July 2009 produced a strange legislative symmetry in the Oireachtas and the UK Parliament. At the same time both legislatures found themselves debating the abolition of the offence of sedition, a common law offence which was already all but moribund at the time of Ireland’s independence. In his excitement at the prospect of the proposed abolition of sedition in the United Kingdom in the Coroners and Justice Bill currently before Parliament, Lord Lester of Herne Hill (left) cast a baleful eye across the Irish Sea at the ‘hilariously ironic’ events in the Oireachtas. For, just as the United Kingdom finally moves to abolish the offence of sedition, a mere 30 years after a UK Law Commission Working Paper advised it to do so, Ireland seems unable to extirpate this offence from its Constitution.
The law of sedition is in effect an offshoot of treason, and did not truly split away from its source until the common law shifted under a combination of the invention of printing and the rise of Star Chamber. By the end of its development, sedition at common law required an act or words (written or spoken), that had some quality sufficient to provoke insurrection (that had a ‘seditious tendency’). Factors such as public feeling, place, mode of communication and audience were all important factors for a jury to consider in deciding whether an act or words had seditious quality.
In later sedition cases ‘bare violent expression’ was no longer the touchstone of the offence, indeed the United Kingdom’s courts seemed to be groping towards a “clear and present danger” test for sedition. The government effectively stopped using the offence, however, before such a test was formulated (See R. v. Burns (1886) 16 Cox CC 355 and R. v. Aldred (1909) 22 Cox CC 1).
However, the key difficulty with the offence is whether speech which was no more than critical of the government could result in prosecution because of a risk of violence occurring. The last significant case for the development of sedition, Canada’s Boucher v. R.  S.C.R. 265, affirmed that a party would have to intend to provoke violence to be guilty of sedition. In this guise, Professor David Feldman concludes that, at common law, sedition ‘is probably not now incompatible with ECHR Article 10’ (Feldman, Civil Liberties and Human Rights in England and Wales, OUP: Oxford, 2nd Ed., 898).
Even if this is accepted, this weight of history makes the offence of sedition unworkably vague. However, the status of sedition was not so obviously anomalous in the 1930s and Article 40.6.1.i of Bunreacht na hÉireann provides that:
‘The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.’
Censorship often prevented these offences from entering Irish courtrooms. Indeed, in underpinning the system of censorship they long contributed to chilling freedom of expression in Ireland. However, in Corway v. Independent Newspapers  4 IR 485 the Supreme Court held, at , that, in the absence of any statutory definition of blasphemy, ‘it is impossible to say of what the offence of blasphemy consists’. Blasphemy, together with the equally unclear offence of sedition, which both potentially undermined Ireland’s obligations to the clarity of criminal law Article 7 of the European Convention on Human Rights, were effectively scrapped.
However, a decade after the Supreme Court swept these offences under the carpet, the Irish Government decided that this solution was inadequate, as it undermines Article 40.6.1.i of the Constitution. As Minister for Justice Dermot Ahern stated in Committee on 20 May 2009:
‘I must respect the advice of successive Attorneys General that there is a constitutional obligation and imperative on me not to leave a legal void … It is not just me as Minister; the Oireachtas is not entitled under the Constitution to leave that legal void.’
Two solutions immediately offer themselves to this supposed dilemma. It may be thought that the most attractive approach for a government facing a financial crisis would to do nothing and put legislative time to better use. The second, more laudable, approach would be to hold the referendum necessary to repeal the offending constitutional provisions. Senators Ivana Bacik and Joe O’Toole helpfully suggested during debate that, with a (second) constitutional referendum on the Lisbon Treaty scheduled for 2 October 2009, the repeal of this provision could also be put to the Irish people (sparing the offence of an additional referendum). Dermot Ahern, however, regarded the subject as being better suited to some (appropriately vague) future.
Instead, the Defamation Act 2009, as enacted, adopts the logically indefensible solution of abolishing the common law offence of sedition (Section 35) whilst retaining the offence of blasphemy and placing it on a statutory footing (Section 36). This is undoubtedly an improvement upon earlier drafts which included a general offence of publishing gravely harmful statements applicable to any of the behaviour listed in Article 40.6.1.i (see Dr Eoin O’Dell‘s efforts to track these changes), this decision undermines the government’s stated justification for introducing an offence of blasphemy. As the offences of sedition and blasphemy have an equal constitutional footing, why does government have to fill one supposed legal void and not the other?
In Dermot Ahern’s statement to the Dail Committee on Justice on 20 May 2009, justifying the new blasphemy offence as a constitutional requirement, he hoped that he had, ‘put at rest the minds of all those fantasy conspiracy theorists that have detected dark machinations and bogey men behind this proposal and have attributed to myself the most debased motives’. Putting such fears to rest may, however, prove easier than assuaging those who question why, in 2009, the Irish government wasted its efforts drafting an offence of blasphemy which it intends to be unworkable on the basis of a spurious justification.
But this debate involves foolishness enough to go around. Speaking in July 2009 in the House of Lords, Lord Lester asserted that because of ‘an unfortunate passage’ (Article 40.6.1.i) in the Irish Constitution, ‘[a]s we on this side of the Irish Sea are clearing away the relics of the Star Chamber, by that curious route across the Irish Sea the Star Chamber is coming back into force for the moment.’ This reading of a Defamation Act which clearly abolishes the offence of sedition in Irish law is so obviously flawed as to raise questions over whether Lord Lester formed his assumptions on the back of the blasphemy debate and earlier proposals rather than considering the Bill as it stood at the time of his speech.
Nonetheless, the ongoing presence of an offence of sedition in the Irish Constitution remains significant. In accepting in principle Lord Lester’s proposed abolition of sedition as part of the Coroners and Justice Bill, the Justice Minister Lord Bach acknowledged that, ‘[t]he retention of these obsolete offences has been cited by other countries as justification for the retention of similar laws that have been used to restrict press freedom.’
Whilst the Defamation Act’s abolition of the common law offence from Irish law is to be welcomed, the continued presence of the constitutional offence is likely to continue to provide succour to regimes which continue to respond to dissidents with offences such as sedition and treason. This alone should have provided pause for thought before this opportunity to seek a constitutional amendment was lost.