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School of Law,

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

Re: Joint Committee on the Constitution

Dear Mr Guidon,

I was honoured to be invited to make a submission to the Committee


regarding freedom of expression in general and blasphemy in particular. I
would therefore like to take this opportunity to make three brief points about
the constitutional protections of freedom of expression Article 40.6.1, the first
relating generally to the structure of the Article, the second relating more
particularly to blasphemy, and the third relating to any possible future
replacement for Article 40.6.1(i).

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.

Assume a section of a statute, which a plaintff argues is a restriction upon a


protected constitutional (or equivalent) right, such as the right to freedom of
expression (as protected, for example, by Article 10 of the ECHR, the First
Amendment to the US Constitution, Section 2(b) of the Canadian Charter of
Rights and Freedoms, and Article 5 of the German Constitution). The State
will then be called upon to iterate its reasons for the restriction, and they must
be substantial – in the European Court of Human Rights, they are described
as rising to the level of “pressing social needs”; in the Supreme Court of
Canada, they are described as sufficiently important objectives; and in the US
Supreme Court, they are described variously as compelling or legitimate state
or governmental interests. In the ECHR, most rights come with a
comprehensive (and complete) list of such legitimate reasons for restrictions
(in Article 10, this list is to be found in Article 10(2)); in the US and Canada,
there is no such enumnerated list, and it is for the State to argue for the
recognition of any given reason by the relevant Supreme Court. Finally, the
Court will subject the State’s claims as to the substance of their reasons for
the restriction to scrutiny or review – for example, the Supreme Court of
Canada and the ECHR both require the restriction be proportionate to the
legitimate reason relied upon; whilst the US Supreme Court applies several
standards of review which are broadly similar in application and outcome to
the proportionality test.

Hence, if there is a restriction upon the right to freedom of expression, the


State must have a substantial reason to justify the restriction which can
withstand scrutiny or review. The four stages of this common pattern of
analysis can be applied to Article 40.6.1(i), though with difficulty.

Assume a section of a statute, which a plaintff argues is a restriction upon the


right to freedom of expression as protected by Article 40.6.1(i). Now, the right
to freedom of expression in other constitututional documents is admirably
clear: in Canada, section 2 says that “Everyone has the following fundamental
freedoms: … (b) freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication”; in the ECHR, Article
10(1) says 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 …”; and the US, the First
Amendment refers to “freedom of speech, or of the press”. These are
eminently succinct and coherent provisions. But in Ireland, Article 40.6.1(i)
refers to “the right of citizens to express freely their convictions and opinions”;
not to put too fine a point on it, this language has tied the courts up in knots,
and decisions which confined its protection to a narrow literal reading of
“convictions and opinions” (see AG v Paperlink [1984] ILRM 373) have only
recently been transcended by a more purposive protection of freedom of
expression (see Irish Times v Ireland [1998] 1 IR 359 (SC), Murphy v
Independent Radio and Television Commission [1999] 1 IR 12 (SC), and
Mahon v Post Communications [2007] 2 ILRM 1; [2007] IESC 15 (29 March
2007)).

If our hypothetical plaintiff manages to establish that Article 40.6.1(i)


potentially protects the expression in question, it will then be for the State to
establish its (substantial, pressing, compelling, sufficiently important) reasons
for the restriction. Unlike either the ECHR (which iterates a closed list of such
reasons) or the US and Canadian provisions (which allow the State to argue
for the recognition of a specific reason in a given case, and in effect therefore
have an open list), the effect of Article 40.6.1(i) from this perspective is
unclear. The best that can be said that is that it gives rise to a partial (or
perhaps mixed, certianly neither completely closed nor completely open) list
of substantial reasons for the restriction. On its face, the Article mentions
public order (twice), morality (twice), the common good (arguably), the
authority of the State, blasphemy, sedition, and indecency; and these could
be presented as examples of specific reasons upon which the State could rely
to justify restrictions upon the right to freedom of expression. However, unlike
the position with Article 10(2) of the ECHR, which contains a closed list of
such reasons, the courts have shown no signs of treating this list from Article
40.6.1(i) as closed (indeed, in Murphy v IRTC, the Supreme Court accepted
reasons to justify restrictions which are not to be found in the text of Article
40.6.1(i)). As a consequence, it is – at best – a partial list of reasons which
could justify restrictions upon speech.

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).

Finally, if our hypothetical plaintiff manages to establish that Article 40.6.1(i)


potentially protects the expression in question, and if the State manages to
establish a (substantial, pressing, compelling, sufficiently important) reason
for the restriction, the Court will then subject that reason to review or scrutiny.
The US Supreme Court has generated several standards for such review; but
the Supreme Court of Canada and the ECHR have both settled on the same
single standard. It is a threefold standard. First, the restriction must be
rationally connected with, and carefully designed to give effect to, the reason
for the restriction. Second, the restriction must impair the right in question as
little as possible. Third, there must be proportionality (an appropriate
correspondence) between the effects of the restriction and the reason being
relied upon to justify it. The application of this standard in the context of Article
40.6.1(i) is unproblematic: following the Canadian and ECHR examples, the
Irish Supreme Court adopted it in Murphy v IRTC.

In short, therefore, as a matter of principle, if there is a restriction upon the


right to freedom of expression, the State must have a good reason to justify
the restriction which can withstand review (on a proportionality test).
Unfortunately, it is not easy to make Article 40.6.1(i) conform with this pattern.
Several consequences follow of which two are particularly relevant to this
submission, one relating to the structure of a possible replacement for Article
40.6.1(i) (which is the topic of the third part of this submission), and one
relating to the crime of blasphemy in the last sentence of that Article (which is
the topic of the next part of this submission).
Blasphemy
In this second part, I would like briefly to apply the insights derived from the
above discussion of the structure of Article 40.6.1(i) to the particular context of
blasphemy.

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.

It is extraordinary that a constitution of a democratic state should create a


constitutional speech crime, but in that sentence Bunreacht na hÉireann
creates not one but three of them (not merely blasphemy, but sedition and
indecency as well)! It may very well be that there are good reasons for
regulating such types of speech, but creating a constitutional crime is simply
not the way to do so. It is a bizarre provision, which sits uneasily with the rest
of Article 40.6.1(i). For all its faults, the earlier elements of the Article
constitute in essence a general protection of freedom of expression (the
Supreme Court has increasingly explained the Article in such terms; see Irish
Times v Ireland, Murphy v IRTC, and Mahon v Post. The last sentence
radically alters, even profoundly unbalances, the Article, by altering its focus
and orientation away from the protection of freedom of expression and
towards the cumbersome and obsolescent language of undefined criminal
offences. Indeed, at least in the blasphemy context, it unnecessarily creates a
constitutional crime constructed upon a word which, according to the
Supreme Court in the Corway case, is – in Constitutional terms – undefinable.
Moreover, such a peculiar provision is not even necessary: a blasphemy law
could be consistent with the remainder of Article 40.6.1(i) (or an equivalent
provision) without the need for the unwarranted creation of an anomalous
constitutional crime.

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.

I should say at one that it would be thoroughly misguided to begin a modern


restatement of a right to freedom of expression by making it subject to
restrictions (such as “public order or morality”) before even stating the right; in
modern best practice, the right ought to be stated first, and restrictions should
follow; and that is the approach I will take here.

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:

Everyone has the right to freedom of thought, belief, speech and


expression. This right includes the freedom to seek, receive, hold
and impart convictions, opinions, information and ideas of any kind
in any form without interference by public authority. This right also
includes the freedom of the press and other media of
communication.

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:

… in the interests of national security, territorial integrity or public safety,


for the prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or the rights of others, for
preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.

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.

Furthermore, experience and caselaw (at the Irish, European, or international


levels) might generate other candidates for inclusion, provided that they are
similarly substantial, pressing, compelling, or sufficiently important, and
expressed at an appropriate level of abstraction. An example might be the
“reasonable expectation of privacy” formula increasingly being relied upon in
common law courts as the abstract justification for privacy laws, and that
might be added to the “confidentiality” clause of Article 10(2). Moreover, the
Committee might decide that some of the language in Article 10(2) is
inappropriate to the Irish context, and might therefore decide to excise some
part of it (though nothing obvious occurs to me). Finally, here, the text should
provide expressly whether the list of reasons is closed or not. For my own
part, I would recommend that the list should be expressed to be closed, by
including a formula to that effect somewhere in the clause introducing the list
of substantial or pressing reasons for restrictions. A combination of these
various considerations could provide a list of substantial, pressing,
compelling, or sufficiently important reasons for restricting freedom of
expression along the following lines:

… in the interests of national security, territorial integrity, public


safety or the common good, for the prevention of disorder or crime,
for the protection of health or morals, for the protection of the
reputation or the rights of others, for preventing the disclosure of
information entitled to a reasonable expectation of privacy or
otherwise received in confidence, or for maintaining the authority
and impartiality of the judiciary.

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 exercise of these freedoms, since it carries with it duties and


responsibilities, may be subject to such necessary limits as are
prescribed by law and proportionate only to …

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.

Finally, the above discussion avoids the trans-border (“regardless of


frontiers”) and licensing (“of broadcasting, television or cinema enterprises”)
elements of Article 10 ECHR, since these are not elements of the existing
Article 40.6.1(i). Similarly, the discussion has avoided the quagmire that is the
cryptic middle sentence of Article 40.6.1(i) (“The education of public opinion
… organs of public opinion … rightful liberty of expression …”), because the
import of the whole sentence is unclear, the phrase “organs of public opinion”
is curiously dated, and its essence is already included in the clarification
above that the right should also include the freedom of the press and other
media of communication.

Combining the three suggested drafts above, a starting point for a


replacement Article 40.6.1(i) might look like:

Everyone has the right to freedom of thought, belief, speech and


expression. This right includes the freedom to seek, receive, hold
and impart convictions, opinions, information and ideas of any kind
in any form without interference by public authority. This right also
includes the freedom of the press and other media of
communication.

The exercise of these freedoms, since it carries with it duties and


responsibilities, may be subject to such necessary limits as are
prescribed by law and proportionate only to the interests of
national security, territorial integrity, public safety or the common
good, the prevention of disorder or crime, the protection of health
or morals, the protection of the reputation or the rights of others,
preventing the disclosure of information entitled to a reasonable
expectation of privacy or otherwise received in confidence, or
maintaining the authority and impartiality of the judiciary.

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.

Finally, I have in this submission largely concentrated on sturctural issues


relating to Article 40.6.1(i) in general and to blasphemy law in particular. I
have not taken sides on the question of whether Irish law ought to have a
crime of blasphemy or something similar. Rarther, I have argued that even if it
were to do so, that crime should not be expressly stated on the face of the
constitution; I have argued for a replacement text for Article 40.6.1(i) which
would reflect both modern constitutional theory and international best practice;
and I have demonstrated that this replacement text would afford Irish law the
freedom to adopt a blasphemy law or not, as it chooses.

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.

I am grateful to the Committee for giving me the opportunity to make this


submission, and I remain available to assist the Committee with any matter
which might arise concerning it.

Yours sincerely,

Dr Eoin O’Dell
Fellow, Trinity College Dublin
Senior Lectuer and Director of Research, School of Law, TCD.