Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022: Committee Stage
I wish the Minister for Justice, Deputy Harris, members and all our guests a good afternoon, be they officials attending with the Minister or, indeed, the interested parties in the Gallery. They are very welcome to observe our proceedings. Today, we consider the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022. We have not received any apologies to date. Deputy Costello has indicated he hopes to join but will be juggling another committee meeting at the same time.
We are all familiar with the procedures but if any divisions are called, physical attendance will be required even though members can participate remotely in making commentary. If there is a division, all members will be required to be present in the committee room.
Before I go to the Bill on a section-by-section basis, would the Minister like to make any opening remarks?
I do not believe I need to.
Section 1 agreed to.
SECTION 2
Amendments Nos. 1 and 8 are related and may be discussed together.
I move amendment No. 1:
In page 6, to delete lines 3 to 6.
The amendment proposes to delete the reference to the European Council framework decision because it is precise in reference to the framework decision and section 2 could create an unconstitutional level of uncertainty in the legislation. That is the concern. The legislation needs to be direct and wholesale so that it can be interpreted properly. By having those lines in there, it makes it more difficult to understand and will lead to difficulties in the implementation of the legislation, which is going to be vitally important. While it is good to have it, the test of this legislation will be in the processing and the prosecution of it. Any uncertainty needs to be removed. I have some other amendments that will strengthen some of the definitions and so on, which is vitally important as well. Basically, the understanding of hatred around which the Bill pivots on the definitions of "protected characteristics". I believe this is a flaw that must be addressed. It can be remedied by removing the references to the frame of decision and then all the terms defined by the reference to the framework decision are also defined in the Bill so we can recommend that the former be omitted as well.
The same applies in amendment No. 8. It refers to the framework decision as well and its interpretation. Those lines need to be removed to keep this Bill clear.
Amendment No. 8 is also in Deputy Ó Ríordáin's name. Would he like to speak to it?
Yes, I would. I do not want to unnecessarily prolong the meeting by doubling up on what has been said but it is along the lines of what Deputy Pringle said. It might sound to an ordinary member of the public like dancing on the head of a pin, but the issue many of us have relates to the difference between "hatred" and "hate". It seems that the Bill would be stronger for reference to hate rather than hatred. Will the Minister speak to that?
I am pleased we are on Committee Stage. I will start with the areas where I agree. Deputy Pringle made the point about this legislation being good to have but that it is important - not to put words in the Deputy's mouth - for it to be effective. For people to be prosecuted where appropriate and the likes, that is absolutely a sentiment and a guiding principle I hold as we steer this legislation through the Oireachtas. That will come up quite a number of times in a number of amendments and debating points we may have during the debate.
I note the two amendments but I need to be upfront. One of the purposes of the Bill is to fully and completely transpose the European Council framework decision. One of its core aims is to ensure that we are fully and completely transposing the framework decision on combatting certain forms and expressions of racism and xenophobia. The subsections in question are included to give express provision to ensuring the Bill is interpreted in line with the framework decision. Non-transposition of the framework decision could have significant implications, both legal and financial, for the State. It has always been an objective of this legislation to give it its full effect. We have set that out clearly even in the Long Title on page 5.
I also note, and this is generally an issue when we are talking about European laws, frameworks and the likes, sometimes we talk as though they are something "over there"; although Deputy Pringle did not. As a full member of the European Union, Ireland was fully represented in the negotiations leading to the framework decision. For these reason, I am of the view that the clauses the Deputies are seeking to delete, are necessary and appropriate and, therefore, I regret I am not in a position to accept the amendments.
Amendment put and declared lost.
Amendments Nos. 2 to 6, inclusive, and 26 are related. Amendments Nos. 4 to 6, inclusive, are physical alternatives to amendment No. 3. Amendments Nos. 2 to 6, inclusive, and 26 will be discussed together.
I move amendment No. 2:
In page 6, between lines 6 and 7, to insert the following:
" "hate" includes bias, prejudice, contempt, hostility and bigotry;".
It comes down to the definition of "hate". The Bill is remarkable in that hate is not defined in it. This is an attempt to put in a definition that includes bias, prejudice, contempt, hostility and bigotry. It is to include that definition before the definition of hatred as well.
It is important that we have that definition there and can make that distinction. That will lead to the better functioning of this Bill when enacted.
That is important for the same reasons that we had in relation to amendment No. 1. The test of this Bill when enacted is how it works in practice. While we can clap ourselves on the back in passing legislation here, how it works and whether it is effective in practice is the measure of it.
It is important that we have the offences defined properly so that they can be implemented.
Amendment No. 3 is in Deputy Ó Ríordáin's name. Does the Deputy want to speak to that now?
No. I am happy to get the Minister's response. I am conscious that there many amendments here and I want to get through them.
There are a lot of amendments all right. We will stay with amendment No. 2 but we will follow the grouping order.
In relation to amendment No. 4, it is more or less the same. The way that it is defined at the moment is that ""hatred" means hatred against a person or a group". It is just to flesh out the definition in a more comprehensive way.
Deputy Bríd Smith has indicated. Amendment No. 5 is in the Deputy's name.
Amendment No. 5 is in our name. To elaborate on what has already been said, we think it is insufficient to have ""hatred" means hatred" end of story. We want to see an amendment to the definition, that " "hatred" [is] a state of mind characterised as intense and irrational emotions of opprobrium, enmity, and detestation rooted in bias, prejudice or hostility". Those last few words are very important, particularly in the current and future context of what is happening to our society. That is why I think it is very important.
I thank the Deputy. Did Deputy Pringle want to say anything on amendment No. 6? It is grouped.
Basically, they are all around the definition of hatred. There is no need to expand on that. It is covered.
Amendment No. 26, in Deputy Ó Ríordáin's name, is also part of that grouping. I do not know whether the Deputy wants to make any further comment on that.
When we come to it later on, we will move through it. We will not discuss it again because we have had the group discussion.
First, I will be continuing to examine this issue in advance of Report Stage. I note the Deputies' amendments. I believe they are trying to address a point that arose frequently during the course of the Second Stage debate.
Since Second Stage, I have been reflecting on the many calls to expend the definition of hatred in the legislation. I appreciate that some people believe that further clarity is needed on how hatred may be interpreted for the purposes of the Bill and I fully accept the sincerity of people bringing forward those arguments. However, it is fair to say, and we can even see it in this grouping, that the proposals tabled are varied and - going back to that initial point which will come up time and time again during this discussion today - in some cases could be extremely problematic from a prosecution perspective. I might outline some of my concerns in relation to that while committing to considering all these matters between now and Report Stage.
All of the amendments seek to delete the definition of "hatred" as it currently stands in section 2 of the Bill. The present wording reflects the strong view of the Attorney General that hatred should be given its ordinary meaning in the context of this Bill given that this is a concept understood by the courts - legally understood in our country. It is worth highlighting that other jurisdictions with similar hate speech and hate crime legislation have not defined hatred in their legislation, nor is hatred defined in the European Council framework decision on combating certain forms and expressions of racism and xenophobia which this Bill gives effect to.
Deputies Paul Murphy, Bríd Smith, Boyd Barrett and Gino Kenny, Deputy Pringle and Deputies Daly and Martin Kenny all propose replacement of the definition of hatred as currently drafted with wording from a definition provided by the Council of Europe Commission against Racism and Intolerance, ECRI. Including this definition would have the effect of making hate convictions very difficult to secure, which, I accept, is not any of the Deputies' intentions, because each and every constituent element of the definition would have to be proven beyond a reasonable doubt. That is the genuine legal view that we have been given. I believe that Deputies will appreciate the burden it would place on the prosecution to require that it prove that the state of mind of the perpetrator was characterised by intense and irrational emotions of opprobrium and enmity and detestation towards the target group. It is quite a number of tests that would each have to be proven in order to have a successful prosecution. That is the concern and perhaps, I would think, the unintended consequence of some of these amendments which is why it is right that these are teased through.
While a useful definition in policy dialogue and in anti-racism and anti-intolerance campaigns, the ECRI definition of hatred is not appropriate for primary legislation. No-one doubts that it is a useful and important definition in relation to our policy dialogue in relation to campaigns that we should run and support in relation to tackling racism and tolerance but the Director of Public Prosecutions, DPP, has expressed concerns that adopting such an approach would cause considerable challenges in prosecuting offences. The Deputies will understand why I believe we should take that very seriously.
Deputy Ó Ríordáin proposes that "hate" be defined as including hatred, bias, prejudice, contempt or hostility. I believe that the use of bias and prejudice here is inappropriate because it propose too low a threshold. Every single person has some forms of biases. Many of these, indeed, are unconscious. It is not the Government's intention in this legislation that a bias that an individual holds when committing an offence would be necessarily sufficient for it to be labelled as a hate crime. We are all - I think we are somewhat united in this - aware of the serious behaviour that we are trying to target where real hatred is in evidence.
Deputies Daly and Martin Kenny and Deputy Pringle propose insertion of two new definitions of "hate" and "incitement" in section 2. The definition of "hate" proposed would apply to the aggravated sentencing provision in Part 20 of the Bill and states that ""hate" includes bias, prejudice, contempt, hostility and bigotry". The concerns I just expressed in relation to the ECRI definition in terms of adding to the prosecutorial burden also apply here, as each of the proposed terms would have to be proven beyond a reasonable doubt.
By providing a definition for incitement as the Deputies propose, the application of this offence becomes limited to a very specific circumstance, as set out in the definition. I have been advised that incitement is commonly understood as a legal concept - indeed, it is in the 1989 Act - and to define it in a prescriptive way would significantly limit the application and reduce the scope of the offence.
I assure Deputies that my Department has conducted extensive research in the course of developing this Bill, including consultation with legal experts and with academics and a review of similar legislation internationally. My Department shares the Attorney General's view that hatred is a commonly understood concept in law and a careful balance must be struck between providing important guidance to the court while avoiding any possibility of fettering or hindering prosecution of what we all believe are serious and unacceptable crimes against largely minority and vulnerable groups or individuals.
I read out that long explanation for the benefit of sharing some of the information I have and some of the concerns of both the Attorney General and the DPP in relation to that issue around prosecution. While I cannot agree to the amendments as proposed by the Deputies, I assure the committee that I will continue to examine this issue in advance of Report Stage.
I thank the Minister. I was interested in the Minister's argument, particularly in relation to amendment No. 2, that the definition of " "hate" includes bias, prejudice, contempt, hostility and bigotry;". The Minister's argument is that in order to convict somebody of a hate, they have to prove that they have bias, prejudice, contempt, hostility and bigotry.
They have to prove all of them. If they can only prove that somebody has bias, prejudice and contempt they cannot secure a conviction because they could not prove hostility and bigotry. Maybe I am mad but I do not see how that would stand up. I would like to see case law that shows every other case in which the same definition arises. It does not stand to reason at all that it would be the case. For that reason I am adamant that it should be included. I do not understand any of the reasoning behind the opposition to it.
The present definition of hate is legally adhered to as it stands at the moment. In changing it, we are trying to be more descriptive to reflect what we see raising its head more and more in our society. I take the point that has been made from a legal perspective. Common sense can be one thing while law can often be an entirely different thing. That is what we are faced with here. I would like an assurance from the Minister or his officials that what is intended here is the same as what the outcome of the Bill would be.
I have outlined the issue regarding bias and prejudice, and the reasons for that. I am happy to provide the committee with any useful information that I can. We have had very clear advice from the Office of Attorney General and have heard the concerns of the DPP about taking a definition that is useful and with which, I think, none of us has a policy problem - I certainly do not - and that is used in policy dialogue, and putting it in primary legislation. To do so would be overly prescriptive and would potentially have an unintended consequence of actually raising the bar for successful prosecution. While this legislation is not exclusively about successful prosecution, I am in agreement with Deputy Pringle's opening comments and feel that being able to successfully prosecute people who have engaged in incitement to hatred or acts of hatred is something we would all like to see in passing this legislation.
I am sure my words are not lost on the Deputy. What I am saying is that I will be considering these issues further between Committee and Report Stage. I have heard what he has said, both on Second Stage and on Committee Stage. I am outlining the problematic nature of some of these amendments in good faith. I am saying I will give further consideration to it between now and Report Stage.
What I take from the Minister's comments is that there is a lot of criticism of the 1989 Prohibition of Incitement to Hatred Act that it was effectively toothless. There may be a misunderstanding of how effective it was but it was certainly not as effective as it could have been. Am I to take it from the Minister's remarks that he does not want to replace that Act with a new Act which is similarly toothless? We can have all the aspirations we want in the Bill but if it cannot be effectively prosecuted in court, it is no good to anybody.
Yes, without passing a judgment on the 1989 Act, that is exactly right. I want to make sure we have an Act that is implementable and operational. If we as an Oireachtas decide to pass this law and put it on the Statute Book, members of An Garda Síochána, DPP staff and members of Judiciary need this Act to be implementable and operational. We know what we are endeavouring to do here as an Oireachtas and must ensure that the legislation can actually be effective. I am very much accepting in good faith what members are trying to do in the amendments they are bringing forward. I am suggesting that I reflect on what they have said and consider it further between now and Report Stage. We can interact further at that stage.
I am sure the committee will recall that when we did prelegislative scrutiny on this legislation, it was one of our findings that it was important to have precision in criminal law because prosecutions flow from it. Elements of the crime must be satisfied in order to have successful prosecutions. I listened to Deputy Ó Ríordáin's comments about the 1989 Act and perhaps the difficulty in successfully prosecuting under it. The point is well made. We have heard the Minister's offer and response so I will ask Deputy Pringle how the amendment stands.
Do we have another round of comments on it?
We have lots of other amendments to do but if the Deputy wants to make a brief point that is all right.
I am just not clear on what the Minister said. He was very categorical in saying these amendments would not cut the mustard. I do not know what further consideration he can make in respect of them. What can he actually decide to do on Report Stage that will meet us halfway? Maybe I am just not listening exactly to what he is saying. I would like clarity on what can actually be done, what the Minister is considering or, to be very cynical, if he is just looking to get through today and wait for Report Stage.
I do not believe Deputy Pringle to be cynical at all and I certainly am not. What I am saying is that I will be engaging further in an appropriate fashion in terms of legal advice and with the DPP's office in advance of Report Stage. I hear what the committee is trying to do in terms of greater clarity. I take it that the purpose of these amendments is to try to provide greater clarity as to what the legislation is endeavouring to do. I cannot and do not wish to ignore very clear legal concerns from the Office of the Attorney General, the view of the DPP, or the importance of legislation that does have teeth, as Deputy Ó Ríordáin suggested. I am not minded to ignore any of those things but I am going to seek further legal advice around that issue of clarity and if there is any possibility to provide more clarity on Report Stage.
How stands amendment No. 2?
Amendment put:
The Committee divided: Tá, 4; Níl, 5.
Tá
- Daly, Pa.
- Kenny, Martin.
- Ó Ríordáin, Aodhán.
- Pringle, Thomas.
Níl
- Costello, Patrick.
- Farrell, Alan.
- Harris, Simon.
- Lawless, James.
- Smyth, Niamh.
Amendment declared lost.
I move amendment No. 3:
In page 6, to delete lines 7 and 8.
Amendment put and declared lost.
I move amendment No. 4:
In page 6, to delete lines 7 and 8 and substitute the following:
“ “hate” includes bias, prejudice, contempt, hostility and bigotry;
“hatred” means 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, or any one of those characteristics;
“incitement” means behaviour towards, or communications about, a person or a group of persons that create a serious risk of discrimination, hostility or violence against persons belonging to or being presumed as belonging to such groups on the basis of their protected characteristics;”.
We withdraw the amendment with the right to look at it again on Report Stage if the Minister can examine the issue between now and then.
The Minister has noted that position.
Amendment, by leave, withdrawn.
As the proposers of amendment No. 5 are not in the room the amendment falls.
Amendment No. 5 not moved.
I move amendment No. 6:
In page 6, to delete lines 7 and 8 and substitute the following: “ “hatred” means 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, or any one of those characteristics;”.
Amendment put and declared lost.
I move amendment No. 7:
In page 6, between lines 8 and 9, to insert the following:
“ “incitement” means behaviour towards, or communications about, a person or a group of persons that create a serious risk of discrimination, hostility or violence against persons belonging to or being presumed as belonging to such groups on the basis of their protected characteristics;”.
My amendment goes back to the same arguments that we have been having for the rest of the amendments up to now. Obviously the legal advice that the Minister has is that it is better not define these words so that the lawyers can argue themselves. I would naively think that the legislation should define the words so that the court could know what it is dealing with rather than have them set by precedent or whatever in the courts. My amendment defines incitement and states: " "incitement” means behaviour towards, or communications about, a person or a group of persons that create a serious risk of discrimination, hostility or violence against persons belonging to or being presumed as belonging to such groups on the basis of their protected characteristics;”. My amendment seeks to further define "incitement".
In the interests of time I will not repeat the same arguments. The Deputy correctly guessed my position. Incitement is not defined in the 1989 Act or the framework either that we are transposing. The other arguments that I made previously stand. We have a difference of view on this and I have outlined my position.
Is Deputy Pringle satisfied with that engagement?
I will revisit this matter on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 8:
In page 6, to delete lines 10 to 12.
Amendment put and declared lost.
Section 2 agreed to.
SECTION 3
Amendments Nos. 9 and 14 are related and may be discussed together.
I move amendment No. 9:
In page 6, line 19, after “religion”, to insert “or belief”.
This amendment seeks to include the word "belief" following "religion" and includes reference to philosophical convictions or belief, or their absence. The word "religion" is not strong enough. The word "belief" is stronger. It could be argued that a person who is an atheist does not have a religion. A person may have a belief system that does not come under the technical definition of "religion". It would strengthen the Bill to include "religion or belief" because "religion" is not wide enough. I have a belief system but, in my personal circumstances, I doubt I would call it a religion and I know there are other people like me.
Does the Deputy wish to speak to amendment No. 14 separately or has he covered it?
I thank the Deputy for tabling these amendments, which propose to change the definition of "religion". As currently drafted, religion is a protected characteristic for the purpose of the legislation. No one is suggesting it should not be. I understand this but the Bill also includes reference to the "absence of a religious conviction or belief" and this is explained in the Bill. I am very satisfied that religion, as well as an absence of religious conviction or belief, are protected as a characteristic in the Bill as currently drafted. The effect of the amendment would be to include philosophical convictions as well as religious beliefs or, indeed, the absence of religious beliefs, as protected characteristics. From the extensive public consultation carried out in 2019, this was not an issue that arose. This was the process that informed the list of protected characteristics on the basis of the lived experiences of those most impacted by hate speech and hate crimes, of which over 50% amounted to racism. For this reason, considering that "absence of religious conviction or belief" is already included in the Bill, I am of the view that the amendments are not necessary.
Would it be safer to include the phrase rather than leave it out?
I do not believe so because it is captured.
That is the Minister's belief.
That is my belief. It is my philosophical belief - touché. I am satisfied in this regard. The Deputy's argument would be a lot stronger if references to "the absence of religious conviction or belief" were not already captured in the Bill. I genuinely believe this is captured.
What if someone argued in court that a person's belief system is not a religion? In that case, it would not come under the Act.
It would. The Act will provide for the protected characteristic being a religion or absence of religious conviction or belief.
What if it is not religious but it is a belief?
Then we are back to the point where we genuinely have no practical example of that having come through the consultation. I am not being flippant in any way on this matter but we must, at some point, decide what the protected characteristics are. What we used to inform the wording was the public consultation, which took place long before my time in the Department of Justice. There was an extensive process in 2019. We have tried to capture all the matters that came up, specifically race, colour, nationality, religion, national or ethnic origin, descent, gender, sex characteristics, sexual orientation, and disability. As I said, in regard to references to "religion", we have included the words "the absence of a religious conviction or belief". I can reflect on that further but that is genuinely the view we arrived at based on the consultation. I have not heard this matter raised as a genuine concern before. Obviously, the Deputy believes it is and for that reason, I will reflect on the matter further.
On the basis of the Minister’s comments, I will find some concrete examples. I will withdraw my amendment and resubmit it on Report Stage, if the Minister is open to that.
The same applies to amendment No. 14.
Amendment, by leave, withdrawn.
Amendments Nos. 10, 12, 15 and 19 to 23, inclusive, are related and may be discussed together.
I move amendment No. 10:
In page 6, between lines 22 and 23, to insert the following:
“(h) migration status,”
Amendment No. 10 proposes the addition of "migration status" as a protected characteristic. In the current climate, it is important that this is recognised in this way. The Minister will probably say that race and colour already cover this. However, there are countries, which I will not name, where race or colour are not an issue but migration status would be the issue. In the current climate, it would be no harm to have that definition included in the Bill because it is important. For this reason, I propose it be included.
Amendment No. 11 seeks to include "variation of" before the word "sex". Amendment No. 15 refers to migration status and seeks to include "references to persons seeking international protection, persons with refugee status, persons with permission to remain and persons with any other regular or irregular migrant status". The amendment defines "migrant status" further. Amendment No. 20 seeks to further define "sexual orientation" and what that means. Amendment No. 23 refers to sex characteristics and the physical and biological features of a person relating to sex. The amendment expands on that definition a little.
There are a few other Deputies proposing amendments in this grouping. Amendment No. 12 is in the names of Deputies Pa Daly and Martin Kenny.
Amendment No. 12 speaks for itself. Similarly, amendment No. 21, which relates to migration status, also speaks for itself, as do the others.
I refer to amendment No. 19 on sexual orientation. I know the Bill states that "sexual orientation" has the same meaning as it has in section 2(1) of the Equal Status Act 2000, but we want to add that "sexual orientation” refers to emotional, romantic or sexual attraction to others based on gender, and includes heterosexual, lesbian, gay, bisexual, pansexual and asexual orientation. It provides a more updated definition.
I acknowledge the detailed work and constructive suggestions that are being made. Deputies will be aware that many of the protected characteristics underpinning the Bill are carried forward from the Prohibition of Incitement to Hatred Act 1989.
The addition of several new characteristics, namely, descent, gender, sex characteristics and disability, have been informed by public consultation and ongoing engagement with minority groups. Characteristics have been brought forward and there has been the addition of new characteristics to the process through public consultation in 2019. Arising from these consultations, the list of characteristic features identify the grounds most targeted in hate-based crimes in this country. That is what we intend to do.
I note Deputies Pringle, Daly and Kenny have proposed the inclusion of a new protected characteristic, namely, migration status. I instinctively see the benefit of that and why they are endeavouring to do it. We have had discussions in this committee before on concerns all of us have about issues we are seeing. I instinctively see what the Deputies are trying to do and am supportive of it, but I need to be clear and to seek legal advice on it. I need to tease this through. I am not in a position to accept the amendment on migration status today but I will examine the proposal further in advance of Report Stage. I will tease it through, with legal advice, and revert to the committee on Report Stage. From a policy perspective, I would like to do it, but I have not had legal advice as to the impact it may or may not have. Deputy Pringle has made the point that there are other characteristics and that this may not cover everybody in every scenario in relation to migration. I want to reflect on that valid point.
Another issue in this grouping concerns the definition of "sexual orientation". It is right and proper that the Government and State look at whether these definitions need to be updated. In dealing with these issues, however, we must not cross over into another process. As currently drafted, the definition of "sexual orientation" is based on the definition, as Deputy Ó Ríordáin said, in the Equal Status Act 2000. I am conscious we are now in 2023. I see a benefit in having the definition linked to that Act because it ensures consistency of terminology across the Statute Book. In the 2000 Act, “sexual orientation” is defined as “heterosexual, homosexual or bisexual orientation” but my colleague, the Minister for Children, Equality, Disability, Integration and Youth, has commissioned a comprehensive review of the equality Acts. That work is under way. If decisions are taken to amend the definition in the Act, this legislation will be automatically updated because we are linking and cross-referencing our legislation and the equality Acts. There is benefit to this. We want there to be a standard definition across the Statute Book. It creates challenges and difficulties if there is not. If this work was not under way, I might be inclined to say I get the point of the amendment. Considering that the work is under way, there is merit in making sure this legislation, which we are trying to future-proof, is aligned to any outcome from that.
To say that clearly, as the incitement to hatred and hate offences Bill cross-references the equality Acts, the definition for the purpose of the Bill would automatically update if the Oireachtas agrees to such amendments to those Acts. That is the only reason I am not in a position to agree to the Deputies’ amendments at this time. There is no policy difference.
Deputy Ó Ríordáin also tabled an amendment on the definition of "sex characteristics". As currently drafted, the Bill refers to the physical and biological features of a person relating to sex. It does not preclude any variation of those characteristics being protected. I have checked the current wording and agreed with the Attorney General that it is appropriate.
I thank the Minister for his comments on amendment No. 10. I know from what he has said this will not happen, but I hope the legal guys will not cite the fact public consultation took place three years ago. This is topical and needs to be addressed.
How stands the amendment?
I will leave it until Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 11:
In page 6, line 23, before “sex” to insert “variation of".
The Minister's explanation relates to this one as well. I will carry it over for Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 12:
In page 6, to delete lines 24 and 25 and substitute the following:
“(i) sexual orientation,
(j) migration status, or
(k) disability.”.
I will withdraw the amendment on the basis that the Minister will look at the issue of migration status. It has been the focus of much of this in recent times.
Amendment, by leave, withdrawn.
Amendment No. 13 is not in the group but some of the discussion was on it. It is Deputy Ó Ríordáin's amendment. He can speak to it again, if he wishes.
I move amendment No. 13:
In page 6, to delete line 26 and substitute the following:
“(2) In subsection (1)—
I withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 14 falls because No. 9 has not been accepted.
It is on the basis that it can be resubmitted.
It is on the same basis as amendment No. 9, which was withdrawn on the basis it may be reintroduced on Report Stage. That can carry over to amendment No. 14.
Amendment No. 14 not moved.
Amendment No. 15 was taken with amendment No. 10. The related amendment has been withdrawn. They go together.
It was withdrawn with a view to bringing in back on Report Stage if necessary.
Amendment No. 15 not moved.
I move amendment No. 16:
In page 6, to delete lines 32 to 34 and substitute the following:
“(c) the reference to “national or ethnic origin” includes reference to membership of the ethnic group within the Nation known as “Travellers”, and also known as “Mincéirí” or “Pavees”,”.
This amendment introduces a specific reference to “the ethnic group within the Nation known as ‘Travellers’, and also known as ‘Mincéirí’ or ‘Pavees’,”, which has, as we know, ethnicity recognition. I am interested to hear what the Minister has to say.
The rationale of my response is the same as in the previous interaction I had with Deputy Ó Ríordáin. Much has changed in the world, particularly in relation to recognition of ethnicity, since the Equal Status Act 2000 but I make the same point that this Bill cross-references the equality Acts and there is a review under way by the Minister, Deputy O’Gorman. That is the approach I intend to take to this.
Amendment, by leave, withdrawn.
Amendment No. 17 is grouped with amendment No. 18.
I move amendment No. 17:
In page 7, to delete lines 1 to 3 and substitute the following:
“(d) “gender” means the gender of a person or the gender which a person expresses or with which the person identifies, and includes the male, female, transgender and non-binary genders,”.
The issue is there is no express linkage with the Equal Status Act in this section. While I accept the Minister’s bona fides on amendment No. 19 and the previous one concerning Travellers, this one is not expressly linked in terms of gender. It is fair enough when the Minister refers to the intention to update the Equal Status Act 2000 but there is no reference in this section to that Act. Either we include a reference to it and it follows from the other sections of the Bill, or we substitute this amendment. There is not a reference to the Equal Status Act because I am not sure that Act goes into gender in the way we would like today.
The Deputy is right. The way to deal with this is separate from the previous answers I gave. Both Deputy Pringle and Deputy Ó Ríordáin propose to expand the definition of gender to include reference to non-binary genders. I assure them this matter has been carefully considered in the drafting. While I appreciate the intention behind the amendments, I am advised caution in relation to the language in the area. The language is constantly evolving. The approach I have taken in the Bill attempts to future-proof this provision to a degree by defining gender to include genders other than male or female.
I consider this provides comprehensive protection under the Bill to persons with a non-binary gender identity while also allowing for any evolution of language in this area in the future. The legislation already as drafted does specifically, in relation to gender, define gender to include genders other than male or female and that does absolutely include persons with a non-binary gender identity. The concern is that language evolves in this area and that is why we were trying to come up with a wording and terminology that absolutely provided protection but also future-proofs the legislation somewhat in terms of evolving language. That is the rationale behind the current drafting.
I would be more comforted if there was a reference within that section of the Equal Status Act.
Can the Deputy let me reflect on that?
Can the Minister do the work on that?
Yes I would be very happy to reflect on that because I want to be absolutely clear, and for anyone watching these proceedings I want to be absolutely clear, that the intention is to ensure that there is comprehensive protection under this Bill to a person with a non-binary gender identity. The Deputy's suggestion is sensible so I can take that away and look at it. I will revert on Report Stage.
Okay because any reading of this national ethnic origin has Equal Status Act reference, sexual orientation has Equal Status Act reference, disability has Equal Status Act reference but gender does not. That might be something the Minister could reflect on and come back on. I can withdraw the amendment on that basis.
Amendment, by leave, withdrawn.
Amendment No. 18 not moved.
I move amendment No. 19:
In page 7, to delete lines 4 and 5 and substitute the following:
“(e) “sexual orientation” refers to emotional, romantic or sexual attraction to others based on gender, and includes heterosexual, lesbian, gay, bisexual, pansexual and asexual orientation,”
Amendment, by leave, withdrawn.
Amendments Nos. 20 and 21 not moved.
I move amendment No. 22:
In page 7, to delete lines 6 and 7 and substitute the following:
“(f) references to “sex characteristics” shall be construed as references to the physical and biological features of a person relating to sex, and as including variations of such characteristics whether dimorphic or otherwise, and”.
Amendment, by leave, withdrawn.
Amendment No. 23 not moved.
Section 3 agreed to.
Section 4 agreed to.
SECTION 5
I move amendment No. 24:
In page 7, line 14, after “Expenditure” to insert “, National Development Plan Delivery”.
This is a very straightforward amendment which calls the Department of Public Expenditure and Reform by its correct name. The Department has now been renamed the Department of Public Expenditure, National Development Plan Delivery, and Reform with effect from 1 February 2 and we are aligning the Bill with the Department's new name.
Amendment agreed to.
Section 5, as amended, agreed to.
NEW SECTION
The first amendment is in the name of Deputy Pringle who is not present. Amendments Nos. 25, 95 and 96 are related and may be discussed together. I will see who is proposing amendments Nos. 95 and 96 because if their sponsors are here they can speak to them. Deputies Daly and Kenny are present for amendment No. 95 and it will be taken together with amendment No. 96 and Deputy Bríd Smith can speak to that if she wishes to.
Amendment No. 95 speaks for itself and not later than five years after the Act that the Minister will commence a review of the operation of the Act. Given the conversations that have taken place so far it might not be necessary. Not later than 12 months after the commencement of the review to make a report to each House of the Oireachtas on the findings.
Before we go to the Minister does Deputy Bríd Smith want to speak to amendment No. 96?
I do not want to speak to it.
Okay. Does the Minister wish to respond to those?
I note the Deputies' amendments. The purpose here is to keep the legislation under active review. I obviously share the view that legislation should be kept under ongoing review. It is available to the Oireachtas to amend any legislation at any time to ensure it is operating as intended.
I recognise that the substance of this Bill provides for relatively new concepts in our criminal law. As Deputies will be aware there is a requirement under Dáil Standing Order 197 for a post-enactment report for all new Acts. This requires a report to be prepared by a member of the Government or a Minister of State officially responsible for the implementation of the Act 12 months following enactment. Post-enactment reports do provide a review of the functioning of the Act to date and have to be laid in the Oireachtas Library.
One part of Deputy Pa Daly's amendment which relates to no later than 12 months. I want to assure the Deputy that my Department will comply with that Standing Order requirement. I want to say for anyone watching that these are comprehensive reviews and will involve engaging with the Courts Service, gardaí and the likes and providing data. I do believe that part of what Deputies Daly and Kenny are trying to achieve is fulfilled through the post-enactment report mechanism.
In light of this I am not inclined to include a statutory provision for review of the Bill. I do not mean to be flippant but this is something that comes up regularly with legislation for understandable reasons. However, I do not think we need to commit to a prescriptive timeline in this legislation for review, it is open to the Oireachtas to review it at any time and the post-enactment report 12 months on will provide a basis for discussion.
I will withdraw that later amendment.
I will note that for now and return to that later on but it is good to have an indication. Amendment No. 25 falls because Deputy Pringle is not present.
Amendment No. 25 not moved.
SECTION 6
I move amendment No. 26:
In page 7, between lines 19 and 20, to insert the following:
“ “hatred” means hatred against a person or a group of persons in the State or elsewhere on account of their protected characteristics or any one of those characteristics;”.
Amendment, by leave, withdrawn.
Amendment No. 27 not moved.
Section 6 agreed to.
NEW SECTION
Amendments Nos. 28 to 33, inclusive, are grouped and may be discussed together. We will take those in order. Deputy Pringle is not present.
I am sorry Chair have we-----
In the previous grouping Deputy Pringle was not here for amendment No. 27. I do not mean to be difficult but were they grouped with amendment No. 35-----
Yes, there are some we can take the discussion on. Amendments Nos. 35 to 38, inclusive, and amendments Nos. 40 and 41 are related and may be discussed together. We can have the discussion on those now or we can discuss them as we come to them later. We will take those amendments now. Even though Deputy Pringle is not here to move his own amendment the related items can be taken. We will jump to amendment No. 35 which is also in the name of Deputy Pringle so that falls unfortunately. Amendment No. 36 is in the name of Deputy Ó Ríordáin who is not present either. Deputy Bríd Smith can speak to amendment No. 37 if she wishes.
Amendment No. 38 is in the name of Deputies Pa Daly and Martin Kenny who can speak to those if they wish.
Amendment No. 38 speaks for itself in that "presumed membership" is a situation where somebody might be confused on the motivation, for example, on a particular nationality but they might get it wrong. That should be included.
Before we move on I will invite the Deputies Pa Daly and Martin Kenny to discuss amendment No. 40 because it is grouped if they wish to but they do not have to. The Minister has tabled amendment No. 41.
I thank the Chair. First to see an outbreak of harmony I am endeavouring to do in amendment No. 41 what Deputies Pa Daly and Martin Kenny wish to do in amendment No. 40.
My officials have considered research in the area of genocide. There is a valid rationale for including nationality and gender in the list of protected characteristics for the purpose of section 8 on the basis of evidence of genocide, crimes against humanity and war crimes that are perpetrated on these grounds. That is the basis upon which I am tabling the amendment. I hope it will be agreed by the committee. I will continue to examine the wording of this section and any further considerations will be reflected on Report Stage.
Amendments Nos. 28 to 33, inclusive, are related and may be discussed together.
Amendment No. 28 not moved.
SECTION 7
I move amendment No. 29:
In page 8, to delete lines 12 and 13 and substitute the following:
“that is likely to incite violence or hatred against a person or a group of persons on account of their membership or presumed membership of a group defined by reference to protected characteristics, or any one of those characteristics and,”.
I will withdraw the amendment on the basis of what the Minister has said.
Amendment, by leave, withdrawn.
I move amendment No. 30:
In page 8, line 12, to delete “or hatred” and substitute “or intimidation, hostility or discrimination”.
I will speak to the grouping for clarity because it will help people who are following the broadcast of the proceedings. Deputies Daly, Martin Kenny and Pringle seek to provide that an offence of incitement to violence or hatred may be on account of actual or presumed membership of a group defined by reference to protected characteristics. I have explained why that is not necessary in respect of amendment No. 38. The same reasons can be noted here.
The Government is proposing a small technical amendment that will improve the wording of section 7(1)(b) by bringing it in line with the wording of section 7(1)(a). I hope the committee will agree to that change.
As regards the definition of "hatred" proposed by Deputy Bríd Smith, I have outlined the position in that respect. I remind the committee of Ireland's obligation with regard to the transposition into Irish law of the European Council framework decision on combatting certain forms and expressions of racism and xenophobia. An offence of incitement to violence or hatred is a requirement under that framework direction and that is why the offence is worded as it is in the Bill.
Amendment put and declared lost.
I move amendment No. 31:
In page 8, line 14, before “does” to insert “the person”.
Amendment agreed to.
I move amendment No. 32:
In page 8, line 14, to delete “or hatred” and substitute “or intimidation, hostility or discrimination”.
Amendment, by leave, withdrawn.
I move amendment No. 33:
In page 8, line 16, to delete “or hatred” and substitute “or intimidation, hostility or discrimination”
Amendment, by leave, withdrawn.
Amendments Nos. 34 to 36, inclusive, not moved.
I move amendment No.37:
In page 8, line 26, to delete “religious”.
Amendment put and declared lost.
I move amendment No. 38:
In page 8, to delete lines 36 and 37 and substitute the following:
“persons on account of their membership or presumed membership of a group defined by reference to protected characteristics, or any one of those characteristics,”.
Amendment, by leave, withdrawn.
Section 7, as amended, agreed to.
SECTION 8
I move amendment No. 39:
In page 9, to delete lines 22 to 26 and substitute the following:
“where such communication of material or behaviour is directed against a person or group of persons on account of their membership or presumed membership of a group defined by reference to protected characteristics, or any one of those characteristics and is done with intent to incite violence or hatred against such a person or such a group of persons on account of those characteristics or any of those characteristics.”.
Amendment, by leave, withdrawn.
I move amendment No. 40:
In page 10, to delete lines 9 to 11 and substitute the following:
“ “protected characteristic”, in relation to a person or a group of persons, means any of the characteristics specified in paragraph (a), (b), (c), (d), (e), (f) or (g) of the definition of that term in section 3(1);”.
Amendment, by leave, withdrawn.
I move amendment No. 41:
In page 10, line 10, to delete “(d), (e) or (f)” and substitute “(c), (d), (e), (f) or (g)”.
SECTION 9
Amendment agreed to.
Section 8, as amended, agreed to.
I move amendment No. 42:
In page 10, to delete lines 22 and 23 and substitute the following:
“of persons on account of their membership or presumed membership of a group defined by reference to protected characteristics (within the meaning of section 7 or 8, as the case may be), or any one of those characteristics,”.
Amendment, by leave, withdrawn.
Section 9 agreed to.
SECTION 10
Amendments Nos. 43 to 45, inclusive, are related and may be discussed together.
I move amendment No. 43:
In page 11, to delete lines 1 to 9 and substitute the following:
“(a) prepares or possesses material which is threatening, abusive or insulting that is likely to incite violence or hatred against a person or a group of persons on account of their protected characteristics or any of those characteristics with a clear and serious intention of communicating the material to the public or a section of the public, whether by himself or herself or another person, and
(b) prepares or possesses such material with intent to incite violence or hatred against such a person or group of persons on account of those characteristics.”.
Following on from some of our discussions, there is a belief that may be undue interference under the section with the right to a private life and that it does not meet the criminal standard of proof with regard to intention. I am interested in what the Minister has to say on that.
I ask the Deputy to repeat that; I did not catch it.
We discussed this matter with certain groups and individuals and it is believed that it constitutes an undue interference with the right to private life and does not meet the criminal standard of proof with regard to the intention side of things.
Very good. That is an important point. Does the Minister wish to reply?
The Deputies have proposed a number of amendments to section 10, which relates to the offence of preparing or possessing material that incites violence or hatred.
Deputies Paul Murphy, Bríd Smith, Boyd Barrett and Gino Kenny propose deletion of the section in its entirety. I cannot agree to that proposal as I believe it is of fundamental importance that there be an avenue for prosecution when an individual has created content that would incite violence or hatred against vulnerable individuals or groups but such material has been intercepted before it is shared publicly.
Deputies Martin Kenny and Daly propose limiting the application of the offence to material that is threatening, abusive or insulting, requiring a clear and serious intention to communicate the material and changing the threshold for the offence from recklessness to intent. I acknowledge the reasoning behind these proposed amendments but, similar to the offence of incitement to violence or hatred, this offence has carried over from a corresponding offence in the Prohibition of Incitement To Hatred Act 1989. In that Act, the offence is limited in application to material that is threatening, abusive or insulting and the threshold for the offence is recklessness. As this was largely unsuccessful in securing convictions, a decision to lower the threshold and not limit the offence to material that is threatening, abusive or insulting was a deliberate policy decision that has been approved by the Government. For that reason, I cannot agree to the amendment.
May I speak to the reasons we oppose the section?
The Deputy will have an opportunity to do so.
We are opposing the section but the Minister has already spoken to it
The Deputy will, of course, have an opportunity to speak to the section, but not until we have dispensed with the amendments. We must work through the amendments one by one before addressing the section as a whole. I will indicate when the Deputy may speak to the section.
Amendment put and declared lost.
Amendments Nos. 44 and 45 fall because the proposers are not present.
Amendments Nos. 44 and 45 not moved.
Question proposed: "That section 10 stand part of the Bill."
This section is open to an interpretation that could almost amount to legislating for thought crime. The provisions cover situations in which somebody possesses material that is likely to incite hatred or violence with a view to publishing it but where it has not yet been published, put online, become open knowledge or fallen into anyone else's hands. However, there could also be situations where, for example, I might be beavering away doing research into a fascist group, which necessitates that I possess certain material, even though I have absolutely no intention of publishing it. How does one prove one's intent either to publish or not publish, as the case may be? This is quite a dangerous section and it should be removed from the Bill.
I accidentally responded to Deputy Smith's opposition to the section before she had addressed it. We believe it is of fundamental importance that provision be made for this avenue for prosecution. We have a system that involves the DPP and others making the decisions on whether to prosecute particular cases. There needs to be an avenue for prosecution where an individual has created content that will incite violence or hatred against a vulnerable individual but such information has been intercepted before it is shared publicly. Provision is being made for situations where there has been success in stopping the publication of something that clearly constitutes an incitement to hatred. I take the point-----
The reference to "prepares or possesses material" may need to be amended.
The threshold of intending to incite hatred must be met. The example the Deputy gave of somebody doing research work is covered under other protections in legislation. The provision we are bringing forward here is in recognition that the threshold is changing, as I said to Deputy Daly. The provision is being brought forward from the 1989 Act. It exists in Irish law today and we are bringing it forward to this Bill.
It is good to tease this issue out but I certainly do not see any way in which somebody could be doing research on a group and because material is in that person's possession, he or she could be deemed to have committed an offence. That absolutely is not what we are endeavouring to do here. We want to capture situations whereby somebody prepares material with a view to inciting hatred or violence against a vulnerable group but has not yet published it. There should be an ability to prosecute in such instances. Regarding the Deputy's example of research and the like, there are defences in the legislation to cover people.
The question is how one can prove, in such a situation, that there is no intention to publish the material. There is a danger of criminalising people's ideas and thoughts before any action has been taken by them.
There are a lot of protections in the legislation in respect of defences and freedom of expression. This is all about providing powers in legislation that then have to be assessed and weighed up by various sources, including the DPP. I simply do not see how the scenario the Deputy outlined would arise. The legislation needs to be read in the round and with reference to the defences and protections that already exist. The Deputy and I probably agree that where there is a successful interception of material that clearly reaches the threshold set out in the legislation of inciting hatred or violence against a vulnerable group, the fact it was intercepted before it was used for that purpose is not a reason the person should not be subjected to prosecution, if that is the course of action the DPP decides to take following an investigation. Before we get anywhere near prosecutions, there will be the normal process of investigation, which includes the Garda carrying out its own processes.
Question put and declared carried.
NEW SECTION
Amendment No. 46 is in the name of Deputy Ó Ríordáin, who is not present. Amendments Nos. 47 to 49, inclusive, are related and may be discussed together.
Amendment No. 46 not moved.
I move amendment No. 47:
In page 11, between lines 26 and 27, to insert the following:
"11. For the purposes of this Part, any material or behaviour is not taken to incite violence or hatred against a person or group of persons on account of their membership or presumed membership of a group defined by reference to protected characteristics solely on the basis that that material or behaviour includes or involves discussion or criticism of matters relating to a protected characteristic."
Section 11, as drafted, states:
For the purposes of this Part, any material or behaviour is not taken to incite violence or hatred against a person or a group of persons on account of their protected characteristics or any of those characteristics solely on the basis that that material or behaviour includes or involves discussion or criticism of matters relating to a protected characteristic or the purposes of this Part, any material or behaviour is not taken to incite violence or hatred against a person or a group of persons on account of their protected characteristics or any of those characteristics solely on the basis that that material or behaviour includes or involves discussion or criticism of matters relating to a protected characteristic.
We are proposing to include the wording "or presumed membership of a group defined by reference to protected characteristics", which provides a little more protection. This section is about protecting freedom of expression, the importance of which we all recognise. Deputy Smith made the point that there is a lot of research going on and many people delving into all of this stuff. We do not want to create a situation whereby people cannot have a view. Finding the right balance is important and it is why we are proposing this amendment. I am interested to hear the Minister's views and perspective.
Does Deputy Smith wish to speak to amendment No. 49 before the Minister responds?
No. I thank the Chairman.
That is fine. The Minister may speak to amendments Nos. 47 to 49, inclusive.
Section 11 has been drafted in careful consultation with the Office of the Attorney General for the very reason Deputy Kenny pointed to, that is, to ensure freedom of expression and public debate are protected. We all want to see that. I am satisfied that the wording of the section as currently drafted achieves this aim. However, I will continue to examine the provision and keep it under review in light of the discussion today. The section does not seek to create any point of law. Rather, it seeks to provide clarity for the courts to help them to draw the line in determining what is and what is not incitement to violence or hatred. It is important to make that point.
The amendment tabled by Deputies Daly and Kenny relates to the aggravated sentencing provision in section 20 of the Bill and whether it may apply on account of presumed membership of a group defined by reference to protected characteristics. This was discussed in regard to numerous previous amendments and I have outlined my reasoning in this regard.
On the proposed amendment by Deputy Smith and her colleagues, this is an issue I have considered and on which I have sought legal advice. I am advised by the Attorney General that the expression of information or ideas that offend, shock or disturb does not capture all aspects of freedom of expression that might have detrimental effects on a victim without reaching the standard required for an incitement of violence or hatred offence. By singling out material that shocks, offends or disturbs for particular mention, we run the risk of an inference that other aspects of freedom of expression such as the right to dislike a person, for example, are not protected. In addition, inclusion of this provision may result in the unintended consequence of setting up a defence argument that offensive forms of expression that might otherwise be an offence under this Part are protected under this section. For these reasons, I am not in a position to accept the amendments.
I will withdraw amendment No. 47 on the understanding that the Minister will examine the issue in further depth. We may come back to it on Report Stage.
Amendment, by leave, withdrawn.
SECTION 11
As Deputy Pringle is not present, amendment No. 48 falls.
Amendment No. 48 not moved.
I move amendment No. 49:
In page 11, line 31, after "characteristic" to insert the following:
", in this respect, particular regard must be had to the importance of the right to freedom of expression by virtue of Article 10 of the European Convention on Human Rights, including the general principle that the right applies to the expression of information or ideas that offend, shock or disturb".
Amendment put and declared lost.
Section 11 agreed to.
Sections 12 to 16, inclusive, agreed to.
NEW SECTIONS
Amendments Nos. 50 to 53, inclusive, 56 to 59, inclusive, 62 to 68, inclusive, and 71 to 78, inclusive, are all related. These amendments cannot be moved because the proposers are not present. Any other members or the Minister are entitled to speak to them if they wish to do so, but there are no offerings.
Amendments Nos. 50 and 51 not moved.
SECTION 17
Amendments Nos. 52 and 53 not moved.
Amendments Nos. 54, 55, 60, 61, 69 and 70 are related and may be discussed together.
Amendment No. 54 not moved.
I move amendment No. 55:
In page 15, to delete lines 33 to 36, and in page 16, to delete lines 1 to 4.
The proposed deletion of these lines would be appropriate because if we leave them in, it could result in legislative overreach. For example, if somebody robs a shop - that person should not rob a shop and certainly should not be violent about it - he or she might use sexist language to the woman behind the counter by calling her "an f---ing c---" or whatever and then be charged, on top of the offence of robbing the shop, with an offence under this legislation, which could result in severe addition to sentences. It is overreach that may make the legislation very unpalatable because it does more than intended and does so without the understanding that that sort of language is often used in heated moments without the intention of hatred. It can often be an expression of frustration and, sometimes, defeat rather than one of hate and intimidation. It is the intent that matters. We could end up with overreach through the addition of a lot of heavy sentencing, which should not be the intent of the legislation.
While the Deputy is on her feet, as it were, amendment No. 70 is also in her name and is grouped with amendment No. 54. Does she wish to speak to that?
I had not prepared for that, sorry.
That is okay. The point on amendment No. 55 has been well made. We have already noted that members who tabled the other amendments in this group are not present.
Can I also speak to that amendment?
If you consider amendment No. 55 in the context of section 18 and the proposed insertion of section 6A after section 6 of the Criminal Justice (Public Order) Act 1994, you could have a situation, and I have dealt with many over the years, where the row is not necessarily started by the person who gets charged but he, or perhaps the other person, is charged. Somebody could start a row but somebody else gets involved in it. There could be some "threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned", as outlined under section 6 of the public order Act, which are said to a person. This might involve a very nasty comment but would not fall under any of the protected characteristics. Somebody might get involved in response to a row and use some sort of phrase, as outlined by Deputy Smith, or, in the heat of the moment, use what could be a racist term. The person who did not start the row could then be charged with a hate crime. I have similar concerns about overreach in that a person who might not have started the argument or breach of the peace but who then gets involved in it may end up being charged with a hate crime, even though that individual did not start the row and what was said was definitely in the heat of the moment. A demonstrative test in that context would probably be unfair.
I should note that the Department of Justice started with a very different viewpoint on this. We closely followed the pre-legislative scrutiny of this committee and amended policy in response to that. In fairness to my colleague, when the Minister, Deputy McEntee, initially introduced the general scheme that came before this committee, the new law provided for a motivation test for hate crime offences. A motivation test requires proof of someone's objective motivation for committing an offence or, in other words, what was in his or her mind at that exact moment, which gets to some of what Deputies Daly and Bríd Smith referenced. This was because my Department initially sought to keep a relatively high threshold in respect of this, given the serious repercussions for having a hate crime on someone's record and fear that heat-of-the-moment actions might be criminalised.
However, many stakeholders, including people who this committee heard from, believed that a motivation test alone in proving hate crime offences can be difficult to establish and might not result in a conviction. This committee conducted pre-legislative scrutiny on legislative processes and recommended in a report to me that the Bill include a demonstration test in addition to the motivation test. For those following these proceedings, a demonstration test simply means a perpetrator demonstrates hatred towards a member of a protected group or characteristic at the time of an offence being committed. This might involve, for example, the use of hostile or prejudiced slurs, gestures or other symbols, or graffiti at the time of offending. No subjective intent or motivation is required. It is an objective test. A motivation test alone requires proof of the perpetrator's objective motivation for committing the offence, which can set a higher bar to secure convictions.
Given the recommendation that emerged from this committee, my Department re-examined the policy. We conducted targeted research into how hate legislation has been implemented in practice in other jurisdictions, most notably in the UK. My officials met heads of the hate crime units of the UK Home Office and the Northern Ireland Department of Justice. The provisions of recent relevant legislation in Scotland were also examined in detail. These consultations provided valuable insight into how the demonstration test has operated in these jurisdictions for many years. On the basis of this additional review, and further to confirmation from the Attorney General that there was no legal or constitutional impediment to adopting a similar approach, we decided we should change policy in the new hate crime legislation and include that stronger test of proof in the Bill.
As Deputy Daly will know from his professional background, it is important context that while the demonstration test plays a very important role in hate crime legislation, and experts and academics largely agree it is the most effective tool in ensuring convictions can be secured where hate crimes have taken place, to accept these amendments would row back on that. We are also obviously operating in an environment where the DPP will need to decide whether to take a case, in addition to juries needing to decide beyond reasonable doubt that the accused carried out an offence motivated by hate of a protected characteristic, or whether there is evidence beyond reasonable doubt that the perpetrator demonstrated such hatred at the time the offence was committed. Other normal safeguards are in place, including the DPP, the DPP's decision-making process, Garda investigations, the role of our juries, beyond reasonable doubt, etc.
This issue arose from this committee's pre-legislative scrutiny and a lot of research was done arising from that. I am comfortable with the position we have now arrived at. We were informed by the committee's work, however.
I thank the Minister. That is good to hear.
I said I had not prepared to speak to amendment No. 70, but I wish to withdraw it on the basis of pressing it on Report Stage.
Deputy Ó Ríordáin is just in time to catch the end of amendment-----
I am horrified by what I have heard.
I will follow on from the Minister's reply. He mentioned that this provision would be subject to the DPP's processes but most public order offences are dealt with by a local superintendent who makes the decision.
Is every case going to go to the DPP then if there is a hate crime? No. It will be the superintendent who will decide rather than the DPP.
Yes. What I can do is set out in a note for the Deputies how we have introduced the demonstration test, the rationale behind it, how it has worked in other jurisdictions and the engagement my officials have had. I would like to try to provide assurance and clarity on the policy direction here. I am happy to provide that to the committee in advance of Report Stage. I am also happy to engage again on Report Stage.
My concern is that it digs right down into some of the most minor of offences such as public order offences. While it might very well be a public order offence, it would specifically label a person as a hate crime offender, for example, in a row that a person did not start. That might be a bit much.
The reason for my absence is that I was contributing to a debate on the citizen's assembly on drugs. As happens in these Houses, we are supposed to be in two places at the one time.
Yes. I am due in the Chamber in ten minutes.
I will be as quick as possible. I appreciate that the Minister will probably send a note to us on the contributions made and on that basis I will withdraw my amendments with the option to resubmit them on Report Stage. Much of the time, these amendments are putting down a flag for the Minister to respond, and we can tease the issue out at a later stage.
Amendment, by leave, withdrawn.
Amendments Nos. 56 to 58, inclusive, were contingent on a new section being inserted and, as that did not happen, those amendments cannot be moved.
Amendments Nos. 56 to 58, inclusive, not moved.
Section 17 agreed to.
Amendment No. 59 was related to amendment No. 50 so it also falls automatically.
Amendment No. 59 not moved.
I move amendment No. 60:
In page 17, to delete lines 14 to 27 and substitute the following:
“3A. (1) An offence committed by a person is aggravated by hate for the purposes of sections 6A, 7A, 11A and 18A if hate is in whole or in part the person’s motive for committing the offence concerned.”.
Amendment put and declared lost.
I move amendment No. 61:
In page 17, to delete lines 16 to 23.
Amendment, by leave, withdrawn.
Amendments Nos. 62 to 67, inclusive, are connected to amendment No. 50 so they cannot be moved.
Amendments Nos. 62 to 67, inclusive, not moved.
Section 18 agreed to.
SECTION 19
Amendment No. 68 cannot be moved as it was grouped with amendment No. 50. It automatically falls but the Deputy may reintroduce it with amendment No. 50 on Report Stage.
Amendment No. 68 not moved.
I move amendment No. 69:
In page 19, to delete lines 30 to 35, and in page 20, to delete lines 1 to 8 and substitute the following:
“1A. (1) An offence committed by a person is aggravated by hate for the purposes of sections 2A, 3A, 4A, 5A, 9A, 10A and 13A if hate is inwhole or in part the person’s motive for committing the offence concerned.”.
Amendment, by leave, withdrawn.
I move amendment No. 70:
In page 19, to delete lines 32 to 35, and in page 20, to delete lines 1 to 4.
Amendment, by leave, withdrawn.
Amendments Nos. 71 to 78, inclusive, are related to amendment No. 50 and, therefore, they cannot be moved.
Amendments Nos. 71 to 78, inclusive, not moved.
Section 19 agreed to.
SECTION 20
Amendments Nos. 79 to 82, inclusive, are related and they may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 79:
In page 22, to delete lines 32 to 38 and substitute the following:
“20. (1) For the purposes of determining the sentence to be imposed on a person for an offence to which this section applies, a court shall, if it is satisfied beyond reasonable doubt from the evidence adduced in the proceedings, take into account as an aggravatingfactor, that—
(a) where an individual is a victim of the offence, at the time of committing the offence or immediately before or after doing so, the person demonstrated hate towards the victim of the offence, or
(b) whether or not an individual is a victim of the offence, the offence was motivated wholly or partly by hate.
(2) Without prejudice to the generality of subsection (1)(b), an offence is motivated wholly or partly by hate if—
(a) an individual was selected as victim of the offence on account of his or her membership or presumed membership of a group defined by reference to a particular protected characteristic, and(b) the reason for so selecting the victim is that, because of his or her membership of the group concerned and having regard to all the circumstances, the victim would be expected—(i) to have impaired physical or mental capacity to understand or to resist the commission of the offence, or to communicate with others in relation to it, or(ii) to be reluctant or unwilling to disclose to others that the offence had been committed.
(3) Subsection (1) applies without prejudice to any other enactment or rule of law and subject to subsections (4) and (5).”.
For the sake of brevity, I will not read it out. I invite the Minister to respond.
I appreciate that. There is an important here which ensures that a greater sentence may be handed down where there is a hate element to an offence committed outside the specific aggravated offences provided for in sections 17 to 19, inclusive. While I recognise the intent behind the amendment, seeking to require that the hate element be proven beyond reasonable doubt in sentencing under these circumstances, this would have an unintended consequence of making this section significantly more difficult to apply to real cases on the ground. This is after conviction but at the stage of sentencing. That is where the piece around reasonable doubt would be problematic.
I also have two amendments to the section. I wish to remove the phrase "where it is satisfied from the evidence adduced in the proceedings that there was" and substitute "treat as an aggravating factor". Consequential to this I propose the removal of ", take that into account as an aggravating factor" which becomes redundant. This is merely a tightening of the wording on my part.
Amendment, by leave, withdrawn.
I move amendment No. 80:
In page 22, to delete lines 32 to 38 and substitute the following:
“20. (1) Without prejudice to any other enactment or rule of law and subject to subsections (2)and (3) a court shall, where it is established beyond a reasonable doubt that—
(a) the offence was motivated (wholly or partly) by hate on account of the victim’s membership or presumed membership of a group defined by reference to a protected characteristic, or(b) that at the time of committing the offence, or immediately before or after doing so, the offender demonstrated hate towards the victim on account of the victim's membership or presumed membership of a group defined by reference to a protected characteristic, take that into account as an aggravating factor for the purposes of determining the sentence to be imposed on the person for that offence.”.
Amendment, by leave, withdrawn.
I move amendment No. 81:
In page 22, lines 33 and 34, to delete “, where it is satisfied from the evidence adduced in the proceedings that there was” and substitute “treat as an aggravating factor”.
Amendment agreed to.
I move amendment No. 82:
In page 22, lines 36 and 37, to delete “, take that into account as an aggravating factor”.
Amendment agreed to.
As Deputy Pringle is not present, amendment No. 83 falls.
Amendment No. 83 not moved.
I move amendment No. 84:
In page 22, line 40, to delete “is good reason” and substitute “are exceptional circumstances”.
This is simply a technical amendment to improve the wording of the section and bring it in line with precedence in terms of the Statute Book.
Amendment agreed to.
Amendments Nos. 85 to 89 are related. Amendments Nos. 86 to 89, inclusive, fall because Deputy Pringle is no longer present.
I move amendment No. 85:
In page 23, to delete lines 5 to 9 and substitute the following:
“(4) Where an aggravated sentence is imposed by a court pursuant to this section, the court shall state and record in the proceedings—
(a) the fact that the aggravated sentence is imposed pursuant to this section, and(b) the protected characteristic or characteristics of the person or the group of persons concerned by reference to which that aggravated sentence is imposed.”.
The amendment speaks for itself.
I cannot agree to the amendment because hatred is an aggravating factor that can lead to a greater sentence. A non-custodial sentence may be imposed at the discretion of the court. I am happy to engage with the Deputy on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 86 to 89, inclusive, not moved.
Section 20, as amended, agreed to.
Sections 21 to 26, inclusive, agreed to.
SECTION 27
Amendments Nos. 90 and 91 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 90:
In page 27, to delete line 19.
These are minor technical amendments required to correct an omission to the consequential amendments to the Bill as it was being presented.
Amendment agreed to.
I move amendment No. 91:
In page 27, line 21, to delete “hatred)”.” and substitute the following “hatred)”,and
(iv) the insertion of the following after “section 10 (harassment)”:
“section 10A (harassment aggravated by hatred)”.”.
Amendment agreed to.
Section 27, as amended, agreed to.
Sections 28 to 30, inclusive, agreed to.
NEW SECTION
I move amendment No. 92:
In page 28, between lines 9 and 10, to insert the following:
"Amendment of National Vetting Bureau (Children and Vulnerable Persons) Act 201231. The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 is amended—
(a) in section 14A(4)(c), by the insertion of “6A,” after “6,” and the insertion of “7A,” after “7,”, and(b) in paragraph 17 of Schedule 3, by the insertion of “, 18A” after “18”.”.
Again, this is a minor technical amendment to correct an omission to the consequential amendments to the Bill as it was being presented.
Amendment agreed to.
Section 31 deleted.
SECTION 32
I move amendment No. 93:
In page 28, line 30, to delete “paragraph 11 with the following paragraph” and substitute “the following paragraph for paragraph 11”.
This small technical amendment will bring the language of section 32 into line with the language used in other consequential amendments.
Amendment agreed to.
Section 32, as amended, agreed to.
Section 33 agreed to.
NEW SECTION
I move amendment No. 94:
In page 29, between lines 11 and 12, to insert the following:
"Amendment of section 5 of Criminal Justice (Spent Convictions and Certain Disclosures) Act 201634. Section 5(5)(c) of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 is amended by the insertion of “6A,” after “6,” and the insertion of “7A,” after “7,”.”.
This is another small technical amendment to correct an omission to the consequential amendments in the Bill as originally presented. This amendment will insert a new section, which brings the hate-aggravated version of two minor public order offences within the scope of section 5(5)(c) of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 where the ordinary version of the offences are already included.
Amendment agreed to.
Sections 34 to 36, inclusive, agreed to.
NEW SECTIONS
I move amendment No. 95:
In page 30, after line 4, to insert the following:
“Review of operation of this Act
37. The Minister shall—
(a) not later than 5 years after this Act comes into operation, commence a review of the operation of this Act, and
(b) not later than 12 months after the commencement of the review, make a report to each House of the Oireachtas of the findings made on the review and of the conclusions drawn from the findings.”.
Amendment, by leave, withdrawn.
I move amendment No. 96:
In page 30, after line 4, to insert the following:
“Review of Act
37. The Minister shall, not later than 1 year after the commencement of this Act, carry out a review of the Act.”.
Amendment, by leave, withdrawn.
Schedule agreed to.
Title agreed to.
