Jonathan O'Brien (Cork North Central, Sinn Fein) | Oireachtas source

In the spirit of providing constructive opposition, I will begin by welcoming the opportunity to debate the issue of hate crime legislation. I also welcome the initiative of Deputies O'Loughlin and Murphy O'Mahony in prioritising the introduction of a Bill to put hate crime legislation on Ireland's Statute Book. Over recent years, a number of non-governmental organisations and human rights groups have repeatedly called on the Government to legislate for specific hate crimes. In particular, they have called for the introduction of legislation to cover crimes against people from minority religious and racial groups. Unfortunately, this State is no stranger to hate crimes. Declan Flynn was murdered in Fairview in 1982 for being gay.

In 2002, a 29 year old Chinese student was beaten repeatedly with metal bars as his attackers shouted racial slurs. As recently as 2010, two Polish men were stabbed in the head with screwdrivers after being racially abused. There are many other such instances.

The aim of hate crime legislation is to provide for an enhanced sentence if merited if an attack has taken place because of a bias held by the attacker. It may be a bias on the grounds of race, sexual orientation, ethnicity, disability or religion. An attack carried out because of this bias, in my opinion, sends a message to minority groups that they are different, not wanted or not welcome. It is only fair, then, that these attacks should warrant extended criminal prosecutions, indictments and provisions, given the effect they have on an entire community. Sinn Féin, a party with a true republican ideology, has always and will always view all of Ireland's inhabitants as equal. As the justice and equality spokesperson on behalf of Sinn Féin, I have been disappointed at the lack of hate crime legislation to date, as has the Minister. I know that the Minister is preparing a Bill, a move we welcome. Sinn Féin understands that many minority groups in today's society believe they are completely marginalised and at risk of attack because of their skin colour, religion, sexuality, disability or ethnicity. However, this proposed legislation is no more than a proposal. It is an attempt, a poorly-constructed attempt at that.

Section 1 deals with the interpretation of the Bill. If the authors are tripping up at the first obstacle, then we have to wonder what hope there is for the rest of the Bill. I will outline the problems I have identified. These and other problems have been identified by NGOs as well. Even the Minister has outlined some of the difficulties in the proposed legislation.

Section 1 provides an interpretation of the term "disability". The Minister has expressed her view on this. It links back to the Disability Act 2005. It is important for people with disabilities that they are protected by such legislation and the inclusion of this measure is warmly welcomed. However, neither of the Fianna Fáil Deputies have made any attempt to describe ethnicities, origin or race to enable them to be covered in this Bill. I wondered whether I had misread the legislation when I discovered that in the interpretation of the Bill, there was a clear omission in respect of giving any description to these vital factors.

I am unsure how a judge or jury could make a ruling on whether a defendant is guilty of a prejudiced attack on the grounds of race or ethnicity if no guidelines whatsoever are included in respect of protected ethnicity or race in the Bill. Judges and juries already have a difficult job without having to become accomplished mind-readers in the middle of a trial. The Minister has pointed out the difficulties in the Bill in this regard. It is proposed that if there is a prejudice, it would have to be stated on the indictment and could not be formulated during the course of the trial. That is counter-productive.

I find it insulting to the many members of the Traveller community in Ireland that Fianna Fáil simply did not bother to take this opportunity to classify their group as a protected ethnic minority in Ireland. Pavee Point, various other groups and Sinn Féin have repeatedly called for this on behalf of the Irish Traveller community. These calls have been consistently ignored by Fianna Fáil and the Government. Then again, I suppose if the brother of the Fianna Fáil Party leader and his colleague objected to a vote in favour of classifying Travellers as a protected ethnic minority on Cork City Council, why would I expect Fianna Fáil to behave any differently at a national level?

Section 1 offers protection to members of the LGBT community, including those who are transgender. This is another point I welcome. After the support last year for the marriage rights referendum for the LGBT community, I imagine we can all agree that there is still a need to protect the community with hate crime legislation. However, I believe this Bill has fallen short in protecting a number of subgroups within the LGBTQ community. Specifically, there is no mention in this legislation of protection for people on the basis of their gender identity or gender expression. While there is always a need to include gender as a protected ground in any new law, this Bill excludes those who might be targeted on the basis of cisgender identity. I wish to bring to the attention of the Fianna Fáil Deputies present the repeated calls by the European Network Against Racism to withdraw the Bill in favour of examining the existing heads of a Bill from 2015. The heads in question were drafted by ENAR and more than 60 NGOs working in the area of hate crime. A detailed Bill was produced and ENAR has asked that it be considered by the Oireachtas. That Bill was drafted on the back of a report following the establishment of a working group. Unfortunately, that has not materialised.

Shane O'Curry, director of ENAR, has expressed concern on the question this week. He said this Bill is fundamentally flawed and that passing it would be deeply counter-productive. That opinion is shared by a coalition of more than 60 NGOs, academics and authors. They have stated that the Bill is so deeply problematic as to render it unworkable and unamendable. It uses outdated language and does not cover trans people, Travellers, refugees or asylum seekers. This is a glaring oversight, unfortunately, one I find difficult to understand, given that I come from a community with a growing population of differing religions.

According to reports in recent years from Migrants Rights Centre Ireland and the European Network Against Racism, there has been a marked increase in attacks on people of African origin. Furthermore, there is evidence in my constituency in Cork of a rise in attacks against people of Islamic faith.

Despite all of this, the Fianna Fáil Bill neglects to mention what ethnicities or origins are covered under attacks of prejudice. In many other jurisdictions, clear parameters are set out. The nature of a prejudiced attack is that it is prejudiced because it has been perpetrated against a member of a protected ethnicity or race. Without these parameters, this legislation is unworkable in court. Again, the Minister has made this point. The Fianna Fáil Deputies may have forgotten to include those parameters when they copied and pasted many sections of the Bill from Scottish legislation. There are numerous similarities between the Scottish legislation and this Bill. These have been identified not only by me and my party but also by the European Network Against Racism and the many bodies on which ENAR frequently calls for advice, including the hate and hostility research group in the University of Limerick. I am afraid to say it but this Bill is essentially a copy-and-paste of Scottish law but this is not Scotland. This is a frightening example of lazy legislating. Ireland has a significantly different criminal justice context. We have constitutional requirements in respect of which Scottish law takes a different approach. These include the guarantee of equality and freedom of expression and the requirement for certainty. Without addressing these constitutional points, the Bill is simply unworkable.

ENAR has also noted that there is absolutely no mention of coverage in this Bill for members of minority religious groups. That is staggering. I am unsure whether this has been done by accident or design. Either way, Fianna Fáil has actually further marginalised those who are already struggling to integrate in this State by excluding them from legislation, the purpose of which is to protect these very same groups. Hate crime is not about protecting minority groups that Fianna Fáil may earn votes from. It is about providing legal protection to all minorities against attacks because of race, religion, ethnicity, disability, gender expression or sexual orientation. It would seem that in producing this Bill, Fianna Fáil has actually marginalised more groups that it proposes to protect.

It is not just my party that is unhappy with the Bill. Several interest groups, human rights groups, non-governmental organisations and some trade unions have expressed concern about it. They have asked for it to be completely rejected because it is so fundamentally flawed that it is beyond saving by amendments on Committee Stage. That is their opinion and it is mine.

I am also a bit dismayed by the apparent lack of consultation by Fianna Fáil with the relevant interest groups. The Deputies may outline in the closing stages of this debate what consultation they had with the NGOs who have called their legislation fundamentally flawed and unworkable. When any legislation is being drafted or thought of the first port of call should always be those who are most affected by the proposed law, those who campaign daily on the issue and those affected by the issue who need the protection of a Bill such as this. We should offer them the opportunity to give their opinion on the development of a Bill. Had this happened the Bill might not have as many glaring deficiencies as it does. With this Bill Fianna Fáil has created new offences but has given no indication whatsoever of the severity of a sentence for someone convicted of a crime of prejudice. It is creating a crime without creating a punishment. The only reference to that is that the judge must take it into account at sentencing but it does not say what the consequences will be.

I am concerned about how little detail is in the Bill. There are many jurisdictions around the world that have hate crime laws on their statute books but those laws are very rarely used because they are poorly constructed and unworkable. If this Bill was to pass in its current state we would become another state that talks the talk about hate crime laws but does not walk the walk. This is not a road we want to go down. There is no point in having legislation unless it can be implemented properly and accordingly and it is our belief that this Bill could not function within the context of Ireland’s legal system. I would be the first to let a Bill go to Committee Stage if I thought there was any hope of it being amended but allowing this Bill go forward to Committee Stage would be irresponsible and regressive. For that reason we cannot in all good conscience support such vague legislation and will vote against it on Second Stage.

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