Amendments Nos. 1, 97, 102, 110, 112, 115, 117 to 119, inclusive, 121, 122, 126 to 128, inclusive, and 134 to 173, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022: Committee and Remaining Stages
SECTION 1
Government Amendment No. 1:
In page 5, lines 26 and 27 to delete “Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Act 2023” and substitute “Criminal Justice (Hate Offences) Act 2024”.
All these amendments aim to do two things: first, to remove all the incitement to violence or hatred provisions from the Bill; and second, to deal with the consequential amendments arising from enactment of the Criminal Justice (Miscellaneous Provisions) Act 2023. I will deal with these separately and will start with the first tranche.
As Senators are aware, the Bill originally aimed to achieve two objectives which were to update and modernise our existing incitement to hatred laws, and to introduce hate crime provisions for the first time in this State. Regrettably, while there was significant consensus in the Dáil for incitement to violence or hatred provisions, including opposition, that consensus was lost in proposals to expand the law further. This led to my announcement last month that I would be proposing a series of Committee Stage amendments to remove the parts of the Bill which deal with incitement to violence or hatred and to proceed only with the elements that deal with hate crime. Government endorsed this decision on 26 September so that the much-needed protections against hate crime could be progressed to enactment.
The core purpose of this hate crime legislation is to publicly recognise the harm that is caused by criminal conduct motivated by hatred and to make clear that this will not be tolerated. Hate-aggravated offences have been criminalised in most western nations. Hate crimes challenge our societies by directly undermining a sense of belonging and place which is central to inclusive communities. We must do everything we can to protect people from being targeted just because of who they are, particularly in the current climate of increasing intolerance, hatred and violence towards vulnerable and marginalised communities.
These are the first of many amendments that give effect to this decision. I recall comments by certain Senators in this House last year to the effect that this Bill would get through in a heartbeat if the hate crime elements were separated out. I am delighted that we are here and will be passing it. This is what I am proposing to do. Almost half of the Government amendments I will move this evening are to remove the incitement to violence or hatred provisions entirely from this Bill so that we can progress this important element of legislation and send a very clear message that hatred and violence are not tolerated in our society. I have said very publicly that I believe we need to update our 1989 Acts. I absolutely believe this needs to be next on our agenda.
I will outline the changes as they have been grouped and as they arise in the sections of the Bill. To begin with, I am moving amendments to the Short Title of the Act as provided for in section 1. Subsection 1 will be amended to provide for the Short Title to be changed to the Criminal Justice (Hate Offences) Act 2024. Subsequent amendments will involve the deletion of sections 6 to 16 which make up Part 2 of the Bill and references elsewhere to incitement to violence or hatred and to the EU framework decision on combating racism and xenophobia. The Prohibition of Incitement to Hatred Act 1989 will no longer need to be repealed. Section 4, which provides for the repeal, will also be deleted. Specifically, amendments Nos. 1, 97, 102 and 110 remove references to incitement to violence or hatred. Amendments Nos. 112, 115, 117 to 119 and 121, 122, 126 to 128 are minor technical amendments that are required in order to update the references to this legislation that are being inserted into other Acts to create new hate aggravated offences. These arise from the removal of the incitement to violence or hatred provisions in part 2 from the Bill. Amendments Nos. 134 and 135 are technical amendments that also result from the removal of the incitement to violence or hatred provisions.
The second tranche of technical amendments, from amendments Nos. 135 to 173, inclusive, result from the insertion of new offences into the 1997 Act for the Criminal Justice (Miscellaneous Provisions) Act 2023 enacted last year. The relevant sections of that Act were commenced on 31 October 2023. These amendments will update section numbers and references to the new hate aggravated offences in the 1997 Act that were changed by the 2023 Act so that the legislative logic of this enactment is maintained.
I welcome the Minister to the House and I thank her for taking on board, in part at least, the criticisms of the Bill that were made in this House. It is fair to say that if it was not for the Seanad, we would not be in the place we are in today. The Government has taken on board, at least temporarily, the serious concerns people had about this legislation in its original form, as passed by the Dáil, and its implications for legitimate freedom of expression on important issues of controversy.
That is not to say the Bill did not attempt various protections for freedom of expression and I have always acknowledged that. It is also not to deny there were categories of communication that the Bill sought to protect. However, as was pointed out to the Minister at the time, those protections did not go far enough. In fact, it was all about the context. I previously said to the Minister what seems like a long time ago now, when we had the Second Stage debate on this Bill, that our society is in the middle of a cancel culture. People attempt to weaponise taking offence at other people's communication in order to close down the expression of opinions and ideas they disagree with and believe should not be allowed. Such a culture is of course toxic to any free society. It was pointed out to the Minister, and I again acknowledge what cannot be denied, that were it not for some people on the Government side who accepted there were problems with the Bill as previously cast - insofar as they related to incitement to hatred in particular, the non-definition of hatred in the Bill, the problematic definition of gender in the Bill and the potential for something that was designed to ostensibly protect people from hate-related speech which could endanger them - the Bill could have in fact gone much further and been used to close down the legitimate exchange of ideas on controversial issues.
To the extent that the Government has, as I put it earlier, pulled in its horns on the incitement to violence or hatred, that is welcome. However, I can give it only a partial welcome. First, I put on the record that I would have had no problem supporting an update of the 1989 legislation so far as the prohibition on the incitement of hatred or violence is concerned. What we should be dealing with today are Government-sponsored amendments to that legislation to deal with the legitimate concerns the Minister took on board. I do not understand why the Government's response was simply to cut that out of the Bill. My suspicion is that it is just parking it for another day and that when the members of the Government get back into government, they will come back with it and use their majority to push it through without ever engaging with the concerns people had about how far these provisions on incitement to violence or hatred went. As the Minister knows, I have the greatest of respect and goodwill towards her personally, but I am disappointed that no attempt has been made to seek out those who expressed concerns about the Bill and to see whether we could work together to address those concerns in a way that would meet the objective of updating the Prohibition of Incitement to Hatred Act, if that was necessary. I am concerned by the lack of communication that has taken place and what that means in regard to the Government's true intentions, which we must try to discern. That is my first point.
Second, it has been said, rather casually and sometimes glibly, that the 1989 legislation is not fit for purpose and is out of date. My friend and colleague, Senator Ward, mentioned in a prerecorded Newstalk interview we did earlier today that this Bill is to take account of the new digital space, which is not covered by the 1989 Act. I am not sure that is the case. In advance of the European and local elections, helpful documentation was produced by the Electoral Commission to enable politicians to protect themselves and keep themselves safe in the context of the election campaigning. It is interesting, if I recall correctly, that among the legislation invoked as being of assistance was that 1989 legislation. I am not sure there has been careful and honest scrutiny of how the 1989 Act could have been tweaked, if necessary at all, to transfer over what that legislation does in regard to traditional modes of communication and media to ensure, for the avoidance of doubt, that it would also cover anything expressed in the digital and online space.
Of course, as we know, the Government has expressed the desire to secure more prosecutions in this area. That is why we had the strange situation on Second Stage of the Minister, if I recall correctly, using language like "stir up" and talking about how the legislation was intended to prevent people from stirring up hatred, when, in fact, that language was not in the Bill. A lower threshold was being established, which bolstered our concerns that this could be used to close down legitimate freedom of expression. As I said, the Minister has dealt with that temporarily by simply pulling the whole thing out of the Bill. I have concerns about that approach as opposed to a more studied and consultative set of amendments that would allow us to agree on how to cast legislation for this era dealing with incitement to violence or hatred.
The Minister also mentioned, and she is right, that it was said that this legislation would pass in a heartbeat if it contained only the hate crimes element. I think I am the party who spoke in that respect. It is true in that I have much less concern about the hate offences part of the Bill than I had about the implications for the free expression of ideas contained in the incitement to violence or hatred portion. In the same way, I had much less concern about the section of the Bill, which has not been removed, to do with genocide, Holocaust denial and so on. That is not to say I have no concerns. I remember, before any of this legislation came to the House, taking part in an online briefing with Department of Justice officials. I put on record my concern then and I put it on the record again today. I understand the argument for identifying certain groups of people in society in respect of whom if crimes of violence or assault on their property or person take place, and if such crimes are motivated by hatred towards them because of the particular characteristics they might have, that may have a chilling effect on them as a community and there is a particular damage that is done. I can imagine a scenario, for example, where there is a small minority-ethnic group in a particular community and they are being subject to a series of attacks motivated by hatred towards them. I get how that would have a frightening effect not just on the person who is attacked but on the small group as a whole. It is not that there is no argument for selecting particular groups whereby if hatred is shown towards them in the context of a crime committed against them, it is especially grave. I accept that argument.
There is an argument against it, however, to which the Government has not faced up. That argument is that in a society that is already polarised and divided, it is dangerous to go creating different tiers of victimhood in respect of the same crime. It is dangerous to go beyond the point where judges already have a certain amount of latitude and leeway to have regard to the particular circumstances of a crime committed, including not just the mentality of hatred that might underline the crime but other circumstances that would make a given offence particularly egregious in a particular set of circumstances. That discretion and latitude is already there for the courts. It is best left there, even as I acknowledge that there may be, as I said, cases and categories where certain crimes are particularly harmful. It is best left to the courts to take all of that into account in the context of sentencing.
Why do I say that? I do so because, as I said, in a society that is, sadly, polarised and, it seems, more polarised than it used to be, where people are very quick to sense that they are being left behind or are uncared for, anything that suggests that, in the eyes of the State, a crime against X is less serious than a crime against Y is potentially damaging to the common good. I gave the example in my debate with my friend and colleague, Senator Ward, earlier today that if somebody assaults a child because there is a hatred towards that child's parent or just because the attacker is being malicious on a given day, to that child and to that family, the offence is just as serious and grave and deserves the same level of seriousness from the State as if the offence were an offence committed against that child because he or she is a member of a particular ethnic group. It really is for judges to decide what is going on in a particular case. An underlying attitude of hatred towards a particular community or group is just one of the issues a judge should take into account.
On balance, if I were asked, níorbh é an cloch ba mhó ar mo phaidrín, mar a deir siad i gConamara. This was not my biggest concern. However, I do have a concern about the tiering of victimhood. When we tier victims, we also tier offenders. Treating one offender's offence as more serious because it is motivated by a mentality towards a particular group is a dangerous road to go. The solidarity we need to promote in society demands a constant reinforcement that we are all equal in the eyes of the law. That is a fundamental constitutional principle which I should not have to restate. There is something about the hate offences section of the Bill that subtracts somewhat from the principle that we are all equal in the eyes of the law. However, as I said earlier, I was happy to live with that.
One of the reasons I am happy to live with it is because when you are talking about hate offences, you are talking about people who have committed a crime anyway. While they might deserve incarceration that is designed not just to punish them but to rehabilitate them, my sympathy towards them does not go very far. Where we are talking about a criminal act, one can make an argument that there is already a level of punishment that is deserved and it may still be that even if the crime is upgraded because of a hate motivation towards people with a protected characteristic, there are still other issues judges may take into account in the sentencing in individual cases. That makes me think there will be no real difference, in practice, to the actual discretion judges might have in a given situation. I am very interested in hearing what the Minister has to say to that and indeed, what my colleagues Senator Ward and Senator McDowell might have to say that to that idea when they come in.
The point I made at the time to the officials from the Department of Justice is that the problem here is a tiering of victimhood that makes me nervous. I will park that, however, and not oppose the Bill today on that ground alone. I will express my concern and move on. There are other, more serious issues with the Bill. I will go further and say that the failure to define hatred, while less serious because the prohibition of incitement to violence or hatred will be removed from the Bill temporarily anyway, remains nonetheless problematic. That is all I will say about that for the moment because I will propose my own amendments, with Senator Keogan, which will offer different alternatives as to how hatred might be appropriately defined having regard to international instruments.
For me, the big challenge remains that a strange, anomalous, innovative, weird and dangerous definition of gender has been left in this Bill. I urge the Minister to change course on that. Let us recall that this Bill grew out of a European framework decision of 2008 and 2009 that put the onus on member states to take actions in order to combat racism and xenophobia, as we all know. The concepts we were asked to deal with as member states, with latitude given in various respects, were all about race, colour, religion, descent, or national or ethnic origin. This Bill clearly goes much further than that. It is worth recalling that is what this framework decision was about. The reference to religion is required to cover at least conduct that would be a pretext for directing acts against a group of persons or a member of such group defined by reference to race, colour, descent, or national or ethnic origin. Clearly, the issue underlying the framework decision was racial harmony. It was about racism and xenophobia. The framework decision required each member state to take measures necessary to ensure that certain types of conduct would be punishable, such as publicly inciting violence or hatred directed against a group of persons or a member of such group defined by reference to race, colour, religion, descent, or national or ethnic origin. Clearly, there is a requirement on foot of the framework decision with regard to certain kinds of incitement to violence or hatred. Obviously, that is not addressed in today's Bill so this work remains unfinished from the perspective of the decision. It requires thinking about it in terms of groups defined by reference to race, colour, religion, descent, or national or ethnic origin.
To the extent that we see the framework decision as binding, it is clear that the Minister has to think in terms of the groups in the legislation that she is casting here to implement that decision. This does not mean that the route of greatly widening the list of groups by reference to protected characteristics needed to be travelled in the way it was. It would be possible - indeed, I have amendments that seek to do this - to achieve a hate offences provision that has regard to hatred but widens the groups' possibilities, as the framework decision entitles the Minister to do. The Minister could take account of hatred aimed at individuals or at individuals by reference to their group status, and such group status could include their family membership. I refer to circumstances in which a person is a member of a particular family, and a child is targeted because they are from that family. I argue and have argued here in my amendments for including people's political opinions as entitling them to be considered in terms of group characteristics. If somebody is attacked because of their connection with a person who has particular political opinions or affiliations, or indeed because of their own political affiliations, I see that level of victimisation as just as serious. I think the Minister should seek to secure that in the context of what she is doing around hate offences.
As regards the troubling issue of gender, and I will return to this in my amendments, it is clear to me-----
Can we leave it until that stage so we can move on with the Bill? Would that be possible?
Let me sum it up. The Minister has spoken about what she is taking out. She has said we should be satisfied with what she is leaving in. The definition of "gender" confuses gender, which is objective and has to deal with the male-female binary, and gender identity and expression, which you might also see fit to include as a basis for protecting a group. Confusing them and redefining them all as being part of "gender" is an unprecedented step. That should not go into the statute law of our country. It should certainly not go into the statute law of our country if it is her intention to proceed at a later date, if she is the Minister, with incitement to violence or hatred legislation. In such circumstances, we would be back to the same problem of cancelling people's views and closing them down because they dare to say if you are a man you are a man and you cannot be a woman, except if you choose to have a preferred gender under the 2015 legislation. You certainly cannot be both a man and a woman and you cannot be one of the amazingly increasing number of genders. That takes us into "Alice in Wonderland" territory and the Minister should not do this in this legislation.
It does not need to be done in order to protect people who might feel vulnerable or may be vulnerable. Senator Ward reminded me today that there is evidence - I have not seen that much of it but I am willing to accept it is there - that shows that people are being targeted in a particular way because of their gender identity or expression. I do not mind why people are being targeted; it is wrong. If gender identity and expression - that subjective state where a person believes themselves to be a particular gender, set of genders, no gender or some gender nobody has ever heard of before now - is to be included, that is fine. It can be put in, but it should not be confused with the true meaning of words which we have had right up until this point in Irish legislation, which is that "gender" refers to male or female, because to do so would have implications for future laws. We know the way legislation piggybacks on previous legislation and uses definitions from previous legislation. It cannot be anything other than ideological. I am not saying it is the personal ideology of the Minister, but it is the ideology of people who have access to the Government.
The confusing and highly intentional new definition of gender has implications for women's spaces, children's safety and many issues down the line, as I will make clear when it comes to the amendments.
The Minister is right. If it was only about the hate offences, the Bill would pass in a heartbeat - let us say a rather slow heartbeat - though not without objections. Certainly, while that definition of gender remains in this Bill we are in the same dangerous, toxic and irresponsible place we always were.
We should not be deciding this. We gave the Government pause in the Seanad. Many people lobbied the Government on social media inside and outside of this country. Insofar as the dialogue and contributions were respectful, I endorse them wholeheartedly, but it is no response to such responsible use of our parliamentary time to raise important issues to then propose that this entire issue be wrapped up in one session here today. Is there any reality to my ability, or that of Senator Keogan or anybody else here, to convince the Minister about the merits of an amendment we might have tabled on Committee Stage if there will not even be time to re-table that amendment on Report Stage or for the Minister to consider the issues with her officials? There is cynicism at the heart of the timetabling and organisation of the remaining Stages of this Bill.
Will the Senator take a point?
Of course. I always take a point from the Senator, though I might not agree with it.
Perhaps there would be time if the Senator had not spent half an hour making what is, in essence, a Second Stage speech-----
Hear, hear.
-----that does not really refer to any of the amendments that have been tabled.
Hear, hear.
That is a classic tactical point that Government Senators repeatedly make. What I have noticed in the past here is that other Senators might come in and set out. I have not repeated myself hardly once in the context of what I have set out. I cannot believe that my colleague and friend, Senator Ward, said what he said. Here we are for the first time in more than year since we last discussed this issue and we have not been consulted with even once by Government. We have raised issues. We persuaded the media, mainstream and others, to take our points seriously to the point that the Minister and others representing the Government rightly had to answer hard questions. The Minister might have acceded, to some extent, to the validity of our concerns by withdrawing parts of the Bill here today. For my colleague, Senator Ward, to get up on his hind legs and offer a point of information - sorry, Barry, you only have two legs and I am not trying to suggest anything by that; I really am sorry and I did not mean it in the way it came out - to get up on his two legs and take issue with the fact that I remind this House of all the problems with this legislation and of the problems that remain after a gap of one year really beggars belief. It is suggestive of a governmental attitude that is not only not interested in the free exchange of ideas, but not interested in engaging with the real concerns that people have and have expressed. We should never use the guillotine in this House, especially not in the Seanad, except in cases of extreme emergency.
The Seanad exists to be the second eye on legislation going through the Oireachtas. Insofar as this hate-related legislation is concerned, the Seanad had done its job well. This is one of the occasions that we can point to where the Government was given pause by issues that were raised in the Seanad that were not properly ventilated in the Dáil. Please, Senator Ward and others, do not take umbrage or try to close down the debate by reference to the fact that I set out the issues again after a gap of a year or more. These issues have to be talked through properly. Let me hear it from the Senator that he will not support the ramming through of this legislation here today, and that he will not support the conflation of the important Committee Stage and the vital Report Stage of this legislation in the Seanad.
The Order of Business has been accepted by the House today.
That I accept. Using the Government's majority.
No vote was called.
Using the Opposition's minority.
When Senator Ward tells me he is uncomfortable about the use of the guillotine, I will listen with more eagerness to what he has to say about the relative length of speeches. This is one speech that has to be made, however, because there is a lot that is still wrong with the Bill.
Go raibh maith agat, a Cathaoirleach Gníomhach. I will start by addressing that issue. This Bill has been discussed to an extraordinary extent on Committee Stage. Yes, it was a while ago and the reason for that is because the Minister took away-----
The Senator said "Committee Stage". Can I offer the Senator a point of information?
Senator Mullen had his turn to speak. Let Senator Ward speak.
Through the Chair, Senator Flynn. The Senator will have her opportunity to speak in a moment; she is next.
Go ahead, Senator Mullen.
It is the least the Senator could do. Senator Ward said “Committee Stage”. We have not had discussion on Committee Stage. Everybody had one speech on Second Stage in the Seanad and this is Committee Stage.
Yes, Committee Stage.
Yes. The Bill has been discussed. I may have misspoken in respect of Committee Stage. The Bill has been discussed extensively in this House. It has been discussed at the Oireachtas Joint Committee on Justice as well. There is no lack of discussion on this subject. Senator Mullen and I have shared platforms in respect of this on a number of occasions. We have been in the media on this on a vast number of occasions - far too many, some might say. There is no lack of discussion on this Bill. The Bill has been scheduled for four and a half hours of discussion today. We have now spent 35 minutes of those four and a half hours listening to Senator Mullen telling us about the issues that have to be talked through properly. The Senator should understand that talking through issues does not mean a monologue from one Senator with one perspective.
This is a debate where amendments have been tabled. Each amendment should be discussed and debated with regard to the amendments themselves. What we actually heard from the Senator was an extensive Second Stage speech in which he set out all the issues he has with this Bill, including aspects of the Bill that the Minister is withdrawing from the House. If that is not a waste of some of the time that this House has, then I do not know what is.
I will not spend a lot of time talking about this but I want to address a couple of issues raised by Senator Mullen. He expressed a view that the difference between an offence committed against a child because somebody hates their parent and an offence committed against a child because of the ethnicity or race of that child is naught . That is to fundamentally misunderstand the effect on a person of an offence that is motivated by hatred because of, for example, ethnicity or race. There is ample academic literature to back this up but it is perfectly commonsense that when somebody is targeted because of who they are in terms of their being, not what they have chosen to be, it has a deep effect on them. If a child, for example, who is not Irish and maybe is ethnically different is assaulted on the street, let us say, the message that child takes is that they are not welcome, that they are different, that they are othered and that they are not safe or welcome in this community. That has a deep-seated psychological impact on that child. That is something that is recognised in the courts as an aggravating factor at sentence. It is widely recognised in our criminal courts. In fact, I have never heard that fact being disputed before. The notion that somebody-----
Will Senator Ward take a point of information? I did not dispute that view today that judges have latitude in this area.
No, what the Senator disputed is that there is no difference between, let us say, a child born in Africa who is ethnically African and comes to this country and is assaulted in the course of a hate crime, called names, othered and essentially told they are not welcome, and a child who is assaulted because somebody does not like that child's father. There is a fundamental difference between those two things. It is so fundamental that this House and the other House have spent a great deal of time passing an extensive piece of legislation to recognise the fact that that offence is markedly different in character, and perhaps most importantly, in the effect that it has on the victim of that crime. I have never heard anybody in the law courts or in these Houses actually dispute that fact, other than Senator Mullen when he stood up today and essentially said the same thing.
He talked about the fact that there is a tiering of victimhood. I have news for Senator Mullen: every single crime is different, every offender is different and every victim is different. The effect on every one of them is different, so of course there are tiers. If, for example, a person is a victim of domestic violence and assault at home by a partner, that is completely different from somebody who is randomly assaulted on the street by a person coming out of a pub. They are different. The Senator can call them tiers or differences, but it is entirely appropriate that the law would recognise that one is more serious than the other because it has a more profound effect on the victim. That is the reality of the criminal law and the way the courts approach it. The reality of what we are doing in this law is trying to recognise the fact that crimes do have different effects on people, which is something that must be taken into consideration.
By the way, we already do this in law. We recognise the fact that, for example, murder of an individual is different from capital murder of a garda in the course of his or her duty. We have already put through legislation in this House to recognise the difference between assault on an individual and assault on an ambulance crew who are trying to help somebody or a fire crew who are trying to stop a fire from burning down a home. These are different crimes and they deserve different recognition in law.
It most certainly does not affect the doctrine that everybody is equal in the eyes of the law. That is not what this is about. It is exactly this kind of mischaracterisation that has polluted the well-founded concepts behind this Bill. It is the muddying of the waters by Senator Mullen and others in this House, who have suggested that there is somehow a nefarious ideological agenda here - that is not here - but instead it has caused people to lose faith in aspects of the Bill and resulted in us having to come back here.
And end the Government.
When we look at the percentage of the vote and support that you enjoy, Senator Mullen-----
Senator Ward should speak through the Chair.
-----relative to what is enjoyed by the Government, then you can start assessing who the people have confidence in.
I got my quota.
Senator Ward should please speak through the Chair.
The second issue Senator Mullen raised was the definition of gender. Again, I have raised it in this House on a number of occasions. There is an expansive, extensive and broad definition of gender in section 3. It is there for a very good reason - because the very people who fall outside the traditional norms of gender in this society are the same people who are repeatedly targeted for harassment and criminal activity due to them being non-gender normative. That is the reason the definition is so wide. That is one point, but let us park it for a moment.
Senator Mullen then takes that and decides this is somehow going to leach into every other active Bill that has been passed by these Houses, without any basis for making such a statement. The definition of gender in section 3 can only apply when the Bill becomes law. It can never apply to any other piece of legislation because it is specific to this legislative measure. That does not stop Senator Mullen suggesting to us that there is somehow an attempt by the Government to create a new definition of gender.
Hear, hear.
There is a new definition.
There is no basis whatsoever for that accusation. The definitions in this Bill specifically relate to the matters that are dealt with in this Bill. Different words are defined differently in various pieces of legislation because they are approached differently. They do not always mean the same thing in different contexts. That is a normal part of legislative practice. It is not unusual. I could give Senator Mullen a list of other words that apply differently in various pieces of legislation – from "public place" to "mechanically propelled vehicle" to "tax". Every one of them has different meanings. Let us not try to muddy the waters further.
Ironically, Senator Mullen talked about cancel culture, and how this Bill is somehow going to promote that. Once again, this is a complete and utter misconception that he has perpetrated time and time again. The Bill is not about being offended or taking offence. The Bill does not outlaw people being offensive.
I never said it did.
I congratulate Senator Mullen on that because he has an opportunity to continue to be offensive after this legislation passes. It is not about Senator Mullen and people being offended, giving offence or taking offence; it is about a legal framework to protect people who have repeatedly been the subject of abuse, harassment and crime in this community. It is about saying to them: we recognise the impact of these criminal actions against them, and we are willing to recognise the fact that it has a deep-seated impact on them, not just personally but on their community – and on the other people who are within that characteristic and, most importantly, their ability as a citizen or resident of this State to peaceably enjoy the environment the same as the rest of us. That is what this is about. Let us not talk about cancel culture as if it is something any of us approves of. I am totally opposed to cancel culture.
I wish.
That is not what the Bill is about. It does not outlaw giving offence or taking offence. After this legislation passes, even without the hate speech elements of it, it will still be permissible to say things that are offensive. It was never going to be any other way, but Senator Mullen repeatedly suggests that in an attempt to include in his army of misinformation things that are simply not in the Bill. I absolutely reject that.
It is important that we talk about these issues but, most important, when we pass this Bill, that we set down a rule for a case when someone is about to target a group that is vulnerable. It is not about majority groups, equality before the law, or saying all crimes are the same, because none of those things applies in regard to this Bill; it is about saying what will happen if you want to commit a crime against somebody and you target that person because of their ethnicity, religious belief, sexuality or gender. We can talk about what gender means if you want, but gender is actually a grammatical construct – sex is the word we should use if you want to go down that road. Everybody understands what-----
I would be delighted if you went back to it. You have been manipulating gender very conveniently for years.
That is why there is a definition in section 3.
It says, gender bending.
Once again, you have managed to be offensive without actually contributing to the debate. It is about saying that if a person is part of a group that is repeatedly targeted, we recognise that is a serious matter. It is an aggravating factor and is a crime all of its own. It is appropriate for these Houses to recognise the impact that has on those individuals and to say, if you are going to do that, you will suffer greater consequences before the courts. I do not have a problem with any of that. I have no concerns about this legislation. I certainly have no concerns about the semantics that the Senator finds to try to satisfy the very limited cohort of people who have concerns about this, many of whom have emailed me and with whom I have engaged. I do not have concerns. This is an entirely proportionate and reasonable piece of legislation.
I recognise what the Minister has done in taking on board the concerns expressed on Second Stage in this House, in saying she will slim it down to satisfy those people. I do hope it is something we can revisit in the next session of these Houses, whenever that is. I acknowledge what the Minister has done. I put on record my admiration for the fact that she has taken the concerns on board and resolved those issues. Despite the fact that she has done that, Senator Mullen and his cronies still come in here and find a way to complain about it. Let us please get on with passing an important piece of legislation.
Hear, hear.
I thank Senator Ward. Before I call on Senator Flynn, I welcome visitors to the House who are guests of our colleague, Senator Lombard. We have Liam Condon, Gerard Crowley, Seamus Walsh and James Kilduff. I hope they enjoy the hospitality and entertainment that Senator Lombard will provide later.
Lavish is the word.
I do not know what rock Senator Mullen has been living under for the past five years because the Coalition Against Hate Crime Ireland has worked with the Minister, other Senators, TDs, and the Department to have robust hate crime legislation. In my early days, I remember speaking with Members of the Oireachtas about this piece of legislation. I also remember that Senator O'Loughlin brought in a piece of legislation. We want a piece of hate crime legislation that is fit for purpose. That is what Senator Mullen has said himself as well.
I did not agree with scrapping the hate speech part of the Bill. I put my hands up to that. I have tabled amendments on it. I have to say: a good start is half the battle. I am absolutely delighted for people from minority groups to feel heard and seen within Irish society. That is thanks the Minister and to the coalition beside me. I have worked very closely with Dr. Seamus Taylor in the last five years. He also worked on hate crime in England. We have got the best people around us. I know that from the Coalition Against Hate Crime Ireland and the amount of work it has done in the past five years, but also for decades.
From 1989 to 2017 there were only five prosecutions for hate crime. It is not that we are going to be locking people up and throwing away the key or anything of the sort. It is about minority groups. It is not acceptable that my child, or children within my community, can be targeted because they are members of the Traveller community. That is not in the Bill. I do not know where Senator Mullen got that from, and why he is even speaking about children. Unfortunately, if you are born as a member of the Traveller community, a person of colour or born into another family, you are automatically seen as different within Irish society. Likewise, if you are a child with a disability, you are automatically seen as different within Irish society.
Instead of looking at people being all the same within the justice system, we have to look at differences within all of our systems. We must celebrate differences. I do not pretend to be the same as anybody here in these Houses. I am unique. I am okay with being unique. I am the first ever member of the Traveller community in these Houses. I bring pride and dignity to that. I am okay with being different. Do not insult me for my identity when I walk down the street. Do not insult a person walking down the street or burn a person's home because of the colour of their skin, their identity, sexuality or gender.
It would be great for all minority groups in the country if we were to pass this legislation. I know at least two Senators will talk and talk and feed into a minority view. It is a smaller minority than my community. There are 40,000 Travellers in Ireland and we would not even fill up Croke Park; we would only need a little section of it. The support Senator Mullen has is an extremely small community. It is a bit loud but we can all be a wee bit loud, if you want.
I credit the Minister from the bottom of my heart on behalf of all minority groups in the country and people who are different, be they trans or a person with a disability. This legislation is not ideal. I get that. I am disappointed at the scrapping of the hate speech element.
Our amendments address the report of how the process is going. The amendments from the Civil Engagement Group come not from me or Senator Higgins; they come from the coalition, the people from minority groups who are impacted most.
I look forward to discussing our amendments and urge Senators to be mindful. As the Minister said in the early days of this discussion, people still have the right to be offensive. It is unfortunate we have public representatives who still want to be offensive and to insult people who are othered in Irish society. I thank the Minister and welcome the coalition here again today. Senators should be mindful the Gallery is full of supporters of this legislation. We have two Members in the House this evening who are not supporting it. That is fine. They are entitled to freedom of speech and expression and all that jazz, but they should be mindful that people in the Gallery support the legislation.
Sinn Féin raised a number of flaws in this legislation in the last term, especially in the hate speech elements, as it proceeded through both Houses of the Oireachtas. These concerns included the definitions of "hate" and "hatred", or lack thereof, and still remain, as well as the over-reaching grounds for searches of phones and other personal devices, and freedom of speech issues.
While the Bill has been in the process of passing, we have seen the genocidal actions of Israel take place in Gaza and now Lebanon. An unprecedented mobilisation against genocide and in solidarity with the Palestinian people has taken place here and across Europe. Hate speech laws have been used to remove legitimate symbols of expression, such as the Palestinian national flag, during protests. In Britain, one woman faced arrest and was prosecuted for a poster of the then UK Prime Minister, using a term which academics testified at her trial was not a racial slur. Nevertheless, she faced personal and professional ruin when she had, in reality, no case to answer.
Unfortunately, the Government has pressed ahead bullishly without taking on board any of the concerns raised by Sinn Féin. It is for that reason we voted against the legislation in this House in June and it is for that reason we now propose, as the Government does, to delete the relevant sections. We support the amendments to delete these sections.
I join Senator Flynn in calling for us to press on with this legislation at this stage. Many hours have been dedicated to this Bill. There have been issues, particularly with regard to definitions, but ultimately we in the Labour Party are supportive of the Bill and what it is trying to do, particularly when we see a rise in the number of reports of attacks driven by racism, homophobia and transphobia. To us, this Bill is all the more necessary now. It is with some disappointment we see the Minister deleting the update, effectively, to the 1989 Act. It is regrettable she is shying away from that. I think she is being overly cautious. We believe an upgrade is required to that Act.
There is a fundamental challenge in the Bill as it will be amended by Government amendments. We will have two different definitions of "protected characteristics". Under the 1989 Act there are seven protected characteristics, while under this Bill there are ten. It is not entirely clear, if the 1989 Act is not repealed, whether the ten or the seven protected characteristics apply to the incitement to hatred laws. We firmly believe the list of ten protected characteristics that applies to Part 3 of the Bill must also apply to the incitement to hatred laws.
We have received much correspondence in recent days urging us to vote down this Bill. People have raised their concerns that this is an attempt to silence or to ram one set of views about gender down the throat of others. I could not disagree more with many of the comments we have received. I find it sad that people feel so threatened by people saying there is something other than biological male and female. Any of us with life experience in this House should recognise that while our world is still built around the binary male-female order of things, there are a small but real number of people who believe they are born in the wrong body and do not fit into the male-female definition. We need to listen to and respect them, ensure health and other social supports are there and show empathy.
The critical thing is the Bill does not create any new legal status. It is not about creating a new list of genders. It is about ensuring if somebody wants to project their hate or distaste onto another person just because of what or who they are, and does so with the use of physical or verbal violence, that is not acceptable and should be met with the force of the law. That is why the Bill is really important.
We cannot deny the increase in appalling attacks, particularly in the past 12 months. I am thinking particularly of one young man I know, Patrick, who, in broad daylight on a Saturday afternoon outside a Luas stop, was beaten up just because of how he dressed and how he presented to the world. That is not the kind of Ireland I want my kids or anybody else's to grow up in.
Our amendment to standardise or provide clarity on the list of protected characteristics was unfortunately ruled out of order because the Minister is amending the Bill to delete section 4. We believe clarity is now required as to whether the list of ten protected characteristics will apply to the 1989 legislation.
I am surprised by the personalised approach taken by Senators Ward, Flynn and, to a lesser but somewhat existent extent, Sherlock to attacking our concerns.
Those of us who have concerns about this Bill have set them out very carefully. The difference between Senator Ward and me is that I acknowledged the point of view that the other side had. I expressed, for example, why I could see the argument that a particular person who was a victim of a particular crime coming from a particular group-----
I ask the Senator to speak to the Chair, not to the Senator.
I am just looking at him; I am speaking to the Acting Chair. He is a beauty to behold, no more than myself.
I accept the argument but my point is simply this: on balance, it is dangerous to go tiering victims and it is best left to courts to make rulings in sentencing having regard to all of the circumstances in the case of an offence, including a hatred motivation. I should be allowed to say that without being demonised by Senator Ward, Senator Flynn or others. The more strident and dogmatic they are in insisting that people like me have come out from under a rock, the more the listening public hears people who are simply ad hominem in their arguments, as opposed to people who are honestly grappling with the issues. I would have a lot more respect if Senator Ward said that he sees my point of view but thinks I am mistaken because of X, Y or Z. On the suggestion of reassuring me that I will be able to "continue to be offensive", I would be horrified to think that I was ever deliberately or even accidentally offensive. I do not think that kind of trademark, old-style, political jibing is what is called for as we scrutinise this legislation. There is no need for it. Disagree with me all you will and show me why you think I am wrong but do not suggest that I am looking for an excuse to be offensive. Nothing could be further from the truth.
I believe there is an element of sleight of hand on the part of the Government - I point at no person - in maintaining this new definition of "gender", which is without precedent. I would say there is no reason to do that. I will point out to the Minister in a moment why the victim of crimes legislation in 2017 gets it right. It refers to "gender", which relates to the objective situation of whether a person is male or female, including a person who is male but who has elected under the 2015 legislation to be designated as female, and to the more subjective reality that is a person's perception of their own "gender identity or expression". I do not see how Senators Flynn or Ward can have a problem. I may be concerned about this kind of tiering of victims in the context of hate crimes, as I see it, but I have said that I will live with it. I do not see how anybody can have a problem with what I am saying, which is that the hatred that underlies an act making it into a more serious crime should or could refer to characteristics of the victim, including their age, communications difficulties, colour, disability, family connections, health, nationality, national status, gender, gender identity or expression, ethnicity, political views or affiliation, religion, race, sex characteristics or sexual orientation. I am the one who is being inclusive here. You guys are the ones who are being exclusive by forcing people to take on board that gender no longer means a male or female, and also by excluding certain categories of people from protection. I put it to the Senators again: if a child is attacked because they are a member of a political family-----
On a point of order, we are debating the first grouping of amendments, all of which are technical in nature and deal primarily with the name of the Bill. We are now having a rehash of the speech that Senator Mullen made earlier. It is not in order, it does not relate to the amendments that are being discussed and it is repetitive.
Can Senator Mullen say which particular amendments he is discussing?
I will simply reply by saying that I am responding to particular things that Senator Ward chose to say.
If he chose to say them and it was in order, then it is in order for me to reply at this point. I will conclude by saying that everything that is being proposed here today leaves open the possibility that people will be protected against crimes based on hateful motivation. I will put it to the Senators again - we are here in this House as politicians - that if someone is attacked because they are a child of a political family, and that has a chilling effect on them ever getting involved in politics, that is serious and is deserving of consideration in the same way as if the hatred is based on the ethnicity or other protected characteristics of a person. It in no way denigrates anybody or any minority that you simply make room to take into account that hatred can be based on characteristics other than those the Government is proposing. I ask the Minister to take that on board and to take it seriously.
I thank Senator Mullen. Does anyone else want to come in on these amendments? The Minister can come back in.
Very briefly on this again, I will refer back to what exactly we are trying to achieve here. The amendments we are speaking to are technical in nature and remove quite a significant part of this legislation. I genuinely regret that this is where we are at now. For a lot of legislation, you will not always reach a consensus but for the most part, you need to have a consensus and that was not there in this instance. I accept that. The next Dáil and the next Seanad, whenever they come into being, will need to find a way forward because the 1989 Act needs to be updated. We can see that clearly, particularly in the changes we are experiencing in our society at the moment and the fact that a greater level of hatred is being displayed and communicated in every type of platform. I fundamentally believe we need to update our 1989 Act. I regret we are not doing it here now but I also fundamentally believe we need to have hate crime laws in place. We do not have them at the moment. We are the only country in Europe, and indeed probably the western world, that does not have hate crime legislation. I will touch on many of the points that have been raised in some of the amendments but I want to make the point that no country has hate crime legislation that defines hate. Again, we will touch on that. Many people in this House have suggested that we are doing something weird, wacky or different from everybody else by defining it in the way that is being proposed, that we will be completely out of kilter and that it will render this Bill completely unusable. I will get into that again but we are not going off kilter here. We are looking at what other countries have done in making sure we get this right.
With regard to the characteristics, the reason we chose these specific characteristics is based on consultation and facts, including the fact that there are people who are more likely to be targeted and are already victims of crime simply because of who they are. I am not aware of a significant number of children who are being attacked because their parents or others are politicians. What I do know, however, is that if you are under the age of 25 and you are transgender, you are significantly more likely to be a victim of a crime or to be attacked than any other younger person. That is a fact. It is based on fact, and not just reports that have been done but you only have to look at reports from An Garda Síochána. I will outline a few, and continue to outline these throughout the evening. On 29 June 2004 in Dublin, a female was on the way to a market with two friends and was physically attacked by a man. He threw his body at her with all of his strength. She asked him what was happening, and he began insulting her saying that she was "nothing more than a trans". He repeated several times that she was nothing more than a man. On 8 August 2023, a transgender person was with a group of friends when three to five individuals began intimidating just that person, not the others. They attempted to evade these individuals. They were pursued, punched three times to the face and pushed to the ground. Their runners and hoodies were taken. Third, on 27 April last year in the north west, a transgender person was walking from a shop and was followed out of the shop by an individual who punched them in the back of the head simply because they were transgender. These are real people, real Garda reports and real issues. They are not made up or airy-fairy.
They are real crimes.
They are real crimes but these are real people who are more likely to be targeted because of the fact they are transgender. Senator Mullen's amendments and his objective here would mean that these people are not protected.
No, they are protected. Of course they are protected under criminal law.
The Minister, without interruption please.
I would like to hear from Senators throughout this debate. If the objective of this Bill relates to people who are targeted simply because of who they are - we can clearly see this, and the reason we have chosen these characteristics is because we know these people are more likely to be targeted - why would Senators not include in this Bill people who are more likely to be targeted than others? The objective of this Bill is to protect those who are more vulnerable, and these are vulnerable people. We need to understand why the Senator would not protect the people I have just mentioned here. They are real people who have been physically assaulted and attacked.
That is a misrepresentation. I want them all to be protected.
In a court of law their perpetrator would not get a higher sentence compared to somebody who was attacked because of the colour of their skin, where they came from, their religion or any other characteristic, disability or otherwise. They would not be protected. They would have to produce a certificate.
Should I have to produce a certificate if I am attacked because I am a woman? Should the Senator have to produce a certificate if he is physically attacked? That is what he is asking. This definition of gender is for this Bill alone. It recognises that there are people who are targeted because of who they are. There are many examples of where we have different definitions. The 2017 sexual offences Act has three different definitions of "child" in the one Act. It is not to say this is a Trojan Horse and this will change the definition of gender. There is one piece of legislation that has three definitions of a child in the one Act. We can discuss all of this but it is important we acknowledge what we are trying to do here. We are acknowledging that there are people in our society who are being targeted, assaulted and are victims of crime simply because of who they are. We know that because it is there. It is in black and white. I have just read it out. What is being proposed by many of these amendments would mean these people do not fall under this Bill and we do not recognise them. I fundamentally disagree that that is the approach we should take.
Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2
Amendments Nos. 2 to 13, inclusive, 36 to 38, inclusive, and 175 to 181, inclusive, are related. Amendment No. 8 is a logical alternative to amendment No. 4; amendments Nos. 6 to 8, inclusive, are physical alternatives to amendment No. 5; amendment No. 36 is a logical alternative to amendment No. 11; amendment No. 176 is a physical alternative to amendment No. 175; and amendments Nos. 179 and 180 are physical alternatives to amendment No. 178. Amendment Nos. 2 to 13, inclusive, 36 to 38, inclusive, and 175 to 181, inclusive, may be discussed together by agreement. Is that agreed? Agreed.
Government amendment No. 2:
In page 6, to delete lines 3 to 6.
Amendments Nos. 2 and 13 are required because of the removal of the Schedule to the Bill, which itself is due to the proposed removal of Part 2. The provisions in Part 2 were intended to address most of our outstanding obligations to full transposition of Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law. This is why it is referenced in the Bill. With the deletion of the incitement to violence or hatred provisions, we will no longer be transposing the framework decision. This will be progressed separately in due course. Reference to the framework decision in sections 2(1) and (2) are to be removed.
Amendments Nos. 175, 177, 178 and 180 remove the references to incitement to violence or hatred from the Long Title, along with references to the Prohibition of Incitement to Hatred Act 1989, given that these provisions have been deleted throughout the Bill. I cannot accept Senators Keogan’s and Mullen’s amendments to the Title as the amendments I move have been expressly drafted by the Office of Parliamentary Counsel to the Government.
I propose to take amendments Nos. 3, 4, 5, 6, 8 and 10 together as they all deal with the definition of "hatred". One of the key criticisms of this legislation is that hatred has not been defined in the Bill. I wish to again explain to the House why this is the case. When drafting new legislation, a comparative exercise is undertaken to examine how other jurisdictions have legislated for a particular topic. This exercise was undertaken in developing this Bill at great length, I must add, given that Ireland is one of the last countries in western Europe and the western world to provide to hate crime laws, as I mentioned. There is, therefore, a great body of comparative legislation available worldwide. No other jurisdictions have defined hatred - none; zero. Similarly, legislation from many different jurisdictions around the world has been examined and hatred is not defined in any of them. Some jurisdictions use synonyms for hatred such as “hostility”, “ill will” and “malice”, such as England and Scotland, but again these terms are not defined. In addition, the framework decision of 2008 on combating racism and xenophobia, the one Ireland is required to transpose and which I referred to earlier, does not define hatred. It states, “‘Hatred’ should be understood as referring to hatred based on race, colour, religion, descent or national or ethnic origin.” This is exactly in line with the approach being taken in this Bill.
The definitions of hatred proposed by Senators Clonan, Gavan, Keogan, Mullen and Warfield are based on a European Commission against Racism and Intolerance definition of hatred, which is used for policy and advocacy purposes, not legislation. I stress to Senators that I expressly contacted the ECRI, which confirmed it was never intended for inclusion in criminal legislation. On the contrary, the ECRI made very clear that this definition is only intended to inform policy and offer guidance to member states. I have been strong advised by the current and former Attorney General against using the ECRI definition on the basis that attaching different words to the definition of the explanation of hatred would then require the explanation of each of these constituting words. The Senators used the terms “opprobrium”, “enmity” and “detestation”. These are not commonly understood concepts in the same way that hatred is. These terms do not provide any additional precision. In fact, they just confuse things even more. They could leave the legislation vulnerable to constitutional challenge on the basis that the offences become excessively broad, vague, uncertain and inconsistent with the rule of law. The Attorney General also advises that it is not possible or appropriate to provide exhaustive definitions of every term in the legislation. Additionally, if the amendments were accepted, each of the proposed terms would have to be proven beyond a reasonable doubt in court to secure a conviction. Think of this. This would mean that on top of proving that the person committed the crime, it would have to be proven that the individual concerned demonstrated opprobrium, enmity and detestation, that they were biased, that there was prejudice, that they held contempt or that they were hostile and bigoted. This would place an almost impossible burden on the prosecution. That is what is being asked here. That is what is being proposed to put into this Bill. In essence, I believe that for the purpose of this legislation, many of the terms proposed to define hatred are simply more obscure words which are more likely to confuse a jury in the course of a criminal prosecution than what is a widely understood term - hatred. This is the view also shared by the Office of the Director of Public Prosecutions.
The definition of hatred as currently set out in the Bill represents the word’s ordinary and everyday meaning. The person who attacks a person leaving a gay club for no reason other than they hate gay people can be prosecuted to the fullest extent of the law and be labelled the hate criminal they are. The person who attacks a person simply because of the colour of their skin can be prosecuted to the fullest extent of the law and be labelled the hate criminal they are. There will be no legal uncertainty as to what constitutes a hate offence, as hatred will have its ordinary and everyday meaning. This reflects the rules of statutory interpretation, which the Supreme Court has consistently upheld. For these reasons, I cannot accept these amendments.
Senators Keogan’s and Mullen’s amendments dealing with the definition of “incitement” will be overtaken by the Government proposal to delete Part 2 from the Bill, which contains all of the provisions for incitement to violence or hatred as well as those definitions that are required only for the purposes of Part 2, so I cannot accept these amendments. To Senator Keogan, for the avoidance of doubt, we are not progressing with hate speech. Despite the many social media posts over the weekend and otherwise, we are not progressing with the hate speech element of it. Similarly, I cannot accept amendments Nos. 36, 37 and 38, as this section is to be removed.
I propose to speak to amendments Nos. 9 and 12 together. The definition of “gender” contained in this legislation is confined to this legislation. It does not affect the Gender Recognition Act. This is not a gender recognition Act; it is a hate crime Act. It does not affect the Civil Registration Act - this is not a civil registration Act - or any other Act on the Statute Book. I want to be very clear on this and I want to ensure everyone in this House understands this. The definition of "gender" provided for in this Bill is specific for the purpose of this Bill, and that is to protect our citizens from hate crime. That is the only reason for this. We know members of the LGBTQI communities experience a disproportionate amount of harassment and abuse and a disproportionate level of violence. We know members are targeted for the way they look, the way they dress, the way they identify and the people they love. We know it is precisely the people who do not fit into conventional ideas of gender and sexuality who are most vulnerable to this kind of victimisation.
This legislation is vital and long overdue. Our statistics on hate crime and hate-related incidents have risen year on year. I have just given an example of some of the recent crimes that have taken place in the past year. The Council of Europe has noted a marked increase in hate speech and hate crime, targeting people and organisations based on sexual orientation, gender identity and sex characteristics. This has also been documented by the EU’s Fundamental Rights Agency. Its 2024 survey of more than 100,000 LGBTQI people across Europe gives us a clear snapshot of the scale of discrimination, bullying, harassment and violence that members of this community face. More than half of surveyed respondents were victims of hate-motivated harassment - half of the 100,000 people.
Ireland's statistics are no different. Over half the respondents in the EU survey said prejudice and intolerance in Ireland have increased, while two in three said violence in Ireland has increased. In the year before the EU survey, more than half of those surveyed had been harassed. One in 20 had been attacked. We need to think about these figures when we are talking about definitions and what we are trying to achieve here. The numbers illustrate the scale of the problem but do not adequately convey the impact of the incidents on the victims themselves and the broader LGBTQI community.
I received a phone call about two weeks ago – I will not get into the details – about a person who was attacked simply because of who they were. It was a mother who called me. It was devastating for the individual attacked, the mother and the entire family that the individual was singled out because of who they were. The idea that it would be one of my two boys in the future, for whatever characteristic is represented here, is unthinkable. It is heartbreaking to think people are still being targeted because of who they are. These incidents send a message that people in communities are unsafe because of who they are. The physical and psychological impacts of hate crime are much deeper than those of regular crime. Hate crime dehumanises and goes to the heart of a person's identity. It damages their dignity and forces people to change their behaviour and hide who they are.
The objective of this legislation is to provide protection to victims of hate crime on the basis of personal identity characteristics. These protected characteristics include gender, sex characteristics and sexual orientation. This approach is deliberately inclusive to ensure we are adequately capturing the individuals and communities targeted by such crimes. Acknowledging that LGBTQI people are under increasing attack in Europe, the Council of Europe has called on member states to ensure a strong legal framework is in place to prevent and combat hate-motivated offences based on sexual orientation, gender identity, gender expression and sex characteristics.
Gender, as set out in the legislation, means "the 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". This broad definition of gender ensures protection for transgender people, as well as non-binary persons and others who do not identify with any of the terms expressly included in the definition. Why would we leave these people out when we know they are more likely to be victims of an attack, an assault or a crime? Inclusion of this broader meaning was on foot of recommendations from civil society organisations representing vulnerable minority groups, including the Coalition Against Hate Crime, which I acknowledge and thank for its work in supporting minority groups. The broad definition of gender ensures protection for transgender persons as well as non-binary persons and others who do not identify with the terms expressly included in the definition. It is also included because the Garda has said very clearly that it needs stronger laws and to ensure the people it sees and engages with daily are included in the legislation. Inclusion of the broader meaning was recommended by the civil society organisations, as well as An Garda and many others. Transgender and non-binary persons experience extraordinary violence – physical, sexual, social, emotional and psychological – daily, often because they do not fit societal gender norms and stereotypes.
The EU survey found that more than one third of transgender and non-binary respondents had been physically or sexually attacked in the preceding five years. Furthermore, transgender and non-binary people were much more likely to have been attacked several times, with almost a quarter indicating they were attacked at least twice. Over half of transgender, non-binary and gender-diverse people say they have suicidal thoughts. We must protect these vulnerable members of our society. This is not just my view; it is the view of the vast majority of Irish people. An all-island national survey undertaken last year showed that 82% of Irish people believe transgender people should be protected by hate crime legislation. Not a single amendment from the Senators in this House would protect a transgender person.
Not true. Has the Minister read my amendments?
I have read them.
Has the Minister read my amendments?
I have read them.
Senator Mullen can contribute later.
She has not internalised them.
The Minister should be allowed to continue without interruption.
I have read them and I understand-----
Check out amendment No. 100.
I have read and understand the intention behind the Senator's amendment, but it does not protect-----
Senator Mullen will have another opportunity to contribute.
-----a transgender person.
Not true.
It is precisely these people who are at risk of being victimised due to their gender identity. Protection cannot, and should not, be limited to binary gender identities of male and female. Let me be abundantly clear: this legislation has nothing to do with a victim's legal status. The definition of gender set out in this legislation-----
On a point of order-----
-----applies only in the context of hate crime.
I am not sure it will be a point of order, but I ask the Senator to go ahead.
The Minister has said something that is untrue. I ask her, given that we are talking about the Government and its responsibilities regarding truthfulness, to take a pause and read amendment No. 100. I ask her to withdraw the assertion that there is nothing in my amendment and indeed those of others that would protect a transgender person.
I stand by my point.
I do not share the same ideological ground as Senator Mullen. My amendment relates to the categories of citizens set out in the legislation. It includes all those referred to.
The Senator will have an opportunity to contribute later.
What the Minister said may have been unintentional but she should clarify the record because, with respect, my amendment seeks explicitly to protect that category of citizens in question.
The definition of "gender" set out in this legislation applies only in the context of hate crime. We need a broad and inclusive definition of gender because we are, by and large, a broad and inclusive society that encompasses these diverse gender identities.
The Minister is simply continuing; she has not corrected the record. I ask the Chair to direct the following question to the Minister: does she intend to correct the record or does she stand by her assertion that there is nothing in my amendment that would seek to protect all the categories of citizens as set out by her and her drafters? I have explicitly referred to protecting them.
I was not referring to the Senator's amendment, so-----
Will the Minister correct the record?
I will let the Minister come back in, okay.
I was not referring to the Senator's amendment. He has not spoken yet.
She said none of the amendments submitted by any of the Senators would protect a transgender person. I have the greatest of respect for the Minister; this is not personal.
I stand corrected on the Senator's point.
And mine?
I stand by my point.
Has the Minister even read my amendment?
I have read his amendment.
Could she read amendment No. 100, please?
The Senator-----
(Interruptions).
There is no heckling. We are asking for basic respect.
A grouping is being discussed and we have agreed on the grouping.
Disagree with me if you will, but do not misrepresent-----
Twenty-two amendments are being discussed together at the moment. I will allow the Minister to continue, and every Senator who wants to discuss them will be allowed to do so. Of the amendments, 14 relate to Senators Mullen and Keogan and six relate to the Government. Senator Clonan has one and Sinn Féin has one. Everyone will have an opportunity to speak and everyone should be allowed to speak.
We can speak to the Senator's point. He said earlier he does not intend to be offensive. He has already referred to the definition of gender as weird, strange and dangerous-----
Lots of people believe that.
We have very different views on this.
It is important to remember that a hate crime is a criminal offence, whether it is harassment, assault, vandalism or any other crime. It is a crime aggravated by hatred. An attacker's perception of somebody's gender identity becomes a reason to victimise them. Where a person is targeted based on their gender, where they are harassed or attacked or where their property is vandalised or stolen, a hate crime has been committed. The purpose of this legislation is to ensure the perpetrators of hate crime offences are punished appropriately. For the reasons outlined, I cannot accept any of these amendments.
The Minister is very welcome to the Chamber again. I do not have any objection whatsoever to the intentions and principles that underpin this Bill. It is sometimes said that perfection is the enemy of the good, but one small imperfection in this Bill is the enemy of the good intentions of the Minister and the Government. With regard to the definition of hate I have submitted in my amendment – it is my only amendment – I want to be clear. The citing of the lack of a definition of hatred in other jurisdictions as a reason not to attempt to define hatred is an a priori position; it is not an intellectual position. What if you were to go back to the 17th century and question why, because no jurisdiction in the world gives women suffrage, it should be done here? Just because something has not been attempted elsewhere does not mean we should not incorporate it into legislation like this. We should at least make an attempt.
Much has been made of the language in my amendment, particularly the words "emotions of opprobrium, enmity, and detestation rooted in bias, prejudice or hostility". I got those words from the glossary of terms of the European Commission against Racism and Intolerance, the ECRI. It was an attempt to clarify and elaborate. It was not an attempt to deflect or cause confusion. This is the Upper House. I was elected by Trinity College graduates. If there is a problem with the use of language, if we decide to censor certain words because some people have a difficulty with them, that is Orwellian. I am not addressing that to the Minister.
I seek to address the lack of clarity in the definition of "hate" and of the threshold in the context of the intention of a person by incorporating into the wording the following:
Any interpretation of hate or hatred under this Act shall be required to meet the definition and threshold set out by the UN Rabat Plan of Action including all six parts of the threshold which accounts for context, speaker’s status, intent, content and form, extent of the speech act, and the likelihood including imminence to inciting a crime towards a group. Any interpretation of hate under this Act must also be in keeping with the European Convention of Human Rights;
The Minister is not accepting my amendment. In light of what I am going to say, however, I ask her and her officials to consider it and, if they have any discretion, to include some of what it contains in the Bill. The amendment is an exhortation to bring this legislation into line with the aspirations as set out by our European partners and the United Nations. This legislation in the wrong hands and with this definition has the potential to be an oppressive instrument. What do I mean by that? Let us consider what freedom of speech means. The closest definition I could find in Irish legislation is the Universities Act of 1997. Section 14 (2) of the latter deals with academic freedom and provides that "A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom ...", to test the hegemonic views of the majority, to test the group-think or Gleichschaltung of a society. I think of the ethical and intellectual failures of the Celtic tiger, when nobody could put his or hand up and say that none of what was happening made any sense without risking ridicule and opprobrium. To test and question received wisdom is a fundamental right, as set out in the Universities Act. Furthermore, it is a right to put forward new ideas and to state controversial or unpopular opinions. Imagine, that people would have the right to state unpopular or controversial opinions and "not be disadvantaged, or subject to less favourable treatment ... for the exercise of that freedom".
The reason I am so exercised about this is that as a young man and an army officer, I served my country in the service of peace in the Middle East in circumstances not unlike today, coming under direct and indirect fire to protect the lives of my fellow citizens in Lebanon. When I returned to Ireland, I did a PhD in Dublin City University in which looked at the experiences of my female colleagues in the Defence Forces. That research uncovered shockingly high levels of bullying, harassment, sexual harassment, sexual assault and rape of my female colleagues. I remind the House of the right to put forward new ideas, challenge received thinking and state controversial or unpopular opinions. One can make an ethical rationale for theft in order to feed one's children so that they do not starve. One can make an ethical argument or rationale for lying to protect oneself. One can even come up with a rationale for killing in self-defence or for defending one's comrades' lives. The one thing for which there is no ethical defence is the rape, abuse or sexual abuse of another human being. That is the one thing, as a species, for which there is no defence and that is what I spoke to. I spoke truth to power of a beloved, august institution and what was the consequence? I was exposed to hatred. I experienced reprisal. That reprisal consisted of physical assault in front of my infant children, not for who I am but for what I said. If it is an offence in this country to speak out against rape, sexual assault or sexual harassment, then hang me from the nearest apple tree. I am guilty. Some people mind find it funny, but when one has experienced opprobrium, public denunciation, enmity, detestation rooted in toxic masculinity, bias, prejudice and hostility, one knows that those words are not ambiguous.
I want to be really clear. When I did my PhD, contributed to knowledge and introduced new ideas, I experienced reprisal. This was not 100 years ago. This was 24 years ago. Ireland is a very conservative country and this type of legislation, without the proper definitions and protections, represents an oppressive instrument. Senator Ward, for whom I have the greatest respect as a colleague, a friend and someone who will probably be my local representative after the next election - and I wish him every good fortune in that - said that this Bill is not about cancel culture. I agree with him; it is not about that. However, one of the things I was threatened with by the military authorities was that I had breached the Official Secrets Act in my research, which was a criminal offence, that a file would be sent to the Director of Public Prosecutions, that I would be charged, arrested and if found guilty, I could be imprisoned. The Official Secrets Act was not designed to be a feature of cancel culture but in the wrong hands and at the wrong time that is precisely what it was used for. All the king's horses and all the king's men participated in the reprisal to which I refer. The military authorities, the Department of Defence and, might I say, the university remained completely silent. Not once did the university state that my PhD had been internally and externally examined. Not only that, it had been sent to the solicitors on retainer with the university and had been subject to all of the ethical, oversight and governance requirements.
I can tell the House from personal experience that bringing forth unpopular or controversial views that threaten the hegemonic, received views of the majority in this country can be a forlorn exercise at best, and perilous at worst. My experience was described by Transparency International Ireland as a textbook case of whistleblower reprisal. It included character assassination, denunciation and reprisal which continues to this day and which was reanimated by the emergence of the Women of Honour and their disclosures, by the publication of the findings of the independent review group and, again, on the establishment of a judge-led inquiry into the culture of our armed forces. Make no mistake about it - Ireland is not some sort of benign, neutral environment when it comes to freedom of speech and ideas around what is appropriate or not appropriate. Since I was elected to this House, I have witnessed the coercive use of power by Government to try to curb freedom of speech.
I will give an example. During the referendum campaigns, a Minister told NGOs that if they disagreed with the Government line on the care referendum, they would have to defend or set out their position because of Government funding. There is an inherent conservative arc towards coercion in Irish society. I experienced that as I was growing up in the sixties and seventies when Ireland was full of nuns and priests. They had their own cancel culture and their own coercive, autocratic, authoritarian form of a priori truth. Theirs was the ultimate form of cancellation; it was called excommunication. Within this Bill, there is the prescription for excommunication. We got rid of the last crowd of coercive, authoritarian excommunicators. I do not want to empower or embolden a new generation of high priests and high priestess of political correctness who will seek to suppress alternative views and disagreement. I go back to moral philosophy and Socrates and Aristotle. They all agree that disagreement is the most powerful engine for arriving at the truth. Disagreement is important. I welcome disagreement because without it and without dialogue, we cannot move forward. The lack of a proper definition in this Bill is the enemy of the good. I support this legislation and I ask the Minister to do the right thing on this.
There should be no impulse to censor or excommunicate in our society. I believe, notwithstanding those deletions that have been incorporated by the Government, there is the potential for this legislation to be used as an oppressive instrument in the wrong hands. The Minister might think that will never happen but it has happened to me, not because I was being offensive, being provocative or trying to rock the boat but because I was calling out the most heinous crimes against my female colleagues. Do not think it cannot happen. I have seen the coercive tendency in this Government through its warning of NGOs funded by it that they must toe the Government line. Thankfully, notwithstanding the fact that all the Government parties and all the Opposition parties, bar one, supported the Government line, the Irish people saw the truth and resoundingly voted "No" against the proposed wording of the care referendum. That is something for which I am very grateful.
While this Bill it is not about cancel culture, without the proper definition it could be mobilised to cancel dissent. I value freedom of speech in our society and our culture. We are so lucky and privileged to have it. Do not give something to a future Government or a future Minister that could be used as an instrument of oppression. I want the record to show I am warning the Minister that this contains within it the potential for that abuse. I ask the Minister and her officials to consider some broadening of the definition and some remedy because, in the wrong hands, the opportunity will exist for somebody to use this legislation as an instrument of cancellation or excommunication.
I apologise for being a little bit emotional about this but I have experienced reprisal and excommunication. I have lived with it and the risk it poses to my family, because they too have been targeted in this way recently. Why should my children need to have that conversation in our family kitchen? It all arises from speaking truth to power and holding a controversial view, in the eyes of some, no matter how worthy or how compelling that view is. As colleagues, and I include the Minister in that as I am not just referring to Senators, I ask the Government to please consider remedying the defect and the lack of precision in the definition.
I will speak on amendments Nos. 5, 7 and 9 to 11, inclusive. I will come back in later on amendments Nos. 36 and 38.
They are all being discussed now but the Senator can do one and then the other.
They are all being discussed together but I have quite a long list of amendments so I want to try to get in as many as I can. On amendment No. 5, the current definition of "hatred" that exists is too loose. The current definition gives too much power to the gardaí, the DPP and the Judiciary. If it came to something like the trans issue, a person could be convicted whether they are favourably disposed to transgender views or opposed to them. A rigorous definition of the concept of "hatred", as utilised in this Bill, is essential for the sake of public interest and legislative clarity. The burden of proof for "hate" refers to the legal standard or threshold that must be met to prove that an act was motivated by hatred in cases involving hate crimes, hate speech or hate-related offences.
This burden of proof is a crucial aspect of law enforcement and judicial processes as it determines whether the accused can be held legally responsible for actions deemed to be motivated by hate. Key aspects of the burden of proof in hate crimes or hate speech include, but are not limited to, proving motivation. One of the main challenges in hate crime or hate speech cases is proving that the motivation behind the act was hate based on characteristics like race, religion, ethnicity, gender, sexual orientation or disability that distinguishes the act from regular criminal activity. The prosecution must show that the defendant's actions were not just illegal in cases like assault, vandalism or verbal abuse, but were explicitly motivated by bias or prejudice against a protected characteristic of the victim.
The burden of proof in criminal cases, including hate crimes, is typically beyond a reasonable doubt. This means the prosecution must convince the court or jury that the accused committed the crime and it was motivated by hate to a very high degree of certainty. In civil cases, such as cases involving discrimination or hate speech, the standard of proof is often on the balance of probabilities. This lower standard requires that it is more likely than not that the action was motivated by hate. However, this poses a dangerous threat to fairness in our justice system. Evaluating the probability that a statement is defined as hate speech injects an arbitrary and opinionated procedure into our courts as the Government has chosen not to define the meaning of hatred for the purpose of this Bill.
In order to meet the burden of proof in hate crime cases, prosecutors must present evidence showing the act was motivated by hate or bias. This can include direct evidence such as statements made by the perpetrator during or before the crime, such as the use of racial slurs, homophobic language or symbols associated with hate. It can also include circumstantial evidence, which is evidence that suggests crime was motivated by hate such as targeting a place of worship, a specific ethnic group or an LGBTQ+ establishment. The accused's history of behaviour may also be taken into account. If the accused has a documented history of bias, hate speech or participation in hate groups, this may be presented as evidence of motivation.
When it comes to proving hate in court, courts often require clear and convincing evidence that bias or hatred was a substantial motivating factor behind the defendant's action. Intent is critical. Hate crimes are considered crimes of intent, meaning the prosecution must show the accused intentionally targeted the victim based on a characteristic such as race, religion or sexual orientation. There are challenges in proving hate and subjectivity of motive. It can be difficult to definitively prove what was going on in the perpetrator's mind when they committed the offence, especially if there was no overt statement or symbol of hate.
There are also mixed motives in some cases. The accused may have multiple motivations for their actions, not all of which involve hate. For example, a robbery that also involved racial slurs might raise questions about whether the hate component was a primary motivating factor.
Regarding free speech protections in hate speech cases, the burden of proof must also balance legal protections for freedom of expression. Courts may require a high threshold of proof to determine the speech was incitement to violence or hatred rather than merely offensive or controversial. The burden of proof for hate crimes in demonstrating the accused's actions were motivated by hate, bias or prejudice against a protected characteristic can involve proving intent through direct statements, historical behaviour or other circumstantial evidence.
The standard of proof in criminal cases beyond a reasonable doubt is quite high, making these cases challenging, especially in determining motivation. Adopting a precisely crafted and transparent definition of hate for the purpose of this legislation is essential to minimise and prevent improper convictions of people who have not called for physical harm to others but whose comments could be punished unjustly by this law. The Government must not merely proclaim protected characteristics, as is done so vaguely in this law, as necessary for State protection, while obscuring from the public any definition of what actions are considered criminal under this legislation. The State ought to provide an extensive list for each protected characteristic and outline sample statements and hypothetical cases in which it is extremely clear to the public what kinds of statements are to be criminalised under this Bill.
Regarding amendment No. 7, this Bill lacks a definition of hate as well as what incitement to hatred or violence actually is.
The Senator is giving speaking on an amendment that is being removed from the Bill.
Sorry?
It is being removed.
I have already tabled my amendments so I am afraid the Minister is going to have to listen to this. The amendment aimed to address this issue and ensure there is a threshold------
For everybody's benefit, including the Senator's, if the section is already being opposed, there is no need to speak on it.
I am speaking on amendment No. 7, which is included in this section.
It is being deleted.
It has not yet.
It has not yet been deleted yet. I did not interrupt anybody in any of the earlier contributions.
I know that. To be fair to the Minister, I think she was trying to be helpful.
The Bill currently lacks a clear definition of hate and incitement to hate or violence, which are central to its purpose. By leaving these terms undefined, the legislation risks creating ambiguity in its application, leading to potential challenges in enforcement, interpretation and legal scrutiny. This amendment seeks to address this gap by providing a clear and precise definition of incitement of violence or hatred as conduct specifically intended to cause physical violence or to create intense or irrational emotions of opprobrium, extreme enmity, hostility, detestation or deep hate towards a person or group. Incorporating these thresholds ensures the legislation targets conduct that goes beyond mere expressions of disagreement or distaste and focuses on speech or actions that genuinely aim to incite harmful emotions or actions against others. It protects the fundamental rights to freedom of expression while drawing a firm line around behaviours that threaten societal peace and individual safety.
Incitement refers to encouraging or provoking someone to commit a crime or act unlawfully. In the context of this Bill, incitement to violence or hatred involves actively commanding or encouraging others to commit violent acts or to develop a strong, unjustifiable bias or hatred towards individuals or groups based on characteristics like race, religion, sexual orientation or gender identity. The inclusion of this definition sets an important legal standard that can help distinguish between legally protected forms of speech and conduct that seeks to provoke violence or irrational hostility, ensuring the law is both effective and proportionate.
Globally, many legal frameworks include clear and well defined parameters for what constitutes incitement to hatred, ensuring legislation can be applied consistently and fairly. For example, article 20 section 2 of the International Covenant on Civil and Political Rights, ICCPR, defines incitement to hatred as speech that advocates for "national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence". The ICCPR's guidance stresses that restrictions on speech must be necessary and proportionate to prevent overreach.
The Council of Europe's additional protocol to the Convention on Cybercrime in 2003 defines incitement to hatred as the act of spreading racist and xenophobic material motivated by hostility or prejudice and likely to incite violence or discrimination. The European Union framework decision of 2008 on combating racism and xenophobia also defines incitement to hatred as the public dissemination of a message that incites violence or hatred based on race, colour, religion or dissent, again focusing on clear intent and specific targeting.
These international legal standards provide robust, narrow definitions to prevent both misuse of the laws and the risk of infringing on freedom of expression. They also emphasise that incitement laws must address speech or conduct that genuinely threatens public safety or leads to real world harm, ensuring laws focus on actions with clear intent to incite violence or hatred. The current Bill, however, lacks any such clear or precise definition of what constitutes incitement to hatred or incitement to violence. Without a concrete framework, the legal threshold for conviction may be uncertain, leaving critical questions unanswered. What level of conduct or speech would trigger an accusation or conviction? How will the courts distinguish between heated or offensive speech and speech that actually incites violence or hatred? This absence of clarity may lead to subjective interpretations of what constitutes incitement, increasing the risk of inconsistent enforcement.
The lack of an explicit definition creates potential for overreach, where individuals may be prosecuted for speech that, while offensive or controversial, does not rise to the level of incitement under international human rights standards. Without a clear legal definition of incitement, individuals could be wrongly convicted based on misinterpretation of their speech or intent where provocative, controversial or critical statements are seen as incitement, even when they fall short of encouraging actual violence or hatred. Vague or subjective standards, where authorities or courts apply inconsistent criteria, could potentially lead to the prosecution of speech that is merely offensive, distasteful or dissenting rather than incitement. For example, an artist, journalist or activist expressing views critical of a political group or religious ideology could be charged with incitement to hatred under a broad or ambiguous law despite having no intent to provoke violence or irrational hostility. This would have a chilling effect on free speech and would discourage individuals from expressing legitimate, though controversial, opinions. Moreover, the lack of definition may cause disproportionate enforcement against minority groups, dissidents or marginalised communities who may be more vulnerable to accusations of incitement due to cultural misunderstandings of political bias.
In its current form, the Bill risks violating international norms of free expression by failing to provide clear definitions of incitement to hatred or incitement to violence.
The proposed amendments seek to introduce a clear and specific threshold for incitement, ensuring that only conduct with the intent to provoke violence or irrational hatred is criminalised. This would protect the fundamental right to free speech while ensuring the law effectively addresses harmful conduct aimed at inciting violence or hatred. By drawing on international legal standards, this amendment ensures the Bill aligns with best practice, maintaining a balance between the right to freedom of expression and the need to protect individuals from genuine threats of violence and hate.
The absence of a clear definition for incitement to hate in the Bill also poses broader implications for legal certainty. Internationally, legal certainty is a fundamental principle of the rule of law, ensuring that individuals can understand what actions are prohibited and adjust their behaviour accordingly. By failing to provide precise language around what constitutes incitement to hatred or violence, this Bill risks creating ambiguity in its enforcement. Without a clear definition, ordinary citizens may not know when their words or actions cross the line into criminal conduct. This creates an atmosphere of fear and uncertainty around the boundaries of permissible speech. As seen in other jurisdictions, such uncertainty can result in censorship where individuals avoid expressing opinions that, while lawful, could be perceived as incitement. This disproportionately affects public discourse on controversial issues, especially political, religious or social matters. Law enforcement agencies tasked with applying the law may struggle with how to interpret vague provisions, leading to inconsistent or biased enforcement. This can result in selective prosecutions or targeting of individuals or groups based on subjective judgments rather than objective legal standards. As demonstrated in jurisdictions where similar laws lack clear thresholds, officers may find themselves uncertain about what exactly constitutes incitement to hatred versus offensive or provocative language that remains protected under the rights to free expression.
The courts may be burdened with the complex task of interpreting these vague provisions, leading to varying judgments across different cases. This can create legal inconsistencies as different judges could apply the law based on their personal interpretation or societal attitudes. A lack of clear criteria could open the door to broad judicial discretion which increases the risk of legal rulings being influenced by political or cultural biases, further complicating matters of free speech and protection against genuine incitement.
International law cases demonstrate that minorities and marginalised groups may be disproportionately affected by hate crime legislation that lacks specificity. These groups may be unfairly targeted or accused of incitement when expressing views that challenge the majority, leading to a skewed application of justice. In countries where a broad or ill-defined incitement laws exist, activists from minority communities have often found themselves criminalised for raising critical or uncomfortable discussions about social injustices, despite having no intent to incite violence or hatred.
The proposed amendment seeks to prevent wrongful convictions by demanding a clear threshold for what constitutes incitement to hatred or violence. When the law is not clear, it opens the door to misinterpretation and misuse, particularly in cases where speech is misunderstood or misrepresented by others. This is especially true in highly charged social or political contexts where emotions run high and legitimate criticisms or dissent can be misconstrued as hateful or violent incitement. Without specific definitions and legal criteria, individuals could face charges based on subjective interpretations of their intent or statements. For example, a public figure or speaker engaging in controversial political debate could be prosecuted if his or her statements are seen as hostile, even if they were not intended to incite violence or hatred. Satirical speech or artistic expression, which often use exaggeration or provocation to highlight societal issues, could be wrongly viewed as incitement due to the subjective reactions of audiences. The lack of a clear intent requirement also leaves the law vulnerable to being weaponised against individuals or groups for reasons unrelated to genuine incitement. This could lead to a chilling effect, particularly in the context of sensitive or polarising topics such as religion, gender identity or ethnic relations where accusations of hatred or violence may arise from misunderstandings rather than actual malice.
The proposed amendment aims to bring the Bill in line with international standards, which typically include clear intent and specific harm as necessary components of any hate speech or incitement law. For example, the Rabat plan of action, which is a 2012 report of the UN High Commissioner of Human Rights, outlines six key factors to consider when determining whether speech constitutes incitement, including intent, context and likelihood of harm. These guidelines underscore the need for a high threshold to ensure restrictions on free speech do not exceed what is necessary to prevent violence or discrimination. The European Court of Human Rights has consistently ruled that restrictions on free speech must be carefully balanced to ensure they do not infringe on the rights of freedom of expression. This includes a focus on whether speech directly incites violence or discrimination. By introducing a clear and specific definition of incitement to hatred and violence, the amendment would ensure the Bill meets these international recognised standards, reducing the risk of overreach or misapplication.
The proposed amendment is critical to ensure the Bill provides clear definitions and a high threshold for what constitutes incitement to hatred or violence. Without such clarity, the Bill risks creating legal uncertainty, chilling free expression and leading to wrongful convictions based on vague or subjective interpretations of intent. By aligning with international norms and providing specific guidance on incitement, this amendment would help safeguard both public safety and the fundamental right to free expression.
The definition of amendment No. 9 aligns the definition with Irish law. If we are to accept the Government’s definition, however, this would mean there would be at least 72 genders, including, but not limited to, agender, abimegender, adamasgender, aerogender, aesthetgender, affectugender, agenderflux, alexigender, aliusgender, amaregender, ambigender, ambonec, amicagender, amorgender, androgyne, androgynflux, anesigender, angeligender, anogender, anongender, anteisgender, anxiegender, apagender, apconsugender, apertusgender, aposgender, aquagender, aquariusgender, archaegender, argogender, aristogender, aritgender, artistigender, astroflux, astralgender, atmosgender, atturgender, autigender, autogender, axigender, axiogender, azuregender-----
Does Senator Ward have a point of order?
The God-help-us gender.
I thought Senator Ward was raising a point of order.
-----bafflegender, bakeragender, biogender, blizzgender, blurgender, boggender, bordragender, boyflux, brevigender, burstgender, cadensgender, caelgender, cancegender, canisgender, cantogender, caprigender, cartogender,
cassflux, cavusgender, ceasgenger, celestgender, cendgender, centrigender, cervugender, chaosgender, circgender, circumgender, clarigender, cloudegender, clowngender, codegender, cogitogender, coldgender, collgender, comfgender, compgender, composgender, congruogender, constellgender, contigender, contingender, corugender, cosmigender, cosmicgender, cumulogender, cyangender, cyclogender - please forgive me if I pronounce some of these incorrectly; they are quite extensive and if I do offend anybody reading this out and making mistakes, I apologise.
I will stop you for one second to give you a breather. I welcome our former colleague and friend, iar-Sheanadóir Niall Ó Brolcháin, to the Gallery. It is good to see you. You are very welcome to Leinster House. Thank you for being here. Céad míle fáilte.
It also includes dahlgender, dampgender, dazegender, deltagender, demigender, demifluid, demiboy, demigirl, demienby, demiflux, demosgender, denatigender, dentrogender, depressogender, deservgender, desigender, devisgender, divigender, diminugender, dreamgender, dulcigender, dustgender, dysporiagender, edafogender, egogender, egender, ecliptgender, effloragender, eldrigender, elegender, elementgender, elixgender, elusigender, embergender, emptgender, engypgender, englobgender, enigender, enthugender, endromogender, eonogender, epicgender, epigender, equilibrigender, evaporgender, evokegender, exgender, expansgender, expecgender, extergender, extragender, fabricagender, facetgender, fadingender, faegender, fawngender, faunagender, fazogender, felisgender, femfluid, femgender, fenesgender, feugender, fictigender, firegender, flamgender, flashgender, fleursgender, flexigender, flickergender, flingender, flowgender, fluidgeterogender, fluidgeterosexual, fluigender, fluxfluid, fluxgender, fluxiongender, foamgender, folgender, fontgender, forgender, fornogender, fragagender, fraggender, frangender, frictgender, frigidgender, frondgender, frostgender, fugigender, fugugender,galactigender, galegender, gallugender, gallopgender, genderflux, genderfluid, genderlight, gendersatyr, gendersea, genderwood, generagender, genicgender, geogender, geologender, gerangender, gigglegender, glaciagender, glistenogender, glitchgender, gloomgender, glossogender, glowgender, gluemgender, gringender, gritgender, guarigender, guasgogender, gullgender, gunigender, gustgender, gynefluid, gynogender, gypsgender, hagigender, haigender, hallgender, halogender, haplogender, hasragender, havogender, healgender, heartgender, hedgegender, heligender, hermetigender, hexagender, hidrogender, himagender, hipogender, hoarigender, hollowgender, hornagender, horsgender, hostgender, hubgender, hurricangender, hydrogengender, hygender, hypegender, hypergender, hypogender, imbergender, immogender, impulsigender, inagender, indagender, indiogender, infinitigender, insigender, intellagender, intergender, intraflux, irascgender, irisgender, isogender, itergender, itinogender, itzigender, januagender, jentagender, jocusgender, jorgender, junggender, junipergender, justgender, kaleidogender, kaleidoflux, kallogender, keplergender, kerfuffleflux, kinetigender, kissgender, koloragender, kolorgender, kryptogender, kurogender, laconicgender, laggender, lamellgender, lampadgender, lamposgender, latigg, latensgender, lavendergender, lentesgender, leogender, lepigender, lissgender, lividgender, locustgender, logigender, longegender, loopgender, loticgender, lownessgender, luggender, lumigender, lunalogender, lunargender, lurgigender, lusterogender, luxgender, macrogender, magogender, magpiegender, magnogender, majestigender, magogender, malugender, maplegender, marengender, marigrugender, marvelogender, mascgender, maskgender, masonagender, matkigender, maxigender, meandgender, mechagender, medigender, medleygender, melanchogender, melegender, melodigender, memigender, mentegender, mercurialgender, messogender, metamorphogender, microgender, midasgender, miegender, migragender, mimogender, moltgender-----
Is the Senator trying to make the point that the number of genders is infinite? In which case, we may be here for a very long time.
Thank you.
I think there is-----
That is not a point of order, but it is a relevant question at the same time. Thank you for raising the matter.
It is important that we know what the term "gender" means. Does it mean these particular genders? I think it is important to read them into the record of the House.
That is not a very good use of time-----
It may not be, but-----
In the context of-----
-----this is a really important piece of legislation.
I know it is. In the context of the guillotine-----
Senator Warfield, thank you. Could we address our remarks through the Chair and keep our remarks relevant to the Bill, the amendment and the issues being raised? I remind Members that in the context of the amendment we are on, the relevance of the amendment is about the definition-----
Gender.
Let us stick to that, please.
With respect to the Senator, it is not a comprehensive list because all of humanity is infinite and varietal. All difference is to be celebrated. To read-----
That is really not a point of order.
It is a finite list, so it cannot purport to represent the infinite variety of all human beings which, as I said, should be celebrated.
The list includes microgender, midasgender, miegender, migragender, mimogender, moltgender, momentigender, monegencer, mooncangender, morphogender,
mossgender, motigender, mountainogender, movender, multigender, mundagender, mungender, muragender, muscisgender, mutaegender, mythogender, napgender, narritogender, nebulagender, nefasgender, negogender, neligender, nemergender, neptunegender, nervigender, netergender, nexgender, nicogender, nightgender, nimbusgender, nocgender, nomigender, non-binary, non-genegender, non-gegender, novagender, nullgender, numerigender, nuxgender, nyctogender, oasgender, obliquesgender, obnuvigender, oculogender, odorgender, offgender, omegagender, ominogender, omnisgender, omniverigender, onimogender, onirigender, ontogender, oobgender, opacigender, opalusgender, opengender, oppigender, opulengender, opusgender, orbisgender, orchegender, orchigender, oreogender, orgagender, oscilligender, osmagender, overcastgender, ovogender, oxgender, oxtongender, ozgender, pacigender, pagender, paleogender, pampaflux, pampogender, panarcticgender, pandanagender, pangegender, pantasexgender, paragender, parallogender, parasolgender, parchgender, particgender, pastgender, patagender, pegasgender, peligender, perennialgender, perigender, perimmonogender, permagender, perrigender, persecutogender, persephonogender, petrolgender, phantasmgender, phlegmagender, photogender, phototropogender, phtorogender, pianogender, pictgender, pietagender, pigeongender, pinkgender, piogender, piscigender, plasmagender, plathgender, platogender, pleasgender, ploidgender, plutogender, poetrigender, polargender, polarisgender, posifluxgender, positivogender, possgender, potegender, prairiegender, precarigender, precipigender, primgender, prismagender, privagender, probabiligender, prodigender, prodromgender, profectgender, progenigender, proliflux, propagender, prospicgender, protogender, purgogender, pyrogender, quartzgender, quasigender, questgender, quietgender, quindrigender, quinxgender, radgender, radiantgender, rainflux, rainogender, raptorgender, ravengender, raygender, rayongender, readygender, realmgender, recurrigender, reflectogender, regender, regigender, reinigender, relicgender, religender, renitentgender, repentagender, respigender, restitugender, retrogender, revigender, revivagender, rexgender, rhythmgender, rimegender, riptidegender, rishigender, rivenergender, rivergender, roangender, robotgender, rocciagender, rockygender, rogender, romanticgender, rosagender, rosegender, rotundgender, rubygender, runegender, rustgender, rushgender, sablegender, sacralgender, safegender, sagittgender, sagittariusgender, salvogender, sammagender, sandalwoodgender, sandgender, sangagender, sanctigender, sapflux, sapgender, sapphgender, saturagender, scenogender, scentergender, scutgender, seagender, secludogender, sedatagender, selfigender, sensorgender, sentiogender, sepiagender, sequiogender, serenogender, shapgender, shardgender, shattergender, shifgender, shiftfluid, shiftgender, shimmergender, shipgender, shoalrogender, shoegender, shygender, siamgender, sibligender, sickgender, sidegender, sigmagender, silangender, silicogender, silkgender, simulagender, singender, singularity gender, sinistergender, sirengender, sixgender, skategender, skeingender, skygender, skylargender, sleepgender, slidegender, sloggender, slushgender, smarogender, smilegender, smoggender, smokegender, snowgender, softgender, solaragender, solemgender, solidgender, solilogender, solivagender, solugender, somnigender, sonargender, sonicgender, soragender, soupgender, soundgender, speedgender, spheregender, spicgender, spillagender, spiritogender, splashgender, splendorgender, spookgender, spraygender, springgender, spritegender, spritzgender, spurgender, squallgender, squawkgender, squeegender, stadiogender, stagegender, stalactigender, stalagmitgender, starlightgender, stargender, staticgender, stellargender, stelligender, sterngender, stillgender, stormgender, stovagender, stratagender, streamgender, streetgender, strigender, strobeogender, struggender, subflu, subgender, subjugender, subrigender, subterrangender, successogender, sungender, sunrisegender, sunsetgender, supergender, superflux, supinegender, supperogender, surfigender, surprisgender, surreogender, swamgender, sweltergender, switchgender, swordgender, sybylgender, synergigender, synodgender, syrengender, systegender, tabogender, tadpolegender, tailorgender, tantalumgender, tartargender, tasselgender, techfluid, techgender, tempestgender, temporalflux, temporalgender, tenebrogender, tensiongender, tentgender, terggender, terragender, tesseragender, testigender, texturegender, thalassogender, thawgender, themoflux, themogender, thistlegender, thorogender, thoughtgender, threadgender, thrilligender, thrumgender, thunderogender, tidalgender, tidegender, tierogender, tigender, tigerogender, tiltgender, timegender, tornadogender, touchgender, towergender, tracegender, trafectgender, transgender, transgenderqueer, transientgender, transitgender, trianglegender, tricousgender, tridensgender, triformgender, trilixgender, troughgender, troubadorgender, trowgender, trumpetgender, truxgender, tsunamigender, turbogender, turntablegender, tutelgender, twingender, twirlgender,
twittergender, twilightgender, twinkleflux, twinklegender, typgender, typogender, tyrogender, ultragender, umbragender, umbramalgender, unabigender, unarrowgender, unbinary, unblurrgender, unclogender, underflux, underogender, unfogender, uniformgender, unigonogender, uniquefluid, uniquender, unknogender, unogender, unsegender, unsungender, unumgender, updraftgender, upliftgender, upperogender, uranogender, urgogender, urnanogender, urnogender, ursaegender, usherogender, utapendragender, utensigender, utopiangender, vacatgender, vaggender, vagabondgender, vaguegender, valencygender, valleygender, valorgender, vangender, variegender, veilgender, velocitygender, veldgender, vellumgender, velvetgender, vendergender, vengeogender, venusgender, verbflu, verbgender, versatogender, vespgender, vibragender, victorygender, viergegender, viletendergender, villagender, vinegender, violaflux, violagender, virtuegender, visiongender, vitagender, vitalgender, voidgender, volatogender, voltigender, voyagegender, vulcangender, wailgender, wargender, watergender, wavegender, waxgender, weathergender, webgender, wedgender, welcomegender, whispergender, whistgender, wightgender, willowgender, windgender, windowgender, windyflux, wintegender, wintergender, withergender, wobblegender, woodgender, woolgender, workgender, wovengender, wrathgender, wrenogender, wringergender, xagender, xemeogender, xenogender, xerographgender, xestergender, xilogender, xylogender, yarnogender, yawnogender, yearninggender, yellowgender, yeldgender, yoigender, younggender, youthgender, ytterbigender, zephyrogender, zeroesgender, zigzaggender, zodigender, zoegender, zonogender, zoomgender, zygender, and zyrenogender. It is worth noting that if the Minister were to accept our amendments today, she might avoid the possibility of a constitutional referendum down the road.
Amendment No. 10 proposes a specific definition of "hate" to be inserted into the Bill, framing it as a malicious attempt to victimise an individual or group based on their protected characteristics. This victimisation must be likely to entice another person to commit an act of discrimination or violence. The current draft of the Bill lacks such a definition, which creates significant concerns regarding legal certainty and clarity in its enforcement. As noted in the Minister, Deputy McEntee’s statement, it is implied we all know what hate is. Without a concrete and legal definition of hate in this Bill, however, there is a risk that both law enforcement and the courts will struggle to apply the legislation consistently. This could lead to uncertainty and arbitrary enforcement where accusations of hate are made based on subjective interpretations or social context rather than clearly defined legal standards. The proposed definition ensures a threshold is established for what constitutes hate by specifying that hate must involve malicious intent to target individuals or groups based on their protected characteristics. This definition sets standards of what type of behaviour or speech qualifies as hate and requires a clear connection between the hateful act and its capacity to entice discrimination or violence. This would ensure only actions or expressions with real-world harmful consequences would be subject to legal consequences, protecting free expression while addressing genuine harm.
Globally, incitement laws must balance freedom of speech with the need to prevent violence and discrimination. Several international legal frameworks and instruments have addressed the threshold for incitement. The European Court of Human Rights has emphasised that speech restrictions must be narrowly defined and only enforced where there is a clear intention to incite violence or hatred that leads to discrimination. In cases where speech merely offends or shocks, it is protected under free expression rights.
The United Nations Rabat Plan of Action outlines a high threshold for what constitutes incitement, requiring that the speech in question be directed at the audience, have intent to incite and be likely to lead to imminent harm, such as discrimination or violence. This approach seeks to distinguish between lawful speech, even if provocative, and unlawful incitement. By providing a definition of hate, this amendment aligns with these international principles, ensuring the law only targets behaviour or speech that is genuinely harmful.
Without a specific definition, there is a risk of wrongful convictions under this Bill. Speech that is critical, controversial or uncomfortable could be wrongly perceived as hateful, even when it does not meet the criteria of inciting discrimination or violence. A vague or overly broad understanding of hate could lead to individuals being wrongly prosecuted for expressing views that, while unpopular, do not constitute hate speech under international norms. The proposed amendment protects against this by limiting hate to malicious acts aimed at incitement, meaning opinions, discussions, or debates that do not meet this threshold do not fall under its purview.
In societies with robust free speech protections, such as Canada or Germany, courts have consistently ruled that incitement laws must differentiate between offensive or harmful speech and speech that directly leads to acts of violence or discrimination. This ensures minority views, satire or unpopular opinions are not stifled.
The proposed amendment provides much clarity to the Bill by defining hate as a malicious act aimed at inciting others to discriminate or inciting violence based on a person’s protected characteristic. This definition establishes a clear threshold for legal action, aligning with international standards and ensuring the Bill targets genuine harm while safeguarding free expression. The lack of a definition in the current Bill leaves the door open to misinterpretation and inconsistent application, which could lead to wrongful convictions and chilled public discourse. The amendment strengthens the Bill by providing legal certainty and ensuring incitement is clearly defined.
I come to amendment No. 11. I am nearly finished, Members will be delighted to know.
The Senator can take her time.
I thank the Senator.
On amendment No. 11, there is no standard definition of incitement. The fact that hate, incitement and incitement to violence or hatred is ambiguous is a major problem with this Bill. This definition should be robust enough to ensure no one is unfairly convicted. The emphasis on irrational creates a great burden of proof. This amendment introduces a clear and standardised definition of "incitement" to be included in the Bill, which is currently lacking. The proposed definition frames incitement as behaviour or communications about a person or group that creates a serious risk of discrimination, hostility or violence towards them based on their protected characteristics.
By doing so, it aims to establish a robust legal threshold that ensures individuals are not unfairly convicted for incitement while addressing harmful behaviours that genuinely threaten the well-being of others.
One of the major shortcomings of the Bill is the absence of clear definitions of "hate", "incitement" and "incitement to violence or hatred". This creates significant challenges when it comes to the interpretation and enforcement of the law. Without clear guidance law enforcement and the Judiciary are left to interpret these terms, potentially leading to inconsistent applications and an increased risk of wrongful convictions. The absence of a definition of "incitement" leaves a grey area regarding what kinds of speech or behaviour are legally punishable. This could potentially criminalise legitimate speech, including criticism, debate and dissent, which should be protected under free expression.
Ambiguous legal terms also make it difficult for individuals to know what constitutes lawful or unlawful conduct, which can chill free speech by creating fear of persecution or expressing opinions. The proposed definition is designed to be specific and robust, focusing on behaviour or communications that create a serious risk or harmful outcome such as discrimination, hostility or violence. This sets a high threshold that ensures only genuine harmful acts which are likely to lead to real-world consequences will be criminalised. By introducing the concept of a serious risk the amendment prevents overreach and ensures the incitement laws do not criminalise speech that is merely offensive or provocative. Instead they will target individuals that pose a genuine danger to individuals or groups. The definition covers direct and indirect actions, including communications about a person or a group and thereby ensuring the harmful stereotyping misinformation or dangerous rhetoric that leads to real harm is addressed.
International standards offer guidance on the meaning of incitement and the thresholds that should be applied. The European Court of Human Rights has consistently ruled that incitement must be clearly linked to a likelihood of imminent violence or serious harm. In cases like Erbakan v. Turkey, the European Court of Human Rights emphasised that offensive speech alone does not constitute incitement unless it directly leads to violence or discrimination. The UN’s Rabat plan of action sets a high threshold for incitement, requiring the speech or behaviour in question be directed at a specific audience, having intent and be likely to lead to imminent harm. This approach is designed to safeguard free speech while addressing dangerous conduct. Countries like Germany and Canada have also introduced similar thresholds in their hate speech and incitement laws to ensure only speech that leads to tangible harms is penalised. For example, Germany’s criminal code includes provisions that punish incitement to hatred, but only when it is aimed at disrupting public peace or inciting violence. By adopting a definition aligned with these international standards, the amendment ensures that Ireland’s legislation remains in line with global human rights norms, especially in balancing the protection of individuals from hate speech and violence with the preservation of free speech.
The emphasis on irrational emotion, opprobrium, enmity, and detestation found elsewhere in the Bill creates a high burden of proof and could lead to difficulties in prosecution. While it is important to distinguish between rational criticism and irrational hatred, the absence of a clear threshold for incitement increases the likelihood individuals could be convicted for expressing views that do not actually incite violence or hatred. The proposed definition seeks to protect individuals from unfair conviction by ensuring only actions or communications that create a serious risk or harm would qualify as it as incitement. This introduces greater legal certainty and prevents over-criminalisation. By focusing on actions that lead to a serious risk of discrimination, hostility or violence, the definition ensures laws do not disproportionately target minority voices, satire or political dissent. These forms of expression often provoke strong reactions but do not necessarily incite harm. Inclusion of a standard definition of "incitement" is crucial for the Bill’s clarity and enforceability. The proposed definition establishes a clear threshold for what constitutes incitement to ensure only behaviour or communication that creates a serious risk of discrimination, hostility or violence based on a person’s protected characteristics are criminalised. This amendment aligns with international legal standards and protects against unjust prosecutions while addressing genuine harm, offering a more balanced approach to incitement laws.
I will come in on my other amendments later.
Gabhaim buíochas leis an Seanadór. She might facilitate the parliamentary reporter with the list of names she read out. To be fair, they would need the Senator's assistance, because I am sure some of the words and phrase were-----
They would be new to most people.
It was not that they were new to most people-----
They were new to me.
-----it is that they were badly mangled. I am aware that it is Committee Stage. I have been here since 6 p.m., and Senator Keogan, as is her right, has spoken for 45 minutes or more. We are due to conclude at 8.30 p.m. and five Members have indicated that they wish to speak. I am asking people to be conscious of that. I appreciate that there are different views on the handling of the Bill. I call Senator McDowell.
I welcome the Minister. When it became apparent to the Members of this House precisely what the Minister was intending to do with her amendments, the scene in relation to this Bill changed rather dramatically. We now know the hate offences section is now not proposed by the Minister to become law at this stage. We also know the provisions in the Bill to introduce the framework decision of 2008 is not being preceded with, provided the Minister’s amendments are accepted.
I have a couple of things to say about procedure. This Bill, in its present form, with all of those things in it which are now apparently not to be preceded with, got through Dáil Éireann and has come to this House for further consideration. Between Second Stage and the guillotined Third, Fourth and Fifth Stages we are dealing with today, there has been a major public debate because this House exists. If this House did not exist, the Bill would have become law without any amendment whatsoever.
Exactly.
When people criticise Seanad Éireann, they should reflect on the fact this House is a revising Chamber. It is a Chamber where we are tolerant and not abusive towards each other, not hostile to each other and where reflective debate and serious consideration of legislation takes place. It has on this occasion had very significant effects.
The second thing I wanted to say is the fact this Bill is being guillotined this evening means there will not be a Report Stage because the way things are panning out now, it means that the Members of this House had to table amendments without seeing the Government’s amendments, with a common deadline for both. Some of the amendments, therefore, may seem redundant in the light of what the Government is proposing to now. On that procedure itself, we normally allow amendments to amendments and we allow on Report Stage reaction arising out of the debate which occurred on Committee Stage. All that has been swept aside by the Minister’s action in seeking to have this debate abridged and to have Third, Fourth and Fifth Stages disposed of by 8:30 p.m.
That is the effect of the guillotine. Every Member of this House who wanted to put in amendments had to do so on the blind, not knowing precisely what the Government was suggesting. They find themselves in a situation where they are not even in a position to amend the Government's amendments or to reflect on what the Government is saying and be able to make proposals for consequential amendments to the Bill. All of that is swept aside. The Minister is obviously very anxious to get this done before the general election. I accept that. The Minister has also come in here and said that violence against people by virtue of their protected characteristics is terrible and the consequences for individuals who fear it or who suffer it and for their families is life-changing for the psychology and well-being of many people. I accept all of that, so I am not saying there is nothing urgent about the issue of hatred in Ireland.
The public order legislation currently in place is not sufficient in some respects. For example, people can upload onto the Internet material which is grossly inflammatory. Under the present public order legislation, this does not constitute an offence because a kind of pre-Internet conceptual framework exists at the moment. There will have to be amendment to ensure that people do not use the Internet to achieve what they could not do if they took a loudhailer outside this building and spewed out incitement and violence-inducing rhetoric. If it wrong to do it on a street, it must be wrong to do it from the privacy of a keyboard. What I find fascinating about Internet hatred is that it is done by cowards who hide behind anonymity to spew out their falsehoods and threats.
What we are now left with is legislation which effectively is increasing the penalties for existing offences, which are punishable by law. We do not have a proper explanatory memorandum of the Minister's amendments and we do not have a comprehensive speech explaining the entirety of the amendments and the individual consequences. As far as I have been able to detect, what is happening here is that for many offences, an extra two years is being added to indictable offences. This means increasing penalties from five years to seven years, and from ten years to 12 years and the like. That is what the Bill is now doing, in cases where the motivation for the offence is found to be hatred of persons by reason of their protected characteristics. We could have achieved this much more easily if we had just said that in sentencing, if it appears to a court that hatred is established, the court should have regard to that.
From my own experience, we now have a criminal justice system that is under serious stress. Increasing maximum sentences at this stage is probably not going to bring about increased sentences for people who engage in hate crime because the Judiciary is bending over backwards to keep the prison system from clogging up completely with people serving sentences. In yesterday's newspapers, one could see the extent to which the criminal justice system is creaking at the moment simply by virtue of overcrowding of our prisons and longer prison sentences being imposed. I do not really think that thugs who use violence against other people are going to be affected by the knowledge that, if convicted, they would serve a maximum of two years more than the current sentence. Everybody is against hatred and everybody wants to be seen to be against it, but in large measure let us be truthful with ourselves. Increasing the maximum sentences for a series of offences is unlikely to have any significant deterrent effect. People who are going to beat someone up because they are black or gay or whatever are not going to think that they should be more careful because the five-year sentence for landing a person with a black eye - actual bodily harm - is now increasing to seven years. I do not think it will have significant behavioural effects. However, that is what we are doing now and I accept that the Minister's proposed set of amendments is intended to achieve that.
In that context, I notice a number of criminal enactments which are set out in the sections that are to remain in the Bill. The Non-Fatal Offences Against the Person Act 1997, which is the major non-homicidal violence statute, is now to be amended by the insertion of definitions referring to what will be the remains of this Bill. I note that "hatred" will have the meaning given in the 2023 Act and "protected characteristics" will have the meaning it has in section 2 of this Act. This is a point I want to address seriously. We are saying that "protected characteristics" has a meaning in all of those statutes for the purpose of determining what hatred is, by reference to the definitions set out in section 3, as they are proposed to be. I am very clear that violence and the threat of it, harassment and the destruction of property belonging to any person, by reason of their sex or sexual orientation, or the way in which they express themselves sexually, or portray themselves to society, is fundamentally wrong. I have no difficulty with that proposition. In that context, I have no difficulty with the notion of protecting people who are transgender. However, in the context of legislating for what "gender" is and what "transgender" is, I want clarity. This Bill does not offer a clear definition of "gender" and it does not offer a clear definition of what is meant by the term "transgender". I think I know what is involved. I think we are talking about people who psychologically prefer to be seen as neither male nor female but as having a different identity - if I may use that kind of phraseology about it - or people who are genuinely suffering from the medical condition of dysphoria, or people who live the life of a gender which they did not have at birth, or people who alternate between different views of themselves and follow different behaviour patterns.
That is what I presume is meant by transgender, and I have no problem with protecting them from hatred. I note that Senator Mullen's amendment would do the same. He extends protection to them in his amendment. The point I am making, however, is that the definition of "gender" that has been offered, which I oppose, is "the 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". The Minister has been at pains to say this definition applies only in this Bill, but it does not because we are already extending it by the criminal justice amendments in the other sections. We are extending that definition to the broad range of criminal justice statutes which are affected by it. Therefore, it is not just for this Bill; we are, in a number of statutes, stating that there are genders other than those of male and female and which do not amount to transgender. That is what we are saying now with this definition. I want to know - and I have never had an explanation from anybody - what thing other than transgender is a gender other than those of male and female. What are we actually saying? What are we actually legislating for? Why are we amending the Non-Fatal Offences Against the Person Act by changing the protected characteristics, etc., in that legislation in this way?
I do not accept the proposition, in all good faith. I have personal experience of people with dysphoria and people who have gone through gender-transforming surgery - decent, kind people - and I have the utmost sympathy for them in the sense that they feel vulnerable and the utmost sense of supporting them if that is the way they choose to live their lives. I have no problem whatsoever with and am deeply empathic towards them and supportive of them, and I think they should be protected. Let us not in any sense distort what we think other people are saying by seeking to amend this definition.
It is notable that the former Leader of this House, when she was Leader, went to the Scottish Parliament on 22 June 2022 to give evidence before one of its committees on this very issue of gender. She is now an MEP, and I do not want to attack her behind her back in any possible way. She chose to give those in attendance the background to the Irish gender recognition legislation and the plans of the Government, of which she was a significant member as Leader of this House at the time, in respect of gender and developing Irish law on gender in order that the Scottish Parliament could consider what we were doing here and what she was proposing we could do here. She shared her wisdom with them on this subject. She said, and this is in column 8 of the report of the debate:
Generations ago, there were two genders and two sexes. There still are two sexes, but today we probably have around nine genders, and that does not diminish any other gender in the gender identity set. That is a conversation that we need to have with people, particularly with women. That does not make them more or less at risk, but saying that a trans female cannot access the same spaces as other women certainly does not protect them. If we believe that men were going to go to the extent of dressing up as women and changing their gender to get access to and be violent towards women, we have a far greater problem than the male violence that we have in our cultures and jurisdictions.
That passage stands out as a statement by a serving member of the Government apparatus who was appointed by the then Taoiseach to be the leader of the Government parties in this House as to what she considered to be involved with the term "gender". She said solemnly - this was not an after-dinner speech but evidence to a Scottish committee - that there were nine genders and probably more. I can take the proposition, as I said earlier, that we should protect people by reference to two genders or transgender people who do not identify, whether permanently or impermanently, with either gender, male or female. I can fully see that there is a case for protecting them from hate, but we are being asked to say there are genders other than male and female and transgender. We are being asked to put a proposition that there are genders of that kind, a multiplicity of genders, into criminal statutes, not simply in this Bill for its purpose but into our general criminal laws. The Department of Justice has not explained - and cannot, apparently, explain - what is meant by the definition it is offering. The best it can do is to say that it wants this legislation to be open to development in this area.
I should also tell the House that Ms Doherty spoke at great length about prisoners and their gender and said:
We had a debate a number of months ago about a number of prisoners in Limerick prison, in the south-west of our country, who are in a female prison and who identified as female after they had been arrested and charged. The law is that they can change their gender if that is what they want to do, but any prison warden or officer who is running an institution or a congregated setting has to mitigate all risks, and if a patron of a prisoner facility is a threat or a risk, mitigating circumstances have to be put in place to protect all the other prisoners ...
That happened in Ireland. I will not mention the name of the individual involved - or there were two, I think - but it also happened in Scotland. When it happened in Scotland, it spelled disaster for the Scottish National Party, and the gender legislation then provoked a crisis between Edinburgh and Westminster as regards the approval, the giving of royal assent, to that legislation.
There is another layer to this whole debate. I do not want to distract us too much, but there is a movement in Ireland, and groups like TENI are part of it, which seeks to educate children that there are a multiplicity of genders.
That is a fact. I am not inventing that.
We now have syllabus texts and teacher training that goes down that road. I have a strong view that the Constitution provides for parents not merely the right but the duty to determine the moral formation and the social formation of their children. It is written into our Constitution that parents have that primary function. Activist people who want to project a different view have decided to change the very vocabulary of our common speech by using their concepts to educate children in textbooks and the like. I believe that all of these things are related.
When former Senator Regina Doherty was in Edinburgh she talked about how we were amending legislation to talk about pregnant people rather than pregnant women. She spoke enthusiastically about that and told the Scottish Parliament that Ireland was an example of progressive thought in these matters. It may be right or it may be wrong. One could be conservative or one can be "progressive" but when it comes to this legislation I had to put in an amendment not knowing whether the Minister was going to put in an amendment to her definition of gender. I had intended to propose taking out the definition of gender and the reference to gender and to put it back in on Report Stage when the Minister had come to this House and explained precisely what is meant by genders other than transgender, male and female, and when the Minister had an opportunity to say here are five examples. One does not have to go to Senator Keogan's list - I lost count and I lost the will to live as well.
Didn't we all?
I lost count but one does not have to go to those lengths to simply ask if the former Senator, Regina Doherty, is right that there are nine definitions, for starters, and would somebody kindly enumerate them for us so that we can see what we are actually putting into criminal statutes such as: the Non-Fatal Offences Against the Person Act; the Criminal Damage Act; the Criminal Justice (Public Order) Act 1991; the various other statutes that will be amended including the Criminal Law (Jurisdiction) Act; by inference the Bail Act; the Criminal Justice (Safety of United Nations Workers) Act; the Criminal Justice (Public Order) Act 2003; and the schedule of the Criminal Justice (Terrorist Offences) Act 2005, among others. If we are going to say that for the purpose of those statutes "hatred" means hatred on the basis of protected characteristics, and if we are going to say that protected characteristics for the purpose of those Acts now involves importing into those statutes by indirect reference the notion that there are, as a matter of Irish law, genders other than male, female and transgender, and that there are other things out there we are now saying are part of the official law of Ireland, part of our criminal law and recognised by law, then what are we talking about?
Does the Minister, Deputy McEntee, agree with the former Senator, MEP Regina Doherty who, on behalf of the Minister's party, went to Edinburgh and said there are nine genders and possibly more? The Minister owes this House an explanation as to what is in fact meant by genders other than those of male and female that are not transgender. What is the Minister actually saying? I could not understand most of Senator Keogan's list but I do not know what most of those labels apparently referred to. I do not even have an idea what the former Senator's nine genders are. I have no idea and I do not see why we in this House should be asked to bring into Irish law the concept that there are unspecified genders, maybe nine in number, which are different from transgender, different from male and different from female but nobody will tell us what they are. That to me is bad legislation. We should at least know what we are actually doing when we amend our criminal law in this way.
We are asking criminal judges to look at that definition as well. This goes back to a little thing that happened in the two referenda that the Minister may remember. Are we saying that judges will decide what it means? Are we just putting it up there and they will decide, in their independence and their wisdom, what a gender that is not transgender, male or female actually can be and is? Is it anything that somebody claims about himself or herself, or themselves to use the new phraseology? I just want to know and I believe we deserve a bit of honesty on this. It is all very well for the Minister to come in here - and I fully support her - to say the victims of hate who are assaulted, harassed, and had their property, families, privacy and their whole lives wrecked are entitled to protection. I agree with that but I also say that if the Minister wants me to change the criminal law of Ireland and introduce a concept of hate based by inference on the existence of genders other than male, female and transgender then the Minister must please tell me what she is talking about. That is not a huge demand to make. It is not a huge demand to make and it is not reactionary to ask what it is she is talking about. Be frank with us. Will the Minister give us three, four or five things that the she says are genders that she believes will be protected in the future by reference to this legislation, but maybe not the full nine as referred to by the former Senator, Regina Doherty, in Edinburgh?
It is not reactionary and it is not divisive to ask that the Minister would please just say what she is talking about and explain her own legislation. I ask the Minister to justify the proposition whereby the definition of gender in the Bill "means the 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...", which I understand and if it stopped there it would be fine but it goes on to say "... and a gender other than those of male and female,", in addition to transgender. No explanation has been given to this House as to what the Minister means. When the present Taoiseach was holding the Minister's position temporarily I did inquire what was meant by this. I got no satisfactory reply. If the Minister is going to rush this Bill into law and deem it to have been passed by this House, even though we will not have had an opportunity to consider any reply the Minister makes to my speech now, or put amendments down to deal with it because there will be no Report Stage, we are entitled to a straight and honest answer now.
The question I am putting to the Minister is whether there are genders other than male, female and transgender to which this Bill is going to apply. What are they? How many of them are there? Will the Minister name any of the genders we are being asked to say exist as a matter of Irish law in this Bill? When this Bill becomes law, it will affect a variety of different criminal law statutes, including the Criminal Law (Jurisdiction) Act.
I do not know how temporary the decision to drop the Council framework decision aspect of this legislation is but the House should know what is involved in it. It is said that it does not prevent a member state from adopting provisions in national law that extend Articles 1(1)(c) and 1(1)(d), which deal with genocide and the results of the Nuremburg trials, to crimes directed against a group of persons defined by criteria other than race, colour, religion, descent or national or ethnic origin such as social status or political convictions. It is said that the objective of the framework decision is to ensure that racist and xenophobic offences are sanctioned in all member states by at least a minimum level of effective, proportionate and dissuasive criminal penalties and that, for the purpose of judicial co-operation between member states, there should be a common understanding of these terms. We should be conscious of what we are doing here. People will be the subject of justice and home affairs, JHA, European arrest warrants in respect of the offences it is proposed to standardise. Irish citizens will face trial in other jurisdictions based on those jurisdictions' interpretation of what the term "hate" actually amounts to. We have to be very clear that this is what is intended by this legislation. All that was asked for was that each member state would:
take the measures necessary to ensure that the following intentional conduct is punishable:
(a) publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin;
(b) the commission of an act referred to in point (a) by public dissemination or distribution of tracts, pictures or other material;
I reiterate my point about the Internet. We have to do something about that. Article 3 of this framework decision says that:
1. Each Member State shall take the necessary measures to ensure that the conduct referred to in Articles 1 and 2 is punishable by effective, proportionate and dissuasive criminal penalties.
2. Each Member State shall take the necessary measures to ensure that the conduct referred to in Article 1 is punishable by criminal penalties of a maximum of at least between 1 and 3 years of imprisonment.
That is very easily achieved. Apart from a common assault or something like that, there is practically nothing that is not punishable in such a way under Irish law. Article 4 provides that:
For offences other than those referred to in Articles 1 and 2, Member States shall take the necessary measures to ensure that racist and xenophobic motivation is considered an aggravating circumstance, or, alternatively that such motivation may be taken into consideration by the courts in the determination of the penalties.
Let us be truthful; of course, this can be taken into consideration. That is already the law in Ireland. Does anybody seriously think that, when imposing a sentence, an Irish judge cannot take into account that there was racism or xenophobia involved? Do we want to approximate laws across Europe for the purpose of having a common understanding of what hatred is without providing any definition in our own law as to what it amounts to?
The Minister has referred to the advice of two successive Attorneys General. She may not have done herself justice on the last occasion she was here. She said that they had advised her that it would make it more difficult to secure convictions if what is meant by "hatred" and so on was defined in the legislation, which it certainly would. Allowing that their advice to the Minister was somewhat more sophisticated than what was suggested, it seems that the whole purpose of this legislation in its new truncated form is a mere illusion. Nearly every serious offence I can think of that involves damage to people, threats to kill people and all of the other things that are to be considered new offences where hate is a motivation are already punishable by very severe sentences. Nobody has complained that they are not. We are mirroring many offences such as making death threats with offences such as making death threats where hate is an element and we are providing that people can be prosecuted under the new offence with a heavier sentence. At the end of the day, if the jury finds that it has doubt about the hate element, people can nonetheless be convicted of the original offence. Is a judge to say that, because the jury had doubts about the hate element even though that judge is clear in his or her mind that an offence was xenophobic or racist, he or she is not allowed to take that into account when imposing a sentence? These are the kinds of issues that are going to arise. We are tinkering with our criminal law for visual effect.
The serious thing the Minister or her successor must do is to address the need to look at the Internet and its potential to disseminate hatred and to build up threats against people based on protected characteristics. That is the big priority and we are not doing it with this Bill as it is proposed to be amended. We are not going to get an opportunity at the end of this Committee Stage debate to have Report Stage amendments through which we could try to embody the fruit of Committee Stage because a decision has been made that all of this must be guillotined through tonight. Why could it not have been given another week? Is the election so imminent that the Bill has to be rushed through this House so that it can get to the Dáil, in whatever amended state it is in, to be rushed through there so as to create the impression that the Government did not completely back down in the face of legitimate criticism of the Bill as originally intended?
I will reiterate that the procedure whereby the Members of this House were asked to submit amendments on the blind and whereby we are not in a position to amend the Minister's amendment in any shape or form is a shameful procedure to deploy. It was not necessary. Even if the Minister said that she wanted to do this before she goes to the people in November or whenever it is, she could at least have allowed this House to have two bites of the cherry, to see what she was actually proposing and to see whether we wanted to amend what she was intent on doing by way of amendment.
The revising function of this House is being short-circuited, deliberately I am afraid, for purposes that are unnecessary, which lack the degree of urgency that they must be done in the next few days. We could have had a better debate and a better Bill if the guillotine had not been imposed.
The Minister's articulation of her concern for the experience of trans people in our city and country is commendable. I share those concerns. I wish her Government partners and colleague also shared those concerns, given that transgender healthcare in Ireland is the worst in Europe. I will speak to amendments Nos. 6 and 14.
Amendment No. 6 is Sinn Féin's proposal on a definition of "hate" which is based in part on the work of the Irish Council for Civil Liberties when it first made a submission. It is also based on work done by the party with others. It proposes that "hate" would include bias, prejudice, contempt, hostility and bigotry. It proposes that "hatred" would be defined as, "a state of mind characterised as intense and irrational emotions of enmity or detestation against a person or a group of persons in the State or elsewhere on account of their membership or presumed membership of a group defined by reference to protected characteristics". The amendment provides separate definitions for "hate" and "hatred", whereas the current definition of "hate" defines it as hatred. The Minister made a case against it but I feel that is circular. Sinn Féin and I do not think that is acceptable. We submitted this amendment previously and one of the subjects of debate today and one of the main concerns throughout this Bill's progress in both Houses has been the lack of definition of "hate" and "hatred". The Government's amendment still provides that hate is hatred even though there are multiple well-researched and internationally accepted definitions. Accordingly, I will be pressing that amendment. I do not think it is beyond the ability of the Attorney General to give us a definition, and that is our proposal.
I turn to amendment No. 14, in which we propose a definition of "protected characteristic". I think it is part of this grouping. We propose that the definition of "protected characteristic" be in accordance with the Equal Status Act. We feel this would give the Bill legal and definitional certainty while being inclusive enough to cover all cases. Various amendments are trying to delete references to religion, for example, and the original Government one expanded the definition of gender. We do not want the Bill to be at risk of legal challenge and legal uncertainty, which would be unacceptable given how long people have been waiting for these protections.
I note with regard to the Equal Status Act that in 2021 the Department of children initiated a review of the various equality Acts. All that has thus far been published in this term, unfortunately, is a summary of the submissions. That is an extraordinary omission by the Government. It is not the only omission. We have seen delay and stalling on conversion therapy. We have seen delay and stalling with the disregard of convictions. These are difficult issues in the current climate but responsibilities should not be shied away from.
We believe plain language should be used to ensure public support for the legislation, but also to give legal certainty and prevent legal challenges. Too many people have waited too long for these protections for the Government to risk those protections. Our amendment is not perfect, particularly in light of the failure to review the equality Acts, but there is an abundance of case law. It speaks to the need for definitional certainty across legislation. In Sinn Féin's view, the current definition does not help to do that.
I will make another point as I may not be able to come back in before the end. There are some persons, perhaps a minority of people in targeted communities, who are re-evaluating the response of increased imprisonment and considering potential alternatives. I make a personal point that we need to see more social, economic and educational initiatives to prevent hate crimes happening in the first place. There should be targeted support and funding for communities affected by hate crimes to address the community harms that exist. We should also be thinking about how we can support victims through compensation, professional support, free mental health support and greater use of restorative justice. I am in favour of a scenario where a select number of hate crime cases can be diverted away from traditional prosecution and sentencing and towards restorative justice programmes instead. Those actions would help to support communities, help to break down cultural and social barriers between offenders and victims, prevent hate crimes happening in the first place and reduce the likelihood of a person re-offending.
I pick up where Senator Warfield finished, which was on education. Concerns have been expressed in the House about education. One of the key tools is education that reflects the experiences of minorities in the State and the fact that there is gender, sexuality and ethnic diversity, as well as all the other categories discussed in terms of protected characteristics. That understanding and acceptance from an early day and it not being treated as something frightening is a matter of reality about the people who are here. This is not an ideological piece. It is about who is here, who is part of our society and the fact there is diversity in our society. Early education that continues throughout life in public education is one of the key ways we challenge these issues.
Within this group there are some useful suggestions. There is a general valid point that it would be better if there were greater clarity on some of the definitions. Some of the concerns expressed have been overstated, however, to the point that there is almost a suggestion that we should not include these matters as they are. There are some constructive points. One of the key differences in the definition put forward by Senator Warfield and others is that it does not just talk about hatred in the context of emotion or enmity. Crucially, it speaks to how it is addressed towards persons as part of their membership or presumed membership of a group defined by related or protected characteristics.
While there have been strong inputs in this House regarding the appalling treatment of whistleblowers, the hostility with which those who have taken a stand on an issue of principle or difference of opinion have been treated, and suggestions regarding other categories of persons, the key thing in relation to all of these views is that it is not hatred based on your membership or presumed membership of a group of people. It is not hatred addressed towards you simply because of who you are or who you are presumed to be. It is not appropriate to create an equivalence between extraordinarily poor behaviour and abuse, which has been named as abuse and so forth, towards individuals in a situation related to their actions and the kinds of hatred we are talking about here, where actions are directed towards a person simply because of their existence and who they are.
We heard a long list of purported genders earlier. The one word that came to me was not "gender" but "disingenuous", because I believe it is disingenuous to suggest that this will somehow be so wide and confusing, we should almost stay away from it. That is one of the ways in which you silence people, by saying, "Let's make this issue too difficult to touch; let's take it off the table." Let us be clear about the reality. The known fact now is that those who would benefit from protection and indeed who need protection by the State from the hatred and violence they experience regarding gender are predominantly transgender people. Women and men can also experience discrimination but transgender people experience extraordinary abuse, real levels of violence and extraordinary levels of silencing in this State. I think skelligogender was suggested, which I presume is a very small number of persons given that is an uninhabited island, but to be frank, the idea or suggestion is that the danger we might accidentally protect somebody else would somehow warn us off proceeding with legislation that protects a known vulnerable minority of transgender people who experience some of the worst abuse and worst violence that is addressed towards anybody and who have experienced that, not since 2015 but who have seen that intensified in recent years, largely emboldened by the fact there are so many new figures in public life who are willing to create fear around the existence of transgender people and what that might mean. We need to be very clear and honest. There was a call for clarity. Let us also be clear and honest about who actually needs protection and should be protected under this.
I know we are coming towards the end of the debate. Some of my own amendments are unlikely to be discussed. I regret the guillotining of the legislation, as others have said. As has been noted and outlined, the fact is Ireland needs to comply with Council Framework Decision 2008/913/JHA. I have been asking the Minister for a report on it. In the absence of that, if we are removing those sections from the Bill - had they remained, I, along with others, would probably have been looking to amend further and adjust them as I think they could have been better drafted, and I will come to some of the areas that need to be considered in any new attempt - will the Minister in her reply to the debate say what the plans are regarding the framework directive, because we need to see a clear arrow and signal of them? What comes next? As we know, infringement proceedings are being talked about. I suggest we need to know what the plan is to address what was said in terms of expressions of racism and xenophobia and how they should be appropriately tackled.
I would suggest a couple of areas in which there should be learning from the debate on all sides regarding areas that need to be addressed when we come to address these issues. The principles of equality, fairness, proportionality and justice are important. Proportionality was, of course, one of the key tests that IHREC signalled needs to be applied. Power dynamics is one of the key pieces missing from the legislation, since it does not really address power imbalances. I will look at this in two separate ways that need to be addressed. One has been touched on by other speakers but another has been neglected. Crucially, we need to look at the power imbalances in terms of the context, such as situations of employment where somebody is in a position of authority over you or where someone has financial resources, for example, if you are a major tech multibillionaire and are more in a position than others to take action and have impact. Those factors of power imbalances need to be addressed, both in the circumstances whereby you look to someone who is in a vulnerable position in a specific context and how their words are taken, and to the situation where it is particularly difficult for somebody who is receiving abuse or hatred from somebody who is in a position of authority over them to take action on it. There are a couple of ways in which that needs to be considered. Those are the specific circumstances. Some of that contextual piece has been talked about.
There is also the piece, which has been missing from some of the contributions of other Senators, which is the other part of context. We have heard a lot about the context and how it might be taken. Another part of the context is the historical power imbalances, the fact we have a deeply unequal society, and the fact there are those categories of persons, exactly those who were attempted to be listed here, who have experienced higher levels of abuse and violence historically, who have had less power regarding some of the situations they are facing, and who need the State to signal to society that it is not acceptable that there are groups of people in society who can be punched and kicked down at, treated as lesser, marginalised and be subject to the kinds of pressure to silence them and keep them in the margins that we see. That is why it is important, when we talk about it being named in court cases, that it is not simply about the individual. It is important to society to have racism, xenophobia and hatred recognised as aggravating factors because it sends a signal to society by saying you are damaging our society by making it a less equal, less inclusive place, and one in which all are not being treated equally and there are whole categories of persons living in fear and being placed into fear.
It is important when there is incitement to hatred that it is recognised. I disagree with the other contributors who say it is a minor issue in the sentencing. The signal that it sends is actually very important. The power imbalance historically needs to be addressed. That is part of the context too. That is why there is a need for legislation that at least attempts to address this, even though I would be clear that I do not believe this legislation, as is, is perfect. One of the issues regarding power is, for example, the imbalance of economic power, the fact that those with significant corporate power should not be more protected from or less vulnerable to prosecution under this Bill than the individual who says something. One of the other things the Minister, or the next Minister, when coming back to address this, as is required under the Council framework directive, needs to look to is addressing the question of the amplification, including the commercial amplification, of expressions of racism and xenophobia, those who profit from and promote racism and xenophobia for financial interest. That is not solely about the individual who makes the expression; it is that person who profiteers from the amplification of it.
That needs to be addressed. It is part of the fundamental problem.
There was a discussion of inclusive and democratic participation and its importance. We need to look at that democratic participation and fair political criticism, which is important. Part of looking at that is ensuring that there is an inclusive public sphere in which people are not literally intimidated from participation in the public sphere, be it political or elsewhere, because of the simple fact of who they are, even before they open their mouths for what they say. All the people who are afraid they will be judged for what they say were spoken about. Simply stepping forward and existing in the public space may make them a target of hatred. That is a problem we need to address. It is one reason we need to tackle these issues.
The EU context has been mentioned. Sadly, there are concerns around some of the transposition in some other EU states. Ireland, rather than aligning with that, should look to avoid those mistakes. It is important that there is no equivalence between political criticism of a state and any other form of hatred. Explicitly, we need to make sure that the protection of the right to criticise any government or state and its actions is protected and that it is not falsely equivalised with any other issue. It is appropriate that denunciation of the crime of genocide or any other human rights crimes, or denial of them, should be addressed but it is also important that we have the right to critique any state and its actions. That must be maintained. This is not the end of the road on this discussion. We have a next stage to come. I hope that there is deep learning from this debate and these categories and that some of those important issues of power and context are better addressed.
Senator Higgins warned against creating fear around the existence of transgender people. I think that is a concern that everybody can share. Everybody should be against any creation of fear around transgender people. Senator McDowell, who spoke eloquently, put his finger on it when he said that the important word is "empathic". There is a different thing when we talk about the activity of trans activists and the implications of that activity for child protection, in particular, and for the protection of women's safety and privacy. That is a live issue in our society thanks to the ideology that has access to the Government and is not opposed by the Minister as long she goes with this controversial definition of "gender".
I would like to remind the Minister of something in passing. Some people here may be familiar with the crime novels of Michael Connelly and the character of Hieronymus Bosch, otherwise known as Harry Bosch. He has a phrase he resorts to in these novels: "Everyone counts or nobody counts". That expresses my concern about the exclusivity.
I endorse everything Senator McDowell has said about the capacity of the courts to take hatred into account in whatever form it manifests itself. It seems, having listened to what he said, that there is no actual substance in this Bill in terms of what it will change in practice other than one thing - the radical definition of "gender". I draw the Minister's attention to that because of what she said earlier about the lack of concern for protection. People are protected in the law as it stands if they are attacked, regardless of whatever category of person they are. As we heard, judges are in a position to take into account the particular circumstances, including hatred against a minority group. Let us not pretend it is a free-for-all against minorities in our society at the moment as far as crime goes. There are regular prosecutions, and rightfully so. We know the number of hate-related crimes. It is about 600 or 700 according to the last year's statistics from the Garda. They are a small percentage of the crime, criminality and attacks on persons that take place in our society. I think there were something like 22,000 assaults in 2022. The Government could stand accused of virtue signalling in relation to one category of crime where redress is available, including redress that takes account of a hate motive, and failing to do enough in relation to a vastly greater number of victims of crime and attack.
I draw the Minister's attention to my amendment No. 100 which, accepting the principle that there will be groups who will have particular protection in this area, is based on the idea that if the Government is going to do that, it should be as inclusive as possible. The amendment refers to "hatred towards a group of persons on account of the group being defined by reference to characteristics common to the group, whether age, communication difficulties, colour, disability, family connections, health, nationality, national status, [here are the key words] gender, gender identity or expression, ethnicity, political views or affiliation [that counts too], religion, race, sex characteristics or sexual orientation". That is what I have said in my amendment, and the Minister should acknowledge that I am not proposing the exclusion of people who have gender identity issues, however they express themselves.
I must draw the Minister's attention to the Criminal Justice (Victims of Crime) Act 2017, which gets it right. It refers to "gender" and "gender identity or expression" as a basis for victimising people. To make this controversy go away, all the Minister needs to do is say that she will think about this and she will make that change. I defy her to tell me - certainly, Senator Ward was not able to tell me on Newstalk today - how that would lessen in any way the protection she wants to give to people who may be victims of crime based on hatred towards their gender identity or expression. It is because she is redefining "gender" that she is doing a serious disservice. As the Minister knows, I have personal respect for her and her family, which will continue, but I must say in all seriousness - I am not grandstanding - that when she faces the electorate in a few weeks, she will not deserve the vote of any parent of schoolgoing children-----
That is not fair.
-----if she does not change this definition of gender. It is as serious as this - there is serious endangerment of children in our schools based around a gender politics.
Excuse me, that is quite a significant accusation to make. Earlier, there was reference to particular organisations and their engagement in school training.
That was not an accusation.
He was offering a point of view.
It was a statement of opinion about the seriousness-----
He is personalising it.
-----of this issue. I assure those who might think that Senators McDowell and Keogan and I are standing up here for the good of our health because we found a kind of argument to make that it is a lot more serious than that. There is no rational basis for not separating gender and gender identity as two separate characteristic groups in the list of characteristics. Lesbian, gay and bisexual people want this separation. Let us be clear - it is the BeLonG To organisation, and nobody else, that wants to change the definition of "gender". It is its submission that the Minister has chosen to hear. It is an example of the groups - Senator McDowell mentioned TENI - that are pushing the idea of the gender spectrum, the idea that people may be neither male nor female. That attitude, that politics and that unscientific, non-evidence-based ideology is proving toxic to children not just in Ireland but all over the western world.
That has nothing to do with the amendments, Chair.
Senator, please do not intervene.
That is why this issue-----
No, it is not.
Senator Flynn is next to speak. She can have her say then.
It has nothing to do with the amendments.
For the assistance of Senator Flynn, it relates to Senator Keogan's amendment.
I ask the Senator to give me the floor for a minute. At this stage, it would be easier for me sitting in the Chair if each Senator could reference the amendments they are speaking to. This is moving into a general discussion rather than speaking to the amendments. Will Senators from now on identify what amendment in the group they are speaking to?
I am speaking to amendment No. 9 from Senator Keogan, seconded by me. It was BeLonG To that wanted the change in this definition of "gender". This new definition of "gender" is about causing confusion in the law. It lays the basis for changes to other gender-related legislation. Nobody knows what the new definition means but it achieves a specific aim which is to create an oppression of those who stand by the gender binary.
I accept in the context of this Bill that it relates to this Bill, which has to do with hate offences. Senator McDowell showed all the other legislation that is being impacted. However, the Minister is setting down a precedent. I am about to call the Minister out on something. She said we need not worry; it is only about a Bill that has to do with hate offences. However, I have evidence that her thinking is otherwise. I want to refer to an email reply to Deputy Richard Bruton who brought a concern to the Minister from a constituent.
Is this on the amendment?
Yes, it relates to gender. Do not be afraid of ideas.
Senator Mullen, the debate-----
What is the Senator afraid of?
I am afraid that children will be harmed as a result of the ideology that is influencing the Government. Is é sin an rud atá ag déanamh buartha dom.
God help my two boys-----
I remind Senator Mullen the debate is not about gender-----
The Minister's two boys are lucky to have great parents. Let us not bring that into it. There are many other vulnerable children in this country.
A Senator
This is getting very personal.
I am happy to have assistance in chairing the proceedings. I remind Senator Mullen that this is not about gender.
It is. It is to Senator Keogan's amendment which relates to the definition of "gender" and I am following up on what Senator McDowell said and what everybody is talking about. This will not take long but it is very revealing.
Everybody needs to show respect to the Chair in terms of addressing their remarks through the Chair, and not to the Minister directly.
The Minister said to Senator Bruton, "as you will be aware, transgender and non-binary people, domestically and internationally, are unfortunately and increasingly targeted by hate crime offenders. The meaning of gender for the purposes of this legislation therefore has to recognise that offenders target individuals based on non-conforming gender identities like non-binary, in addition to binary gender identities such as male or female." That is not true because the distinctive terms "gender and gender identity or expression" could be used in order to address the concern there in the first line. The Minister goes on to say, "The hate crime Bill is concerned with offenders' behavior and not the victim's legal status etc." There no issue there. She goes on to say: "Inclusion of the broader meaning of gender in the Bill to include transgender and non-binary persons was on foot of recommendations from civil society organisations representing a vulnerable and minority group, including the coalition against hate crime, as part of the pre-legislative scrutiny process." She does not mention BelongTo We are talking here about activist groups that have had access to the ear of the Government. The Government has not, in the 15 months or so since the Second Stage-----
It is not groups; it is organisations.
Is that a point of order?
Yes, there are 23 representative organisations behind this.
What is the point of order? Senator might stand up, thank you.
To ensure that everybody knows, the collective group against hate crime is made up of LGBTQI+ organisations as well and-----
That is not a point of order but thank you.
Adam Long, who is a gay man, is actually in the room. I want to make that point of order.
Everybody is welcome to this. However, as I said during the surrogacy legislation, it would be a sad day if we had to exclude certain points that we are making here as elected representatives because of who might be sitting in the Public Gallery. Everybody deserves respect but those in the Public Gallery are here to listen to what the parliamentarians have to say, not the other way around. We hear them when they are lobbying and then we come in to legislate, if we get a chance.
My point is that the Government has not been consulting. The Minister may correct me if I am wrong but I saw a report in recent days that, when asked about what she was going to do on the gender definition, she said we will wait to see what is brought in. The Minister may correct me if she did not that. Clearly, to my knowledge at least, she has made no attempt to deal with any of the people who expressed concerns in this Chamber on Second Stage about the problem with the gender issue.
On that occasion, I did not mention the 2017 victim of crimes Act and the distinction between gender and gender identity and expression. I do not know whether the Minister had a chance to give that consideration. Having regard to what Senator McDowell was saying, she should take that on board and say that there is a precedent here that we can use without victimising anybody. In that way, a great deal of controversy is removed and the concerns of parents are allayed because this stuff influences what is going to happen in schools. This is the next point I want to make to illustrate why that is the case.
The short email to Deputy Bruton concludes by stating, "An Garda Síochána's diversity and integration strategy and PULSE systems contain similar concepts of gender in its discriminatory motives. We cannot be in a situation whereby, operationally, the Garda has a wide, I am saying "so-called", progressive understanding of a concept such as gender but the legislation dealing with offences against a protected group of persons is far more restrictive." What the Minister is saying is that because the Garda has chosen to be expansive about what gender means and to confuse gender expression and identity which is subjective, somehow the law must follow. It is supposed to be the other way around. The Legislature is supposed to set the rules and the Garda is supposed to implement the law.
The Minister also mentioned, by the way, that the Garda says it is necessary. I would be grateful for her help on that matter. Where has it been said by the Garda that this definition of gender is necessary in the law? It is for the legislature, for Oireachtas Éireann, to set the tone for what the Garda must do and must implement.
Here is the giveaway. The Minister says that this has nothing to do with other pieces of legislation. She says, "Following a review of the Equality Act that is currently being undertaken by the Department of Children, Equality, Disability, Integration and Youth, definitions used in the Bill may be reconsidered to ensure consistency in definitions across the Statute Book." To me, this sounds as though the Minister is saying, "Yes, we intend to revisit all these definitions of gender across the Statute Book." It sounds as though she is admitting there that she is laying the groundwork for this and this is the first shot of the gun. The Minister cannot tell us here that there is nothing to see here, that this only applies to this legislation, when she is telling people in her own party that this is part of a wider revisiting of the meaning of gender. Correct me if I am wrong but that has blown the gaff on her. The concern people have is that there is this agenda going on. We saw this in the referendums as well. The Minister mentioned the Department of Children, Equality, Disability, Integration and Youth. We had the same problem in the referendums with ideological language leading to a badly-worded amendment that was roundly rejected by the people. That ideological language was rooted in this agenda to redefine gender.
If gender is redefined, this puts pressure on the system. It puts pressure on the curriculum. It bolsters those who want to imbue in children from an early age that if they are not comfortable in their gender identity that they may actually be a different gender. That has many medical professionals worried. The Minister knows about the controversies in relation to puberty blockers-----
That is way off the topic.
Senator Flynn, it is not off the topic. To be fair, Senator Mullen, despite Senator Flynn's views, is entitled to his view. I ask all Members to allow people to speak without interruption. Senator Flynn will get a chance to speak next. I am conscious that we are due to conclude at 8.30 p.m. I ask Members to stick to the relevance of the amendments that are discussing please.
I am near the end of my comments to the Minister. In its submission, which I do not have to hand, it was BelongTo that sought this new expansive definition of gender. It wants to replace the binary with the spectrum and wants to harness all laws built around the binary to apply to the spectrum. That, as I said, is the work that was going on in the background with regard to the equality Acts by the Minister for Children, Equality, Disability, Integration and Youth, the same ministry that was so misleading on the referendums. I am reminded of the phrase, "Fool me once, shame on you, fool me twice, shame on me".
There is controversy between LGB and trans activists about gender identity, its impact on women's security, women's spaces, lesbians and so on.
That is real, but the possible implications of this on child protection should be at the top of our tree of concern. That is my sincere concern. The Minister, Senator Ward and others may think I am mistaken, but many people do not think so. Many people wonder why the hell this strange new definition of gender is being smuggled in with this Bill, under the cloak of having listened to objections and having taken out whole swathes of the Bill that actually had merit. We have the worst of both worlds in a sense. We are getting nothing new on incitement to violence or hatred to update the law on the matter in the way Senator McDowell rightly said is desirable and necessary.
There are two views on how the 1989 legislation might work. I am happy to accept and support amendments at any stage that make sure that what applies to what people do in mainstream and traditional media would also apply to combatting hatred in the digital online space. However, we are not getting that because the Minister has taken that away, but she has left in a toxic definition of gender. There is no reason for her to have done that other than that the Government is caving in to an element in the Government or to certain NGOs, which I have named, who have a highly politicised view of gender. This is not about protecting people from being assaulted in the streets at all. It is about mainstreaming an idea that people are not born male or female, but rather as a combination of genders, no gender or somewhere on that new spectrum that is having a negative impact on children who encounter this ideology. You only have to ask some of the medical professionals who have been vocal in recent times about how we need to move much more carefully and more slowly on this. That is why I am on the record as saying that school boards of management need to do a risk assessment from a child protection point of view on aspects of the social, personal and health education, SPHE, curriculum. The Minister needs to do a risk assessment of this definition of gender. It lays the groundwork. It is not evidence based. It inappropriately conflates the reality of one's gender, be it male or female, and one's gender expression or identity which may vary according to the person.
Everyone deserves respect and empathy and all these people deserve to be protected against crimes motivated by hatred against them individually or as a group. The Minister has the solution to the problem. It was offered to her here, to accept a new definition of gender or at least to split, in whatever way she chooses - she has the time to do it if she wishes - gender from gender identity and expression. In so doing, following the precedent of the 2017 legislation, she will have solved the problem. She will get rid of this definition of gender and make it clear. Everything would be covered by the word "gender". People know what it is: male and female, including people availing of a preferred gender under the 2015 legislation, and everyone else under the sun who has a gender identity or expression issue and deserves the protection the Minister wants for them can be covered by using that phrase. The problem is solved.
If the Minister does not accept that solution to the problem, no one can be fooled, but that there is an ideological reason. Perhaps the Minister does not personally subscribe to it, but it has her in its grip because she is a member of a Government that has chosen to cave in to it. That has child protection implications, I have to tell her sincerely and in all honesty. That is why I say the Minister and her Government colleagues must be answerable to the electorate if they take a risk on this when they do not need to. The novelty in this is coming from the Minister and the rest of the Government. We have law that distinguishes gender and gender identity and expression. We have precedents in legislation that extend protection in this area to include all people. Why not go for it?
We have spent more than two hours making fun and games of a very important Bill for people from minority groups, including transgender people. We are saying "transgender issues". Transgender people do not have issues. The issue is society and people who are anti-trans. It is very sad to see public representatives using this platform - the Houses of the Oireachtas - to spread lies and misinformation.
The Senator should not use that language and she should withdraw it.
Okay, I will withdraw it. Misinformation is being spread when we could have focused on education elements of the Bill.
It is regrettable that the Government will not accept our amendment - due to a charge on the Exchequer - around education for people in fourth year in secondary schools on what a hate crime and hate speech are. When we know better, we do better and prevention is better than intervention. My colleagues, Senators Ward and Higgins, and I do not want to tell people they have committed a hate crime and lock them up. It is about education and learning from one another within Irish society. I will put my hands up and say this legislation is not ideal and we could do more on definitions and so forth.
I want people to be aware that the part on hate speech has been removed from the Bill. Even though some people spent hours talking about hate speech in the Chamber this evening, hate speech has been removed from the Bill. Section 29 deals with social media and multitech companies. I have been a victim many times of hate crime on social media where I have been called names because of my identity. I was spat at walking down the street almost two years ago, not because I am a politician, but because of my identity. There are no protections for people from the Traveller community, people of colour or transgender people in Irish society. Therefore, a half loaf of bread is better than no loaf of bread. This is not ideal legislation and it needs a lot more work, but as I said earlier, I welcome it.
On the fun and games, when we have guests in the Public Gallery who represent organisations and they are being insulted, it is not fair. While I am a proud Member of this House, it makes me a little bit disappointed in the behaviour of some of our Senators. It is regrettable that Senator Higgins and I could not speak on our amendments on the definition and education. The Coalition Against Hate Crime has asked for a report on whether this legislation is working and to have adequate information on the impact of hate crime in our society.
It has to be proved. It is like any other crime; it must be proved that a crime was a hate crime, motivated by hatred. Everyone knows that. I want to put people at ease about this legislation, that it is not just that people will be told they committed a hate crime. As the Minister said and anyone can read in the Bill, it has to be proved that a person committed a hate crime. I do not want people to be scared.
As a mother of two little girls, I absolutely welcome as much education as possible in our education system around gender. To use children as a weapon, as has been done in this House this evening, is absolutely appalling. I say that as a mother of two children. I am a member of the Traveller community. We have different cultural beliefs than people from the general population. Still, within our community there are a lot of barriers for Traveller women.
Traveller women rarely speak openly about issues that impact them - menopause, CervicalCheck, etc. We still tend to keep many things private in the Traveller community. We are a very Catholic, religious community.
I say as a Traveller mother of two children that I welcome education of our children in schools and regret Senator Mullen using a lot of his time to speak about how we are educating our children. Education is the key for our kids and we have to keep embedding education in our children. So what if we are talking about stuff that is not very comfortable in a Catholic sense or in the sense of the Traveller community? I will include my own community as well. It is important we educate our children. What these people are making out-----
(Interruptions).
Excuse me, I am speaking. What these people are making out-----
Senators, sorry. Can we just-----
Just let me make my last point and I will finish then.
Sure. That is perfect. Thank you.
What these people are making out in the Chamber this evening is that we are looking to brainwash. We have seen the protests against our libraries and stoking up hatred over the last few months. It is an absolute sin that public representatives can come in here for two hours, waste everyone's time and make a mockery of an important piece of legislation.
In fairness, no matter one's political viewpoint on a Bill, a Member of the House is entitled to come in and express and articulate that viewpoint, no matter who that Member is.
I will call the Minister because she has not spoken yet. Senator Keogan had 46 minutes when I was in the Chair earlier.
Did I really?
You did, yes - uninterrupted nearly.
Okay.
If there is time, I will bring you back in after the Minister.
Thank you very much.
I am trying to gather my thoughts. Again I need to go back to what we are trying to achieve. What is the objective of the legislation? This is not a gender recognition Bill. The pages and pages Senator Keogan read from whoever sent them to her could perhaps be kept for a gender recognition (amendment) Bill. It has no relevance to what we are talking about. I will never apologise for wanting to make sure that in our law people who are a minority, are victimised or are most vulnerable are protected, recognised and acknowledged, and if they are victims of a criminal act, that is recognised too. This is not, as Senator McDowell said, tinkering around the edges for effect. That is a huge insult to anybody who has been victim of a hate crime or physically assaulted because of the colour of their skin, who they identity as, where they come from or what religion they are. It is an insult to say we are tinkering around the edges for the sake of it. We are saying clearly that if a person commits a crime against another person simply because of who they are, we will acknowledge it and make sure the person who perpetrates it faces a harsher sentence. We are the only country across Europe and the western world that does not have this law.
In terms of the definition, it is not that we are sheep and following everybody. There is a reason nobody else defines the word "hate". In the UK, it is "hatred"; it is the ordinary meaning. In Northern Ireland law, it is "hatred"; it is the ordinary meaning. In German law, it is "hatred"; it is the ordinary meaning. In Spanish law, it is "hatred"; it is the ordinary meaning. In our existing law from 1989, it is "hatred"; it is the ordinary meaning. In EU law, it is "hatred"; it is the ordinary meaning. If we introduce a law, we need to make sure it is effective. Can anybody tell me "opprobrium", "enmity" or "detestation" is easier to explain or prove in a court of law than "hatred"? We all know what "hatred" means. It is the examples I gave earlier. A gang of males threatened to assault a gay man, made homophobic slurs and threatened to kill him. Gardaí attended the location but the suspects were gone on arrival. That is hatred of a person because of who they are. A female was on the way to a market with two friends and was physically attacked by a man who threw his body at her with all his strength. The female asked what was happening and he began insulting her, saying she was nothing more than a trans. He repeated several times that she was nothing more than a man. On 8 August 2023, a transgender person was with a group of friends when a group of three to five individuals began intimidating that person. The person attempted to evade them and was pursued, punched three times in the face and pushed to the ground. I challenge anybody to say that is not hatred. It is understood by our courts, our gardaí and the DPP. It is how it is currently in law and that is why we are keeping the definition as it currently stands.
In terms of gender, this is not a back door into anything. This is specific to this legislation. It has been made clear that the LGBTQI community in Ireland and across the world is more at risk of harm. I will speak to a 2024 report. Being LGBTQI+ in Ireland is a research project involving over 2,800 LGBTQI+ people, aimed at examining the mental health and well-being of those people in the Republic of Ireland and investigating public attitudes towards LGBTQI+ people. It was carried out by a group of researchers led by Professor Agnes Higgins of Trinity College in collaboration with Belong To. Key findings of the study indicate mental health and well-being have declined among the population since 2016, with significant challenges experienced by younger age groups and transgender and gender non-conforming communities. We do not need to define that: "gender non-conforming communities". The study finds LGBTQI+ people in Ireland continue to face high levels of self-harm and suicidality, with increased levels of depression, anxiety and stress. It is particularly upsetting concerning two cohorts: under-25s and trans individuals. They face more stigma, isolation and discrimination in society than other cohorts. As a result, they have worse mental health outcomes than peers. It finds they face higher levels of harassment and violence. These are people; this is not an ideology or a theoretical debate or discussion. These are people in our country who are feeling vulnerable. The legislation is being put in place to recognise that and say that if you are targeted because you do not conform to what other people think you should conform to, we will protect you insofar as is possible and we will recognise that crime. We are not trying to change anything else. The definition as it refers to the various Criminal Law Acts is specific to the hate crime Act.
For those saying they support transgender people or those who are non-conforming and have shown such support - yes, Senators Mullen and Keogan have tabled amendments Nos. 100, 106, 113, 114 and 132, and they refer to gender expression and identity, but they also include a number of other elements that will never be accepted: health, communications difficulties, political ideologies. They put such references in those amendments, knowing they will never be accepted. Ever other amendment they or Senator McDowell have tabled either removes gender completely, leaving no protection for somebody who is transgender, non-binary or non-conforming, or else clearly removes the protection they say they have for people. I have not heard them say a single thing in relation to transgender, non-binary or non-gender-conforming people that shows they support or protect them. Instead, they talk about child protection issues and protecting women.
What about the 2017 Act? I gave the Minister a way out.
What is wrong with the definition here? I genuinely do not understand what people are concerned about.
It redefines gender.
Sorry, Senator Mullen. The Minister without interruption, please. Thank you.
It redefines gender. That is what is wrong with it. The Minister does not need to do it.
Sorry, Senator Mullen, you had-----
The Minister asked me a question.
She did not ask you a question.
She asked what is wrong-----
Senator Mullen, please.
She looked at me.
Sorry, I will talk through the Chair.
The Minister without interruption, please.
We are trying to set out a gender definition that ensures nobody is left out. We are making sure those who are most vulnerable are protected under this legislation. It is for the purpose of this legislation. The various-----
You are leaving out-----
Senator Mullen, please stop.
Various Bills are amended, whether with regard to assault; non-fatal offences against the person; assault causing harm; assault causing serious harm; threats to kill; coercion; harassment; endangerment; damaging property; threatening, abusive or insulting behaviour; distribution or display in a public place of material which is threatening, abusive or insulting; entering a building with an intent to commit an offence; or assault with intent to cause harm.
The changes are for the purpose of this legislation. We are talking about hate crimes. We are talking about people who are physically being assaulted, who are being victimised, who are the victims of crime because of who they are. The characteristics that we have chosen will make sure that those who are most vulnerable, based on the facts and the evidence that we have, are protected under this legislation. That is the objective here.
It has now reached the time of 8.30 p.m.
Chair, we asked for an extension.
Senators may ask for an extension but it is not in my gift to give it because the House has already voted on the Order of Business today.
As it is now 8.30 p.m. I am required to put the following question in accordance with the Order of the Seanad of this day: "That amendment No. 2 is hereby agreed to in Committee; the Government amendments undisposed of are hereby made to the Bill; in respect of each of the sections undisposed of, other than sections 4, 6 to 16, inclusive, and 29, which are hereby deleted, the section or, as appropriate, the section, as amended, is hereby agreed to in Committee; the Schedule is hereby deleted in Committee; the Title, as amended, is hereby agreed to in Committee; the Bill, as amended, is accordingly reported to the House; Fourth Stage is hereby completed; the Bill is hereby received for final consideration; and the Bill is hereby passed." Is that agreed?
It is not agreed. It is shameful.
Question put.
Votáil.
Will the Senators claiming a division please rise?
Senators Sharon Keogan, Rónán Mullen, Michael McDowell and Fintan Warfield rose.
As fewer than five Members have risen, I declare the question carried. In accordance with Standing Order 61, the names of the Senators dissenting will be recorded in the Official Report and the Journal of the Proceedings of the Seanad.
Question declared carried.
I welcome Sheena Burke to the Public Gallery. She gave many great years’ service in Leinster House. Sheena is welcome. It is good to see her again and her friend who is accompanying her. Céad míle fáilte.
I ask the Leader when is it proposed to sit again?
At 9.30 a.m. tomorrow morning.
Is that agreed? Agreed.
Cuireadh an Seanad ar athló ar 8.44 p.m. go dtí 9.30 a.m. Déardaoin, an 17 Deireadh Fómhair 2024.
The Seanad adjourned at 8.44 p.m. until 9.30 a.m. on Thursday, 17 October 2024.