I welcome the opportunity to speak in this debate. I will deprive Deputy Ó Murchú of the pleasure of being the last speaker. I do not know if I would use the word "pleasure" at this point. In any event, I welcome the opportunity. There is a great need for this Bill. However, I must preface that by saying I still do not know anything about the date for amendments. It was raised in the Chamber when I was in my other role. I shared the concern about setting the date for the amendments before Second Stage. I am still not clear. I understand the time has passed. If it has passed, that is not a way to deal with legislation. I want that on the record. Certainly nothing has been clarified to me in either role that I have. I am speaking now as a Deputy. To say that amendments should be in before the Second Stage debate is nothing short of shocking and unacceptable.
I thank the Minister for her speech. She set out how the Bill replaces and simplifies the provisions of the Prohibition of Incitement to Hatred Act 1989 by creating a core offence that will criminalise any intentional or reckless communication or behaviour that is likely to incite violence or hatred against a person or persons because they are associated with a protected characteristic. One could not but welcome that.
I am going to go through the background to the Bill as I see it and the issues. I will then describe the problematic aspects of the Bill and the reasons I have the most serious concerns. Although I want to support the Bill, and we need the Bill, because of the way it is being done I find myself in a position of not supporting it, which is very difficult for me. Deputy Mattie McGrath had particular opinions, I have particular opinions and other Deputies have theirs. That range of opinions in this Dáil alone brings into acute focus what the Minister and her Department have to deal with in terms of bringing forth legislation that is robust and that will protect vulnerable groups and people who suffer tremendously as a result of hate speech and hate crime, while at the same time ensuring freedom of expression. That is the part that is missing in the Minister's speech. It is the part that I find more than a little disappointing. This balancing of both sides has not been teased out.
Normally I am giving out about long speeches; while the Minister is to be complimented for her brevity, on this occasion I would really have liked the Department's and her thinking on how this very difficult situation has to be balanced. The right to freedom of expression is guaranteed by the Constitution and copper-fastened in various Supreme Court and High Court judgments as well as by EU and international instruments. Nowhere has that been balanced or teased out for me in the speech. Neither has it been teased out in the legislation, unfortunately, which is very problematic. I will come back to that section.
As usual I thank the staff in the Library and Research Service for their tremendous work under pressure. They have produced a detailed digest once again. It sets out that there are four Parts to the Bill, 36 sections and one Schedule. It has been said on the record here that there has been a thorough consultation. That is not accurate. There was prelegislative scrutiny on one day where people came in and made their submissions, in addition to written submissions. What has to be analysed here needs a lot more than one day. The one day was for the organisations or entities coming in before the committee. They gave detailed presentations and background. I have read as much as I can of it. I have read the submission from the Irish Human Rights and Equality Commission. I have read both submissions from the Irish Council for Civil Liberties. I have read some of the other contributions as quickly as I could.
All of the organisations welcome the legislation in respect of what it is setting out to do but have serious concerns about how it is being done. The Irish Human Rights and Equality Commission has a statutory mandate to keep under review the adequacy and effectiveness of law in practice in the State relating to the protection of human rights and to examine any legislative proposal and report its views on any implications for human rights or equality. This organisation has gone to great trouble in its 55-page submission to highlight its concerns. That was in respect of the Heads of the Bill. I know they have changed, some for the better, some not.
Its submission focused on the following matters, namely, "Balancing [which I have mentioned] the prohibition on discrimination and incitement to hatred with the right to freedom of expression; Addressing hate-motivated offences; and Policy measures [which have not been mentioned much at all in the discussion today] to respond to hate crime and incitement to hatred".
It talks about policy measures because as the Minister well knows, criminal law has to be a last resort. This is a last resort in our battle against hate crime and comments. We are looking at the last piece, which to me is not good enough without looking at a whole framework and policy, which every submission has asked for. The submission states: "Countering racism and hate speech is imperative to the building of acceptance of diversity and respect for the dignity of all persons." I come from Galway city and we have the distinction of being the most multicultural society in Ireland. Our percentage of population of non-Irish people is over 20%. It varies a tiny bit between 19% and 21%. IHREC states, "It is important to emphasise at this stage of the legislative process that this legislation is only one strand of the legislative and policy measures which the State is required to take" under our law, EU law and international law. It goes on to point out that this legislation: "should be complemented by a broad set of policy measures" and so on. I will skip a lot of that. It points out there are no specific hate crime offences in Irish law at present, as we are aware.
I want to go on to freedom of expression. The right to freedom of expression, as I have said, is protected under the Constitution as well as EU and international law. The European Court of Human Rights has found that the right is applicable, not only to information or ideas that are favourably received or regarded as offensive or as a matter of indifference but that it also applies to those that offend, shock or disturb the state or any sector of the population. It is difficult for all of us to accept that there is a right to offend, shock and disturb. None of us want to hear that but that is something that needs to be teased out. How do we allow for that and still not allow hatred or hate crime or not allow somebody to suffer as a result of that? The right to freedom of expression is not absolute. The UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression talks about a three-part test. We can restrict the right to freedom of expression because it is not absolute but we must do so in a careful manner. We do so provided by law, which is clear, unambiguous, precisely worded and accessible to everyone. Unfortunately this legislation does not do that and it is not clear, unambiguous and precise. The second point the UN special rapporteur makes is that such restrictions must be proven by the state as necessary and legitimate to protect the rights or reputation of others. Again there is a huge data gap on hate crime and hatred on the ground here, which I will come to if I have time. Third is that it must be proven by the state that the measures taken are the least restrictive and proportionate means required to achieve the purported aim. This legislation is not the least restrictive means; it is bringing in serious penalties and it is not proportionate. It is giving much more power to the Garda in search warrants and so on.
The UN Rabat plan, which goes back to 2012, subject to correction, implies, among other things, that restrictions are "clearly and narrowly defined and respond to a pressing social need". There is a pressing social need to stop hatred and hate crimes but they must be: "the least intrusive measure available... [or not] overly broad, [which this legislation is so] that they do not restrict speech in a wide or untargeted way". It plan states that only the "most severe" hate speech expression should meet the threshold of incitement to hatred. The UN special rapporteur has stated that only serious and extreme incidences of incitement to hatred, which would cross the threshold test, should be criminalised. There are many more comments from various European and international entities on getting that balance right and realising that it is a difficult area but none of that has been addressed in the Minister’s speech or in any of the documents, other than the submissions made by the various entities I have mentioned.
On the Bill itself, I have a serious problem with a definition of hatred that simply goes around in circles. What is hatred? Hatred means hatred against a person or a group. We are saying that hatred is simply hatred, therefore. I do not know what it means; perhaps the Government does. I do not know because I am not a judge and I do not know what a judge will make of that but there is no definition of hatred here. I understand that in the heads of Bill there was a more robust attempt to define hatred, which is now gone from the Bill.
I refer to the protected characteristics, which I welcome. There are ten of them, namely, race; colour; nationality; religion; national or ethnic origin, which covers Travellers; descent; gender; sex characteristics; sexual orientation, which I understand was added after the heads of Bill, which is welcome; and disability. Again IHREC points out that other categories are left out. I am not an expert and I am simply raising this in the manner that IHREC has raised it. Civil status, family status and age have not been included and I am not sure what the logic is for including some characteristics and excluding others. At what point can new entities or protected characteristics be put in? At what point can that happen? When we are debating legislation like this - and I have only given a selection of information on the importance of balancing rights - there is an onus to explain why we are including some characteristics and excluding others.
I move on to the repeal of the Prohibition of Incitement to Hatred Act 1989, which is very welcome. Why is it welcome? It is welcome because it simply did not work. That has been pointed out to us repeatedly. It has been pointed out that there were few prosecutions under that Act. Out of 44 prosecutions there were a minute number of convictions. The 1989 Act, which the Minister said was "ahead of its time", was a useless one. It did not do anything for anyone so how it can be called "ahead of its time" is beyond my comprehension.
I have a serious concern with the protection of freedom of expression provision in section 11. The only time the term "protection of freedom" appears is simply in the title of that section, "Protection of freedom of expression". Other organisations with vast experience and more knowledgeable than I have expressed serious concerns about this. One little section with the protection of freedom of expression in its title has simply been put in and this has been done in a negative manner. It states "For the purposes of this Part, any material or behaviour is not taken to incite violence or hatred against a person or a group of persons... solely on the basis that that material or behaviour includes or involves discussion or criticism of matters relating to a protected characteristic." This is not a strong protection of freedom of expression. When you go back to the provisions relating to events under section 7(3) it sets out various defences, either there or elsewhere, including: "a reasonable and genuine contribution to literary, artistic, political, scientific, religious or academic discourse" and so on. I agree with the ICCL and IHREC, if they made the point, that if we had a strong paragraph on the protection of freedom of expression, we would not need to be putting in these defences because they would come under the protection of freedom of expression. Now we have diminished the freedom of expression rather than doing the opposite.
I will move to the issue of presumption, which is a strong point. You are presumed innocent until proven guilty and 99% of the time the onus is on the prosecution to prove. We are reversing that and there is a presumption that has to be rebutted. We have done something similar in the legislation on tackling illegal smuggling, the title of which I forget. In that legislation we also reversed the onus of proof, which to me was shocking at the time. Now we are doing something similar in this Bill, which is a step too far for me.
I will move to search warrants and section 15 has to be fundamentally changed or taken out.
We cannot give that type of power to a district justice or anyone. I understand the general scheme of the Bill did not contain the provision. It reads: "If a judge of the District Court is satisfied by information on oath of a member that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an offence under section 7, 8 or 10 is to be found in any place, the judge may issue a warrant for the search of that place and any persons found at that place". The Bill also states that a named member can "enter, at any time within one week of the date of issue of the warrant, on production if so requested of the warrant, and if necessary by the use of reasonable force, the place named in the warrant". Have we learned nothing? I do not know how long we have spent learning to retrust the Garda. My first introduction to the Dáil was the O'Higgins report. I was nauseated reading what had happened in the McCabe case. I have read the Charlton report and the other reports. Have we learned nothing about giving almost absolute power to institutions like the Garda and the Dáil? I put myself in that category. Have we learned nothing?
The issue with amendments has been clarified. I welcome this legislation and I want to work with the Minister. This legislation is vital in a functioning democracy. We have heard the comments from the UN Secretary General which were referenced earlier on how freedom of speech is vital to democracy. Freedom from speech crime and hatred is also vital in a democracy. If we do not have freedom of speech, we do not have democracy. If there are people who are so terrified because they are the object or subject of hate speech, our democracy is in trouble. That is why a number of meetings of the Joint Oireachtas Committee on Justice would have been the most basic way of teasing out what we need in this legislation. There is no provision for a review. I was in the Chair yesterday and I heard a whole discussion on a review of a piece of legislation, the name of which eludes me at the moment. A review has been built into that legislation. Usually, the standard reply is that legislation is reviewed every year anyway. Last night-----
