There are amendments to Report Stage.
Prohibition of Incitement to Racial, Religious or National Hatred Bill, 1988: Report and Final Stages.
I move amendment No. 1:
In page 2, between lines 18 and 19, to insert:
"‘ethnic origins' means origins which have resulted in a group having, social, cultural, religious or linguistic characteristics".
Is that the same amendment that was on Committee Stage?
It is the same amendment that I withdrew on Committee Stage. I would not claim to know the rules of the House as well you, a Chathaoirligh, but I know them fairly well.
The reason I move this amendment is mostly because I wanted an opportunity to record my dissatisfaction with the approach taken by the Minister. I think there is a failure to appreciate the need for this legislation to apply to minority groups that are characteristic of our society and that would not be covered clearly by the Bill as it stands, and in particular the need for the Oireachtas to make a clear statement of intent about how it views incitement to hatred, in particular, against members of the travelling community.
I accept that it is not the intention of either the Minister or the Government that this Bill should be seen as not being wholehearted in attempting to abolish incitment to hatred against travellers. We are not in the business of attributing motives and I am not going to do that. What is quite clear is a failure on a grand scale of comprehension of the depth of fear and the depth of intensity of concern of the travelling people about what is allowed to be said about them, what is often said by public representatives and indeed sometimes even by Members of the Oireachtas about them. This Bill could have been and should have been used as a clear signal from the Oireachtas that this was no longer tolerable.
The Minister says, and I accept, that it is quite possible to interpret the Bill in a way which would make it clear that the Bill could be used to prevent incitement to hatred of members of the travelling community, but from the point of view of the officers of the law whose duty it is in the first case to gather evidence and to enforce the law, a signal that this Bill included groups other than people who are visibly groups in the conventional sense of the word, and in particular the travelling community, would have been a most useful contribution to the enlightenment of public opinion.
I regret that perhaps because a lack of information, perhaps vision — perhaps even though I doubt it a failure in the quality of my own arguments — the Minister has not been persuaded. I put this amendment down for discussion to offer the Minister the opportunity to put it clearly and firmly on the record that he accepts, even if he does not accept my definition, that ethnic origins means in principle something very similar to the definition I have offered.
An Leas-Chathaoirleach
Is the amendment seconded?
I formally second it.
The case made by Senator Ryan is similar to the case made by him during the course of Committee Stage. In prohibiting incitement to racial hatred this Bill seeks to implement a provision of Article 20 of the United Nations Covenant on Civil and Political Rights. The term "ethnic origins" does not occur in that article. In the Bill the term "ethnic origins" is included in the definition of hatred because the Bill is intended to cover also the corresponding provisions of Article 4 of the UN Convention against Racial Discrimination.
The Convention against Racial Discrimination uses the term "ethnic origins" but does not define it. The implementing legislation in ratifying states does not appear to have defined the term. It is not defined, for example, in the relative statutory provisions in Northern Ireland or in the UK; in Britain, France, Netherlands, West Germany, it has been left to the courts of ratifying states to define the precise meaning of this term in case law.
I have already mentioned that in England in the House of Lords the 1983 cases of Mandla v. Lee said that the term “ethnic” in section 3 of the Race Relations Act of 1976, was to be construed relatively widely in a broad cultural and historical sense. The judgment said that for a group to constitute an ethnic group for the purpose of that Act two characteristics were essential. First, the group had to have a very long shared history and, second, it had to have a cultural tradition of its own. The judgment went on to say that other characteristics could be relevant in deciding whether a group could be regarded as an ethnic group. The other characteristics included (a) common geographical origin; (b) a common language; (c) a common literature; (d) a common religion and (e) the characteristic of being a minority in a larger community.
It should be clear from this that in deciding in a particular case whether a group is an ethnic group or has common ethnic origins for the purposes of legislation of this kind, many factors have to be taken into account. Because of this, it would not be appropriate to attempt to tie the hands of the court by adopting a rigid statutory definition of the term.
Senator Ryan has suggested that we define ethnic origins as meaning origins which have resulted in a group having certain common characteristics. It could well be argued that in most cases such common characteristics would result not merely from the origins of the group but from all the influences which were brought to bear on the group from the time when it could be said that they had a common origin. Accordingly, the proposed definition could possibly serve to restrict the meaning of the term "ethnic origins" and, as I have said already, might very well result in excluding from the Bill some groups which would otherwise be covered.
In my view it is best to leave it to the courts to work out in case law the precise ambit of the term "ethnic origins". If, as has happened in Britain, the term is construed widely by the courts in a broad cultural and historic sense we can be confident of a liberal interpretation of this term. We can also be confident that it will be interpreted with precision by the courts in the light of developing knowledge of the history and background of any groups in our society who could be said to be ethnically separate from the majority community.
I thought for a minute that the Minister was going to reprimand me for introducing an amendment that had been discussed on Committee Stage again on Report Stage but I felt that the Minister would not do that; considering recent history it would not be entirely appropriate.
There is another House for that debate too, and we will have the pleasure of many long hours of discussion on that one.
This Minister has introduced a considerable amount of legislation in this House and that is a welcome fact.
I have another Bill ready.
I have it in my possession. I said I wanted to clarify the matter. The failure that still bothers me is the fact that there is no guidance to those who have to enforce the law about the possible areas of application of the term "ethnic origins". They will have to use their own instincts about it. That is both unsatisfactory and a little too optimistic to believe and that is what concerns me. I accept that the courts will ultimately have the final job of deciding what the term "ethnic origins" means but before the courts make a decision somebody will have to be charged before them and to do that somebody will have to interpret incitement to hatred against a group which is not covered by the other terms "national", "racial", "religious", etc. For somebody to do that somebody will have to understand what the phrase "ethnic origins" means.
It would be better if the Minister would give further thought to the need to have some interpretation of this in the Bill to guide the minds of those who are supposed to be implementing this legislation. It is not a matter for the court; it is a matter of getting the issue started, getting the ball rolling. Having said that, I do not propose to push the vote and I would like to withdraw the amendment.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach
Amendments Nos. 2, 3 and 4 are similar and may be discussed together.
I move amendment No. 2:
In page 3, line 36, after "origins" to add "or other status."
This is an attempt by Senators Ryan, Ross and myself to be helpful and constructive. We do not intend to take up an enormous amount of time, to be difficult or to filibuster in any way. I am sure the Minister will agree that this is an attempt to meet precisely the arguments the Minister raised. By including after "origins" the phrase "or other status" we are meeting the difficulties that the Minister appeared to be experiencing, meeting the reservations of those of us on this side of the House and ensuring that this is a Bill with which we can all agree.
The embarrassing phrase "sexual orientation" does not occur in it at all; it is "or other status". The Minister indicated in what he said that this was the direction in which his natural drift would lead him in framing legislation. We are really genuinely trying to be helpful by producing a situation in which both sides are met and there is an accommodation.
The Minister has graciously accepted other amendments and it would be certainly incomprehensible to me if there was a substantial reason found why this broad phrase which has been used in other countries was found to be unacceptable. I hope the Minister will be able to accept this amendment in a very positive way and then we will have the great pleasure of rapidly passing the Bill from Report Stage into law.
On a political point, the arguments have all been made and it is nobody's intention to draw out the debate but we have taken this debate a long way this evening. The Bill has been teased out admirably and it has been a good debate. As the previous speaker said, what we are doing here is an attempt to find the middle ground. We have discussed this with many people over the last couple of days and I want to say to the Minister that I have not found anyone who disagrees with our point of view, and that includes people from his own side of the House. In all honesty, that is the position.
I have not the slightest doubt in my mind that when the Bill goes to the other House the same debate will take place all over again. It seems to me that it would harden the Bill up significantly, it would facilitate the passage through the other House by accepting these three words to the Bill at this stage. It is not our determination to be obstructive in any way but we feel that it strengthens the Bill, it facilitates its passage into legislation and we appeal to the Minister to accept this amendment.
The effect of these amendments would be to broaden to an unlimited extent the categories covered by the Bill. It would leave the word "status" undefined and this word in legal documents commonly refers to such things as marital status which is of no relevance in this Bill. This Bill is intended to cover only those categories listed in the United Nations instruments which are already very wide. This amendment, in my view, would very probably be found by the parliamentary draftsman to be invalid and void because of uncertainty and I very much regret that I cannot be more helpful and positive in my approach to the amendment because of that.
In deference to the dignity and procedures of the House I am not going to call a vote on this but I wish to place on the record my dissent from the entire Bill. I understand I am joined in this by my colleagues Senator B. Ryan and Senator Ross. I have to say that because of the unprecedented attitudes that have been displayed here this evening it is now my intention to withdraw from the House as a protest. I will not vote on the Bill. I greatly regret that it is not in my power morally to vote for this half loaf. I regret very much that the Minister and his advisers have so conspicuously and so determinedly deprived me of the opportunity of voting for a genuine measure against incitement to hatred. Nobody who reads the record of this debate, and in particular the record of the way in which these amendments have been treated, will be left under any illusion that this was anything other than a sham.
An Leas-Chathaoirleach
Is the amendment withdrawn?
The amendment is not withdrawn.
Senator Norris withdrew from the Chamber.
Amendment put and declared lost.
Amendments Nos. 3 and 4 not moved.
Question, "That the Bill be received for final consideration" put and agreed to.
Question, "That the Bill do now pass" put and agreed to.
An Leas-Chathaoirleach
When is it proposed to sit again?
It is proposed to sit at 2.30 p.m. on Wednesday, 7 December 1988.