The law of blasphemy

The removal from the Constitution of the offence of blasphemy suggested by the constitutional convention last weekend is overdue. And not least because it has been clear for some time that there is neither the will to use the provision, nor is it practical to do so. The Supreme Court has found the constitutional offence undefinable, while the legislative provision – the 2009 Defamation Act – puts such a requirement of proof on the publisher's intent to cause outrage as to make it virtully impossible to implement.

It is now much more generally acknowledged that the price of freedom of speech is an acceptance that this must encompass, albeit not encourage, the right to cause offence. The decision is also a measure of the confidence of most Irish faithful in the robustness of their faith and the fact that they no longer believe that its truths must be defended by the force of law.

The convention decided that while it would like to see the offence of blasphemy removed from the Constitution, it would like to replace it with the insertion of an offence of incitement to religious hatred. Yet, while such a wish to enforce the civility of debate is understandable, whether it should be legislated for, let alone given special provision in the Constitution, is more problematic.

Why limit such a provision to religious hatred, and not include, for example, racial, sexual or other hatreds? Would we simply be replacing one “privileging” of religion with another? And there are those who would argue that a constitution, with all its rigidities, is not the place for the detail of the criminal code – a constitution may rightly protect private property, but a provision specifically banning housebreaking is not necessary, and more appropriate to normal legislation.


That is particularly so in the case of legislation where definitions may change with social attitudes. Like the offence of blasphemy, what might be seen as incitement now, could well be regarded as tame in 10 years time.