I thank the Ceann Comhairle for facilitating the motion. I also thank the House. Yesterday, the Government approved my request to seek the House's approval to opt-in to this EU Commission proposal. The proposal seeks to extend the list of EU crimes under Article 83 of the Treaty on the Functioning of the European Union, TFEU, to include hate crime and hate speech by way of Council decision.
Hate crime is so corrosive of the social solidarity and mutual understanding we need between groups in this increasingly-diverse island. The Government has no hesitation in commending to the House the motion that we opt in. Opting in under Article 3 will allow us to be involved in the detailed discussions of this measure and help us to shape the final text.
Article 83(1) of the TFEU lays down an exhaustive list of areas of EU crimes whereby the European Parliament and the Council may establish minimum rules concerning the definition of "criminal offences and sanctions" applicable in all member states. A number or areas or crime are currently listed. Trafficking in human beings, illicit drug trafficking and organised crime are three examples. Article 83 also provides that, based on developments in crime, the Council may adopt a decision identifying other areas of particularly serious crime that have a cross-border nature, resulting from the nature or impact of such offences, or from a special need to combat them on a common basis. This is what the Commission is seeking to do in particular with this proposal. To develop a common approach to hate crime and hate speech at EU level, adoption of a Council decision to extend the list would be a first step to creating the necessary legal basis.
Opting in to this proposal demonstrates our commitment to tackling hate crime and hate speech, crimes which go against the very foundations of a democratic and inclusive society. These crimes undermine the fundamental rights and values upon which the Union itself is founded, in particular human dignity and equality. They cause harm not only to the individual victims but also to wider communities and society at large. I know sometimes there can be a tendency among those of us who have never known what it is like to be the target of hate crime or hate speech to think that these issues are not serious or that they are rare. Sadly, they are not as rare as we would like. In terms of impact on the people who are targeted, the effects can be very serious for them and for their communities.
Hate crimes target people on the basis of their innate characteristics - parts of their nature they cannot change. Hate speech is designed to silence people with these characteristics by making them afraid to speak out and to show who they are, where they come from or whom they love. There is nothing free about making people hide, making them afraid to go where other people go, or shutting them out from the basic freedoms we should all be able to enjoy.
An Garda Síochána has reported at national level on hate-based motivation for crime incidents in previous annual reports. The Garda Commissioner has said to me that An Garda Síochána fully accepts there is under-recording of hate-motivated crimes. As such, actions are under way to improve internal recording of crimes motivated by hate and to encourage more reporting by the public. This will enable the reporting of hate crime-related incidents and more accurate collation of data in future.
At European level, unfortunately, hate speech and hate crime are widespread across the Union and have been increasing over recent years. In particular, the Covid-19 pandemic has heightened the feelings of insecurity, isolation and fear. This has created an atmosphere in which hate speech has flourished while also being used to target already marginalised populations, also resulting in hate crime. Both crimes spread across national borders. Hate speech is easily reproduced and widely shared online through the Internet, including social media, and offline through television broadcasts, public events, written press and political speech. Hate crimes can be committed or facilitated by networks with members from several countries, who inspire, organise, or carry out physical attacks.
The 2008 Council framework decision on combating certain forms and expressions of racism and xenophobia by means of criminal law covers certain aspects of xenophobia and racism in respect of crime. Ireland gave notice of our compliance with this decision before the 2010 deadline for that instrument as it was in line with the Prohibition of Incitement to Hatred Act 1989. There is a need to effectively address hate speech and hate crime on other grounds beyond those covered by framework decision. Hate speech and hate crime on the grounds of sex, sexual orientation, age and disability have been identified in current EU strategies, namely the gender equality strategy, the LGBTIQ equality strategy and strategy for the rights of persons with disabilities. The current proposal from the Commission is designed to go further in terms of hate speech and hate crime as these, in its view, constitute serious matters within the scope of "particularly serious crime with a cross-border dimension", which should, therefore, be included in the list under Article 83(1).
Opting in would also be in line with work under way to improve our domestic response through the criminal justice (hate crime) Bill 2021 and the online safety and media regulation Bill. As the House knows, Ireland does not currently have any specific legislation to deal with hate crime. The only legislation in Ireland that deals with hate-based offences is the Prohibition of Incitement to Hatred Act 1989. Although incitement to hatred is an offence, it is difficult to prosecute and there have been very few convictions since its introduction. A hate motive is something that a judge can take into account as an aggravating factory, on a non-statutory basis, in sentencing for any crime.
The general scheme of the criminal justice (hate crime) Bill 2021 was published in April 2021. This new legislation, which will repeal the 1989 Act in its entirety, will create specific, hate-aggravated forms of existing offences that can be investigated, prosecuted and recorded as hate crimes. The Bill will also provide for new offences of incitement to hatred, which should prohibit deliberately or recklessly inciting hatred against a person or group of people due to their association with a protected characteristic, and displaying or distributing material inciting hatred. This will have relevance to online hate speech in particular. Following its publication, the general scheme was referred to the Oireachtas Joint Committee on Justice for pre-legislative scrutiny. This took place in November and the report is awaited. The Bill has also been referred to the Office of Parliamentary Counsel for drafting. I intend to publish the new hate crime Bill in the summer, subject to the committee's report of its deliberations.
In terms of hate speech online, the hate crime Bill will be supported by the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media's online safety and media regulation Bill, the general scheme of which was published in January. It addresses harmful content online as "material which is likely to have the effect of intimidating, threatening, humiliating or persecuting a person to which it pertains and which a reasonable person would conclude was the intention of its dissemination". The online safety and media regulation Bill will provide for the formation of a media commission, a component of which will be the online safety commissioner. The Bill will also provide for the preparation of online safety codes governing standards and practices to be observed by designated online services.
As the development of EU law in this area will have a direct impact on the amendment of our domestic law in this area, participation by the Department on the working groups, committees or other bodies at EU level that will formulate the proposed measures under Article 83 is essential to ensure Ireland's contributions to those proposals are provided from an early stage. It is also essential to ensure development of the forthcoming hate crime Bill is framed in light of developments at the EU level. We can take part at a later date but if we do not opt in in the first three months we cannot contribute to any change that may be necessary.
Members will have seen in the explanatory memorandum provided to the Library and Research Service by my Department that there is no expenditure associated with this proposal and that the Office of the Attorney General has advised that opting into the proposed decision does not, in itself, create any constitutional or legal issues for the State.
We have traditionally been very cautious about regulating hate speech. This is because any restrictions on speech are, of course, a very serious matter. I am committed to ensuring that the legislation we introduce domestically is completely in harmony with the very important right to freedom of expression we all enjoy. When we think of hate speech and our own freedoms, we should remember that there is nothing noble or free about hate speech. There are people who have been the victims of crime and attempts to sow hatred in our society. Any directives proposed as a result of the expansion of Article 83 to include hate crime and hate speech will need to be carefully examined in detail by my Department and the Attorney General, particularly if they raise questions with regard to freedom of expression. However, by opting in now, the State can be part of those detailed discussions in Brussels. We will have an opportunity to consider whether we should be included in any such new proposed directives that will follow because Protocol 21 will apply.
I reiterate that Ireland's involvement at the initial stages of the development of this proposal and other further legislative proposals brought forward by the commission under Article 83 is both prudent and necessary for us to be involved in detailed discussion on such measures. The French Presidency will take this proposal forward and we are eager to get a Council decision on this agreement within its term, which ends at the end of June. It is appropriate that we stand with the French Presidency as France is our nearest neighbour in the EU. We propose to support this proposal by opting in. I commend this motion to the House.