I move: "That the Bill be now read a Second Time".
The object of this Bill is to remove one of the two obstacles in the way of ratification of the United Nations Covenant on Civil and Political Rights by this country. The Bill does this by providing that it will be an offence to incite to hatred on account of race, colour, nationality, religion or ethnic or national origins. The other legislative measure required is one to provide that sentence of death may not be imposed for crimes committed by persons under 18 years of age. This is provided for in the Child Care Bill which is not before the House. Accordingly, as soon as the present Bill and the Child Care Bill become law, the way will be clear for this country to ratify the UN Covenant on Civil and Political Rights.
As I have said, the object of the Bill is to enable ratification of the United Nations covenent. However, the creation of a new category of criminal offence deserves to be considered carefully on general grounds having regard, in particular, to the constitutional guarantee of freedom of expression. I will come back to that point later, when I deal more fully with the statutory offences now provided for in the Bill. Before that I will briefly outline the evolution of this Bill both in international and domestic terms.
As Deputies will be aware, 1988 was the 40th anniversary of the adoption by the General Assembly of the United Nations of the Universal Declaration of Human Rights. The Preamble to this historic document recognised that respect for the inalienable rights of the individual was the foundation of freedom, justice and peace in the world. In adopting the declaration, the United Nations set forth the ideals for which the world community should strive. These emerged in the aftermath of the horror, death and devastation of the Second World War and indicated that there was a new political will among the world community to secure lasting peace for mankind and to protect the individual from the scourge of dictatorship and oppression. Even before the Universal Declaration, in the Charter of the United Nations, signed in 1945, member states reaffirmed their faith in fundamental human rights, disregard of which had resulted in barbarous acts that outraged the conscience of mankind.
The United Nations Charter and the Universal Declaration were followed by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. In addition, in Europe, we have the European Convention on Human Rights which came into force in 1953.
Although it is now 41 years since the Declaration of Human Rights, the International Covenant on Civil and Political Rights was not adopted by the General Assembly of the United Nations until 1966 and did not come into force until 1976. It was signed by this country in 1973. There has been some criticism here in Ireland of our delay in ratifying the covenant but, against that, I think it can be said that in general, this country has had a very good record on human rights. However, I am sure we all agree that ratification of the covenant by this country is a desirable objective, and one which I hope will soon be met, enabling us to meet our international obligations in this respect. We do not have the type of multi-racial society that some of our partners in Europe have. Nevertheless, we cannot close our eyes to the fact that the occasional problem of racial incitement does arise here. When it does, however, it is often due to localised ignorance and fear rather than to any general sense of intolerance or hatred towards people of other races or religions. In those circumstances, we have to be careful, in enacting legislation, while dealing with the few instances of incitement that arise in practice, not to create problems where none previously existed. We must also be ready to meet the argument that this legislation interferes with the right to free speech merely in order to placate sections of international opinion. On balance, I am happy that the legislation meets our international obligations and also meets our domestic needs within its limited objectives. In those circumstances, it is important that debate on the Bill, both inside and outside the House, should be moderate and balanced.
While in general we can trace the motivation for this Bill back as far as 1945 and the United Nations Charter, the actual provisions of the Bill are of more recent origin. In July 1983 an interdepartmental committee was set up, which was chaired from the Attorney General's Office, with terms of reference to examine Ireland's ratification of international covenants and conventions, and with particular reference to the area of human rights. The committee set about examining the two United Nations covenants — the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, as well as the United Nations Convention on the Elimination of All Forms of Racial Discrimination. The committee very quickly recognised that a proper examination of the convention would delay their examination of the covenants, so they decided to prepare a report on the covenants before proceeding to consider the racial discrimination convention and other international instruments. The Attorney General's committee are at present examining the International Convention on Racial Discrimination and, as they recognised, the necessary detailed consideration of that convention is a major job which will take some time to complete. I think the committee took the right decision in reporting separately on the covenants, which, I hope, will shortly be ratified.
The Universal Declaration of Human Rights in 1948 was regarded as a preliminary step in the area of human rights. It was recognised that there should be a more elaborate formulation of standards in instruments which would have legal force as treaties between the ratifying states. Thus, the two covenants were adopted and entered into force in 1976. The fundamental difference between the two covenants, and the reason two instruments rather than one were adopted, is that the objectives of the economic, social and cultural rights covenant are to be achieved progressively, whereas immediate compliance is required in relation to the civil and political rights covenant. Therefore, before this country can ratify the International Covenant on Civil and Political Rights, we have to incorporate into our legislation any measures, not already covered in that legislation, which are necessary for compliance with the covenant. It would have been impracticable to attempt to incorporate the entire covenant into domestic law. The interdepartmental committee reported that it was unnecessary to do so, as most of its provisions are already covered here but, in any case, the covenant is expressed in terms which would not lend themselves to direct incorporation into Irish law.
As I have already said, two measures are required so that this country may ratify the International Covenant on Civil and Political Rights. These were identified by the interdepartmental committee and are, first, the abolition of the death sentence for crimes committed by persons under 18 years of age and, second, the legislation now before us, which will give effect to the provision concerning incitement to hatred in Article 20, paragraph 2 of the covenant. As soon as these become law the way will be clear for this country to ratify the International Covenant on Civil and Political Rights. It is intended also to ratify the International Covenant on Economic, Social and Cultural Rights. The interdepartmental committee concluded that no legislative action was necessary before the latter instrument was ratified by the State.
I will now briefly outline the main provisions of the Bill. Article 20, paragraph 2, of the covenant on civil and political rights reads as follows:
Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
The Bill is intended to give effect to that provision. Deputies will notice that the definition of "hatred" at the end of sections 2, 3 and 4 of the Bill covers hatred against any group of persons on account of their colour or ethnic or national origin, or on grounds of their nationality, race or religion. It is desired to cover in this Bill also the corresponding requirement regarding incitement to racial hatred contained in Article 4 of the racial discrimination convention. The term "racial discrimination" in that convention has reference to "race, colour, national or ethnic origin". Accordingly, the terms used in the definition of "hatred" in the present Bill will not only suffice in the context of the covenant but will also be wide enough to cover the corresponding provision in the convention.
Section 2 is the central provision in the Bill. It is wide in scope and creates a new offence of publishing or distributing material, or using words or behaviour, or displaying written material, in a public place, or distributing, showing or playing a recording of visual images or sounds, where these are threatening, abusive or insulting and are intended, or are likely, to stir up hatred on the grounds specified in the Bill.
Section 3 carries the principle of section 2 into the area of broadcasting. It creates a new offence of inciting hatred by broadcasting visual images or sounds that are threatening, abusive or insulting if they are intended or likely to stir up such hatred. The definition of "broadcast" in section 1 will ensure that, for the purposes of this Bill, the transmission, relaying or distribution of visual images or sounds by means of wire or cable will be covered by the legislation. This is a long section, much of which is taken up with the provision of defences for persons involved in broadcasting, against whom proceedings might be taken under the section, and also with giving power to the Garda to require production of the relevant script or recording in appropriate cases.
Section 4 creates a new offence of preparing or possessing material or recordings of a racist or such like offensive nature to be distributed or broadcast in the State or elsewhere. This provison will make it possible to prosecute those who prepare racist material for distribution here or abroad, where the material is likely to stir up hatred against groups of persons here or in any other country. I am sure Deputies will be just as anxious as I am to ensure that this country will not be used in future for the preparation of offensive material for distribution either here or abroad. There have been instances of this type of activity in this country and up to now the Garda have not had the necessary powers to deal with it.
Sections 2, 3 and 4 are the three most important provisions in the Bill. A very important general question which arose when the Bill was being prepared was the relationship between its provisons and the right to free expression of convictions and opinions guaranteed in Article 40 of the Constitution. The right to freedom of expression is also guaranteed by Article 19 of the International Covenant on Civil and Political Rights itself, and the question of the relationship between that provision and the prohibition of incitement to racial hatred in Article 20 was a live issue when the covenant was being prepared, as well as in the reviews of the working of the covenant by the Human Rights Committee of the United Nations which have taken place since then. The right to freedom of expression is not, of course, absolute.
Under the Constitution that right is guaranteed subject to public order and morality and this qualification also appears in Article 19 of the UN Covenant. I indicated earlier that it would not be practicable to incorporate the entire covenant as a Schedule to this Bill. The legislation now before us gives a good indication of this, since the exact wording of Article 20, paragrpah 2, of the covenant could not be incorporated directly into domestic law.
The interdepartmental committee were of the view that the simple creation of a criminal offence in the precise terms of this provision in the covenant would limit the honest expression of opinion in private and could make punishable a wide variety of utterances and publications which might not be considered serious enough to warrant criminal sanctions. They were of the view, also, that it might be thought undesirable to permit a situation where private prosecutions of a trivial nature could be brought. They thought, accordingly, that it might, on detailed examination, be considered desirable to qualify the covenant provision to some extent in the necessary legislation. That is why the provisions in sections 2, 3 and 4, while giving effect to Article 20, paragraph 2, of the covenant, do not do so in the precise terms of that Article.
The remainder of the Bill is largely consequential and related to the provisions in sections 2, 3 and 4 of the Bill. Accordingly, I will just briefly mention a number of these sections. Section 5 is a standard provision exempting reports of Oireachtas or court proceedings from the scope of the offences created by sections 2, 3 and 4. Section 7 also contains standard provisions, in this case regarding the liability of officers of corporate bodies when the body itself is guilty of an offence. It applies to all offences under the Bill.
Section 8 states that offences under sections 2, 3 and 4 may be instituted only by or with the consent of the Director of Public Prosecutions. It is intended to prevent trivial or mischievous private prosecutions and to ensure that prosecutions are brought only where the evidence is sufficient to justify the proceedings. Section 9 gives the Garda power, under warrant, to enter and search a premises where there are reasonable grounds for suspecting that offending material or recordings are being kept, and also gives the Garda power to seize any such material or recordings. Without these powers, some of the provisions of the Bill and, in particular section 4, would be difficult to enforce.
Section 10 gives the Garda Síochána powers of arrest for specified offences. These powers, also, are necessary to make the law enforceable. Subsection (1) of section 10 gives the Garda power of arrest, without warrant, where they reasonably suspect that a person has committed an offence under section 2 (1) (b) of using offensive words or behaviour, or displaying offensive written material, which are heard or seen by persons in a public place or at a public meeting. This type of offence has significance for public order and it is important that the Garda should be in a position to act immediately, without having to obtain a warrant, by arresting any person suspected of committing such an offence.
I might add here that the definition of "public meeting" and "public place" are quite wide in their scope. I am sure Deputies will agree that it would not be appropriate to attempt to curtail the free expression of opinions among small private groups, such as families. However, where groupings are larger, that situation would be covered by the definitions and this includes cases where people are present by invitation. Section 11 of the Bill gives the court power to order the forfeiture and destruction or disposal of offending material following a conviction under sections 2, 3 or 4.
To sum up, therefore, this Bill has the limited but clear objective of meeting the requirements of the UN Covenant on Civil and Political Rights regarding the prohibition of incitement to national, racial or religious hatred. In preparing the legislation we have borne in mind the corresponding provisions enacted in other countries. It is not meant to be a Bill on racial discrimination and will not in any way slow down the examination of what legislation, if any, will be necessary to enable this country to ratify the United Nations Convention on Racial Discrimination. That examination is continuing independently of the preparation of this Bill.
I commend the Bill to the House.