Though, for myself, I would not include it in a list of
legitimate reasons for restricting speech, the Supreme Court relied upon it in
Murphy v IRTC, and the Committee might therefore decide to include it at an
appropriate point in the above list.
Once the right has been adequately defined, and the reasons which could
justify restrictions upon it adequately enumerated, the next question concerns
the standard of review to be applied to those reasons. In Canada, section 1 of
the Charter guarantees its rights and freedoms “subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society”; whilst in the ECHR, Article 10(2) begins that the
exercise of the freedoms in Article 10(1) “since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society
…”. Note that the proportionality test referred to above is not mentioned in
these provisions; that is because it has been spelled out by the Supreme
Court of Canada from the requirement that restrictions be “demonstrably
justified” and by the ECHR from the requirement that restrictions be
“necessary”. One obvious improvement on both of these texts would be to
state the proportionality standard expressly on the face of the text.
On the other hand, both insist that the restrictions should be “prescribed by
law”, and that formula ought to be retained. The ECHR reference to “duties
and responsibilities” has often been relied upon by the European Court of
Human Rights and therefore ought to be included; but something like the
Canadian reference to “reasonable limits” (or, reflecting the ECHR influence,
“necessary limits”) seems preferable to the more cumbersome ECHR
“formalities, conditions, restrictions or penalties”. All in all, the review clause
might provide something like:
The remainder of the clause would then set out the legitimate and substantial
reasons for restriction already discussed; and the insertion of the word “only”
has the welcome effect of confirming that the list is closed.
It will be noticed that this draft does not include a direct reference to
“blasphemy”. This is as it should be. On the one hand, the absence of the
stark diktat to the effect that blasphemy shall be an offence punishable by law
would allow Irish law to take the advice of reform bodies down the years and
abolish the crime of blaphemy if it so desired (much as both it and the UK are
at present seeking to do). On the other hand, if the common law of blasphemy
were to be revived, or if a comprehensive statute were to replace it, then –
provided it were proportionate – it could be justified on the basis of “public
safety”, “the prevention of disorder” or the “rights of others” in the above draft.
In other words, in the blasphemy context and apart at all from its other
benefits, a recast Article 40.6.1(i) would not tie Irish law down to one position
or the other, but would instead provide welcome freedom of movement to
allow our law to evolve to meet changing social and religious mores as they
develop over time.
However, for what it is worth, I would like to close this submission with a more
personal observation. I was a member of the Advisory Group whose Report
led to the Defamation Bill, 2003 which is currently wending its way through the
Houses of the Oireachtas (it is having its Report and Final Stages in the
Seanad even as I finish this submission). I favoured then, and favour now,
section 34 of the Bill (abolishing the common law crimes of blasphemous,
seditious and criminal libel). Many other submissions will doubtless have
presented the arguments in favour of the abrogation of the crime of
blasphemy, and I would like to add my voice to theirs in urging the Committee
to recommend this course. The enactment of section 34 of the Defamation Bill
would constitute a good start; supporting this development with the deletion of
the last line of Article 40.6.1(i) would be better; but the best means to achieve
this end would be a combination of the statutory abolition of the crime of
blasphemy and the replacement of Article 40.6.1(i) with a more suitable text
(such as the one suggested in this submission). A modern constitutional
democracy which values freedom of expression deserves no less.
Yours sincerely,
Dr Eoin O’Dell
Fellow, Trinity College Dublin
Senior Lectuer and Director of Research, School of Law, TCD.