I welcome the Minister, Deputy McEntee, to the Chamber. The floor is hers.
Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022: Second Stage
Question proposed: “That the Bill be now read a Second Time.”
It is good to be back. I am delighted to be here specifically to deal with this Bill. I thank Senators for attending this evening's debate. I am pleased to present this Bill and to have the opportunity to discuss it with Members of the Seanad. The Bill has obviously gone through the Dáil and it is important that we have an opportunity to discuss and debate in this Chamber.
Enactment of this Bill will deliver two important programme for Government commitments, first to introduce hate crime legislation for the first time in order to ensure that those who target victims because of their association with a particular characteristic are identified as perpetrators of hate crimes and second to repeal and update the Prohibition of Incitement to Hatred Act 1989 so that those who seek to encourage and incite hatred against minority and vulnerable groups can be prosecuted. Enactment will also ensure full transposition of an EU framework decision on combating certain forms and expressions of racism and xenophobia by means of criminal law.
The Ireland that we inhabit today is a diverse country that is increasingly open, welcoming and progressive. However, as with every society, there is a very small minority of people who target the most vulnerable amongst us purely because of a hatred of some inherent part of their identity. I know that every Member of this House recognises that hate speech and hate crime cause untold trauma for victims, their communities and our broader society. In fact, research shows that victims of hate crimes suffer significantly more distress than victims of other crimes. Such crimes are completely reprehensible and unacceptable. Yet, hate-based offences have become increasingly common in recent years. It often feels as though we take two steps forward and one step back.
An Garda Síochána reported a 29% increase in reported hate crimes in 2022 compared to the previous year. The most prevalent discriminatory motives for hate crimes last year were race, sexual orientation and nationality. We all know that June is Pride Month, and I had the pleasure of speaking at the launch of Navan Pride last night. This comes just after an appalling attack against a young member of the LGBT+ community in Navan, in my own county. What was clear last night is that the community has come together to say very clearly that members of the LGBT+ community should be entitled to live in a safe way in their own community and to love who they want to love. That was a very clear message last night.
Last year saw similar horrendous acts in Sligo, Dublin and Cork. The targeting of immigrants, people with disabilities and members of the Traveller community, simply because of who they are, is shocking and unfortunately tragically frequent. It is hard to believe that despite the increasing incidence of hate crime and general support from the public to criminalise such acts, Ireland does not have hate crime laws in place and will be one of the last countries in Europe to enact such legislation. That is why it is so important that we enact this Bill.
While we have had legislation in place against hate speech for almost 35 years, it has been ineffective, limited and largely discredited. We bear a responsibility as legislators to do our utmost to provide a safe, fair and inclusive country for all, reflecting the modem Ireland I spoke of earlier. The overwhelmingly positive passage of this Bill through the Dáil has made me very optimistic that the legislation is victim-centred, timely and clear in the protections it provides for those most seriously affected by hate crime and hate speech.
The Bill has been broadly welcomed across the political spectrum, as well as by the large and diverse array of representative organisations of these minority groups we are seeking to protect. While there has been much valuable and positive discussion and reflection since the Government announced its intention to legislate in this area, it has unfortunately also been subject to deliberate misinformation and distortion, including from fringe commentators and US-based social media personalities whom I do not need to mention. In framing our discussion in this House, I hope Members will keep in mind that the core purpose of developing this legislation is to ensure that vulnerable and minority communities can feel safe. That is the core aim of what we are setting out to achieve here. We must keep people safe. Nobody deserves to be targeted for the intrinsic and unchangeable characteristics of their identity. To do so is cowardly, callous, contemptuous and should be open to prosecution. The increase in hate crime is not limited to Ireland, but rather is a broader phenomenon globally. It is often fuelled and amplified by social media and the politicisation of certain media outlets that attempt to use the so-called "Culture Wars" to reach a wider audience.
The approach we have taken in developing this Bill has been to develop an evidence-based, fit-for-purpose and legally prudent approach to legislating for hate-based offences in Ireland, in line with EU and international good practice. The development of this legislation is underpinned by an extensive public consultation and research process that began in 2019. I counter any suggestion that this has been rushed by saying that it has been anything but. This included a short public survey, detailed written submissions, seven independently facilitated discussion workshops around the country and a series of meetings with stakeholder groups, civil society, academics, law enforcement professionals and other experts. The first-hand testimony and lived experiences that emerged from the facilitated workshops and meetings with various different victims' groups were particularly insightful for any of us who read through what was discussed. It was profound and in many instances it was devastating. There are people in this country who do not leave their houses because they are afraid. It provided much-needed awareness-raising of the true hostility faced by vulnerable and minority communities in Ireland. I have no qualms in standing up against those who criticise this Bill and those who say that hate speech and hate crimes do not exist in this country. That is simply not true. Most of those proclaiming the loudest do not seem to have taken the time to read the Bill or to understand that it does not seek to infringe on their rights to say offensive things. Nor do they seem to understand that hate speech is already a crime in Ireland.
This legislation was developed with the objective of providing that the individuals who target victims because of their association with a particular identity characteristic can be identified and prosecuted. This is a requirement of the EU framework decision that we must transpose. There has been some recent discussion - I might touch on some of the issues that have been raised and discussed in these Houses and in the public - around the terminology used in this legislation. Throughout its development, particular attention has been given to the persons, or groups of persons, designated under the protected characteristics as set out in section 3 of the Bill. These are race, colour, nationality, religion, national or ethnic origin, descent, gender, sex characteristics, sexual orientation and disability.
These protected characteristics, which underpin the legislation, were selected on the basis of the public consultation and submissions from key stakeholders. They are the characteristics most commonly targeted for hate-based offences in our country. The meaning given to these protected characteristics in the Bill is for the specific purpose of this legislation. We are not seeking to change existing statutory definitions, as some have claimed. This is specific to this legislation. Indeed, it is very common in legislation to have different meanings for terms in different Acts, depending on the specific purpose of the legislation in question. The meaning of "gender" as a protected characteristic in the Bill expressly provides for gender expression or identity in order to include transgender and non-binary persons. This is in line with international good practice and was a strong recommendation from stakeholders. Similarly, the addition of "sex characteristics" and "descent" as protected characteristics was to ensure that the Bill is as inclusive as possible; to include intersex persons and people of Jewish descent or mixed race, further to recommendations from minority communities.
During the Dáil debates, there was some discussion about defining "hatred" in the Bill. On the strong advice of the Office of the Attorney General - the former Attorney General at the beginning of this Government's term and the current Attorney General - we have not sought to limit the definition of the widely understood concept of "hatred" beyond its ordinary and everyday meaning. It is the definition which has been used by the courts, the Garda and the DPP. I am advised that defining it further at this juncture could risk prosecutions collapsing and victims being denied justice. Furthermore, it has been an established term on the Statute Book for several decades, as it carries over from the definition in the 1989 Act. In order to use different words, we simply have to try to describe what those different words mean, and that makes absolutely no sense. That Act, the 1989 Act, which will be repealed and replaced by this Bill, has been on the Statute Book for nearly 35 years. It has resulted in 50 convictions in this period; and many of these were successfully appealed. In updating our incitement or hate speech laws, we must recognise that there are individuals and groups that are deliberately, and recklessly, spreading hatred in our country without any regard for the people they are victimising.
However, I need to make it clear that no one has a right not to be offended. We are not saying we are going to legalise or criminalise somebody offending another person. That is not what is happening here. The right to freedom of expression and freedom of speech are vital rights in any democratic society, and I will defend them the same as anybody else. These rights are protected by the Irish Constitution and the European Convention on Human Rights. People have a right to express their convictions and opinions, no matter how unpopular they might be. People have a right to be divisive and argumentative, as we all are in here, much of the time. People have a right to offend others and to hold political opinions which are not the mainstream.
Section 11 explicitly provides protection for freedom of expression. This section provides that discussion or criticism of matters relating to a protected characteristic does not constitute incitement to hatred in and of itself. However, freedom of speech is not an absolute right. We have seen in other countries that words can result in violence and incitement to hatred. People do not have a right to shout "fire" in a crowded room. They do not have a right to make defamatory statements, and they do not have a right to incite hatred or violence against individuals. When a communication incites hatred or violence against others, a very clear line is crossed and such behaviour must be dealt with through effective, and prosecutable, legal recourse. The incitement offences that currently exist under the 1989 Act are being updated to encompass any communication or behaviour that intentionally or recklessly incites hatred or violence, so that they can be prosecuted more effectively. This is not about lowering any bar, it is about updating legislation that already exists. The key change here is that we are simplifying the core incitement offence and setting the standard at recklessly or intentionally inciting hatred. "Recklessness" is a very common feature in criminal law already. This means a person must either have deliberately set out to incite hatred or violence, or knew that what they were doing would incite hatred or violence, and did it anyway. This is the change that is happening. This is already on the Statute Book but we are now including "recklessness" as part of that. While it is still very challenging to prove, including recklessness as part of this offence was widely welcomed during the pre-legislative scrutiny process. It is hoped that it will contribute to more effective implementation of this legislation in comparison with the existing Act.
It is a lesser offence to prepare or possess material such as posters or leaflets, which is intended, or is likely, to incite violence or hatred, even if the material has not yet been shared or made public. However there would have to be evidence that the person intended that this material would be made public in order to secure a conviction. This provision has attracted a lot of attention, with claims that it equates hate speech to "thought crime". However, the provisions on possessing material are an exact replica of what is in the 1989 Act, so what we are talking about here is not new. I wish to make it clear that this provision only applies in cases where an individual has a very clear intention to disseminate harmful material that would stir up violence or hatred. This would need to be proven in court beyond a reasonable doubt. The provision is being carried over from the 1989 Act, so it is not new. It is intended to cover situations where material might be intercepted before it is communicated; for example in the case of a person travelling to a far-right rally with posters expressly inciting hatred or violence in a car or backpack. We have this measure already in place and a huge number of cases have not been brought.
A lot of this activity is now online so we must ensure that we update our legislation to include online communication. Again, there must be clear evidence of intent or likelihood to stir up violence or hatred for a prosecution to be brought under this section. There has been much discussion on the burden of proof. The burden of proof for preparing and possessing material likely to incite violence or hatred is consistent with what is already on the Statute Book in the 1989 Act. Again, we are not changing anything. This is already in law. What I am proposing is to maintain this standard, as to do otherwise would make convictions significantly more difficult to secure; even where these offences have clearly taken place. Reverse burdens of proof, as applied here, are a common feature of criminal legislation. For example, in section 15(2) of the Misuse of Drugs Act 1977, a person in possession of a large quantity of a controlled drug is presumed, until the court is satisfied to the contrary, to possess these drugs for the purposes of sale or supply to a third party. This does not affect the protections that we have built into our laws around the presumption of innocence, and the general burden of proof remains on the prosecution to show the facts of the case to the court. This is no different. I reiterate that all of the incitement provisions have been carefully drafted to criminalise only the extreme forms of hate speech that deliberately and recklessly incite or stir up acts of hostility, discrimination or violence. The legislation contains robust safeguards for freedom of expression, such as protections for reasonable and genuine contributions to literary, artistic, political, scientific or academic discourse, and fair and accurate reporting. This is about criminalising those who deliberately or knowingly put other people in harm's way through their statements and views. Fundamentally, free speech does not entitle any person or group to cause harm to another.
Similarly, we have a responsibility to tell victims of hate crimes that we are determined to keep them safe from harm, and to let perpetrators know that they will be punished for spreading hatred. As I mentioned, hate crime causes significant psychological trauma and distress to victims. We have to offer the most vulnerable communities within our society the protections that they need, and give An Garda Síochána and the DPP the powers necessary to investigate and prosecute these crimes for what they actually are. A hate crime happens when someone commits an offence because they have a hatred of a person with a particular personal characteristic. For example, if someone was followed leaving an LGBTQ+ bar and then assaulted and shouted at using homophobic slurs, under the Bill, they have been subjected to a hate crime. Another example would be if someone's property is intentionally damaged, or anti-migrant slogans were painted on their property, because they are a member of a migrant community. The demonstration test is used. Assaulting someone or damaging their property is already a crime. It is the hatred against an individual or group on the part of the perpetrator that makes it a hate crime.
I thank the Minister.
I would appreciate it if I could continue as there is a lot to cover and I would be able to address much of what is coming up.
Is there agreement of the House to that? It is agreed.
For the purposes of this Bill, there are 12 aggravated offences which can be classified as "hate crimes". These vary from very serious offences like assault to violent public order offences or criminal damage. These offences have been selected as they are the most commonly cited crimes against people on identity grounds. Where a perpetrator is found guilty of one of these offences that is aggravated by hatred, a sentence uplift will be applied in comparison to the base offence. It will be a matter for the trial judge to determine the appropriate sentence, however a maximum additional sentence of plus six months for a summary conviction and plus two years for conviction on indictment will be available; except where already at the maximum possible.
We have built in a safeguard so that where there is not sufficient evidence to convict a person of the "hate crime" offence, they may still be convicted of the base form of the offence.
If someone is assaulted and it is a hate crime, whether they succeed in the hate crime side of it or not, it is still an offence because they have been assaulted. This avoids the risk that the entire prosecution could fall if the hate element cannot be proven.
Also included is a general provision under section 20 of the Bill, which provides that where there is evidence of hatred in relation to any offence beyond the 12 specific aggravated offences, hatred can be considered an aggravating factor at sentencing and the judge would be able to reflect this in the offender's record. This formalises a process that is already a judicial reality in our courts system and offers the broadest protection possible for victims of offences that are aggravated by hatred.
Importantly, it centres on the effect the hate crime has on the victim, rather than having to prove the hateful intent and motivation of the offender. It is, after all, the demonstration of hate that causes the additional harm to victims. Proof shows victims of hate crime are more seriously impacted. It is not necessarily the assault or act itself but the demonstration of hate towards that person that causes the most harm.
I am aware that this was discussed in the final debate in the Dáil. An example was given about someone making a slur in the heat of the moment, which could lead to them having a hate crime on their record, and that this could be disproportionate. We need to be clear there is nothing disproportionate in how someone feels when being assaulted or otherwise offended against because of hatred for who they are. There is a profound difference between how victims of hate crimes feel in comparison to victims of other crimes. We must remember this at all stages of this debate.
It is also important to say that a prosecution cannot be brought forward without the direction of the Director of Public Prosecutions. This is an important safeguard.
I apologise for taking longer than expected but it is an important Bill we need to be able to discuss at length. I look forward to engaging with all of my colleagues today and in the next few weeks. I recognise that there are different viewpoints, with some saying the Bill does not go far enough and others that it goes way too far. I assure Senators that the Bill is not radical, as some claim; it is proportionate, evidence-based and in line with legislation in countries similar to ours. I hope I can count on Senators' support to progress this much-needed legislation, which has been resoundingly welcomed by those who live in this country and who have been impacted by hate speech and hate crimes.
I thank the Minister for a very comprehensive explanation.
Ar dtús báire, cuirim fáilte roimh an mBille agus roimh an Aire. Gabhaim comhghairdeas léi agus cuirim fáilte roimpi ar ais don Roinn Dlí agus Cirt. Táimid go léir sásta í a fheiceáil sa suíochán seo arís.
There is much to unpack in this Bill. The Minister has covered a lot of the material. What is important is to dispel much of the opposition to this that has appeared online and in the ether, almost all of which is ill-founded and misplaced. Legitimate questions have been raised, and I intend to address them as well. On the whole, I welcome this Bill on behalf of the Fine Gael group as a progressive movement towards saying to people in Ireland who fall within the protected characteristics outlined at the beginning of the Bill that we support their right, the same as anybody else’s, to peaceably enjoy the space they have in their homes, on the public streets, in schools, in their workplace or wherever it might be, and that we as a Legislature and State recognise there is no basis and never an acceptable level at which people can render hate against any person because of who or what they are, whatever that might be. That is at the heart of this Bill.
The Bill is not about stifling debate but taking hatred out of debate. As the Minister said, it is not about saying to people they may no longer be offensive; unfortunately, including Members of this House, they can continue to offend and to be offensive for years to come without committing any offence. The Bill is specific in what it does. I ask Senators speaking against the Bill today and telling people publicly they will vote against it to tell us if they oppose legislation against hate speech or is it just this Bill. If it is just this Bill, what would they take out that would not render the Bill toothless but leave it as an effective measure to support people with protected characteristics? Will those voting against the Bill tell us why and not give us the rubbish we have seen online about the things the Minister mentioned, namely, removing freedom of expression or speech and overturning the burden of proof. I will come to each of them. Do not give us that. Tell us if you are in favour of legislation against hate speech or not. If you are not in favour, that is one thing. If you are in favour, how would you do it differently?
Let us look at some of the things we have seen floating around in respect of the Bill. First, I welcome the repeal of the Prohibition of Incitement to Hatred Act 1989. Its time has come and probably came many years ago. Fifty prosecutions in 30 years show how ineffective that legislation was. More importantly, times have changed. In 1989, everybody did not have the Internet in their pocket. Kids did not have the Internet. It was not everywhere. The Minister mentioned the example of the assault in Navan. These are things that did not exist in 1989 so it is appropriate that the legislation be updated to address situations like that. That is why I welcome the expansion of the scope of the Bill to information systems provided for in section 6(1).
People have said this removes our freedom of speech. Members of this Chamber have said online today the Bill will remove freedom of speech and freedom of expression. Nothing could be further from the truth. Everybody in this country’s right to freedom of expression is protected by Article 10 of the European Convention on Human Rights. If not that, then by Article 40 of the Constitution. If not that, by section 11 of this Bill. If not that, all of the fair procedures measures within our courts are still there to protect anyone accused of an offence under this Bill. So go away with your nonsense about removing freedom of expression. That is not true. It is misleading and grossly irresponsible.
That is the first point. The second is about thought policing. Nothing in the Bill affects anyone’s thought. You can continue to think offensive, wrong and moronic things if you want. You are still not committing an offence, no matter how hateful they are. It becomes an offence when you turn those thoughts into action, when you go out onto the streets, when you talk to your neighbours, friends and co-workers and express hatred towards them or to another person about them. That is when it becomes an offence. It is entirely appropriate that should be against the law because every time you do that you damage us all. You damage everyone in society and the fabric of this country when you say to people they are not as good as you because of their religion, ethnicity, sexual orientation or whatever it might be. It is not okay. It is time we shut it down and that we shut down the nonsense going on online about this.
We have been told the Bill overturns the burden of proof. I am a criminal barrister and work only in criminal defence.
I deal with this issue every day. There is no way I would stand in this Chamber and say it is acceptable to overturn the burden of proof. This Bill does not do that, which is why I am supporting it.
Let us consider what the Bill does achieve. It creates presumptions, or what we call in law "rebuttable presumptions", that exist in so much other legislation. The Minister gave one example, the Misuse of Drugs Act, but one could also have given the examples of the Criminal Justice (Theft and Fraud Offences) Act 2001 or the firearms legislation. If I am walking down the street with a knife in my pocket and get arrested by the Garda, for whatever reason, it is reasonable to require that I explain why I have a knife in my pocket. There would be a rebuttable presumption that I had the knife for a nefarious purpose. By the same token, if a search is conducted of a person's house and it is found to contain hateful material, including pamphlets decrying particular groups because of certain characteristics, it is reasonable to expect the person to explain why he or she has them and reasonable to conclude, in the absence of a rational explanation, that the person has them for a nefarious purpose. This provision exists in legislation of all kinds. Therefore, the same Senators who will today complain about the overturning of the burden of proof would need to complain about all the Acts in the criminal canon. One could say it is absolutely unfair to require people who walk into shops with foil-lined bags to explain why they have devices that are designed specifically to defy the magnetic detection devices at the entrances to shops, but of course it is not. Senators who are going to say things like this in this debate should tell us why what they propose should be the case.
Senators told us that search warrants that might be used are somehow much stronger or more abhorrent than search warrants used in every other area of criminal law, but of course they are not. The provisions that apply to search warrants in all kinds of other areas are exactly the same as those required under this Bill. The Garda has to be able to conduct its business under reasonable circumstances. With all the constitutional protections and all the fair-procedure protections we would expect in any area of law, the Garda needs to be able to conduct searches as part of its investigative powers. If Senators are saying the search warrant provisions in this Bill should not be there, they need to explain to us how this Bill will not be toothless if we remove them. They need to explain to us how gardaí will actually do the job they are required to do when investigating the crimes this Bill creates.
The Senators also pointed to the recklessness provision, but, as the Minister said in her speech, recklessness is a standard provision within any criminal offence. If you commit an offence and say afterwards that you did not think you would do X, Y or Z, it is not good enough. We require a certain level of thinking things through on the part of every member of society, in whatever area. A recklessness provision is standard for most criminal offences in Irish law. By the same token, if you are unhappy with the recklessness provisions in this Bill, you need to complain about them in respect of every other offence that exists. Senators should go away with the rubbish on this as well.
There is a provision in the Bill implying that the possession of material, even if it is not distributed, can tend be an offence as well. This is another area where a provision is believed to entail thought policing or thought crime. Again, this is absolute nonsense. It is not illegal to be in possession of material; it is illegal to be in possession of hateful material without any explanation or reasonable basis for having it. If, for example, gardaí search my home and it is found that I have several articles that might be regarded as hateful by some but which are letters to all the Deputies, Senators and councillors, that is a reasonable explanation. However, if I have many boxes of pamphlets decrying a particular group, it is not reasonable. What this Bill does, in quite a delicate way, is find a balance between respecting the principle of freedom of expression or freedom of speech that we all enjoy and need, and which this country needs, and dealing with people who seek to abuse and misuse it. I hope the provisions on hate crime will lead to the Garda using its powers more effectively. The crime element of this Bill creates a specific aggravated offence in several areas – criminal damage, public order, assault and various offences covered by the Non-Fatal Offences against the Person Act. The Minister mentioned this as well.
An offence covered is the offence under section 7 of the Criminal Justice (Public Order) Act 1994, which refers to the distribution of images or other material that might be offensive. We know that happens all the time, yet the Garda has not taken action, to the frustration of many. The reality is that this Bill will now create a specific offence where the offence is committed with hateful intent. That is really important.
The word "intent" is perhaps central to the Bill. It is not a matter of having internal thoughts or a discussion in a reasonable way with friends; it is a matter of intending to spread hate with the intention of causing violence or hatred against particular groups. I do not understand how anybody could be opposed to that principle. I do not understand how anybody in this House can stand up and say he or she does not want a law making it unacceptable to be hateful publicly and incite hatred against various groups. I would be grateful if the Senators who oppose this Bill explained to me why this is happening.
This is very fine legislation. I am sure the Minister will listen on Committee Stage to Members' proposals to improve it. I may even have some amendments myself. There are provisions in the Bill that challenge us in some ways. One of the issues raised in this regard is the definition of "gender", for example. I do not agree with the submission that it somehow changes how we define gender in Irish law. The definition is specifically limited to this Bill and is very broad. It is broad to the extent that it includes anybody's interpretation of their own gender. People who fall outside the norms of how we interpret gender are exactly the kinds of people who frequently fall victim to hate crimes, hate speech and victimisation generally. Therefore, it is entirely reasonable that the definition be as broad as it needs to be to include as many people who might be victims under the legislation as possible; it does not mean you can now register as many genders as you want under the Civil Registration Act, for example. It is really important that it not be represented in that way.
The Minister stated any of the factors under discussion would be seen as aggravating in sentencing by any judge in this country today, but the Bill writes it down in black and white, or black and green, as the case may be. It states to anybody with a protected characteristic that we recognise they are vulnerable and that things will be said and done today to people with the characteristics listed in the definition section of this Bill that are unacceptable, divisive, hurtful and harmful. We are also stating in black and white that we do not and will not accept this and that we will create specific offences that deal with it. We are also stating we will prosecute people who commit the offences in question and that they will suffer the rigour of what is in the Bill, because that is the way it should be.
I congratulate the Minister on her return and on the joy that led to her absence.
I want to quote something for the Minister: "I believe my new Hate Crime and Hate Speech Bill will contribute in a very real way to allowing everybody in Ireland to live without fear, to live the most authentic version of themselves." That is something the Minister tweeted on the day she introduced this Bill in the Dáil. I do not believe she tweeted it today. It would be very strange if she did because, in a very real way, her Bill has contributed to the fear among many ordinary people that if this legislation passes there will no longer be clarity on what they may say using robust freedom of expression – expression not intended to harm people but expression that might certainly offend and that could be called hate speech, as such expression frequently is.
With regard to the very word "hate", which is at the core of the Bill, the sensible thing for the Minister to do would be to separate out the hate crime dimension of Bill, which is what she says needs to be dealt with in line with international standards. She would get this through in a heartbeat. If she were seriously interested in consultation, she would separate it and put it through. We could return on another occasion to tease out the issues of hate speech. Fundamentally, it is not the incitement-of-violence dimension of the Bill that worries anybody here – we are all against that and hate crime and accept what the Minister is seeking to achieve in this area – but the incitement-to-hatred dimension, because the Bill leaves "hate" undefined. I wonder why that is.
The Minister's predecessor, Deputy Harris, reminded us that the view of the Department of Justice is that hatred is a commonly understood concept in law. Deputy Harris said he did not wish to be overly prescriptive because he wanted to avoid the unintended consequence of actually raising the bar for a successful prosecution. Without any further guidance, we can only presume that the current Garda understanding of hate will apply. That definition, insofar as it relates to non-crime incidents, covers any non-crime incident that is perceived by any person to be motivated, in whole or in part, by hostility or prejudice. Is that to be the subjective standard for investigating and harassing citizens?
Is that to be the subjective standard for investigating and harassing citizens, namely any incident perceived by any person to be motivated by prejudice? Is the Bill to be a licence for cranks and the easily offended? I hear Senator Ward's "Trust me I'm a barrister" approach to the Bill. Frankly, to paraphrase Ronald Reagan to Mikhail Gorbachev, let me tell you why we do not trust you. It is because he has come in here with college debate level denigration of the sincere concerns of many, concerns that have been forcefully and relatively articulately expressed by a broad range of people in recent times. His response is to denigrate them and then tell us that he will listen carefully nonetheless to what is proposed.
Will the Senator take a point?
No, I certainly will not. The Minister said the Bill is about tackling extreme forms of hate. Her officials seek to reassure the public. It is not. The Bill is about tackling anything understood as hate, be it mild or extreme. On pages five and six of the Minister's speech she seeks to reassure us by reiterating that the Bill has been drafted to criminalise only the extreme form. The term "extreme" is deliberately not mentioned in the Bill. The Minister's speech refers to "incite or stir up", something that is not mentioned in the Bill. I cannot understand why her officials put that in her speech. I am not accusing her of anything here, but it is a deception to use language like that when it is not in the Bill. The Minister's presentation of the Bill on Second Stage to the Dáil and the reassuring language, some of which she has repeated here, is not in the language of the Bill.
She said at the time that, "While individuals can hold and express opinions that others might find offensive or shocking, I want to make it clear that", but, as I have said, the phrase "stir up" is not in the Bill. She has lowered the threshold. Indeed, she said that is her intent. The Government has said it wants more prosecutions. The Minister understands and knows there are international understandings in this regard from the Council of Europe in September 2022. It stated that measures to combat hate speech should be appropriate and proportionate to the level of severity of its expression and that some expressions of hate speech warrant a criminal law response while others call for a civil or administrative law response or should be dealt with through measures of a non-legal nature. There is nothing of that nature in the Bill. The Minister has gone for the extreme end of social sanction, namely criminal law, to target people's speech.
We are all against incitement to violence and hatred of a kind that can harm people, but there is an absence of a definition of hatred. We are in a society dominated by cancel culture where people are frequently accused of being haters for expressing points of view that are not hate but simply robust expressions of opinion. Some of us had the honour of listening today to Dr. Helen Joyce who briefed some of us. She is the Bray-born author of Trans: Gender Identity and the New Battle for Women's Rights. She and many others have been cancelled and denied a forum in university for simply speaking the truth about gender. She is one of the many people who have concerns about the impact of this Bill. I do not know if she is in the Gallery, but I would welcome her if she is because she has done the State some service by her work.
What about a definition of hatred, since there is such a thing as extreme hate speech and hate speech that should be dealt with through measures of a non-legal nature? What about a definition to put people at ease? Let us not hide behind the hope of a benign prosecution service. When the social media mob is on the rampage, the Garda and the prosecution service will have little choice but to pursue the Graham Linehans and JK Rowlings of Irish society for robustly expressing their points of view.
Of course, I should not have to make this plea. Freedom of expression is a fundamental human right. Without it, there is no free exchange of ideas at all levels within society. In short, there is no democracy. That is why we use the term "fundamental". Freedom of expression does not just apply to information or ideas that are favourably received or regarded as inoffensive or a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. That, again, is from the Council of Europe but there is no nod to that kind of standard in the Bill.
The Minister's office's letter to an inquirer suggests that freedom of expression can be limited or restricted by law for compelling reasons, including protecting other fundamental human rights, but the right not to be offended is not and never will be a fundamental right. One can sense in the Bill, and I hope I am wrong on this, a surreptitious attempt to set a new international standard, one which might be applicable to all social media companies and their users across Europe. There is no doubt that undefined hate speech creates a dilemma for social media companies which, conscious of Irish law, will be obliged to err on the side of caution and thus bring down a dark pall on freedom of expression throughout Europe. That is what is called the chilling effect and it is that which has so many people worried about the Bill.
It is not, in the end, a question of who will be prosecuted to the point of being convicted. Rather, it is about who will be prosecuted or harassed in the first instance by the forces of law and order and put through a process which is, in itself, the punishment, simply for robustly expressing a point of view. It is not those of us who have parliamentary privilege, but the ordinary Joe or Jane who perhaps does not always express themselves as eloquently as us - perhaps they express themselves rudely or crudely - who have the right to express themselves in a democracy who will be affected. It is important that we are able to tolerate things that offend our ears, provided, of course, that they are not harming people or exposing people to harm. The Minister has put no such test into the Bill. It includes a word she refuses to define.
Whatever about "hatred" being undefined in the 1989 legislation, it is much more serious that it is undefined now because we are in the context of cancel culture where people are trying to shut each other down. It is precisely because of that that the expansion of the legislation includes a radical new definition of "gender" that, to my mind, is at the core of this Bill. We are right in the middle of the culture wars. We are in the very place where people want to close each other down. One does not expect the Government, frankly, to present a revolutionary new definition of such an important term as "gender" in a criminal law Bill. It is unprecedented. It has not been discussed to date. It escaped Dáil scrutiny and, despite the attempts of me and other Senators to find out from the Minister's predecessor what the definition means, we have been unsuccessful.
I would like us all to pause for a moment to take this in. Gender will now mean:
"[T]he gender of a person or the gender which a person expresses as the person’s preferred gender or with which the person identifies and includes transgender and a gender other than those of male and female
In the 2015 legislation, transgender meant people chose one or other of the existing genders. This redefines all that and creates further new realities. There are about 105 genders listed on the Internet, including agender, acegender, androgyne, apogender, astronomique, cookie gender, gendercat, fluid queer, one that I cannot politely render here, hyperfluid, etc. All of this is now being landed in the middle of a criminal law Bill where somebody could be attacked for being a hater for stating in robust, but necessarily robust, terms that not only is this nonsense but it is dangerous nonsense that puts children at risk when it is imported into the curriculum of schools. The NCCA was moving in that direction when it originally spoke about presenting gender as a spectrum. All of this stuff that is not evidence based and has parents worried around the country has been landed in the middle of a hate speech Bill which does not even define "hatred". The Minister is wondering why people are worried about their freedom of expression in a democracy.
Insofar as this means anything, the gender binary is no longer what the State wishes to protect. Rather, it is the opposite. The time-honoured scientific binary definition will no longer be the preferred one under this Bill. It is not simply that a new understanding of gender is being recognised; it is being afforded the title of protected characteristic which leads to questions about whether consistent non-conformity to preferred pronouns will bring the threat of prosecution on someone. Will mocking memes be tolerated? Will robust campaigning by parents against inappropriate school curricula be allowed? Will carrying a placard stating "Men cannot breastfeed" warrant a hate speech investigation or up to five years' imprisonment, a lifelong label as a criminal hater and all of the stigma and life limitation that goes with that? Nobody actually knows.
Someone intimated that the conflation of gender, gender expression and gender identity arose as an attempt to limit the number of protected characteristics. As I have said, in the light of what I have said it has done nothing but extend the risk. It is the vagueness at the heart of this Bill and the non-definition of "hatred" that is the real weapon because it creates uncertainty in ordinary people's minds about what they may or may not say in a cancel culture where people are called haters and people pile on people if they say something that is unpopular and call on the Garda to investigate. There is all of that pressure. Existing legislation could be carefully amended, including the 1989 legislation. Public order legislation could be amended if necessary to bring about an increase in the number of prosecutions we have been told the Government wants, without giving us any practical day-to-day examples of things that should have been prosecuted successfully but which were not.
For all of those reasons it would be impossible for people concerned about this Bill to accept it on Second Stage. I sincerely hope that the Minister and her officials will have a rethink about what they are putting through the Seanad in these days. Go raibh míle maith agat.
I understand Senator Clifford-Lee is sharing time with Senator O'Donovan.
That is correct. We will speak for the six minutes each, with the agreement of the Chair and the House.
Is that agreed? Agreed.
I welcome the Minister back to this House and to the Houses of the Oireachtas following her maternity leave. I am in favour of hate crime legislation. It is not before time that we are updating the position. However, I have some concerns about the legislation and more so about what is not in the legislation rather than what is. Specifically, I am concerned at the lack of antisemitism protection in the legislation for Jewish people. There is also some vagueness in parts I would like to see cleared up. I will be tabling amendments to this legislation. I hope the Minister will engage with me and others in the House who will also table amendments. As I have stated, the Bill contains no reference to antisemitism, to the International Holocaust Remembrance Alliance, IHRA, definition of antisemitism or to any examples of what antisemitic conduct could be criminalised. The IHRA is an intergovernmental organisation that unites governments and experts to strengthen, advance and promote Holocaust education, research and remembrance. Some 34 countries are signed up to that alliance, including Ireland, which joined in 2011. Its definition and working definition have been adopted by many assemblies worldwide. It has been adopted by the Northern Ireland Assembly. The European Commission has encouraged the adoption of the IHRA definition of antisemitism into our laws to combat growing antisemitism across Europe. It is acknowledged that the Holocaust did not happen in a vacuum, and that hate speech led to the Holocaust. Speech leads to physical attacks on people. We need to make sure we do not allow anything like that to ever happen again. I know the Minister will probably say that antisemitism will be covered by the religious aspect contained in the Bill. I do not believe it will be, because there are many secular and non-practising Jews. Many non-practising and secular Jews died in the Holocaust. It did not matter. They were still targeted. Neither is this Bill consistent with the IHRA definition of Holocaust denial. It does not even criminalise Holocaust denial like other countries do. It only criminalises genocide denial when directed at a persecuted person or group of people. I believe the Holocaust was the world's greatest crime, and therefore needs specific mention within our legislation to strengthen it. It was the state-sponsored mass murder and persecution of millions of European Jews, Roma and Sinti people, disabled people, political dissidents and gay people. I think we need to specifically mention it in our legislation. Furthermore, under the current draft of the Bill, denying the scope or mechanisms of the Holocaust will not be a criminal offence, as a specific Jew or groups of Jews will have to be identified as the target of the denial. I have strong doubts that any prosecutions under this aspect of the legislation would succeed. I also query the use of the term "grossly trivialising genocide" in the Bill. This means that just trivialising genocide would be acceptable and not considered a crime. I ask the Minister to explain the rationale behind this definition of "grossly trivialising genocide." In my mind, and in the minds of most right-thinking people, any trivialisation of genocide is gross and abhorrent. As I have stated, I will be tabling amendments and I hope the Minister will engage with me to reconsider this and some other aspects of the legislation.
At the outset, I also welcome the Minister back to the House, and I wish her well in her future life and work in the Oireachtas. My concerns with this Bill mostly relate to legal and constitutional issues. I am deeply concerned about Article 38.1 of the Constitution of Ireland, which states that, "No person shall be tried on any criminal charge save in due course of law." I have concerns about the shift in the burden of proof here, and I will have difficulty in supporting it. Article 40.6.1° states that citizens have a right to "express freely their convictions and opinions." I think there is a conflict there. Article 10.1 of the European Convention on Human Rights states:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...
Article 10.2 of the European convention provides that any restriction on freedom of expression must pursue one of the aims recognised as legitimate and necessary in a democratic society.
I recognise that even though this is by and large a tolerant and diverse society, appalling incidents have happened to which the Minister has referred. My concern, and I believe it is a fair one, is that we may be using a sledgehammer to crack an ugly nut. I do not think we should. In no way do I condone things that have happened in the Minister's county or in other places. They are appalling and must be condemned. However well intended, to legislate as this Bill proposes will create major conflicts. It conflicts with the Constitution. While I may not be as well qualified as others here, I started studying law in 1972 and I have spent almost 30 years in the Oireachtas, between the Dáil and the Seanad. If the constitutional conflicts are such as I believe, then I am certain this will be contested in the Supreme Court on a constitutional basis. Furthermore, it may be taken to the European Court of Human Rights. I have great worries that such a challenge may be successful in both of those courts. The slant or conflict with the Constitution of Ireland is so strong in this instance that I think it warrants considering a referendum to change the Constitution before this legislation is passed. I acknowledge that is a far-reaching view, and one might say it is a strong stance. I think the people of this country should have a view and a vote as to where we are going in this regard. We should study other legislatures. I looked at the Scottish law. While it is similar in many ways, it does not impinge on the rights I have already outlined. I have grave worries that the Bill as drafted does not have the intended consequences that many who have spoken believe it to have.
I believe it was rushed through the Dáil and I do not say that lightly. I am concerned that this Bill will be rushed through here too. The view I am getting is that this legislation must at all costs be passed before the summer recess, which is Thursday, 13 July. That is about 12 sitting days. Apart from the Second Reading we also have to deal with the other Stages of the Bill. I appeal to the Minister that we look at this in the cold light of day. Let us have Second Stage today. While I may allow this to go through because we must have Second Stage, I have sincere and deeply-held reservations. This is hugely important and significant legislation that impacts many lives and many people in different ways. If we proceed in rushing this through in the 12 working days that are left, I would have great reluctance in putting my name to it before it is completely finished and before knuckling down to the final Stage. On only three occasions in the almost 30 years I have been in the Oireachtas, have I stood up for issues important to me, mainly against my own Government. I will not go into those. Three contests in 30 years with the Government and parties I was with, in coalition or otherwise, is not a bad record.
I am not being an oddball, or at least I hope I am not, but I have deep concerns here. I am satisfied with the intent and with what we are trying to achieve but the manner in which it is being done is of deep worry to me, primarily in the context of constitutional rights. That is what I have homed in on. I have read Bunreacht na hÉireann again. I have gone through the articles I have quoted and I am not happy at all, in this little head of mine, that we are actually achieving what we are setting out to achieve. In actual fact, we might be going down a cul-de-sac that we might find it hard to recover from, we may be embarrassed in our own Supreme Court and possibly even in the European Court of Human Rights, ECHR. I ask the Minister to stand back a little and give us all time to reflect on this legislation. While it is important in many ways, rushing legislation through is not a good thing, ever. I can honestly say, with hand on heart, that this legislation did not get due consideration in Dáil Éireann, in the Lower House to be precise, and that troubles me.
The Minister is very welcome. It is good to see her back. This is a very important debate this evening. There has been much debate generated by this Bill recently but the fundamentals of that debate do not stray far from the analysis Sinn Féin has consistently offered. Simply stated, there is a difficult balance between freedom of speech and inclusion. This balance interacts with itself as for freedom of speech and participation to be fully realised for some, hate and violence must be restricted and punished in some instances.
There is little doubt but that the Irish justice system requires a comprehensive and single statute on hate-related offences. An Irish Council for Civil Liberties study published in 2018 commented on the lack of consideration of hate within the prosecution of crime. This Bill has a long and, to be generous, storied history. The Prohibition of Incitement to Hatred Act 1989 provided the legislative framework for those acts specifically but it has been little used and does not cover hate crimes or genocide denial, as this Bill purports to do.
There is a need for more robust legislation but in increasing the penalties on prosecution of hate, we cannot restrict free speech for those who are most vulnerable. For instance, restrictions on groups campaigning for civil rights and national liberation, especially in regard to Palestine, can be envisaged as arising from the Bill as it is currently drafted. Laws have been weaponised in other jurisdictions and the lack of detailed definitions of hate and protections for freedom of expression are a genuine concern. In previous Stages in the Dáil debate, Sinn Féin Members have outlined that while we support the principle of the Bill, we have some grave reservations about some of its provisions. These primarily relate to the demonstration motivation test; section 10 on the presumption of innocence when material likely to incite hatred is possessed; and the sections on public order offences. We, along with other parties, moved a number of key amendments related to these issues of concern and it is a matter of regret that the Government has failed to address these matters through accepting amendments or moving any of its own.
Sinn Féin has worked constructively at pre-legislative scrutiny stage and at Dáil Committee and Report Stages to try to make sure this legislation is fit for purpose and does not erode the right to free speech, the right to protest or freedom of expression. The Bill has now passed to us in the Seanad and there is still significant work to be done. Usually where a Bill passes through the Lower House first, the job of work is clear and specific but the task ahead of us now seems almost impossible. I anticipate that a large number of amendments will be forthcoming. The Government can and should take action to avoid a deeply flawed Bill passing into law but it is running out of time to do this. Our support for a single statute on hate offences does not extend to supporting unsatisfactory or bad legislation.
I wish to draw attention to what the last speaker, Senator O'Donovan, a former Cathaoirleach of this House, said. He made a very important point. This Bill is far too important to be rushed. It is far too important to be rushed through in the remaining weeks before the summer recess. We have expressed concern and have consistently asked the Government to work with us because we recognise it is important that a Bill tackling these issues is passed. It is a matter of regret that the Government has not done so. I appeal to the Minister once again to take the time to get this Bill right. I ask her to work with us and with the amendments that we will produce. If she does not do so, to be absolutely frank, we will have no choice but to vote against this Bill.
I welcome the Minister back. I cannot believe she has slipped, hyper fluid, into our national Statute Book already but I suppose one should never doubt a busy woman with a lot of focus.
As others have said, we have a version of hate crime legislation but the term "toothless" has been used a number of times in reference to the 1989 Act. Ireland is an outlier currently, with reported hate crimes having increased by 29% in 2022, a figure referred to by the Minister. While legislation alone will not tackle the scourge of hate and extremism, it is part of a wider response to making clear that hate crimes against people on account of their inherent identity will not be tolerated in Irish society.
The Prohibition of Incitement to Hatred Act has been on the Statute Book since 1989 but it is widely regarded as ineffective and not fit for purpose. We need to update our approach to the incitement of hatred, especially in the online world where hatred and targeted prejudice is organised through the Internet, social media and online platforms. As has been described previously, the 1989 legislation is toothless. We are probably going to get a bit sick of that particular terminology over the next couple of weeks.
Why do we need specific hate crime law? I will discuss the merits of this particular hate crime Bill because I do not believe the current legislation does address hate crime, which is the ultimate signal crime. In targeting a person's inherent identity, the hate crime perpetrator instils fear into the entire community that shares the victim's protected characteristic. We have referenced today the incident in Navan and the ripple effect it has had on the LGBT community and not just the young members of that community. Every single week I hear through the gay grapevine about yet another person who has been abused, verbally assaulted or even physically assaulted on our streets because they are visibly a member of the LGBT community. That is only one community of which I can speak. I cannot speak of other communities but I am sure there are other people in this House who can speak of the consistent and constant hatred that is being perpetrated against communities that never makes it into the national media. It is having an incredibly negative and awful impact on members of those communities when this hate is being perpetrated against them.
The effect of a hate-motivated attack is chilling. According to findings from the National Crime Victimization Survey on LGBT hate crimes in the United States, LGBTQ victims of hate crime are 12 times more likely to experience acute distress in comparison with being victimised by other crimes. Yet, in the absence of specific legislation, the hate element in the crime gets filtered out during the judicial process. I strongly encourage everyone in this room to look at the work of Dr. Séamus Taylor in this area, who writes about the impact of sentencing with or without taking hate into consideration as a motivating factor. He has done some really interesting research on this in other jurisdictions, including how hate is included or not included as a motivation.
As far back as 2016 the National LGBT Federation, NXF, Burning Issues survey was published. This is a really comprehensive piece of research into the views and priorities of the LGBTQ+ community. The survey revealed that hate crime legislation was the number one legislative priority for that community. In the years since, the scourge of hate and abuse has become even more profound, facilitated in large part by the wild west nature of the online world and bad actors who are moving into that space. However, they are not only in the online space; they are out and about on our streets and we all know of them. According to research published by the NXF in early 2022, 90% of the public agrees that hate crime needs to be effectively addressed by Irish law.
An interesting piece of research was published by the Irish Research Council earlier today. I doubt if many in the room have had a chance to look at it. The council funded research by members of the European Centre for the Study of Hate at the University of Limerick and Dr. Kevin Brown of Queen's University Belfast.
A representative sample of 1,000 people in Ireland were surveyed by Amárach Research in January 2023. It is extremely up to date. The data were weighted to ensure they were representative on the basis of age, gender and region. The research found that more than two thirds of those asked are in favour of hate crime legislation regardless of the model employed. There is strong support in Ireland for hate crime legislation. We are debating this particular Bill but I understand from the people I have spoken to that there is very strong support for hate crime legislation regardless of the model employed.
I will go into further detail on this research. A total of 80% are in favour of treating as a hate crime those crimes in which the offender is motivated by prejudice against the victim's group. A total of 79% are in favour of treating as a hate crime those crimes in which the offenders chose their victims because of the group the victims belong to. A total of 67% are in favour of treating as a hate crime those crimes in which the offender uses prejudicial language towards the victim's group when committing the crime.
It seems from this research that people in Ireland are also in favour of a very inclusive approach in the legislation. More than 70% are in favour of older people, disabled people, gay and lesbian and bisexual people, black people, Jewish people, Muslims and Travellers being protected by legislation. A total of 82% favour the protection of transgender people in hate crime legislation. Let this sink in. A total of 82% favour the protection of transgender people in whatever form that hate crime legislation may take in Ireland. This is a very important statistic and figure for us to consider as we debate this Bill over the coming weeks. Some of the narrative around this implies that very few people support transgender people being protected in hate crime legislation. The research released today, which was done in January 2023, shows that 82% of people favour the protection of transgender people in hate crime legislation.
I welcome that the Bill includes a demonstration test for hate crime cases. I have already mentioned Dr. Séamus Taylor who has highlighted the need for a demonstration test. If we want the legislation to have teeth and to be effective, as opposed to the 1989 legislation, perhaps a demonstration test is what will make it workable. The test of proof is supported by a number of NGOs working in this area. I am an actor turned activist turned legislator. I am neither a barrister nor a legal expert. My understanding from my analysis of other countries is that this demonstration test is used in Northern Ireland, England and Wales, which are our closest legal compatriots. I also understand that the inclusion of the demonstration test was a specific recommendation of the all-party Oireachtas Joint Committee on Justice. We have various obligations under the Good Friday Agreement and other agreements to have comparable legislation throughout the island. My analysis of this is that the Bill is somewhat comparable to legislation that includes the demonstration test in Northern Ireland.
Hate crime legislation is significant and far overdue. This is the Bill we have in front of us. Many people have opinions on what the model could, should and ought to be. There were extensive and varying ways people could contribute and the Oireachtas Joint Committee on Justice did much work on it. This is the Bill we have before us so it is the Bill on which I will focus. We regularly see homophobic prejudice, assaults and violent attacks in Ireland. As I said, we saw a 14-year-old visibly queer student in Navan being attacked because of who they are. Following this assault BeLonG To made a statement that according to 2022 research 76% of LGBTQ+ students feel unsafe in our post-primary schools. This is not good enough. We have to prioritise the safety and well-being of LGBTQ+ youth who are seriously at risk. The rise in anti-LGBTQ+ violence we have witnessed throughout Ireland over the past 18 months is incredibly distressing. BeLonG To is continuing its work to create safe spaces for LGBTQ+ youths in schools, homes and communities.
BeLonG To has also called for hate crime and hate speech legislation to be introduced to send a clear message that homophobia, biphobia and transphobia are not acceptable and for a clear roadmap from the Government on how to tackle the rise in discrimination and hate targeting minority communities. I can list endless attacks and assaults on members of the LGBTQ+ community. This legislation is needed to adequately protect us and members of my community who face it every day.
I want to speak briefly about gender and transphobia. As I have said on many occasions the Labour Party stands with trans people. We stand with trans women, trans men and non-binary people for whom this legislation is so desperately needed to protect. I reject outright any rhetoric that seeks to exclude trans and non-binary people from this legislation. Unfortunately transphobia has got worse over the past while. I know many trans people who are afraid of verbal and physical assault simply for being themselves. Such assault comes from a hatred towards who they are and it is not right. I cannot comprehend it or understand it. I cannot comprehend why this community is consistently at the butt-end of discrimination online with horrific comments against their bodies and personhood and who they are, when all they want to do is live and exist in this world and have a basic standard of living their truth just to exist. Imagine all you want to do in life is just to exist. We consistently have people online, in various Houses and in various political systems saying that this is not okay and that we will put all of these barriers in their place. They should be protected against this hatred. I cannot fathom how people do not stand against it. I do not understand it. We know that domestically and internationally trans and non-binary people are unfortunately targeted by hate crime offenders. They are violently physically assaulted and murdered all of the time throughout the world.
Hate crime legislation focuses on the behaviour of offenders and not on the victims' legal status. It addresses crimes motivated by hatred towards protected characteristics regardless of whether the victim possesses these characteristics. To ensure the effectiveness of the legislation, the definition of "protected characteristics" including gender must be fit for purpose. Irish case law dating back to 2011 has already established gender as inclusive of transgender identities. We can look at case law on this. As far as I understand it, case law is the standard by which we understand things to be.
My thoughts are particularly with the LGBT community because it is my community and I feel very strongly about it. Other people have spoken at length for other communities that need to be protected in this hate crime legislation. We cannot have hate crime legislation without doing anything about what may lead people to end up there. We have spoken about the impact of sending people to prison and pushing them to the margins of society and the impact this has on them. I am not entirely sure I am all that cracked on prison, to be perfectly honest, but it is the system we have and what we are working with. There is no point in beating around the bush on this. We need to have an education process. We have to educate communities on what is and is not hatred, and on who people are and who people should be, and we have to simply live and let live in society. This legislation should be a last resort. We should have a society where this is rarely used because we have built a society of tolerance, acceptance, inclusivity and community and we have given the resources to communities to be able to develop this skill set. This legislation should be a last resort. Hand in hand with this, we must see a very progressive and inclusive educational approach so we do not find ourselves in a situation where we need to use this legislation.
I welcome the Minister to the House. It is good to have her back. Many people and civil organisations have worked hard for many years on hate crime legislation. The Irish Traveller Movement, Pavee Point, the Irish Network Against Racism, INAR, Migrant Rights Centre Ireland, the National Women's Council of Ireland and many other organisations never stop working for human rights and equality in this country.
I remember working with INAR in 2015 when we launched the "love not hate" campaign all those years ago. We had the backing of 90 organisations and it was followed by a petition signed by more than 15,000 people. Two years ago I was privileged to relaunch the "love not hate" campaign along with INAR, groups representing ethnic minorities, LGBTQ+ people and people with disabilities. What people wanted then and still want today is the strongest possible legislation that works for everybody in our society. As I said at the launch, if we want a society in which we can all participate as equals we must recognise the damage and harm that hate crime causes people. We must respond to it and we must protect all people.
We as a society must be inclusive. We must protect people from all forms of violence and harm that are directed at people because of who they are in society.
While people often say something is a step in the right direction, for me and for many human rights organisations, having good, strong hate crime legislation is more than a step in the right direction. It is about 20 steps in the right direction for our society. At the same time, there are many areas of this Bill that can be strengthened. I and my colleagues in the Civil Engagement Group will bring amendments forward in the coming weeks. We hope the Minister will give our amendments consideration. We are working with civil society on the amendments that we are hoping to put forward, including people on the ground, people from the Traveller community, people from working-class communities, people who are impacted by hate crime and people who have been forgotten in the conversation like ordinary working-class people.
Speaking as a Traveller, our community has been the subject of hatred within Irish society. We have had houses burnt because Travellers were moving into them. Recently in an area of Dublin, members of the Traveller community moved into a home and the next-door neighbours decided to sell their house. Obviously people can do what they want with their own home but this level of hatred and discrimination still exists today towards the Traveller community. When you are on the receiving end of hatred, it can define you as a person in what you go on to do. For many members of the Traveller community there are issues around employment and being able to thrive in Irish society. Some people cannot even thrive within our society because of hatred and discrimination. These actions can have a dramatic impact on people. I believe that when people know better, we do better. That includes everybody in this room. Unfortunately, there are some people you cannot educate.
As part of our effort to have good hate crime legislation, we need to make sure we include the voices of all people. We should not repeat what happened in 1989. That hate crime legislation has never worked and according to Pavee Point, there have only been five prosecutions in the last 30 years around hate acts. We see that all the time. People are talking about freedom of speech and how this hate crime legislation will impact on people's freedom of speech. I disagree with that. I appreciate the importance of freedom of speech. Our right to free speech has helped organisations and helped us as a country throughout history to bring about good legislation that does protect all people within our society. Hate speech is not free speech. If someone walks up the road and calls somebody a knacker or wants to stir up hatred for, say, the Traveller community, that is not free. You do not have the right to do that. You are not free to do that. You are hurting another human being.
Some people in this House need to look at what free speech is. If they are setting out to hurt a person, they need to rethink that. That is not free speech. That is hatred. That is discrimination. They are hurting people. It is terrible that we have to explain that to people who have gone through the education system, who you would think are well educated. I did not get the greatest of educations but I know I should not be setting out to hurt another person because of their sexuality or gender. Why should I do that? I do not give a shit what people's sexuality is and I do not care what people's gender is. It is live and let live. That is how we should be within our society. I do not care if someone is a trans man or trans woman. That is none of my business. They should be able to walk up the street. Who cares? There are some people in this House, in particular. Even today, I went to a briefing and I felt so sick that I had to leave. It showed every reason we need good hate crime legislation. It is to protect people and let people live their lives. I am sorry; I am after going a little bit off.
The Minister spoke about social media. People can be subject to hatred while sitting at home on their mobile phone. If I put something up on social media today, there are some people - not all; there is more support - who will attack me because of my identity. It is not because of what I said but because of my identity. We have to look at these big platforms. They are making profits off the back of hatred and discrimination online. We need to be the country that stops that to protect our people. If we are going to bring in legislation, let us do it right. Let us make sure it is legislation that does protect and that does change lives.
Having hate crime legislation is not going to stop homophobia. It is not going to stop people with disabilities getting bullied. It is not going to stop racist comments. When I was in the Irish Network Against Racism, INAR, in 2015 I remember a Muslim woman talking to me. That is what really shaped my politics, through getting involved with INAR and seeing other people from different communities who also experience hatred. She said she would get spat at on O'Connell Street because she was wearing a hijab. That really shifted my way of thinking because similar experiences happen to members of my community too. You really have to get out there with others within Irish society to understand what people are going through.
I welcome Dr. Seamus Taylor from Maynooth University to the Gallery. We know from our briefing that a lot of evidence and proof that something was a hate crime is needed and it needs to be shown in the proof that the crime was motivated by hatred. It is not that if this legislation is passed, everyone will end up in prison. It is a very long process. As the Minister said, it is evidence-based.
I welcome Second Stage of this Bill. Unfortunately, I will not be here to vote for it because I have to catch my bus but I will say that seeing this is hope. It is hope for people from minority groups. The day hate crime legislation passes through these Houses and is signed by the President will be a day that people in Irish society will feel a little safer. As I said, it will not change things overnight but people will have to think twice before they act out a hate crime on somebody because of their sexuality, the colour of their skin, their gender etc. We hear a lot of the time that if we can be anything, we should be kind. Unfortunately, we cannot legislate for kindness but what we can do is educate people. Hopefully that is what this Bill will do.
There are many concerns in the House from the Opposition and from the Government parties about this Bill. The amendments from the Civil Engagement Group and other political parties that are working with civil society must be accepted. If we are going to do a job, we should do it right. Let us not fail the people a second time. It has been 30 years. I am 33 years of age and we have been 30 years waiting for this legislation to be passed to protect people and to put people at ease. Is not going to stop hatred or discrimination but it is a step in doing that. I encourage the Minister to look at that.
I fully support this Bill passing Second Stage but I will not be here to vote for it. I thank the Minister for all her hard work in trying to bring about good hate crime legislation that works for people. My message today is this: no matter your gender, the colour of your skin, the background you are from or who you are in life, once you have not set out to hurt another person, it is live and let live. That is how ordinary people live in today's society. I have seen a lot of anxiety in this House about gender. People are getting really hot and bothered about it and talking about child abuse and are scaremongering. They should not be allowed to do that in this House. The sooner we have good hate crime legislation the better. It is not acceptable to hurt a person because of who they are.
Before I call on the next speaker, I welcome our Seanad colleague, Senator Clifford-Lee, to the Gallery, along with the parents of naíonáin bheaga, and more importantly the parents of Teddy's friends in Gaelscoil na Mara, Donabate. I am sure that Teddy is at home studying but I am delighted that all the parents are out here enjoying themselves. You are most welcome and I thank Senator Clifford-Lee for bringing you here all the way from north County Dublin. You are most welcome.
The Minister for Justice, Deputy McEntee, is very welcome back again in the Seanad. Social media has fuelled hatred but it has also put on display for all of us the dirty, filthy, underbelly of hatred in Irish society. That hatred has always existed. It may be fuelled by social media but what is the excuse when it comes to the way that Travellers have been treated across hundreds of years in this country? What is the excuse when it comes to the way people with disabilities have been treated in this country, especially those with intellectual disabilities? I could go on to speak about gender. However, before I got up to speak today I was shocked at some really quite outrageous outraged expressions from people about the use of a word from a previous speaker. Yet, they think nothing of making comments about other people's identities and particularly their gender or sexual identities. I believe that this says it all.
When one thinks about it, all law and all legislation is about the restriction of freedom. This is exactly what we are doing here. We are restricting freedom but we are doing it for the common good. Throughout our Constitution one can see that while one has rights they are restricted for the common good. Everything needs to be balanced. If a person's views on other people's identities make their lives unsafe and insecure, and cause them such deep discomfort that they cannot live in peace, our job as legislators is to restrict those freedoms for the common good. One cannot do and say whatever one likes in our society, which is a society governed by laws. This is very fundamental to a legislative system. It should be one of the very fundamentals for any legislators who sit in this Chamber that they understand what we do is restrict freedoms.
I will talk about gender. As education spokesperson for the Green Party I am surrounded by a lot of young people a lot of the time. I also have my own young people. They are absolutely shocked that we are even having any kind of conversation about what other people's gender is. They just do not understand it. They ask "What are you talking about?" and suggest that what people think of themselves is their own business. They ask what it has to do with anybody else and why people should come and attack them for it. There are people who, down through generations, have been fearful about walking outside their door because they are attacked verbally. That restricts their freedoms. Why do some people believe their freedoms cannot be restricted but others can? It sounds to me a lot like bullying.
When the Green Party went into the programme for Government negotiations, hate legislation was very much on the agenda for us. In the Minister's speech, she said that we are introducing hate crime legislation for the first time in order to ensure that those who target victims because of their association with a particular identity characteristic are identified as perpetrators of hate crime. This is what is in the programme for Government for the first time. Yes we have had hate crime legislation but it dared not even bear the name because it has been totally ineffective. The previous speaker, Senator Flynn, is correct in that we cannot legislate for kindness, but as public representatives we represent the public in these Chambers, and we can at least say that the public does not accept this kind of behaviour anymore and that this is a step in the right direction.
I am aware that there are various views on particular parts of the legislation. Let us discuss that on Committee Stage and let us have a proper discussion about it. This Chamber is the best place in which to have those conversations about the minutiae of the legislation. There has been an awful lot of distraction from some of the previous speakers. There has been an awful lot of distraction but this fundamentally comes down to only one thing - whether we can move forward towards a kinder society. Within the fairly blunt instrument of legislation, can we do that in this Chamber? I believe we can and this Bill is an excellent step in that direction.
The Minister is very welcome to the Chamber. It has been a very interesting debate so far. It shows the breadth of views in this House. I believe that all views, for the most part, have been expressed reasonably and fairly, and are to be respected across all sides. There are many things that will not be said in the Chamber because cancel culture is real, as pointed out by Senator Mullen. There are many topics that many of us are afraid to speak on publicly or speak about in the Chamber, but we say it outside and we say it in the hallways, and people say it to us. The issues raised around this are real and genuine. They are not from crazy people and not from the far left or the far right. There are many ordinary, middle-ground people who are not quite sure what we are legislating for, if it is needed, if it is reasonable and if we are doing what we are required to do or going further than that. These are reasonable questions. It does not make someone a bad person and it does not make them a hateful person. It does not mean that such a person wants to restrict the rights of any other persons or prevent them from being safe to walk the streets in our country.
Most people here are absolutely united in wanting to see hate crime legislation. It is the hate speech element that is causing most difficulty because there is an element of vagueness around it. This is just a fact. There is also a lack of a definition for "hate". I can understand why this is problematic for people. I take on board the Attorney General's advice and I understand the rationale for why "hate" has not been defined. It does, however, present a level of subjectivity that makes people nervous. This is understandable. It does not make someone a bad person. These are reasonable issues for legislators to raise in this House. In the absence of a definition, I put it to the Minister that a definition would be helpful. These debates might be referred to in the courts when looking to the legislators' intent and what we wanted to enact. It is important that we would discuss it. I have the briefing note but it is not on the record of the House. I would welcome if the Minister could elaborate a little bit further, not just on the Attorney General's advice but also on the fact that there is a kind of definition but not really. It is what people generally understand it to be. The Minister has spoken about the current legislation, which is quite old. The law we are going to pass, which probably will pass, will be on the Statute Book for a very long time. What we reasonably understand "hate" to mean today could be different in ten, 20 or 30 years' time. We need to legislate to make sure the legislation can stand the test of time. This is what is being debated here.
I will speak also on the issue of gender. I will be very limited in what I say on this because it is a space where, no matter what one says, one will upset somebody. It is so controversial and divisive. Regardless of what one thinks it should or should not be, it simply is. It has happened across in the UK and it is coming in here. There are different views. A lot of issues have been conflated and bundled in together. When taken individually, they are reasonable issues to raise. They are often taken to mean a hatred of one group when it is not that at all. I have said as much as I will say on that front. Again, we should be able to discuss these issues openly but we cannot actually do so. Unless one has a particular viewpoint, one cannot say what one actually thinks. I am very concerned that we are going towards a situation where we are telling people how to think and how they should think. It seems that if you do not think how I think, there is something wrong with you. I believe I would be considered on the liberal side of things in my own party. That is evidenced by my position on marriage equality and on the eighth amendment. I am coming from a particular place but I am always very conscious that the views I hold today were not acceptable 40 years ago.
I have been contacted by number of people, including a particular group called Not All Gays Ireland, and people who have campaigned for progressive change in this country, who have raised genuine concerns that I believe we should air and address in this Chamber. As they have said to me, if those restrictions were in place would I have been able to advocate and change the minds of people who had a different view from me and bring about the change that means I have better protections today? It was a really interesting point and it was a different angle. I had not come across it and it was from a young man in my constituency. I spoke to him and took it at face value that it was a genuinely held view. The idea that all of the LGBTQ+ community think the same on this is not correct. I want to put this on the record.
I take on board the defences in this legislation, but I ask the Minister to elaborate. Section 7 is the section on incitement to violence or hatred section. It talks about the lowering of the test, in that it is no longer just intent but is recklessness. That is a significant change in what is required to prove the offence. I understand why the Minister is doing so, that is, because the current legislation makes it difficult to prosecute. I understand all of that. I just wonder how that marries with section 11, on protection of freedom of expression, because, in fairness to the Minister and the Government, there has been a genuine attempt to put in black and white in the legislation that for the purposes of the Act:
any material or behaviour is not taken to incite violence or hatred against a person or a group of persons on account of their protected characteristics or any of those characteristics solely on the basis that that material or behaviour includes or involves discussion or criticism of matters relating to a [person's] protected characteristic.
As the Minister has said, it is okay to be offensive. We cannot force people to be kind or decent. We should not legislate for that either because, as one person pointed out, I would rather know how they think and be given an opportunity to change their mind. Maybe people will never change their mind, but I would rather know.
I agree with the point has been made that this legislation will have a chilling effect. Maybe we are okay with that. It is yet to be decided, but it certainly will prompt some people to err on the side of caution, because they cannot be sure of what they say. Even though it may be offensive and we may think it is disgraceful, disgusting or whatever one wants to call it, all it takes - I am open to correction on this point - is for one person to act on the basis of that and do something that is criminal. With regard to offensive language we deem inappropriate as part of a debate and may not like, what happens if one of the speaker's followers, a fanatic, or somebody who is not reasonable acts on it? How does the defence come into play in that situation? I have been asked the question. As I cannot answer it, I ask the Minister to answer it.
I made a couple of notes as I was listening. I am conscious in listening to the debate so far and I know there will be other contributions, that everyone should be allowed to make their point in this House. They should not be denigrated or judged for making those points. Assumptions should not be made either, as to where a person stands on a particular issue or aspect of the legislation. It should be taken at face value for what they have said. There is certainly a minority of voices in this Chamber that represents many views outside the Chamber. That is not always acknowledged. I am in the fortunate position of often being on the side of the popular view, whatever that might be, but that might change. When I am of pension age, the views may be different. We wish to make sure that all views can be expressed at all times because it protects all of us. It was what we needed 30 or 40 years ago when we wished to try to stop the eighth amendment to the Constitution. People could not walk the streets in this country, because their view was unpopular and we do not want the same to happen to people who hold views we do not like today.
I ask the Minister to elaborate further on why we will not define "hate" and the challenges that might ensue. Will she give her views on the potential chilling effect, which is a reasonable point to make? Will the Minister put on the record what is required of us from the European Union with regard to the Council framework decision? We have all got the briefing documents but it is important that it is on the record. What is required of us from the European Union? Are we doing just enough or are we going further? We all know the answer to that, because we are privy to many briefing documents and are well resourced, which is good for us. We are protected in the legislation, because we can speak in this House and it is considered political activity. We are protected in what we say but will the general public receive the same protections?
Will the Minister confirm the public consultation was in the context of the hate crime and hate speech element, or was it just the hate crime element? The consultation was good, extensive and went on for quite a period. We make a virtue of the fact we consulted widely. I wish to make sure the consultation covered all aspects of the legislation. Was it just an element of the legislation? I hope that genuine consideration will be given to Seanad amendments brought with good intent and that they will be given time and opportunity. I hope that I will not be asked to expedite the legislation through this House and that Members will be given ample time to discuss all aspects of the legislation and table as many amendments as they so wish.
I welcome the Minister back and wish her well. It is apt that we have this important debate and it is well-attended and participative. That is important. The legislation comes in a very interesting context, in that we now live in a very diverse society which is multiracial and multi-ethnic and in a pluralist society in a number of respects. In that context, the legislation has a particular significance. I will reference an experience I had in the past few weeks. I attended, with my party colleague, the Minister of State, Deputy Madigan, and the Tánaiste, the opening of a new, very fine extension to a primary school in Ballyjamesduff in County Cavan. The ceremony was beautiful, but what was fascinating was in the principal's speech, when he told us 40% of the population of the school were new Irish, that is, they were born outside the country or their parents were from outside the country. That is a fascinating figure in a small town in south-west Cavan. Some 12 or 13 pupils from fifth and sixth class got up to greet us and welcome us in their own languages. The ceremony was multiracial and multilingual. I thought about it that day. It is incumbent upon us to have the debate we are having and to put legislation in place to protect those people in all situations and that vulnerable minorities and communities feel safe. That is very important. We have a duty in that regard.
The point that we should have a respectful debate and respect all points of view is core. It will be the case and is very clearly the case today. I assume it will remain the case on Committee Stage. There is no question around that but I honestly believe many of the fears of people who speak against the legislation are misplaced. I will come to some of those fears as we progress. They are extreme and almost theoretical positions that might happen. I do not, for a moment, question the motivation of the people making those remarks, because I know them privately and know them to be well-motivated people, but their fears are unfounded.
Before I get into elements of the Bill, I will make the point that nobody deserves to be targeted. Without being sensationalist, I remind people we cannot avoid this. The Holocaust did not happen in the mid-1940s; it began in the early 1930s with hate speech. Hate speech progressed to hate crimes, which ultimately progressed to the Holocaust. The attacks on the Traveller community do not begin on the night of the attack. They begin through the hate speech in pubs, the warm-up and remarks around the place that give legitimacy to all of this. Homophobic attacks in parks do not begin on the night. They begin with homophobic remarks, smutty jokes and exclusion. I know the Minister to be a sensitive and honourable individual and responsive to all, as she displayed in other Ministries. She was horrified, quite rightly, by what happened in Navan. County Meath is a neighbouring county. It never has this kind of problem, thankfully. What happened in Navan was appalling but those children did not get up one morning and decide to do that. They were conditioned by jokes, material online and on television screens etc. Conditioning brought them to that dreadful position. It was a Lord of the Flies thing; something that was fed into. That has to be considered.
I will turn to specifics of the legislation. People here say we should have defined "hatred". If we defined "hatred", we would have limited the effect of the legislation. It is covered by the Interpretation Act, in that the ordinary meaning of the word to reasonable people is clear and nobody is in any doubt about what "hate" means. The Garda definition, as such, has no status whatsoever.
"Hate" is understood in a reasonable sense and we all know what it is. A narrow definition of what is meant by "hate" means that there will be acts or elements that are not included. As such, certain actions that constitute hate would fall outside the Bill. Defining hate narrowly will facilitate loopholes and ways of escaping prosecution.
I recently attended a Council of Europe meeting where hate speech was on the agenda and there were specialist speakers. The main issue they discussed was how one big "out" in previous legislation was for someone to say that hate was not his or her motivation and that he or she did not intend to be hateful or to engender hate. I could argue that, if I drove my car recklessly this evening, I did not intend to knock down an innocent person on the road or, if I drank and then drove, it was not my intention to damage someone. I could also point to the drugs case that was mentioned, although that is a different element. We cannot allow escape hatches. There has to be the capacity to interpret the situation.
Protected characteristics include race, colour, nationality, religion, national or ethnic origin, descent, gender, sexual orientation and disability. Their inclusion here is a product of public consultation and there is no argument around that. I do not believe that free speech is challenged by this. My good friend from the Council of Europe, Senator Gavan, spoke about how a pro-Palestinian rally could in some way constitute hate speech, but there is no question over that. The Bill, and the Minister, specifically state that political speeches, academic material, drama, artistic endeavours and so forth do not arise under the definition of "hate speech". People suggesting quotas for migrants or that they do not want particular races in the country is not hate speech, per se, if it is argued in a political or academic context or a forum of discussion. If there are debates at a pro-Palestinian rally about the role of Israel or at a different rally about the role of Hamas, they are not hate speech. As we all know and as the Minister remarked, most of our fundamental rights are qualified rights. One of those qualified rights is the right to free speech. I do not believe that our right to free speech is challenged by the Bill. It is protected by the Constitution and the European Convention on Human Rights. One could argue in an abstract sense that it is affected, and that would be a lovely debating point, but the reality is that the legislation does not encapsulate artistic endeavour, normal political discourse etc. The right to free speech is not in any sense challenged. We have to be wise about this.
It is right to refer to where someone is recklessly or intentionally engendering hatred. The latter is very clear cut, as is "recklessly". Someone could recklessly engender hatred in a way that was not clear. For example, someone could be reckless by making obscene remarks, telling lewd jokes or encouraging young people to lewdness, homophobia, racism etc. Such behaviour could also be intentional, though. This definition is a common feature of criminal law.
As the Minister stated, it is normal to reverse the burden of proof. It does not take away rights. If I have illicit substances or offensive weapons like knives on me – at the outset, Senator Ward mentioned interference in supermarkets to facilitate crime – it is reasonable that the question be asked. It is not an infringement. We cannot have absolute liberty in society. Instead, we have qualified liberty – we have liberty, but we do not have the liberty to harm others. To that extent, the measure in question is reasonable.
The concerns that were raised over pro-Palestinian rallies and similar political matters were fanciful.
There are 12 aggravated offences. The demonstration test is important for this reason, although people might argue against it. If I engage in hate speech, I could say that it was not my intention to offend, insult or incite. I used the analogy of drink driving earlier, in that it is never the intention of the person who is drink driving to knock someone down on the road, although I know this is not a good comparison. At the Council of Europe seminar – I cannot quite recall, but I believe the leader of our delegation, Senator O'Loughlin, might have been present for it – it was pointed out by senior personnel in the Council that one of the difficulties with previous legislation was how the absence of a demonstration test gave people an out in terms of alleged correct motivation, alleged misunderstanding or allegedly not knowing what they were doing.
The Bill did not escape Dáil scrutiny as my good friend, Senator Mullen, suggested. It went through the Dáil in the normal course and was amended by a majority of Deputies.
Senator Clifford-Lee made a point about antisemitism. Religion is covered under section 3(1)(d).
The fears are unfounded. It is important that we debate them further on Committee Stage.
I move amendment No. 1:
To delete all words after “That” and substitute the following:
“the Bill be read a second time on 31st December, 2023.”
I welcome the Minister back to active duty. My amendment would postpone the consideration of Second Stage until the end of the year, but I wish to move it on this basis only, that we should not rush the Bill through. If I have satisfactory assurances that we are not going to rush it through, I do not particularly want to press the amendment at the end of the debate.
Is there a seconder for the amendment?
I second it.
I wish to make a number of comments. Senator Ward, in ebullient style, decided to commence his contribution on the basis that most of the criticism of this Bill was nonsense. I do not accept that. While I accept that much of the criticism is nonsense and that many keyboard warriors have written exaggerated and overblown criticisms of the Bill and about its threat to our society, when the Irish Council of Civil Liberties says that there are problems with the Bill that have not yet been addressed, it is not nonsense to say that we must consider it carefully. When there are faults with the legislation that appear to some of us, at any rate, to be serious ones, it is not fair to dismiss the matter as nonsense.
Senator Pauline O'Reilly stated that all rights could be limited in the interests of the common good, but that is not the test. The Constitution is different; the Constitution actually guarantees rights. What this House believes about the common good is not the test of the extent to which those rights can be curtailed. In particular, freedom of speech and the free expression of views are only subject to public order and morality. That is the test. We may want to have a kinder society, as Senator Flynn mentioned, and a better society where we are kinder and more decent to one another. Those matters are undoubtedly part of the common good, but they do not justify-----
It is about equality.
A kinder society and a moral society are not necessarily the same thing. One can be unkind and offensive. Free speech, sometimes, is offensive to other people and people legitimately cause offence and take offence from free speech. A guarantee of free speech without the right to offend has, on many occasions, been described by people across civilisation as worthless. The same applies to minority opinions.
This legislation proposes to criminalise some behaviour. In particular, section 7 states that if "the person behaves in a public place in a manner that is likely to incite violence or hatred against a person or a group of persons on account of their protected characteristics ... and the person does so with intent to incite violence or hatred against such a person or group ... or reckless as to whether" that behaviour will cause that kind of reaction, they commit an offence punishable by five years' imprisonment. As a result of that, two things happen under the Criminal Law Act 1997. First, a member of An Garda Síochána can arrest and detain them and bring them to a Garda station, where they can be detained under the provisions of the Criminal Justice Act 1984. Second, any citizen can arrest them if he or she believes they are actually committing an offence under the section. To create such an offence without it being clear to everyone what is constituted by the term "hatred" is very dangerous. Some people may say that a behaviour, for example, outside a synagogue, was calculated to cause hatred to the Jewish population using their synagogue, who then attempt an arrest, or a member of An Garda Síochána may do so in the same circumstance. We are putting in place the legal basis for those arrests and for detention of people on the basis of the view taken as to whether there is reasonable cause in the mind of an ordinary citizen or a member of An Garda Síochána that they are witnessing the commission of an offence under this Act.
Is it reasonable to accept the word of two Attorneys General that it would complicate things if we attempted to define the term "hatred"? As a former Attorney General, I see that it probably would complicate prosecution and would possibly do what the Minister said it would - make it more difficult to prosecute in some cases. Why would it do that? If "hatred" is defined as being a particular level of intense opprobrium or disgust or some other formula proposed in Dáil Éireann, are we saying that something less than that will suffice for "hatred"? In the last analysis, if a definition of "hatred" is provided, a judge will determine whether the prosecution has established it. To say to members of An Garda Síochána and members of the public, who have a power of arrest, that you do not want to define "hatred" because everyone knows what it means is a very bold statement. The funny thing is, it is not just me saying that - the United Nations Human Rights Council specifically stated that if incitement to hatred is to be criminalised, the term "hatred" should be defined and, indeed, the term "incitement". This is part of the Rabat plan of action, adopted in October 2012. It is not just me saying that I want a definition of "hatred". "Hatred" could mean an awful lot to an awful lot of different people. Senator Flynn spoke recently about the necessity for this legislation, referring to a particularly repugnant incident in which she was involved relating to a taxi journey. Was hatred involved? She may have thought there was hatred by the driver towards her but, on the other hand, is that an objective test? At what stage should a judge say that this is what the Legislature meant when it prohibited the behaviour likely to incite hatred?
I intend to table a fair few amendments. I also wish to stress to the Minister that the 1989 Act is clearly past its sell-by date, not because there have not been enough prosecutions under it but because it belongs to a different era and is to do with what happens in public spaces and outside the home and does not take into account the Internet at all. I accept that we must modernise our law to stop rabid antisemitism being spread via the Internet with a view to causing hatred against Jews and other religious and racial minorities. Every time I hear people talking about hatred and violence and the like, I have not heard many of the NGOs that complain about this talking about the violence and threats of violence levelled at people such as journalist Mary Kenny if she went to Limerick to speak to the students. Riot squads have to be deployed to protect some people because they want to exercise their right of free speech. I echo what Senator Mullen said; in the days of a cancel culture, violence and the threat of violence are not a one-way street. The amount of vile vituperation against people by members of minorities and protected minorities or self-appointed spokesmen for particular varieties of protected minorities launched anonymously at people who they say are homophobes, transphobes and the like on social media is significant. I do not hear protestations that they need protection from anybody. Whether they are authors or lecturers or whatever, they are only being attacked for expressing a view, for example, on the subject of transgender and as to whether it is a viable concept. They are only being attacked for their views on that matter, in the most trenchant terms - they are being cancelled, there are near riots if they go to speak in places and hotel meetings are held in secret lest they be disrupted. Who is standing up to speak for freedom of speech? If we bring in a law that states that somebody stands up in public and a member of An Garda Síochána or a member of the public with a camera takes a clip of what has been said has the right to detain that person, who is going to say there is not going to be a chilling effect, especially when there are people who will resort to violence to prevent people articulating a view hostile to theirs?
In the last half-minute I have, I wish to say that this Bill must be amended. It is not in good shape. It emerged from Dáil Éireann on a wave of generalised support. It has come before us in a state in which it can be a charter for freezing genuine free speech and prevent people from articulating unpopular views, such as J.K. Rowling's or whosever they are. She is entitled to express her views and not to be arrested by a citizen or garda. Saying that, when it comes to court she will have all her protections. Going to court to defend your remarks in public and being acquitted is a pretty horrific experience for most people. Most people will take many steps to avoid the danger of being prosecuted and shut their mouths. It has been referred to in this House by Senator Chambers.
People in this House feel constrained about what they can say on certain topics. This because on both sides outside of the House, there is such a violent reaction on social media and in the conventional media. I want to say that I have no objection to this Bill being brought forward because the 1989 legislation is in need of radical overhauling. I have no objection to a Bill that prevents the abuse of free speech to create a violent threat against minorities in our society. However, we must go through the Bill line by line and with huge care to ensure it does not have the effect of having people being dragged before courts by citizens and members of An Garda Síochána who have a particular view of what is or is not hatred, because we were too lazy to define our terms.
The Minister is very welcome back and I wish continued good health to her and her family. As she knows, I previously introduced hate crime legislation in 2016 in the Dáil and in the Seanad in 2020. That Bill dealt with the area of hate crime but not hate speech. The reason I introduced that Bill at the time, and why my party supported it, is because it is a sad reality that hate crime is a real and lasting problem in Ireland today.
Over recent years, Ireland as a country has become far more diverse and inclusive. This diversity should of course be seen as a strength. We should all encourage and expand on it. However, sadly, not everybody has welcomed those changes. In fact, some see this strength as a threat and they are willing to engage in violence to continue exclusion. It is simply unacceptable that anyone in modern Ireland should be the victim of a crime because of their colour, ethnicity, asylum status, religion, disability or sexual identity. It is quite clear that the current legislation on hate crime is no longer fit for purpose and it needs to be modernised. I am pleased that we are having this very robust debate here this evening, which shows that we in both Houses and across parties all recognise that this is an area for which we need legislation. However, we of course, need robust legislation that is fit for purpose.
Ireland is basically the only country in the western world that does not have hate crime legislation at the moment. Hate crimes increased by 29% in 2022 according to the Garda. There is no doubt but that legislation alone will not tackle the scourge of extreme views or hate that are out there. It needs to be part of a wider response with education and with societal change. We must make clear that hate crimes against people on account of their inherent identity will not be tolerated in Ireland. We need to send a strong message to perpetrators of such crimes.
This Bill represents an important step forward in the pursuit of equality and justice for all our citizens. We have to be committed to fighting discrimination in all its forms and must try to tackle hate crimes in an effective and robust manner. Senator McDowell mentioned the UN rapporteur on the elimination of discrimination in Ireland. The rapporteur also stated that hate crime legislation needed to be introduced as soon as possible to address the escalation in racially motivated crimes and to help build a safer society. We all recognise the reality that hate crime is a real and lasting problem and that our legislation is sadly lacking. If the harm of hate is to be acknowledged and countered, it falls on us as legislators to act and to provide a legislative framework against the violence of hate and to explicitly name bias crime. We must join other nations in ensuring that the violence of hate experienced by vulnerable individuals and communities is challenged head-on.
We are all too aware of what these crimes look like. I spoke before in this House about a number of people of whom we saw very public humiliations because of their identities. We think of people like Shelly Xiong, who was pushed into the Royal Canal because of her race and of Seán Munnelly, a 15-year-old boy, who was attacked in Eamonn Ceannt Park because of the colour of his skin. A young gay couple, Anthony and Gearóid, were attacked and stabbed in Newbridge, because of their sexuality. This was only 100 yd from my own home. We have seen arson attacks on direct provision centres and refugee accommodation areas. We have seen mosques being vandalised. Those are only a few examples of some of the events that have taken place in the recent past. I know all of us will be aware of other cases. In many cases, the victims felt that they could not speak out because they did not want to be further humiliated and, understandably in many ways, they wanted to protect their own privacy.
In a society that does expound principles of inclusivity and diversity and in a society that was founded on the ideals that all people should be cherished equally, these experiences are simply unacceptable. It is the responsibility of all of us to send a clear message to society that this behaviour will not be tolerated. The human rights of those who are living in Ireland are violated daily in a manner which is deeply damaging, not just to individuals, but to society. In the absence of an adequate criminal justice response to hate crime offenders, victims continue to pay for these crimes. Research has provided convincing evidence that victims of hate crimes suffer more severely than victims of equivalent crimes that are not associated with targeted hostility. Those who have experienced hate offences report a wider range of negative psychological impacts, which also last for longer than those exhibited by victims of non-hate-related parallel offences.
These are many of the reasons I say we must have hate crime legislation. It was pretty much front and centre of the justice brief within the programme for Government. I totally agree with and support that. However, I do have some concerns, particularly around the area of hate speech. Many of those concerns have been articulated far better than I have done by my colleagues, Senators Chambers, O'Donovan and McDowell.
The terms "hate" and "hatred" need to be defined to make this a more robust Bill, because that is what is needed. We need something that will stand up to huge scrutiny afterwards. Like many of my colleagues who are present, I have received numerous emails in relation to this. I felt some emails were generated by people who may have had other views and other reasons for not wanting to have hate crime legislation. However, there were a number of people who were in contact with me whose bona fides I totally trust. Many of these people are progressive and I see many of them as liberal in their views. They expressed many of these same concerns. I share the belief that we will need strong amendments when we come to Committee Stage. I will support my colleagues in Fianna Fáil who will be tabling those amendments.
At the end of the day, victims are looking for change and we have to show them that change through our actions, and not through our words.
Every person has an equal right to be protected by the criminal justice system. Stopping hate crime and bringing perpetrators to justice must be a priority. They are the people we have to think about. They are the people that we have to respect. My primary concern, which is also that of Fianna Fáil, is that we get hate crime legislation on the Statute Book. It is vital that we send a clear message that crimes motivated by prejudice and hatred will not be tolerated. We cannot limit those responses to the justice system alone; we have to work at all levels of society to challenge widespread discrimination and prejudice and ensure that all people are treated as full and equal citizens.
I hope that the Minister is taking all of the comments that we are making in a positive manner. We want to work together to ensure that this Bill is robust, and that it sets out to do what I know the Minister wants it to do. It is important that the Bill is robust and that it is set out in such a way as to be able to stand up to the deserved scrutiny it will receive. Therefore, I hope that the Minister takes all of these points in the collaborative manner in which they are meant.
Before I call on the next speaker, which is Senator Dolan, I advise the House that this debate is to adjourn at 8 o'clock. The debate will resume on another date. The Senator can continue her 12-minute contribution on the recommencement of the debate.
I welcome the Minister, Deputy McEntee, and congratulate her and her family. It is great to have her here. She is present to discuss the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022. The Minister is aware – we can also see that here today - words have power. As the Minister has noted very clearly, hate crimes are on the increase. The Garda stated very clearly that there has been an increase of 29%. The Minister even highlighted that the most common of those crimes were against race, sexual orientation, and nationality; so it is a fact that in our society there are crimes against individuals because of where they are from, how they live, the colour of their skin and that those crimes are being perpetrated today in Ireland, in our democracy, in our Republic. It is necessary for the Government to put legislation in place. We must protect the most vulnerable in society and make sure that people do not have their freedoms taken away, but that they also have the freedom to live as they wish. People must have the freedom to live in Ireland and not be fearful when they walk outside their door about where they decide to socialise, where they decide to visit and how they decide to practice their religion. People should be free to do that in our society but currently, from the reports that the Minister has given us, that is not the case. Likewise, from what we hear ourselves, that is not the case. I have many friends and I want them to know that they can live here in Ireland free from the types of crimes that are driven and motivated by people who dislike and hate them because of who they are, where they come from, the colour of their skin, and for all those other identity characteristics that the Minister highlighted as the reasons for this Bill.
I have listened carefully to the debate here today. The Minister will be aware that there is a lot of debate and discussion about the importance of freedom of expression and how we guarantee it in our society, but it cannot be that we have it at no cost. There has to be a balance. It cannot be the case that we in Ireland-----Excuse me.
Senator Dolan should be allowed to speak without interruption.
Thank you, a Leas-Chathaoirligh. It cannot be the case that we live in a society that does not allow people to live without that fear. As the Minister outlined, there has been public consultation on the Bill she has brought before us, which started in 2019. I know that she has engaged with different stakeholders and officials in her Department on the Bill. The Minister has compared the legislation that we have in place with international norms and looked at what would work best within our system, jurisdiction and society, and would best benefit and protect the minorities here in Ireland.
We have a growing population of 5.2 million. As other Senators have stated, and as is the case in my own area, we have schools with 19 or 20 different nationalities and languages. The integration of different people and new communities who come to our country is happening now in towns, villages and cities, and it is happening at a very rapid pace. We are trying to keep up with that by providing capacity for childcare places, school places, and beds in hospitals. We are trying to keep pace with this, but it is a challenge because we live in a place where we were struggling with lack of investment in infrastructure for many decades. We now have an incredible boost to our society with all of these new communities coming here, but there are challenges and we need to be cognisant to the fact that traditional Irish indigenous communities, along with new communities coming to Ireland, are trying to adapt. We need to make sure that everyone here is feeling safe, which is not the case right now.
I acknowledge the Minister has been listening to the debate this evening and that she will take a lot of the comments on board. She will engage with all groups on this. I acknowledge the contributions of many speakers. Senator Flynn spoke very powerfully. Senator Ward spoke very strongly here as well about what has been put out in the media in relation to this Bill and how this must be based on fact. The Minister highlighted in her speech that the Bill is evidence-based. I know that she will respond to the contributions when we next debate the Bill. I acknowledge the efforts that are being made to make sure that Ireland is a place that protects the most vulnerable, which is what this Bill is about. I am very much cognisant of the time, a Leas-Chathaoirligh.
I can bring in another speaker.
No, I have too much to say.
Senator Ruane can come back in.
I would rather not.
May I continue?
Yes, that is fine.
Will the Minister get a chance to respond?
I look forward to the Minister's response when she comes back to the Chamber. I understand that people want to give more time to the process, but it has been ongoing since 2019. We must put the legislation in place. We need to have something in place as soon as possible. The Minister is giving the Bill time. She will come back to the Chamber and will engage on amendments. It is very important that we see this legislation enacted and that it is put in place in this country as soon as possible.
Next on the list I have Senator Ruane, but she does not have to come in. I call Senator Keogan.
I will probably not get very far on this because I will start off on the wrong note or say something wrong and I will be cancelled before I even begin.
The Senator will not be cancelled until she has spoken for at least a minute.
The Minister, Deputy McEntee, is very welcome. It is great to see her back. I congratulate her on the newborn.
I was very taken aback by what can only be described as an attack on the Opposition by Senator Ward. To tell the God's honest truth, I felt it to be very intimidatory. His raised voice was not warranted. It was unnecessary to speak in the tone in which he spoke to open the debate. I will just get that off my chest now before I start.
There is no great secret about my opposition to this Bill, but much more than that, it is not secret that the vast majority in Ireland is opposed to the Bill.
Ah gosh, there you go.
It was getting good.
I do not mind.
To be continued.
As it is 8 p.m., the debate must now be adjourned in accordance with the order of the Seanad today.
When is it proposed to sit again?
Tomorrow at 10.30 a.m.
Debate adjourned.
Cuireadh an Seanad ar athló ar 8.01 p.m. go dtí 10.30 a.m., Dé Céadaoin, an 14 Meitheamh 2023.
The Seanad adjourned at 8.01 p.m. until 10.30 a.m. on Wednesday, 14 June 2023.