Seanad Éireann díospóireacht -
Thursday, 10 Mar 2022

Vol. 283 No. 9

Proposal for a Council Decision on Hate Speech and Hate Crime: Motion

Senator Fiona O'Loughlin

I move:

That Seanad Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure:

Proposal for a Council Decision on adding hate speech and hate crime to the areas of crime laid down in Article 83(1) of the Treaty on the Functioning of the European Union,

a copy of which was laid before Seanad Éireann on 4th March, 2022.

Minister for Justice (Deputy Helen McEntee)

I thank the House for facilitating the taking of his motion today. On Tuesday, the Government approved my request to seek the approval of the Houses of the Oireachtas to opt in to this EU Commission proposal. The proposal seeks to extend the list of EU crimes under Article 83 of the Treaty on the Functioning of the European Union, TFEU, to include hate crime and hate speech by way of Council decision. We discussed and approved the proposal in the Dáil yesterday and I am delighted to have the opportunity to present this motion to the Seanad today. To reiterate the points I made yesterday in the Dáil, hate crime is corrosive of the social solidarity and mutual understanding we need between groups in this increasingly diverse island. The Government has no hesitation in commending the motion that we opt in.

Article 83(1) of the TFEU lays down an exhaustive list of areas of crime or EU crimes where the European Parliament and the Council may establish minimum rules concerning the definition of criminal offences and sanctions applicable in all EU member states. There are a number of areas of crime currently listed. Trafficking in human beings, illicit drug trafficking and organised crime are three such examples. Article 83 also provides that, based on developments in crime, the Council may adopt a decision identifying other areas of particularly serious crime that have a cross-border nature, resulting from the nature or impact of such offences, or from a special need to combat them on a common basis. That is what the Commission is seeking to do with this proposal. In order to develop a common approach to hate crime and hate speech at EU Level, adoption of a Council decision to extend the list would be a first step to creating the necessary legal basis.

At European level, unfortunately, hate speech and hate crime are widespread across the Union and have been increasing over recent years. In particular, the Covid-19 pandemic has heightened the feelings of insecurity, isolation and fear. This has created an atmosphere in which hate speech has flourished, while being also used to target already marginalised populations, also resulting in hate crimes. As Members know, Ireland does not currently have any specific legislation to deal with hate crime. The only legislation in Ireland that deals with hate-based offences is the Prohibition of Incitement to Hatred Act 1989.

The general scheme of the criminal justice (hate crime) Bill 2021 was published in April 2021.

This proposed new legislation will create specific, hate-aggravated forms of existing offences that can be investigated, prosecuted and recorded as hate crimes. The proposed Bill will also provide for new offences of incitement to hatred, which should prohibit deliberately or recklessly inciting hatred against a person or group of people due to their association with a protected characteristic or displaying or distributing material inciting hatred. This will also have relevance to online hate speech.

Following its publication, the general scheme was referred to the Joint Committee on Justice for pre-legislative scrutiny. This took place in November and the report is awaited. The general scheme has also been referred to the Office of Parliamentary Counsel for drafting. I intend to publish the new hate crime Bill in the summer, subject to the committee's report of its deliberations.

We have traditionally been very cautious about regulating hate speech. This is because any restrictions on speech are very serious. I am very committed to ensuring that the legislation we introduce domestically is completely in harmony with the very important right to freedom of expression, which we all have a right to enjoy. When we think of hate speech and our own freedoms, however, we should remember that there is nothing noble or free about hate speech; instead, there are people who have been the victims of a crime and an attempt to sow hatred in our society. The Office of the Attorney General has advised that opting in to the proposed decision does not create any constitutional or legal issues for the State.

Any directives proposed as a result of the expansion of Article 83 to include hate crime and hate speech will be carefully examined in detail. However, the State by opting in now will be part of those detailed discussions in Brussels and we will have an opportunity to consider whether we should be included in any such new proposed directive as Protocol 21 will apply also.

There are people in this country who live in fear. They are afraid to leave their houses, get public transport and live their lives. That might seem extreme or like I am exaggerating, but before we published the hate crime legislation we did extensive consultation and engaged with Departments, State agencies and An Garda Síochána, NGOs and community groups, along with asking individuals to come forward and tell their stories. There are people living in this country who are afraid to go about their daily lives and we need to respond to that not just as a national level but also through this legislation.

We have seen how this has taken a severe direction across the EU. More recently, a man was radicalised online, at home in his room on his computer, to the extent that he went out and beheaded a teacher because of hate language and speech and radicalisation that happened online. We need to be very quick and responsive in what we do here nationally and make sure that we work collectively together to combat hate speech which inevitably leads to these type of hate crimes.

I commend the motion to the House.

Senator Barry Ward

I welcome the Minister. I would like to start where she finished because what is really important about this debate that we recognise it is not academic. The reality is that there are people who suffer hugely from the behaviour of others in terms of hate speech and, ultimately, hate crime. I regret to say that I have been involved in a case in the criminal courts involving activities that undoubtedly constitute hate crime but that are not properly defined in our laws. I welcome the proposed legislation the Minister has said is coming. The Joint Committee on Justice examined the general scheme of the hate crime Bill. I also recognise that existing legislation regarding incitement to hatred is undoubtedly out of date and has been underused throughout its lifetime. It is appropriate that we recognise the seriousness of this issue, the effect it has on individuals and the fact it requires specific legislation to enunciate it.

In terms of the motion and what is happening in respect of Article 83(1), it is also worth noting that the existing crimes set out in Article 83(1), namely, terrorism, trafficking human beings, the sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. They are all serious matters.

It is, to my mind, appropriate that the matters we are talking about today, namely hate speech and hate crime, join that list because they have, as the Minister said, a corrosive effect on social understanding. That is at the core of this debate. I would like to think that in Ireland we have people who understand other nationalities and ethnicities and people who are different, and welcome them into their part of society. However, when we realise that is, we hope, the case for most people, it is not the case for all and we need to put in place very strong legislative instruments while being conscious of what the Irish Council for Civil Liberties has said to all Members. I note its comments. We need to put in place strong legislative measures that make sure that people who transgress the boundaries of what is acceptable face the rigours of the law and are held accountable before the courts as necessary.

Senator Mary Seery Kearney

I thank the Minister for the opportunity to address this motion. I want to begin by applauding all that she is doing. A panoply of legislation to deal with gender-based violence will in every way ensure a safer society because the fact is that she is absolutely right. It is almost incredible, unless one happens to be involved in or aware of a case and supporting a community, to realise that there are people who are afraid in their own homes and whose homes are consistently attacked because of their race or religion or because they are a member of a minority group

. It is important that we address hate crime. I welcome in advance the Bill that will come through later in the year. We need it at an EU level. I recognise the research from the European Commission which showed that 52% of young women and girls have experienced online violence, threats and sexual harassment, while people with disabilities are more at risk of being victims of violent crime, including hate crimes, than other persons. There are protected groups under our laws because they are targets and experience discrimination due to the fact they deal with particular biases and attitudes. To have a definition on an EU basis and a common approach across the European Union is incredibly valuable. It shows a desire and ethos in the EU to make sure that freedom of expression is balanced by the responsibilities that come with that.

People are entitled to hold their opinions, but they are not entitled to affect the quality of life of any other person. We need to ensure that, in terms of those who are vulnerable and susceptible to being influenced online or in groups, there are measures to arrest those who choose influence and target. Now more than ever we see how social media is used and deployed in a way that is propaganda based to undermine society and democracies. We can see that happening in real time at the moment in terms of false news. In the past 24 hours there has been an allegation of false news regarding a maternity hospital. All of these things can be targeted and deployed in a very sinister way. Having hate crime and hate speech defined across all European Union member states and sanctioned in the same way is absolutely correct, and I am very proud of the EU for moving to do that. I thank the Minister for all of her work on this.

Senator Sharon Keogan

I welcome the Minister. Everybody opposes hate crime and hate speech. The problem is that everyone thinks they know what hate speech is, such as a gang of football hooligans hurling racist abuse at individuals on a street or a boy or girl who is made to feel small and unwelcome because of his or her appearance. The thing about hate speech legislation is that it governs much more than these clear-cut cases.

What about statements of fact? If I said most shoplifters are women, I do not know if that is true. If it is true, would that be hate speech towards women? What if I replaced the word "women" with a different definable group of people? What if we changed the crime? Will I still be allowed to make that statement if it was true? What if I simply wanted to talk about my deeply held beliefs, which some people choose to be affronted by? It is not a hypothetical.

In Finland last month, a Member of Parliament was taken to court and faced up to two years in prison for the crime of ethnic agitation. Her crime was tweeting a picture of the Bible. Päivi Räsänen, the Member of Parliament in question, said she would never have believed that this could happen in Finland's democracy, with freedom of speech and freedom of religion in its constitution. Finnish prosecutors stated that the use of the word "sin" could be harmful and said that people are allowed in their minds to agree with the Bible, but cannot state that in public.

Is that how we want Ireland to be too? I am sure some people will say "Yes" to that question, those who would have our country be more like a woke theocracy which punishes citizens who dare to contradict the secular progressive dogma of the day, but my answer is a resounding "No." The free speech we are entitled to serves to better this country and its people as ideas can be freely debated and forged in the crucible of public opinion. If an idea is hateful or repugnant, our sensibilities will allow it to die and arguments against it will show it to be false. Rather than mandating consensus, let us keep speech free and have ideas live or die by their merit.

If we do not keep free speech in this country, we will be on a very slippery slope. We have all been victims of hate speech and hate crimes. Most of us politicians will have been victims. However, we must be able to hear what the opposition is saying and we must have a free mind. Unless we have that, I am afraid our society will be going down a very bad road.

Senator Robbie Gallagher

I propose to share my time with my colleague, Senator O'Loughlin. We will take two and a half minutes each. Cuirim fáilte ar ais go dtí an Teach seo roimh an Aire. We in Fianna Fáil fully support this motion. Along with others, we have consistently called for action to be taken in this area. I compliment my colleague, Senator O'Loughlin, who has been very proactive in this particular area and who has introduced legislation that would go a long way towards dealing with this particular problem. It is saddening and worrying that hate speech and hate crime are on the rise and getting nastier with each passing day. That is a very worrying and very sad development. Unfortunately, there is no provision to criminalise hate speech at an EU level. As I understand it, this motion is the first step along the road towards the introduction of legislation in this regard. Once this has passed through all the EU states, a number of states will then be able to bring in legislation that will go some way towards addressing this particular issue.

We will absolutely have to legislate in this particular area but I feel that national awareness campaigns not only in this country, but in countries across the EU, such as many have called for, may be necessary to educate people on this whole area. It is sad that we should have to do that but, unfortunately, it appears that we do. In this country, we have to start in our schools. We need to educate people. There is no doubt that there are many benefits to social media but there is also a sickening element. As has been outlined in contributions this afternoon, many people have been victims of that. That is clearly very sad and not good enough. I agree with those who are calling for a national awareness campaign to educate people as to the rights and wrongs of social media. I welcome this motion and look forward to the introduction of legislation to deal with this issue.

Senator Fiona O'Loughlin

Free speech is not free speech if there is a cost and a victim at the end of it. In saying that, I am responding to Senator Keogan's remarks. Hate crimes are message crimes. They are intended to target entire communities. The victims are targeted because of their identity. The impact goes beyond the individual. There is also an impact on communities and on society. We need to send a strong message that we will absolutely not tolerate hate crime or hate speech. My party certainly supports this motion. We appreciate the Minister bringing it before us as we appreciate that she has prioritised legislation on hate crime here within our own country. We have been consistent advocates in the area of hate crime. I have twice introduced legislation in this regard, once in the Dáil and once in the Seanad, over the past five years.

It is important to commend the President of the European Commission, Dr. von der Leyen, on her initiative with regard to extending the list of EU crimes to include hate speech and hate crime, which she outlined in her 2020 state of the Union speech. It has been awful to see the rise of hate speech and hate crime right across Europe. It is a particularly serious and worrying phenomenon, both offline and online. There is no doubt that we need common EU action to tackle this challenge.

Ireland is behind the curve in that we are one of the last countries in the western world to legislate in this area. There is no doubt that there is an urgent need for progressive and rigorous hate crime legislation in our system because, in its absence, we are leaving vulnerable groups, such as those from ethnic minorities, people with disabilities and members of the LGBT community, without proper protection. We acknowledge and welcome the work the Minister has been doing and the work of the Joint Committee on Justice in this area. The fact that we do not have the stringent hate crime legislation that is needed is not reflective of the reality of life in modern Ireland. The theme of this year's International Women's Day was breaking the bias and we are still within that week. If the harm of hate is to be acknowledged and countered, it falls to us as legislators to act to provide a legislative framework for the explicit naming of bias crime. We have to join with other nations in ensuring that the violence of hate experienced by vulnerable individuals and communities is met head-on.

The reasons people have been attacked on the grounds of their identity are diverse in nature but they share one commonality; the victims of hate crime are targeted because of their identity. We need to do absolutely everything we can to stop that because diversity in our country is a strength but, sadly, not everybody has welcomed that strength or the changes we have experienced. Some people see diversity as a threat to themselves and are willing to engage in violence to maintain exclusion. The Minister has provided an example but there are plenty around. I commend and support today's motion and the work the Minister is doing in this area.

Senator Niall Ó Donnghaile

Cuirim fáilte roimh an Aire. Ar dtús báire, at the beginning, I have to apologise. The Minister, Deputy Coveney, is before the Joint Committee on Foreign Affairs and Defence to discuss the situation in Ukraine and, once I deliver my brief remarks, I am going to attend that meeting, so I apologise for not being here to hear the Minister's response. I always find it really enlightening when people lay out potential scenarios in respect of the likes of this. They have the freedom to come in and talk about it. There is no suggestion that what is happening in Finland is going to happen here as a result of the motion and the legislation the Minister will subsequently introduce. Again, people have a right to protest and to free speech. As Senator O'Loughlin rightly said, it is when there is a victim or when someone is hurt or impacted as result of speech that it crosses a line.

The thinking behind this motion is to create a more inclusive and protective Europe. Its intention is to expand the list of EU crimes to include hate speech and hate crime. The list of EU crimes is already extensive. Colleagues have referred to these crimes. Passing this motion will add to that already comprehensive list. The extension of the list will cover all forms of hate crime and hate speech, whether based on race, religion, gender or sexuality. These are laudable objectives which Sinn Féin can support but it would be useful if the Minister were to outline what the Bill will look like and what the interaction between domestic and EU law will be with regard to eradicating hate crime. Support for this motion in the Seanad will pave the way for the European Council to take the initial steps required to establish the legal basis needed to create a legal framework to combat hate speech and hate crime across the EU. The setting of minimum standards with regard to crimes with cross-border implications makes sense as we live in a connected world. In addition to this State being seen as a tax haven and a carbon emissions haven for corporations, there is a risk that we might also be viewed as being weak on hate speech on social media.

The minimum standards the motion aims to set out should combat this. We also need to be mindful that introducing legislation of this nature must be accompanied by scrutiny that is properly used and directed. Equality and free speech must be advanced together. We have seen occasions when hate crime legislation was misused against the Travelling community and other migrant communities.

The gathering of data is another area where more work needs to be done. The work that has been carried out across the water in Britain is worth looking at.

There was some concern that supporting this proposal could have constitutional implications for the State. However, as I understand it, the Office of the Attorney General has advised that opting in to the proposed decision to extend the list of EU crimes to include hate speech and hate crime under Article 83 does not in itself create a constitutional or legal problem for the State. The motion is a welcome addition and I support it.

Senator Marie Sherlock

I welcome the Minister to the Chamber. The Labour Party welcomes the motion that the Government intends to work with EU institutions to define and combat hate crime and hate speech. It is important to acknowledge the work of Senator O'Loughlin and her colleagues in proposing a Bill in 2020. The Labour Party had similar measures in our 2020 manifesto and we are conscious it is a programme for Government commitment.

The Minister stated the criminal justice (hate crime) Bill is to be published by the summer. That is welcome but it is slightly alarming that it takes an EU-wide initiative by President von der Leyen to bring us up to speed in an area in which we have lagged behind for some time. The UN rapporteur on the elimination of discrimination has been sharply critical of Ireland's foot-dragging with regard to the absence of hate crime legislation. Following on from what Senator Ó Donnghaile said, we look forward to the detail and to the point when our legislation complements what is emerging from the European Union, as opposed to forming the basis for an impression that the only ideas are coming from the European Union at this time.

We understand that legislating for hate crime and hate speech is complex but the need to protect victims of these appalling crimes must override other concerns. We can express our concern about people being victimised because of the colour of their skin, their ethnic origin, their identity or any other factor. That is appalling but, unless we do something about it, we are not doing enough. I am struck that the gardaí are ahead of our legislation in that they have implemented their own working definition of "hate crime". In 2019, a staggering 250 crimes were deemed to be motivated by hate.

I pay tribute to the work of certain organisations which have campaigned for this for many years. The Irish Council of civil Liberties and the Irish Network Against Racism have been leading voices calling for Ireland to have hate crime and hate speech legislation. Academics in the University of Limerick produced the report A Life Free from Fear - Legislating for Hate Crime in Ireland, which has been important in educating us on what needs to be put in place.

We support the motion, look forward to the Bill this summer and would like to see the detail as soon as possible. For the victims the Minister spoke so eloquently about, we need to see this legislation in place as soon as possible.

Minister for Justice (Deputy Helen McEntee)

I thank Senators for the general support for the Bill, albeit some concerns have been raised. I reassure everybody in the House that in no way will the national legislation or the legislation we propose to opt into at a European level get in the way of everybody's right to free speech. It is vital that freedom of expression continues but where speech incites or encourages others to commit crimes against a person or group of people because of who they are, the colour of their skin, their gender, their sexual orientation, because they have a disability or otherwise, it crosses the line. We need a clear line. There should be an ability for people to say what they want and express themselves but where that crosses the line and other people are hurt, it cannot be tolerated.

I have no hesitation in commending the motion that we opt into this proposal to the House. As is the case with most of these motions, if we do not opt in within the first three months, we can do so at a later date but will not have the opportunity to engage in the various elements that will follow. It is important we are around the table and show that Ireland is fully behind the European approach, particularly that of our French colleagues who proposed this and want to see it passed during their term.

As we open our doors to those fleeing hate in their countries, we need to make sure that when they come here we are determined to show those who seek to promote hate that it will not be tolerated.

Some Senators have mentioned the fact that An Garda Síochána is improving its structures and systems as to how hate crime and hate speech is recorded at a national level. It has accepted that, regarding hate-based motivation for crime in previous annual reports, there is under-reporting. One thing we would like to see out of the national legislation is that more people come forward. It is about making sure we have laws we can implement. The law from 1989 is not really used because it cannot be implemented in the way we need. We want to ensure that people come forward because they have confidence that there will be prosecutions and that what happens to them will be taken seriously.

Times are changing and this legislation at a national and EU-level recognises that hate crimes, hate speech, racism, xenophobia and anti-Semitism know no boundaries. With the introduction of online platforms, the way we can communicate with each other is fantastic but it means this type of behaviour can spread more quickly and more people can be negatively impacted.

I thank Senators for their support and I look forward to engaging with them again when we bring forward national legislation and to having further discussions about what happens at a European level.

On the link between the two, this is an enabling measure, initially, at a European level. When we see the detail of what will be included at a future date, we will examine that in further detail. We want to make sure this lines up with what we are doing at a national level so we are in sync with our partners across the EU.

Question put and agreed to.

Acting Chairperson (Senator Tim Lombard)

When is it proposed to sit again?

Senator Robbie Gallagher

At 2.30 p.m. on Tuesday, 22 March.

Cuireadh an Seanad ar athló ar 1.48 p.m. go dtí 2.30 p.m., Dé Máirt, an 22 Márta 2022.

The Seanad adjourned at 1.48 p.m. until 2.30 p.m. on Tuesday, 22 March 2022.