Joint Committee on Justice díospóireacht -
Wednesday, 17 Nov 2021

General Scheme of the Criminal Justice (Hate Crime) Bill 2021: Discussion

Chairman

I thank the witnesses for joining us. They are all most welcome. I remind all members and witnesses to turn of their mobile phones or place them in flight mode. While they might not appear to be causing a disturbance, they can still interfere with the sound system, which sometimes does not become apparent until after the meeting. We have received apologies from Senator Martin. A few others who are not presently at the table may be along in due course.

The purpose of our meeting is to engage with a number of stakeholders, all of whom made written submissions - and I thank them for doing so - on the general scheme of the Criminal Justice (Hate Crime) Bill 2021. Witnesses are appearing virtually before the committee today from a location outside the Leinster House precinct. This is part of the new hybrid arrangement that we are all getting used to whereby some members are in the building and witnesses are outside, but we are all connected online.

I again welcome our witnesses. We are joined by the following representatives: Dr. Seamus Taylor, head of the Department of Applied Social Studies, Maynooth University; Mr. Martin Collins, co-director, and Ms Jenny Liston, Roma programme co-ordinator, Pavee Point Traveller and Roma Centre; Ms Fiona Finn, CEO, and Ms Fiona Hurley, policy and communications manager, Nasc; Dr. Jennifer Schweppe, co-director, and Dr. Amanda Haynes, co-director, European Centre for the Study of Hate. From the Department of Justice, which has permanent observer status at our meetings, we are joined by Ms Kate Flynn, administrative officer, and Mr. John Garry, principal officer, both of whom are with the criminal justice legislation unit.

I have already mentioned people's own devices. As housekeeping for these Zoom calls, if you are speaking, make sure that your device is not muted so that your contribution is heard. If you are not speaking, make sure that your device is muted so that we do not hear papers rustling or dogs barking in the background.

I ask witnesses to be aware of parliamentary privilege and practice. This is of particular note for witnesses, who are off the Leinster House campus at present due to the nature of the engagement and the times that we are in, so they may not enjoy the same degree of privilege with their statements as they would if they were physically on campus. I ask them to be mindful of that when making their statements. If anything potentially defamatory is said, I will direct them to discontinue and it is imperative that they do so. I ask members to be aware of the long-standing parliamentary practice and traditions, especially with the extra risk to witnesses and the committee arising from remote attendance.

Each organisation will be invited to make an opening statement. We have allocated three minutes per opening statement. It seems to work. The witnesses will have plenty of time to speak again over the course of the engagement. Once all of the statements have been delivered, I will invite members of the committee to put their questions. There will be seven minutes per member for both questions and responses, and they manage that time as they wish. If a member wishes to have a long opening preamble, speaking for five minutes with two minutes for responses, that is fine, and if they want to ask questions for 30 seconds and allow six and a half minutes for responses, that is also fine. When everybody has spoken once, if time allows, we might have a second round, which will be shorter. I know there is some detail in the opening statements that have been sent to us, so I inform witnesses that I will enforce the three minute rule for their opening statements, but they will have the opportunity to speak again as the engagement goes on.

We will start with Dr. Taylor. I welcome him and look forward to hearing what he has to say.

Dr. Seamus Taylor

I thank the Chair and committee for giving me this opportunity. I welcome the Government's commitment to address hate crime as set out in this general scheme. The principle underpinning the proposed Bill and much of the substance are welcome. I have some specific concerns. My concerns are based upon 25 years of practical experience in the equality and diversity, and criminal justice systems in England and Wales, including serving as the director-level senior civil servant responsible for hate crime policy in the Crown Prosecution Service in London. Based on this experience, together with academic research, I am concerned that if specific issues are not addressed in this proposed hate crime Bill, Ireland risks having ineffective hate crime law. That would be a significant lost legislative opportunity. The other point that I want to make is that I come to this in a balanced, proportionate way. As well as being concerned about victims, I am equally concerned about justice for defendants. I chaired the Irish Penal Reform Trust, the main defender-focused charity focused on prisoner rights and penal reform in Ireland.

The most significant concern relates to head 8 of the general scheme, which deals with determining proof of motivation. The test as laid out is a test of motivation. Proof of committing the offence is sufficient for most criminal offences. The proposal here sets a different legal threshold for hate crime. As far back as December, the Department of Justice acknowledged that this is difficult. It indicates that without a successful way through this, it is unlikely that the new law will be successful. A workable and effective way through this has existed for 20 years in the neighbouring jurisdiction in England and Wales, and for a slightly shorter time in the North of Ireland. The Government risks ignoring effective law in our neighbouring jurisdictions. Instead, the Department of Justice appears to be proposing inclusion of a set of bias indicators, on the face of the hate crime Bill, from which it seems we would cumulatively adduce motivation. From my experience, this is inappropriate, unduly complex and fails to learn from considerable practical experience in our neighbouring jurisdictions. In England and Wales, and the North of Ireland, the determination of whether an offence has a hostility dimension can rests on a legal test of proof based on a hostile motivation and-or evidence of a demonstration of hostility. Some 20 years of implementing such legislation, involving and accompanied by training, guidance, monitoring and reporting, with the exception of disability cases, now shows similar success rates at court to that for regular hate crimes.

Chairman

I have to interrupt Dr. Taylor. I appreciate that the three minutes are tight. There is a time limit for the meeting. I know he wants to make four other points. Does he want to take 30 seconds to go over them?

Dr. Seamus Taylor

I have sweeping concerns about disability. One particular further concern that I want to bring to the attention of the committee relates to the Good Friday Agreement. Hate crime legislation is non-discrimination legislation. It is in the family of equality and human rights legislation within the context of criminal law. It somewhat mirrors employment equality law and equal status law. As part of the Good Friday Agreement, there is a commitment to ensuring parity of protection on the grounds of equality and human rights in the North and in the Republic of Ireland. If this Bill is enacted as set out, there will be a much more complex and higher legal threshold to be met for victims of hate crime in the Republic than in the North. This is not in keeping with either the spirit or the substance of the Good Friday Agreement.

Chairman

I thank Dr. Taylor. He made some interesting points. I know I had to cut him short but he will get an opportunity to make those points further as the discussion progresses. I invite Ms Hurley to speak next.

Ms Fiona Hurley

I thank the committee for the opportunity to participate. I will shorten my opening statement to the three-minute limit. "Nasc" is the Irish word for link. We are a registered charity and we work with migrants, refugees and asylum seekers. We have a long history of anti-racism work. We have been actively engaged in calling for hate crime and hate speech legislation for over a decade and we are pleased to see progress being made on this legislation. It is only one step towards tackling racism and other prejudices. While we welcome this Bill, we have concerns about gardaí having a role in immigration enforcement and registration. Undocumented migrants and migrants with precarious immigration statuses will be reluctant to make reports.

One key issue that we have with this proposed Bill is that the definition of "hatred" in head 2 does not reflect international standards and is not sufficiently clear to provide certainty to the public, prosecutors, and Judiciary. We recommended that the definition of "hatred" be redrafted in line with definitions used by the UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression and the European Commission against Racism and Intolerance.

We are concerned about the defences for publishing or otherwise disseminating or broadcasting hate speech in head 3, which are significantly more expansive than those contained in the 1989 Act. It contains defences where the material concerned consists solely of a reasonable and genuine contribution to literary, artistic, scientific, or academic discourse. The general scheme does not contain any guidance as to how a reasonable and genuine contribution may be defined. Is this an objective or subjective test? We believe that if the discourse would otherwise reach the threshold set out in paragraph 1 of "inciting or being reckless as to whether such communication will incite, hatred", it is then an oxymoron to say that it was a reasonable contribution to the discourse.

What is political discourse? There is a reasonable defence for utterances in the Houses of the Oireachtas so we can infer that this refers to speech outside of the Oireachtas. We are concerned about the potential for fomenting hatred or racism as an election tactic.

Heads 4 to 6 of the Bill create 12 new aggravated offences which all share the same essential elements, namely, that the offence was "motivated by prejudice". We disagree with the sole inclusion of the motivation test. The requirement to prove the alleged perpetrator was motivated beyond a reasonable doubt is too high and would lead to low levels of prosecution. We are concerned that in the case of, for example, a racially motivated offence, absent evidence that the offender is ideologically racist, the aggravated offence may not be successfully prosecuted or it may be a defence to say the slur used, for example, was used in the heat of the moment or was unrelated to the reason for the offence.

We believe the use of a demonstration test, as used in England and Wales and more recently in Northern Ireland and referred to by Dr. Taylor, would resolve this enforceability issue. The demonstration test recognises that harm that occurs to the victim when the victim experiences the offence as a "hate crime". A demonstration test would be satisfied by proof that the offender demonstrated hostility, such as the use of racist, homophobic or transphobic slurs towards the victim during the commission. Nasc recommends that the Bill be amended to allow for the offence to be proved on the basis of the demonstration of hostility or motivation by prejudice.

I believe my time is about to run out. I am happy to answer any questions.

Chairman

I thank Ms Hurley. Self-regulation is what we like. She will have the opportunity to come back in. There will be extensive engagement with members once we get into the questions and answers. I call Dr. Schweppe.

Dr. Jennifer Schweppe

I thank the Chairman and the committee for inviting us. At the European Centre for the Study of Hate we study the treatment of hate crime in the Irish criminal justice process, as well as legislative models to address hate. All of that is grounded in empirical research and comparative legal scholarship. With Professor Ross Macmillan, we have conducted the first ever general population survey of public awareness and beliefs about hate crime, and hate crime legislation in Ireland.

We welcome the publication of the general scheme. Our written submission includes specific suggestions with respect to each head. In this opening statement, we would like to highlight some of the overarching principles we think should guide the committee's scrutiny of the general scheme. First, we all want the legislation to be effective. We propose that we critically reflect on what effective legislation is. We think it is a scheme which achieves a balance of rights between victims and offenders, upholds the principle of certainty, the principle of minimal criminalisation, and the principle of fair labelling and sends a clear message to society that we do not tolerate targeted victimisation.

Second, we believe effective legislation achieves a balance between the need to leverage the declaratory potential of hate crime offences on the one hand, and their potential exclusionary effects on the other. We have shown in our survey of the general population that labelling an individual a "hate criminal" is likely to prove an additional impediment to securing employment, as well as social integration. At the same time, our research on the treatment of hate crime in the criminal justice process shows the creation of aggravated offences is crucial to achieving an integrated system-wide response to hate crime. We believe that these findings underscore the need for a scheme which creates new offences but also establishes a high threshold for conviction, which is present in the general scheme.

Third, in learning from other jurisdictions, we note that while it is possible to later expand the scope and protections afforded by hate crime legislation, it is difficult to contract or remove protections given the message this will send to victims, communities and society at large. For this reason, we commend the cautious, incremental approach taken in the general scheme and further advise a statutory requirement for a legislative review after five years.

Fourth, we emphasise that to be effective the legislation requires a scaffolding of supports for victims, offenders, and criminal justice professionals. In the absence of these implementation measures the legislation may fail.

As a final and fundamental point, we should learn from the experiences of other jurisdictions and draw on international good practice. This should be done carefully, recognising the need to adapt international lessons and examples to our own jurisdiction, and ensuring the general scheme is appropriate to the Irish legal, policy, and social context.

In conclusion, our expertise is, as mentioned, in the area of hater crime and we would like to additionally refer the committee to the submission of the Coalition Against Hate Crime, with specific reference to incitement to hatred. I thank the Chairman. We look forward to answering all the committee's questions.

Chairman

I thank Dr. Schweppe. We move to Mr. Collins. He had some difficulties logging in but he is with us now. He will have three minutes to make his opening statement and then we will have questions and answers with members following that.

Mr. Martin Collins

I thank the Chairman. I apologise for the technical difficulties. I thank the committee on behalf of Pavee Point Traveller and Roma Centre for the invitation to address it on the Criminal Justice (Hate Crime Bill) 2021. As some members may know, Pavee Point is a national non-governmental organisation that has been campaigning for the last 35 years to address racism at both the institutional and individual level and to promote Traveller and Roma inclusion in society overall. We welcome the Government’s plan to introduce stronger and more effective legislation to deal with hate speech and hate crime. This is a recognition the 1989 Incitement to Hatred Act is not fit for purpose. As we all know, there have been very few prosecutions under it.

Hate speech and hate crime are different from other crimes. If other speakers have alluded to this I apologise for the duplication. I was out for about ten minutes. Hate speech and attacks are not just on the individual but on the whole community that individual comes from. As a result, this instills great fear, anxiety and uncertainty in that community. Hate speech and hate crime create barriers to a more pluralist, inclusive society based on principles of equality and respect. There must be zero tolerance towards hate speech and hate crime. Unfortunately, it is well documented that both my community and the Roma community all too frequently experience hate speech and hate crime. For the committee's information, in the last eight years six homes allocated to Traveller families were either vandalised or suffered arson attacks before those families could occupy them. This was quite clearly motivated by hate. Unfortunately, in all six cases none of the culprits was ever arrested and held to account before the courts. That was one house per year. It is absolutely frightening. More recently, we have seen examples of graffiti being sprayed on the walls of Travellers' houses that says: "Knackers out". This was a very recent development. It occurred in Limerick only three weeks ago. Thus, it is quite clear we need strong, effective legislation to deal with hate speech and hate crime. As we all know, hate speech must be nipped in the bud because quite often it is a precursor to hate crime.

Before I hand over to my colleague, Ms Liston, who may wish to say a few words, I want to make an observation on an aspect of the Bill I am quite concerned about. The defence paragraph is certainly very expansive. In particular, I am very concerned about what I would describe as a loophole or opt-out clause in relation to political discourse. The Bill as constructed at present would seem to suggest politicians who come out with effectively racist or other homophobic comments can use political discourse as a defence. That is how I read the Bill and it worries me. It needs to be addressed because too often, especially with my own community, the Traveller community, and also the Roma community, it is during elections when politicians are canvassing when we hear most of the racist rhetoric and hate speech directed against Travellers and Roma. If political discourse is going to be a line of defence, then the legislation will be all the poorer for it when it materialises. I caution against that and urge the legislators and the drafters to revisit that because it worries us considerably.

As a final point, we note strong, effective hate speech law must, as a priority, be victim-centred. It must give an effective legal remedy to those who experience hate speech and hate crime. Those should be the overriding priorities for this piece of legislation. As we all know, the legislation on its own will not address hate speech and hate crime. We need a more holistic, co-ordinated approach. We need other educational and training initiatives for the Judiciary, for prosecutors and for society overall. The forthcoming national action plan on racism will be a huge complement to this legislation when it materialises. I thank the committee. My colleague, Ms Liston, might like to say a word.

Chairman

I thank Mr. Collins. We will bring Ms Liston in during the questions as we generally have one speaker per organisation. Both he and Ms Liston can come in on the questions.

We might do it that way. I want to move to the members now and take questions. That would help to illustrate the points that have been made by the different speakers. I thank them all for their presentations. I will take the following members in the order in which they have indicated: Deputies Pringle, Carroll MacNeill and Martin Kenny. They will have seven minutes each for questions and answers. Members can continue to indicate during the course of the meeting and I will call them. Deputy Pringle, you are first up and best dressed. Off you go.

Deputy Thomas Pringle

I am not that, definitely. I thank the Chairman.

I would like to thank the contributors for their contributions. It was interesting listening to the contributions because when I read through the heads of the Bill, head 8 was the one that stuck out as to how it would happen in practice and three of the contributions highlight that as being a major problem with it. Funnily enough, if you were an alien looking down from space at our legislation, you would think this was a great country but when you come down and see how the legislation is implemented, it is completely different. This is a danger with this legislation as well, in that it will be nicely laid out in the law but nothing will happen on the ground in terms of implementation and enforcement. Could Dr. Taylor expand on what happens in the UK and on how the UK deals with it? That would be important. How could we put that into the legislation here to ensure it takes place? That is something Dr. Taylor might have to follow-up on with suggestions in terms of amendments. That is my main point.

The point Deputy Martin Kenny made about the political discourse defence is very important and should be enacted in the legislation.

I would like to ask Dr. Taylor about the legal threshold that the victims of hate crime in Northern Ireland have in the Republic and that we need to recognise the Good Friday Agreement in implementing this legislation. Maybe Dr. Taylor could respond to the point on the tests also.

Dr. Seamus Taylor

I thank Deputy Pringle. In my experience, relying on a legal test of motivation alone will be very challenging. It will give for very limited effectiveness in the law and it could give for ineffective law. The Department of Justice recognised this and said so in a public document in December last. It stated that without a way through it, it could be very hard to make this law work.

The way through it, I believe, is by having more than one limb to the test of proof. Rather than relying solely on proving motivation, which is about getting into the mind of the perpetrator, I believe we can learn both from the North of Ireland and from England and Wales in terms of what they have done. They have much longer experience. This is not to hold up everything in England and Wales as good and hold up Ireland, which traditionally has often been done, as all bad. We know that we could pick any range of public policy issues and the comparison works the other way. We only have to observe some of the recent experience in relation to the handling of Covid in Britain compared to here.

However, on hate crime policy and practice, it is fair to say that England and Wales are leaders globally and they are recognised as such by the UN supporting UNHCR resources on the ground with experts on mission, SURGE, committee, by the Organization for Security and Co-operation in Europe, OSCE, and by EU Fundamental Rights Agency, FRA, in terms of their legal provision, their policy and the practices. Therefore, we can learn from very-near neighbours.

In the UK, they have two limbs to their legal test of proof: proving motivation; and-or proving a demonstration. The demonstration limb allows you to take into account evidence of demonstrated hostility at or around the-----

Chairman

You have muted, Dr. Taylor. If you could unmute.

Dr. Seamus Taylor

The demonstration test usually, but not exclusively, pertains to the use of hostile slurs at the time of offending. It could also involve the use of graffiti, gestures and other symbols.

I did doctoral research on hate crime in England and Wales and I looked at 548 cases in the Director of Public Prosecutions, DPPs, office. I found that every successful case involved the use of hostile language as well as the base criminal offence, such as assault. I found that every failed case lacked the demonstrated hostility.

The demonstrated hostility is often integral to the offence. It is consciously used in the moment. It is often what the victim remembers for life long after the physical wounds have healed. In a sense, it is what is often crucial to securing a conviction on the day of court. I will give an example from my research. Two disabled men in a north-of-England city have become friendly through attending the same day centre. One uses a motorised wheelchair. One uses a walking stick. They often meet up on days when they do not attend the centre. They meet up socially in a square in the centre of that city. They met one day in the summertime some years ago in the centre of the city. They were sitting on seats in the square. A young man cycles towards them on a bike. As he approaches them, they hear him making a loud noise with his mouth. He slows down as he comes towards them and he lands a big spit on the man who is sitting in the motorised wheelchair, he shouts, "You f---ing mong", and he speeds off on his bike. Both men were shocked. They were shaken and upset, and angry. There were witnesses, both the man who had not been spat on but also other people in the square. They went to the police, the young man was apprehended and the case went to court. The hostility dimension was raised from the outset in the court. Although it is not required to be raised in Britain until the end at the sentencing point, it was raised at the outset. The defendant challenged the hostility dimension. He mounted a defence that the sun was shining in the square, it got in his eyes and it caused him to have a big sneeze. The witnesses' statement regarding the demonstration of hostility secured the conviction and the enhanced penalty for the hate crime. It was the actual utterance of the words, "You f---ing mong", that were witnessed by other people, that drove the conviction home. Without this provision, cases like that can be very challenging to bring to a fair and just outcome. I could go through several cases - I have 15 to hand here - to illustrate that same point. It leads me to conclude that having a demonstration test of hostility is important to effective hate crime law in the Irish context. It is also important in the sense of bringing parity across this island to the provisions that also exist in the North.

Chairman

Dr. Taylor went a little over time but I did not want to cut him off in the middle of such a troubling story that he was sharing with us there. I let that run. I thank Deputy Pringle. I will move on to the next questioner for this round. Deputy Carroll MacNeill is up next. The Deputy has seven minutes for her engagement.

Deputy Jennifer Carroll MacNeill

I am glad Deputy Pringle asked that question because it was exactly where I was going to go. I note, between the different people making contributions, that Dr. Taylor and Ms Hurley have made essentially the same point in relation to this. Dr. Schweppe takes a slightly different position. Dr. Schweppe might take a minute of my time to explain the different position to make sure that we have heard that too.

Dr. Jennifer Schweppe

Does the Deputy want me to do that now?

Deputy Jennifer Carroll MacNeill

Yes, please. I have more questions and I ask Dr. Schweppe to be quick.

Dr. Jennifer Schweppe

I have my eye on the clock.

What we need to start out knowing is that the UK is an international outlier with respect to the use of this incredibly expansive test of the demonstration model. Indeed, in other law reform processes, for example, in New South Wales, where they considered the amendments to hate crime legislation, they rejected the demonstration test as being too wide. Mason and McIntosh also reject it. It is not like it is a standard to which, internationally, other jurisdictions strive to meet. It has been rejected by other jurisdictions as being too broad.

What we also need to think about is that there are two things that are provided for in the general scheme: aggravated offences from which an individual would be convicted of an aggravated hate crime which would be on the person's record; and aggravated sentencing provisions, which are in another head of the Bill, which would not appear on the criminal record of the individual without a big change in the system.

One could capture that broader range of motivation, including demonstrations of hostility or other tests, but just because it is being done in England and Wales and there are a considerable amount of convictions in that jurisdiction does not mean it is right for here.

Deputy Jennifer Carroll MacNeill

I understand. Are jurisdictions that have considered and not adopted that approach getting convictions? The committee is concerned that we have legislation that works and is a threat. I appreciate the point Dr. Schweppe makes about a conviction of that kind hanging around somebody for a very long time, potentially an unduly long time, particularly in the case of somebody very young and so on. One might look at spent convictions in that regard. In the context of social media and some of the difficulties we are seeing socially at the moment, we want legislation that is going to work and be a real deterrent. In the jurisdictions that have not taken that approach for the reasons Dr. Schweppe has outlined, how is it working and are they getting convictions?

Dr. Jennifer Schweppe

The interpretation of motivation differs from jurisdiction to jurisdiction. New Zealand and Canada are interesting examples. We are not necessarily comparing like with like because we know for a fact that creating new offences, as this general scheme does, will prompt a response from the criminal justice system that an aggravated sentencing provision will not. For example, New Zealand has an aggravated sentencing provision and there is a strong recommendation that it should move to an aggravated offences model. Some people agree it should be broadened out to demonstration while others argue it should be kept very narrow. I will ask the Deputy, as we did in our opening statement, to reflect on what she thinks "effectiveness" means. Does it mean lots of convictions? I do not think it does. I do not think effective legislation means lots of convictions. I think the criminal law is a very blunt instrument, as the Deputy quite rightly noted. It does not understand the nuances of general life.

Deputy Jennifer Carroll MacNeill

I will answer that question because I am sensitive to my remaining time. I think effective legislation does involve convictions. Behaviour is influenced by seeing some incidents going through the courts and, hopefully, having a deterrent effect on everybody else. I do not want to have legislation through which we cannot get convictions because we have not approached it in the correct way. An incremental approach can be taken from either direction. We can take a different approach and soften it over time, particularly if we see a deterrent effect in the first instance. It is clearly inadequate to go through this in seven minutes. I totally recognise that and I will hopefully have an opportunity to come back in.

I will ask Dr. Taylor about the point he made about disability because there is something distinct there. If I have time, I will ask him about the Good Friday Agreement but perhaps that will be asked separately.

Dr. Seamus Taylor

I thank the Deputy. I have one point to clarify about the end of our previous discussion. It needs to be made known that there are not a considerable number of convictions in the United Kingdom, either in Northern Ireland or the UK more widely. Some 130 defendants were convicted of hate crime in Northern Ireland in 2019 and 2020, according to the statistics on the Northern Irish Government website yesterday. Britain has a population of 67.1 million. Some 2% of offences are hate crime. A crime survey in England and Wales captured people's perception of hate incidents. That figure stood at 190,000 in 2018-2019, when it was most recently conducted. A total of 105,090 cases were reported to the police and 12,730 went to the Office of the Director of Public Prosecution. There is a difference between what people might perceive and what ultimately ends up being convicted in the system. The response in the UK is quite proportionate and rounded. There is not an enormous number of convictions.

The Deputy asked about disability. It is more challenging than other areas for a number of reasons. All discrimination manifests in different ways. Racial discrimination is not the same as disability discrimination, homophobic attacks or homophobic discrimination. There are commonalities but there are also specifics that pertain to each protected ground. They reflect different histories and ways in which groups are socially patterned across society, whether they are segregated or not. Policy tends to address disabled people in two ways. Disabled people are constructed as needing care and protection, which sees them as vulnerable. The other approach is to construct disabled people as rights-bearing citizens. This complicates the whole disability area because the challenge is how to recognise the hostility in disability hate crime. People ask if we dislike disabled people or hate them. The second challenge is responding appropriately. What I found in the cases I looked at is that cases involving disabled people are often classified as senseless crimes or attacks on vulnerable victims. They are often not recognised for the prejudice underpinning them. As a result, full justice and an appropriate response is often denied. Do I have the time to give the committee an example?

Chairman

The doctor is over time. I was giving a bit of latitude. I am going to move on to the next questioner. Dr. Taylor may wish to come back in with that example later in the meeting and he is welcome to do so.

Deputy Martin Kenny

I thank our guests for their opening statements and submissions. I want to go back for a moment to the hostility dimension and the aspect of the matter about which Dr. Taylor has spoken. One needs to be able to prove motivation and that is one of the key difficulties because proving motivation is the problem with all of this. It always struck me that one of the things we are dealing with here, as has been mentioned in the submissions, is that this is about aggravated incidents. It is about an attack or incident which is clearly illegal anyway and that an aggravating part of it is that the perpetrator is using a racial or sectarian slur, or whatever, while committing the illegal act and, therefore, there is clear evidence that the perpetrator is acting out of hate. However, hate speech, in itself, without a physical attack on, or violation of, somebody, is also something we must recognise, as was mentioned earlier. Such an act can cause as much harm to a victim as a physical attack, in many cases. I know that from speaking to people from the Travelling community and people of different ethnicity across the country who find such acts hurtful and horrible. It can have a long-term effect on them. Are we prepared to accept that we must prove, in some way, the hostility dimension? Is it possible to do it in a context where there is not another clear violation of a person's rights?

Dr. Seamus Taylor

I thank the Deputy. He summarised the situation very well. One of the challenges is that although it is very laudable to bring incitement to hatred and hate crime into one overall Bill, they have quite distinct features. With incitement to hatred, the speech is the offence in itself, whereas, as the Deputy has correctly pointed out, in hate crime, there is a base criminal offence, such as assault, and the hate dimension is an aggravation, if, for example, a hostile slur is used at the time. Speech on its own is the offence for incitement to hatred while hate crime involves a base criminal offence that is aggravated by the hate dimension. That makes it quite challenging.

I am firmly of the view, based on my experience and research, that a practical way through the regular hate crime is by accommodating the demonstration of hostility and accepting that as a valid test of proof. It makes motivation real because it gives one a standard to judge it by. It gives one an empirical actual reality. That is why I believe that the demonstration test is valid.

I am not an expert on incitement to hatred. Many of the provisions that are proposed strike me as reasonable in terms of incitement to hatred. I would particularly commend the proposal to introduce a test of recklessness into the incitement provisions. I think that is a significant improvement on what existed before. However, I share the valid point made by Mr. Collins about political discourse and what legitimate parameters can be and could be considered to be placed around hateful political discourse. I do not consider myself an expert on the incitement part of the Bill. My expertise rests in the regular hate crime area more.

Deputy Martin Kenny

Deputy Carroll MacNeill mentioned the Good Friday Agreement and I will go into the legislation on that. Parity of esteem and everything else was very carefully placed in the Good Friday Agreement. Some of that legislation has been enacted partially but a lot of it has yet to be enacted. One of the difficulties we have within the context of the Good Friday Agreement and the arrangements in the North of Ireland is because sectarianism is clearly one of the big issues and continues to be the big issue. That is one of the reasons there has been resistance from almost every level of society. With such a divided society it has been difficult to bring in the kind of legislation that would work and set up the grounds of equality that we seek to achieve. I take the point clearly that we do not want to have a situation where we have different standards on the one island. That point has been well made but perhaps others have a view on the matter.

I believe that we need to be removing things with great caution. We do not want to be in a situation where we inhibit or in any way restrict people's freedom of speech or where we remove or in any way smother civil discourse. That is something that we need to take care of.

Dr. Seamus Taylor

Section 6 of the Good Friday Agreement is entitled rights, safeguards and equality of opportunity. The first eight paragraphs deal with what is going to be brought in, in Northern Ireland, to address equality and human rights. Paragraph 9 is entitled "Comparable Steps by the Irish Government" and goes on to state that the measures brought forward by the Irish Government in the areas of human rights and equality will "ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland". In my considered view, the hate crime Bill, as published, falls short of the commitment to at least an equivalent level of protection because in the North, the legal provisions on hate crime allow for proof based on demonstration of hostility or motivation. Here in the Republic, if this Bill goes ahead unchanged, it only provides for proof on the basis of motivation. Therefore, hate crime victims in the Republic will not have got equivalence of protection. In addition, hate crime victims here will face a more challenging, more complex and a higher legal threshold. Also, hate crime victims here will be less likely to get full justice in the Republic than in the North. I do not think that is in keeping with the spirit of the substance.

Chairman

I thank Dr. Taylor for his contribution. The time is up for this slot but Dr. Schweppe and Ms Hurley have indicated a wish to comment.

Dr. Jennifer Schweppe

Deputy Martin Kenny has asked for a lot in his questions. With respect to the incitement provisions, we need to be very cautious when we carve out an exception to freedom of expression. We know that there are some issues with the application and implementation of the 1989 Act and it needs some work. Perhaps amending the existing Act is better than repealing and replacing it with this inherently inconsistent legislation.

With respect to the Good Friday Agreement, it is of course the case that in Northern Ireland there are no aggravated offences. On one argument we have much stronger protections and much stronger legislation here, having aggravated offences, because in Northern Ireland it is simply an aggravated sentencing provision. There is nothing to stop us having a similarly broad aggravated sentencing provision. We can do that. That will not go on the criminal record of the individual. That will not affect their future employment history. What is presented in the legislation is a dual model. So what we would say is have a narrow model used in the aggravated offence and then have a much broader model in the sentencing provision, which can be exactly the same as Northern Ireland if that is what legislators want and that is certainly a commendable approach to take.

In response to Deputy Carroll MacNeill, what is really dangerous and the Law Commission cautioned this with respect to introducing legislation, is that if one has a broad framework it is incredibly damaging to reduce that framework, to contract it and remove protections. What we would advocate is to build on what the Law Commission says. Introduce a narrow model, particularly with the offences, then build it after five years if there are insufficient convictions. If one feels that the court has interpreted the motivation requirement too narrowly, and we do not know how they are going to interpret it, then review it after five years. One cannot introduce broad legislation and then say that it is too broad, and say that all those things that we called hate crimes before we actually do not think they are and we are going to narrow it. As the Law Commission said, that sends a very damaging message to society and victims, which is why we advocate the dual model, so a narrow, broad and incremental approach.

Chairman

Dr. Schweppe has made interesting points.

Ms Fiona Hurley

I want to speak to the incitement question asked by Deputy Kenny. One of the issues is that the incitement to hatred and hate speech are part of the same Bill, which has confused a lot of people. The fact that the consultation that was done on this Bill was exclusively limited to hate speech has also added to the confusion.

Nasc is part of Coalition Against Hate Crime Ireland. One of the recommendations that it made, which was by 18 NGOs and civil society groups, as well as academics who work in this area, was for consideration to be given to separating the incitement to hatred or hate speech element versus the hate crime element. That would, hopefully, avoid some of the confusion between the two distinct parts of the legislation. Even the name of the legislation does not reflect the fact that there are two different parts of the legislation. The Bill is entitled the criminal justice (hate crime) Bill but actually it is hate crime and incitement to hatred or hate speech. That would assist with public understanding of the Bill.

Chairman

I thank all of the witnesses. I call Senator Ruane and she has seven minutes.

Senator Lynn Ruane

The representatives from the Department of Justice are only here as observers. Can they answer questions?

Chairman

They can to an extent. It would not be usual to ask them direct questions but if they can perhaps offer clarification on something that is raised in terms of the legislation with the Department or whatever, then that would be okay.

Senator Lynn Ruane

I wish to refer to one or two things.

Chairman

Yes.

Senator Lynn Ruane

In terms of understanding, we are having a discussion about motivation versus the demonstration of hostility. Perhaps Dr. Taylor or Dr. Schweppe can explain, for someone who may be watching this meeting, why the differentiation is so important.

Why does the motivation exist the way it does at present? I lean more towards motivation but I can also see the problems with it. It is very difficult. I want to understand why those semantics are so important in respect of the legislation.

Demonstrations of hostility begin very much as demonstrations of facility in the broader sense, but because of differences, whether they concern social class, minority groups or race, the race element is brought later to an already existing argument. Is hatred the motivation of somebody with low educational attainment or is it a lack of understanding of the terms he or she uses and their impact? I ask for a little insight into why the differentiation is so important.

Dr. Amanda Haynes

The Senator has hit the nail on the head. In effect, when we talk about the dual model, we are talking about being able to address hate crime through two different means. One is the creation of these new offences. If somebody is convicted of one of these new offences, that person will have the label of "hate crime offender" on his or her criminal record. That will appear when the person is vetted by the Garda. We know from research we did with Professor Ross MacMillan that this will impact, additional to a criminal record, upon the way that person is viewed by the rest of society, including as a neighbour and a potential employee.

The other method we have of dealing with hate crimes through this Bill, and we commend the fact that it includes this dual model, which is appropriate, is the aggravated sentencing measure that will lead to enhanced penalties. If somebody is convicted of an assault, for example, that person is convicted of an assault. It is not a hate-aggravated assault, but there is an enhanced penalty because of the hate element that is associated with the crime.

In both cases, the offender will receive an enhanced penalty and we are marking out that hate element as unacceptable to us as a society. Where we are talking about the offences, the person will also get the label of hate crime offender, which will be on his or her record and will have significant impacts upon his or her life chances. We are asking committee members to think about whether they want the same threshold in place in both cases - when somebody receives an enhanced penalty and when somebody receives an enhanced penalty and the label "hate crime offender". Do they want to use the same threshold? Does the committee want it to be the same for persons who commit a crime against somebody because they have decided to act out of their prejudice against that person on the basis of his or her characteristics, as for persons who commit a crime, for example, for financial motivation, and in the course of committing that crime used an admittedly harmful slur? Does the committee want those persons in those two cases to be treated in the same way?

The Bill as it has been created offers the possibility of treating those individuals differently. It could be that we only consider the case of a person where we can prove the crime was wholly or partially motivated - it does not have to be wholly motivated and there can also be financial motivation - and it is also in evidence, that he or she decided, at least in part, to commit that crime because that person decided to act out his or her prejudice against an individual due to that individual's characteristics. It would then acquire the label of "hate crime offender" as well as the additional penalty.

Do we also want that to be the case for the person who committed the crime for no reason other than a financial motivation, but in the course of committing it used a tool that is available to us because we live in a society that is racist, homophobic, transphobic and ableist, and deployed that tool against an individual but did not commit the crime for that reason? It seems to me the Senator has a very clear appreciation of those differences. I thank the committee for the opportunity to address that issue.

Senator Lynn Ruane

Will the Department look at the safety net of a firewall policy and free in-free out, especially regarding migration status and the sharing of information? If someone from the migrant community reports a hate crime, what type of safety net will be in place so that person will not be in fear of his or her migration status being shared with any other Department?

Ms Kate Flynn

At the moment, no part of that is included in the general scheme of the Bill. It is something that might be included in the national plan against racism. It is more part of the work of another Department perhaps. It is not included in any provision of this Bill as it is currently drafted, but it is definitely a point we can keep under consideration and consider in the drafting process. As the general scheme currently stands, it is not included in any part of it.

Senator Lynn Ruane

Why can ensuring protection not be part of this Bill? Is there a specific reason for that?

Ms Kate Flynn

It is something I can bring back to the Department and consider in the drafting process. I am not sure it is something I can speak to the Senator about at present. I can follow up with a note to her through the clerk of the committee. It is something we can follow up on and also consider in the drafting process.

Senator Lynn Ruane

Am I out of time?

Chairman

Yes, but I will permit the Senator one last question because I had the last round.

Senator Lynn Ruane

I will bring another emphasis. We have all commented on the need for an exemption not to be included for, say, political discourse. We have all made some reference to that, but we have not got into what that means and why an exemption would exist in those spaces. I understand some arguments in respect of universities, topics that might be discussed there and all the freedom of speech stuff, but it is not freedom of speech if that becomes an actual hate crime or hate speech. Why are we carving that out? It would be great if Ms Hurley could comment on that.

Ms Fiona Hurley

I thank the Senator for the question. We are very concerned about the defence, specifically, for incitement in the context of political discourse. We argue that the same probably also applies to academic discourse. There is no definition of what makes a genuine and reasonable contribution, which is very worrying. We know from the way the Bill is worded that this political discourse must refer to speech outside the Oireachtas because the Oireachtas is protected separately.

We also know, and Mr. Collins and other Pavee Point representatives will be able speak to this as well, that the lives of people from migrant and ethnic minority communities, such as Travellers and Roma, become the subject of elections. We have seen, particularly in some of our EU counterparts, how nasty and simply racist some of that discourse has been, especially around asylum seekers whose lives are now almost seen as inherently political. We are very concerned about that type of exemption proceeding in its current breadth. We hope that answers the Senator's question.

Senator Lynn Ruane

Definitions are important.

Deputy Patrick Costello

I thank everyone for coming in. I thank Senator Ruane for raising the question of firewalls, which is relevant to all of us. I will put this Bill in a little context because if we look at reports from the Irish Network Against Racism, INAR, we see increased levels of reporting of racist abuse and racially motivated attacks.

There is a growing, sinister and worrying trend towards extremism and hate-motivated speech, as well as a nasty, aggressive and concerning attempt to deliberately tear apart the fabric of society, point people out and target them. I suspect that Pavee Point would say this has been going on for a long time and has been affecting the Traveller community for a long time. We are seeing it in a much more open way now. As a society and as legislators, we have to respond to this. The action plan against racism, which many speakers referred to, is useful and will be important in ensuring we are brought together again while people try to pull apart the fabric of society. We also need to ensure people stop pulling us apart, which is where I see this legislation coming in.

I will pick up on the point on which Senator Ruane finished, namely, the use of political and academic discourse as a defence. Mr. Collins also raised it. Travellers have been on the receiving end of racist abuse in elections. I understand and share many of Mr. Collins's concerns in relation to that wide exemption. I understand the need to strike a balance with freedom of expression. Ms Hurley discussed that point. I ask Dr. Schweppe and Dr. Haynes to respond to that issue as well.

Dr. Jennifer Schweppe

I thank Deputy Costello for his question. I cannot think of a single circumstance in which it would be appropriate in any academic content to utter language which incites hatred. This is not hate speech or people saying nasty things about groups of people. This is speech which incites hatred. Is academic discourse Dr. Haynes and I having a cup of coffee or me speaking to my class? Is it me writing in academic work? It is not defined. I cannot think of a single circumstances under which me inciting hatred could in any way be justified or excused, which are the ways in which we frame defences. In the same way, there are no circumstances I can think of where it would be appropriate, justified or excused for a politician to incite hatred, and the standard of speech required in this criminal offence is incredibly high. There are no circumstances in which we should incite hatred.

I completely agree with Ms Hurley that this is really not a criminal justice hate crime Bill but a criminal justice incitement to hatred and hate crime, and incitement to genocide, Bill. We need to be really careful about what we are doing here. What the incitement to hatred provisions in head 3 do is broaden out what is in the 1989 Act through the definition of "hatred" and the inclusion of the recklessness test, on which I am not as keen as Dr. Taylor. The Bill broadens out and expands the scope of what we understand by incitement to hatred but then provides these really broad defences. This means I cannot imagine a circumstance in which it would be at all possible to secure a conviction because somebody could simply say he or she was engaging in political discourse when he or she produced a pamphlet or made a comment on social media or in a lecture. People could argue they are a politician, or not even a politician but speaking in a political context, or that the speech in question was political speech and, therefore, they have an absolute exemption and can incite hatred all they want. We need to look back at the 1989 Act. I acknowledge it has flaws but maybe just a tweaking of the 1989 Act or a reworking of elements of it is what is required rather than the introduction of this, as I said, inherently inconsistent provision in head 3.

Dr. Amanda Haynes

I fully support everything Dr. Schweppe says. As she said, it is incredibly ambiguous what political discourse and what academic discourse might entail. An awful lot of research, not just internationally but also in a domestic context, provides evidence that incitement occurs, particularly in the political sphere. Irish research demonstrates precisely what Mr. Collins was saying about anti-Traveller discourse in the political sphere in Ireland. Internationally, transphobic discourse often happens in the academic sphere, which can be used as a platform for transphobic discourse. I agree on both counts.

Deputy Patrick Costello

Dr. Taylor has examined research on the UK legislation. His views on those broad defences would be valuable.

Dr. Seamus Taylor

I ask Deputy Costello to repeat his question.

Deputy Patrick Costello

The question relates to the defences available in relation to incitement to hatred.

Chairman

I ask Dr. Taylor to give a brief answer.

Dr. Seamus Taylor

I overwhelmingly agree with the points made by Dr. Schweppe and Dr. Haynes on this issue. It might seem as if there is a distance between us on various aspects of the general scheme of the Bill, but on this point I believe Dr. Schweppe articulated it very well. There could be an incitement to hatred and hate crime Bill or they could be separated out, as Dr. Schweppe alluded to, and the previous legislation could be tweaked. At the moment, Part 3 is unduly complicated because it is all rolled in together.

Deputy Pa Daly

I thank the witnesses for their testimony, in particular, Dr. Haynes and Dr. Schweppe who clarified one or two of the questions I was going to ask. I had a difficulty recently with the lack of statistical analysis on sexual offences complaints. Dr. Taylor went into great detail about surveys and statistics on the percentage of criminal complaints where there was evidence of racial bias or hatred. Are there any such statistics based on complaints in Ireland? Mr. Collins might be able to outline whether there are statistical data about complaints to GSOC or criminal complaints made by members of the Traveller community which had a racial element and did not proceed to prosecution or conviction perhaps because of inherent bias in the system. Are any such data available? Has Mr. Collins come across, for example, any cases involving assault, the use of threatening, abusive or insulting words or public order crimes where hate crime had been identified as an aggravating factor in sentencing? Is that information available? That is my only question.

The UK is a much more diverse society and the British seem to be way ahead of us in analysing complaints and prosecutions by age, gender, etc. Is there any such information available either from the Central Statistics Office or the Garda on these types of complaints and offences?

Chairman

To whom are the questions directed?

Deputy Pa Daly

Is Mr. Collins still with us?

Ms Jenny Liston

I can take the questions.

Mr. Martin Collins

I am here.

Chairman

Ms Liston and Mr. Collins can both respond, if they wish.

Ms Jenny Liston

Mr. Collins should feel free to come in. I am not aware of any official data from Ireland. Mr. Collins spoke about the evidence we have of houses that have been burned or vandalised when Travellers or members of the Roma community were about to move into an area. There have been no convictions in any of the cases he named.

The EU Fundamental Rights Agency, FRA, in 2020 did a survey looking at hate-motivated harassment in Europe. Irish Travellers had the third highest rate out of all the countries surveyed at 52%. We also saw in the FRA survey, as well as in some UK research, that the reality is that hate crimes against Travellers and Roma are rarely reported. That is down to distrust of authorities and the response to such reports. In the UK they found that even when they did report these crimes, there was a very low level of response to the crimes due to institutional racism. We touched on it a little bit in our opening statement but the legislation alone will not be enough to respond to hate speech and hate crime against Travellers and Roma but also against other protected categories and that we need special measures to be introduced in conjunction with the legislation to make sure that we address the wider issues in society around racism, prejudice and looking at what kind of mechanisms are required in our institutions to make sure that the legislation is capable of being implemented as well. Perhaps Mr. Collins might want to add something.

Mr. Martin Collins

I will, if it is okay with the Chair. All that is totally accurate. We know anecdotally that the level of hate speech and rhetoric and hate crime directed at Travellers and Roma is significant. There is also some evidence in the Irish Network Against Racism, INAR, study of hate-motivated attacks. It is significant but as Ms Liston has said, it is also hugely under-reported for reasons of lack of trust and lack of confidence that it will be taken seriously or investigated and dealt with effectively and so on. We need to develop mechanisms whereby Travellers and Roma can feel confident in reporting such incidents and where such incidents will be fully and effectively investigated. I deliberately stated at the very beginning that this Bill, which will become legislation after it goes through the various Stages, needs to be victim-centred and it needs to give an effective legal remedy to those who experience hate speech and hate crime, because the Prohibition of Incitement to Hatred Act did not do that.

It is correct to state that it is so difficult to prove intent. I am aware of a court case in Kerry a couple of years ago where a man was brought to court. He admitted that he posted a message in Facebook that baby knackers should be used as bait for sharks. He was identified and brought to court and he admitted posting it, but the judge dismissed the case because intent to incite hatred could not be established. I am not an academic or a human rights lawyer but I imagine that if the demonstration test was applied in that instance, a conviction would be secured. I may be wrong in that but it is a layperson’s opinion. The motivation test is important but it is essential that the demonstration test be included in the Bill when it is finalised.

People frequently and unnecessarily conflate two issues. This is not about curbing freedom of expression. We all know that freedom of expression and free speech also carry with them certain responsibilities and obligations. As we all know, free speech does not entitle anyone to incite hatred or violence towards marginalised or disadvantaged communities. As it has happened in other jurisdictions, it is not beyond the ingenuity of our lawmakers and drafters to develop a piece of law that protects the right to free speech, which is essential in any democratic society, but also protects vulnerable groups from hate speech and hate crime. It is essential that the Bill is victim-centred but I also acknowledge the rights of defendants. A balance must be struck when the legislation is finally realised.

Chairman

I thank Mr. Collins.

Senator Barry Ward

I am sorry for arriving late and if I repeat anything, I apologise. I have heard much of what has been said and it answered many of the questions I had.

I will address four points. Specifically, do any of the witnesses have a difficulty with the evidential threshold, as laid out in the heads of the Bill? I will focus specifically on the concept of somebody being motivated by prejudice and the definition of protected characteristics. Is it too loose? Does it allow too much room for manoeuvre in terms of what constitutes something that is motivated by prejudice, which I do not think is defined in the Bill? I know that the protected characteristics are. Does anybody have any difficulty with the evidential bar that would be in place to prosecute an offence under the Bill?

Dr. Seamus Taylor

If it is okay, I will respond to Senator Ward. I am sorry, perhaps Dr. Schweppe wants to respond.

Dr. Jennifer Schweppe

Yes, we had a short discussion about this previously. I know from practice that Senator Ward might be more familiar with how the term would be interpreted. It is interesting that he raised the question of “protected characteristics”. Professor Haynes and I are reasonably happy with the approach that is taken. We think that having a stated framework for how it was determined which characteristics were included in the legislation and which were not would be helpful. Cognisant of the concerns that Dr. Taylor has expressed with respect to disability hate crime – we know that even with the demonstration test in England and Wales, it is extremely difficult to get a conviction for a disability hate crime - we have proposed the use of the term "contempt" in the definition of hate. As Senator Ward says, the legislation uses just the word “prejudice”, whereas we would advocate for a broader definition there to include hostility bias, prejudice, bigotry or contempt. By using the "contempt" definition, which was recommended to us by Inclusion Ireland in our Out of the Shadows research in 2015 and then also recommended by Judge Desmond Marrinan in the Northern Ireland hate crime review committee report, we think that may go some way to address the concerns people have. While some of the manifestations of disablist hate crime are not driven by prejudice, we think that if we include "contempt" that may allow for a broader framework to address that particular manifestation of hate crime. I hope I have answered the Senator's question. He should let me know if I have not.

Senator Barry Ward

That is super. I thank Dr. Schweppe very much. Just knowing how this kind of legislation is being applied in the UK at the other end of the scale, in terms of the trivialisation of it, sections 29 to 32, inclusive, of the Crime and Disorder Act in the UK contain similar provisions. I am aware of instances where, for example, somebody is arrested for something like a public order offence akin to our section 6 or 6A in this context and calls the arresting officer a Welsh prat, as opposed to a prat. Having called the arresting officer a Welsh prat creates essentially what is referred to as a racially aggravated offence and therefore it enters into a much higher tariff. For example, if we look at head 6 of the proposed section 6A of the public order act, does anybody have concern that this legislation might be used? We understand the grave issues that it deals with but is there a danger that it is also used at the other end of the scale to make something which is quite trivial in my view more serious than it needs to be?

Dr. Jennifer Schweppe

We did talk about this previously. In England and Wales, they use what is called the demonstration model. Dr. Taylor will know whether that is the first or second limb of the test. The legislation provides that where an offence is motivated by hatred, hostility or where hatred or hostility is demonstrated during the course of the offence, it becomes a racially aggravated offence.

I am not aware of the example of the particular slur to which Senator Ward referred and I am not aware of that case. Certainly, there are those examples that Professor Haynes discussed where offenders will use a racist slur during the course of offence that had nothing to do with the protected characteristic identity of the individual. However, they use that slur as a tool during the course of the offence. I share the concerns of the Senator as to whether that low threshold would be appropriate. Thankfully, I think it is not present in the general scheme of the Bill.

Senator Barry Ward

Very briefly on head 9, I welcome the provision that makes denying genocide an offence. I ask this question on behalf of somebody who has been in contact with me. I wonder about the denial aspect and the free speech aspect that comes with it. Personally, I am satisfied, but is there a concern that this could be extended? The head specifically refers to the definition under Article 11. I am happy with that. The person who has contacted me is wondering if this should be extended, which is a better way to put it, to include misinformation about, for example, vaccinations. I know it is quite a different category. Is there room in this Bill maybe for another head - it would have to be another head anyway - to extend that to cover, for example, misinformation? We use vaccines as an example in the obvious current context. However, at a different time of the year there might be something else going on where misinformation could cause serious harm. Does anybody feel that there is room in this Bill to extend the offences or the context of them to include something like that?

Dr. Jennifer Schweppe

I cannot imagine a circumstance where the distribution of misinformation would be incitement to hatred. For the purposes of legislation, I do have something to say about head 9-----

Senator Barry Ward

I would like to hear what Dr. Schewppe has to say, if that is okay with the Chair. However, to clarify, this person was specifically taking as an example suspicion around vaccines, because it might be attributed to certain groups more than others, such as people who are not Irish and may not have the same trust of the systems here that Irish people do. This person was concerned that that might be used in that way. I do not think it fits into the Bill as currently drafted. That is the context in which the question was asked.

Dr. Jennifer Schweppe

If, in spreading that misinformation, the individual incited hatred against a group, then it probably would come under head 3. The person who expressed those opinions could also use the political context discourse defence. This would get us back to where we started from. It is important to determine what the speech is inciting and against what or whom. What group is the speech inciting hatred against? Is the speech inciting hatred against people who vaccinate or people who do not vaccinate, or is it inciting hatred against a group because they are from a particular community? Does the Senator see what I mean?

Senator Barry Ward

I do and I thank Dr. Schweppe for her response. I am sorry; that it was a garbled question.

Chairman

I think I know where the Senator is coming from because I had an approach along similar lines. I understand what that question was trying to get to. That concludes our primary round of questioning. I will now go to supplementary questions. Deputy Carroll MacNeill indicated that she had wanted to come in with supplementary questions. There is a shorter time for supplementary questions and the Deputy can come in now.

Deputy Jennifer Carroll MacNeill

I thank the Chair. Senator Ward’s point is good. There might be misinformation about a group of people from a particular country, or all people from a country. One can think of lots of political contexts where that could be used. It might be important. It sometimes happens in academic discourse, whether inadvertently or deliberately, as well as political and social discourse, so it could be important.

It is always interesting for the committee when there are different perspectives on the technicality of law. It is important and I know it is a difficult forum to try to go through some of that. It is interesting that everybody is coming from a point of trying to create the maximum protection for victims and the most enforceable, robust law. I know from my perspective as a spokesperson on equality, having worked with Migrants Rights Centre Ireland and Pavee Point over many years, and having seen the difficulties they face on behalf of their communities. That is where we are all coming from.

I wanted to give Professor Haynes and Dr. Schweppe an opportunity to talk about the research that they had done. I think they said that they found in their research that people would be uncomfortable living next door to somebody who had been convicted of a hate crime. I understand that from the perspective of the person who is convicted. However, it also speaks to how Irish people view the activity of hate-related speech and hate-related crime. Could they give the committee a bit more information on that?

Earlier, Dr. Taylor gave an example from England and Wales. It was helpful in setting the context. It is clearly a different scenario from the one that Senator Ward presented about being a "prat" or a "Welsh prat", as it were. The example Dr. Taylor gave was arguably much more serious. Perhaps Dr. Taylor would like to give the committee another example if there were time.

Dr. Amanda Haynes

I thank the Deputy. We conducted the survey with Professor Ross MacMillan through Amárach Research on a nationally representative survey of the general population. We asked a question of the respondents as to how comfortable they would be having somebody with a conviction for vandalising private property as their neighbour. We picked that specific offence to give people something that they could relate to. Some 14% were either comfortable or very comfortable. However, when the same question was asked specifying that the vandalism of private property had included a hate element or as having been a hate crime, only 8% were comfortable. That is approximately half the number of people being comfortable living beside somebody who has been convicted of a hate crime, compared to a non-aggravated version of the same offence. There is an additional penalty associated with the hate offender label on top of the criminal record. Similarly then, we asked people whether they would be comfortable living with somebody convicted of an offence as their neighbour and then whether they would be comfortable living beside somebody who has been convicted of a hate-aggravated version of the same offence. We saw that 33% were uncomfortable having someone who committed an ordinary crime as a neighbour, but this figure increased to 50% being uncomfortable when the person had committed a hate crime.

Deputy Jennifer Carroll MacNeill

That is interesting and speaks so much to Irish people's revulsion about that activity. I do not know if I am correct, but it seems to me from the presentation that it comes to it, possibly, from the convicted person’s perspective. What I am much more concerned about is the original victim, and the crime not happening in the first instance, in the context of trying to structure the legislation. Am I wrong in picking that up? I appreciate what Dr. Haynes is trying to say and we do not want to stigmatise people indefinitely about having a conviction of that nature. I understand that but does that not speak to how Irish people view hate-based activity in the first instance? Should we not take the strongest possible approach here to this legislation as a committee?

Dr. Amanda Haynes

The legislation suggests that Irish people take hate crime seriously. For example, 78% of the respondents to the survey were of the view that in the last five years, the level of hate crime in Ireland had increased. Of the remainder, only 4% felt that it had decreased and only 19% felt that it had remained unchanged. Certainly, there is an indication that people regard hate crime as being a problem in Irish society. People are supportive of approaches to dealing with it through the criminal justice system. However, we have to ask, when we are dealing with hate crime through the criminal justice system, what is the outcome we want to have. Is the outcome to deter hate crime? Is the outcome to ensure that re-offending does not occur? We might, for example, create a range of hate crime offences with a low threshold and that might create a large number of people who have been labelled as hate crime offenders.

That will conflate those who committed an offence because they acted out of prejudice against an individual with those who committed an offence for a reason which had nothing to do with prejudice they might hold or act against, but used, for example, a slur in the course of that offence. How will that impact on what we now see in terms of the public reproach for hate crime offences? Will the public buy in to hate crime legislation which treats those who have committed crimes out of prejudice in the same way as it does those who committed crimes, for example, for financial motivation and used a slur in the course of that offence? How will that affect the public buy-in to the impact we are trying to achieve?

The creation of hate crime offences will impact on public awareness of hate crime as an issue. It will send a clear message to the public that we as a society reject the targeting of individuals because of who they are or their identity. The question is whether that deterrent effect will be sustained if the legislation is so broad that we end up with large numbers of convictions, for example, for public order offences where a slur is used in the course of commissioning the offence or other offences which occur for reasons outside of the decision to act out of prejudice. I have concerns about-----

Chairman

I thank Dr. Haynes for that answer. Senator Ruane is the last speaker in our supplementary round.

Dr. Seamus Taylor

Deputy Carroll MacNeill asked me to cite a further example. Is there time for that?

Chairman

Unfortunately not, but there are a few minutes in which Senator Ruane will contribute. Even though the witnesses are attending remotely, as there are a number of people in the room, we have all the usual restrictions in terms of the length of the meeting, so I have to be tight on times. Senator Ruane will close the meeting on behalf of members but the witnesses may then contribute as required.

Senator Lynn Ruane

Our deliberations are on the legislation, but I wonder about the wider criminal justice system. How do we set that up in a way that makes this Bill do what is set out in its provisions? How will the Bill be reflected in our structures? Do the witnesses think there is a need to set up specialist hate crime units within An Garda Síochána? What type of training will be needed? Do we need performance indicators at that level of reporting? What about the handling of discriminatory incidents and the levels of satisfaction with the police? Institutions can have a huge amount of prejudice, racial bias and all of that. Reporting a racial incident to the police can be an issue. The Traveller community often struggles in its relationships with the police and how it is viewed by the police. Maybe Ms Liston and Mr. Collins can comment on what they feel the relationship will be like and what needs to happen so that minority groups like Travellers and Roma will engage. Do we need racial awareness training or specialised people to take complaints involving hate crime or incitement to hatred?

Ms Jenny Liston

I thank the Senator for the question. It is as she mapped it out. Pavee Point is in agreement that this legislation cannot exist in a silo. There need to be additional special measures in conjunction with it. For the reasons the Senator mentioned, we know this legislation will only be effective if people come forward to report and are supported through that process. Travellers and Roma often have huge fear and mistrust of authorities, from the Garda through to the Judiciary. How do we address that to make this legislation effective?

We will need measures like, as the Senator mentioned, training on hate crime and hate speech for all professionals involved. We should also look at what other training is needed in conjunction with that, such as anti-racism and anti-discrimination training for gardaí and other professionals involved. If we have a public awareness campaign about the introduction of this legislation, we should consider all the protected categories in its provisions and how we target the public campaign so people are aware. I work on the Roma programme. How do we get this information to people whose first language is not English or who have language and literacy issues? It is about thinking in a more holistic way.

The question was asked earlier about the data we have on the impacts of hate crime and hate speech in Ireland. We do not really have any. As we set this up, we need to think about how we form the baseline data around how this affects the protected categories. Once we have those data, how will we monitor what happens as the legislation is rolled out? What targets can be set? As Dr. Haynes said, I hope it is about reducing the incidences of hate crime, rather than just looking at what happens when somebody is convicted. How do we set targets to reduce these incidences?

I think Mr. Collins mentioned that we are looking at the national action plan against racism that is due to be published. How can we combine the two to make sure there are people with specific responsibility and accountability for how this is looked at and not forget about the institutional and structural racism and discrimination that impacts at every level on how most of these protected categories interact with the law and with most services. There is much work to be done to make sure it is effective.

Ms Fiona Hurley

Ms Liston put it brilliantly and I am not sure I can add much to what she said. Training is essential. There is a lack of faith in the Garda and an essential distrust among the migrant sector and the Traveller and Roma sector. I echo everything Ms Liston said.

Dr. Seamus Taylor

Senator Ruane's question is pertinent. We need a national equality strategy that encompasses awareness-raising, training, getting staffing structures in place to reflect the diversity of the communities served throughout the criminal justice system, monitoring and reporting. It needs to be a whole-of-society, whole-of-institution approach. The criminal justice system is the far end of public policy. It mops up the mess after a lot of other stages in earlier public policy have failed.

I encourage the legislators to be creative and bold, and not to run with an unduly cautious or incremental approach. It has taken 32 years to come back to review the incitement to hatred legislation that was introduced in 1989. I would not be confident, given the history of legislation in this and other areas, that we will have a review in five years. I think this is a once in a generation opportunity to do the right thing and do it in a balanced, appropriate, proportionate way for victims, wider society and defendants.

Mr. Martin Collins

Dr. Haynes made reference to research which found that a significant percentage of respondents were repulsed by having somebody living beside them who engaged in a hate-motivated attack. I do not want to set up any kind of hierarchy of oppression or exclusion, but I have no doubt that if that data was desegregated by ethnicity we would get a very different picture in respect of the Traveller community. I do not think we would get the same level of repulsion because other reports suggest that in the region of 90% of the population would not want a Traveller family living beside them, would not want a Traveller marrying into their family, etc. That is not in any way to set up a hierarchy of oppression, but rather to reflect the reality that my community experiences on the island of Ireland.

As already stated, I am not a an academic or human rights lawyer, but when I hear people speak, it is clear that there is a fundamental question emerging that needs to be answered and that competing rights need to be reconciled between victims of hate speech and crime and perpetrators. It is important to remind ourselves in this context of the purpose of the proposed legislation. First and foremost, the priority has to be to protect marginalised communities that are vulnerable to hate speech and crime. The rights of perpetrators have to be respected and taken into account, but, first and foremost, our primary concern and that of the proposed legislation is to protect vulnerable communities from hate speech and crime.

Chairman

I take the point made by Mr. Collins. I thank him for coming before the committee. He gets to have the last word. I thank all of the members who participated. Some of them had to go back to the Chamber for other engagements. I thank all of the witnesses for coming before the committee. We have had an exceptionally good engagement. I thank all of the organisations, witnesses and those who made written submissions. Not all were called to give oral testimony, but I thank everybody who participated in the process.

This concludes our formal engagement on this matter for the purposes of pre-legislative scrutiny. I propose that we publish all of the statements on the committee's website. This means that anybody who did not get a chance to complete an opening statement will have it published on the website, pending the agreement of the committee. I believe the remaining members consent to that. It is agreed. We will do that. It will provide people with another opportunity to learn more about the process.

It remains for me to thank all of the witnesses for their engagement in these discussions. They were very illustrative and there is a lot of work to be done. It is a difficult matter a that will need careful scrutiny, not just following this session but right through the passage of the Bill, wherever it lands. I again thank everyone for this extremely important consideration.

We will adjourn until Wednesday, 24 November, when we will meet for a stakeholder engagement on the topic of minorities engaging with the justice system. Perhaps that may be of interest to some of the witnesses who attended this meeting. They are very welcome to tune in next week if they wish to follow that debate.

The joint committee adjourned at 7.25 p.m. until 5.30 p.m. on Wednesday, 24 November