“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.

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  • kensei

    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.

    The Constitution states:

    (4.1) Parliament shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof.
    (4.2) Every law enacted by Parliament which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.

    But if the law is not tight enough, then surely the law is repugnant and wopuld require another bill tighting it appropriately? If thinsg are not tight enough then the extent of repugnacy must be wide?

    And if they pass another law as a result with stricketr and more Constitutional provisions, then surely that is how the system is supposed ot work?

    They’d be better off amending the Constitution to drop the references to blasphemy, obviously, but in the strict argument here I’m not sure what you are driving at.

  • Pete Baker

    “But if the law is not tight enough, then surely the law is repugnant”

    Is it?

    I’d have thought “repugnant to the Constitution” meant something more than simply loosely written.

  • Pete Baker

    I’ve updated the original post.

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

  • kensei

    Pete

    Surely in legalistic circles that is one of the cases where it can be exactly that.

    Take the US. Because of the precedent set by Roe vs Wade and the use of the privacy amendment, laws banning abortion are normally struck down. But laws restruicting it, or making it more diffcult to get, or more expensive, are normally upheld. It is not hard to see the case where a law in the latter category is too loosely worded and is therefore struck down. It could then be replaced by a law that was properly contained, and would therefore be legal. Similarly gun laws.

    Anyone was an ounce of legal experience should feel free to shoot me down here, but it wa smy understand that this is how the system wa smeant to work.

  • Hi Pete,

    Thanks for the discussion. You say:

    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.

    Exactly so!

  • Pete Baker

    Thanks Eoin,

    I think I got distracted by the argument in the final paragraph, but I got there eventually.