The Bill is being recommitted in respect of certain amendments on which we can now have a full Committee Stage discussion. Amendments Nos. 1, 4, 6 and 7 will be discussed together, with the agreement of the House. Is that agreed? Agreed.
Prohibition of Incitement to Racial, Religious or National Hatred Bill, 1988: Report Stage.
Bill recommitted in respect of amendment No. a1.
I move amendment No. a1:
In page 2, to delete lines 7 and 8 and substitute the following:
"An Act to prohibit incitement to hatred on account of race, religion, nationality or sexual orientation.".
There has been a change in the Long Title. The Long Title is being changed to agree with the short title to accommodate the amendment to the definition of hatred, which will make it an offence to incite to hatred on account of sexual orientation.
The effect of the official amendments is twofold. The first is that the offences under sections 2 and 3, which relate respectively to actions and broadcasts likely to stir up hatred against groups of persons in the State on account of their race, etc. will apply to stirring up hatred against groups of persons whether in the State or elsewhere. The offence under section 4 of preparation or possession of material likely to stir up hatred already applies to hatred against groups of persons in the State or elsewhere.
The second is that it will be an offence to incite to hatred against groups of persons on account of their sexual orientation. I would first like to discuss the first part of the amendment. When the Bill was introduced, the Government considered that the offences under sections 2 and 3 should apply only as regards hatred against groups in the State. The United Nations Convenant on Civil and Political Rights only requires countries to prevent abuses of the kinds in question from occurring in their own territories, and it did not seem to the Government that there was any practical problem in this country sufficient to require the widening of sections 2 and 3 so as to cover doing things in the State likely to stir up hatred against groups outside the State. However, during the Committee Stage debate Deputies put forward amendments to delete the words "in the State" from the definition of hatred in sections 2 and 3. My predecessor, as Minister for Justice, recognised that there was force to their arguments and undertook to examine the question further before Report Stage. After much consideration I have decided to accept the arguments for applying sections 2 and 3 to hatred against groups outside the State and hence these amendments.
As to why I have come to these conclusions I would like to say first that the arguments for and against are finely balanced. However, I accept that there might be a slight illogicality in making it an offence under section 4 to prepare material in order to incite to hatred against groups outside the State and not making it an offence under section 3 to incite hatred against such groups. It would be possible for offensive broadcasts under section 3 to be heard in Northern Ireland and in many areas of Britain just as offensive material or recordings prepared here for distribution abroad could be seen or heard in the UK or further afield.
The previous Minister explained during Committee Stage that if hatred was stirred up against any of the groups mentioned in the definition of hatred outside the State, an offence could be committed if the particular group was represented within the State and members of the group were affected by incitement. In practice, incitement on, say, grounds of nationality or religion against groups in Northern Ireland or Great Britain would usually be felt by their co-religionists or fellow nationals in this jurisdiction. However, if an unscrupulous person was to incite hatred in a very specific manner against groups resident outside the State, it would be possible that the circumstances might not be comprehended by the Bill as it stands. Accordingly, for that reason also, I consider it worthwhile extending the scope of the Bill as proposed in these amendments.
If what I now propose is acceptable to the House, the result is that the same definition of hatrd, that is to say, hatred against groups in the State or elsewhere, should apply to all three sections — 2, 3 and 4. Therefore, amendment No. 1 proposes to insert a new definition in section 1, the general interpretation section, and amendments Nos. 4, 6 and 7 delete the existing definitions in sections 2, 3 and 4. It may be puzzling at first sight that amendment No. 6 consists of the definitions of script. The explanation is that section 3(9) at present contains the definitions of hatred and script and amendment No. 6 simply reproduces the definition of script alone. That definition is unchanged.
I come now to the second element in the amendment. This will make it an offence to incite hatred against groups of persons on account of their sexual orientation. In deciding to propose this amendment I have to say I have been impressed with the arguments put forward in both Houses by those Deputies and Senators who claim that homosexual persons need the protection afforded by the Bill. I am prepared to accept the view that it is of little or no benefit to these people merely to say that I sympathise with them when they are verbally attacked if I am not prepared to do something about it when the opportunity arises. The opportunity now arises and I am happy to give homosexuals the protection of this legislation.
Well done.
I have also been very conscious, when arriving at this decision, that verbal attacks will often lead to physical attacks as there is always a danger that if something is repeated often enough, no matter how untrue or outlandish it might be, it will eventually be believed by some people. There would be, in the absence of this amendment, an opportunity for bigoted and unscrupulous persons to latch on to the prevalence of AIDS for example to incite hatred against homosexuals in a totally unfair manner. In fact I believe there are examples of this already happening and I am glad to be able to do something that should put a stop to it. I commend amendment No.1, with its two important new features, to the House.
I am delighted to hear what the Minister just said. It is clear that he has had a change of heart since this Bill was discussed in the Seanad and on Committee Stage in this House. I wholeheartedly welcome what the Minister has done.
You cannot win. I was not even here at the time.
I am referring to his predecessor in the Department of Justice. The record of the House speaks for itself as regards what was said in the Seanad and also when this legislation was discussed on Committee Stage. I am delighted there has been a change of heart on the part of the Government. During the previous lengthy Committee Stage debate, time again the Minister said he was unprepared to accept the amendment he is now bringing forward. It is fairly clear that when this legislation was passed in the Seanad, it was toothless and did not even conform to the United Nations Conventions it was meant to allow us to ratify.
Initially the Minister for Justice said that the main purpose of bringing forward the legislation was to allow this country to ratify a UN Convention on political and civil declarations. We subsequently found that the Bill, as initiated, was not sufficiently strong to allow us sign and ratify the Convention on the Elimination of All Forms of Racial Discrimination which was signed by this country more than 20 years ago. I am delighted the Minister has seen fit, in this Report Stage amendment, to include both the travelling community, a move which was prompted by Fine Gael on Committee Stage, and the gay community. It is only now that the Minister can say we are dealing with legislation that will have some practical relevance. It was not sufficient for us to discuss legislation that would only allow us to ratify what was little more than an empty formula. Now we see this legislation providing for our own people. We are not a multi-racial society, but we have our minority groups and I am glad the Minister has now recognised that.
The Fine Gael Party welcome amendments Nos. 1, 4, 6 and 7 as outlined by the Minister. We believe we can make the legislation even more far reaching by passing a later amendment in the name of my colleague, Deputy Monica Barnes. If this legislation is to be relevant to Irish society, the amendments outlined by the Minister must be accepted. There are a few questions the Minister might address. In amendment No. 1, hatred means hatred against a group of persons in the State or elsewhere. Surely there is an element of superfluity there in so far as in "the State or elsewhere" covers the universe. If the definition of hatred was hatred against a group of persons because of their race or colour, surely it would have the effect of what the Minister is trying to provide for in this amendment. That is only a technical point but from a drafting point of view, the distinction between the State and elsewhere should be omitted.
The Fine Gael Party will be accepting amendments Nos. 4, 6 and 7. We appreciate the difficulty the Minister has had in defining "script". We would be prepared to accept that the amendment he has now come up with is more realistic than the earlier one. Amendment No. 4 defines a private residence. I take it that what the Minister is seeking to do is to cover everyone entering a premises, with the exception of a trespasser, that is, all occupiers, invitees and licencees are covered with the exception perhaps of somebody who is there without the consent of the owner of the dwelling house. I hope at a later stage to have the opportunity to comment on the amendments tabled by my colleagues. However, I was pleasantly surprised that in the last few hours the Minister has seen the light in so far as these amendments are concerned and I heartily commend him for agreeing to introduce something which Opposition Deputies and Senators have been calling for since this legislation was introduced in the Upper House. It is better late than never and I thank the Minister.
The Ceann Comhairle asked me to confirm that agreement had been reached. Apparently, he thought that amidst the confusion this might not have been fully understood. However, it seems that Deputy Flanagan heard what was said. We are taking for discussion purposes amendments Nos. a1, 1, amendments Nos. 1, 2 and 3 to amendment No. 1, amendments Nos. a1a, 4, 6, 7, 8a and 9. That is why the Ceann Comhairle anticipated that it would be better to have this clarified.
On a point of order——
Everybody is now aware what the intention was.
On a point of order, it would not have been possible for me to address myself to the amendments tabled by my colleagues, amendment No. 2 to amendment No. 1 and amendment No. a1a, as they had not been moved. There is that procedural difficulty.
The Minister moved them.
The Deputy can address himself to any of the amendments I have listed. At this stage only one amendment has been formally moved. A Deputy may address himself or herself to any amendment included on that list. If necessary, there can be a separate question on it subsequently. I also advise the Deputy that we are now on recommittal stage which is analogous to the ordinary Committee Stage. The Deputy may rise and resume his seat as often as he would like and as often as the Chair thinks appropriate. Is the Deputy happy with that?
I appreciate that and will avail of that facility.
We are on Report Stage.
No. We are on recommittal stage.
I did say that.
Recommittal stage is similar to the straight forward Committal Stage.
The lateness of the Minister's move caught us all. It is welcome nonetheless.
I cannot say that I am clear on this matter. Is the amendment tabled by Deputy Kavanagh and me, amendment No. 2 which is contained on the white sheet up for discussion at present? Can you clarify that for me, a Leas-Cheann Comhairle?
No, it is not.
It is just as well that I know that.
Amendments Nos. a1, 1, amendments Nos. 1, 2 and 3 to amendment No. 1, amendments Nos. a1a, 4, 6, 7, 8a and 9 are up for discussion now.
That includes the one——
Yes. The Deputy realises that, while they are all up for general discussion, later on, if he so desires, he may formally move that amendment and there can be a question, if a question can be put, but following the moving by the Minister of his amendment we will have a debate on it. There can be separate questions, if required, but not separate discussions, on any amendment among that group listed. That makes it just a little bit clearer.
Without any begrudgery whatever, I wish to compliment the Minister and express our appreciation to him for bringing forward these amendments and accepting the comments made by a number of Deputies on earlier Stages of this Bill. If I may say so, it is refreshing to see that a Minister is prepared on occasion, albeit all too rarely, to listen to the other side of the House to ensure that we end up with a Bill made up of the collective wisdom of the House. I only wish that other Ministers on other occasions would be as open-minded as this Minister has showed himself to be on this occasion. I am aware that the Gay community will be very relieved to see this additional provision included in the Bill.
Since this Bill commenced its run in the Seanad some time ago it has been very substantially improved. The protection for members of the travelling community has already been added to it and now it is proposed to add this protection for the Gay community. This will make it a much better and stronger measure. However, the Bill could be further strengthened and improved if the Minister was willing to consider amendment No. 2 to amendment No. 1 tabled by Deputy Kavanagh and me which reads as follows:
In the fifth line, after "orientation" to insert "and shall include conduct likely to hold up any such person or group to ridicule or contempt".
The difficulty about the definition is that it relates only to material which could be used to stir up hatred. That of course is very important and is one of the key elements in the Bill. I concede that point. However, there is a lot of material which may be the source of grievous and serious offence. Although it may not warrant the use of the definition, nonetheless it could be used with the objective of holding up to ridicule or contempt a group of people on account of their religion, sexual orientation, race or whatever. That is a very real possibility. There is a great deal of material which is and could well be produced and circulated and which would be regarded as very reprehensible and unacceptable. I would be interested in what the Minister has to say in reply to that amendment in due course. It is quite reasonable that material which could be used in holding up a group to ridicule or contempt should come within the ambit of this Bill. Accordingly, Deputy Kavanagh and I wish to propose that amendment.
Because of the approach which the Minister and this House have adopted, this Bill will be passed into law and available for signing by the President later this evening or tomorrow.
It has to go to the Seanad.
I understood, but I am open to correction that it had——
We will have to come back again for Report Stage.
I would hope that we would do it this evening and continue right through and finish it.
It has to go back to the Seanad.
That is correct. There has been a major change now and I think that change should bring it through this evening.
We have no objection to that course.
Thanks for the correction. I doubly welcome the fact that the matter has to be debated in the Seanad for a reason I will mention later.
It is very important that every effort be made to have this Bill as a symbolic gesture on the Statute Book and that we announce to the world, coming up to the anniversary of Human Rights Day which is 10 December, that we are in a position to sign and acknowledge the UN Convention on racial and other discriminations. A point was made on Second Stage that it was a source of wonder as to how this small piece of legislation could achieve such a great thing on our behalf, given that that Convention deals with a far greater number of discriminations not addressed at all in this Bill. We are told that this is a device to get that Convention signed. I will not say anything against that procedure.
The issues being addressed in this group of amendments raise a number of issues that we should discuss. The first relates to the efforts to take out of section 3 the question of restriction to Acts within the State. The Minister had suggested that this was a small tidying up exercise and from what Deputy Flanagan said, I understand that he also was inclined to that view, but there is a lot more to it than that. There was a remarkable oversight by the previous Minister and the Government in not realising the significance of this amendment. It must be uppermost in everybody's minds that the central plank of the Provisional IRA campaign is one of hatred on grounds of religious and cultural origins towards a group in Northern Ireland, which is outside of the State for all practical purposes. They have clearly engaged in a campaign of genocide against members of the Unionist and Protestant community, particularly those living along the Border areas of South Armagh. To suggest that our amendment of this legislation to directly deal with actions, statements or broadcasts by members of Sinn Féin or of the Provisional IRA in advocating the aims and objections of their military organisation, is merely a tidying up exercise, is a remarkable statement indeed. The implications of the Minister's oversight screamed from the heavens to us when we read the Bill as circulated. I greatly appreciate that the Minister has corrected that oversight. In that context it would be very remiss of us to suggest that this was merely a tidying up exercise when the amendment has remarkable significance and far reaching effects in relation to the effectiveness of this law.
We have to have regard to the fact here that Ireland was rapidly becoming recognised in Europe as the place where one could safely get fascist and neo-fascist documents printed and prepared for circulation abroad. The neo-fascists in Britain and the continent were sending their materials into Dublin, Cork and other locations to be prepared and printed, because we had not had any of this type of legislation. Should a printer, compiler, or a messenger be found in possession of these seditious documents and documents of hatred, without the removal or the restriction confining our law under these sections to within the State, he could not have been dealt with effectively and we would have been in a difficult situation in dealing with publications, documents or potential broadcasts located here but directed at persons outside of the State. I welcome the acceptance of this amendment.
I welcome, too, the fact that the Minister has taken on board The Workers' Party amendment to his amendment, No. 1, to insert the considerations with regard to sexual orientation. In this context it is gratifying that the Bill will return to the Seanad very briefly because the Senator there who most highlighted this problem was Senator David Norris who did so in the context of having received documentation issued to him personally attacking him and other members of the gay community. These documents had come from a provincial location. The Senator raised the matter with the Minister during the debates in the Seanad and the Minister felt that the documents were capable of being dealt with under existing criminal law. Senator Norris took the Minister's advice, withdrew his amendments and submitted his documents to the office of the Director of Public Prosecutions whose response, before the conclusion of the debates on this Bill, was that the documentation, though undesirable and certainly redolent of hatred against a community, did not constitute facts upon which the Director could find an offence under the existing law. Consequently this was a cause of major concern. The Senator had withdrawn amendments on the advice of the Minister. It is gratifying that we have now put this problem right and that the Bill will be available for comment by Senator Norris in the Upper House.
In the context of sexual orientation I will briefly refer to a related debate which we will shortly have in the House in relation to the legislation dealing with video nasties. The Minister of State who handled the matter in the House last week——
I hope Deputy McCartan realises that he is out of order by advising the Chair that he will refer to some other legislation, so I hope it will be a passing reference.
It will be and it is related to what we are debating here. In the context of that Bill an explanation was constantly given by the Minister that any issue of worry with regard to sexual orientation in the context of broadcasts in the form of videos or otherwise would be dealt with adequately under this Bill. I am pleased that in the context of the prohibition on incitement to racial hatred and other hatreds the Minister has addressed the problem. However, in the aspect of broadcasting that videos represent, the Bill will not adequately deal with what we will be dealing with later.
An amendment will be brought in, in the other Bill.
If the Minister can assure me of that I will pass on.
It has already been circulated.
I have been tied to the House for a bit too long today, but we had been promised a memorandum which I have not seen. If the Minister tells me it is on the way I am happy and will move on.
It is there, it is circulated.
In dealing with the amendments I welcome and will support the proposal of the Minister to extend the long title of the Bill to include sexual orientation. I am sad that we did not go a step further with regard to ethnicity as is suggested in amendment No. 9 in the name of Deputies Taylor and Kavanagh. The travelling community, in their representations to us and to the Department, made a good case for the concept of ethnicity.
That is in.
I am talking about the Title of the Bill, particularly having regard to the amendment. We are talking to this amendment at the moment, reverting back to the ruling of the Chair.
They are all up for discussion.
Perhaps the Minister might facilitate discussion, because he did not refer to it in his address. As I understand it, if I may put the shake of the head on the record, the Minister will not be accepting amendment No. 9, and that is unfortunate. As I was saying, the travelling community make the point that the concept of ethnicity is above and apart from nationality or race. I do not accept that the inclusion of the references to the travelling community per se in the narrow way that they are referred to in amendment No. 1 in the name of the Minister adequately deals with this concept.
The travelling community make the case, and I make it here on their behalf, that they are not a group aspiring to or claiming nationality on the one hand or the specifics of race on the other; but that they have, as a community, aspects of ethnicity and of ethnical origin that require respect and recognition, and we should have had regard to their peculiar origins and status as an ethnic group and have recognised that concept by including it in the title of the Bill or in the definitions further on in the Bill. We have not done that and I am sad that we have not. It is a pity. Nevertheless, in the balance of things, the Minister has conceded a lot. I do not want to seem to be trading the cause and case of the travelling community, and I merely put on record my regrets in this regard.
The definition of hatred as now amended by the Minister is welcome and we will be supporting that definition. In particular the inclusion of the travelling community and those persons with particular sexual orientation is to be welcomed. In respect of the travelling community, none of us can be complacent about their position and status within our society, Christian though we claim to be. They are very much victims and potential victims on a daily basis of comments, of attacks, both physical and verbal, and of social attitudes amounting to hatred, and this is something that we must be constantly aware of. To the extent that this Bill will afford them a means of directly addressing those instances of potential incitement to hatred or hatred itself, it is to be welcomed. There must be major reservations that the Bill will, in fact, provide them with any such means of direct confrontation. It is absolutely clear that to this day our law has never provided any effective means of addressing directly, in a court of law or elsewhere, the constant and unremitting attacks, the uncharitable attitude and hatred towards travellers in our community. The Minister will be only too aware, from his previous experience as Chairman of Dublin County Council, of the terribly confused, ill-founded, ill-meant remarks that were developing and are still developing around the efforts of that authority to provide basis accommodation for the travelling community. I have no doubt that his promotion of this Bill reflects the initiatives he took in trying to ensure that travellers would be properly accommodated in the community. The sorry state of relationships between us and the travelling community is illustrated by the ongoing rancour in Dublin County Council in regard to their accommodation. To the extent that this Bill, as now amended, will afford that community the opportunity to redress the wrongs against them it has to be welcomed. We will be supporting that amendment.
I have already indicated that we welcome the amendments that allow for the inclusion of sexual orientation. The Workers' Party also welcome the efforts of Deputy Barnes in attempting to address an item that was debated here in the context of the Video Recordings Bill, the potential to incite hatred or ridicule against women and children by protraying them in pornography. It is to be welcomed that even at this late stage in the debate on the Bill this issue has been raised because it has been met by a stone wall on the part of the Minister and his predecessor when dealing with the Video Recordings Bill. It has to be recognised that the promulgation of pornographic material showing women and children as objects of vile and depraved sexual gratification amount to potential incitement to hatred towards women and children in those circumstances and perhaps the Minister should be constrained to add the definition——
Perhaps the Deputy would practice those constraints himself and leave that until we come to deal with that legislation in the Video Recordings Bill.
You have indicated, a Leas-Cheann Comhairle, that sub-amendment No. 3 to amendment No. 1 is under discussion.
I thought the Deputy was again referring to the video legislation. He mentioned it.
Sub-amendment No. 3 to amendment No. 1 and amendment a1a in the name of Deputy Barnes deal with the concept of pornography as potential instances of hatred.
The Chair accepts that but again I thought the Deputy referred to impending specific legislation.
I am specifically addressing this amendment. I did make the remark that we are perhaps addressing it here because we had met a stone wall elsewhere. Nonetheless, they represent a genuine concern and a relative concern within the terms of the legislation we are dealing with and I would urge the Minister to consider taking these amendments on board as adding to what is now emerging as a very useful piece of legislation. The consequential amendments that have been tabled in regard to the new definition of hatred will clearly be supported as we welcome the broadening of the definition.
Finally, in addressing all the amendments that are there, I would say that we support that of Deputies Taylor and Kavanagh in regard to the extension to or inclusion in the title, if nothing more, of the concept of ethnicity as something that is above and apart from what is already covered.
I also would like to welcome this legislation and to say how very pleased I am that we had it recommitted and can discuss it at length. What the Minister has done is certainly to be welcomed. We are indeed very grateful that the debate that took place both in the Seanad and in the Dáil prior to the last election has been taken account of by the Minister. It is in the best tradition of the Department in the context of the reform of the illegitimacy legislation that this concept has been brought in and I am pleased that the good tradition I enjoyed in the Department of Justice is still abiding. I hope when the Minister goes out, feeling a nice warm glow from the compliments from this side of the House——
There may be a change before the debate concludes.
——he will convey these compliments to his colleagues, particularly the Minister of State at the Department of Health for his handling of the Child Care Bill. We need this kind of co-operation to bring in meaningful legislation and to ensure that what happens in the Dáil is not just an issue of who wins the votes. That is a bad criterion to apply to legislation. A great deal of sense, wisdom and experience can come from the Opposition benches as well as from the Government and the Department. I am very pleased that we are here discussing reform legislation.
I was in the other House when this Bill was introduced and I recall the frustration and disappointment of many Members there at the apparent reluctance of the Minister's predecessor to accept any amendments or to be open-minded on what was being proposed, which is the subject of the amendments here today. Many people felt it was just window dressing, that we were just going through the motion but the legislation was not meaningful because the subjects of the main amendments here — sexual orientation and the travelling community — could not be included. If I remember correctly, at that time it was suggested there would be drafting difficulties. For whatever reason, I am very happy the problem has been overcome and that we now have legislation everybody can feel good about.
I am particularly happy that protection is to be given to the travelling community in this Bill. I share the last speaker's concern about the travelling community, a minority who get little enough joy from what we do in this House. It seems they are marginalised and passed over in many areas — work, housing and so on. These are fundamental needs. I am glad we are going to include the travelling community in this Bill.
In almost every case changing the law, giving justice and rights in law precede a change in social and community attitudes. This is well known here and elsewhere. We can instance the change in law with regard to single mothers. If we change the law and state that this is the law of the land, then changing social attitudes will result. This is the least we can do for the travelling community and I am very pleased for us and for them. None of us can be anything but ashamed of the state of our development of halting sites. I will not go into that now, but this is a move in the right direction.
In the other House I made the same points Deputy McCartan made with regard to the need to include an amendment to make the Bill relevant to the propaganda of the Provisional IRA and Sinn Féin. Anybody who reads An Poblacht and its bloodthirsty editorials and articles must feel the need for legislation such as this. I hope when this Bill is passed action will be taken against this kind of writing. In my opinion such propaganda journalism or whatever they want to call it, is a grave incitement to hatred.
I was very happy in the other House to listen to Senator Norris making the case for the inclusion of an amendment to deal with sexual orientation. The homosexual community, male and female, will be very pleased that this amendment is incorporated in the legislation. Again I welcome this change which the Minister is bringing in.
Let me refer to Deputy Barnes' amendments. She has done a great deal of research in this area. I welcome these amendments and hope the Minister will continue to co-operate and accept them. They are very important and relate to not a minority but to a majority of women who need this kind of protection which I trust will be included.
I will be brief because most of what I wanted to say has been said already. Like previous speakers I compliment the Minister on the very substantial change he has made in accepting the amendment dealing with homosexual groups and ethnic orientation which extends this Bill considerably and makes it far more acceptable than the limited area to which it related previously. On occasions Ministers can improve Bills by taking on board suggestions from the Opposition. On this occasion it behoves none of us to grab the limelight for that. The Minister could have come in here and simply said no to everything and that would have been that, but he has opened his heart and I compliment and congratulate him on that.
There is always a "but" at the end of such sentences, and I would have liked him to have gone a little further and accepted the concept of "ethnicity" as it has been called. It is a difficult word to pronounce. That, in our view, would have added a dimension to the Bill which it lacks at the moment. Nevertheless, so far so good. He has time to change his mind. The arguments from this side have been persuasive so that for the moment we will not write them off as a dead loss. We hope the Minister will see the argument in favour of this.
In referring to the amendments put down in the names of Deputy Taylor and myself, let me take this opportunity to compliment Deputy Taylor because he has carried on the work on behalf of my party — I have come to join him only in the last week or so. Any arguments he has made have extended the terms of this Bill and I take the opportunity to thank him for the work he has done. In that regard I thank other speakers also.
Even in the smallest town or village in this country, particularly since the problems of Vietnam, we have various ethnic groups setting up in business. In places like golf clubs and other meeting places we hear about various individuals who moved in, and others who are moving from one county to another and one town to another being referred to traditionally as "blow ins". Now we have "blow ins" from as far away as Vietnam, the South China Seas and Pakistan. The Bill would have been improved had the Minister taken that fact on board. I do not think he needs to do it for Tipperary men coming to Wicklow or Cork men coming to Dublin, but the Minister might have taken this opportunity to consider colour or creeds which are different from what we have known traditionally.
I thank Deputy Barnes for endeavouring to do what I tried to do last week, and perhaps doing it very much better, that is, introducing a definition of "pornography" and "pornographic" into this legislation. Last week when speaking on the Video Recordings Bill I said nobody else and no other party in the House had endeavoured to put in a more satisfactory definition. I am glad Deputy Barnes has taken the opportunity to introduce it into this legislation. Of course, our party will support that amendment. Wherever we can include a condemnation of pornography and get it written into our legislation we feel we should take that opportunity. Maybe when we reach the other legislation today the Minister will have had a change of heart in that area too. I am sorry to see him shake his head east to west. I would prefer north to south. We will be supporting the amendment in the name of Deputy Barnes and, obviously, the amendments in our own names.
This is one of the rewarding periods in the life of a Minister and Deputies on all sides of the House when we can welcome the amendments which the Minister has accepted and which he will include in this Bill. As legislators we know our responsibility is to bring in the very best and most responsible and comprehensive legislation we can to cover all the various complexities. As others have done, I pay tribute to the draftspeople in the Department who have to endeavour to draft the legislation, because it is a complex task and it may be dangerous in other ways. I thank the Minister for agreeing to a recommittal. This is what good legislation is all about.
I would like to congratulate the Minister as I have not spoken to him across the floor of the House since he became Minister for Justice. I would like to think this is the beginning of many reforms he will have the opportunity and privilege of bringing to this House. Like other speakers, I will not take up too much time because, having got the amendments and in pushing for the remaining few, we would like to allow time for this to be completed and brought in. It is important to be proud of the legislation, the freedoms and the protections we give to our people and particularly to minority groups. To our great shame and embarrassment this has been one of the outstanding items of legislation that did not allow us to ratify the United Nations Declaration of Human Rights and its covenants. If the Children Bill comes through in this session those two items of legislation should enable us to ratify.
I join with Deputy McCartan and the other Members who are speaking on this Bill in hoping we can celebrate United Nations Day on 10 December by being able to ratify and fully acknowledge the UN covenants. It is important both nationally and internationally.
I welcome the fact that the Bill and the title have been widened to include "race, religion, nationality or sexual orientation". Before I speak on my own amendment I support the Members of this House on the amendment dealing with ethnic groups. Deputy Kavanagh, in a very graphic and practical way, reminded us that there may be a need to highlight the fact that as a country we have been isolated and insulated from any incursion, apart from those we have in our folk memory, of the Vikings and the Norse,. etc., and allow further integration with the European Community and open borders with a country that will be able to attract races and ethnic groups.
We have evidence, a Leas-Cheann Comhairle, as I am sure you and others are aware from the studies of Father Micheál Mac Greil that we do not have a high tolerance but we do have a high level of prejudice against colour and ethnic groups in this country. Perhaps it is because we have not been exposed to a great mingling and integration of races up to now. It is important that we foresee, and even protect, the rights of those ethnic groups in our country who are trying to make a living. As Deputy Fennell pointed out, the foundation of all tolerance, freedoms, protections and removal of discriminations lies within legislation. Human conditioning and human fallibility being what they are — and this is why legislators are of such tremendous importance — this is the first foundation stone on which we build the society of pluralism and tolerance we wish to have and of which the people who set up this State had a vision.
Regarding the inclusion of the travelling community, I do not wish to let the opportunity go by without welcoming it. I know that the introduction of this legislation, and the debate which is taking place, will change attitudes and people's sense of compassion towards a group of people who are our own but whom we have managed to isolate and have made them feel alien. This legislation will allow this group to be protected and not abused, but I hope they will be housed and integrated with the community according to their needs and their culture. I know that the Minister and county councillors throughout Ireland have been working on this matter for some time. Until such time as we achieve this we cannot rest easily and we cannot believe we have the kind of Christian, accepting, tolerant society which all of us would like to think we are working towards.
I would also like to welcome the support which all amendments to the Bill have got, collectively from Members on this side. I thank also my own colleagues who gave me every support in putting down the amendment which I hope will be accepted by the Minister. When we are talking about incitement to hatred towards women and, sadly, more recently, towards children, it must be perceived as an incitement to sexual hatred and violence. In the same way as this debate has teased out the various attitudes and the definition of hatred we have towards other groups within our community, for whom we wish to legislate, we all agree that this Bill had to take on and fight the incitement to racial hatred, for instance, by literature, by visual material and by the behaviour of people who would incite racist hatred.
There are many surveys and much research to illustrate the use and abuse of hard pornography, as defined in my amendment No. a1a. This amendment tries to spell out the various forms of violence and the humiliations involved in it as an incitement to sexual hatred and violence. On behalf of women and, indeed, on behalf of many men who share the same concern about that kind of pollution of our society, I would say that unless we also legislate against that freedom for women — that includes women's civil rights and civil liberties — will depend on the elimination of that pornography as part of the whole elimination of sexist discrimination. I would also remind the Minister and the House of other UN conventions, particularly the convention which guarantees freedom of movement, which is a basic human right, plus the UN convention on the elimination of all discrimination against women. One of the points they highlight is that women must have freedom comparable to that of men.
The spread of pornography and the depiction of women in pornography curbs their freedom. A recent US commission on pornography has shown quite clearly that there is a direct relationship between hard pornography and violence against women. We are talking about the protection of the life and liberty of women, which must hold as high a place on the agenda as the other areas within this legislation. It is an important time for us to include it. Until recently not much research had been carried out into the effects of pornography and its widescale distribution. The proliferation of videos and computer games laden with images which attack women means that we are no longer talking about a small group of people who have access to such material under adult conditions. This is something which is expanding and polluting society, depicting perversion and violence against women on an unprecedented scale.
Research has shown that there is a direct relationship between pornography and racism in that it is usually very poor and deprived women from Third World countries who are used and abused in these films. I make my case not only against sexism but also against racism. Studies or pornography substantiate this point. In the light of the amendments which have been allowed already to this Bill I hope it will not go forward to the Seanad in an incomplete form. The Minister has been assured by every speaker that this amendment will be welcomed.
I support my collegue, Deputy Barnes, on this amendment and appeal to the Minister, who has shown himself to be in a generous mood today by introducing very welcome amendments, to improve this legislation yet again by accepting the amendment in the name of Deputy Barnes. I would compliment my colleague on her parliamentary drafting acumen, given that she has, for the first time in any legislation, placed before the House a very succinct definition of pornography. We had a broadly similar debate last week on another Bill but did not reach a successful conclusion. For the first time, the House is now identifying in succinct terms a definition which in the past has proved very difficult. In that sense we are making a little bit of history. I compliment Deputy Barnes and hope the Minister will accept the amendment.
I now turn to a number of other amendments, particularly amendment No. 2 to amendment No. 1 in the names of Deputies Taylor and Kavanagh which states:
In the third line, after "community" to insert "or their sexual orientation and shall include conduct likely to hold up any such person or group to ridicule or contempt".
Are we broadening the scope of the definition, bearing in mind that we are attempting to insert these words following a definition of hatred? I hope Deputy Taylor disagrees, but the logical continuum appears to be that we would be defining hatred as holding persons up to ridicule. Perhaps we are broadening the scope by equating hatred with ridicule.
That leads to hatred.
From a drafting point of view we may be in difficulty. Perhaps we should consider the point. I offer the support of my party for amendment No. 1a. The Bill makes it an offence to publish or distribute certain written material and I agree that it should also be an offence to print or keep in possession or custody material that is likely to incite hatred. Having regard to the practicalities and evidence adduced in the course of Second Stage debate with regard to material which has been freely printed in this city and throughout the State, we should tighten this legislation by agreeing to this amendment.
Is the Deputy talking about amendment No. 1a? It is not included in this group and will be dealt with separately.
Following your earlier ruling I thought we had grouped all the amendments together.
We grouped the one to which I referred. Amendment No. a1 is included in the group but not amendment No. 1a. There had to be an employment of digits and letters to deal with the amendments which came in. I said we were taking amendments Nos. a1, 1, and amendments Nos. 1, 2 and 3 to amendment No. 1, amendment No. a1a in the name of Deputy Barnes, together with amendments Nos. 4, 6, 7, 8a and 9.
I will not dispute your ruling. Let me indicate my support for Deputy Taylor in that regard.
I am grateful to Members who have spoken for the warmth of their welcome for the extension of this Bill to include the element of sexual orientation. The points made by Members reflect my own view that it would be remiss not to take the opportunity afforded by this legislation to extend to the gay community the protection of this Bill. I appreciate the warmth of the welcome it has received. It is now a much better Bill as it will prohibit incitement to hatred on account of race, religion, nationality or sexual orientation.
Although not covered in the title, the ethnic question is included in the definition of hatred. "Hatred" means hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community, or sexual orientation. That is a very broad interpretation extending as it does now to the travelling and gay communities.
I endorse the views of Members in relation to the plight of the travelling community and the need for a more enlightened, charitable, Christian and general liberal view to the question of accommodation at halting sites, or permanent accommodation, whichever suits the travelling community. The expressions of support for the efforts of local authorities who have been trying to do something in this area are welcome and I take the opportunity in the House of encouraging communities around the country to take their share of the national responsibility in this regard, which should be tackled.
When I was chairman of Dublin County Council I introduced a programme of sites for travelling families the length and breadth of County Dublin and there was a general welcome for it in many areas. Some people opposed it, they wanted something done but not in their area or next door to them. These people had liberal views in relation to many other areas and thought it was appalling to see unfortunate families on the bypass in Tallaght — as they were at that time — and at the side of the road——
We mentioned to the Minister that that was a likely outcome.
However, the proposal was adopted and it should be implemented, not just in County Dublin, but throughout the country. We should have sites in every county for the travelling community and some of the hatred expressed towards them will now be covered by this legislation.
I said at the outset — but I will reiterate it—that we are conscious of the fact that verbal attacks on the gay community will often lead to physical attacks. There is always a danger that if something is repeated often enough, no matter how untrue or outlandish, it may eventually be believed by some people. If we did not introduce an amendment it would give an opportunity to bigoted and unscrupulous people to latch on to the prevalence of AIDS to incite hatred against the gay community. I believe that there are already examples of this and I am glad to be able to do something by means of this amendment which should put a stop to it. I appreciate the welcome it has received in the House.
I oppose the points made by Deputy Taylor regarding ridicule and contempt because they are neither practical nor desirable. However, I understand Deputy Taylor's reason for submitting the amendment. Under sections 2, 3 and 4 it will be an offence for a person to act or speak in such a way as to be threatening, abusive or insulting with the intent or likelihood of hatred being stirred up. The words "threatening", "abusive" and "insulting" are well known and have been included in legislation here and abroad for a long time. They are strong words— as indeed is "hatred"— and mean more than "annoying", "ridiculing" and "treating someone with contempt". They are undefined but they are clear in their meaning, a meaning which any ordinary citizen could understand.
For example, an ordinary citizen would recognise an insult when he heard it but it would not be appropriate to penalise those who say or publish something in bad taste. To hold up groups of persons to ridicule or contempt may not be ideal human behaviour but it is certainly not a crime and I do not intend to make it one. To accept Deputy Taylor'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 its value would be greatly diluted.
It has also been said, on more than one occasion during the debates on this Bill, that we must be very careful not to include anything that might infringe the constitutional right of free speech. I submit that the amendment we are now discussing could well upset the fine balance we have achieved in the Bill in this respect. After all, there must surely be a limit to how far the criminal law should seek to enforce standards of good taste. It may not be good taste to make a speech expressing contempt for persons, for example, from a particular country, or to ridicule them, but it would surely be going too far to penalise such a speech even if it could be regarded as insulting.
I should like to say a few words about how "ridicule" and "contempt" are treated in other laws. They are not, as far as I can ascertain, contained in any statute law. However, in common law the tort of defamation can be committed by the wrongful publication of a false statement about a person which tends to lower that person in the eyes of right thinking members of society, or tends to hold that person up to hatred, ridicule or contempt, or causes that person to be shunned or avoided by right thinking members of society. That definition derives from judicial pronouncements and is non-statutory. However, it bears no relation to this Bill. First, it is concerned with false statements. The offences in the Bill could be committed even where the words uttered or material published were true. It would not be a defence to a charge of an offence under this Bill to say that the words were true. The important aspect is that they would be intended or likely to stir up hatred. In regard to defamation, the false statement must be about a person or persons, not a wide group of persons, because of their membership of certain categories in society, as in this Bill. This is as it should be because individuals have the right not to be ridiculed or held up to contempt by reason of false statements. I have said enough about the law of defamation to show that there is no comparison between it and the incitement Bill. It would be totally inappropriate to give "ridicule" or "contempt" the same status in this Bill as "hatred" and, accordingly, I cannot accept the amendment.
Deputy Flanagan made a number of points. This Bill is only intended to allow ratification of the UN covenant on civil and political rights. It is not relevant to ratification under the UN racial discrimination convention. That is another day's work for all of us.
Deputy Flanagan also asked about the interpretation of "or elsewhere". That is the way the draftsman recommended that we should deal with the amendment. The Deputy also had questions in relation to amendments Nos. 4, 6 and 7. The definition of "script" is the same as that in the Bill as published. It is purely a technical amendment.
I fully share Deputy Barnes's abhorrence of pornography and how it demeans the role and status of women and children. That is why under the 1946 Censorship of Publications Act if the censorship board, having duly examined a book, are of the opinion that it is indecent or obscene, they may ban it.
That only relates to public viewing.
The position will be the same in relation to videos. Videos will be covered in the Video Recordings Bill, 1987, which we hope to have passed later this evening also.
I accept fully the principle of what the Deputy is trying to achieve in relation to pornography, having a ban on pornography, as outlined. First, I cannot accept it in the technical sense of its drafting. I will admit it is the first time I have seen an attempt made at such a wide drafting of the definition of "pornography". I accept that it was a genuine effort and I compliment Deputy Barnes thereon. I am informed by the draftsman that, under no circumstances, could it be accepted in its present form but that is a technical difficulty.
With regard to the principle, what the Deputy is attempting to introduce into this Bill is the element of subordination generally and, within this context, subordination. I would suggest that, were I to accept this definition, we could take it to its logical conclusion, that of incorporating subordination on many other grounds such as, for example, subordination on account of poverty, class or social origin. I say that with regret. I join the Deputy in her abhorrence of pornography, as would every Member of this House with regard to anything that would demean the role of women in any way, lead to any reduction of their status or indeed that would lead to attacks on women or children or their degradation.
I will examine this definition of "pornography" ascertaining whether in some other way, in some other Bill, I can tackle it. But I cannot accept the definition in its present form. I will give the Deputy this commitment, that I will have it examined to ascertain whether the concept can be incorporated in some way in legislation, a concept with which I agree but which cannot be included in the provisions of this Bill.
In the amendments I have tabled in relation to the gay and the travelling communities, in the extension of the definition of "hatred" I have gone a long way in relation to the provisions of this Bill. It will be a much better Bill as a result of the combined efforts of both Houses of the Oireachtas and the agreement of the Government.
Having accepted the points made on previous stages of debate in both Houses — in relation both to the travelling community and sexual orientation — I felt that, having gone that far, that would be the end of the road. Now I discover that more has arisen. It is the old case that, once one opens the gates, something else enters. I cannot go any further in relation to it.
I do give the Deputy and the House this commitment, that I will examine this whole broad area of pornography as interpreted and drafted by Deputy Barnes. I will ascertain what can be done to meet what is the general feeling and wishes of this House.
I want to raise my voice in support of the amendment proposed by Deputy Barnes and to make one final effort to urge the Minister to reconsider its acceptance. It is not really a reasonable defence for the Minister to say that he has gone a long way to meet us because we pressed him to include prohibition in relation to hatred of the travelling and the gay communities. Let us be honest about this, those two arguments stood on their merits. While I am very glad the Minister has accepted the case advanced by my colleagues earlier in this debate — and has now included those two groups — no doubt he himself will accept that it has led to an improvement of the Bill. That is what democracy and parliamentary debate is all about.
Without pointing the finger at the present Minister perhaps it is a reflection of an old time attitude emanating more from ministerial advisers than Ministers themselves, that it is with the most grudging attitude Ministers accept anything from the Opposition. The Minister himself has shown in relation to the travelling and the gay communities that he has been prepared to listen to the views expressed by the Opposition and has taken on board the spirit of the amendments previously proposed. That is good but I cannot accept that the Minister should use that, as it were, as an excuse for not taking on board the very legitimate case made by Deputy Barnes which must be examined separately. That is the only way we can tease out the question of whether that definition should be included in this Bill. I accept that the Minister has said he will examine the proposal in the context of another Bill but that could be next week, next year or never. We are afforded an opportunity now to consider its inclusion.
Let me now dispose of the technical aspect of the drafting. Deputy Barnes is to be complimented on her effort to produce a definition of "pornography." If technically it does not totally qualify for inclusion in this Bill, the Minister can overcome that difficulty by asking his advisers and parliamentary draftsmen, as it were, to punch it into shape. Let us get to the principle of it. There is a very strong view held in this country that every effort should be made to outlaw and restrict pornography. The difficulty with coming up with an appropriate definition should not stymie those attempts. Surely there is sufficient wisdom between the Minister's office and his parliamentary draftsmen to draft an appropriate definition.
Then we come to the principle. If we are against it we should make every effort, examine every piece of legislation as it arises to ascertain what we can do to follow that principle. I have to say very bluntly, as a family man that I am appalled by the level of pornography that has crept in here; from a personal point of view I am gravely concerned. As a public representative I feel very strongly that we must avail of every opportunity to send out the message loudly and clearly from this House that we shall make every effort to stem this tide of pornography. From that point of view then we have a Bill before us, we have a very reasonable and reasoned case made by Deputy Barnes. I would invite the Minister to think again. If he accepts the view that we should be availing of every opportunity to stem this tide of pornography, this Bill constitutes one vehicle we should be using. In those circumstances the Minister should be accepting the spirit of Deputy Barnes' amendment. If he did that, I have no doubt we could find the appropriate procedures to allow the amendment be put in proper shape for inclusion in this Bill.
I want to make a couple of brief responses to the points made by the Minister. On the ethnic point, I am slightly puzzled as to why there should be any objection to including the word "ethnic" in the title when the matter of ethnicity is accepted by the Minister as constituting a critical part of the Bill. The Minister has taken that on board in his definition of hatred. Consequently as it is a key part of what the Bill imports it is difficult to understand why there should be any rooted objection on the Minister's part to including it in the title, having regard to the fact that it is already included in the definition. It does not seem to be an unreasonable request, if it is a key part of the Bill, as expressed in the definition, to ask for it to be included in the title also. It is only one word and I do not understand why it should not be included. What difference would it make? Would it not reflect the Bill more accurately if it was included in the title when it is an integral part of the Bill and included already in the definition?
I am a bit disappointed that the Minister is not agreeable to accepting our amendment on the extension of the definition of hatred to include the holding up of a group to ridicule or contempt. I did not think, on consideration, that that was an unreasonable request to make of the Minister. Certainly the expressions "abusive" and "insulting" are well known to the law but as the Minister said, in the defamation context, so are hatred, ridicule and contempt. That applies in the context of an individual but we are not talking about an individual here; we are talking primarily about a group of people.
I thought the Minister would have known that there are certain elements of the media whereby a certain group of people can be held up to ridicule or contempt. This can be extremely hurtful to them and it well warranted that it should be deemed to be a criminal offence under the terms of this Bill. I am sure the Minister must have seen some of the anti-semitic material of a der Sturmer type which has been printed quite frequently and circulated in this country. Obviously the Minister for Justice has seen that cartoon-type material in which people are shown with certain characteristics which hold them up to contempt and ridicule. It is known that when the Nazis were about their business the first thing they did when they wanted to debase people was to hold them up to ridicule; the next stage was to hold them up to contempt and then it was an easy slot on to stir up hatred against them. One thing leads on to another.
I am not saying that a cartoon lampooning a person — be it the Minister, myself, Deputy Dukes or whoever — in a newspaper should come within the terms of this Bill. This is fair enough activity, and I would be the first to admit that. I am not talking about that kind of activity. I am talking about the way a group of people, a category of people, a religious group or an ethnic division of people are depicted in cartoons. These cartoons can be very effective and can have a tremendous impact, far more than the written word can have, in not so much stirring up hatred as an initial factor but showing up people with characteristics at which people will laugh and ask "did you see this group of people?" The people depicted in these cartoons could be itinerants, Jews or gays.
If the Minister does not extend the definition in the way I seek I cannot see that that kind of activity would come within the terms of the Bill and remain as a legal activity. I cannot imagine that the Minister has that in mind or that he would want that kind of situation to develop. I am sure he does not but it seems that that is what will follow. This is why I devised the amendment with Deputy Kavanagh. I still believe it is a necessary protection which should be brought in and I would ask the Minister to reconsider it.
I should like to refer to Deputy Barnes's amendment which the Minister has said he cannot accept as it is worded. I think he said he accepted the principle and objective of the amendment, the thinking behind it and the general feelings Deputy Barnes and other speakers here have on it. I hope the Minister will come some of the way — hopefully he may come all of the way — towards resolving the difficulty we have.
When we are dealing with legislation like this — I am sure we will not be dealing with it for a long time again — the tendency is to say that the legislation must remain in force for as long a time as possible. We have to accept that there is a trend towards the greater use of females in all kinds of unacceptable ways for pornographic purposes. If we do not attempt to address this problem now I do not think it will be dealt with in any other legislation. We may discuss it in relation to the Video Recordings Bill and include a provision in it in this regard but what legislation will govern publications, magazines and newspapers which use these pornographic pictures?
I think the Minister will accept that there is an association between hard pornography and the increased incidence of violence against women and children. I cannot quote statistics or research that has been carried out in this country or the UK but research carried out in the United States has shown conclusively that there is a very strong link between the two. That should be reason enough for us to move now on the problem in this legislation.
The people who deal with rape victims tell us that deviant sex, violent sex and pornography are associated with horrific crimes of violence and rape. I plead with the Minister to be open-minded on this aspect and to be aware that we need to bring in protection for these women. If the Minister does not agree with us or thinks that it could cause drafting problems in this section, perhaps he will give a commitment to look at it again and try to meet the requirement of Deputy Barnes. I do not think the problem is as bad in Ireland — I know we are not talking about this problem only in regard to Ireland; we are talking about it in an international context — and not as many pornographic magazines are on view here compared to the UK or Germany. I think Germany is a classic case where there is a thriving trade in pornographic magazines which portray women in the most appalling way.
I think many men are very uncomfortable with explicit pornography where women are used, as the amendment stresses, as objects and in a depraved manner. Some young men think it is soft or sissy to be critical of this type of use of the female body and they are not sure whether it is bad, wrong and unacceptable. This is not an issue for women. Deputy Barnes and myself are the two women representatives in this debate. This problem of pornography debases all of us. It is a growing trend and tends to be picked up by the commercial world and used in the most awful way. I wish we could deal with this problem in a practical manner and arrive at a solution that would suit everybody. I am not sure I could say that we have seen pornographic books and magazines in Ireland. I tend to ignore pornography, I find that it makes me most uncomfortable and at times I cannot cope with the front page of The Sunday World. I am not suggesting for a moment that this is hard pornography but on some Sundays the poses of women where they are portrayed as sexual objects or commodities, would fall within the scope of this amendment. I feel we should be legislating for the here and now and for the years ahead and I appeal to the Minister to co-operate with what we are trying to achieve.
I would like to clarify some points before Deputy Barnes speaks. As I have said already, I share the view that pornography not only debases women, but all of us. I have committed myself to examine it. However, the Bill before us is the wrong place for an amendment such as that proposed by Deputy Barnes. The problem of pornography is much wider that what could be handled in this Bill. Let me remind Members that we are creating a new offence of incitement to hatred against certain named groups. The groups are named in the amendment I tabled to the title of the Bill, "To prohibit incitement to hatred on account of race, religion, nationality or sexual orientation". Hatred is defined in another amendment as:
Hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation ...
Let me say this is the wrong legislation for the proposed amendment, in case Deputies should think that it is only the drafting of the amendment that I cannot accept.
I have already complimented Deputy Barnes on her attempt at drafting the amendment. My experts have told me that it would not be adequate but I compliment the Deputy on making such a comprehensive shot at drafting it and it is much better than what I could do. I accept that pornography is a problem. I am not long-fingering the problem and I will try genuinely to meet the wishes of Members. It would distort the situation if it was portrayed that I am opposed to what Deputy Barnes is trying to achieve, but this is simply the wrong place to include what Deputy Barnes envisages.
Before I sit down I would like to comment on the points raised by Deputy Taylor. I have a long note on why the word "ethnic" is omitted from the title but let me say briefly that whether ethnic is in the title makes no difference to its meaning, scope or potential within the Bill and makes no difference to any other aspects of the Bill. It is unnecessary. Imagine somebody being prosecuted for 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 title of the Bill. To include the word "ethnic" would not be good drafting and it could have unforeseeable repercussions. All things considered, and in the context of the expert advice available to me, I am unable to accept that amendment. Ethnic is covered in the interpretation of hatred. On the question of anti-Semitic material, most of the anti-Semitic material that I have seen would be seen to have incited others to hatred. It is stronger than simply ridiculing people or holding them up to contempt in the manner to which the Deputy has referred.
I apologise for speaking before Deputy Barnes but I thought it important to make those points.
I accept that the Minister is committed to legislating for this area. I welcome that. I will not repeat myself but it is very important to stress the problem of pornography. I know the Minister and the parliamentary draftsman believe that this Bill is not the appropriate place to include such provisions. However, women have, from their collective experience a fear of being in certain places at certain times, of not being freely able to move as men can, and of being constantly under threat of rape or assault and, above all else, the violence engendered by hard porn. This violence includes not only beatings, dismemberings, burnings, multiple rape, but leads as some hard porn films do, to the death of the women in the film. That is an incitement to hatred and an expression of hatred towards all women, because those "objects" and that is what they are seen as in such films, are really personifying all women. There is the in-built humiliation, degradation and threat to all women. While the Minister may not be able to accept that this is the appropriate Bill for this amendment, I want to place on record that out of the experience of women and research on the subject, we realise that what is involved in pornography is incitement to hatred and not just incitement to degradation but to actual hatred that would allow titillation from the violation and torture of other human beings. It is as basic, fundamental and frightening as that for women. I feel it is terribly important to put this on record.
In case I will be seen as a fraud — and I feel very guilty about all the compliments I have received, which I welcome, on the drafting of the definition — I have to admit that this was defined by the National Council for Civil Liberties in Britain by a commission set up to campaign against pornography and censorship and it has been accepted by an Irish national campaign against pornography and censorship. The definition is an attempt, in a wide and non-censorious way, to show the breadth of violence without attempting to censor good, erotic sex or good relationships between men and women. It is extraordinarily difficult to do this. I look forward to seeing the more refined version produced by the draftsman. Drafting can lead to quite complex difficulties.
I accept the Minister's commitment but I wish to press very hard to have the amendment included in this Bill. This does not mean it cannot also be covered in other legislation, particularly if this Bill does not cover all aspects. I would like a definition of pornography and the seriousness of it to be incorporated in legislation as quickly as possible, so that we can begin to protect ourselves from it. If the Minister is adamant that he cannot accept what I consider to be a logical and valid viewpoint that the incitement to hatred against women is as acceptable as incitement to other groups, could he indicate where such a provision could be included in legislation? For example, could it be considered on Report Stage of the Video Recordings Bill, where it may also have a place?
Fair play to the Deputy for revealing the source of the drafting of the amendment. There is a campaign in the United Kingdom and in Ireland — perhaps Deputy Barnes might tell me the name of the organisations involved.
The National Council for Civil Liberties are organising the campaign in Britain, but a campaign has also been organised in Ireland based on the same definition and it is called the campaign against pornography and censorship. We are anxious not to censor good sex.
In the light of what has been said, I am quite prepared to meet the Deputy and representatives from the campaign against pornography and censorship and sit down and discuss with them how best to handle the objectives of tackling the problem of pornography. I cannot go any further than that today, but in the context of that discussion there would be separate legislation.
Amendment No. a1 agreed to.
I move amendment No. 1:
In page 2, between lines 18 and 19, to insert the following:
" `hatred' means hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation;".
Amendment No. 1 to amendment No. 1 not moved.
Amendment No. 2 to amendment No. 1 not moved.
I move amendment No. 3 to amendment No. 1:
In the fifth line, after "orientation" to insert "and includes hatred of women and children as portrayed in pornography".
Is the Deputy withdrawing the amendment?
We will withdraw it in the light of what the Minister has stated — that he will meet the group to discuss the possibility of including it in future legislation.
Amendment, by leave, withdrawn.
Amendment No. 1 agreed to.
Amendment No. ala not moved.
I move amendment 1a:
In page 3, line 6, after "publish" to insert ", print or keep in their possession or custody".
This amendment proposes to insert the words "print or keep in their possession or custody" in section 2 (1) (a). I thank Deputy Flanagan for his support for this amendment and I hope the Minister can accept it. The wording of the original draft of the Bill is too narrow. It provides only for publishing or distribution of written material and does not cover the printing of this material. People who print this material and also people who store it and keep it in their possession or custody, should be equally covered by the terms of the Bill. If we regard this material as something that we are not prepared to accept, if we prohibit its publication and its distribution, it is logical to prohibit printers from printing it or other people from keeping it in their possession or custody.
Many and varied attempts will be made to get around this Bill when it is in force. Experience with similar legislation in other countries has shown that great ingenuity goes into trying to avoid its terms and large amounts of money are spent on legal people trying to find loopholes. Of course that happens with all legislation but it has happened very frequently with this kind of legislation. The equivalent Act in England has been rendered almost useless as a result of pitfalls and defects that have turned up in it. I will say more about that later in the context of a different amendment.
We have to be careful on this Stage to ensure that we cast the net as widely as we can and that we do not leave loopholes for unscrupulous people to try to evade the prohibitions we are making in the Bill. It would be useful to add to the prohibition on publication and distribution, the prohibition on printing and keeping in possession or custody. I hope the House will agree to accept this amendment.
Before proceeding I would advise the House that we have now dispensed with Committee Stage. We are into Report Stage proper under which only the proposer of the amendment is entitled to speak a second time.
I do not wish to dispute your ruling but we seem to be moving from Committee Stage to Report Stage and vice versa.
The Deputy appreciates that it is not possible on Report Stage to amend the Title of a Bill. So far as the Minister's amendment referred to the amendment of the Title, it had to be dealt with on a special Stage called Recommittal Stage. Under that Stage, debate follows on the lines of a Committee Stage. That has been completed and we are on Report Stage proper. Deputy Flanagan might not be happy with that but he understands the position.
With the greatest of respect to the Chair, I feel that an announcement at 3.45 p.m. along the lines you have just mentioned would have clarified the position. My apologies for misunderstanding the Chair in the last few minutes.
I was not here at 3.45 p.m. and the Deputy might take issue with someone else as regards what happened at that time. I can only talk about what happens when I am here.
I welcome your clarification of the position too. I am opposing this amendment. It was discussed at very great length during Committee Stage and it was more than adequately dealt with there. 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 and, 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. Adding 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 it 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 must, accordingly, in the interests of good drafting, oppose it.
I have already spoken in support of the amendment in the name of Deputy Taylor. Obviously the Minister will agree that printing a document that is likely to stir up hatred is an action that is likely to stir up hatred and for that reason alone I would be happy to support the amendment. The Minister, in defence of his opposition to the amendment, stated that this matter is already catered for in section 4. I am not so sure about that because section 4 (1) (b) states that the material must be intended for distribution. Deputy Taylor quite rightly spoke of ingenious efforts being made by people who are likely to profit from publishing, printing and distributing literature of a reprehensible nature. These prople will go to great lengths to find loopholes in the legislation. It could prove extremely difficult for the Gárda Síochána to show, on discovery of a printing press, that it was intended to distribute these documents. That difficulty would be overcome by accepting Deputy Taylor's amendment. If the Minister was willing to consider an amendment to section 4 which sought to obviate the necessity for the prosecutor to prove that it was intended to distribute the literature I would be less supportive of Deputy Taylor's amendment but as things stand I must inform the Minister that I am in agreement with what Deputy Taylor says. Given the lengths some people will go to get around the legislation to continue peddling their filth the amendment introduced by Deputy Taylor is worthy of consideration.
If the Minister was prepared to include the word "print" alongside the word "prepare", which are two separate operations, this would go some way towards meeting our demands. In my opinion preparing and printing are two different things. It could be argued that "prepare" covers printing but it is our intention in moving this amendment to leave people in no doubt that it would be an offence to produce certain material. I do not think that the Minister's assurance is adequate and the Bill would be a great deal stronger if he was prepared to accept our amendment or include the words "to prepare or print" in section 4. We could then move on.
The draftsman has informed me that the word "preparation" covers printing. That is exactly the point Deputy Kavanagh has been making. There is nothing further I can add to what I have already said.
Can we not put the matter beyond doubt and add in the word "print"?
No. As I said, the substance of the amendment is dealt with in section 4 which was included in the Bill to deal with the preparation and possession of inflammatory material. Section 4 has been drafted in a way which is suitable for dealing with the concept of preparation and possession. Including it in section 2 would not only amount to duplication, it would also be an inappropriate way of dealing with it. As a layman, I can only go by what the draftsman tells me which is that the word "preparation" covers printing.
I am sure Deputy Taylor appreciates that he is inviting the Minister to speak a second time and creating a precedent which I might not be able to allow. Perhaps we can take a question.
It is not for me to invite him. Let me make one brief point. I do not know why it is we have to invite difficulties when, very simply, through the insertion of one word we could put the matter beyond yea or nay. By occupation, I am a lawyer, as is Deputy Flanagan, and I can visualise myself going into court and arguing with some force that the person who printed the material did not prepare it and that the word "preparation" does not include printing. I do not know whether I would win the case, much would depend on who the judge was but I might well win it. Therefore why do we have to take this risk and put this matter in doubt when the addition of one word at this stage where it means nothing would put the matter beyond yea or nay? Why do we have to create difficulty when it is not necessary to do so? I think the word "print" should appear in the Bill. As Deputy Kavanagh has said, if it did appear in section 4 everything would be all right. If the Minister is willing to put it in section 4 I will withdraw the amendment. If not, we must vote on it.
Let me help the Deputy. The word "preparation" also covers such things as typing, drawing or other areas. In picking out printing, rather than clarifying the matter we could be narrowing the meaning of the word. That is the problem I have in relation to it so I cannot accept it.
That is not so. I am happy with "preparation" but "printing"——
Is Deputy Taylor unhappy to the point where he wishes me to put the question?
Yes.
Amendment put.
The Dáil divided: Tá, 59; Níl, 69.
Tellers: Tá, Deputies Howlin and O'Shea; Níl, Deputies V. Brady and Clohessy.
- Tá
- Bell, Michael.
- Byrne, Eric.
- Ferris, Michael.
- Gilmore, Eamon.
- Higgins, Michael D.
- Howlin, Brendan.
- Kavanagh, Liam.
- McCartan, Pat.
- Mac Giolla, Tomás.
- Moynihan, Michael.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Ryan, Seán.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
Tellers: Tá, Deputies Ferris and Howlin; Níl, Deputies V. Brady and Clohessy.
Amendment declared lost.
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Ahearn, Therese.Allen, Bernard.Barnes, Monica.Barrett, Seán.Barry, Peter.Bell, Michael.Belton, Louis J.Boylan, Andrew.Bradford, Paul.Bruton, John.Bruton, Richard.Byrne, Eric.Carey, Donal.Cosgrave, Michael Joe.Cotter, Bill.D'Arcy, Michael.Deasy, Austin.Deenihan, Jimmy.Doyle, Joe.Dukes, Alan.Durkan, Bernard.Farrelly, John V.Fennell, Nuala.Finnucane, Michael.Flanagan, Charles.Gilmore, Eamon.Gregory, Tony.Harte, Paddy.Higgins, Jim.Higgins, Michael D. |
Hogan, Philip.Howlin, Brendan.Kavanagh, Liam.Kenny, Enda.Lowry, Michael.McCartan, Pat.McCormack, Pádraic.McGahon, Brendan.McGinley, Dinny.Mac Giolla, Tomás.McGrath, Paul.Mitchell, Jim.Moynihan, Michael.Nealon, Ted.Noonan, Michael.(Limerick East).O'Keeffe, Jim.O'Shea, Brian.O'Sullivan, Gerry.O'Sullivan, Toddy.Owen, Nora.Quinn, Ruairí.Rabbitte, Pat.Ryan, Seán.Sheehan, Patrick J.Sherlock, Joe.Taylor, Mervyn.Taylor-Quinn, MadeleineTimmins, Godfrey.Yates, lvan. |
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Ahern, Bertie.Ahern, Dermot.Ahern, Michael.Aylward, Liam.Barrett, Michael.Brady, Gerard.Brady, Vincent.Brennan, Mattie.Brennan, Séamus.Briscoe, Ben.Browne, John (Wexford).Burke, Raphael P.Calleary, Seán.Callely, Ivor.Clohessy, Peadar.Connolly, Ger.Coughlan, Mary Theresa.Cowen, Brian.Cullimore, Séamus.Daly, Brendan.Davern, Noel.Dempsey, Noel.Dennehy, John.de Valera, Síle.Ellis, John.Fahey, Frank.Fitzgerald, Liam Joseph.Fitzpatrick, Dermot.Flood, Chris.Gallagher, Pat the Cope.Hilliard, Colm.Hyland, Liam.Jacob, Joe.Kelly, Laurence.Kenneally, Brendan. |
Kitt, Michael P.Kitt, Tom.Lawlor, Liam.Leonard, Jimmy.Lyons, Denis.Martin, Micheál.McCreevy, Charlie.McDaid, Jim.McEllistrim, Tom.Molloy, Robert.Morley, P.J.Nolan, M.J.Noonan, Michael J.(Limerick West).O'Connell, John.O'Dea, Willie.O'Donoghue, John.O'Hanlon, Rory.O'Keeffe, Ned.O'Kennedy, Michael.O'Leary, John.O'Malley, Desmond J.O'Rourke, Mary.O'Toole, Martin Joe.Quill, Máirín.Reynolds, Albert.Roche, Dick.Smith, Michael.Stafford, John.Treacy, Noel.Tunney, Jim.Wallace, Mary.Walsh, Joe.Wilson, John P.Woods, Michael. |
We now proceed to deal with amendment No. 2, in the name of the Minister, I observe that amendments Nos. 2, 3 and 5 form a composite proposal. I suggest, therefore, that we discuss amendments, 2, 3 and 5 together. Is that agreed? Agreed.
I move amendment No. 2:
In page 3, to delete lines 7 to 9 and to 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,".
To meet points made on Second Stage, the previous Minister for Justice proposed three amendments in Committee to section 2 in an effort to tighten-up its provisions. However, it was argued that the amendments did not cover the situation where a public meeting at which hatred in the terms of the Bill was incited was held in a private residence. The amendments were withdrawn to see if the reservations expressed in Committee could be met and, accordingly, I now propose amendments Nos. 2, 3 and 5 in order to meet those reservations. Amendments Nos. 2 and 3 are the same as amendments Nos. 4 and 6 on Committee Stage but amendment No. 5 is different from amendment No. 11 in Committee.
Deputies will have noticed that I retained the concept of the "private residence" in this section. The effect of the amendments that my predecessor proposed on Committee Stage, but withdrew, would have been that it would be an offence to use inflammatory words, etc., either (a) outside a private residence or (b) inside a private residence but so that the words could be heard, etc, by a person outside that residence. Therefore if, for example, inflammatory words spoken in a private residence were heard in the street outside or even in another flat in the same block, the offence would be committed. But Deputy Barrett and Deputy Taylor pointed our correctly that, if a public meeting were to be held in a private residence, and if inflammatory words were spoken at the meeting, this would not be an offence under the section, because the words would be spoken in a private residence. What I am now proposing is to meet this point by defining "private residence" in such a way as to exclude from the definition any part of the House or other structure in question in which a public meeting is being held. Therefore, if inflammatory words are spoken either (a) in the part of the structure where the public meeting is being held or (b) in any other part but so that the words are heard in the part where the meeting is being held, an offence will be committed, because then the words will not have been spoken or heard, as the case may be, only in a private residence.
As a result of amendment No. 3 the defence provided in section 2 (2) (b) (i) will be available when the person concerned can prove that he was in a private residence, as defined, and that he had no reason to believe that the words could be heard by a person outside the residence or by a person who was inside the residence but in a part of it where a public meeting was being held. This defence could not be used when the offending words were spoken in any other place, for example, in the open or in a factory, club, town hall or at any private meeting held outside the used part of a private residence or at a public meeting in the private residence.
I will now say a few words about the definition in this section. The definition of "public meeting", as it appeared in the original draft of the Bill, is being joined to that of "private residence" as the words "public meeting" do not appear elsewhere in the section. The definition will ensure, first of all, 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 a derelict building or any part of a house not used for residential purposes will not be considered to be a private residence for the purposes of the section. The definition also excludes the part of the private residence in which a public meeting is being held. In other words, offensive words spoken in a part of a house used as a private residence will constitute an offence if heard outside that part or if heard in any part of the building when a public meeting is taking place in that part.
The "public meeting" aspect is comprehensive and covers a whole range of circumstances, including invitations to members of the public. The elements going to make up this part of the definition are as follows.
First of all, the meeting would be one at which the public were entitled to be present. Any advertisements or other notices for the meeting — whether in newspapers, or more likely in practice by way of posters or leaflets — would constitute an invitation to the public and as such members of the public would be entitled to be present. The second element is that it does not matter whether the public have to pay or whether entry is free. Thirdly, a meeting will be a public meeting if any members of the public are present as of right or by virtue of an express or implied permission. Again, advertisements, or word of mouth, or any other means of notice of a public meeting, no matter where it is to be held, would represent an express or implied permission to members of the public to be present and would be caught by the provisions of this section. A meeting would still be a public meeting, as defined, where an advertisement or notice reserved the right of admittance, because in this case the members of the public who were not refused admittance would be entitled to be present by virtue of the express or implied permission.
To sum up, an offence can be committed in any place under this section, public or private, except in the used part of a private residence — that is to say, the residential part. This exception will not apply if the offending words are heard outside the used part of the residence or if the words are spoken at a public meeting which is taking place in the private residence or are spoken in the used part but heard in the part where the meeting is being held or, indeed, heard anywhere else, including the remainder of the premises.
I hope I have met all the reservations expressed about this section and I recommend amendments Nos. 2, 3 and 5 to the House.
Fine Gael have no difficulty at all with the amendments moved by the Minister. As he stated, these matters were adverted to on Committee Stage. While realising the difficulties that the Minister had in overcoming the reservations on Committee Stage, I believe he has done as good a job as can be done. In the circumstances, he has covered many of the loopholes that might have existed in the Bill as initiated. Without further ado I would like to confirm the support of Fine Gael for the amendments.
We are also happy with these amendments and I am glad that here again some of the suggestions made on Committee Stage have been accepted. The point I was concerned about and which I highlighted on Committee Stage was in regard to the situation where a notice would be up reserving to the promoters the right to refuse admission. That point has now been covered in this sequence of amendments and we are happy with that.
Amendment agreed to.
I move amendment No. 3:
In page 3, to delete lines 25 to 29 and to substitute the following:
"(i) to prove that he was inside a private residence at the relevant time and had no reason to believe that the words, behaviour or material concerned would be heard or seen by a person outside the residence, or".
Amendment agreed to.
Amendment No. 4 has been discussed already but again I must ask the Minister to formally move it.
I move amendment No. 4:
In page 3, to delete lines 34 to 37.
Amendment agreed to.
I move amendment No. 5:
In page 3, to delete lines 38 to 43 and to substitute the following:
"(3) " `private residence' means any structure (including a tent, caravan, vehicle, vessel or other temporary or movable structure) or part of such a structure used as a dwelling but does not include any part not so used or any part in which a public meeting is being held; and in this definition `public meeting' means a meeting at which the public are entitled to be present, on payment or otherwise and as of right to by virtue of an express or implied permission.".
Amendment agreed to.
I move amendment No. 6:
In page 6, to delete lines 5 to 13 and substitute the following:
"(9) In this section `script', in relation to an item, means the text of the item (whether expressed in words or in musical or other notation) together with any directions for its performance, whether contained in a single document or not.".
Amendment agreed to.
The next amendment is amendment No. 6a in the names of Deputies Taylor and Kavanagh. Amendment No. 6b is consequential; 6a and 6b will be discussed together by agreement.
I want to move these two amendments in the names of Deputy Kavanagh and myself. They refer to the standard of proof required in connection with prosecutions under this section. I take the view that the standard of proof being sought there is——
Maybe it is because I am afraid of the legal training, but let me formally ask you just to move amendment No. 6a because that is all we can have. You will appreciate that, if you put amendment No. 6a to a vote and it were negatived, then you could not move amendment No. 6b.
I move amendment No. 6a:
In page 6, lines 23 and 24, to delete "and is intended"
This amendment is directed to the standard of proof required. The difficulty as I see it arises from the fact that under this section it would be necessary for the prosecution to prove the intention of the person who was preparing or distributing this material. That is notoriously difficult to prove. The equivalent English Act — and this section closely follows the form of the English Act — fell foul of this difficulty and to a very large extent has proved to be a legal minefield and many people who ought to have been convicted were freed because it was not possible to prove intent. There are other legal situations where it is necessary to prove a person's intent, and in those cases it is always a matter of great difficulty for the courts to tell what a person intended, what was in a person's mind. The only person who knows that for truth is the person himself or herself, and this is a source of great difficulty for the courts.
It is too high a standard of proof to require the prosecution to cover this kind of situation altogether. If a person has prepared or is in possession of filth — which is what this material is — it is a fair enough presumption, unless he proves to the contrary, that he intended to dirty people with it. I do not think it should be necessary for the prosecution to prove that he intended to use this filth to dirty people. That should follow. He may have a defence that would enable him to give some explanation why he prepared this material or was in possession of it, but that should be a matter of defence, not the responsibility of the prosecution. We should set a reasonable standard of proof. That always has to be done, but if the material itself meets the criteria of prohibition laid down in the Bill, that should be sufficient to establish the prosecution's case. There is no great benefit or merit in bringing in a Bill that makes it so difficult for the prosecution to establish success in prosecutions that it becomes very little availed of. That is precisely what happened in Britain. We should learn from the British experience and avoid this pitfall.
I agree with Deputy Taylor and, I think I covered this in an earlier amendment when we spoke about printing. Deputy Taylor makes a fair point. In this legislation we are talking about making it an offence to print, publish or distribute any documents that are likely to stir up hatred. Perhaps we are putting an extra burden on the prosecution to show intent on the part of the producers, printers, suppliers or manufacturers but the very fact that persons are apprehended in the process of printing or preparation should be sufficient to constitute an offence.
If I am reading section 4 correctly, that is not the case; there is an extra onus on the prosecution to show an intention to distribute, to supply or to broadcast. That element of intent could be the rock this legislation perished on by making it very difficult for the prosecution to successfully bring a case against the defendant. I ask the Minister to look further at the burden of proof he is placing on the prosecution. It should be sufficient to apprehend a transgressor with the material, irrespective of what he is going to do with it. By deleting "intention to distribute" perhaps we are making this legislation more effective.
I am opposing these amendments.
In the preparation of this Bill much thought was given to what should be the basis for the taking of prosecutions for offences committed under sections 2, 3 or 4. Many reference books, publications and legislation elsewhere were consulted and, indeed, if I may say so in this regard, the Deputy's own Private Member's Incitement to Hatred Bill in 1986 was noted.
I think 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 to 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 began to appear. Thus, it became difficult to prove intent. 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 to the objective criterion that hatred would be likely to be stirred up. I agree with that approach which is why the alternatives of intent and likelihood have been included in the Bill. 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 the Deputy's own intentions are. Therefore, I am opposing amendment No. 6a.
I am also opposing amendment No. 6b. In opposing amendment No. 6a amendment No. 6b must also be opposed as it could not stand on its own, for 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.
Is the amendment withdrawn?
No.
Question: "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
Amendment No. 6b not moved.
Amendment No. 7 has already been discussed.
I move amendment No. 7:
In page 6, to delete lines 41 to 43.
Amendment agreed to.
I move amendment No. 8:
In page 7, to delete lines 28 to 31 and substitute the following:
8.— Where a person is charged with an offence under section 2, 3 or 4, no further proceedings in the matter (other than any remand in custody or on bail) shall be taken except by or with the consent of the Director of Public Prosecutions.
I am proposing amendment No. 8 to meet a point raised by Deputy Taylor and supported by others, including Deputy McCartan, on the wording of the section, as it stands, during Committee Stage on the motion that section 8 should stand part of the Bill. Deputy Taylor's point was that it was not clear whether the wording would allow a person to be charged without the consent of the Director of Public Prosecutions. I agree that there may well be some ambiguity on that point and, accordingly, I am recommending to the House amendment No. 8 in order to clarify the position. It was never the intention that a person could not be arrested and charged by the Garda with an offence under the Bill without the consent of the DPP. The position, if the amendment is accepted, will be that a person can be arrested and charged and brought before the court where he can be remanded in custody or on bail. Before a formal charge can be brought against the person in the court, the consent of the DPP will be necessary. The purpose of the procedure is to enable the Garda to take immediate action, where necessary, before the matter can be reported to the DPP and he can decide whether there should be a prosecution.
Similar wording to that proposed in the amendment has been used in other Acts, for example at section 20 of the Criminal Law (Jurisdiction) Act, 1976, and at section 6 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987. Indeed, a wording very similar to the above was used as far back as 1883 in the Explosive Substances Act of that year.
Deputy Taylor has an amendment to amendment No. 8 and with the agreement of the House, we may discuss both together.
Is it appropriate for me to move that now?
Yes. I remind Deputy Taylor that he may be putting at risk his right to reply. Is he happy to have both discussed together.
Yes. I move amendment No. 1 to amendment No. 8:
In the fourth line, after "Prosecutions" to insert "or by a member of the Garda Síochána not below the rank of inspector".
I am happy enough with the Minister's amendment subject to my own amendment to it. The net point of my amendment to amendment No. 8 is my unhappiness with the provision that a prosecution under this Act may only be instituted by, or with the consent of, the Director of Public Prosecutions. I am puzzled by this requirement. I do not know why that standard is adopted by the Minister in this Bill and, indeed, persisted in now on Report Stage. It was argued forcibly by Deputy McCartan, by others and by myself on Committee Stage. I had hoped there would have been some give on this issue on Report Stage. I spoke with Deputy McCartan a little while ago and he made the point that it should be open to anybody — even a person who is not a member of the Garda — to issue a private prosecution if they were so minded for an offence under this Bill. There is a lot of force to that point of view. My amendment at least tries to strike a balance and to say that a prosecution can be brought if the Director of Public Prosecutions directs one — that goes without saying — but to say also that any Garda officer of the rank of inspector or higher may of his own volition, in an appropriate case, bring a prosecution under this Act. Why on earth should that be not so? Do we have such little degree of support or confidence in the Garda Síochána of the rank of inspector and upwards that we are not prepared to leave it to them to issue a prosecution under the Act in important matters such as this? We know what the pressures are in the Office of the Director of Public Prosecutions. This House discussed recently the delays in that office and how long it takes to have material dealt with. One of the key necessities when the kind of incident arises which this Bill seeks to deal with is that speed is required. You cannot wait for a prosecution for up to six months after a detection. That could be the time lag involved in referrals to the Director of Public Prosecution's office and waiting for them to make up their mind as to whether there is to be a prosecution. By that time the offending material will all have been given out. Speed is absolutely essential. We might as well not bother with the Bill if we have to wait for months after a detection takes place to collect statements and have them submitted and examined by the Director of Public Prosecution's office with all the excessive delays that take place in that office. Why in Heaven's name can it not be left to a local Garda station with a local inspector, superintendent or chief superintendent who sends his detectives out and discovers this material, to decide that there is an obvious case for a prosecution under the Act? These people are trained in this line of business. Gardaí of a much lesser rank than inspector bring and initiate important prosecutions in serious matters so why is a prosecution under this Act being hived off into such a special category that the Director of Public Prosecutions alone is given the right to authorise the bringing of prosecutions? There is no logical reason for it.
We regard this as a most important matter. It is a compromise even as it is worded because it could well be argued with force — and I would be very sensitive to the argument — that even a private prosecution should be possible. There may be cases where the Garda, let alone the Director of Public Prosecutions, may not be induced to bother to issue a prosecution while a person who was a member of a group affected may be so minded as to issue a prosecution, as can be done, for a wide range of serious offences. Why not in this case? I find it difficult to see that the Minister can find fault with leaving the responsibility with an inspector of the Garda Síochána or a superintendent or a chief superintendent. The reason for that escapes me and I cannot imagine what it would be. This matter is important. I look forward to hearing the Minister's comment on this aspect and to what I hope will be his acceptance of the amendment.
I wish to oppose as strongly as possible the provision in the Bill that all prosecutions to be initiated under this Bill can only be taken with the consent of the Director of Public Prosecutions. The first principle is that in law every citizen should have the right of recourse to the courts including the right of recourse to initiate a criminal prosecution if he or she believes such an offence has been committed and the prosecution so warrants it. That is the general principle of law as it exists. It is a matter of history that we have ascribed to the person so acting the title "common informer". It has been established in law that a member of the Garda Síochána, above and beyond acting on behalf of the Director of Public Prosecutions, is acting in the capacity, as may be all other citizens, as common informers with the right of prosecution in their name before the courts.
We must remember that the police force is a relatively new institution in the development of civilisation. In the early nineteenth century the Bow Street Runners appeared for the first time and the concept of a community relying on a police force to regulate their affairs entered into it. Since then it has been the rare occasion on which we have restricted the right of a citizen to initiate criminal prosecutions.
The Minister has instanced two similar provisions that exist at present. One relates to the Criminal Law (Jurisdiction) Act and the other is in the context of extradition. I can understand fully that in the extra-territorial inter-State type of proceedings it may be necessary, in the best policy of Government and inter-Government arrangements, to allow for the office of the Director of Public Prosecutions to be consulted as an absolute necessity prior to a prosecution. There are other instances which do not take away from the general principles.
The second important principle of law that applies in this area is that even if the proceedings are initiated by a private citizen in the District Court, should the District Court, by whatever device, move the proceedings on to the Circuit Court or the High Court, the proceedings are taken over by that court, the indictment is laid by the Director of Public Prosecutions, and the matter is then out of the hands of the private citizen. I have no quibble with or objection to that principle either. It is important to remember that the private citizen should have access to the District Court to initiate whatever proceedings he or she believes should be initiated. There have been instances in which that right has been abused and the District Court can deal with those matters very quickly, expeditiously and effectively. There is no case to be made that the citizenry at large abuse that right. It is an important protection and one that we in this House should be very slow to move from. We should be particularly slow to move from it in the context of this Bill and what it is proposing to do.
It is proposing, among other things, to give protections to minorities; to people who are in a minority by reason of their religion, by reason of their race, their nationality, their sexual orientation or the fact that they could possibly be construed as members of the travelling community. The very people who may find difficulty in convincing an official in the office of the Director of Public Prosecutions that an infringement of the Act has been committed against them may well have difficulty in convincing an inspector, or other higher officer of the Garda Síochána that an offence has been committed against them. The whole essence of this is the protection against incitement to hatred of minority groups within our community. We have to think very carefully about this. It is generally accepted that the Garda Síochána, particularly those in the higher ranks would reflect a conservative view of society. I have no particular criticism of that. That is, perhaps, the way the order of things breaks down in what is predominantly a conservative community. I am, however, seriously concerned about a member of the travelling community, for example, who may feel aggrieved about some act done out of hatred or lack of regard for him or her and goes to a Garda station in a locality where he or she might not be known, seeking to convince a Garda officer that a crime has been committed and that proceedings should be initiated. It may well be that the Garda officer will take up the case and submit the file to the office of the Director of Public Prosecutions but there must be a fundamental right of persons from the minority sections of the community to have direct access to the office of the local District Court, to take out a summons, have it served and let a judge decide in open hearing whether a crime has been committed. It is wrong to allow these decisions to be arrived at in the office of the Director of Public Prosecutions or the office of any inspector or higher officer.
If the Minister persists in maintaining this provision, I will certainly support Deputy Taylor's suggestion as the second best. I would ask the Minister to withdraw his amendment in its entirely and allow the matter to stand. We are talking here about the initiations of proceedings. If, for any reason, they go beyond hearing in the District Court then as a matter of general principle the matter becomes exclusively one for the office of the DPP. The right to initiate proceedings, particularly in the context of this legislation, must be available to the individual who must be able to go into the court office and ask the clerk to issue a summons.
I have listened with some surprise to the attitude expressed by Deputy McCartan in his tirade against the Garda Síochána. I fail to understand why he cannot accept that the function of the Garda Síochána is to protect the community. Listening to Deputy McCartan one would think that the duties of the Garda Síochána, from the Commissioner down, were to engage in behaviour against the community rather than to protect it.
That is not to say that I am happy with the Minister's amendment. Deputy Taylor has taken a compromise position which is worth some consideration. If we had a free-for-all, we would be opening up this legislation to actions of a very frivolous nature which would make it somewhat farcical. I have every confidence that the members of the Garda Síochána will at all times investigate any complaint made by an individual or group within the community.
The nub of the argument relating to the Minister's amendment is the amount of resources which the Department of Justice will make available to the Director of Public Prosecutions to make sure he can deal adequately with any references under this Bill. I have not had an opportunity of looking at the little booklet produced earlier today which has reference to the office of the DPP. Perhaps the Minister can confirm that he has increased the allocation quite substantially to allow the DPP to engage in the functions for which he was appointed. There is merit in Deputy Taylor's amendment but if the office of the DPP had the necessary resources there would not be the backlog of complaints which Deputy Taylor fears. I should be interested to hear certain assurances from the Minister in that regard.
These are the last moments we have to speak on this legislation. We in Fine Gael welcome it and believe it will go a long way towards tackling various problems. We have ample evidence of racial bigotry, discrimination and prejudice. This is the first legislation to tackle it and we hope to follow it up at a later stage with a comprehensive anti-discrimination Bill to cover the inadequacies mentioned in this House and in the Seanad. I thank the Minister for his amendments earlier in the debate.
The DPP has been consulted about this legislation and is happy that he will have no difficulty in coping with any extra burden that may arise.
Section 8 provides that the authority of the Director of Public Prosecutions is required for a prosecution for any offence under sections 2, 3 or 4. In accordance with amendment No. 8, this will be subject to the usual qualification permitting the exercise of the ordinary powers of arrest, charge and remand in appropriate cases.
This provision was criticised on Committee Stage on the grounds that the office of the DPP was already overworked and speed was of the essence; and that members of the garda of the rank of Inspector or above have more than a sufficient degree of responsibility to ensure that a proper prosecution would be brought and that frivolous and unnecessary prosecutions would not be authorised by them.
Of course I accept that latter point — the argument about frivolous and mischievous prosecutions mainly has force in the context of private prosecutions where I would be concerned about the courts being used to settle personal squabbles. However, I am just as concerned as a matter of policy that there is a consistent policy as to the prosecutions taken under this Act. This is a special kind of legislation. For an offence to be committed there need be no violence, no robbery or no discord between any groups in society. An offence can be committed through something being said or written about a group of persons — not a single person where the laws of defamation would be relevant — but a group. Deputy McCartan was referring to individuals, not groups. Built into any such offences is the potential for the creation of martyrs or heroes and also a disrespect for the Act if different prosecution policies in different parts of the country lead to confusion in people's minds about the Act. Therefore, I have no doubt that it is right to confer this responsibility on the DPP in this section.
Because the amendment to amendment No. 8, if accepted, would conflict with that policy, I cannot accept it.
Are Deputies Taylor and Kavanagh pressing their amendment?
Yes.
Amendment put:
The Dáil divided: Tá, 21; Níl, 67.
Amendment declared lost.
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Níl |
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Ahern, Bertie.Ahern, Dermot.Ahern, Michael.Aylward, Liam.Barrett, Michael.Brady, Gerard.Brady, Vincent.Brennan, Mattie.Brennan, Séamus.Briscoe, Ben.Browne, John (Wexford).Burke, Raphael P.Calleary, Seán.Callely, Ivor.Clohessy, Peadar.Connolly, Ger.Coughlan, Mary Theresa.Cowen, Brian.Cullimore, Séamus.Daly, Brendan.Davern, Noel.Dempsey, Noel.Dennehy, John.de Valera, Síle.Ellis, John.Fahey, Frank.Fitzgerald, Liam Joseph.Fitzpatrick, Dermot.Flood, Chris.Gallagher, Pat the Cope.Hilliard, Colm.Hyland, Liam.Jacob, Joe.Kelly, Laurence. |
Kenneally, Brendan.Kitt, Michael P.Kitt, Tom.Lowlor, Liam.Leonard, Jimmy.Lyons, Denis.Martin, Micheál.McCreevy, Charlie.McDaid, Jim.McEllistrim, TomMolloy, Robert.Morley, P.J.Nolan, M.J.Noonan, Michael J.(Limerick West).O'Connell, John.O'Dea, Willie.O'Donoghue, John.O'Hanlon, Rory.O'Keeffe, Ned.O'Kennedy, Michael.O'Leary, John.O'Malley, Desmond J.O'Rourke, Mary.O'Toole, Martin Joe.Quill, Máirín.Roche, Dick.Smith, Michael.Stafford, John.Treacy, Noel.Tunney, Jim.Wallace, Mary.Walsh, Joe.Woods, Michael. |
An Leas-Ceann Comhairle
There has been agreement that we now proceed with the final requirements of the Bill before the House. I understand the Government side have also agreed that whatever time is lost in so doing will be deducted from the Government's Private Members time.
Is that agreed? Agreed.
Amendment No. 8 agreed to.
An Leas-Ceann Comhairle
Amendment No. 8a has already been discussed.
I move amendment No. 8a:
In page 9, to delete lines 19 and 20 and substitute the following:
"12. (1) This Act may be cited as the Prohibition of Incitement to Hatred Act, 1989.".
Amendment agreed to.
Amendment No. 9 not moved.