Dáil Éireann debate -
Wednesday, 26 Apr 1989

Vol. 389 No. 2

Prohibition of Incitement to Racial, Religious or National Hatred Bill, 1988 [Seanad]: Committee Stage.

SECTION 1

Minister for Justice (Mr. Collins)

I move amendment No. 1:

In page 2, subsection (1), line 12, to delete ",whether or not in conjunction with any other means," and substitute "or by any other means or by wireless telegraphy in conjunction with any other means".

The definition of "broadcast" in the Bill as it stands covers the transmission, relaying or distribution of sounds or visual images by wireless telegraphy on its own or in conjunction with any other means. In other words, the definition includes the emitting of electro-magnetic energy over paths which are not provided by any material substance by a process which is literally "wire-less", as well as a combination of "wire-less" and "wire", "cable" or any other substance. Most people receive their television reception by means of wire and wire-less technology.

During the debate on the Bill in the other House it was argued that the definition of "broadcast" did not include transmission of visual images or sounds by cable or wire systems on their own. I undertook to consult the draftsman to see if it would be possible to tighten up the definition of "broadcast" so as to obviate the possibility of a loophole emerging in the light of advancing technology. The amendment I am now proposing is the outcome of those consultations.

The effect of the amendment is probably best illustrated by an example. If a cable operator was to insert a recorded item directly into the system, that item would be covered by the Bill as it stands. However, if he inserted a live studio discussion, advertisement or whatever, it would not be covered. The effect of this amendment would be to bring under the provisions of the Bill any such transmission by means of any material such as cable or wire on its own.

Amendment agreed to.

An Ceann Comhairle

There is a number of amendments which are either related or alternatives. They are amendments Nos. 2, 8, 9, 10, 13, 17, 18, 19, 24, 25, 26, 34, 35, 36, 37, 38 and 39. I am suggesting therefore that we discuss these amendments together, by agreement. Is that satisfactory? Agreed.

Miss Colley

I move amendment No. 2:

In page 2, subsection (1), between lines 18 and 19, to insert the following:

" `ethnic origins' includes references to the group of persons within the State known as the Travelling Community, which community traditionally pursue, or whose forebears traditionally pursued, a nomadic way of life;".

On Second Stage of this Bill there was a lot of discussion about the inclusion of the travelling community within the terms of the Bill. I think it would be fair to say that there was consensus on the need for relevance of this Bill to the Irish position, despite the reason for introducing the Bill being an attempt to comply with a United Nations convention. I certainly made the point on Second Stage that we should take the opportunity to ensure that our legislation is relevant to the home situation and that the kind of problems we have in relation to racism or prejudice relate to a very large extent to the problems which the travelling community experience.

I seek in amendment No. 2 to include within the definition or interpretation section references to the travelling community. There is a number of aspects of the method I have chosen that I would like to explain to the House. Later I will seek to amend the Title of the Bill to include the word "ethnic". That was referred to on Second Stage also. The interpretation of "ethnic origins" should be spelled out as it is a phrase not in common usage and not readily discernible from references to racial origins. It is worth while differentiating between the two. It would also serve the purposes of the Bill — to stamp out incitement to racial or ethnic hatred — to make specific reference to who would be included among ethnic groups. One of these should be the travelling community.

There is much support within the community at large for the inclusion of the travelling community among ethnic groups. For the sake of clarity it would be very useful to state definitely that we wish to include the travelling community under that heading rather than leave it up to the court to decide at a later stage. Given that we do not have any legislation of this on the Statute Book, cases dealing with this matter have not come before the courts. The courts should be given guidance; certainly, the courts should be aware of what was in our minds when we were passing this legislation. There is no doubt that it was in our minds on Second Stage to ensure that the travelling community do not suffer from the kind of offence covered in this Bill that is, the incitement to hatred. I put down this amendment to ensure that there is no doubt nor is there doubt what the travelling community consist of.

I see a difficulty with some of the related amendments because they do not include any definition of what the travelling community consists of. For the sake of clarity in the Bill and to ensure that the courts are given proper guidance on how to interpret it, it is worth incorporating a reference to what the travelling community consists of. To a large extent I use as an example section 13 of the Housing Act, 1988, which deals with the provision of halting sites for travellers. Subsection (1) of that section states that the section applies to persons belonging to the class of persons who traditionally pursue or have pursued a nomadic way of life. I have converted that for the purposes of this Bill to make it quite clear that "ethnic origins" should, first, refer to a group known as the travelling community and, secondly, that that community is explained for legal purposes, as a community which traditionally pursue or whose forebears traditionally pursued a nomadic way of life.

The travelling community are not, as the term indicates, a community constantly on the move. Some of that community move around regularly but others of that community, as an ethnic group, have settled and taken up residence in houses. Some live permanently, to all intents and purposes, in halting sites but not in traditional housing as we know it. Others move about some months of the year while others still move about constantly.

It is very important that we incorporate all parts of the travelling community within the terminology of this Bill. It would be unfortunate if we were to pass the Bill, and an amendment to it which was so loose as not to allow any real definition of the kind of people we are trying to cater for, or is so tight that it excludes those who legitimately could see themselves as being very much part of that ethnic group, of the travelling community.

I believe quite strongly that the travelling community are an ethnic group for the following reasons. Any ethnic group is one which can point to a long shared history, and there is no doubt that in Ireland it is recognised that the travelling community fall into that category. They have a separate culture, a separate way of life and a separate language which albeit is not used, but then neither is the Irish language used every day by everybody who lives in Ireland. That does not mean we do not see it as part of our heritage. For those reasons I believe the travelling community fit into the normal, accepted interpretation of an ethnic group.

First, it is worth stressing that in the Bill. Second, it would be unfortunate if, by our terminology in the Bill, as some of the other amendments put down state, we sought to exclude the travelling community from being incorporated in the term "ethnic group". There is no doubt that if we were to do that, following the passage of this legislation, it would be referred to as the status quo. To a certain extent, that would defeat the purpose of what we are trying to achieve here, which is to recognise that the travelling community are a separate group within our society. That was recognised on Second Stage. If this is so, why not include them in one of the categories in the Bill, that is, an ethnic group, a group of people who have a separate ethnic origin?

Some of the amendments seek to create separate groups not already covered in the Bill. The Bill outlaws incitement to racial hatred against groups on grounds of race, colour, nationality, religion, ethnic or national origins. I cannot understand why we should seek to add further groups. I note that the Minister on Second Stage, both in this House and in the other House, was at pains to say that he did not want to specify particular groups in the Bill, in other words, he did not want to single groups out because he felt that if we were to go down that road we would run into a minefield with other groups wishing to be included. I can appreciate why he does not wish to go down that road. That is why I believe, that for the sake of clarity and of adhering to the Bill as drafted, we should keep within the wording we already have but to indicate that "ethnic origins" should include references to the travelling community.

I ask the Minister to seriously consider the fact that we may not foresee the difficulties which may follow if an amendment is passed which seeks to add the travelling community to the definition. I have no doubt it will cause the travelling community to be seen as separate, apart from any categories mentioned in the Bill, which would be unfortunate and not in keeping with the spirit which was evident in this House on Second Stage. It is unnecessary and I appeal to the Minister and other parties to accept the premise that the travelling community should be included within one of the groups already catered for in the Bill. My amendment covers the basic idea that they should be covered in the group and the definition, however loose, but still faithful to what the travelling community is, should be included for the guidance of the courts.

Mr. S. Barrett

May I move amendment No. 8?

An Ceann Comhairle

The Deputy may speak on his amendment now but there can only be one amendment before the House at any given time. We will effectively deal with the Deputy's amendment when we reach it.

Mr. S. Barrett

There is agreement between all parties in the House that there is a need to recognise that the largest ethnic minority group, consisting of about 20,000 members, is the travelling community. I dislike having to argue the point as to which is the best amendment to accept when we are all talking about the same thing. However, as Deputy Colley made her case, I feel obliged to make mine. It is unfortunate that there has been a great deal of lobbying over the past week or so by some people who are concerned about the plight of the travelling community. We are all concerned about the plight of the travelling community and in a civilised society nobody could tolerate any from of incitement to hatred or discrimination against any particular group.

I have read the various documentation to justify the argument that the travelling community are an ethnic group. If they are an ethnic group there is no need to table an amendment to this Bill because ethnic groups are automatically included. However, I fear — it may sound ridiculous — that someone who feels aggrieved by something published about them would have to go to court to prove membership of the travelling community as we know it. Everybody knows what is meant by the travelling community but the reality is that some of its members now live in ordinary housing estates and have integrated with normal society. I do not mean to be disrespectful to the travelling community but that is the reality. People may marry into the travelling community because the more integration there is with the settled community — which we are all trying to achieve — the more likely it is that people will marry into those families. In five or ten years time will someone who marries into one of those families have to go to court to prove that he or she is part of an ethnic group going back to the 12th century? That would be wrong.

Having thought about this and studied the matter, I came to the conclusion that if the travelling community are an ethnic group they are automatically covered in the Bill and there is no need for an amendment. However, in recognition of their special position in the community it is worth while adding "or membership of the travelling community" because in that way people within the community who can prove that their origins go back to the 12th century are automatically included. Even if such wording is superfluous it will not damage the legislation. My amendments do not damage the case of those who want it generally accepted that the travelling community are an ethnic group. As I said, there is evidence to show that that is the case but there are difficulties.

Some members of the travelling community are now settled in ordinary local authority housing estates and they are part of a group comprising 300 or 400 houses. Thankfully, their sons and daughters are attending the local primary and secondary schools, they are part of the community and they do not stick out like a sore thumb. There is the possibility of the children marrying into the settled community in future. It would be an unfortunate situation if those people had to go to court to prove they were covered under this Bill because they are part of an ethnic group. If we include "or membership of the travelling community" we cover both sides.

I ask the Minister to accept my amendment and the arguments I put forward. I also ask the Opposition parties to accept that the wording tabled as an amendment is probably the safest one. It will not damage the case made by those who want to prove — rightly — that the travelling community are an ethnic group. I am sure the Minister will be arguing that ethnic groups are mentioned. We should demonstrate that the Houses of the Oireachtas want to pay particular attention to a group in society who have suffered and are likely to suffer in the future. We should pay particular attention to the plight of those people and refer to them in legislation. I do not want to get into political argument about this; maybe I am wrong and if people can convince me I am wrong I will accept it. I do not think that is the right way to go about this. All parties have been concerned, as is evidenced from the debates in the Dáil and Seanad, about the need to include a reference to the travelling community in the Bill. If there is a need to make specific reference to them in the Bill we must find another form of words and I have suggested such a form in my amendment. If we say that they are an ethnic group they are automatically covered. The Minister has argued that there is no need to specify any group if they are an ethnic group but we want specific reference to the travelling community in the Bill. I suggest that the wording in my amendment is the most suitable for inclusion.

Mr. Taylor

At the conclusion of the debate on Second Stage, and when the provisions of the Bill were being reviewed in the media, I thought a suggestion had come from the Minister that he would take on board our point about the travelling community. I had expected to see an amendment today in the Minister's name dealing with the issue of the travelling community. I am disappointed that the Minister left it to the Opposition parties to table amendments to include the travelling community. It may be that the Minister has in mind to accept the amendment he regards as the most suitable or most appropriate and for that reason I will be interested in hearing his response this morning.

Broadly speaking, I agree with the comments made by Deputies Colley and Seán Barrett. Deputy Barrett made a point that it would be unfair to expect a member of the travelling community to prove in court that he or she was part of an ethnic group. However, that is not quite the way it will work out because it will not be the responsibility of a member of the travelling community to prove that. In my view it will be the responsibility of the prosecution to prove that the travelling community are an ethnic group within the meaning of the terms of the Bill. That might present a problem for the prosecution and I do not think that in preparing legislation we should put difficulties in the way of the prosecution. Those who prosecute in our courts have difficulties enough in the present climate of rising crime, escalating vandalism and with the resources of the enforcement agencies such as the Garda Síochána being stretched beyond all recognition, without more problems being put in their way. The Minister will be aware of the most recent crime statistics.

When introducing legislation to protect certain categories of people we should make it as simple as possible. In the course of the debate here, and in the Seanad, the Minister argued that it was not necessary to mention the travelling community. That may be so but I wonder why we should leave any doubt when we do not need to? Let us simplify the matter and put it beyond yea or nay by mentioning the travelling community as a category we seek to protect. In my view it is necessary to include such a provision but even if that is not necessary I wonder why the Minister does not include them so as to put the matter beyond any doubt. He may be saving the prosecution from having to call expert evidence in court to establish whether that group come within the definition of the provision. The travelling community are seeking this additional protection and a specific mention in the Bill. We should accord that to them. It may be said that it is unusual, unnecessary or not the practice to mention specific groups in legislation but that is not so. In point of fact our Constitution makes specific mention of some groups; they are given specific recognition as an entity. If that is acceptable in the Constitution it should be acceptable in a Bill.

The Opposition parties are agreed that the travelling community should have the protection they seek and it is my hope that the Minister will reconsider his position during the course of the debate and agree to our amendments. The argument has been put forward that if one group are included we will be widening the scope of the legislation with the result that there will be no end to the list of groups one might seek to include. One could mention many groups that come in for abuse or denigration from time to time. One could mention politicians, for example, who very often are abused and so on, but we are not suggesting that they should be included in the Bill. Solicitors may be considered as another group but I am not suggesting that they should be included.

Mr. S. Barrett

What about journalists?

Mr. Taylor

One has to be practical and sensible about this. We all recognise that there is a number of groups who should be catered for in new legislation. One such group is the travelling community. I do not think we need open up a broad principle to the effect that if one or two groups are mentioned we should include many others. The first point is that we have not heard of pressure from other groups to be included, other than the travelling community and the gay community who are mentioned in my amendment. They feel the need for mention in the Bill and for protection.

The difference between my amendment and those proposed by Deputies Colley and Barrett is that mine includes protection against hatred being caused to people on account of their sexual orientation. I understand that The Workers' Party have tabled an amendment along similar lines. It is a fact that in this State people of a certain sexual orientation, in particular the gay community, have been and continue to be in certain circumstances subjected to vilification. They are held up to contempt and ridicule and if we do not include them in the Bill they will not be covered by its provisions. Why should we not cover them in the Bill? They are human beings and citizens of the State who are entitled to the protection of the law and the Constitution.

When we are introducing legislation to prohibit incitement to hatred against certain groups what reason can we have for excluding the people I have mentioned? What benefit can it be to anybody to exclude them from the protection they seek? Perhaps it is not necessary to comply with the convention that they should be specifically included. I have not studied in detail the exact wording but the Minister has said it is not necessary to include them in order to comply with the convention. All right; so it is not, but, just the same, let us include it. We know that incitement to hatred does go on where the gay community are concerned, that they are fair game, that they are held up and pilloried on occasion, not in any widespread or great way, but even to a small extent it can be extremely hurtful to those people. Why do we not do the right thing?

I am sure we all know in our hearts that it is the right thing to do. Why do we not give them the protection they seek seeing we are today about the business of bringing in legislation on the basis of protection of people from being held up to hatred and incitement against them for no good reason? I urge Members here to take that on board now that we are given the opportunity and this is the time to do so. It has been done in many other countries, notably the Scandinavian ones who have written into their legislation the protection I seek in my amendment for the members of the gay community. It is generally recognised that in social and liberal thinking the Scandinavian countries are advanced. I applaud the liberal attitude they take on these matters. We should and could learn from them. Why not? They have done it. It is done in other forward-looking countries who take an advanced notion, who adopt advanced ideas on this subject. I believe we should do so.

There is just one other point in respect of which my amendment differs somewhat from others along those lines and I ask the Minister and my colleagues here to consider it. It is this, that throughout the Bill there is reference to the word "hatred"; "hatred" is the word that is used. That is all right as far as it goes but there can be, and often are, circumstances in which the material published or distributed might be construed as bringing the group concerned into circumstances leaving them susceptible to contempt or ridicule which is different from the notion of hatred. For example, a group can be held up to ridicule, to look stupid, held up to be an object of contempt in the eyes of the public. I do not want to see circumstance evolve in which nice, fine axes are being debated and discussed in court as to whether circumstances in which a group is held up to ridicule or contempt excludes them under the provisions of this Bill because it does not hold them up to hatred. The definition should be widened so that as well as "hatred""ridicule" and "contempt" are included. I have incorporated that concept in my amendment which I would ask the House to consider favourably.

An Ceann Comhairle

The Deputy will have an opportunity of formally moving his amendments at a later stage.

Proinsias De Rossa

I want to address myself to the amendments in my name and those of other members of The Workers' party, No. 9, and related amendments Nos. 18, 25, 36 and 39. What these amendments seek to do is change the Title of the Bill to include ethnic as well as national hatred. Our amendment No. 9 seeks to include "members of the travelling community" and "sexual orientation". To a large extent the case has been made by other Deputies in relation to these two groups. However, I want to make a number of points. The point made by Deputy Barrett that one is either of an ethnic group or one is not is not as simple as that. Unfortunately, it is not so clear-cut that people can be designated one or the other by looking into their eyes or so ascertaining in any other way; it is very difficult to define a person as being a member of an ethnic group. That is why to some extent, like Deputy Barrett, we have included specifically the travelling community in our amendment. The case has been made and I hope the Minister will be able to respond positively. It is important to include them specifically, indeed to include the outlawing of incitement to hatred arising from sexual orientation also.

Those are two specific areas with which Ireland has a problem. For example, we do not have a large coloured population in this State although, at the same time, there is a degree of latent racism in Irish society which was highlighted by the Micheál Mac Gréil report in 1977 — on Prejudice and Tolerance in Ireland — when he undertook a survey in the Dublin area which makes interesting reading with regard to attitudes to coloureds, the English, Scots and Welsh, the handicapped, Jews and a whole range of people, including drug addicts, itinerants and criminals. For instance, it is interesting to note that when people were asked whether they would like particular categories to come into their families, the responses were that 51 per cent only would welcome Russians into their families through marriage. On the other hand, the average percentage who would welcome other European categories were 80 per cent in the case of attitudes towards "British", "English", "Scottish" and "Welsh", despite the common belief that there is a lot of anti-British or anti-European feeling in this country.

That report went on to point out that responses to specific social categories were positive in respect of some disadvantaged groups. For instance, widows would be welcomed into the family by 89 per cent; handicapped by 77 per cent; unmarried mothers by 79 per cent — despite views expressed on the Gay Byrne Show. Deserted wives would be welcomed by 77 per cent; the unemployed by 69 per cent; heavy drinkers by 36 per cent; unfortunately, alcoholics by 22 per cent only; drug addicts by 20 per cent and itinerants and criminals by less than 30 per cent. Clearly there is a problem via-á-vis people's understanding of a whole range of social problems people face. Itinerants, or travellers as they are now called, are a very distinctive group in Irish society. We do not have another large distinctive group of that kind. For that reason it would be important for us to refer to them specifically in this Bill.

I referred to the question of sexual orientation. These are people who, while they do not constitute an ethnic or racial group nevertheless should be included in this Bill. This group is comprised of men and women who, by and large, feel oppressed. Whatever the growing liberalisation of Irish society may hold for them very many of them feel they cannot declare their sexual orientation. They fear that, if they did so, they would be discriminated against in various ways. Unfortunately the provisions of this Bill do not deal with discrimination per se; they deal with incitement to hatred. It would constitute a step in the right direction if we could ensure that publications and the broadcasting media could not be used to incite hatred against this section of our population.

It is interesting to refer to the International Bill of Human Rights Articles to which we are seeking to make our laws amenable. For example, Article 3 reads:

The State's parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

That places an obligation on us to ensure that those areas in which there is obvious discrimination and the possibility of incitement to hatred in Irish society be dealt with specifically under the provisions of this Bill.

Article 26 of the same Bill states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

There is a strong case to be made for including the categories I have referred to in amendment No. 9 and in related amendments Nos. 18, 25, 36 and 39.

I do not particularly want to get into a debate on ethnicism. The question as to whether travellers are an ethnic group is one which I am sure will be debated for a very long time. There are sections of the travelling community who argue very strongly that they are an ethnic group and if they feel, as they obviously do, that in defining themselves in that way they will have a better chance of achieving equality of treatment before the law and equality of treatment in Irish society then I have no objections to this. I see problems down the road, so to speak, in that approach. Nevertheless the travellers' group are not of such huge proportions as to create major problems for Irish society if they are defined as an ethnic group.

I urge the Minister to take on board the arguments which have been made by all the deputies on this side of the House with regard to the travelling community and also the arguments made by Deputy Taylor and I in relation to sexual orientation. I would point out to the Minister that I put an amendment down to the Video Recording Bill on incitement to hatred with regard to sexual orientation and so forth. The Minister pointed out that the matter would be dealt with under this Bill and, therefore, did not take on board the amendment at that stage but I would ask him to take it on board now.

Mr. Collins

There are three separate elements in this group of amendments— the travelling community, sexual orientation and ridicule or contempt. I will deal with these three elements separately in my reply.

On Second Stage I said that I would be favourably disposed towards amendments which would explicitly include the travelling community and I now have before me for consideration several amendments proposing different solutions to how the travelling community should be so included. Having examined these amendments I have come to the conclusion that the simple approach is the best one and accordingly I propose to accept amendments Nos. 8, 17 and 24 and I will now give my reasons for so doing.

The term "the travelling community" is now a well known and much used expression. As Deputy Colley said on Second Stage, everyone knows who is being referred to when the term is used and there is no confusion. If I was to define the term I would immediately come up against two difficulties. The first is finding a definition which excludes persons who travel around a lot either as a way of life or as part of a job but are not members of the travelling community as commonly understood. If I came up with such a definition I would then come up against a second difficulty, that is, how to include travellers who have settled either completely or for part of the year. There would always be a danger when attempting a definition that some person would be inadvertently included or excluded. That is a risk that would have to be considered if "the travelling community" was not such an accepted and well understood expression. I have had discussions on this point with the Parliamentary Draftsman and the Attorney General and the consensus of opinion is that, as with the other terms such as race, ethnic origins and national origins, no definition is necessary.

The other approach I would have difficulty with would be to define "ethnic" as including the travelling community, regardless of whether it was confined to the purpose of this Bill. For a start it would not give travellers one with of protection more than they will get anyway. Indeed it is ironic that some of the people who would most like to see this approach are the most constant proponents of the theory that travellers are an ethnic minority. If I was sure of this I would be saying that as the travellers are already covered by the Bill there is no need to mention them by name. To do so would be tautological and that would be bad drafting. However, I am not so sure, and on the basis of present knowledge about the history of the travellers there may be certain indications but little proof of their origins. I could not agree to a definition now that would tie the hands of the courts and could one day turn out to be factually wrong.

One day the courts may be asked to decide on whether the travellers are a distinct ethnic group. If that happens, which in the context of this legislation it cannot if the amendments I am accepting are made, the courts will make their decision in the light of prevailing knowledge of the history and background of the travellers. That knowledge may well be at a far more advanced stage than it is today.

Accordingly, I am happy to accept amendments Nos. 8, 17 and 24. I am satisfied that these will give the travelling community the maximum protection afforded by the Bill with no qualifications brought about by definitions or other extraneous matters. This is one of those all too rare occasions when there is unanimity as to what we are trying to achieve and I might add that, any disagreement there may be is on matters of detail. I hope that I have managed to convince Deputies that the amendments in the name of Deputy Barrett which I am accepting are the correct ones, both in drafting and policy, and fully meet the intentions of the other amendments I do not propose to accept.

I come now to the question of including "sexual orientation" in the definition of hatred. I am not accepting the amendments that include this proposal. In my Second Stage speech I referred to the various international human rights instruments which provide the background to the Bill now before this House. This Bill was prepared in the light of the recommendations of an interdepartmental committee which was established to identify the legislative changes necessary to enable this country to ratify the UN Covenant on Civil and Political Rights. What we have before us today is a Bill which gives effect to one of the recommendations of that committee. In other words, and I would like to stress this point, this Bill is aimed at removing one of the obstacles in the way of ratifying the Covenant on Civil and Political Rights. The Covenant provision in question refers only to "national, racial or religious hatred". In the Bill this has been broadened to cover also the expression used in the corresponding provision in the UN Convention on Racial Discrimination, which refers to "race, colour, or ethnic origin". The category of person now covered by the definition of "hatred" in sections 2, 3 and 4 of the Bill is accordingly very wide — it covers "race, colour, nationality, religion or ethnic or national origins".

This legislation breaks new ground. The ambit of this legislation is very wide as can be seen from the very broad categories covered by the definition of "hatred"— a definition that is now being extended by the inclusion of "members of the travelling community". If I appeared to hesitate over the inclusion of the travellers in the definition of hatred, it was to some extent in the knowledge that specifically mentioning them would be seen by some almost as an invitation to redouble their efforts for the inclusion of other categories. It may be one particular group that is pressing now — next month or next year it could be another group and so on. The case for inclusion of the travellers has been made, and accepted, the case for sexual orientation has not.

I want to make it very clear that I do not condone the use of abusive or insulting words or behaviour, or the incitement of hatred, directed against any particular section of the community. However, as with all legislation, this Bill has certain objectives and I am satisfied that they have been met. A point is invariably reached beyond which it would not be reasonable to go and it is my contention that that point has been reached and any further additions to the definition of "hatred" would be to the detriment of the Bill as a whole.

The third element in this group of amendments is the question of ridicule and contempt. I appreciate the Deputy's intentions with this proposal but I have to say that it is neither practical nor desirable and I am opposing it.

Under sections 2, 3 and 4 it will be an offence for a person to act or speak, as set out in the sections, in such a way as to be threatening, abusive or insulting with the intent or likelihood of hatred being stirred up. These words, "threatening". "abusive" and "insulting", are well known and have been included in legislation both here and abroad for a long time. They appear in the Dublin Police Act of 1842, section 14, where there is an offence of using threatening, abusive or insulting words or behaviour, with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned.

They are strong words, as indeed is hatred. They mean more than "annoying" or, "ridicule" or treating somebody with contempt. They are undefined — but are clear in their meaning, a meaning which any ordinary citizen can understand. I think our ordinary citizen would, for example, know an insult when he or she saw one. However, it would not be appropriate to penalise those who say or publish something in bad taste.

To ridicule a group of persons may not be ideal human behaviour but it is certainly not a crime and I do not intend to make it one. In its ordinary meaning, to ridicule is to mock or to laugh at and to have contempt for someone is to be scornful. To accept the Deputy's amendment would leave the legislation so lacking in the type of respect and sense of fairness that all legislation needs in order to be acceptable that it would be worthless. Also, as I have said on more than one occasion when explaining this Bill, we have had to be very careful not to include anything that might infringe the constitutional rights of free speech. I submit that the amendment we are now discussing could well upset the balance we have achieved in the Bill in this respect.

Mr. Taylor

That protects the rights of free speech.

Mr. Collins

Overall, therefore, I am accepting amendments Nos. 8, 17 and 24, and opposing Nos. 2, 9, 10, 13, 18, 19, 25 and 26.

In accordance with the undertaking I gave during the Second Stage debate, I consulted the draftsman on whether the title of the Bill should be amended to include the word "ethnic". He advised that such an amendment was unnecessary. The absence of "ethnic" from the titles — long or short — in no way circumscribes its meaning or effectiveness within the Bill. In the same way, the meaning of the terms "colour" and "national origins" are not diminished by their absence from the title and indeed, the same goes for the travelling community. Whether words or phrases are part of the titles will not affect their meaning within an Act but if the titles appeared too precise, the absence of a particular category from them might seem to take on a significance of its own which was not intended.

The addition of the word "ethnic" to the titles would, in fact, in itself make no difference to the meaning or the scope of the Bill. I would not regard a negative reason such as that as being good enough for accepting the amendments and, as I pointed out, including the word "ethnic" in the titles now could unnecessarily call into question the absence of other terms such as "colour" and "travelling community" from them. A fairly typical dictionary definition of "ethnic" is that it pertains to race or that it relates to the classification of groups on a cultural, social or some other basis. Its meaning is very close to "race". Similarly, "national origins" has a meaning different but nonetheless related to "national". "Colour" in the context of this Bill means something different than "race" but again it does not appear in the titles. The fact that "ethnic" is not in the title did not prevent the amendments on the travelling community being accepted and that community are probably closer in meaning to "ethnic origins" than any of the categories actually included in the titles.

Members of the House recognise that drafting is a very exact art. Putting in words or phrases that are unnecessary may not appear at the time to cause any harm, but at some future date the courts may draw some inferences that were unforeseen. As I said, the absence of other terms from the titles might be questioned if "ethnic" is included but the others are not.

To sum up very briefly, whether "ethnic" is in the titles makes no difference to its meaning, scope or potential within the Bill, and makes no difference to any other aspect of the Bill. It is unnecessary. Imagine somebody being prosecuted for, say, stirring up hatred against a group on account of their "ethnic origin" and arguing that he is not guilty because the word "ethnic" is not in the Long Title of the Act. To include it would not be good drafting and it could have unforeseeable repercussions. Therefore, everything considered and in the context of the expert advice available to me, I am unable to accept these amendments.

Mr. Taylor

The Minister said that the aim of this Bill is to remove an obstacle to the ratification of the United Nations Covenant on Civil and Political Rights. I wish he had not put it that way. I do not think that is quite the right way to put it. I would have preferred if the Minister had said that the object of this Bill is to prohibit the incitement to hatred of various groups who live in this country. Is that not something we ought to be doing and would want to do whether we needed or wanted to ratify an instrument of the United Nations? We want to do it for its own sake because it is the right and proper thing to do, not because of some technicality regarding the ratification of a United Nations covenant. That may be an incidental point in the matter, but we want to do these things because they need to be done and because it is right that they should be done and because it is appropriate for us as a democratic civilised society, when certain groups may be held up to hatred, to protect them. That is the object of what we are doing here today.

The Minister said he did not condone incitement to hatred for any group. I accept that but it is not enough just to say it. If it is proved that there is incitement against any group, one must do something about it when there is an opportunity to do something about it and that opportunity arises here today. The group known as the gay community are singled out for incitement to hatred from time to time. The Minister may say he does not condone it but that will not help them very much or stop people from holding them up to ridicule, contempt and hatred. What would help them would be if the Minister wrote into this Bill that it would be an offence to do that. That is the object of the Labour Party and The Workers' Party amendments and it is right that that should be done regardless of whether it is required by the UN. These people have asked for that protection and they should be given it.

I accept that the words "abuse, and the use of insulting words and behaviour" and so on are in the Dublin Police Act, but so is the expression "hatred, ridicule and contempt". I do not understand the Minister's reluctance to accept the broadening of that definition if it is felt that it is right to do that. Are we saying that it should only be an offence to bring a group into a situation of hatred, if they are pilloried or ridiculed by sketches, insulting drawings and so on? Is that something that ought not be an offence under this Act?

Section 3 brings in the words "threatening, abusive or insulting". That is confined to broadcasts. I do not see that it includes the dissemination of written material which is dealt with in section 2, so my amendment on section 10 is appropriate.

Proinsias De Rossa

I welcome the Minister's proposal to accept Deputy Barret's amendments. Deputy Barret's amendment is perhaps slightly better than mine in relation to including the travelling community, for the reasons he stated. I have no particular problem with the Minister's case with regard to not including "ethnic" in the title of the Bill. I am not an expert in drafting Bills and I acknowledge the point the Minister has made with regard to the possibility of creating problems in the future. I welcome the Minister's agreement to include the travelling community specifically in the Bill but I am disappointed at his failure to accept the case for the inclusion of incitement to hatred against people because of their sexual orientation.

Amendment No. 9 in my name and the names of The Workers' Party Deputies is directed at including in section 2 (3) the definition of hatred so as to include people with a different sexual orientation. As the Minister says, the primary purpose of the Bill is to enable us to ratify a UN covention and as Deputy Taylor says there is obviously also the intention to provide protection for groups specifically within the State although I have difficulties with that as well, as another amendment of mine indicates. Nevertheless the law will protect people on the basis of their colour, nationality, religion, race, ethnic or national origins. The inclusion of sexual orientation there would bridge a gap in our law. I will give an example in relation to the neo-Nazi group who operate in the State and who frequently produce publications attacking people because of their race, colour, nationality, religion, ethnic and national origin and their sexual orientation. When this Bill is passed that group will be prevented from publishing such material in relation to race, colour and so on but they can still produce it in relation to people because of sexual orientation. This omission will be a grave error on the part of this House. During World War Two there was an appalling slaughter of people by the Nazis. The vast majority of them, something like six million, were Jews, but it is often forgotten that many more people were slaughtered because of their sexual orientation. It is part and parcel of the Nazi philosophy to discriminate against and to revile people who do not fit their concept of what a human being ought to represent and people with a different sexual orientation is one of those categories which they have traditionally pursued. I feel strongly that the Minister should take on board the suggestion to include "sexual orientation" in this Bill. There are very real human problems for people who find themselves, not by choice, in this situation. They do not choose their sexual orientation. This House has a responsibility to protect them. We can take a small step, and it would only be a small step to protect them by including in this Bill a reference to sexual orientation. Ideally I would argue that the House must go further and introduce an anti-discrimination Bill, because this Bill does not deal with discrimination per se. I strongly urge the Minister to reconsider his position. I am not anxious to press votes on this Bill. The Minister has been very forthcoming on the cases made by Opposition Deputies so far so it would be unfortunate if Committee Stage were to break down into one or other group challenging votes on particular issues. That is not my purpose, I would rather convince the Minister that sexual orientation should be included and I hope that other Deputies besides myself and Deputy Taylor will support that case.

Miss Colley

I appreciate that the Minister has taken on board some amendments relating to the inclusion of travellers in the Bill, despite the fact that they are not my own and that I have quite serious reservations about the wording of the amendments he has accepted.

I will refer to some of the remarks made both by the Minister and Deputy Barrett in their contributions. It seems that there is a difficulty perceived by the Minister and Deputy Barrett about the definition of travellers. An example of those difficulties is how one would define travellers who have moved into the settled community and are now living in permanent houses: should they be regarded as members of the travelling community or members of the settled community?

Those travellers who have moved into settled accommodation and are to all intents and purposes integrated still on occasions suffer from verbal and sometimes physical abuse for the very reason that they are recognised to be apart, to be different, to be of a group called the travelling community, or travellers. Therefore, it is quite important that they be protected and not just those who are travelling on the roads or in halting sites. It is important that those who have decided to become integrated into the settled population also be given the protection of this Bill. We all know of cases in recent years where hordes of local residents marched on certain individuals who had moved into a settled community. We all know of slogans seen and abuse that we do not condone. If this Bill can eradicate that behaviour, that opportunity should be taken.

Deputy Barrett also referred to the fact that if the travellers are an ethnic group, an ethnic minority, then they are covered in the Bill anyway. I agree with him. They are an ethnic group and will be covered in the Bill. However, given that the case law in Ireland up to now has not been presented with the opportunity to define an ethnic group, given that we want the travellers to be included in the terms of this Bill, we should make it easy for the courts, and, as Deputy Taylor has said, for the prosecution in any of these cases. If a member of the travelling community makes a complaint under this Bill when enacted that there has been incitement to hatred against him as a member of the travelling community, it will make the case far easier for the prosecution to take up if this individual can simply point to the fact that he is a member of the travelling community, and, as such, is included in an ethnic group.

The Minister today referred again to his unwillingness to extend the remit of the Bill, or cause unnecessary inclusions of other or separate groups. In accepting those amendments he is extending the remit of the Bill; he is creating further groups and possibly will cause confusion in the future. I will not make this a sticking point because it is to be welcomed that travellers are at least mentioned in the Bill. That was initially the aim of all Deputies. However, we must have regard to the effect the words we use will have on future court cases.

One very important aspect that occurred to me during this debate is that, given that the Minister has accepted those amendments there is a question as to whether it will be possible for the courts to find that travellers are an ethnic group after they have been excluded from it in this Bill. I would ask the Minister to investigate that matter. He says that in the future the courts may be faced with applications to declare whether the travelling community is an ethnic group. If at that stage the courts have regard to this legislation they will find that the Act will refer to ethnic or national origins, or membership of the travelling community. They are separate and different. The courts will then be faced with the problem as to whether they can disregard that completely in their deliberations. We must be extremely careful about what we do with regard to any amendment that we put forward. The Minister is right in saying that we should not tie the hands of the courts in making future decisions. Each one of us has said in his or her own way that he or she believes that the travellers are almost definitely an ethnic group, that they have various characteristics. That is what I understand most, if not all, Deputies to be saying here. If that is the case, why is that not simply included in the Bill as drafted, without extending the scope of the Bill?

The Minister has accepted these amendments on the basis — and I think I am right in quoting him on this — that they are the simplest solution, but it is worth noting that the simplest solution is not always the right one. The simplest solution may disregard the complexities of the matter and there are undoubted complexities here. It is not black and white, it is not an easy thing to make such a provision, as any Deputy knows who has sat down to draft amendments. There are other circumstances to which one must have regard. I am not saying I have the final answer, but I believe that the safeguards required are better contained in my amendment. I am not going to push the amendment to the nth degree. I am asking the Minister between now and Report Stage to consider all the points I am making. I would be concerned that the net result of accepting these amendments would be that the travelling community would then be excluded from being regarded as an ethnic group in the future.

There is one other aspect which is not included in Deputy Barrett's amendments and which I feel is worth addressing. What constitutes the travelling community? The Minister quoted me on second Stage as saying that everybody knows who is being referred to when we speak of the travelling community. I certainly made that point, but it was made for a very different purpose from making a point in courts of law. The point I made on Second Stage acknowledged that we see the travelling community as a group. It would not be good enough to go into a court of law and simply say that everybody knows what we mean by the travelling community, therefore they are protected, that a given person looks as if he is a member of the travelling community. Obviously, it was not good enough for the Housing Act of 1988 because it gave a definition that these persons belonged to the class of persons who traditionally pursue or have pursued a nomadic way of life. It is important to build into any reference to the travelling community what exactly we mean.

There is also the question of those travellers who have settled. Should they or can they be included in the definition of travellers? In my amendment the reference to people "whose forebears traditionally pursued..." will enable those who are looked upon by the rest of the community as being different, as being travellers, also to claim that they have that heritage and are part of that group. In the accepted amendment, there is no definition, no clarity. It goes to a court of law with no guidance from this House, which is unfortunate. Nevertheless, I welcome that the Minister has taken on board a reference to the travellers. I would ask him if he would be willing between now and Report Stage to look further into tightening up that amendment.

Mr. T. Kitt

As one who has had a particular interest in this aspect of the Bill with reference to the travelling community, I very much welcome the Minister's acceptance of Deputy Barrett's amendment. It is good that the Bill gives special recognition to that community. I welcome the unanimity of the House today as expressed by various speakers, including the last speaker, Deputy Colley. I hope that following this Bill and the public debate on it we will also have unanimity on the same issue at local level. That is important in relation to the travelling community. Let me refer to the plan as adopted by Dublin County Council to try to accommodate 151 families who are at present on the roads, which plan is meeting much resistance, as many councillors including people like Deputy Shatter and others would bear out. I ask Deputy Colley and others to add their support at local level for this plan. I know that her colleague, Deputy Harney, to her credit has come out in support of this difficult plan, which puts added responsibility on the travelling community. However, I am convinced that this phased plan can work if it gets the support of all parties at local level. Deputy Colley has shown in her contribution that there is unanimity on the Bill in this House but I would like to see the same support and unanimity for Dublin County Council's plan, which is attempting to address a very real problem on the ground.

Mr. S. Barrett

I thank the Minister for his generosity in accepting this amendment. When I presented the amendment to the House I said it was the simplest and best way of dealing with what we are setting out to achieve. I was disappointed with the comments of the Progressive Democrats spokesperson, who obviously did not listen when I was speaking about the reality of what is happening to some members of the travelling community. Of course, it is quite understandable because most of the Progressive Democrats have never stood in a local authority to know what the real problem is, so they would not know what is happening in local authority housing estates. However, there has been a great deal of success in Dublin County Council in getting travelling people into local authority housing estates, and thankfully their children are attending local primary schools and are part of the community. There is a continuous attempt on the part of the local authorities to integrate these people into the settled community and to give them a decent standard of living. What I said, as Deputy Colley would know if she had bothered to listen, was that it would cause difficulty if we did not specify the travelling community but left it that they would be regarded as an ethnic group. It is traditional now for the Progressive Democrats to get at the Fine Gael Party, as we saw last night when Deputy Molloy attacked the Fine Gael spokesperson on Fisheries in regard to the rod licence and ignored the real defaulters, the Fianna Fáil Party and the Government. The party who were set up "to break the mould of Irish politics" and "to act responsibly" have shed that beautiful mantle they had at the last election and are behaving in the old traditions of an ordinary opposition party. However——

Miss Colley

May I ask you, Sir, if you are happy that the Deputy is speaking to the amendment we have in front of us?

Acting Chairman (Mr. Wyse)

I ask the Deputy to confine his contribution to the section under discussion.

Mr. S. Barrett

I will confine my remarks to the section. I thought we came into the House this morning to try to do something for the travelling community but now we find we are back to the old "stroke" politics. The Progressive Democrats want to abolish the law on the rod licence just the same as they want to pull a stroke on the backs of the unfortunate travelling community and they are misquoting what I said. I sincerely hope that Deputy Colley will read what I said when the Official Report is published. I ask her not to misquote me for political purposes in future.

I am delighted that the Minister has accepted this amendment. I am sure that those of us who are concerned about the plight of the travelling community see this as an attempt by the Oireachtas to express our concern and to show, by making a special provision for this large group of people who, traditionally, have suffered in our community, that we as a society will not tolerate incitement to hatred. We are satisfied that ethnic groups are covered under the Bill but as an indication of our concern for the travelling community and in the eventuality of difficulties arising in the future where, as Deputy Taylor outlined, the prosecution might have difficulty in proving a case, we are making an exception by specifying the travelling community. The travellers are an ethnic group and are covered under the Bill, but to avoid any possible difficulty we are making specific mention of that group.

This is a step forward in Irish society and if the same level of tolerance were accepted throughout our society, including Northern Ireland, this would be a better island to live on. Today is an historic occasion in that we are expressing our tolerance for human beings in our society.

Mr. Abbott

I thank the Deputy for proposing the amendment and the Minister for accepting it and for extending the scope of the Bill to the itinerant community in a more expressed way. I referred to this on Second Stage and had hoped that some progress would be made. I congratulate all concerned.

Mr. Taylor

First, I wish to express my appreciation that the Minister has accepted the amendment. However, I am far from happy about the point on sexual orientation and I am really concerned about it. If there is one thing that can be said for certain about the gay community it is that they are not an ethnic group — there is no doubt about that but nonetheless they are a very recognisable group.

When the matter was under discussion on Second Stage in the other House on 30 November 1988 Senator Norris referred to a piece of literature which had been circulated to him and no doubt to others as well. This was from the so called National Socialist Party and dealt with the gay community. I want to read some brief extracts from that:

In Ireland, AIDS is being spread amongst all normal people by the Gay AIDS spreaders ... Thanks to Queers, ... all of your are now at risk from the AIDS Black Death, right down to the pregnant women.... and a baby can be born with AIDS!!!

I wish to pose the question to the Minister and to every Member of the House: having brought in and passed a Bill which seeks to control incitement to hatred will we say that that kind of material is to be considered all right, and is not to be an offence under the Prohibition of Incitement to Racial, Religious or National Hatred Bill? Are we really prepared to leave Leinster House validating that type of material being circulated? It is quite clear that if we do not include the provision I seek in my amendment, that material will be perfectly in order and will not be subject to prosecution under the terms of the Bill and that in effect we are giving a licence to extreme Right wing Fascist groups to circulate that type of material. Is that really what we want to do? Are we saying that this is all right? Is it in order that a leaflet saying that "in Ireland, AIDS is being spread among all normal people by the Gay AIDS spreaders" and that, "Thanks to Queers, all of you are now at risk from the AIDS Black Death ...." That surely is stirring up hatred against a group of people in the State. We are going to deliberately exclude material of this nature from this legislation here today. If we are happy with that it is a sad reflection on this House and on all of us.

Miss Colley

I believe we are right to include the travellers within the terms of the Bill and I am glad the Minister has seen fit to do so. I am not going to sink to the depths Deputy Barrett did in introducing extraneous matter. I want simply to refer to the points I made earlier and ask the Minister to have regard to further thinking on these amendments between now and Report Stage. I think that is a reasonable request. Certain items have been brought up here today which are worth considering further, particularly the long-term effect of classifying the travelling community as an ethnic group and whether it will be possible if this amendment, as it is worded, is included. That must be looked at as must a definition of what constitutes the travelling community. I am withdrawing my amendment in order that concensus should prevail here but with the request that the Minister have regard to it again.

Amendment, by leave, withdrawn.

Section 1, as amended, agreed to.

SECTION 2.

Mr. Taylor

I move amendment No. 3:

In page 3, subsection (1) (a), line 6, after "publish" to insert ", print, or keep in their possession, control or custoday".

This speaks for itself. The section now provides that it shall be an offence for a person to publish or distribute written material. The amendment would extend that by providing that it would be an offence for a person to publish, print or keep in his or her possession, control or custody written material of the type sought to be prohibited under the terms of this Bill. I think that is necessary because the word "publish" does not go far enough. The printing of the material as distinct from publishing and retaining it in a person's control or possession should be an offence under the terms of the Bill.

Mr. Collins

Section 2 (1) (a) makes it an offence to publish or distribute written material that is threatening, abusive or insulting and is intended or, having regard to all the circumstances, is likely to stir up hatred. It does not deal with, nor was it intended that it should, mere possession or preparation, such as printing, of this material. Preparation or possession with a view to distribution etc. is dealt with in section 4. Accordingly, the substance of the amendment is already catered for in the Bill. In other words, if the Director of Public Prosecutions wishes to prosecute a person for printing or being in possession of racist material with a view to distribution, he can do so under section 4. I think the inclusion of the words of the amendment into section 2 would be duplication and, therefore, unnecessary and as such would be both bad drafting and confusing.

Section 2 is specifically intended as a provision aimed at preventing actions that are intended or are likely to stir up hatred. It would be used where the offending material or words are seen or heard by the public. On the other hand, section 4 is aimed at persons who are preparing or are in possession of such material with a view to distribution, etc. and gives the Garda an opportunity to take action before the material ever reaches the public.

As I said, the amendment is unnecessary. Its substance is already covered in the Bill and, I am sure the Deputy will understand, in the interests of good drafting I have to oppose it.

Amendment, by leave, withdrawn.

Acting Chairman

We move on to amendment No. 4. Amendments Nos. 6 and 11 are consequential and No. 12 is an alternative to No. 11. Therefore, we can take amendments Nos. 4, 6, 11 and 12 together. Is that agreed?

Mr. S. Barrett

Yes.

Mr. Collins

I move amendment No. 4:

In page 3, subsection (1), lines 7 to 9, to delete paragraph (b) and substitute the following:

"(b) to use words, behave or display written material—

(i) in any place other than inside a private residence, or

(ii) inside a private residence so that the words, behaviour or material are heard or seen by persons outside the residence,".

During the Second Stage debate several Deputies expressed concern about the definitions of "public meeting" and "public place" in section 2 of the Bill.

The first thing I would say is that those definitions were more comprehensive than some Deputies seem to think. For example, if someone or an organisation hired out a hall for the purposes of holding a meeting and put an advertisement in the newspapers inviting members of the public, it would be covered by this section if hatred was incited at the meeting. That would be the case even where the organisers of the meeting made it clear that they reserved the right of admission. In those circumstances, there would still have been an express or implied permission to attend the meeting.

However, if the meeting was held in, say, a town hall or an hotel room or other conference facility for the same purpose, and, for example, only members of a particular club were invited, that situation might not have been covered by the Bill. The reason is that such members of a club might not be considered to be members of the public. I think Deputies were right to be critical of what could have been a loophole of which unscrupulous persons could have taken advantage. Accordingly, I am putting forward these amendments as a solution to the reservations which have been expressed. In doing so, I have decided that it would have been unsatisfactory to attempt to redefine "public meeting" and "public place".

Instead, I propose to delete the existing definitions of "public meeting" and "public place" and replace them with a definition of "private residence". This will make it an offence to incite to hatred, in the circumstances covered by section 2 (1) (b) and where the other conditions of the section are met, anywhere outside a private residence or even in a private residence if the words, behaviour or material concerned are heard or seen by any person outside that particular private residence. The defence provided in section 2 (2) (b) (i) will then be available when the person concerned can prove that he was in a private residence and that he had no reason to believe that the words could be heard, or the conduct observed, by a person outside the residence. The defence could not be used when the offending words or conduct were used or occurred in any other place, for example, at a factory club, town hall or any private meeting held outside the used part of a private residence.

That is as far as I can go to meet the reservations expressed on Second Stage and I am sure and hope Deputies will accept it as a genuine and acceptable measure which will meet those reservations. All the time with this Bill, when considering amendments or other provisions, a point is invariably reached where the constitutional right of freedom of expression forms a barrier beyond which one cannot go. For that and other reasons private conversations within the four walls of a private residence could not be included in this amendment nor do I think Deputies would consider that they should be so covered. In any case, it is difficult to prove that such private conversations would be intended or likely to stir up hatred of the kind in question.

The definition of "private residence" will ensure that it is only genuine and lived in dwellings and other structures such as mobile homes which will be excluded from the terms of this section. Therefore, derelict buildings or the unused parts of houses are not considered to be private residences for the purposes of the section.

Mr. S. Barrett

What the Minister is attempting to do certainly is an improvement on what was there already and I have no difficulty in accepting it. I get the point the Minister is making about the normal things that happen inside a private residence where people have conversations and so on, but there is still the possibility of holding meetings in a private residence. Can the Minister build in something such as, "provided the residence is being used for its normal purposes" or something of that nature so that it would exclude the holding of meetings in private residences?

Mr. Taylor

I would like some clarification on that. I am worried about the fact that public meetings could be called inside a private residence. I agree with the Minister that private conversations among a family or a group of friends should not be prohibited. Can the Minister clarify that?

Mr. Collins

I will try. I am satisfied that I have gone as far as I can. One has to consider at all times the constitutional right of freedom of expression and one cannot infringe upon that right. In normal circumstances private residences would not be able to facilitate groups for meetings, but I take the point that the bigger type of residence would accommodate a sizeable group of people. It might not be a public meeting; people might come by invitation from the owner of the residence. There are difficulties there. We have had consultations with the Attorney General and with the draftsman and I am advised that we have gone as far as we can. We have come up with these amendments as a result of discussion on Second Stage.

Mr. Taylor

What the Minister is coming up with now actually makes matters worse and I would prefer the original wording of the Bill. If we were to accept the Minister's amendment we could have a public meeting in a private residence attended by 50 or 200 people. Most average private residences can accommodate 100 people at a public meeting. Meetings of this nature could as conveniently be called in a private residence as anywhere else. We are giving a licence where, if the meeting is held in a private residence, there is no problem. I am really concerned about that. We are going backwards instead of forwards.

At least the Bill as originally worded prohibited the use of certain words, behaviour and so on in a public place or at a public meeting. I have difficulties with the definition of a public meeting and I have put down certain amendments in that regard. At least the Bill in its unamended form prohibited this kind of carry on at a public meeting, but under this amendment there would be no problem if the meeting took place in a private residence. Some private residences could accommodate several hundred people but even small meetings are objectionable. I have no objection to meetings of private family groups or friends. I do not like it but it is fair enough. However, a meeting called for a specific purpose in a private residence is totally unacceptable. I cannot imagine why we should amend the Bill to allow that.

Mr. Collins

I can understand the point of view which Deputy Taylor puts across and it magnifies the difficulties in trying to tighten this provision. I am glad to hear the views of any Deputies which would be helpful and I am prepared to hold this over until Report Stage in an effort to facilitate the House and tighten the position.

Miss Colley

I have a lot of sympathy with what Deputy Taylor is saying. I can see the Minister's difficulties in further defining a public meeting. There would be a loophole in the proposed amendment. I suggest that some definition of a meeting which would include the wording Deputy Taylor has proposed in amendment No. 12 would cover any meeting or group of people meeting in a private residence if that meeting was called by the publication of advertisements in the press, by posters displayed in public places or by the issue of leaflets or otherwise. In order to call any public meeting notice of some kind must be given, whether the meeting is to be in a private residence or elsewhere. It could be that we could combine the two and achieve the result we want.

Mr. Collins

I am quite prepared to hold back these amendments and have another look at the question to see if we can achieve the objectives we are apparently agreed upon.

Mr. S. Barrett

The Minister might insert the phrase "provided no meetings are held in a private residence". The Bill specifies what is meant by a public meeting in a public place.

Mr. Collins

That is something we could look at.

Mr. Taylor

I have tried to define a public meeting in amendment No. 12. I am not saying it is the final wisdom, but perhaps it could be used as a base. I will be happy if the Minister defers his amendments to Report Stage. If I had to choose between the original form of the Bill and the amended form, I think I would go for the original form.

Amendment, by leave, withdrawn.

Acting Chairman

Amendment No. 5 in the name of Deputy Taylor. Amendment No. 20 is related and amendment No. 21 is consequential on amendment No. 20. Amendments Nos. 5, 20 and 21 may be taken together, by agreement. Agreed.

Mr. Taylor

I move amendment No. 5:

In page 3, subsection (1), line 14, to delete "and are intended".

This will go a very long way to ascertaining whether this Bill will be effective at the level of court prosecutions. The section in its present form provides that proof would be necessary that the written material, words, behaviour, visual images or sounds, as the case may be, are threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred. If it is necessary for the prosecution to prove that the person or persons concerned intended in their minds to stir up hatred by this material, we are giving a very substantial "out" to people who would be charged under this Act.

The question of intent, as any lawyer will agree, is virtually impossible to prove. What a person intends to do is in that person's mind. There have been attempts to prove it in court in various contexts in connection with the issue of cheques which bounced, and other matters, but it always falls down. It is extremely difficult. It should not be necessary for the prosecution to have to prove that the person intended to stir up hatred. If the material was in fact threatening, abusive and insulting or, having regard to all the circumstances, was likely to stir up hatred, that should be sufficient to set up the case. If the prosecution produced the material and showed that it was threatening, abusive and insulting or, having regard to all the circumstances, that it was likely to stir up hatred, the intent ought to be presumed. It may be that the person charged is in a position to satisfy the court that he did not intend it. Let him satisfy the court if that be the case. The whole legislation will founder badly if we put in that proviso.

That proviso is in the English legislation and many prosecutions there have failed because of failure to prove that element of intent. It ought to be sufficient for the prosecution to go into court, present the material and ask the court to hold that in the circumstance it would be likely to stir up hatred. People know what they are about; the material speaks for itself. To have to prove what was in a person's mind is too much to expect. It should be up to the accused to satisfy the court that he did not intend it if that is the position. This amendment is crucial and the experience of the English legislation certainly shows it.

Mr. Collins

When preparing this Bill I gave much thought as to what should be the basis for the taking of prosecutions for offences committed under sections 2, 3 and 4. I consulted many reference books, publications and legislation elsewhere and I also noted what the Deputy's own Private Members' Incitement to Hatred Bill, 1986 contained.

We could learn a salutary lesson from the experience of our neighbours in trying to come up with the right answer in their legislation in this area. When incitement to racial hatred was first criminalised in Britain in 1965, the legislation made it a requirement that an intention to incite racial hatred be proved. The Act had the effect of penalising crude forms of racial hatred where such an intention could easily be inferred because of the overtness of the language or conduct in question. Apparently, more subtle forms of propaganda then began to appear. Thus it became difficult to prove intent and the law was changed so that the subjective criterion of intent was repealed and in its place was put the objective criterion of likelihood. This gave rise to other problems. For example, where the recipients of racist material were already racist it was difficult to prove that the material was likely to influence them. Therefore, the British Public Order Act, 1986, reintroduced the subjective criterion of intent to stir up racial hatred while retaining as an alternative the objective criterion that hatred would be likely to be stirred up. I agree with that approach which is why I have included in the Bill the alternatives of intent and likelihood.

These criteria are not complementary, they are alternatives, and where the DPP is deciding whether or not to prosecute, his task will be made easier in many cases by having these alternatives; he can frame the charge in such a way that the accused can be convicted whether the evidence proves that he intended to stir up hatred or only that the words etc. were likely to do so. Accordingly, I feel it would greatly diminish the effectiveness of the Bill to remove the intent requirement and that is not, I am sure, what Deputy Taylor's intentions are. Therefore, I am opposing amendments Nos. 5 and 20.

Further, the effect of amendments Nos. 5 and 20 would be to widen sections 2 and 4 so that they would apply to conduct having nothing to do with racial, religious or national hatred or any other kind of hatred at all. Amendment No. 5 would make section 2 (1) read — I leave out some words —"It shall be an offence for a person to ... use words ... if the ... words ... are threatening or insulting ... or ... are likely to stir up hatred". Therefore, it would be an offence to use any threatening, abusive or insulting words at all. This would take sections 2 and 4 right outside the Long Title and the scope of the Bill.

I am also opposing amendment No. 21. In opposing amendments Nos. 5 and 20. amendment No. 21 must also be opposed as it could not stand on its own. It would not make sense to say that a person who intended to stir up hatred should have a defence if he proved that he did not suspect that the material or recording was threatening, abusive or insulting.

Incidentally, I find it difficult to understand why Deputy Taylor does not propose to remove the references to intent in section 3 also or why he does not propose to amend section 2 (2) (b) (ii) in the same way as amendment No. 21 proposes to amend section 4 (2). I hope the Deputy will see why I cannot accept his amendments and will consider my argument sufficiently good for him to have another look at it.

Mr. Taylor

I cannot say that I am happy with the Minister's response on this issue. I cannot see that the deletion of the necessity to prove intent on the publication of this material would make it more difficult for the prosecution. It seems quite clear that the reverse is the case. If we leave the section as it is, the prosecution would have to prove that the material was threatening, abusive and insulting and was intended or, having regard to all the circumstances, was likely to stir up hatred. It ought to be sufficient to ground a prosecution under this Act on the person publishing material which was threatening, abusive or insulting or, having regard to all the circumstances, was likely to stir up hatred.

As it stands there is an additional burden on the prosecution to prove intent. That has gone wrong in the adjoining jurisdiction with many cases foundering because of having to prove the element of intent. There was a case in the court of appeal, the Race Relations Board v. Associated Newspapers Group under the English Race Relations Act. That was a case where an advertisement was placed in a newspaper advertising nursing and medical staff appointments in a hospital in South Africa which contained the words “all white patients”. The Race Relations Board took the view that the advertisement was discriminatory in that those words indicated that only white nurses would be employed. They, therefore, sought a declaration that the newspaper had acted contrary to the Race Relations Act by publishing an advertisement that could be reasonably understood as indicating an intention to do an act of discrimination. The County Court Judge on appeal said that in determining whether an advertisement contravened section 6 (1) of the 1968 Race Relations Act the test to be applied was what was the natural and ordinary meaning of the words as they would be understood by reasonable persons. They held that the intent element there had not been proved and that this statement, “all white patients”, was in order under the Race Relations Act. That is the kind of difficulty we would leave ourselves open to here. This amendment is of crucial importance and I have to press it.

Amendment put and declared lost.

Amendment No. 6 not moved.

Acting Chairman

Amendments Nos. 7 and 16 are related and can be discussed together, by agreement. Is that agreed? Ageed.

Proinsias De Rossa

I move amendment No. 7:

In page 3, subsection (3), line 35, to delete "in the State".

Amendment No. 7 seeks to delete "in the State" from section 2 and amendment No. 16 seeks to delete "in the State" from section 3. I find it difficult to understand why actions which might lead to incitement to hatred, on the various grounds specified in the Bill, and broadcasts which might lead to hatred will only be prosecuted if they are confined to the possibility of inciting hatred within the State. At the same time section 4 prevents the possession or printing of material which would incite to hatred in the State or elsewhere. As I have said, I find it difficult to understand why the distinction is made.

We all know that neo-Nazi groups have been operating in this State and have produced material which has been sent abroad to Britain, for instance, where it has been used to incite hatred against various categories of people there. Section 4 effectively deals with that, but I do not see why we should not extend the restriction on incitement to hatred to actions specified under section 2 and broadcasts specified under section 3.

The neo-Nazis, as defined, are not the only people who incite to hatred in this State. The Provisional IRA and Sinn Féin actively incite hatred against the British in this State. They actively engage in a campaign of genocidal slaughter against Protestants in Northern Ireland and use the print and the broadcast media to justify their actions. It seems that we would be doing a service to the people of this island, North and South, and to the people of Britain if we were to extend the remit of sections 2 and 3 to incitement to hatred outside this State. This is a matter about which I feel fairly strongly and I would appeal to the Minister to take on board if not the deletion of "in the State" as I have proposed in the amendment at least the addition of "or elsewhere" as has been done under section 4.

Mr. Collins

The word "hatred" is defined in sections 2, 3 and 4 of the Bill. The definition in sections 2 and 3 includes the words "in the State" while the definition in section 4 does not.

There is a good practical reason for omitting the words "in the State" from section 4. That section creates an offence of preparing or possessing material likely to stir up hatred. As several Deputies pointed out during Second Stage debate, some highly inflammatory material has been prepared in this country, with a view to distribution not only here but also abroad. The hatred propagated in this material can be aimed at groups outside the State.

Section 4 will put a stop to that, and in legislating for hatred being stirred up in this fashion against groups outside the State, we have gone further than is required by the UN Covenant and, indeed, further than many other states. However, I have no trouble justifying the provisions of section 4; none of us wants this country to be used as a base for the preparation of inflammatory material, no matter what racial groups or religions are the subject of the incitement and no matter that other countries have not gone so far with their legislation.

Proinsias De Rossa

On a point of order, I think the Minister may have misunderstood the case I was making. I am not opposing section 4; I am proposing that incitement to hatred under sections 2 and 3 should be extended to cover places other than the State.

Mr. Collins

Basically what I am trying to do is to tell Deputy De Rossa why these words are included in section 4 before I come to the other two sections. He has heard my argument as to why they are included in section 4 and I know full well he is not objecting to that because we are all ad idem on that point. The considerations I have mentioned for the inclusion of the words in section 4 do not apply to sections 2 and 3.

These sections, especially section 2, have a public order context. Indeed, the Garda will have power under section 10 (1) to arrest without warrant anybody reasonably suspected of having committed an offence under section 2 (1) (b). To remove the words "in the State" would make the offence inordinately wide in scope and as such could cause confusion as well as lack of respect for the law. To say that it would be an offence to incite to hatred against an obsure tribe on the other side of the world would be bordering on the ridiculous, especially when one considers that it would be the same offence, subject to the same penalties, to incite to hatred against black persons or travellers in this jurisdiction. The two just are not comparable. However, an offence would be committed by a person who incited hatred against say a racial or religious group in another country if the effects of the person's conduct were felt by persons of such a racial or religious group in this country.

Mr. S. Barrett

Is there any reason why hatred is defined as being against a group of persons in the State? What happens if there is hatred against an individual?

Mr. Collins

Regrettably, anybody can incite hatred against you or I as individuals, but the Bill is concerned with groups and as such we are talking about groups.

Mr. Taylor

The Progressive Democrats and Fine Gael are inciting hatred against each other all the time.

Mr. Collins

Deputy Barrett and I have quite a good working relationship most of the time but you will note that it is at a distance.

Proinsias De Rossa

I do not accept the Minister's argument in relation to sections 2 and 3. He said that section 2 in particular relates to public order and gives the Garda the right to arrest without warrant on the basis that the offence would incite to hatred within the State. The examples I gave were not of tribes on the far side of the world. I do not accept the view that because people are on the far side of the world and are obscure, people in this State should be enabled to incite hatred against them.

The very specific and concrete examples I gave were of people in this State who incite to hatred against other people on this island, in Northern Ireland for instance and, specifically in their propaganda, against the people of Britain. As I have said, the Provisionals are quite blatant in their propaganda which is highly racist in relation to British people. Their slogan in Ireland is "Brits Out" which is extremely racist. Their definition of "Brits" is demonstrated by their so-called legitimate targets. We now have an opportunity to strengthen the law in relation to incitement to hatred which has resulted in the deaths of hundreds of people in Northern Ireland, and indeed in the deaths of people in Britain. I urge the Minister to rethink the points he has made on this section and on section 3.

This Bill outlaws the printing and possession of written material which could incite hatred outside of the State. The Minister has said that the definition of "hatred" does not include any reference to the State. That is true but section 4 (1) (a) states that it shall be an offence for a person to prepare or be in possession of any written material with a view to its being distributed, displayed, broadcast or otherwise published, in the State or elsewhere, whether by himself or another. Quite clearly, this indicates that we are concerned about the incitement to hatred by way of written material but, apparently, we are not prepared to make it an offence to incite hatred elsewhere by way of actions or broadcasting.

The point I am trying to make is that we face a serious problem in this State with very concrete examples of incitement to hatred in Northern Ireland and Britain. At present we have no legal way of dealing with this. We do have what I regard as a very clumsy section 31 which has had all sorts of side effects on broadcasting which are not in the interests of the freedom or liberty of the people of this State. If we were to strengthen the Bill in the way I propose the need for section 31 would be radically undermined.

Mr. Collins

Deputy De Rossa has raised the question why the definition of "hatred" should not be extended in a more confined manner, for example, to cover groups in Northern Ireland or in the United Kingdom. Generally, the same considerations apply. I cannot see how such an extension could have any significant effect, apart altogether from other considerations. The scope of the definition as it stands is that it would be an offence to incite hatred against any group represented in this State on account of their race, colour, nationality, religion, ethnic or national origins or membership of the travelling community. Most of the persons in Northern Ireland who come under those headings would be represented in this jurisdiction and would feel the effects of hatred being stirred up against the group to which they belong in Northern Ireland. Therefore, I consider the case for extending the scope of the definition in a confined rather than a general manner of little, if any, practical application.

Mr. Taylor

I support Deputy De Rossa. I do not see any need to restrict the offences in sections 2 and 3 to offences with the State. I do not follow the point the Minister made. Even though a group may be represented in the State this would not make it an offence as the section now stands. There may be other people who are part of the same broad group, and that would not make it an offence under the Bill as it now stands. For example, we have now decided that the travelling community will be a protected group under the Bill. Let us say for argument's sake that a leaflet is published or a meeting is held in this State on the travelling community in Britain at which it is stated what a terrible crowd of people the travelling community in Britain are, how they are doing this, that and the other and, at this meeting there is incitement to hatred against the travelling community in Britain, It seems the Bill as it stands does not cover this. Am I correct?

Mr. Collins

No, the Deputy is not right. I am quite satisfied that the Bill does cover that eventuality.

Mr. Taylor

How does it cover it? The Bill refers to a group of persons within the State, the travelling community in Britain are not a group of people within this State. The travelling community in Britain are the travelling community in Britain; they are not the travelling community of this State. Quite clearly, the section refers to incitement to hatred against a group of persons within the State. How could it be argued that the travelling community in Britain are a group of persons within the State? They are not. I could not see the courts convicting a person charged with publishing an article or holding a meeting on the travelling community in Britain if the section stands as it is. The Minister has referred to those groups being represented here but there is no such reference in the Bill, or perhaps I have missed it. If a subsection included a reference to an equivalent grouping here I would count it, but I see nothing to that effect in the Bill I support.

Proinsias De Rossa

I see no reason for not doing so at present, subject to what the Minister may say in reply.

Mr. Collins

Perhaps we can take another look at it on Report Stage in an effort to meet the arguments being made.

Mr. S. Barrett

The arguments being made by Deputy De Rossa may have the opposite effect. For instance, if some group here were strenuously opposing and inciting hatred against the regime in South Africa or the regime in some other part of the world who were doing terrible things to the people they were supposed to be governing, they could be brought before the courts here. If we were to take the words "in the State" out, would that not be the case? Does the Deputy see what I am getting at? It would have the opposite effect to what he is trying to achieve.

Proinsias De Rossa

I do not think so. The question the Deputy has raised is whether one can oppose politically a regime or a group. We are not and I am sure no one else in the House is trying to restrict the right of people to make political comment on any individual or group. What we are talking about here is incitement to hatred. It is one thing for Deputies to argue that the British Army should not be in Northern Ireland but it is another entirely to say that the British Army have no right to be there, that we have a right to kill then and, therefore, we are going to kill them. It is not the same thing at all.

Mr. S. Barrett

What is the definition of "hatred"?

Proinsias De Rossa

I am not going to get involved in a debate on Northern Ireland but what I am trying to say is that there is a distinct difference between political opposition to a particular regime or situation and incitement to hatred against particular categories of people. In 1976 this House took the step of banning interviews on television and radio with people who promote certain kinds of action and activity in Northern Ireland. It would be far better if we were, in law, to outlaw incitement to hatred against groups outside this State in this Bill. This would enable the television service to be freed from this restriction and those interviewed would then be liable to prosecution if they promoted incitement to hatred. There would be a far better and more civil libertarian way of approaching that problem.

I do not want to confine the argument solely to the question of the Provisional IRA in Northern Ireland. Under section 4 the Bill proposes to make it an offence to have in your possession, to print or broadcast material which would be an incitement to hatred in the State or elsewhere. Under section 2, if a person was engaged in activity or broadcasting in the State and could show that their incitement to hatred was directed to Northern Ireland, Britain or South Africa, they would be acquitted. I have an example of material from the neo-facist group which operated — and may still be operating— in Cork city. It is called Ar Agaidh dated March 1987. In relation to drug addicts and homosexuals it states that the need is not clean needles but either a new life purged of past weaknesses and vulgarity or immediate recycling in a convenient waste receptacle. That is incitement to hatred against two categories of people. If that material is found in my possession and I can argue that it is intended to refer to homosexuals and drug addicts in Britain, presumably I would be found not guilty.

Mr. McCartan

This is a very important issue and I welcome the Minister's agreement to look at the matter again on Report Stage. This is criminal legislation in essence and it must be swiftly interpreted by any court which seeks to operate it. That, in practice, means that the courts will tend to be restrictive in their interpretation rather than expansive. I cannot see in this context the words "in the State" giving rise to an interpretation which says that the literature, statement or other document or communication is only evidence where it refers to people or groups in the State. Consequently, the points made by Deputy De Rossa and Deputy Taylor are correct — if the documentation is selective in targeting people outside the State it will not be an offence here.

It is important to remember that when the Minister announced this legislation he specifically drew attention to the reprehensible fact that we are being used as a base by groups abroad exploiting our lack of legislation to print material for use by them elsewhere. We are not addressing this problem because of these words.

The other problem is that this legislation seeks to bring in an element of an international agreement, a declaration of the United Nations, and we should not be restrictive in bringing our law into line with international principles. It would draw a certain amount of comment on what we are trying to do here if, in seeking to enter into the spirit of active participation in an international agreement, we did not act against people found within our jurisdiction seeking to drum up hatred for certain groups. The Minister almost made our case when he suggested that the words really would not have an effect one way or the other and that our amendment is superfluous. That being so and wishing to err on the side of safety, I suggest we take out the words.

Mr. Collins

As I said to Deputy De Rossa, I would be glad to have a further discussion on Report Stage when I will go into all the points put forward.

Proinsias De Rossa

I thank the Minister for that undertaking. I also wish to correct my last statement. If I was found with this material in my possession I would not be liable to be charged because incitement to hatred against gays and drug addicts is not an offence under the Bill.

Amendment, by leave, withdrawn.

Mr. S. Barrett

I move amendment No. 8:

In page 3, subsection (3), lines 36 and 37, to delete "or ethnic or national origins" and substitute ", ethnic or national origins or membership of the travelling community"

Amendment agreed to.

Acting Chairman (Mr. M. Barrett)

As amendment No. 8 is agreed, amendments Nos. 9 and 10 cannot be moved.

Proinsias De Rossa

I disagree. While elements of amendment No. 9 are similar to amendment No. 8, amendment No. 9 contains a reference to sexual orientation.

Acting Chairman

I am advised that the Deputy can bring amendment No.9 for discussion on Report Stage.

Proinsias De Rossa

I do not propose to get into legal argument, but I will introduce it on Report Stage.

Mr. Taylor

I propose to get into legal argument so far as amendment No. 10 is concerned. There is a clear distinction between amendments Nos.9 and 10. I take the point that when amendment No. 8 was adopted it settled the position of that subsection. Amendment No. 9 would have deleted "or ethnic or national origins" and substituted "sexual orientation, ethnic or national origins, or as members of the travelling community", but amendment No. 10 is different because it proposes to add to the end of sub-section (3) "or their status as members of the travelling community or sexual orientation ..." That is in addition to the amended section and is in no way contradictory of amendment No. 8 which has been accepted. I ask the Chair to again consult the officials in regard to this matter. I am quite satisfied that amendment No. 10 is perfectly in order because it is by way of addendum to the subsection, not by way of amendment. With the addendum the section would read perfectly logically and would be in order.

Acting Chairman

If amendment No. 8 is agreed amendments Nos. 9 and 10 cannot be moved.

Mr. Taylor

With respect, I cannot see that. It is not correct because my amendment is an addendum and would add the words sought to the end of the subsection. They do not contradict the section but add a new element to it. How could that possibly be out of order?

Acting Chairman

Will you agree to raise it on Report Stage?

Mr. Taylor

No, I wish to move my amendment because it is perfectly in order. I concede that amendment No. 9 is different because it seeks to amend the original wording of the subsection. However, my amendment seeks to add something to the end of the section, which is a different matter altogether.

Acting Chairman

We will hear the Minister's views.

Mr. Collins

It is a matter for decision by the Chair. My view is that the original decision of the Chair is correct.

Acting Chairman

The advice I received was that if amendment No.8 was agreed amendments Nos. 9 and 10 could not be moved.

Mr. Taylor

The Chair must be in some doubt about this matter when he sought the advice of the Minister. With respect, I should like to ask him to consult again on this. I am satisfied that the Chair's ruling is not correct. For the information of the Chair I should like to indicate how the section would stand if my addendum to the subsection was accepted. It would read:

"Hatred" means hatred against a group of persons in the State on account of their race, colour, nationality, religion, ethnic or national origins or their status as members of the travelling community or sexual orientation and shall include conduct likely to hold up any such group to ridicule or contempt.

I am not saying that the House will accept that but it ties in perfectly with the amended section. I have no doubt that it is perfectly in order.

Acting Chairman

The advice I have received is that the amendment cannot be moved. It is a matter for the Deputy as to whether he accepts that but my ruling is that it cannot be moved.

Mr. Taylor

I certainly do not accept that it cannot be moved.

Acting Chairman

My ruling is that it cannot be moved. The Deputy made reference to the fact that I consulted with the Minister but I should like to point out to him that I asked the Minister for advice in relation to another matter. I received advice on this issue from the officials.

Mr. Taylor

It is the Chair who must make a decision on this.

Acting Chairman

I do not propose to enter into an argument on this issue. I have pointed out to the Deputy that if he wishes he may raise this matter on Report Stage.

Mr. Taylor

Will the Chair explain to me the reason for his ruling?

Acting Chairman

That would mean that I would be entering into an argument with the Deputy. There is no question of me explaining my ruling. I have told the Deputy that the advice I received from the officials was to the effect that amendment No. 10 cannot be moved and I ruled accordingly.

Mr. Taylor

What was the reason behind that advice? I am entitled to know that. I tabled an amendment which was perfectly in order and I want to know why the Chair is ruling it out of order. We are not living under a dictatorship.

Acting Chairman

The Deputy is getting involved in an argument and he may not argue with the Chair.

Mr. Taylor

I am not arguing with the Chair but I am asking the Chair to give his reason for ruling the amendment out of order.

Acting Chairman

The advice given to me is that, as amendment No. 8 has been agreed, amendments Nos. 9 and 10 cannot be moved because amendment No. 8 decides the fate of the other two amendments. I would prefer if the Deputy did not continue to argue with the Chair. He should accept my ruling.

Mr. Taylor

The Chair has not given any reason for his decision.

Acting Chairman

I have given the reason.

Mr. Taylor

The Chair has said that he acted on the advice given to him by the officials but, with respect, the decision must be his own and not based on advice given to him by officials. Surely, as a Member I am entitled to know the reason for a decision by the Chair. Why is it out of order? Why is it that I cannot put this issue to a vote?

Mr. S. Barrett

I was thrown out of the House for three days for trying to get information.

Mr. Taylor

I may be thrown out soon if I do not get some satisfaction in regard to this matter. This is a crucial issue. I am attempting to introduce a protection for a group in the sexual orientation category and I want that voted on by the House. I am entitled to call a vote. The Chair has stated that he is ruling my amendment out of order based on the advice given to him by officials. In my view there is nothing contradictory about my amendment; it is perfectly logical. I am happy with the amendment tabled by Deputy Barrett as far as it goes but I am anxious to add my amendment to it. That must be in order.

Acting Chairman

I have told the Deputy that he can raise this issue on Report Stage. He cannot move his amendment now.

Mr. Taylor

I take grave exception to the Chair's ruling. In my view it is wrong.

Acting Chairman

It is based on the advice I have received.

Mr. Taylor

With respect, it was wrong advice.

Amendments Nos. 9, 10 and 11, inclusive, not moved.

Mr. Taylor

I move amendment No. 12:

In page 3, subsection (3), line 40, after "permission" to insert "or to which members of the public have been invited by the publication of advertisements in the Press, by posters displayed in public places or by the issue of leaflets or otherwise".

The Minister has said that he will reconsider this issue for Report Stage and I should like to ask him to include this amendment in his considerations.

Mr. Collins

I will look at No. 12 with the group, amendments Nos. 4, 6 and 11. It would be better if Deputy Taylor allowed us look at No. 12 in conjunction with those amendments.

Mr. Taylor

I will table my amendment on Report Stage.

Amendment, by leave, withdrawn.

Section 2, as amended, agreed to.

NEW SECTION.

Mr. Taylor

I move amendment No. 13:

In page 3, before section 3, to insert the following new section:

"3.—For all the purposes of this Act, travellers shall form an ethnic group within the State.".

Is this amendment in order?

Acting Chairman

It is in order.

Proinsias De Rossa

Why is it that amendment No. 9 was not in order?

Mr. Taylor

That is a good question. How can amendment No. 13 be in order if amendments Nos. 9 and 10 were not in order? There is no logic to these rulings.

Mr. Collins

There is nothing like being consistent.

Mr. Taylor

Absolutely. This is inconsistency.

Acting Chairman

I am advised that amendment No. 13 proposes to insert a new section. If the Deputy wishes he can press it.

Mr. Taylor

I do not understand what we are about in these procedures. If the proposition is being made that the issue of the travelling community was dealt with by the House adopting Deputy Barrett's amendment and that amendments Nos. 9 and 10 were ruled out on that account it escapes me how amendment No. 13 can be in order. We are told that that issue was determined on amendment No. 8. This highlights the nonsense of the ruling that has been given.

Amendment, by leave, withdrawn.

SECTION 3.

Mr. Collins

I move amendment No. 14:

In page 3, subsection (1), line 44, before "images", to insert "visual".

This amendment is simply to correct the omission of the word "visual" before "images" in the original draft of the Bill.

Amendment agreed to.

Mr. Collins

I move amendment No. 15:

In page 5, subsection (8) (d), line 38, to delete "based." and substitute "based; and a document purporting to be a copy of the script and to be signed by the member shall be deemed, for the purposes of this section, to be such a copy and to be so signed unless the contrary is shown.".

In proceedings for an offence under section 3 alleged to have been committed in respect of an item, a script on which the item was based will be evidence of what was included in the item. This is provided by subsection (7). Subsection (8) paragraph (d) provides that, where a copy has been made of the script by or on behalf of a member of the Garda Síochána, it too shall be evidence of what was in the item. The effect of the extra words the amendment proposes to add to subsection (8) is to avoid the necessity of calling the member of the Garda Síochána, or another witness, to prove that the document produced to the court is a correct copy of the script. If the document appears on its face to be a copy of the script and to be signed by the officer, it will be taken that this is the case, unless evidence is produced to show that it is not so. Provisions corresponding to the additional words proposed in the amendment have been included in other legislation in order to avoid the waste of time and expense caused by calling witnesses to prove formally matters unlikely to be in dispute.

Amendment agreed to.

Amendment No. 16 not moved.

Mr. S. Barrett

I move amendment No. 17:

In page 6, subsection (9), lines 3 and 4, to delete "or ethnic or national origins" and substitute ", ethnic or national origins or membership of the travelling community".

Amendment agreed to.

Amendments Nos. 18 and 19, inclusive, not moved.

Question proposed: "That section 3, as amended, stand part of the Bill."

Mr. S. Barrett

Subsection (8) (a) states that a member of the Garda Síochána not below the rank of superintendent must have reasonable ground for suspecting and I should like to know if it is necessary to have a garda of the rank of superintendent involved. Is there a reason for including a superintendent?

Progress reported; Committee to sit again.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.