There are two main reasons for bringing forward this Bill. In the first place, it contains one of the two legislative measures to enable this country to ratify the United Nations Covenant on Civil and Political Rights. The second reason is that provisions in the Bill will enable legal action to be taken to deal with an abuse which has manifested itself here from time to time — that is, the preparation in this country of racist material for publication or distribution outside the State.
Since the requirements of the UN Covenant constitute one of the main reasons for the Bill, I think it would be appropriate if I said a few words about international developments in the area of human rights since the Second World War, as this will help to put the provisions of the Bill in their more general, international, context.
After the Second World War there were persons of vision who realised that one of the causes of the war had been the awful violations of basic human rights during the immediate pre-war period, which then continued throughout the six years of war. The persons realised that while human rights provisions were important for the individual they were also important for the future of mankind generally. Thus was born after the war the concept of an international law of human rights.
The first instruments in this new international law of human rights were the United Nations Charter and the Universal Declaration of Human Rights. As we all know, 1988 marks the 40th anniversary of the Universal Declaration. The Charter and the Universal Declaration were followed by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. In addition, in Europe, we have the European Convention on Human Rights and across the Atlantic there is the American Convention on Human Rights.
The International Covenant on Civil and Political Rights was adopted by the General Assembly of the United Nations on 16 December 1966 and most of it came into force on the 23 March 1976. It had been signed by this country in October 1973. There has been criticism here in Ireland of our delay in ratifying that instrument. Against that, I think it can be said that in general, this country has had a very good record on human rights. However, ratification of the Covenant by this country is a desirable objective, and one which I hope will soon be met, enabling us to meet our international obligations in this respect.
Experience has shown how important it is to maintain international standards in this area. I might refer in this connection to the Amnesty International Annual Report for 1988, which covers 135 countries and which refers to violations of human rights in many states, including some which have ratified this Convention. I am not referring to this report in any sense of self-righteousness, nor indeed am I pointing a finger anywhere in particular. I am simply stating a fact and making the point that there are citizens of quite a number of countries around the world who do not enjoy the rights and freedoms taken for granted in this country.
Before I come to the Bill itself, I would like to develop that point a little further and also to introduce a note of caution and realism in relation to the terms of this Bill. In this country we are essentially a homogeneous society. The demo-graphical development of the country has been heavily influenced by historic, economic and, indeed, geographical considerations. Despite our membership of the European Community and, therefore, our close relationship with a number of societies which are becoming increasingly multiracial, the racial structure of this country is unlikely to change significantly for some time to come. Because of this, the type of legislation we are now debating may not appear to have the same immediacy for us as for some other countries. I am not saying the occasional problem of racial incitement does not arise here — but when it does, it is almost always due to localised ignorance and fear rather than to any general sense of intolerance or hatred towards people of other races or religion. In those circumstances we have to be careful in enacting legislation not to appear to create problems where none previously existed. We must also be ready to meet the argument that this legislation interferes with the right to free speech merely in order to placate sections of international opinion. On balance, I feel that the legislation is worthy of consideration on its own merits, regardless of international obligations, and I would hope that comment on it, both inside and outside the House, will be moderate and balanced.
I come now to the immediate background to the Bill. In July 1983 an interdepartmental committee was set up, which was chaired from the Attorney General's Office, with terms of reference to examine Ireland's ratification of international covenants and conventions, and with particular reference to the area of human rights. The committee decided to examine first the problems involved in ratifying two UN Covenants — the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights — and to prepare a report on these two Covenants before proceeding to consider other international instruments. The committee issued a report on those two instruments in December 1984. Originally the committee had intended to consider also in that first report the International Convention on the Elimination of all forms of Racial Discrimination, but it quickly became apparent that the necessary detailed consideration would have unduly delayed the report.
The Universal Declaration of Human Rights in 1948 was regarded as a preliminary step in the area of human rights. The view was taken that there should be a more elaborate formulation of standards in instruments which would have undoubted legal force as treaties between the ratifying states. Thus, the two covenants were adopted and, as I have already said, entered into force in 1976. The fundamental difference between the two covenants, and the reason why two instruments rather than one were adopted, is that the objectives of the Economic, Social and Cultural Rights Covenant are to be achieved progressively, whereas immediate compliance is required in relation to the Civil and Political Rights Covenant. Therefore, before this country can ratify the Covenant on Civil and Political Rights, we have to incorporate into our legislation any measures, not already covered in that legislation, which are necessary for compliance with the covenant.
The interdepartmental committee identified two legislative changes which are necessary before ratification of the Covenant on Civil and Political Rights can take place. The first is the abolition of the death sentence for crimes committed by persons under 18 years of age. The second is legislation to give effect to the provision concerning incitement to hatred contained in Article 20, paragraph 2, of the covenant. Legislation to give effect to the first aspect is contained in the Child Care Bill, 1988, now before Dáil Éireann. The Bill now before us gives effect to the covenant provision regarding the prohibition of incitement to hatred. Accordingly, as soon as this Bill and the Child Care Bill become law, the way will become clear for this country to ratify the Covenant on Civil and Political Rights. It is intended at the same time to ratify the Covenant on Economic, Social and Cultural Rights. The interdepartmental committee concluded that no legislative action was necessary before the latter instrument was ratified by the State.
Before looking at the Bill itself, I would just like to add that the interdepartmental committee is still in existence and is at present considering what legislation, if any, may be necessary to enable this country to ratify the Convention on the Elimination of all Forms of Racial Discrimination. This is a major task, which will not be finished for some time. It is appropriate, therefore, to go ahead now with this Bill rather than delay it while awaiting a report from the committee on the question of legislation in relation to the Racial Discrimination Convention. I should point out in that connection that the Bill before us deals only with the question of incitement to hatred, which is covered in Article 20 of the covenant, and not with the general question of racial discrimination, which is dealt with in the Racial Discrimination Convention.
Article 20, paragraph 2, of the Covenant on Civil and Political Rights reads as follows:
Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
The Bill is intended to give effect to that provision. Deputies will notice that the definition of "hatred" at the end of sections 2, 3 and 4 in the Bill covers hatred against any group of persons on account of their colour and ethnic or national origins, as well as on grounds of their nationality, race or religion. One of the reasons for this is that it is desired to cover in this Bill the corresponding requirement contained in Article 4 of the Racial Discrimination Convention on the prohibition of incitement to racial hatred and incitement to racial discrimination. The term "racial discrimination" in that convention has reference to "race, colour, national or ethnic origin". Accordingly, the terms used in the definition of "hatred" in the present Bill will not only suffice in the context of the covenant but should also be wide enough to cover the corresponding provision in the convention.
Now to the content of the Bill itself. The provisions to implement the covenant requirement are essentially those in sections 2, 3 and 4 of the Bill. The most general of these provisions is section 2 which, Senators will note, covers not only written material and visual or sound recordings, but also words, behaviour or displays in public places or at public meetings which are intended to, or are likely to, stir up hatred on racist grounds or on any of the grounds set out in the definition of that term set out at the end of each of those sections. We have been largely free from this type of activity in this country and this section will provide a weapon to ensure that any manifestations of it can be appropriately dealt with.
Section 3 carries the principle of section 2 into the area of broadcasting, which in this context includes both sound broadcasting and television. Section 3 is a long section, much of which is taken up with the provision of defences for people involved in broadcasting against whom proceedings might be taken under the section, and also with giving power to the Garda to require the production of the relevant script or recording in appropriate cases.
Section 4 makes it an offence to prepare or possess material or recordings of a racist or otherwise offensive nature to be distributed or broadcast in the State or elsewhere. One of the objects of this section is to put a stop to a type of activity which has come to notice in this country from time to time — though not as often as is sometimes maintained — that is, the preparation here of material of a racist nature for distribution outside the State.
I should mention at this point that perhaps the most important general question which arose when the Bill was being prepared was the relationship between its provisions and the right to free expression of convictions and opinions guaranteed in Article 40 of the Constitution. The right to freedom of expression is also guaranteed by Article 19 of the covenant itself, and the question of the relationship between that provision and the prohibition of incitement to racial hatred in Article 20 was a live issue when the covenant was being prepared, as well as in the reviews of the working of the covenant which have taken place since then. The right to freedom of expression is not, of course, absolute. Under the Constitution that right is guaranteed subject to public order and morality and this qualification is echoed in Article 19 of the UN covenant.
The interdepartmental committee, to which I have already referred, in deciding that new legislation was necessary to meet this requirement in the covenant, noted that existing Irish legislation does not go as far as the provisions in paragraph 2 of Article 20 of the covenant, our existing legal prohibitions being confined to incitement to do acts which are in themselves criminal. The committee noted that this would undoubtedly cover many specific acts of incitement to violence, but not incitement to hostility or discrimination or, possibly, to violence in general, as distinct from incitement to commit a specific violent act. While the committee considered it appropriate, therefore, that legislation should be enacted to implement this provision in Article 20 of the covenant, they also pointed out that the simple creation of a criminal offence in the precise terms of the provision in the covenant would limit the honest expression of opinion in private and could make punishable a wide variety of utterances and publications which might not be considered serious enough to warrant criminal sanctions. They were of the view that it might be thought undesirable to permit a situation where private prosecutions of a trivial nature could be brought. They thought, accordingly, that it might, on detailed examination, be considered desirable to qualify the covenant provision to some extent in the necessary legislation.
It was in view of these considerations that the very general nature of the prohibition required by the covenant was qualified in the provisions now set out in sections 2, 3 and 4 of the Bill. These sections, as I have indicated, constitute the central provisions in this Bill — the remainder of the Bill being consequential and related to those provisions. I should mention a number of these other sections in particular. Section 6 is the penalties provisions. Section 8, which states that offences under sections 2, 3 and 4 may be instituted only by or with the consent of the Director of Public Prosecutions, is intended to obviate trivial or mischevious private prosecutions and to ensure that any prosecutions taken are well-based, and is in line with a recommendation made by the interdepartmental committee in this regard. Section 9 gives the Garda power, under warrant, to enter and search premises where there are reasonable grounds for suspecting that offending material or recordings are being kept, and also gives the Garda power to seize any such material or recording. Under section 10 the Garda are given powers to arrest without warrant in appropriate cases. It will be noted that this power of arrest extends to cases where inflammatory words or behaviour, which are racist or otherwise offending under the Bill, are used in public places or at public meetings. Section 11 gives the Court power to order the forfeiture and destruction or disposal of offending material following a conviction under sections 2, 3 or 4.
To sum up, therefore, this Bill is intended to meet the requirements of the UN Covenant on Civil and Political Rights regarding the prohibition of incitement to national, racial or religious hatred. In preparing the legislation we have borne in mind the corresponding provisions enacted in other countries, and we have had particular regard to the terms of the relevant legislation in Norhtern Ireland. I trust Senators will agree that this is a useful short measure which will enable us to ratify the UN Covenant and will enable us also to deal with any instances of incitement to national, racial or religious hatred that might manifest themselves in this country.
Before I conclude I should mention that a minor typographical error has crept into the text of the Bill in subsection (3) of section 3. That is near the top of page 4 in the text before the House. The phrase "(a) or (b) or subsection 2" at that point should read "paragraph (a) or (b) of subsection 2."
I commend the Bill to the House.
