Amendments Nos. 1 to 4, inclusive, are related and may be discussed together.
Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022: Report and Final Stages
I move amendment No. 1:
In page 6, line 7, to delete “ “hatred” means hatred” and substitute “ “hatred” means a state of mind characterised as intense and irrational emotions of opprobrium, enmity, and detestation rooted in bias, prejudice or hostility”.
We are going to withdraw amendment No. 1. I will speak to amendments Nos. 2, 3 and 4. As a general remark while I have the time, and to be clear, we are in favour of hate crime legislation but we want to see it done correctly. We want to ensure that there are no issues in terms of basic issues of civil liberties here. That is what we are aiming to achieve with our amendments. In particular, instead of the term "hatred", instead of an action or speech by someone causing hatred in the mind of another, we seek to be more specific by substituting "intimidation, hostility or discrimination", in other words, to specify that this is something that generates, in another person, something that could have an actual victim as a consequence, an action that would result from that. Something we are eager to avoid, and we will come to this in a more substantive discussion later on in respect of amendment No. 6, is the creation of thought crimes. We want to see that there are definite negative consequences as a result of the hate speech we are talking about here. That is the purpose of these amendments.
I thank the Deputies for their amendments, which I understand were discussed at length. I note the Deputy is withdrawing amendment No. 1. The Attorney General has further advised on rules about statutory interpretation. The Supreme Court has consistently held that statutory provisions should be given a construction that reflects the plain intention of the Oireachtas and that this should be determined by having regard to the ordinary, natural meaning of words. In determining the meaning of any word or phrase in statute, the first question to ask is what is the natural, ordinary meaning of the word or phrase in its context and in the statute. The definition of "hatred" as currently set out in the Bill represents the word's ordinary meaning and everyday meaning and is established in terms of the Statute Book as evidence by the Prohibition of Incitement to Hatred Act of 1989.
It is worth noting that in UK jurisdictions that have an offence of stirring up hatred, that is, incitement or hate speech, hatred is not defined except to make it referrable to certain characteristics, as is the case in our law. Similarly, in the European Council framework decision with which this legislation has to align, hatred is only defined in the context of making it referrable to certain characteristics. In respect of hate crime offences in other jurisdictions, these offences are aggravated by different terms, such as hostility in Northern Ireland, England and Wales, and malice and ill will in Scotland. In all of these cases, the terms "hostility" and "malice and ill will" are not defined in relevant statutes. On this basis, the Attorney General has advised against any amendments to the Bill with regard to the meaning of hatred. I agree with this advice. Hatred is a concept that is well understood by our courts. It is fair and correct for us to place our faith in the criminal justice professionals whose duty it is to interpret and apply legislation decided on by the Oireachtas.
In respect of the offence of incitement of violence or hatred in section 7, the proposal to amend the wording of the offence to remove all reference to hatred and insert references to incitement of violence, intimidation, hostility or discrimination, I remind Deputies that transposition into Irish law of the European Council framework decision on combating certain forms and expression of racism and xenophobia is a key aim of this Bill, as set out in the Long Title. An offence of incitement to hatred is an requirement under this framework. If it is not set out in this manner in the text of the offence, the requirements of the framework decision are not fulfilled. For those reasons, I cannot accept the amendments.
We take the point on amendment No. 1 in the context of the case law that establishes what hatred means. To explain what we are doing in amendments Nos. 2 to 4, inclusive, we are saying that someone would be guilty of an offence if they communicated material to the public or behaved in a public place in a manner likely to incite violence or hatred against a person or group of persons. Clearly, we agree that it should be an offence to behave in such a manner that one is likely to incite violence against a person. However, we think it is better to specify actual negative consequences for someone, thereby replacing the word "hatred" with the phrase "intimidation, hostility or discrimination." In and of itself, causing someone else to have hatred should not be sufficient to establish a crime. As a result, we need to be more specific about the negative consequences we are talking about. To be clear, I am not at all downplaying the negative consequences of hate speech or the violence, intimidation and so on that flow from it. We need to be explicit in the legislation in respect of that.
I accept the Deputy's bona fides in this. He is certainly not in any way trying to downplay what constitutes hatred. This comes from a European Council framework decision. They have set out the requirements to meet that framework decision. If we deviate from the wording used in the Bill, we will no longer be in compliance with the framework decision. For other reasons that I set out earlier, but also for this particular reason, I am not in a position to accept the Deputy's amendments.
Amendment No. 1, by leave, withdrawn.
I move amendment No. 2:
In page 8, line 13, to delete “or hatred” and substitute “or intimidation, hostility or discrimination”.
Amendment put and declared lost.
I move amendment No. 3:
In page 8, line 15, to delete “or hatred” and substitute “or intimidation, hostility or discrimination”.
Amendment put and declared lost.
I move amendment No. 4:
In page 8, line 17, to delete “or hatred” and substitute “or intimidation, hostility or discrimination”.
Amendment put and declared lost.
Amendments Nos. 5 and 7 are related and may be discussed together.
I move amendment No. 5:
In page 8, line 28, to delete “religious”.
The purpose of this amendment is to remove as a defence for hate speech material that something is a reasonable and genuine contribution to religious discourse. Many very positive messages of solidarity, support and charity stem from religious discourse. Many other messages are issued - theological points and so on - under the guise of religious discourse. All that of course is absolutely fine and the State should protect all of that religious speech and the right of people to propagate their religion. I am for a secular society. People often focus on one part of that, which is that the State does not support any religion, but another important part is that the State defends the right of those who are religious to put forward and propagate their religious views.
A certain portion of hate speech, particularly homophobic, transphobic or sexist hate speech, in society is sometimes put forward under the guise of being a contribution to religious discourse. Fundamentally, that should not be a defence. Hate speech is hate speech even if the person involved says it is his or her deeply held religious view that gay people are sinners and, therefore, it is appropriate for him or her to incite violence against them. That should not be a defence and, on that basis, we seek the deletion of the religious ground as a defence.
I thank the Deputies for their proposed amendments. They propose removing the defence of a reasonable and genuine contribution to religious discourse and expanding on the provisions of section 11, which provide protection for freedom of expression, to include the right to express ideas that shock, offend or disturb. In this regard, the freedom to express and practise religion is protected under the Constitution and the European Convention on Human Rights. Accordingly, religion is considered to merit a similar level of protection as literary, artistic, political, scientific or academic discourse. Under the provisions of the Bill, it will be important for persons accused of these offences to have an opportunity to defend themselves if they believe what they were saying was reasonable. For example, if a person is writing an academic paper on the portrayal of a race in literature over time and includes problematic quotes from older pieces of literature, this paper would be considered a reasonable contribution to academic and literary discourse. It would be a matter for a court to determine if the use of this defence is permissible in the circumstances of any individual case. Furthermore, these offences were examined at length by the Attorney General and I am advised that they are in order as currently drafted.
Similarly, the freedom of expression provision in section 11 has been carefully drafted in consultation with the Office of the Attorney General and clarifies that for the purpose of this Part of the Bill, a communication is not taken to incite violence or hatred solely on the basis that it involves discussion or criticism of matters relating to a protected characteristic. This is important as it sets a clear bar for the courts to assist them in determining what is incitement to violence or hatred. It is important to stress that the section was expressly drafted in line with the ECHR, does not create a defence for persons who are accused of incitement to violence or hatred and, therefore, cannot be exploited or abused by people who incite hatred to try to avoid a conviction. Only the most severe types of speech that constitute incitement to violence or hatred would be criminalised under the Bill. Discussion of protected characteristics, including criticism of matters relating to protected characteristics, is not a crime unless it crosses the line into incitement to violence or hatred. This remains a high bar and is not something into which people would just fall.
This provision under section 11 is set out as it stands to put beyond doubt that there will not be an offence to hold and express particular views unless this very high bar is cleared. The Deputies who tabled the amendment seek to expand this provision to include the general principle that the right applies to the expression of information or ideas that offend, shock or disturb. This was considered by my Department and the view of the Attorney General was sought on the issue. The legal advice is clear. These words do not capture all aspects of freedom of expression that might have a detrimental effect on a victim without reaching the standard required for an incitement of violence or hatred offence. By singling out such material in particular, there would be the risk of inference that other aspects of freedom of expression, such as the right to dislike a person, are not protected The inclusion of a provision worded in this way could result in the unintended consequence of creating a defence that highly offensive or shocking forms of expression that may otherwise be an offence under this Part would be protected under this section. It is possible that a provision of this nature could be abused by a person convicted of incitement to avoid a conviction that would otherwise be entirely warranted. Accordingly, I cannot agree with these amendments.
I have made the points I wished to raise on amendment No. 5. The points made by the Minister of State on the high bar that is needed are arguments not to have the religious defence. As there is a high bar, regular religious discourse will not fall into the realm of hate speech. It would do so only if it crosses a very high bar and is hateful. That is the context. That is the only circumstance where such a potential defence would come into play and, therefore, I argue that such a defence is not needed. It is not appropriate for very hateful speech that crosses a very high bar to be able to rely on a defence of it being a reasonable and genuine contribution to religious discourse. This is important.
There is a balance here between freedom of speech and the criminalising of hate speech. We are in favour of taking action against hate speech but there is the very important issue of defending the right to freedom of expression and, therefore, it is clearly good practice to insert an explicit reference to Article 10 of the ECHR, including the general principle that the right applies to the expression of information or ideas that offend, shock or disturb. That simply fits into the legislation. The Minister of State made the point that it will be up to judges to interpret this and so on. That is the case but, given that this is a sensitive area with the potential to infringe on civil liberties, it is appropriate, therefore, that when judges are interpreting the legislation there is an explicit reference to the ECHR and the right to freedom of expression.
I have set out my position clearly. I hear the Deputy's comments but, unfortunately, I am not in a position to agree.
That was freedom of expression in operation. Freedom of expression is the freedom not to agree. Does the Minister of State accept there is a risk here, that we are engaged in a sensitive and risky area that touches on the right to freedom of expression and that although it is appropriate that hate speech and hate crime are dealt with, it is very important that the right to freedom of expression is defended? Ironically, it is kind of related to the fact that we are attempting to get rid of a specific defence of religious discourse because we do not see the grounds on which religion in particular should be a specific defence. In general, however, it is important to take account of the fact that people have the right to freedom of expression and, therefore, there is a balancing act here. It is clearly good practice to have an explicit reference to the ECHR in that regard.
Amendment put and declared lost.
I move amendment No. 6:
In page 11, to delete lines 1 to 30.
This amendment and the later amendment relating to the demonstration test are the two most significant issues for us and where we have the greatest problem. Section 10 is very problematic. I read the transcript of the Committee Stage debate and the Minister did not fundamentally deal with this issue. Section 10 creates the possibility of a person being criminalised purely for having material that is hateful, without that material being communicated to the public. That is a problem. It gets to the fundamental problem of the Bill, which is the creation of a thought crime. Persons can be criminalised for having hateful material on their computer but without having published it or caused incitement to hatred or a consequence for anybody else. A person who has hateful ideas, writes hateful things to himself or herself or downloads hateful material or whatever can be criminalised as a consequence of that. To be clear, I am against the hypothetical hateful material that this person has on his or her computer but it is extremely problematic to create this new category of thought crime and to pre-empt the incitement to hatred and propagation of hatred ideas.
As a part of that, section 10(3) states that where "it is reasonable to assume that the material was not intended for the personal use" the onus will be put onto the accused to prove their own innocence by showing the material that they prepared or even just material they possessed was never intended to be publicly communicated. Within section 10, we have the creation of thought crime and then a dangerous reversal of the burden of proof, where the burden is now placed on the accused to overturn the presumption that the material was not intended for personal use. This is extremely problematic. There is a real problem in terms of civil liberties with this section. As I understand it, on Committee Stage the Minister argued that we should not worry. He said that the Director of Public Prosecutions, DPP, would not be taking cases willy-nilly and that he or she would be very sensitive. That cannot answer to us as legislators. We are creating law and we do not control what happens after that and we cannot be satisfied by promises that the DPP will or will not do something. Nor can we be satisfied by promises that the courts will or will not do something. We must try to create good law and this section, creating a thought crime, is very problematic.
I thank the Deputy for his contribution. He is correct that during the Committee Stage debate on this Bill, this matter was discussed. This same amendment was proposed to delete section 10 of the Bill, which creates an offence of preparing or possessing material likely to incite violence or hatred against persons on account of their protected characteristics. The Deputies have again proposed the deletion of the section in its entirety. I must reaffirm the previously stated position on this. It is fundamentally important to retain the latitude to prosecute an individual who has created content that would incite violence or hatred against vulnerable individuals or groups, but whose material has been intercepted before it is shared publicly.
During the Committee Stage debate, a comment was made, which equated the inclusion of this section as an attempt to legislate for "thought crime". I thoroughly refute this assertion. An individual who has prepared a manifesto inciting violence against a group of persons with a protected characteristic or a social media post inciting dangerous levels of hatred against a minority group should still be held responsible for their actions, even if An Garda Síochána manage to intervene before the material becomes public.
We have consistently striven to carve out the appropriate defences and protections for freedom of expression in this Bill. As the Deputies will be aware, section 10(2) of the Bill expressly provides for protections that can be availed of. The first of these is intentionally wide in scope in that it allows for a defence to be utilised if the material that is in question "consisted solely of a reasonable and genuine contribution to literary, artistic, political, scientific, religious or academic discourse".
The use of the phrase "reasonable and genuine contribution" is the key to this provision. In the context of literary, artistic, political, scientific, religious or academic discourse, it allows for a contribution that is considered by a reasonable person, including a judge or jury, as being reasonably necessary in the context of a debate or discussion involving a protected characteristic. While it would not be acceptable to publish an explicitly racist paper which incites hatred, the defence of a genuine contribution to academic or political discourse could apply to a person who is genuinely researching a fascist group, for example, and is, therefore, in possession of material that could be deemed hate speech in the course of their research. The context is key here and I am satisfied that this provision allows for a nuanced approach to its implementation.
In summary, the inclusion of section 10 is specifically to capture those instances where there has been a successful operation to stop communication of material or behaviour that clearly constitutes incitement to violence or hatred against a person or group of persons on account of their protected characteristics. These provisions do not apply to an individual who is preparing or possessing such material for reasons which are non-criminal.
As with every aspect of this legislation, individual situations will be assessed by An Garda Síochána and the Director of Public Prosecutions to assess whether an offence under this section has occurred. As this "preparation and possession of material" offence already exists under the 1989 Act, it would be inappropriate to remove this provision, and to do so would inevitably result in persons who are clearly intending to incite violence or hatred avoiding prosecution in certain circumstances. For these reasons, I cannot accept the amendment.
The Minister of State's answer does get to the heart of the problem. He says that people should be held responsible for their actions, even if the authorities intervene before they do anything. How can we hold people responsible for actions that they have not taken? That goes against the main thrust of our criminal law, which relates to actual crimes that take place, not bad thoughts that people have, that they write down. That is a problem. I agree with the point the Minister of State made about the preparation of a manifesto. I see multiple examples of them. I agree that the propagation of such a manifesto, inciting violence, etc., should be an offence but it is a problem that for someone to simply write such a manifesto and to have it on their computer and for nobody else to see it will now become a crime. It goes against the basic idea that actions have to be taken and that it is the action that is a crime. The Minister of State objects to the notion of a thought crime but we are not talking about any actions here. We are talking about intervening before an action happens. The burden of proof is placed on the hateful individual to prove that they did not intend to publish it rather than it even being placed on the State to prove that the individual intended to publish it and we have simply intervened. The Minister of State says people should be held responsible for their actions, but the only action we are talking about in this circumstance is someone writing down or downloading hateful material, that is not affecting anybody else apart from their own warped, hateful mind. The idea that we should criminalise that is extremely problematic and, unfortunately, then undermines many of the good aspects of this Bill.
I think it is clear that where an individual has prepared documents with the intention to incite violence against a group of persons, and the Garda manage to intervene to stop the publication just before it happens, for example, that the person should simply not be held in any way responsible for the preparation of what they have done would be inappropriate as well. I think that people would find that difficult. This is not the thought police. This is about holding people accountable and responsible where they have actively prepared documents with the purpose of inciting violence against a group of persons on account of their protected characteristics whom we are aiming to protect.
It gets to the fundamental issue again. We are just going around in circles. This is material that is likely to incite violence or hatred, but the material can simply be sitting on a person's computer and no hatred has been incited. The Minister of State is saying the Garda will intervene before it is done, but the onus is then placed on the individual to prove that he or she was not intending to distribute the material and therefore actually to incite hatred. This is a serious enough infringement of civil liberties and the right of people to have wrong, bad ideas and their own private thoughts and to write them down and have them on a computer and for that not to be an offence in and of itself.
Amendment put:
The Dáil divided: Tá, 48; Níl, 77; Staon, 0.
Tá
- Andrews, Chris.
- Boyd Barrett, Richard.
- Brady, John.
- Browne, Martin.
- Buckley, Pat.
- Carthy, Matt.
- Clarke, Sorca.
- Collins, Michael.
- Connolly, Catherine.
- Conway-Walsh, Rose.
- Cronin, Réada.
- Crowe, Seán.
- Daly, Pa.
- Doherty, Pearse.
- Donnelly, Paul.
- Ellis, Dessie.
- Farrell, Mairéad.
- Fitzmaurice, Michael.
- Funchion, Kathleen.
- Gould, Thomas.
- Guirke, Johnny.
- Healy-Rae, Danny.
- Healy-Rae, Michael.
- Howlin, Brendan.
- Kenny, Gino.
- Kenny, Martin.
- Kerrane, Claire.
- Mac Lochlainn, Pádraig.
- McGrath, Mattie.
- McNamara, Michael.
- Mitchell, Denise.
- Murphy, Paul.
- Nash, Ged.
- Nolan, Carol.
- O'Donoghue, Richard.
- O'Reilly, Louise.
- O'Rourke, Darren.
- Ó Murchú, Ruairí.
- Ó Ríordáin, Aodhán.
- Ó Snodaigh, Aengus.
- Quinlivan, Maurice.
- Ryan, Patricia.
- Smith, Bríd.
- Smith, Duncan.
- Stanley, Brian.
- Tóibín, Peadar.
- Tully, Pauline.
- Ward, Mark.
Níl
- Berry, Cathal.
- Brophy, Colm.
- Browne, James.
- Bruton, Richard.
- Butler, Mary.
- Byrne, Thomas.
- Cahill, Jackie.
- Cairns, Holly.
- Calleary, Dara.
- Canney, Seán.
- Cannon, Ciarán.
- Carroll MacNeill, Jennifer.
- Chambers, Jack.
- Collins, Niall.
- Costello, Patrick.
- Coveney, Simon.
- Cowen, Barry.
- Creed, Michael.
- Crowe, Cathal.
- Devlin, Cormac.
- Dillon, Alan.
- Donnelly, Stephen.
- Donohoe, Paschal.
- Duffy, Francis Noel.
- Durkan, Bernard J.
- English, Damien.
- Farrell, Alan.
- Feighan, Frankie.
- Flaherty, Joe.
- Flanagan, Charles.
- Fleming, Sean.
- Foley, Norma.
- Gannon, Gary.
- Griffin, Brendan.
- Haughey, Seán.
- Heydon, Martin.
- Higgins, Emer.
- Humphreys, Heather.
- Kehoe, Paul.
- Lahart, John.
- Leddin, Brian.
- Lowry, Michael.
- Madigan, Josepha.
- Matthews, Steven.
- McAuliffe, Paul.
- McConalogue, Charlie.
- McGrath, Michael.
- McGuinness, John.
- McHugh, Joe.
- Moynihan, Aindrias.
- Moynihan, Michael.
- Murnane O'Connor, Jennifer.
- Naughton, Hildegarde.
- Noonan, Malcolm.
- O'Brien, Darragh.
- O'Brien, Joe.
- O'Callaghan, Cian.
- O'Callaghan, Jim.
- O'Connor, James.
- O'Donnell, Kieran.
- O'Dowd, Fergus.
- O'Gorman, Roderic.
- O'Sullivan, Christopher.
- O'Sullivan, Pádraig.
- Ó Cathasaigh, Marc.
- Ó Cuív, Éamon.
- Rabbitte, Anne.
- Richmond, Neale.
- Ring, Michael.
- Ryan, Eamon.
- Shanahan, Matt.
- Shortall, Róisín.
- Smith, Brendan.
- Smyth, Ossian.
- Stanton, David.
- Varadkar, Leo.
- Whitmore, Jennifer.
Staon
Tellers: Tá, Deputies Paul Murphy and Gino Kenny; Níl, Deputies Hildegarde Naughton and Cormac Devlin.
Amendment declared lost.
I move amendment No. 7:
In page 11, line 35, after “characteristic” to insert “, 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”.
Is the amendment being pressed?
Yes.
Amendment put:
The Dáil divided: Tá, 53; Níl, 73; Staon, 0.
Tá
- Andrews, Chris.
- Boyd Barrett, Richard.
- Brady, John.
- Browne, Martin.
- Buckley, Pat.
- Cairns, Holly.
- Carthy, Matt.
- Clarke, Sorca.
- Collins, Michael.
- Connolly, Catherine.
- Conway-Walsh, Rose.
- Cronin, Réada.
- Crowe, Seán.
- Daly, Pa.
- Doherty, Pearse.
- Donnelly, Paul.
- Ellis, Dessie.
- Farrell, Mairéad.
- Fitzmaurice, Michael.
- Funchion, Kathleen.
- Gannon, Gary.
- Gould, Thomas.
- Guirke, Johnny.
- Healy-Rae, Danny.
- Healy-Rae, Michael.
- Howlin, Brendan.
- Kenny, Gino.
- Kenny, Martin.
- Kerrane, Claire.
- Mac Lochlainn, Pádraig.
- McGrath, Mattie.
- McNamara, Michael.
- Mitchell, Denise.
- Murphy, Paul.
- Nash, Ged.
- Nolan, Carol.
- O'Callaghan, Cian.
- O'Donoghue, Richard.
- O'Reilly, Louise.
- O'Rourke, Darren.
- Ó Murchú, Ruairí.
- Ó Ríordáin, Aodhán.
- Ó Snodaigh, Aengus.
- Quinlivan, Maurice.
- Ryan, Patricia.
- Shortall, Róisín.
- Smith, Bríd.
- Smith, Duncan.
- Stanley, Brian.
- Tóibín, Peadar.
- Tully, Pauline.
- Ward, Mark.
- Whitmore, Jennifer.
Níl
- Berry, Cathal.
- Brophy, Colm.
- Browne, James.
- Bruton, Richard.
- Butler, Mary.
- Byrne, Thomas.
- Cahill, Jackie.
- Calleary, Dara.
- Canney, Seán.
- Cannon, Ciarán.
- Carroll MacNeill, Jennifer.
- Chambers, Jack.
- Collins, Niall.
- Costello, Patrick.
- Coveney, Simon.
- Cowen, Barry.
- Creed, Michael.
- Crowe, Cathal.
- Devlin, Cormac.
- Dillon, Alan.
- Donnelly, Stephen.
- Donohoe, Paschal.
- Duffy, Francis Noel.
- Durkan, Bernard J.
- English, Damien.
- Farrell, Alan.
- Feighan, Frankie.
- Flaherty, Joe.
- Flanagan, Charles.
- Fleming, Sean.
- Foley, Norma.
- Griffin, Brendan.
- Haughey, Seán.
- Heydon, Martin.
- Higgins, Emer.
- Humphreys, Heather.
- Kehoe, Paul.
- Lahart, John.
- Leddin, Brian.
- Lowry, Michael.
- Madigan, Josepha.
- Martin, Micheál.
- Matthews, Steven.
- McAuliffe, Paul.
- McConalogue, Charlie.
- McGrath, Michael.
- McGuinness, John.
- McHugh, Joe.
- Moynihan, Aindrias.
- Moynihan, Michael.
- Murnane O'Connor, Jennifer.
- Naughton, Hildegarde.
- Noonan, Malcolm.
- O'Brien, Darragh.
- O'Brien, Joe.
- O'Callaghan, Jim.
- O'Connor, James.
- O'Donnell, Kieran.
- O'Dowd, Fergus.
- O'Gorman, Roderic.
- O'Sullivan, Christopher.
- O'Sullivan, Pádraig.
- Ó Cathasaigh, Marc.
- Ó Cuív, Éamon.
- Rabbitte, Anne.
- Richmond, Neale.
- Ring, Michael.
- Ryan, Eamon.
- Shanahan, Matt.
- Smith, Brendan.
- Smyth, Ossian.
- Stanton, David.
- Varadkar, Leo.
Staon
Tellers: Tá, Deputies Paul Murphy and Gino Kenny; Níl, Deputies Hildegarde Naughton and Cormac Devlin.
Amendment declared lost.
Amendment No. 8 has been ruled out of order.
Amendment No. 8 not moved.
Amendments Nos. 9 to 11, inclusive are grouped together, and may be discussed together.
I move amendment No.9:
In page 16, to delete lines 3 to 10.
The three amendments remove what is known as the demonstration test to demonstrate that these are hate crimes and therefore the crime itself becomes aggravated by hatred. This is very unusual in criminal law that one is not relying on motivation but instead seeking to rely simply on demonstration to establish that a particular offence was aggravated by hatred. We think this is a significant problem. It heightens the risk of abuse of this section. It means that rather than having to prove hatred was a motive for abusive or insulting behaviour, for example, in relation to public order offences, all a garda would have to do was say under oath that someone used a racist or sexist slur during or immediately after abusive or insulting behaviour. We know the word of a garda in the courts would carry a lot of weight. It is explicitly stated it is immaterial whether an accused person’s hatred is also on account of any other factor which therefore states that the alleged expression of hatred is purely incidental, happens after the fact and is not related as a point of motive.
There is a very interesting paper by Dr. Amanda Hayes and Dr. Jennifer Schweppe which deals extensively with the question of the demonstration test. They point out that the demonstration test is not used in hate crime legislation anywhere else in the world apart from the UK, Singapore and Malta. They point out that it can lead to a disproportionate level of convictions of people from oppressed minorities for hate crimes, ironically, and that is precisely what has happened with black people in the UK. They also show how being convicted of a hate crime creates a stigma and can prevent people from finding employment, meaning that wrongful convictions for any form of hate crime can have serious lifelong consequences for people. Therefore we are opposed to switching motivation to simply demonstration.
A classic example of this would be someone involved in a public order offence. Let us say we understand the offence actually happens. In the aftermath of that offence, an individual says a racist or sexist slur, which obviously they should not do and they should be condemned for doing so, but while that is very unpleasant and we do not want people to be saying racist or sexist slurs, the fact they do so after committing a public order offence does not prove the public order offence itself was aggravated by hatred and that the hatred they expressed afterwards had any relationship to the public order offence they committed. Yet, that is it. With the demonstration test the State will not have to prove motivation. Like section 11 and the thought-crime element, it is very problematic.
The paper I referenced reported on the views of Irish criminal justice practitioners on the demonstration test. It says that although some consider that motivation was more challenging to prove than demonstration, which is the case I presume the Minister of State will make, a substantial number of the practitioners to whom they spoke nonetheless argued that the demonstration model is too low a threshold for an aggravated offence. A barrister told them there might be many reasons for somebody saying something inadvertent or otherwise, but actually to prove motivation is harder. Therefore, that barrister, looking at it with his or her defence hat or constitutional hat on, would prefer that. At the same time, it was noted that lawyers in Ireland are not unused to the challenge of proving motive. The barrister gave the example of how the legal position is that it is not necessary to prove a motive but it is helpful if you do. What a prosecutor is worried about is that where there is a crime for which there is not a motive, a jury may look less favourably on it in the case of the accused. Criminal justice practitioners who participated in the research expressed concerns in respect of the utility and application of the demonstration test in an Irish context. Gardaí who prosecute most crimes in lower courts were largely confident about their ability to prove a bias motivation, readily identifying the types of proofs whose presence could be probed in investigation.
I do not think the case has been made to move away from the general rule of proving a motivation and intent along with an act in terms of criminal law, reducing that requirement and simply having a demonstration test replace it. If we are looking at crimes that are aggravated by hatred, the onus is on the State to prove that happened. There are many ways to imagine how that can be proved, such as the actions of somebody in advance of a public order incident which is genuinely aggravated by hatred, the things they say in the course of that and perhaps the sort of material we were talking about earlier being on someone’s computer. There are many ways evidence could be adduced to make the case that a particular crime was motivated by hatred and therefore should be an aggravated offence as opposed to simply relying on the demonstration of hatred in the course of or in the aftermath of that.
I will speak on amendment No. 10 in this grouping on public order offences. When we consider these amendments, and No. 10 in particular, we should bear in mind that under section 20, the hatred shown against persons on account of their particular characteristics can be used as an aggravating factor in sentencing for certain offences which will include these public order type offences. While of course we are against hate crime and that is a given, having spoken to some criminal law practitioners and having had some experience of it myself over the years, there can often be a situation where there are two of them in it. There could be a situation where there are insults, threats or intimidation or something under section 6 of the Criminal Justice (Public Order) Act, such as 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 would occur.
When considering that, we also have to consider the proportionality of an offence. For example, under section 6 of the Criminal Justice (Public Order) Act, it is triable and is summarily only in the District Court. The maximum penalty is still three months and there is a very low threshold. The danger is that if somebody is convicted in a situation where insults could have been thrown on both sides, but some are protected characteristics and others are not, then two people could be charged arising from the same incident. One person could be charged with a regular public order offence and the other person, who may or may not have started the row, could be charged with a hate crime. They could both be convicted, of course, but one would be convicted of a hate crime.
It would be disproportionate to leave somebody with a conviction for that arising from a public order offence because of the difficulties that would subsequently arise for that person. That is also referenced in the academic paper by academics from University of Limerick, UL, which was mentioned by Deputy Paul Murphy. One may try to get through Garda vetting to obtain a job, despite it essentially being a public order offence. This could take place in various different circumstances. It relies on an understanding or a mild promise that the Director of Public Prosecutions would not bring something forward unless they felt it was merited. We are the legislators and if we have concerns about a public order offence becoming a hate crime, it should be stated now. I support Deputy Paul Murphy, particularly in relation to amendment No. 10.
After this Bill goes through Report Stage in the Dáil, when it goes to the Seanad, the Minister of State might look at this. Being convicted of a hate crime would have very serious consequences for any individual. I fear we could find ourselves in a situation whereby younger people and young adults find themselves being convicted of a hate crime. If they are convicted of a hate crime at, say, 20 years of age, and I know the spent convictions legislation may apply to it ultimately, it would have a very significant impact on them in their 20s.
A very good definition is set out in the amendment we are looking at. It speaks about how a crime would be aggravated by hatred if it is motivated. That is set out in paragraph (b) of the section we are looking at. What is being proposed here, and what some consideration should be given to, is the removal of what is in paragraph (a), which is the demonstration test. Where one has demonstration, if the person who has been charged with this is to be convicted, they will need to intend to demonstrate hatred. There must be a causative link between the offence that has been committed and the demonstration of that hatred.
The concern I have, which has been alluded to by other speakers, is that there could be a situation whereby two young guys in their 20s could get into a fight. There may be no motivation in respect of hatred giving rise to the fight but after the fight, one of them may make a racist slur to the other. As a result of that, even though he was not motivated by hatred to commit the crime, he would suffer the consequence of being convicted of that, because after the offence he made a racist slur.
Deputy Pa Daly made a valid point, because there could be a situation whereby the other person does not make a racist slur but could make an offensive slur about something that is not protected by one of the grounds protected in the legislation. Then there would be two people who have committed the same offence. Both of them would have made slurs against each other. However, one slur, because it is regarded as being more offensive than the other, would result in that person getting a longer sentence.
The Minister of State knows I support the legislation. It is good legislation. However, we must ensure the offender must be wholly or partially motivated by hatred in committing the offence. They must not merely be someone who used a racist term during or just after the offence. Neither the Minister of State nor anyone else wants to see this legislation result in people getting convictions, which would hang over them for many years to come. Obviously, if it is put to a vote, I will be supporting the Government in respect of this. However, when it gets to the Seanad, it would be worthwhile to give some consideration to this. I say this because the demonstration test has a very low threshold for the purpose of somebody being convicted of what is quite a serious offence.
This amendment, which was tabled by Deputy Paul Murphy, goes to the crux of people's comfort or otherwise with the Bill. The demonstration test is something I have discussed with academics, including Jennifer Schweppe and others. I have spoken to Seamus Taylor, who effectively wrote the book on hate crime. He says that, in his experience, it is essential to the effectiveness of the Bill. It is true that it is only England, Wales and Northern Ireland that have this demonstration test in their legislation. It is an outlier, but they have been commended by the UN, the European Union Agency for Fundamental Rights, and the Organization for Security and Co-operation in Europe, OSCE, for their laws, policies and practices.
What we do not want is somebody who is in an altercation and says something stupid to then be labelled a hate criminal. In certain circumstances, what can happen to a young person is that they double down on that. They will say, "I have just been labelled as somebody who has just committed a hate crime". They can be influenced by people in that sphere who will turn them into a victim. That will then be a fork in the road of their lives.
We are conflicted as legislators. Deputy Jim O'Callaghan made a valid point, which the Minister of State might reflect on the Seanad debate. It is a difficult issue for the Government to try to do what is best. However, we do not want legislation that ends up criminalising the wrong people. There is a whole world of a difference between somebody who is motivated to attack somebody based on their ethnicity or other characteristics versus somebody who gets involved in an altercation and who then uses that person's ethnicity or characteristics as a slur as a result of that altercation. If we equate those two instances, I think we will be doing a disservice to the person in the second case. We will then possibly have lost that person forever. That happens far too often when you criminalise somebody. In a certain circumstance, they could be gone.
However, in the UK there is effective hate crime legislation and the demonstration test was key to that. It is not an easy issue. Certainly, I am minded to support what Deputy Jim O'Callaghan said in relation to the Minister of State's further investigation into this matter.
I support the amendment. I am concerned about this entire Bill, which I made clear on Second Stage. Deputies Jim O'Callaghan, Pa Daly and Paul Murphy alluded to it. There may be a wrong reason. There may be a situation where there is an argument, a fracas, or whatever, and somebody may say something after the fact, and they can be prosecuted. They would get a serious conviction that would stay with them. Deputy Jim O'Callaghan mentioned the spent convictions, but it would damage their prospects as regards Garda vetting, employment and maybe travel abroad. I think we are using a sledgehammer to crack a chestnut.
There may be unintended consequences of this legislation and I appeal to the Minister of State to look at it in the Seanad if he is not going to look at it here, because it is fraught with danger. I have always said there is not enough substance in this legislation. It relies too much on the opinion of the garda, or whoever else. It does not have to be proven beyond a reasonable doubt. It is very loose. The Minister, Deputy McEntee, was not for any change when we debated the Bill on Second Stage. I do not know how it got on on Committee Stage, but I am opposed to the legislation and I support this amendment.
I thank the Deputies for their contributions. To add some context in my response to this amendment, I would like to briefly outline to the House the position that has been taken in the Bill with the adoption of what is commonly referred to as the demonstration test. A particularly robust process is followed to ensure that this legislation is as effective as is possible. Considerable research and consultation were conducted by my Department in collaboration with counterparts in other jurisdictions and with the Office of the Attorney General and the Director for Public Prosecutions in relation to the appropriate tests of proof for the new hate crime offences. The inclusion of a demonstration test of proof was first and foremost a key recommendation from the Oireachtas Joint Committee on Justice in its report on pre-legislative scrutiny of the general scheme of this legislation, which was published in April 2022.
The report recommended the addition of the demonstration test in addition to the motivation test, which had been set out in the general scheme. This recommendation was echoed in numerous submissions to the committee from civil society groups and academics with significant expertise in the area. The change of policy to include a demonstration test in the Bill was agreed by the Government last July.
The demonstration test hinges on a perpetrator demonstrating hostility towards someone with a protected characteristic at the time of an offence being committed. To give some practical examples, this would include the use of hostile or prejudicial slurs, gestures or other symbols such as graffiti at the time of an offence being committed. The substantive difference between the demonstration and motivation models is that under a demonstration test, the prosecution must prove the demonstration of hostility but no subjective intent or motivation is required. It is an objective test. A motivation test requires proof of the defendant's subjective motivation for committing the offence, which can set a higher bar to securing a conviction. The use of a demonstration test in proving hate offences will make it easier for An Garda Síochána to investigate potential hate crimes from the beginning, and the hate element of the offence can then be presented and challenged in court if deemed appropriate.
In their amendments, the Deputies seek to remove the demonstration test in the context of all the aggravated offences in sections 17 to 19, inclusive. I regret I cannot agree to the amendments given, as I have set out, the demonstration test plays an important role in hate crime legislation and experts and academics agree it is the most effective tool in ensuring convictions can be secured where hate crimes have taken place. Furthermore, it was an express recommendation of the Oireachtas Joint Committee on Justice, and inclusion of the demonstration test was agreed by the Government after the committee published its recommendations last year. I hope the Deputies can appreciate that the Minister for Justice and I want to ensure the Bill, once enacted, can be as effective as possible and can provide marginalised communities with the reassurance that individuals who perpetrate crimes against them will be held accountable.
Deputy Daly raised a point regarding minor public offences and asked whether these types of offences could be dealt with at a local level by a superintendent or another member of An Garda Síochána. While it is true that certain low-level offences may routinely be dealt with at a Garda station, this legislation deals with comparatively serious offences it would not be suitable to deal with in this manner. Section 18 will create new public order offences that are aggravated by hatred and that would, on summary conviction, make the offender liable to a class C fine, six months' imprisonment or both. All 12 of the specific offences that may be aggravated by hatred carry an uplift in the potential penalties for offenders who are summarily convicted in comparison with the ordinary version of the offence. Such cases would have to be dealt with through the courts system and not by An Garda Síochána.
I am not convinced by the Minister of State's response. Towards its conclusion, he outlined the consequences of being convicted of a hate crime, including a higher sentence and being labelled as a hate criminal. It is a serious offence. Would it not make sense, therefore, to try to ensure people who are convicted of a hate crime will be people who have committed crimes actually motivated by hatred? That is explicitly not what the legislation seeks to do by using a demonstration test. If there were instead to be a motivation test, clearly, sexist, racist and hateful things being said in the aftermath of the offence itself could be taken into account in trying to determine whether a motivation was present. Requiring simply the demonstration of hatred, however, whether at the time of committing an offence or immediately before or after doing so does not, by itself, logically mean the actual act of an offence or the kind of incident many Deputies have described, such as a fight, a public order incident or whatever, was aggravated by hatred.
We are talking about a serious issue given the impact it has on someone. Obviously, we are eager to have proper legislation that will properly punish, with additional sanction, assaults and other serious crimes that are aggravated, inspired or motivated by hatred. It seems, however, that a certain shortcut is being taken that is not helpful and which means we can bring into the net, and label as hate criminals, those for whom that was not the motivation for the crime they committed, even though they may well have said something that is reprehensible, should be condemned and so on but which does not change the nature of the offence they have already committed.
I acknowledge that all the Deputies want to get to the same place, where we can seriously discourage hatred, where hate speech will not happen and where minorities will be protected. A lot of consideration was given to whether to use the motivation or demonstration approach, and the Oireachtas joint committee was clear it wanted to see the demonstration approach taken into account. It has been effective in other jurisdictions. Proving motivation in court is exceptionally difficult, and I say that as someone who has both practised in the Law Library and examined the research that has been carried out on the issue. It is about finding the balance to ensure those who demonstrate hatred will be held accountable. In our view, this is, on balance, the more appropriate and better approach to take.
I might make a short, general point in response. We are in favour of having good hate crime legislation. The work done by those in the Coalition Against Hate Crime Ireland has been excellent. Many of the groups it comprises are ones with which we organise, such as Le Chéile, Ireland for All and so on. Having said that, section 10, the thought crime section and the failure to insert an explicit reference to the right to freedom of expression by virtue of Article 10 of the European Convention on Human Rights mean that, unfortunately, we will not be able to support the legislation at this stage.
Amendment put and declared lost.
I move amendment No. 10:
In page 17, to delete lines 20 to 27.
Amendment put:
The Dáil divided: Tá, 48; Níl, 77; Staon, 0.
Tá
- Andrews, Chris.
- Boyd Barrett, Richard.
- Brady, John.
- Browne, Martin.
- Buckley, Pat.
- Carthy, Matt.
- Clarke, Sorca.
- Collins, Michael.
- Connolly, Catherine.
- Conway-Walsh, Rose.
- Cronin, Réada.
- Crowe, Seán.
- Daly, Pa.
- Doherty, Pearse.
- Donnelly, Paul.
- Ellis, Dessie.
- Farrell, Mairéad.
- Fitzmaurice, Michael.
- Funchion, Kathleen.
- Gould, Thomas.
- Guirke, Johnny.
- Healy-Rae, Danny.
- Healy-Rae, Michael.
- Howlin, Brendan.
- Kenny, Martin.
- Kerrane, Claire.
- Mac Lochlainn, Pádraig.
- McGrath, Mattie.
- McNamara, Michael.
- Mitchell, Denise.
- Murphy, Paul.
- Nash, Ged.
- Nolan, Carol.
- O'Donoghue, Richard.
- O'Reilly, Louise.
- O'Rourke, Darren.
- Ó Broin, Eoin.
- Ó Murchú, Ruairí.
- Ó Ríordáin, Aodhán.
- Ó Snodaigh, Aengus.
- Quinlivan, Maurice.
- Ryan, Patricia.
- Smith, Bríd.
- Smith, Duncan.
- Stanley, Brian.
- Tóibín, Peadar.
- Tully, Pauline.
- Ward, Mark.
Níl
- Berry, Cathal.
- Brophy, Colm.
- Browne, James.
- Bruton, Richard.
- Burke, Colm.
- Butler, Mary.
- Byrne, Thomas.
- Cahill, Jackie.
- Cairns, Holly.
- Calleary, Dara.
- Canney, Seán.
- Cannon, Ciarán.
- Carroll MacNeill, Jennifer.
- Chambers, Jack.
- Collins, Niall.
- Costello, Patrick.
- Coveney, Simon.
- Cowen, Barry.
- Crowe, Cathal.
- Devlin, Cormac.
- Dillon, Alan.
- Donnelly, Stephen.
- Donohoe, Paschal.
- Duffy, Francis Noel.
- Durkan, Bernard J.
- English, Damien.
- Farrell, Alan.
- Feighan, Frankie.
- Flaherty, Joe.
- Flanagan, Charles.
- Fleming, Sean.
- Foley, Norma.
- Gannon, Gary.
- Griffin, Brendan.
- Haughey, Seán.
- Heydon, Martin.
- Higgins, Emer.
- Humphreys, Heather.
- Kehoe, Paul.
- Lahart, John.
- Leddin, Brian.
- Lowry, Michael.
- Madigan, Josepha.
- Martin, Micheál.
- Matthews, Steven.
- McAuliffe, Paul.
- McConalogue, Charlie.
- McGrath, Michael.
- McGuinness, John.
- McHugh, Joe.
- Moynihan, Aindrias.
- Moynihan, Michael.
- Murnane O'Connor, Jennifer.
- Naughton, Hildegarde.
- Noonan, Malcolm.
- O'Brien, Darragh.
- O'Brien, Joe.
- O'Callaghan, Cian.
- O'Callaghan, Jim.
- O'Connor, James.
- O'Donnell, Kieran.
- O'Dowd, Fergus.
- O'Gorman, Roderic.
- O'Sullivan, Christopher.
- O'Sullivan, Pádraig.
- Ó Cathasaigh, Marc.
- Ó Cuív, Éamon.
- Rabbitte, Anne.
- Richmond, Neale.
- Ring, Michael.
- Ryan, Eamon.
- Shortall, Róisín.
- Smith, Brendan.
- Smyth, Ossian.
- Stanton, David.
- Varadkar, Leo.
- Whitmore, Jennifer.
Staon
Tellers: Tá, Deputies Paul Murphy and Richard Boyd Barrett; Níl, Deputies Hildegarde Naughton and Cormac Devlin.
Amendment declared lost.
The time permitted for this debate having expired, I am required to put the following question in accordance with an order of the Dáil of 25 April: "That the amendments set down by the Minister for Justice and not disposed of, including those in respect of which recommittal would, in the normal course, be required are hereby made to the Bill, Fourth Stage is hereby completed and the Bill is hereby passed."
Question put:
The Dáil divided: Tá, 110; Níl, 14; Staon, 0.
Tá
- Andrews, Chris.
- Berry, Cathal.
- Brady, John.
- Brophy, Colm.
- Browne, James.
- Browne, Martin.
- Bruton, Richard.
- Buckley, Pat.
- Burke, Colm.
- Butler, Mary.
- Byrne, Thomas.
- Cahill, Jackie.
- Cairns, Holly.
- Calleary, Dara.
- Canney, Seán.
- Cannon, Ciarán.
- Carroll MacNeill, Jennifer.
- Carthy, Matt.
- Chambers, Jack.
- Clarke, Sorca.
- Collins, Niall.
- Conway-Walsh, Rose.
- Costello, Patrick.
- Coveney, Simon.
- Cowen, Barry.
- Cronin, Réada.
- Crowe, Cathal.
- Crowe, Seán.
- Daly, Pa.
- Devlin, Cormac.
- Dillon, Alan.
- Donnelly, Paul.
- Donnelly, Stephen.
- Donohoe, Paschal.
- Duffy, Francis Noel.
- Durkan, Bernard J.
- Ellis, Dessie.
- English, Damien.
- Farrell, Alan.
- Farrell, Mairéad.
- Feighan, Frankie.
- Flaherty, Joe.
- Flanagan, Charles.
- Fleming, Sean.
- Foley, Norma.
- Funchion, Kathleen.
- Gannon, Gary.
- Gould, Thomas.
- Griffin, Brendan.
- Guirke, Johnny.
- Haughey, Seán.
- Heydon, Martin.
- Higgins, Emer.
- Howlin, Brendan.
- Humphreys, Heather.
- Kehoe, Paul.
- Kenny, Martin.
- Kerrane, Claire.
- Lahart, John.
- Leddin, Brian.
- Lowry, Michael.
- Mac Lochlainn, Pádraig.
- Madigan, Josepha.
- Martin, Micheál.
- Matthews, Steven.
- McAuliffe, Paul.
- McConalogue, Charlie.
- McGrath, Michael.
- McGuinness, John.
- McHugh, Joe.
- Mitchell, Denise.
- Moynihan, Aindrias.
- Moynihan, Michael.
- Murnane O'Connor, Jennifer.
- Nash, Ged.
- Naughton, Hildegarde.
- Noonan, Malcolm.
- O'Brien, Darragh.
- O'Brien, Joe.
- O'Callaghan, Cian.
- O'Callaghan, Jim.
- O'Connor, James.
- O'Donnell, Kieran.
- O'Dowd, Fergus.
- O'Gorman, Roderic.
- O'Reilly, Louise.
- O'Rourke, Darren.
- O'Sullivan, Christopher.
- O'Sullivan, Pádraig.
- Ó Broin, Eoin.
- Ó Cathasaigh, Marc.
- Ó Cuív, Éamon.
- Ó Murchú, Ruairí.
- Ó Ríordáin, Aodhán.
- Ó Snodaigh, Aengus.
- Quinlivan, Maurice.
- Rabbitte, Anne.
- Richmond, Neale.
- Ring, Michael.
- Ryan, Eamon.
- Ryan, Patricia.
- Smith, Brendan.
- Smith, Duncan.
- Smyth, Ossian.
- Stanley, Brian.
- Stanton, David.
- Tully, Pauline.
- Varadkar, Leo.
- Ward, Mark.
- Whitmore, Jennifer.
Níl
- Boyd Barrett, Richard.
- Collins, Michael.
- Connolly, Catherine.
- Fitzmaurice, Michael.
- Healy-Rae, Danny.
- Healy-Rae, Michael.
- Kenny, Gino.
- McGrath, Mattie.
- McNamara, Michael.
- Murphy, Paul.
- Nolan, Carol.
- O'Donoghue, Richard.
- Smith, Bríd.
- Tóibín, Peadar.
Staon
Tellers: Tá, Deputies Hildegarde Naughton and Cormac Devlin; Níl, Deputies Paul Murphy and Richard Boyd Barrett.
Question declared carried.