Simon Harris (Wicklow, Fine Gael) | Oireachtas source

First, I will be continuing to examine this issue in advance of Report Stage. I note the Deputies' amendments. I believe they are trying to address a point that arose frequently during the course of the Second Stage debate.

Since Second Stage, I have been reflecting on the many calls to expend the definition of hatred in the legislation. I appreciate that some people believe that further clarity is needed on how hatred may be interpreted for the purposes of the Bill and I fully accept the sincerity of people bringing forward those arguments. However, it is fair to say, and we can even see it in this grouping, that the proposals tabled are varied and - going back to that initial point which will come up time and time again during this discussion today - in some cases could be extremely problematic from a prosecution perspective. I might outline some of my concerns in relation to that while committing to considering all these matters between now and Report Stage.

All of the amendments seek to delete the definition of "hatred" as it currently stands in section 2 of the Bill. The present wording reflects the strong view of the Attorney General that hatred should be given its ordinary meaning in the context of this Bill given that this is a concept understood by the courts - legally understood in our country. It is worth highlighting that other jurisdictions with similar hate speech and hate crime legislation have not defined hatred in their legislation, nor is hatred defined in the European Council framework decision on combating certain forms and expressions of racism and xenophobia which this Bill gives effect to.

Deputies Paul Murphy, Bríd Smith, Boyd Barrett and Gino Kenny, Deputy Pringle and Deputies Daly and Martin Kenny all propose replacement of the definition of hatred as currently drafted with wording from a definition provided by the Council of Europe Commission against Racism and Intolerance, ECRI. Including this definition would have the effect of making hate convictions very difficult to secure, which, I accept, is not any of the Deputies' intentions, because each and every constituent element of the definition would have to be proven beyond a reasonable doubt. That is the genuine legal view that we have been given. I believe that Deputies will appreciate the burden it would place on the prosecution to require that it prove that the state of mind of the perpetrator was characterised by intense and irrational emotions of opprobrium and enmity and detestation towards the target group. It is quite a number of tests that would each have to be proven in order to have a successful prosecution. That is the concern and perhaps, I would think, the unintended consequence of some of these amendments which is why it is right that these are teased through.

While a useful definition in policy dialogue and in anti-racism and anti-intolerance campaigns, the ECRI definition of hatred is not appropriate for primary legislation. No-one doubts that it is a useful and important definition in relation to our policy dialogue in relation to campaigns that we should run and support in relation to tackling racism and tolerance but the Director of Public Prosecutions, DPP, has expressed concerns that adopting such an approach would cause considerable challenges in prosecuting offences. The Deputies will understand why I believe we should take that very seriously.

Deputy Ó Ríordáin proposes that "hate" be defined as including hatred, bias, prejudice, contempt or hostility. I believe that the use of bias and prejudice here is inappropriate because it propose too low a threshold. Every single person has some forms of biases. Many of these, indeed, are unconscious. It is not the Government's intention in this legislation that a bias that an individual holds when committing an offence would be necessarily sufficient for it to be labelled as a hate crime. We are all - I think we are somewhat united in this - aware of the serious behaviour that we are trying to target where real hatred is in evidence.

Deputies Daly and Martin Kenny and Deputy Pringle propose insertion of two new definitions of "hate" and "incitement" in section 2. The definition of "hate" proposed would apply to the aggravated sentencing provision in Part 20 of the Bill and states that ""hate" includes bias, prejudice, contempt, hostility and bigotry". The concerns I just expressed in relation to the ECRI definition in terms of adding to the prosecutorial burden also apply here, as each of the proposed terms would have to be proven beyond a reasonable doubt.

By providing a definition for incitement as the Deputies propose, the application of this offence becomes limited to a very specific circumstance, as set out in the definition. I have been advised that incitement is commonly understood as a legal concept - indeed, it is in the 1989 Act - and to define it in a prescriptive way would significantly limit the application and reduce the scope of the offence.

I assure Deputies that my Department has conducted extensive research in the course of developing this Bill, including consultation with legal experts and with academics and a review of similar legislation internationally. My Department shares the Attorney General's view that hatred is a commonly understood concept in law and a careful balance must be struck between providing important guidance to the court while avoiding any possibility of fettering or hindering prosecution of what we all believe are serious and unacceptable crimes against largely minority and vulnerable groups or individuals.

I read out that long explanation for the benefit of sharing some of the information I have and some of the concerns of both the Attorney General and the DPP in relation to that issue around prosecution. While I cannot agree to the amendments as proposed by the Deputies, I assure the committee that I will continue to examine this issue in advance of Report Stage.