Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context

I am sure this will come as no surprise to the Minister but I wish to indicate we will be opposing this section because it is this section that makes this legislation not fit for purpose. The most significant problem with the legislation, as we articulated it during the debate on Second Stage, is the widening of the definition of the "provocation" of terrorism contained in section 3. As I said, we are opposing this section. We will support the Labour Party amendment because it brings a little bit more clarity, but this entire section is deeply problematic.

To be clear, nobody is suggesting there should not be a provision outlawing the provocation of terrorism. In fact, such provision is already in place and the removal of this section would simply bring about reversion to that provision in respect of provocation. The 2005 Act, as amended, describes it in this way:

public provocation to commit a terrorist offence means the intentional distribution, or otherwise making available, by whatever means of communication by a person of a message to the public, with the intent of encouraging, directly or indirectly, the commission by a person of a terrorist activity.

The Minister has not given any rationale for broadening this definition. In fact, in his contribution on Second Stage, he was at great pains to point out what this Bill will not do. He said it will not do any of the things anybody has expressed a concern about. The Minister went to great lengths to explain that the legislation will not do any of that. He will accept, however, that he has not actually given what the rationale is for this broadening in a way that has caused serious concern, especially in relation to the term "glorification" of terrorism, but also regarding the general vagueness and broadness of the language, which could be wide open to misuse. We have seen very similar language being used in other jurisdictions to suppress freedom of speech. I indicated on Second Stage that we would oppose what we have called the "Kneecap clause", especially in relation to the provocation of terrorism. We fear its inclusion could lead to charges against political activism and legitimate freedom of expression, similar to the manner in which Mo Chara from Kneecap is currently facing terrorism charges in Britain.

As I said, the Minister went to great lengths in saying it absolutely could not be the case. In response to a question I asked the Minister today, however, he indicated it is not for him to decide what a court may provide for or decide. The truth is that a court, a police service or other statutory bodies could make a decision in relation to actions very similar to what Kneecap engaged in. Whether we agree with them or not, the fact is what the Kneecap members were doing was political expression and artistic protest, which is something we must be at pains to protect, particularly in the modern era when those very things are under attack in so many places.

I reiterate that the provisions in this section are too broad and are wide open to abuse. Public provocation charges can be brought - and I have not heard the Minister dispute this - where no terrorist offence has ever been committed and the person against whom the charges have been brought could be subject to ten years' imprisonment. What is being indicated in this legislation, therefore, is that a person could be guilty of a terrorist offence in relation to provocation where they distribute or publish messages "that could reasonably be construed as inciting" terrorism or "that glorifies ... a terrorist activity", and that glorification includes "praise or celebration". We know, because we have seen it here, how provisions such as this can actually be used.

I mentioned how, during the 1980s, people might have celebrated Bobby Sands or Nelson Mandela and that could have fit the criteria of glorifying terrorism. The language in this is exactly the type of language that has been used by parties such as the DUP and others in trying to curtail or criminalise any celebration of republicans from any generation going back to Wolfe Tone, the Easter Rising or whatever the case may be.

We cannot discuss this section without recognising the backdrop against which this debate is taking place. What we have seen across Europe, Great Britain and the US is this type of legislation being used against legitimate political protests, particularly in respect of Palestine. We cannot just pretend that what is going on in the world is not going on and that this is just simply a benign section in a Bill that is just covering ordinary circumstances. This was the context in which the EU directive and other similar legislation was brought in. It was brought in with a hand from the Israeli lobby to try to criminalise and outlaw anyone who protested in support of Palestine.

This weekend, we heard that An Garda Síochána was investigating chants at a protest. That is without this legislation being in place. More worryingly, where this type of legislation is in place, we have seen Palestinian Action proscribed as a terrorist organisation, we have seen elderly peaceful protesters arrested and we have seen a Jewish protester in Germany arrested for holding a sign saying "Jews against genocide".

A clear rationale has not been forthcoming and I do not believe one is possible. The purpose of Committee Stage is to ask questions about what type of future event could happen if we include this type of broad provision in law. The Minister has gone to great lengths to tell us all the things this will not be used for but it would be helpful if he could give us an example of some action that is included in this Bill but was not covered by the particular definition used in the 2015 Act. That would be very useful because if one were to listen to the Minister's defence of this section, it would seem to be the most pointless section of any legislation ever, given that there is no logic to it other than us wanting to be in line with the EU directive. If there is a particular type of action that is not covered by the 2015 Act, it would be helpful to this committee if the Minister would spell that out. Otherwise, I would strongly argue that this section has to be opposed. Its provisions are essentially authoritarian. They are uncalled for and unnecessary. Worse than all that, they are wide open to abuse. If the Minister cannot see that, he should talk to some of the legal practitioners who have been contacting my office to express a lot of concern about what such a provision might mean.