Seanad Éireann debate -
Wednesday, 30 Nov 1988

Vol. 121 No. 9

Prohibition of Incitement to Racial, Religious or National Hatred Bill, 1988: Committee Stage (Resumed).

Debate resumed on amendment No. 4:

In page 3, subsection (3), line 36, after "origins" to add "or their status as members of the travelling community or sexual orientation".

—(Senator Norris.)

Minister for Justice (Mr. Collins)

So far as the travelling community are concerned, I would point out that it is extremely difficult to find a watertight legal definition for this group. It is quite often claimed by the travelling community that their ethnic origins are separate from those of the rest of the community. So far as this is true, the travelling people are already covered in the Bill which refers inter alia to hatred against any group of persons in the State on account of their ethnic origins. In so far as sexual orientation is concerned, I would refer to the very wide ambit of the term which would cover, I presume, not merely heterosexuals and homosexuals as commonly understood but also to groups of varying and divergent sexual preferences. There are many social groups who might claim to be disadvantaged and to be particularly vulnerable to abusive or insulting words or behaviour. It appears to me that it would not be logical to select for special reference particular groups such as those referred to in these amendments without making specific reference also to all other groups who could claim to be disadvantaged. It is clear that this would broaden the ambit of the Bill to an impossible extent and tend to create a new general category of criminal offence, something which is not the intention in this legislation.

We have looked, in so far as that was possible, at what other ratifying states have done by way of legislation to implement these particular provisions in the covenant and the racial discrimination convention. So far as we can find, legislation in most countries does not extend beyond the categories referred to in the United Nations instrument, apart from some Scandinavian countries where the legislation referred, in addition, to sexual orientation. In Northern Ireland, for example, the relevant legislation does not go beyond the categories listed in the United Nations Covenant and Convention.

I would point out to Senators that this legislation breaks new ground. It is an area in which it is particularly difficult to frame penal provisions with the precision which is essential when we are creating new criminal offences. The ambit of this legislation is already very wide, as will be seen from the very broad categories covered in the definition of hatred. It would be clearly desirable to see how this legislation works in practice before adding references to particular social groups to the list contained in the UN Covenant and Convention, and already reflected in the Bill.

Mr. Norris

Regretfully, I have to say that I find the Minister's response devastatingly inadequate, devastatingly inadequate. On this occasion, there is absolutely no excuse for this. I find it offensive. The Minister has had long notice — and the Minister's advisers also — that this kind of material would arise. I am glad that, unlike in the previous debate, they now appear to be aware of the situation in the Scandinavian countries. I also made it clear that it is not just in the Scandinavian countries. Sexual orientation is added as a matter of course in a number of jurisdictions, including a number of the states in the United States of America and in Australia. Greenland can afford to do it. I wonder why this information appears not to have been taken on board. There seems to be some inexplicable hesitation here on the part of the Minister and his advisers.

I am very glad — I will flatter the Minister by saying that I am not at all surprised — that he does not condone the kind of material that I produced. I would hardly expect the Minister to condone productions of the Nazi party. That does not help me. It is perfectly appropriate for the Minister to say this but I would like some action. I have been on the receiving end of a bombing attack. Clear incitement exists to hatred. The Minister is not prepared to do anything whatever about it. He is prepared to protect racial minorities. I would like to point out to the Minister that Ireland is not floating in Zulus or Greenlanders. We do not even have a large Jewish population. We have about two or three thousand Jewish people. The Minister is quite happy to protect them. What is the problem? There seems to be a problem. It is a problem that worries me because the Minister knows well that there has already been a judgment in the European Court of Human Rights that the attitude enshrined in law and supported by this Government, and presumably supported by the Department of Justice is contravention of human rights. Here is a golden opportunity to demonstrate to our European partners, and to make clear at the next meeting of the Council of Ministers that we are serious about rectifying this. There is no such seriousness whatever in the Minister's response, none whatever. I find it absolutely lamentable.

An Cathaoirleach

We cannot have repetition again. We had this debate before the Minister made his contribution. All I ask is that we do not have repetition. You can make the case over and over again, but not a repeat. This is for all Senators — do not repeat the earlier cases made.

Mr. Norris

I take the Cathaoirleach's point. I do not wish to be tedious or filibustering, but the point that I have just made is that we do not suffer at the moment, thank God, from a really critical situation with regard to racial minorities but we do have a critical situation with regard to the gay community. What is the point in addressing a hypothetical situation that may be dozens of years down the road and we hope to God that it never arises. We conspicuously fail to address the situation that does and has affected people, including people in this Chamber.

I would also like to say that I sympathise with the Minister as a recipient of hate mail. I really do, but that was not the point I was raising. I would not consider it appropriate to come to this House and say "I got a nasty letter unsigned". I am talking about publication of a circular. Now that is a radically different thing and I am surprised that the Minister and his advisers do not appear to have taken this simple point on board. I make it. It is not repetition, a Chathaoirligh. It is an important, simple point that has not at all been addressed.

The Minister said that this kind of thing — which he deplored, and I am glad, of course, that he did — was subject to the criminal law. I do not accept that for one minute. Not only that, but if that is true it is also true, logically by extension, of similar productions inciting people to hatred on the grounds of race. The Minister is trying to have two totally contradictory arguments in place simultaneously. Either this legislation is not necessary or it is necessary for broader categories. One of these categories has been clearly indicated as being necessary by me, by a number of other parliaments — I instance the Dutch Parliament — very clearly making this point. They changed the Constitution but the Minister is not prepared to take this on board.

I wonder if the Minister and his advisers are aware of the report presented to the European Parliament by Mrs. Vera Squarcialupi? Could I just perhaps ask that question and return to it afterwards? Is the Minister and his advisers aware of the report presented to the European Parliament by Mrs. Vera Squarcialupi?

Mr. Collins

Perhaps the Senator will appreciate we have a copy of the report but we are not in the position to discuss the contents of the report as of now.

Mr. Norris

Perhaps I could ask for further clarification? Why?

An Cathaoirleach

Does it arise on the amendments here?

Mr. Norris

It very clearly arises. I will explain why when the Minister and his advisers explain to me that they are apparently unaware of it.

Mr. Collins

I think the Senator makes his own case. I will make my own case as well. That is the normal way of doing business.

Mr. Norris

I am asking if a very important instrument dealing with this area has come to the attention of the Minister and his advisers? He very clearly placed on the record of this House that he had made extensive investigations. It would be most remarkable if this report has not come to his attention. It will illustrate for me perfectly the gross inadequacies of the response.

An Cathaoirleach

Is the amendment withdrawn?

Mr. Norris

No, the amendment is not withdrawn.

An Cathaoirleach

The question is: "That the amendment be made."

Mr. Norris

I have not finished speaking. I really do regret this. I had asked the Minister a question.

Mr. Collins

I want to say that that report is in the office and that report has been looked at.

Mr. Norris

The contents of it have not obviously been taken on board. I will certainly make it my business to acquaint the European Parliament with the attitude in this matter. I find it quite astonishing that there should have been no mention of this and such an inadequate response to the Squarcialupi report, which is an extremely important response and should have been taken into account. It is a quite disastrous gap. The Minister says that he is aware of this report. He is obviously not taking on board to see its conclusions, or what is said in this report and I find that extremely regrettable.

I may also in this House say that I hear a great deal about human rights and so on. I speak here as a sober, responsible citizen of good background, in good standing, in good professional standing, held in esteem by my colleagues, I like to think. There are only a few things that set me apart. One of them is that I have an unusual number of friends who have actually been murdered, attacked, beaten and harassed and I find it quite difficult to understand how the Minister and his advisers in a Department of Justice are apparently unwilling to do anything about the situation. They have been invited in the most courteous way to do so. I produced precedents, not just from Europe but from all over the world, and yet the response continues to be inadequate. There have been clear violations of which this Government have been found guilty of human rights, and still there is no movement whatever on this.

The Minister raised another question that will be of interest. He referred to restrictions and claimed that the restrictions are necessary in order to be in concert with certain international instruments. I would like to point out that in fact the legislation as proposed is more restrictive than the international instruments to which the Minister referred. The international covenant on civil and political rights, for example, provides that the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any grounds such as — and a whole series are listed —"or other status."

An Cathaoirleach

How does that relate to the definition of hatred?

Mr. Norris

It relates to the definition of hatred because it illustrates the difficulties another Parliament got into in defining hatred — precisely the difficulties the Minister appears to have experienced. They found a way round it. I have proposed a way round it, but the Minister has some difficulty in accepting this. There appears to be a reluctance to protect particular minorities. I can only find this lamentable and I want it on the record.

I would have to say that what we are debating here is certainly an historic Bill. It is an historic and important instrument. It must be said that what will pass here tonight is not something that is going to be just useful next week or of interest to tomorrow's newspapers. It is something that will be examined and scrutinised in 30, 40 or 50 years' time when the parsimoniousness with democracy and the niggardliness with justice that I refer to as a possible consequence of this disastrous limitation in the Bill will be very explicitly clear to historians. It will pass as a shameful day in this House.

Mr. J. O'Toole

There are two opposing interpretations of hatred. It is unfortunate that we have now found ourselves so polarised on an issue where everybody is going into consideration of this legislation — both the Minister and ourselves — with precisely the same objective. In other words, it is proposed to make it illegal in this country to incite hatred against any particular group. The difficulty that has arisen at this stage is that as the section is written, hatred is interpreted and defined as being hatred against a group of persons in the State on account of their race, colour, nationality, religion or ethnic or national origins.

The argument we are putting here from both the Independent benches and the Opposition benches this afternoon, is simply this. We are saying that does not cover two groups of people. It does not cover the travelling community and it does not cover the sexual orientation clauses referred to by Senator Norris. If everybody sets out to achieve the same objective, there must surely be some middle ground in which it can be achieved. In other words, there is apparently no difference in principle in what the Minister is saying and what we are saying here. We have proposed an amendment, the amendment being that the two items be added to the definition. The Minister, on the other hand, claims that the word "ethnic" would allow a court to interpret the Act as being appropriate for use where people were being incited to hate a group because of their sexual orientation or because they were members of the travelling community.

We have to look at the facts in the case. There are two facts here. First of all, the Minister has said in the debate that the law could be interpreted in that way. If it can be interpreted in that way, then it is important because it can be referred to in a court of law. If it comes to an interpretation in five or six years' time I have no doubt that a lawyer would pick up the debate and say that the Minister at the time indicated that this legislation could be used in cases where groups are being incited to hate travellers, members of the gay community or people by virtue of their sexual orientation. The Minister should put that clearly on the record.

However, that is not the law. It can be used as an argument in court, but as we all know it does not give direction to the judge. Therefore, what we have suggested is that the two groups be named — the two groups being named by virtue of sexual orientation or being the travelling community. The Minister says that by doing that you begin to exclude other people. He mentioned that there could be various groups who would not be covered and that, therefore, what we propose as a solution could create difficulties down the line. If that is the case the Minister is saying that the form of words is wrong but if there is a will to deal with it, and if the form of words is incorrect, surely we can sit down and find a form of words? The form of words would be along the lines Senator Norris mentioned when he spoke about the phrase "or other status". They would have to prove themselves in court to be of some particular status or group and they could therefore, come within the context of the legislation.

There is a matter of principle here. Those of us committed to various philosophies on this issue would have to be seen on the record as opposing it. I do not think anyone wants to divide the House on an issue if we all can achieve the same purpose. How can we achieve the same purpose if the Minister is saying that our words or the various amendments there do not do the business? Let us come up with a new form of words. I would like to hear the Minister's view on that before we go any further.

Mr. Collins

I appreciate what Senator O'Toole is trying to do here in trying to find middle ground. None of us wants divisions if they can possibly be avoided. The word "hatred" means hatred against a group of persons in the State on account of their race, colour, nationality, religion, ethnic or national origins. These particular words are specifically required of us for the purpose of ratifying the Convention on Racial Discrimination and the Covenant on Civil and Political Rights. It is because of this specific requirement on us that they are there.

Mr. Norris

May I correct the Minister on a matter——

An Cathoirleach

Before we start again, I beg that we avoid repetition. Get the middle ground, and let us move on.

Mr. Norris

I am a teacher, and I know that unfortunately there are certain instances when the only way to get a point across is by repetition. I have made this point already.

An Cathaoirleach

That is fine, but there are rules for me as well.

Mr. Norris

Can I point out that it would be very unfortunate if the record of the House clearly demonstrated that the point had not apparently got across? The Minister has once again cited the International Covenant on Political and Civil Rights. I have pointed out to him that the Bill as proposed is narrower because it excludes the words "or other status".

Could I put on the record as well something that was said in a previous contribution by the Minister addressing precisely this section? Perhaps this is some slightly inexpert information that has come by some odd means to his disposal, and I would like to dispose of it, that is that sexual orientation can mean all kinds of other things, that it is a vague legal term. I am very pleased to be in a position to tell the Minister that that is not the case and I am sure he will be glad to know that that is not the case. That is not fact. Sexual orientation clauses have a very honourable tradition. Jurisdictions in Canada, Greenland, etc. have lists of them — I will not list them because I would be guilty of repetition. They have no difficulty in understanding clearly that it does not mean all kinds of very odd, peculiar forms of sexual behaviour; in other words, it has a tradition defined by case law. That is quite clear. There is no necessity to have any further problems at all with this.

I would like to say also that it is an astonishing admission from the Minister that he is concerned that if we mention these additional groups other groups may have to be mentioned as well. That raises a very interesting situation. Why did the Minister mention any groups at all?

Mr. Collins

For the simple reason that it is required by the Convention. If the Senator reads the article of the Convention I am trying to comply with he will see what I am getting at.

Mr. Norris

The Minister has not included all the categories involved.

Mr. Collins

To be helpful to Senator Norris, Article 20 (2) of the Convention reads: "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law". It is there in black and white. There is no mention of sexual orientation in it.

Mr. J. O'Toole

The point here is that also in the instrument at some stage it adds the words "or other status". I am not saying that that would be an acceptable way to either side of the argument here at the moment. Could I press the Minister on it? He has given a rational explanation as to why he has used these particular words in that those are the ones written in the instrument. Also in that instrument — I think it is in Article 26 — they add the words "or other status". I do not know if that would satisfy our needs here but it would certainly progress the argument a lot. Would the Minister accept the addition of those three words to it? It is important that we find a solution to this.

Mr. Collins

In an effort to be helpful to Senator O'Toole, what he is quoting from there when he mentions "or other status" is in Article 26, but Article 20 stands on its own. Article 26 is not related to it as such.

Mr. J. O'Toole

I accept that point. All I am saying is that we have a problem here we are trying to resolve. The Minister has said that he has picked the particular words out of it so that he can ratify the covenant and be seen to respond to the demands of the covenant, line by line and word by word. It seems to me that he can do that and avoid what he considers to be the trap of extending it further because he feels that that could be exclusive in the long term by taking the words from Article 26 of the International Covenant on Civil and Political Rights, and those words are "or other status". It would then read: "...means hatred against a group of people in the State on account of race, colour, nationality, religion, ethnic or national origins or other status".

It seems to me that meets two difficulties. The original difficulty the Department had on it was that it had to be defined in some way, and that here you put into it people of a certain status. "Or other status" certainly allows legal proceedings to be undertaken on that basis. I ask the Minister to consider taking it on board. Would that not cover everything? The wording is from an international covenant. I could not see it creating a problem.

Mr. Collins

In reply to Senator O'Toole, I would like to say that the Attorney General's committee who examined this document at great length went very carefully over the point he is now making. It was before them for consideration. They came down in favour of the formula of words I am using and the approach which I have adopted.

An Cathaoirleach

Is the amendment withdrawn?

Mr. Norris

No. I would like to tease it out a little more. I would like first of all to refer to these totally spurious difficulties with the phrase "sexual orientation". Is the Minister or are his advisers quite serious in this implied criticism of a colleague in the Cabinet, Deputy Mac-Sharry, who experienced no such difficulty in issuing a directive to the Civil Service?

Mr. Collins

I have never publicly criticised a Cabinet colleague in my life.

Mr. Norris

The art of survival is certainly one in which the Minister is clearly practised. All I am looking for is some assistance from the Minister — and his advisers of course — so that I should be allowed to survive untouched by the kind of squalid propaganda that will undoubtedly succeed in passing the test in this legislation. I would have to say that at last we are getting down to it and this is why the Seanad is such a useful place — and I am sure the Cathaoirleach will agree with this — that we are tonight fufilling the function of the Seanad, we are teasing through the show, the panoply of morality, this great show that we are doing something wonderful in this country: we are not. The Minister is saying, "Well, we are doing the least possible to meet our international obligations and we are not going to do any more". We are going to make the smallest possible little bit of begruding movement in order to bring us into line with certain international obligations and if this is what the Minister's advisers are suggesting that he should do, then I think this is very bad. If this is the Minister's approach to justice I wonder if he is happy in that job.

An Cathaoirleach

There is a vote in the other House and I am going to release the Minister for that vote, whatever it is for. Will we break for a sos, Minister?

Mr. Collins

First, I can say to Senator Norris and to every Senator and citizen in the country that if any person is threatened with arson, as Senator Norris said he was, if he is threatened in any way, he has the same protection under the criminal law as anybody has, irrespective of what his own personal and private views are about any particular matter. So, there is no question of him being left defenceless, as it were, because of the fact that there is not a specific reference in what we are doing here to sexual orientation. It is very wrong to assume that and to try to give that impression. That is not so. The Senator has the same protection as any other Member of this House and everybody here would want no less than that for him.

There was mention of other states taking sexual orientation on board. Most states ratifying the convention make no special mention of sexual orientation. I said that before and I say it again because I feel it is necessary to do so. Again there is a difficulty in that the phrase "sexual orientation" is not defined and its ambit would be very wide, covering not merely heterosexuals and homosexuals but others of divergent sexual preference and the question of statutory provisions in regard to homosexual acts, which was also mentioned, is under urgent examination following the recent Strasburg judgment. This also has been said before. The position of homosexuals would be more appropriate for discussion in that context and we certainly do not want to prejudge it in this Bill, any more than we have done. I feel that that more than adequately answers the case that is being made there. I feel that there is not any need whatsoever, for reasons already stated, for specific reference to sexual orientation, or to travellers, in the Bill. I believe that this is already provided for in the definitions and if there were to be specific reference made to, say, travellers or to sexual orientation I am sure somebody could make a case for special reference to the homeless or the disabled or the unemployed or some other group, but I do not think it is necessary because they are all covered as it is. I hope that the Senator will take that in good faith. It is there. Nobody is doing anything in any way to offend Senator Norris. We are complying with the requirements.

Mr. Norris

Perhaps the Minister will allow me to be the judge of whether I am offended or not.

Mr. Collins

Of course. The Senator will have to allow me to give my view on the same ground and that I am giving.

An Cathaoirleach

Is it agreed that the sitting be suspended until the Dáil vote is over?

Agreed.

Sitting suspended at 8.35 p.m. and resumed at 8.45 p.m.

An Cathaoirleach

Had the Minister concluded?

Mr. Collins

I have dealt with the points that were raised. A serious examination is taking place within the Department of Justice at present about the recent judgments in the case taken by Senator Norris. As it should be it is being undertaken in a serious manner. I would not be pleased if the Senator thought that this would not be given the attention it merits and deserves. It will. When that examination is completed I will be in a position to formally make proposals to Government. I will do that and nobody will deter me from doing it. I have a responsibility for doing that, and I shall do it.

Mr. Norris

I welcome this statement from the Minister and I hope that in the light of what he has said I can take it as an assurance that what was done in the North of Ireland, which was a very bad idea in that they just reached for what, in the Northern context, appeared to be the nearest available British precedent which is now out of date and has been unsatisfactory, will not be done by the Minister. That would be a very slipshod approach. I welcome the Minister's announcement and I am sure he will take on board submissions from persons who are interested in this area so that we can all approach the legislation in a very positive light.

Mr. Collins

I would have pleasure in welcoming any submissions on the subject that will be helpful to us in our deliberations. We will not be guided by or slavishly follow any legislation in Northern Ireland or anywhere else. We have an issue to deal with and we will deal with it in our own right having regard to our own circumstances.

Mr. B. Ryan

This is a point that is not repetitious. The Minister has laid great emphasis on the fact that this Bill is necessary in order to ratify certain international conventions and has argued that it will be difficult to change the wording of the section we are attempting to amend, not necessarily exclusively, but amongst other reasons because of the fact that we are attempting to ratify the international convention.

I understood that if we were ratifying an international convention it should have been published as a schedule to the Bill, and in that way the full wording of the convention would be inserted in the Bill. Where we have an international convention inserted as a schedule, the schedule cannot be amended because it is the convention. Since we have chosen a different route to amend it, I cannot see why the Minister is laying such emphasis on the precise wording. If it were the schedule then we could not amend but it is not the schedule and therefore one of the consequences of this will be to ratify the international convention. The other consequences are not necessarily and exclusively the ratification of the convention. Therefore, if we are doing two things, as we are clearly doing because it is not just ratifying legislation, we should be able to extend or clarify the intent of the Bill. That is what the whole discussion is about.

Mr. Ross

I do not want to delay the House further. I want, first to put on record that I fully support everything which has been said in favour of this amendment. I cannot understand a couple of things about this amendment. One is, I cannot understand what all the fuss is about. It seems so obvious that if a particular group like the travellers or the gay community has a sense of grievance and has a sense that it needs the protection of this Bill, the easiest thing in the world for the Minister to do is just to say "yes." What makes me suspicious about the discussion this evening is the great resistance on the Government benches to this amendment. It seems that there is just no reason for the resistance. The easiest thing for the Minister to say is "Yes, of course we will allow this. We do not wish in any way that hatred should be incited against the homosexual people or against people of any particular sexual orientation or against the travelling community." It is the resistance to this particular motion which makes me suspicious.

Let me be completely honest about it. The controversial area of this motion is homosexuality and the gay community. The travellers, while their case is absolutely unanswerable, are not quite so controversial a topic. It seems that the Government and politicians in this House as a whole have not quite come to terms with people from different sexual orientation, as it is so politely called in this Bill. I am not sure what other different sexual orientations there are besides homosexuality and heterosexuality but I do feel that we are running away from a problem which we have run away from for far too long. Senator Norris has got an impeccable, unimpeachable record on this issue and the Government have not. Remember this Government and the former Government resisted his case in the Court of Human Rights.

An Cathaoirleach

With the greatest respect, we are now having repetition. All this has been said in the debate for the last two hours.

Mr. Ross

The Chair will have to bear with me because I was not here and to most of it I have to admit I was not listening.

An Cathaoirleach

Repetition is repetition.

Mr. Ross

The Chair will have to tell me when I am repeating myself because I will not be aware of it not having listened.

An Cathaoirleach

That is what I have been telling the Senators.

Mr. Ross

Yes, it may be repetition because I have not listened to the debate either on the monitor or in the House. I become very suspicious when the Government resist this type of amendment because it seems that when someone who is so well qualified to speak on it as Senator Norris and he feels so strongly about it, the case is unanswerable. It is only correct that if we are privileged to have Senator Norris in the House giving his views on something like this they should neither be ignored nor dismissed. It is contemptuous and wrong for anyone in this House to dismiss something like this when we have someone who is qualified to speak on it, speaking in front of us. I do not believe the Minister's explanation when he said it is covered by other legislation elsewhere.

An Cathaoirleach

How do you know this if you did not listen?

Mr. Ross

Sorry, I said I did not hear all the debate. If you were listening to me you would have heard that. What I do find difficult is the Minister's explanation that it is covered by other legislation because there is obviously a sense amongst these two groups that they need the protection of this legislation. That is why it is important — and not the Minister's view so much as the view of the people who feel it. I am disappointed because it could have been totally uncontroversial for the Minister and the Government to say "Yes, that is a reasonable amendment; these people do feel that; we will take it on board". I just think we have not grown up enough yet as a nation to be able to accept this sort of thing. The resistance to this amendment I find particularly disappointing.

An Cathaoirleach

Is the amendment withdrawn?

Mr. Norris

No, I am afraid it is not——

An Cathaoirleach

The question is that the——

Mr. Norris

Sorry, a Chathaoirligh, you invited me to continue and that is what I was attempting to do. Among the questions raised was a particularly important technical question. It addresses the heart of the issue and was raised by Senator Brendan Ryan. I certainly, as a Senator, feel I am entitled to an explanation because a spurious case has been made and the spuriousness of this case has been demonstrated by Senator Ryan. If the intention of this legislation is simply to give effect to an international treaty, then that treaty should form part of the Bill. That is normal practice. It does not do that. So, the Minister's arguments or the arguments of his advisers, fall once again.

I would also like to raise a further question with regard to this. It seems we are dealing with a very important area. We are protecting against a hypothetical situation with regard to certain groups and so on. It is interesting that the two groups that I put down complete a trio. We are not long from the anniversary of Kristallnacht. We all know the sensitivities that were exposed on that occasion, the sensitivities of a community who will be specifically protected by this legislation on the basis of radical or ethnic minorities. I speak of the Jewish community. I am foolishly optimistic when I assume that the Minister and his advisers are aware that Nazi Germany has a specific legal policy discriminating against three groups in particular — Jewish, homosexual and gypsies, who are the equivalent of the travellers. Those are three groups linked historically as a prime target for fascist aggression and propaganda and incitement to hatred.

One of the reasons given for this Bill was to be able to inhibit publications for fascist groups in this country. Under this legislation we can do part of that but we quite clearly cannot do more than one-third of it. We can protect the Jewish community and it is right and proper that we should do so. We cannot protect the travelling people and we cannot protect the gay community. I remind the Minister of a very famous saying by a Germany citizen of repute, after the war: "When they came for the Jews, I did nothing and was silent. When they came for the homosexuals, I did nothing and was silent. When they came for the gypsies, I did nothing and was silent. When they came for me, there was nobody left to protest".

This is a situation in which the inadequate provisions of this Bill and the poor advice that is being received, place two-thirds of that trio. I ask urgently that something be done about it. I cannot, in logic, accept the Minister's bland statement that the kind of odious material to which the attention of the House is being drawn is covered by the criminal law. If it is, then the case of racial and religious minorities is also covered. These questions that I have put to the Minister have simply not been addressed at all.

On the question of legislation against discrimination with regard to prohibited acts — I am speaking here of verbal discrimination — public anti-homesexual insults are prohibited in Norway, Denmark, Greenland and Sweden. In the Netherlands it has been proposed to make such remarks illegal. In Belgium it has been proposed to make anti-homosexual insults in commercial advertising illegal. Anti-homosexual incitement to hatred, discrimination or violence is prohibited in Norway. It is also forbidden in France. In Belgium and the Netherlands it is currently proposed to extend the provisions of the law in this area. What is the problem here?

I have indicated clearly to the Minister and his advisers that from the obdurate refusal to take on board these amendments a clear indication will emerge to people, whether intended or not, that it is all right to attack the gay community. This may not be the Minister's intention but I am at the cutting edge of this and have been for a long time and I can tell the Minister what the impact of this debate will be. A refusal to take on board these amendments will lead to consequences. There is absolutely no point in locking the stable door after the horse has bolted. Suppose I am done to death. I have been the subject of a number of physical attacks, not just the bombing attacks which I referred to. I have been subjected to notices being placed on the Hirschfeld Centre and subjected to concrete blocks being thrown at the door of the Centre from time to time. I do not want to highlight these matters because I do not wish to appear paranoid and I do not want to give public encouragement to these crimes. Sometimes the more one speaks about these matters the more copycats one gets. I am very hesitant about doing this.

I have indicated to the Minister that these things have happened in the past and that there is a clear example of incitement. It will not be good enough, supposing somebody is killed — whether it be myself or somebody else — at that point hypocritically to introduce some measure of protection. It must be done now. It will be seen internationally, and I will make sure that it will be seen internationally, that a bad night's work has been done here tonight if there is not some acknowledgement. Various vise mediae have been proposed and examined. We will be putting down amendments on Report Stage to cover this area. The Minister has shown flexibility on other items but there has not been one atom of movement on this item and I must wonder why.

Mr. Collins

Senator Ryan asked about attaching the convenant to the Schedule to the Bill. The covenant is quite a bulky document. It covers matters such as cruel and inhuman punishment, slavery, forced labour, arrest and detention, defects in relation to prison law, imprisonment, contractual law in relation to aliens' legislation, criminal procedure, compensation for miscarriage of justice, acts not an offence at the time of commission, right to privacy, freedom of religion, freedom of expression, national, racial and religious hatred, war propaganda, and so on. There is quite a long list and it would be impossible to attach it to the Schedule. Bear in mind that the only three lines we have taken from the covenant are the three in article 20 (2):

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence should be prohibited by law.

They are the only three lines that are relevant in this instance. The categories to be covered were discussed at length in the relevant United Nations forum when the covenant was being drafted. The conclusion was, as is evident from Article 20 of the covenant, that what was required to be penalised essentially was incitement on grounds of race, nationality or religion. Once one begins to add to that group the list becomes open-ended and we would certainly end up with a new general category of offence in the criminal law. In their combined wisdom, the national representatives who drafted this provision in the UN covenant obviously did not believe this to be necessary, nor do I believe that it is necessary in our circumstances.

Senator Norris has spoken about incidents where people have attacked him, thrown blocks at him and have tried to set places on fire. These are all covered under ordinary criminal law and he has as much protection as any other citizen. Nobody is taking any protection from him.

I know that Senator Ross does not agree with me and I am not going to try to twist his arm, except to say that I covered the point he raised at least three or four times before he came into the Chamber. I understand that people may not always be free to be where they want to be at any time. That happens to me very often also. In my view there is no justification for not covering other disadvantaged groups. If we start singling out any one or two groups it would become open-ended. No other legislation ratifying the covenant covers any specific group, such as travellers or anybody else. I am satisfied that we are totally complying with the requirements that are necessary and that we are doing everything that is requested of us to sign and ratify as soon as possible.

An Cathaoirleach

Is the amendment withdrawn? The question is——

Mr. Ross

I wish to speak. Is the Committee Stage being declared finished or is it not? I want to know if I am being silenced.

An Cathaoirleach

No. No repetition.

Mr. Ross

You will have to pick me up on that because, like others, I have not attended the whole debate and I will not know if I am repeating points already made.

An Cathaoirleach

I will keep you informed as you go on.

Mr. Ross

It is impossible, as can be seen from the numbers here, for everybody to attend for every minute of every debate. I apologise to the House that I have not been present for the entire debate but I am in company with many Members on the Government and Opposition benches in that.

I understand the Minister's point but we should make one or two points in reply. I have never been convinced by the argument, which is made continually in this House, that we are doing just as well as everybody else is doing overseas. We had it last week from the Minister of State at the Department of Foreign Affairs who quoted various measures which the Government were taking in concert with other people but going no further. The Minister tonight, quite naturally following the normal procedure in this House, said that we are doing exactly the same as is being done in other countries. I accept that as an argument but not as an adequate argument. It appears, from what I have heard of this debate, that there is a crying need in this country, of all countries, to lift the veil of discrimination against people of a different sexual orientation to heterosexuality. It is important here because other countries who are subject to the European Court of Human Rights do not have the same laws discriminating against people of different sexual orientation. There may be some way out of this. If they have the protection of the law and if we are to be in line with our European partners and with civilised nations overseas, will the Minister take the action asked of him by the European Court of Human Rights? That would relieve some of the anxiety I have about this Bill.

Mr. Collins

I have already dealt with that. I have already explained to the House what I am doing in that regard.

Mr. Ross

I apologise. I hope it is satisfactory. The Minister says that the Bill would be open-ended if we included these groups. I do not accept that it would be open-ended, but I suspect that there are other groups beyond these two which also require the protection of this Bill. I see nothing wrong with that. I see nothing wrong in the sort of presentations made from other groups looking for the protection of this Bill. If a case is made, let us accept it. Let us not say it is not accepted in other countries.

If a case is made, as Senator Norris has made today, I do not understand why the Minister should not say yes. I do not understand why he should not say yes to the travellers and to several other groups who feel that they need the protection of this Bill. I really do not see what is wrong with it being open-ended. I do not see what is wrong with it spreading much wider. I do not want to stand here and just represent the travellers and those of different sexual orientation. I would like to see other minority groups being protected by the Minister and I do not think his argument holds water.

Mr. Norris

I should like to refer to a couple of matters and perhaps the Minister could then comment. I am very sorry that this confusion over the question of the employment of the sexual orientation clauses is apparently persisting in the mind of the Minister and his advisers. I should like to put another quotation on the record of the House from a report to the Commissioner for Human Rights:

In some countries "sexual orientation" has been included in existing anti-discrimination provisions in ordinary legislation. Such legislation makes it easier to challenge cases of discrimination in court or before special bodies such as "equal opportunities commissions". The national criminal laws of Norway, France, Sweden, Denmark and Greenland now contain prohibitions of certain forms of anti-homosexual discrimination. Provisions against anti-homosexual discriminination have also been enacted in some Canadian provinces, Australian and USA states and in several North American and European cities.

Such provisions have also been enacted, as the Minister is unquestionably aware, in the District of Columbia in Washington. The report continues:

But even in these countries and parts of countries many forms of discrimination are not specifically forbidden.

An Leas-Chathaoirleach

I am loth to interrupt the Senator but have those points not already been made?

Mr. Norris

This is an area in which I have some competence. I may point out that I perhaps know more about this than anybody else in the House. Some elements of that argument have been read. This is a different quotation because I think it is useful to know. Certain elements in that quotation are entirely novel to the debate and they make the point very clearly. Sexual orientation clauses are not the awful bogey that the Minister and his advisers are so patently terrified of.

I should like to make another point. The Minister is totally disingenuous. I am aware of the situation with regard to United Nations protocols. I make it my business to be aware of these things. I am sure the Minister and his advisers are also aware of the fact that international organisations like the United Nations have particular problems. They are complex entities. They have to satisfy a variety of different cultural, political, ethnic and racial elements in their composition. It is exceedingly difficult to get protection of women, for example, in certain instances, such as female circumcision and so on. The Minister is undoubtedly aware of this because of the reluctance of certain countries. What happens in that circumstance is that domestic jurisdictions are always in advance. Is the Minister inviting Ireland to be backward? I would be quite astonished if the Minister was demanding that Ireland remain everlastingly at the rear of social advance. Perhaps that is what he is saying. Perhaps he could illuminate us on this. May I point out that it would be utterly unrealistic to expect a huge body to go in advance of domestic parliaments. Domestic parliaments have signalled the way. I have illustrated a growing trend. I am inviting the Minister to join what is clearly a European trend. The Minister is hiding behind, where I do not know. Is it Togo or Iraq?

An Leas-Chathaoirleach

We cannot have a wide-ranging Second Stage debate on these fairly narrow amendments.

Mr. Norris

I am addressing the substance of the amendment. I am trying to illustrate why the Minister's argument is completely false. I believe the Minister is probably aware of this. I would also like to draw to the Minister's attention that there has been a long battle on the subject of homosexuality with the World Health Organisation precisely for this reason, because there is still a classification of homosexuality as a disease. That is on the point of being removed, despite the complexity. I would like the Minister to be aware of the trend even in major international bodies with regard to this particular matter.

I mentioned the Squarcialupi report. There was a certain amount of consternation, as the Minister will remember, which I found rather intriguing. It is a principal document that ought to be well known. The reply that we eventually extracted was that this book was in the office. Shades of James Joyce and the moment in "A Portrait of the Artist as a Young Man" when they were discussing who was the greatest poet. Heron says "Lord Tennyson is the greatest poet", and Boland, the class dunce, says "Oh, yes, Tennyson, we have all his poetry at home in a book", which did not indicate that he knew very much about the substance of it.

An Leas-Chathaoirleach

That is all very interesting but the Senator will have to relate it to the amendments under discussion. We cannot have a Second Reading speech all over again. Could the Senator address the amendments before the House?

Mr. Norris

I will be very happy to do that. I hope that the Squarcialupi report will be placed on the recommended reading list of the Department of Justice because it is about time it was perused. We all must have respect for the European Parliament and its institutions and I would like to feel that a debate on these important provisions was fully informed. We owe it to ourselves as a people, to our own honour and dignity, not just to have a squalid rushing through of something to bring us into line with the smallest, meanest little bit of movement possible. There is a kind of political arthritis developing.

Mr. Collins

I have already dealt with the points raised by Senator Ross. I think I have probably dealt with them on at least two occasions during the course of the debate this evening. This Bill does not deal with acts of discrimination. I want to repeat that because that question will arise in relation to the racial discrimination convention which is now being studied by the interdepartmental committee that his being chaired by the Attorney General's office. This Bill deals with one aspect only, that of incitement to hatred. I think I have answered the other points more than once. If the Senator wants to score points off me at this late stage he is welcome to do so.

An Leas-Chathaoirleach

Is the amendment withdrawn.

Mr. Norris

No.

Amendment put.

The Committee divided: Tá, 13; Níl, 18.

Tá

• Bradford, Paul.
• Bulbulia, Katharine.
• Connor, John.
• Cregan, Denis.
• Ferris, Michael.
• Kelleher, Peter.
• Kennedy, Patrick.
• Manning, Maurice.
• Norris, David.
• O'Callaghan, Vivian.
• O'Shea, Brian.
• O'Toole, Joe.
• Ross, Shane P. N.

Níl

• Byrne, Seán.
• Cullimore, Seamus.
• Doherty, Michael.
• Eogan, George.
• Hussey, Thomas.
• Lanigan, Mick.
• Lydon, Donal.
• McEllistrim, Tom.
• McGowan, Patrick.
• Fitzgerald, Tom.
• Fitzsimons, Jack.
• Haughey, Seán F.
• Hillery, Brian.
• Mullooly, Brian.
• Mulroy, Jimmy.
• O'Callaghan, Vivian.
• Ryan, William.
• Wallace, Mary.

Tellers: Tá, Senators Ross and Norris; Níl, Senators W. Ryan and S. Haughey.

Amendment declared lost.

Amendments Nos. 5 and 6 not moved.

Section 2 agreed to.

SECTION 3.

Amendments Nos. 7 to 9, inclusive, not moved.

Section 3 agreed to.

SECTION 4.

Amendments Nos. 10 to 12, inclusive, not moved.

Section 4 agreed to.

SECTION 5.

Mr. J. O'Toole

I move amendment No. 13:

In page 6, line 40, after "House", to insert "or committee".

It is just a technical matter to cover not just the proceedings of the House but the proceedings of committees of the House. It makes it doubly sure. I am not going to make a speech.

Mr. Collins

I accept the amendment.

Amendment agreed to.

Section 5, as amended, agreed to.

Sections 6 and 7 agreed to.

SECTION 8.

Question proposed: "That section 8 stand part of the Bill."

Mr. B. Ryan

The Minister is in benevolent humour this evening in many ways. Could he explain to me and perhaps to the House the precise significance of section 8? Why is it necessary? Is it to prevent private prosecutions been taken or what is the precise import of section 8?

Mr. Collins

The effect of section 8 is that proceedings for an offence committed under sections 2, 3 and 4 may not be instituted except where the consent of the Director of Public Prosecutions has been obtained, or the proceedings have been instituted by him. The purpose of this provision is to ensure that trivial or mischievous proceedings which might bring the law into disrepute are not brought and to ensure that where prosecutions are brought the evidence is sufficient to justify the proceedings. The powers of arrest given to the Garda Síochána in section 10 are specifically excluded from the proceedings referred to in this section, as are such persons on remand in custody or on bail, following such an arrest as the court may think necessary. This means that the consent of DPP will not be necessary for such arrests or remands.

Question put and agreed to.

Sections 9 to 12, inclusive, agreed to.

Title agreed to.

Bill reported with amendment.

Agreed to take remaining Stages today.