Clare Daly (Dublin North, United Left) | Oireachtas source

The amendments are critically important and get to the heart of many civil liberties issues. They are being discussed in the context of our supposed desire to combat terrorism. Yet, as Deputy Wallace said, terrorism is something we facilitate on a daily basis by being complicit in the efforts of the US war machine, which has been the key reason for which terrorism has exploded and the Middle East has been destabilised in the manner in which it has been. Since 2001, the so called threat of Islamic terrorism has been exploited by political establishments to curtail freedoms, abuse human rights, expand the scope of state security, restrict freedom of movement and militarise everyday life. As a consequence, the security and protection industries have become fat from selling their protection products while the world is much less safe than before.

The legislation is unnecessary and is a disproportionate response to an over-hyped threat whose potential to curtail freedom of expression is very worrying and unnecessary. The group of amendments is structured such that if one were not accepted, another would have been. The amendments have two main threads, namely to remove all reference to public provocation and to change the wording of the definition of public provocation in order to remove the existing reference to "encouraging, directly or indirectly, the commission of a terrorist activity" and to replace it with "directly inciting". This is not an abstract or academic question but is critically important. The terminology we propose to put in is much more in kilter with international best practice.

It is what practically every EU member state except the United Kingdom is doing. This is a necessary amendment because the wording of the Bill, as it stands, is far too vague. There are direct and worrying implications for freedom of speech, given that under the Bill, as it stands, a public statement to the effect that Palestinians, Iraqis or Afghanis have the right to resist persecution through armed struggle could be construed as encouraging, directly or indirectly, terrorist activity and thus prosecutable. That is completely disproportionate. Advocates of direct action against corporations, government policies or intergovernmental organisations such as the European Union could also fall foul of public provocation offences because the definition of "terrorist" keeps changing.

The Minister for Justice and Equality attempted to assure us that the definition of public provocation would not criminalise acts of civil disobedience by referring to section 6(5) of the Criminal Justice (Terrorist Offences) Act 2005, which provides that the engagement in protest, advocacy, dissent, strikes, lockouts or other industrial action is not of itself a sufficient basis for inferring a person is carrying out an act with the intention of carrying out a terrorist activity. The problem is that the section only provides that protests are not sufficient of themselves to be construed as being carried out with the intention of, for example, seriously intimidating a population, unduly compelling a government or seriously destabilising or destroying a fundamental political institution. It does not bracket protests in and of themselves as a form of protected action. Such acts could be judged to have been carried out with one of the aforementioned intentions and thus prosecuted as terrorist offences. The wording of the Bill is vague to the point of being dangerous. One of the examples given in the Schedules is that endangering traffic could constitute a terrorist offence rather than a criminal offence. Such endangerment of traffic needs only to be committed with a view to unduly compelling a government or organisation to perform or abstain from performing an act. What is to say a protester who sits in front of a car in Tallaght is not committing an act that may be construed in this way? If he or she is trying to get a government to change something, he or she could be prosecuted for a terrorist offence. It is all very well for the Minister to claim that would never happen, but such incidents have occurred before.

The Minister must have a press engagement elsewhere, but these are important issues with implications for freedom of speech that should be of huge concern to citizens. These freedoms were hard fought for and they are now being given away without the batting of an eyelid. Legislation of this nature will have a chilling effect on freedom of expression if not challenged. I recognise the protections that have been provided for under the framework decision and in the Convention on the Prevention of Torture with regard to freedom of expression, but prosecutions have been pursued under criminal incitement laws, despite the existence of these protections. In Austria a Danish cartoonist was arrested and his material seized because he had put up posters which criticised the Russian President, Vladimir Putin, on the death of a Russian journalist and contained the words "shoot" and "Putin". In Azerbaijan an individual was convicted of inciting terrorism and sentenced to eight and a half years in gaol for writing an article opposing that country's support of US policies on Iran. It is not good enough to simply say these things do not happen. When an attempt was made to introduce provisions of this nature in Canada, there was a major outcry because they were viewed with horror by legal scholars and free speech advocates. Is this measure worth it in terms of what we will get out of it? International human rights law requires any interference with a human right to be necessary and proportionate. Interfering with freedom of expression will only be deemed to be necessary if it meets a pressing social need. Where is the pressing social need to introduce this measure?

Amendment No. 4 is particularly important in this regard and, to use a favourite Labour Party expression, ieminently doable. Most other European states do not provide for an offence of indirect provocation. Ireland is under no obligation to do this and, even if we were so obliged, plenty of our international obligations have not been implemented in national law. Similar laws in other European member states do not use the word "encourage" because it is too vague; instead they use the precise term, "incite" which is also the term used in the framework directive that we are being asked to transpose into our law. This is a critical point. In Bulgaria the offence is openly inciting the perpetration of a crime by preaching before many people or distributing printed works. It is not limited to terrorist offences but refers to crimes in general. The term "encourage" is specifically excluded. In Germany only written materials that could serve as an instruction for the commission of a terrorist offence are covered. In France which is known for its freedom of the press public messages inciting crimes are an offence. However, this provision explicitly covers only direct provocation and provocation is only an offence if the incitement is acted on. Under the Bill, one could be prosecuted for encouraging somebody to do something that he or she did not ultimately do. That is the level of vagueness we are providing for in law. Italy and Hungary similarly restrict offences to incitement rather than encouragement. Even countries which include encouragement as an offence are much more careful in their definitions because of human rights concerns. It is telling that the only country with laws as vague and loose as ours and which provides a similarly flabby definition of public provocation is the United Kingdom. This provision appears to have been transposed from the UK Terrorism Act 2006 which is the only law in Europe to introduce an offence of encouraging terrorism, including the publication of statements that are likely to be understood as direct or indirect encouragement or other inducements for the commission, preparation or instigation of acts of terrorism. This provision is out of kilter with what is in place in the rest of Europe and has been the subject of complaints by human rights bodies not only because it uses the word "encourage" rather than "incite" but also because it does not provide for an imminent threat or danger. This is a poor law.

Ironically, the European Parliament had the same concerns because in September 2008 it voted to amend the definition of public provocation in the framework decision such that it read:

Public incitement to commit a terrorist offence means the distribution or otherwise making available of a message to the public clearly and intentionally advocating the commission of one of the offences listed, where such conduct manifestly causes a danger that one or more such offences may be committed.

That is not what we are doing; we are going way beyond it. Some elements of the amendment were dropped in the end, but the wording, as it now stands, is "public provocation to commit a terrorist offence". It repeats the words "incite" and "causes a danger" that an offence may be committed. It is important that we take these points on board. There is a lot of evidence internationally on the issue of the restriction of human rights. There are a lot of warnings about the need not to enshrine in law loose, flabby and broad definitions. It is not good policy and leaves it open to interpretation. The International Commission of Jurists was asked by the Council of Europe to review the framework we are putting into law and it repeatedly warned that in enshrining in legislation vague wording such as "encouragement" or "glorification" one would run up against a host of human rights issues. It suggested the word "incite" be used. It is important that we look this suggestion. The Berlin Declaration stated we should steer clear of this type of thing, which is why we are tabling this amendment. Creating an offence of indirect encouragement of a terrorist activity, without explicitly mentioning the need for a direct and immediate connection between speech and the act that follows, is really dangerous. It put us out of kilter with everybody else. Apart from that specific point, the general implications for free speech are quite serious because, undoubtedly, the measure will succeed in having a chilling effect and result in self-censorship. It will be counterproductive in alienating communities which will perceive that the legislation is against them. We are all talking about inclusion and equality, but this gives the wrong signal. Therefore, we have to be much more specific.

Sadly, the reality is that we are living in a much more dangerous world than in 2001. Its root cause was the illegal invasion of Iraq and the subsequent destabilisation of the Middle East. Unless we discuss and tackle the conditions that lead people to engage in terrorist acts out of utter desperation at the devastation visited on their country, we will have this legislation standing decades of battles for civil liberties on their head, yet the world will be a much less safe place than it is now.

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