“The Council of State should advise the President accordingly..”

As noted last week, the Irish Council of State is to meet this evening to consult on both the Defamation Bill and the Criminal Justice (Amendment) Bill. In today’s Irish Times Eoin O’Dell, a fellow and senior lecturer in law, Trinity College Dublin, and blogger, offers a legal opinion on the blasphemous libel provisions.

Nevertheless, although the Constitution requires some crime of blasphemy, it does not necessarily follow that it requires these provisions. As the Supreme Court emphasised in the cartoon case, the law must still be compatible with other provisions of the Constitution, such as freedom of conscience and religion, and freedom of expression. Moreover, the Supreme Court has held that it will take the same approach to freedom of expression under the Constitution as the European Court of Human Rights takes to the Convention.

As we have seen, the English Courts in the Jerry Springer case have held that, for a blasphemy provision to be compatible with the convention, the offence must require not merely outrage but also the risk of public disorder. The blasphemy provisions in the Defamation Bill do not go that far, and must therefore be questionable not only under the convention but also under the Constitution. The Council of State should advise the President accordingly; she should refer these provisions to the Supreme Court; and they should find them unconstitutional.

Hmm.. I’m not convinced that makes those provisions “repugnant” to the Constitution as it stands. It’s an argument that those provisions should be more tightly drawn. Adds Irish Left Review emphasises something that clarifies the point for me.From the Irish Left Review

10 years ago, in the case involving the cartoon in the Sunday Independent, the Supreme Court concluded that “the task of defining the crime was for the Oireachtas rather than the courts.”

It also emphasized that

“the law must still be compatible with other provisions of the Constitution, such as freedom of conscience and religion, and freedom of expression. Moreover, the Supreme Court has held that it will take the same approach to freedom of expression under the Constitution as the European Court of Human Rights takes to the Convention.”

I think I see what he’s getting at now.

Because the blasphemous libel provisions are not strict enough they could allow an unacceptable curtailing of other provisions of the Constitution, “such as freedom of conscience and religion, and freedom of expression.”

That would make it “repugnant” to the Constitution.