Pa Daly (Kerry, Sinn Fein) | Oireachtas source

We welcome the intent behind the Bill and the effort and work that has clearly gone into addressing the needs of people who experience hatred on account of who they are. As the Minister said, people need to feel safe and we accept that the current Act is not effective. We have received, as I am sure all Deputies have, many submissions on the Bill, even after the pre-legislative scrutiny concluded, and there seems to be an attempt to get it through as quickly as possible. We agreed that the amendments deadline, which was yesterday, should not usually fall before Second Stage but, in fairness, the Joint Committee on Justice has examined and dealt with more legislation than any other committee.

While it is not exactly on all fours with the Bill, there were recently some disturbing events in my constituency where certain elements have claimed that there are examples of no-go areas in the county and suggested gardaí have said this. Senior members of An Garda Síochána have stated this is rubbish and totally untrue, yet a number of people have contacted me about it, some of whom are perhaps naive while others are not so. The agenda of these content creators who trade in hate is to divide communities and stir up tensions.

As for the Bill, we support its intent and our primary concern is for it to strike the right balance. Submissions from the likes of the Irish Council for Civil Liberties, ICCL, and academics from the University of Limerick have sought clarity on a number of areas within it. There seems to be a difficulty, according to some of the submissions we received, with the definition of "hatred", perhaps suggesting the definition as outlined will act as a sort of a stalking horse inviting amendments on a later Stage, and I think it will probably be amended at some stage. It seems to be circular as defining “hatred” as hatred towards a group or individual based on protected characteristics, and perhaps this needs to be fleshed out at a later stage. While I understand the need for a simple definition, there are alternatives, and the ICCL recommended that this definition be replaced by one provided by the Council of Europe’s European Commission Against Racism and Intolerance and endorsed by the UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression. That definition states:

Hatred shall mean a state of mind characterised as intense and irrational emotions of opprobrium, enmity and detestation towards the target group.

Of course, we believe in the fundamental right to free speech, but this core right should not be allowed to be abused to incite hate, prejudice or violence against others. Freedom of speech is not a one-way street, and the vulnerable must be protected and feel that they are safe and protected. No one has the right to shout "Fire!" in a crowded theatre.

The Bill, as outlined by the Minister, contains three major provisions, namely, creating the new offence of incitement to hatred, making the denial or gross trivialisation of genocide a crime and creating aggravated versions of the existing offences where hatred was a motivating factor. It represents a major reform of existing laws and amounts to a single statute for crimes relating to hatred. I commend all the work that has taken place on this. A single statute on hate crime is something we support in principle. It can go some way towards offering a proper means of recourse for those who have suffered as a result of hate crime.

Nevertheless, we need to be careful about using the criminal law without addressing the root causes of prejudice in society. A concurrent action plan on reducing hate crime is required and should be prioritised by the Departments of Justice and Children, Equality, Disability, Integration and Youth. At a general level, inequality also fuels prejudice and there must be a wider effort to address poor housing, unemployment and inadequate healthcare. These failures affect working people no matter whether they are born here or are fleeing Russian aggression in Ukraine or discrimination and war in other parts of the world. We have a long and proud record of opposing divisions in this Republic. We want to build an island free of divisions of any type and we stand for all workers and families no matter what else is said. The rationale and grounds for the inclusion or exclusion of aggravated offences should be clarified as the Bill moves through the House. A defence of free expression, as outlined, is in principle a good idea but, again, there must a clear definition. The notion of a contribution towards discourse can be subjective - one person's hate speech can be another person's debate - and the subjectivity of what constitutes a fair remark may be difficult to ascertain in practice. What consequences the criminalisation of the distribution of materials may have on free speech should also be clarified. Indeed, we need clarity on whether there is a fallback within the legislation where a non-aggravated version of the crime has taken place if a jury finds the hate element has not been proven. The general provision on hatred as an aggravating factor should, perhaps, also be amended, as has been recommended, to include presumed membership of the protected group.

In terms of policy provisions backing the implementation of the Bill, the use of restorative justice in these offences should be examined. Judging by some work carried out in the North of Ireland, many victims simply want to avoid a repeat of the bad behaviour, and restorative justice may be appropriate in those circumstances. This will avoid some of the inevitable issues that will arise from the use of criminal law to combat prejudice; it cannot be done on its own. The consequences of conviction for an offence are, of course, serious. It is arguable that although many of the Bill’s provisions envisage that cases will be prosecuted in the District Court, a conviction in respect of hate crime should be taken only in the clearest circumstances and should not be clarified as a minor offence fit to be tried summarily.

Another criticism of the Bill relates to the equating of offences, and the Minister spoke at length about the demonstrable side of things. Some criticism has come from academics in regard to equating the offences without motive with those that were planned in advance. For example, under section 18, if a person, at the time of the offence or immediately before or after doing so, demonstrates hatred and if that hatred is on account of presumed membership of a group, there is a demonstration test. This has come under some criticism from academics, which is all the more reason the allegation in cases should consider education and de-escalation along with addressing the general inequalities in having a role to play in delivering justice. That is not to excuse what is said in the heat of the moment, but equating the types of offences has been criticised given the serious consequences. The justice system must ensure it will not create any further divisions.

I look forward to moving amendments on Committee and Report Stages and hope we will be allowed further time for a full debate.

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