We are considering a motion on a proposal for a Council framework decision on combating certain forms and expressions of racism and xenophobia by means of criminal law. I welcome the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Seán Power, and his officials, who are attending to assist our consideration of this motion. Before I ask the Minister of State to begin, I advise members that we will receive a short presentation followed by a question and answer session.
Council Framework Decision: Motion.
I thank members of the joint committee for allowing me to address this EU proposal for the adoption of a Council framework decision on combating certain forms and expressions of racism and xenophobia by means of criminal law. The proposal is before the committee on foot of motions and in line with established practice and the advice of the Office of the Attorney General in regard to seeking the prior approval of the Houses of the Oireachtas before adopting such framework decisions.
The motion states:
That Dáil Éireann approves the exercise by the State of the option or discretion provided by Article 1.11 of the Treaty of Amsterdam to take part in the adoption of the following proposed measure:
a proposal for a Council Framework Decision on combating certain forms and expressions of racism and xenophobia by means of the criminal law
a copy of which proposed measure was laid before Dáil Éireann on 7 January 2008.
A similar motion is proposed in respect of Seanad Éireann.
I will now turn to the origins of this measure. A proposal for a Council framework decision on combating racism and xenophobia was presented by the Commission in November 2001. The framework decision was intended to replace the 1996 joint action concerning action to combat racism and xenophobia. A report on the implementation of the joint action produced in 1998 concluded that member states had to a significant degree implemented its provisions. Information provided by the member states after the evaluation report showed there was scope for further improvement of criminal law provisions to combat racism and xenophobia. The aim of the framework decision is to combat serious forms of racist and xenophobic behaviour by the creation of offences committed on the grounds of race, colour, religion, descent or national or ethnic origin and carried out in a manner that is threatening, abusive, insulting or likely to disturb public order.
From the outset, Ireland took a positive approach to the negotiations on the proposal. The primary Irish objective in the negotiations was to ensure that our constitutional guarantee of freedom of expression was not compromised. The proposal was discussed at several levels between 2001 and 2003 but no consensus was reached. In 2003, the Greek Presidency parked the proposal in the absence of any agreement and it was not pursued until negotiations were reopened by the Luxembourg Presidency following publicity surrounding the wearing of a Nazi fancy dress costume.
At this point EU enlargement had occurred and many of the new member states raised issues which had not previously been discussed at any length. The Luxembourg Presidency sought to introduce various compromises but no consensus was reached. In 2007 the German Presidency indicated agreement on the framework decision was a priority and following intensive negotiations achieved a consensus. Political agreement was reached at JHA Council and the instrument was forwarded to the European Parliament for re-consultation. Ireland now wishes to remove its parliamentary scrutiny reservation and proceed to formally adopt the instrument.
Article 1 of the instrument sets out the offences concerning racism and xenophobia and the conduct to be criminalised by member states. It provides that member states take the measures necessary to ensure that the following intentional conduct is punishable: publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin; and the commission of such an act by public dissemination or distribution of tracts, pictures or other material. It also seeks to punish behaviour such as publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity, war crimes and the Holocaust. The option provided in this Article that the conduct to be punished must be either carried out in a manner likely to disturb public order or be threatening, abusive or insulting is in accordance with Irish law as expressed at section 2 of the Prohibition of Incitement Hatred Act 1989. Article 2 provides that instigation, aiding and abetting of the conduct in Article 1 is punishable.
Article 3 sets out the sanctions. The conduct referred to in Articles 1 and 2 must be punishable by criminal sanctions. Penalties of a maximum of between one and three years imprisonment must be provided. Section 6 of the 1989 Act provides for a maximum penalty of two years imprisonment on conviction.
Excluding the offences contained in Articles 1 and 2, Article 4 requires member states to take the necessary measures to ensure that racist and xenophobic motivation is considered as an aggravating factor or that such motivation may be taken into consideration by the courts in the determination of the penalties.
Articles 5 and 6 relate to liability of and sanctions for legal persons. Article 7 recognises the fundamental rights and legal principles in Article 6 of the treaty establishing the European Union. It also recognises the rights of member states not to bring measures in contradiction to fundamental principles relating to freedom of association and freedom of expression.
Articles 8 to 13 are standard provisions relating to initiation of prosecutions, jurisdiction, implementation, territorial application and entry into force and are similar to provisions contained in most international instruments.
The implications of the adoption of this framework decision for Ireland will be considered in the context of the ongoing review in the Department of Justice, Equality and Law Reform of the Prohibition of Incitement to Hatred Act. The examination of the legislation is taking place against the background of domestic and international developments. In the context of the review of the legislation, the Department is monitoring the number of racist incidents that end up in the courts, the legislation under which persons are being charged and the outcome of proceedings. A thorough appreciation of this is essential in deciding what, if any, criminal legislation could offer further protection to persons who are the victims of race crimes. As part of the implementation strategy for the Government's national action plan against racism, the Department is funding research at the University of Limerick school of law on the adequacy and effectiveness of Ireland's existing legislation relating to offences motivated by racism including that it is adequate in scope and provides for effective, proportionate and dissuasive sanctions. That assessment and research is due to be published shortly.
I am grateful to the members of the committee for the time devoted to consideration of the matter.
I thank the Minister of State and his officials for appearing before the committee. I also thank the Minister of State for his presentation.
The background to this decision was the previous joint action plan produced in 1998, which plan has been implemented. Are there any outstanding measures in that plan that have yet to be implemented by the Irish authorities?
In the context of today's discussion, the Department is reviewing the Prohibition of Incitement to Hatred Act. When does the Minister expect that review to be completed and will it require amending legislation? Will he indicate a timetable? How long will it take for what is proposed to be enacted in legislation? While the main thrust of the Council framework decision is already included in the Prohibition of the Incitement to Hatred Act, it will require an amendment to enact what is being proposed in this agreement.
Will the Minister explain what is meant by the removal of the parliamentary scrutiny reservation? What procedure is involved in this? Will the Minister elaborate on the issue?
I propose to take a series of questions and then ask the Minister to reply.
Article 7 recognises the right of member states not to take measures in contradiction of fundamental principles relating to freedom of association and expression. What difficulty did this present in getting to where we are? Are there specific issues? For example, was the Salman Rushdie affair part of these concerns? What was the background to the development of Article 7?
Deputy Naughten asked my other question on the necessity of the removal of parliamentary scrutiny. The Minister said enlargement raised issues that had not been previously discussed at any length. Will he briefly indicate what those issues are? In general I have no problem with anything included in this instance.
I welcome the Minister of State and thank him for presenting this report on the Council framework decision. He said the aim of the framework decision was to combat serious forms of racist and xenophobic behaviour by the creation of offences committed on the grounds of race, colour, religion, descent or national or ethnic origin and carried out in a manner that was threatening, abusive, insulting or likely to disturb public order. He then said the primary objective in negotiations was to ensure our constitutional guarantee of freedom of expression was not compromised. Does that objective mean there is a little more tolerance for people to express views? This is a concern people have on the issue.
Article 1 deals with offences concerning racism and inciting violence. Does it cover people shouting racist abuse at ethnic minorities or our immigrant population? This is a reality in Dublin when people are out at night, coming from their places of employment or returning to their apartments, racist abuse is regularly hurled at them and nothing seems to be done. When one talks to people from ethnic minorities, one discovers many stay in at night and do not socialise because of fear. I feel strongly that not enough is being done on this issue.
Articles 5 and 6 relate to the liability of and sanctions for legal persons, while Article 7 deals with the fundamental rights and legal principles outlined in Article 6 of the treaty establishing the European Union. It recognises the rights of member states not to take measures in contradiction of fundamental principles related to freedom of association and expression. People have concerns about this. Does it mean we will turn a blind eye to allow freedom of expression for those involved in personal or public situations where racism is directly involved? Members of this committee and many of my colleagues from other parties come across this when we talk to immigrants in our clinics while working on their cases. Privately, not publicly, they tell us they put up with a lot of abuse. When he deals with these issues, will the Minister ensure the law is implemented and the people concerned are dealt with?
I welcome the Minister of State and his officials and thank him for presenting the motion. I presume its purpose is to give the force of law to this instrument to ensure it can become operational across the European Union, and unless we pass it, with the other 26 member states, it will not have the force of law. I further presume that once passed by us it will be available to the courts in adjudication on discrimination and incitement to hatred issues that may come before them.
Article 1 seeks to punish behaviour such as publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity, war crimes and the Holocaust. I hope as a result it will assist the European Union in its handling of affairs in the Middle East. I hope condemnation of the Holocaust will assist us in our dealings with the Israelis, that they may be more forthcoming in their response to the numerous requests and efforts made by the Union to assist.
I am not sure whether this requires primary legislation, a statutory instrument or the amendment of an existing Act — perhaps the Minister might confirm this — but I have a slight worry that once this measure is passed into law non-European nationals resident on the island of Ireland may be able to use it against the State in respect of decisions made by agents, officers, Departments or agencies of the State or public servants acting on behalf of the State against non-European nationals pertaining to what may be perceived as abuses of our domestic laws. I ask that the Department monitor the situation pertaining to non-European nationals in so far as it can be done and that it collate as much information as possible to ensure we will be not victims of the generosity of the nation in embracing this important European measure.
Article 1 sets out the offences concerning racism and xenophobia and the conduct to be criminalised by member states. Following on from what Deputy Treacy said, does this mean that in addition to our adopting this framework decision, we will have to take measures in domestic law to amend, vary or bring in legislation to incorporate articles from the European Union to allow them to be used by the courts? Have we sufficient provisions in domestic law to cover this area? If not, will we bolster our domestic law?
We all come across such instances mentioned by Deputy McGrath. Apart from a dictionary definition of xenophobia, what are the measurement criteria? Are there any indications in Ireland at the moment that racism, xenophobia or any such matters are rampant? We have come a long way.
I lived in London for some time. I first arrived at 17 and my first job on a construction site was with a black man from Ghana. After a few months we became friendly. I was terrified of him because I had never been close to a black man before, coming from a peninsula in west Cork. He told me after three or four months when we met one night that he was also terrified of me because it was his first job in London and he did not know who I was. We struck up a good old friendship. The world has come a long way.
We should look forward. Half of my family lives in the United States, with some of my sisters having emigrated in the 1950s. If they had envisaged in the 1950s and early 1960s that there was every chance Barack Obama would be President, they would have been told they were out of their tree. There is every chance he may be President and I wish all the presidential candidates luck. The world has come a long way, although we still remember wars and the likes of nazcism.
I have a point on living in England in the 1970s, particularly around the time of the Birmingham bombings. I used to play a bit of hurling and football. The Irish got awful treatment at the time and 95% of them were innocent. We were castigated nonetheless.
Is current legislation, either passed by the Oireachtas or inherited by the State, sufficient to deal with the instrument of the framework now being proposed? I fully support the concept of this instrument and have no difficulties with it.
Going back to the basic question of what we are doing here, this framework decision is directly effective in Ireland and we are obliged to implement it. It is not an optional matter, if I understand the position correctly. Why do we have to approve it? What is the meaning of approving a framework decision when we have already signed up to it in Europe and are bound by it?
At the same time we are obliged to transpose it into Irish legislation. On the one hand we are approving something we are obliged to and on the other it is not quite clear as to whether the Minister of State is indicating our legislation is currently in compliance with this framework decision. It is not exactly clear what precisely we are being asked to do.
It is very easy to approve this matter in principle but it is a framework decision we are obliged to implement. Yet there is no suggestion if it is necessary to change our legislation. I find the approach curious so could the Minister of State clarify it?
I thank members for their questions and contributions. The aim of the framework decision is to combat the serious forms of racist and xenophobic behaviour by creation of offences committed on the grounds of race, colour, religion, descent or national or ethnic origin and carried out in a manner that is threatening, abusive, insulting or likely to disturb public order. We have reached agreement with our colleagues in the European Union on that.
Regarding the process, the Attorney General has advised us it is necessary to go through this procedure and the approval of the Oireachtas is required in this instance. Deputy Naughten mentioned the joint action in 1996 and we were given a clean bill of health on that. There is nothing further to be implemented in that regard.
With regard to Senator O'Donovan's points, we are quite happy the legislation in place currently is adequate. No change is required in that respect. Deputy Naughten mentioned a review, which was announced at a time when there had been no successful prosecutions under the 1989 Act. The position changed rapidly in that not only were there some prosecutions under the Act but also under the public order legislation and, in at least one case, the CIE by-laws. Examination of the race hatred laws in other countries indicates our legislation is very much in the mainstream of laws internationally that seek to curb hate speech.
The framework decision being discussed today confirms that belief and the work to date on the review, which is ongoing, did not uncover any significant weakness in the legislation. The research mentioned earlier, which is being undertaken in Limerick, is due for completion in the near future. Any recommendations in the research will be seriously considered.
Deputy Naughten also raised the matter of parliamentary scrutiny reservation, which is normally done when framework decisions are being discussed before becoming full decisions. We take part in the process at European level, discussing different aspects. At all times we are mindful that approval of the Oireachtas is required before they can be implemented. That is the reason we are here today.
Deputy O'Shea raised the matter of Mr. Rushdie, which is not really relevant to today's debate. Deputy Finian McGrath made a point on not compromising freedom of expression. In Article 1 it is made clear that any act to incite to hatred that is found to be threatening, insulting or abusive, is a crime. Freedom of expression is not an absolute right under the Constitution and is very much subject to matters of public order and morality. We place great importance on giving people an opportunity to express their opinions but that will not be changed by what we are implementing here. It is the provision of a protection on which there is widespread agreement.
A question was asked on the extent of racism in Ireland and the type of incidents which have taken place here. There have been a number of cases, with one example being three people separately convicted and fined in the District Court for using abusive language in railway stations to immigrant employees. They were charged under the CIE by-laws.
There is no indication racism is rampant but we have seen cases of it and certain people and organisations see it as an issue. I acknowledge the role played by sporting organisations in particular in trying to stamp out racism. The FAI, for example, is very much at the forefront in identifying it as an issue at games and has put much work into the issue. Whether it is on the increase is irrelevant, as one act of racism in the country is one too many. It cannot be tolerated and we must make every effort to stamp it out.
If there are no other questions I thank the Minister of State and his officials for attending.