Helen McEntee (Meath East, Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I am pleased to bring the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 before the House. This is a significant Bill that will update our existing legislation on incitement to hatred and provide for hate crimes for the first time in Irish law. The development of this legislation has been long awaited by many and is a key commitment in the programme for Government.

In introducing this Bill, the Government will deliver on its commitments: to introduce hate crime legislation based on an aggravated offences model and create specific offences to ensure those who target victims because of their association with a particular identity characteristic are identified as perpetrators of hate crime; and, in order to ensure that those who seek to encourage and incite others to hate minority groups can be prosecuted, to revise and update the Prohibition of Incitement to Hatred Act 1989, taking account of the public consultation conducted in 2019.

Members of minority and vulnerable communities have spoken time and again about the horrendous and unacceptable prejudice, contempt and hostility they face daily. They have been targeted and subject to horrific abuse, and attacks, simply because of their identity. When we hear about these incidents, the victims are commended for their courage in speaking out and drawing attention to the discrimination and hatred that they face. However, it is no longer good enough to give people a pat on the back. These communities deserve to be protected, to have their identities and cultures celebrated and to live without fear of victimisation simply because of who they are.

Many individuals in our country live their lives hiding a part of themselves, modifying their daily routines and changing the way they dress, speak and present themselves to the world, all in order to avoid being targeted. This is not the vision I have for this country, nor is it that of many others. It does not reflect the tolerant society we want to live in. This new legislation will contribute fundamentally to allowing everybody in Ireland to live without fear as they live the most authentic version of themselves.

The Government's vision is of a safe, fair and inclusive Ireland. We want to build stronger, safer communities. An inclusive Ireland is one where crimes motivated by prejudice, hate or bigotry are not tolerated and where everybody feels safe and is safe. We want perpetrators of this vile behaviour to know they will be punished for spreading hate, prejudice and division.

In developing this legislation, my Department carried out an extensive public consultation process. It began in 2019 and comprised surveys, stakeholder consultations, a call for detailed submissions and focused group work. Seven independently facilitated discussion workshops took place around the country. A series of meetings were held with interested groups, organisations, academics, law enforcement personnel, professionals and other experts. Several representative groups against hate crime have worked on this. I thank everybody who was engaged in getting the legislation to this point. This engagement resulted in vital insights from the communities and, in particular, individuals most impacted by hate speech and hate crime. The often moving and distressing testimonies of individuals and groups recounting their lived experiences of hostility and abuse provided the imperative to ensure that the new legislation would be victim-centred and effective.

The findings of this public consultation process, along with analysis of qualitative data gathered in the stakeholder workshops and research by my Department into hate legislation in other jurisdictions all informed the report, Legislating for Hate Speech and Hate Crime in Ireland: Report on the Public Consultation 2020. The conclusions drawn in this report underpin the legislation before the House and are grounded in the reality of what minority and vulnerable communities experience and need under the law.

Let me turn to the Bill itself and outline what is proposed. Part 1 is standard. It gives the Title to the Bill and provides definitions for the many important terms used throughout.

This part also sets out the protected characteristics for the purpose of the Bill, which are race, colour, nationality, religion, ethnic or national origin, descent, sexual orientation, gender, including gender expression or gender identity, sex characteristics and disability. These protected grounds have been expanded from those set out in the Prohibition of Incitement to Hatred Act 1989 and now include descent, gender, disability and sex characteristics. The protected characteristics represent those most frequently mentioned by individuals throughout the course of the public consultation and in the submissions made to the Joint Committee on Justice when conducting pre-legislative scrutiny of this legislation. The list of protected characteristics will be kept under review and if evidence emerges of hate offences or hate speech targeting an identity characteristic not listed in the Bill, it may be added at a later date. This section will also repeal, in its entirety, the Prohibition of Incitement to Hatred Act 1989, which is being replaced by updated provisions that I will summarise shortly. This Part also contains a standard commencement provision and standard expenses provision.

Part 2 deals with incitement to violence or hatred, or hate speech. The principal purpose of this Part is to provide for a new offence of incitement to violence or hatred that will replace the provisions of the Prohibition of Incitement to Hatred Act 1989. While in some respects, the 1989 Act was ahead of its time 30 years ago, regrettably, it has not been effective in securing more than a few dozen convictions over the intervening period. As a consequence, I have directed that the incitement offences be updated to ensure that they are more effective, clearer and more reflective of the current context. The new legislation will lower the threshold for criminal incitement to violence or hatred to include "recklessness" and in so doing, will mean that prosecutions are more likely to be secured. This means that a person must either have deliberately set out to incite hatred or violence, or at the very least have considered whether what they were doing would incite hatred, concluded that it was significantly likely, and decided to go ahead anyway. This change from the 1989 Act to include "recklessness" was welcomed in submissions to the pre-legislative scrutiny process. It means that any intentional or reckless communication or behaviour that is likely to incite violence or hatred against a person or persons because they are associated with a protected characteristic can be criminalised.

The Bill also provides for criminalisation of the condoning, denial or gross trivialisation of genocide and other crimes against humanity by creating a new offence as required under the European Council Framework Decision on combating certain forms and expressions of racism and xenophobia. A new, separate and lesser offence of preparation or possession of material likely to incite violence or hatred has also been included in the Bill. This will apply to individuals who create hateful content with the intention of communicating it in order to incite violence or hatred, but have not yet communicated it publicly.

I am aware that there has been much attention and interest in how the right to freedom of expression is reflected in this legislation. This right is enshrined in our Constitution and in the European Convention on Human Rights. However, the right to free speech is not absolute, and limits may be placed on it by law to protect other fundamental rights. I am confident that this Bill strikes the correct balance in protecting freedom of expression with the rights of minority and vulnerable communities to be protected from hate speech. The Bill expressly provides that a communication will not be taken to incite violence or hatred solely on the basis that it involves discussion or criticism of matters relating to protected characteristics. I want to stress that this legislation is not about enforced politeness, or political correctness - it is about providing protection to those who need it and those who currently experience extreme forms of criminal hate speech. While individuals can hold and express opinions that others might find offensive or shocking, I want to make it very clear that it is extreme forms of hate speech that deliberately and recklessly incite or stir up acts of hostility, discrimination or violence that will be criminalised. People may hold different views and opinions, and we do not intend to criminalise them. Such people will not be liable to conviction for hate speech. There are defences available for reasonable and genuine contributions to literary, artistic, political, religious, scientific, or academic discourse that are made in good faith. A "reasonable and genuine contribution" will have to be shown to be a contribution that is considered by a reasonable person, including a judge or jury, as being reasonably necessary in the context of a debate or discussion involving a protected characteristic.

We are all aware that online hate speech is an increasingly insidious problem that our current legislation is not equipped to address. This is not surprising given that the 1989 Act was not drafted with the online world we live in today in mind. The new provisions of this Bill have been crafted carefully in order that they operate effectively in both an online and offline context. I acknowledge the very important work of the Department of the Minister, Deputy Catherine Martin, in this regard. The Online Safety and Media Regulation Bill 2022, which is currently making its way through the Houses, will play a pivotal role in regulating and managing hate content online and will dovetail with the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022. Through the Online Safety and Media Regulation Bill, an online safety commissioner is being appointed to oversee the development of legally binding online safety codes. These codes will govern the operation of social media companies, many of which have headquarters in Ireland, and will ensure that they take appropriate action to remove any hateful, or otherwise illegal, content promptly from their platforms. My officials have been working closely with officials in the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media to ensure that the operation of these two important pieces of legislation is in tandem.

Part 3 relates to hate crimes based on an aggravated offences model in line with the programme for Government commitment. This model involves creating new "hate crime" offences where specific offences are aggravated by hate of a protected characteristic. The Bill as published provides for 12 new specific hate offences. The reason they have been chosen is that they are the most commonly cited crimes against people on identity grounds. The aggravated offences will attract a higher penalty than the ordinary form of the offence, unless the ordinary form already attracts the maximum penalty possible. There is a safeguard included whereby if there is not sufficient evidence to convict a person of the "hate crime" version of the offence, they may still be convicted of the "ordinary" form. This is to encourage the prosecution of hate crimes and avoid any risk that the entire prosecution will fail if the hate element cannot be proven. If a person is assaulted, there can still be a conviction for assault. A person is guilty of a hate-aggravated offence under this Part if he or she commits one of the core offences and in doing so he or she is motivated by hatred of a protected characteristic, or demonstrates hatred based on a protected characteristic at the time of committing the offence. For all of the offences in this Part, hatred may be based on the victim's actual or presumed membership of a group associated with a protected characteristic. As I indicated, these offences include both a motivation test and demonstration test as the test of proof. As initially drafted, the general scheme provided only for a motivation test for hate crimes. However, in the course of drafting the Bill, it became evident that a motivation test alone in proving hate offences sets too high a threshold and would likely be unsuccessful in securing convictions. Relevant stakeholders, including academics and those representing minority groups, advocated for inclusion of a demonstration test in their submissions to the Joint Committee on Justice during the pre-legislative scrutiny process. The committee included this as a key recommendation in the subsequent report. A demonstration test hinges on the perpetrator demonstrating hatred towards a member of a protected group or characteristic at the time of an offence being committed. This would involve, for example, the use of hostile or prejudiced slurs, gestures, other symbols or graffiti at the time of offending. The primary difference between a demonstrative model and a motivational model is that, under a demonstration test, the prosecution must prove the demonstration of hostility, but no subjective intent or motivation is required; it is an objective test. Conversely, a motivation test requires proof of the defendant's subjective motivation for committing the offence, which can set a higher bar to secure a conviction.

Following the recommendation by the justice committee, my Department carried out extensive additional research and consultation, including meetings with representatives from neighbouring jurisdictions in the UK where the demonstration test has been in operation for many years, and with An Garda Síochána, the Director of Public Prosecutions, DPP, and the Attorney General. On the basis of further research and consideration, I made the decision to include the demonstration test in the legislation to ensure that it would be successful in securing convictions where they are needed. I am pleased to note that this decision was welcomed by representatives of many of the groups that have engaged with us.

In concluding these opening remarks, I am certain that all sides of the House appreciate the need for this legislation and the positive impact that its enactment will have on the communities and individuals most affected by hate speech and hate crime in our country. It will encourage victims to come forward and report hate-related incidents to An Garda Síochána. More than 350 Garda diversity officers are trained, developed and supported to engage with and attend to the concerns of our minority, diverse and hard-to-reach communities right across the country. They provide reassurance, build trust and extend the accessibility of the Garda service to these groups. In addition, the Garda national diversity and integration unit monitors all incidents recorded on PULSE that have a discriminatory motive.

It advises, supports and assists gardaí who are investigating incidents that may have a discriminatory motive attached. Once enacted, the Bill will ensure hate-motivated offences in our communities can be investigated and prosecuted as such. This will help to deliver a safe, fair and inclusive Ireland.

I look forward to Deputies' contributions and will be happy to address any concerns or questions they may have regarding certain aspects of the Bill. In summary, it seeks to ensure that people in this country who do not feel safe and who do not go about their daily lives in the way they should will feel comfortable in coming forward where these types of incidents, whether acts of violence or incitement to hatred, happen, and to support the Garda in ensuring there will be criminal convictions. While we need to protect individuals' right to free speech and must not stifle debate, there is a line and where it is crossed, we must be clear as a society that we will not tolerate that.

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