Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I agree with one thing. We have to look at the language that is being used in our legislation. There is no point in trying to breathe into the wording of legislation things we know simply cannot apply. Deputies Kelly and Carthy referred to the ongoing prosecution in the UK of Mo Chara from Kneecap. As I said on Second Stage, the legislation in England and Wales is legislation - I have to be polite to another jurisdiction - that would never get through the Houses of the Oireachtas. I remind people of the provision under which Mo Chara is being prosecuted. It is section 13 of the Terrorism Act 2000. It reads:

A person in a public place commits an offence if he— [...]

(b) wears, carries or displays an article, in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation.

That is an extraordinarily wide piece of legislation that has resulted in him being prosecuted because he had a flag of a proscribed organisation on the stage behind him. That gave rise to a reasonable suspicion that he was not a member but a supporter of the proscribed organisation. That legislation is extraordinarily wide and is not similar to what is being provided for in this provision.

The most important thing about the proposed new section 4A is that it does not get off the ground unless one has an intention to incite people to commit terrorist activity. Deputy Ward asked what would happen if I went to a Seán Lemass or Liam Lynch commemoration or if he wanted to go to a Bobby Sands commemoration or any commemoration. This is not within the parameters of the criminal offence because there is no intention on the Deputy's part to incite people to commit terrorist activity. If he goes to a commemoration for a member of the Provisional IRA, he is not doing anything wrong but if he is there and is trying to incite others to commit a terrorist offence, which is a serious Scheduled offence, then it is triggered in terms of putting out into the public domain a message, whether it be by glorifying terrorist activity or inciting others. The purpose is that he would be trying to get someone else to commit a criminal offence, which is a terrorist act. Deputy Ward spoke about singing songs on the last occasion we spoke about it. This is not interference in freedom of expression. People can continue to sing songs and glorify activity that some people may find reprehensible.

The only time the trigger is turned on for this behaviour is if it is being done with the intention of inciting people to commit a terrorist act. If we look at Deputy Kelly's amendment, he recognises that the provision is not triggered unless there is an intention to incite the commission of a terrorist activity. He is concerned that the level of evidence required should be at a sufficiently high level. He suggests there should be "material evidence" establishing that the person is trying to incite others to commit terrorist activity. I do not think that amendment is necessary. The provision as drafted states, "He or she, with the intention of inciting persons to commit a terrorist activity". When a court comes to interpret whether an accused person intended to incite people to commit terrorist activity, there will have to be material evidence - that is what the Deputy calls it, but evidence must be material - establishing that he or she was trying to incite others to commit terrorist activities.

We are replacing the existing provision in section 4A, which has been in place since the enactment Criminal Justice (Terrorist Offences) Act 2005. The law at present states:

For the purposes of this Part, 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.

Anyone here can see that is an awkwardly worded provision. Inherent within it is that there must be the incitement of a person to commit a terrorist offence. The provision in this Bill offers more clarity.

As I mentioned, I note that the 2005 Act already provides for the offence of public provocation to commit a terrorist offence. People commit such an offence when they share public messages aimed at provoking the commission of terrorist activity. I have proposed a new definition for this offence to provide that it can be committed by the distribution of messages that glorify terrorist activity, as required by the 2017 EU directive.

In response to Deputy Carthy, that 2017 EU directive was not, as he said, brought in by the Israeli lobby. It was brought in by European Union member states. Whether we like it or not, there is an issue in respect of trying to combat people who are trying to use violence to effect political change. Intent to provoke the commission of terrorist activity was already an integral part of the original offence that I read out. In this new definition I have retained the intent requirement, explicitly requiring the intention of inciting persons to commit terrorist activity. There also must be reasonable apprehension that the commission of a terrorist activity could result. Furthermore, terrorist activity only encompasses those activities which fall within the definition of "terrorist activity" in the 2005 Act. In that Act, terrorist activity is defined as an offence listed in Part 1 of Schedule 2 that is carried out with the intention of "seriously intimidating a population", "unduly compelling a government or an international organisation to perform or abstain from performing an act" or "seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a state or an international organisation". Therefore, sharing messages that glorify and provoke activity that does not fall within this definition would be outside the scope of this offence. People can continue to glorify and provoke certain activity but unless it is combined with the intention to get somebody to commit terrorist activity, they are immune from prosecution. There is a high standard of proof crafted into this provision to ensure that a person's fundamental rights, such as freedom of expression, are safeguarded and situations do not arise whereby lawful activities are considered as falling within the scope of these offences.

I know what is happening in other parts of the world. Deputies have talked about the UK. If they are going to start suggesting this is a Mo Chara clause, they have to look at the clause under which Kneecap is being prosecuted in the UK. Any fair, reasonable or honest assessment of section 13 of the 2000 Act in the UK will establish it is nothing like what is being proposed here or what has been on the Statute Book here since 2005. We need to be careful not to mislead people into thinking something is being put into law when it is not. For that reason, I am opposed to Deputy Kelly's amendment. As I said, the amendment recognises the fact that there has to be incitement to commit terrorist activity but it is unnecessary to include the words "material evidence". They are already implicit.