Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

It is very beneficial that the Oireachtas is giving considerable time to this debate. It is an important piece of legislation. The Minister and Department have spent considerable time in preparing it; similarly, this House should give it detailed consideration. Much legislation goes through this House that most of us are confident will not be subjected to much judicial scrutiny. However, anyone who has spoken on this Bill will know the strong likelihood that in the not too distant future judges in the superior courts, probably the Supreme Court, will be considering it. Legislation such as this is always difficult and it is important that we scrutinise it properly when there are conflicting constitutional rights.

Here we have heard much about freedom of expression and the right to equality, which I will talk about in due course. They are on one side of the scale; on the other side - and the political motivation behind the legislation - is the constitutional protection afforded to the person under Article 40.3.2. The State is trying to follow the constitutional command to protect the person by recognising that groups in our society are targeted because of certain characteristics. It is a constitutional requirement, as well as an obligation under the European decision, for us to bring forward legislation to this effect.

Where there are conflicting constitutional rights, a balancing act needs to be performed. It is our job to try to get the balance right. When we come into this House, we look at legislation from the point of view of our political objectives and what we want to achieve politically. That necessarily involves us promoting one constitutional right at a particular time. We need to recognise that when it comes before the courts, they will understand the desire of the Oireachtas to protect the constitutional right of the person under Article 40.3.2, but will ask where the conflicting constitutional rights are protected, such as the right to freedom of expression and the right to equality. I am pleased to say I think this House, if it enacts this legislation, will pass that test as we do take into account the conflicting constitutional rights.

We need to be realistic about what this legislation can achieve. Its primary objectives are, first, to repeal the 1989 Act, second, to provide updated and more modern legislation for the offence of incitement to hatred and violence and, third, to transpose into Irish law the Council decision 2008/913/JHA concerning hate crime. We need to recognise that simply enacting this legislation will not mean the problem of hatred and incitement to violence in our society will be resolved. It will not. Laws can be drafted every day of the week but they may not be able to resolve society's problems. It is important that the laws reflect what we as a society and as a House of the Oireachtas believe should be the law of the country. We also need to recognise that it is a function for society and people in society to ensure our behaviour changes. I do not suggest it should be the objective of society for people to try desperately to get rid of hate. Hatred is an emotion and will exist no matter where we are and in what society we are. This legislation is not trying to change people's personal opinions or the personal hatreds many people may have, though it is a wasted emotion. The legislation is designed to deal with public utterances which are designed to incite hatred or violence against certain groups.

The legislation sets out ten protected characteristics. It is important to point out those characteristics are of universal effect, or certainly nine of them are. Race, gender, sexual orientation and colour are things that apply to us all. It is important to recognise this legislation is not for the protection of one or two groups but that of society as a whole.

The principal provision is contained in section 7, which sets out the new offence of incitement to hatred or violence. I commend the Minister on the recognition in that section that it shall be a defence against any such prosecution for a person to show the behaviour:

consisted solely of— (a) a reasonable and genuine contribution to literary, artistic, political, scientific, religious or academic discourse.

I do not think the concerns Deputy Tóibín has will arise as a result of this legislation. People are perfectly entitled in Irish society to call for the repeal of the Gender Recognition Act 2015 or any other legislation. That does not make that a hate crime. Section 11 expressly refers to protection of freedom of expression. The draft Bill takes into account the conflicting right to freedom of expression on the one hand and the constitutional command on the other to protect the persons of individuals.

An area worth examining again concerns Part 3, which sets out that there shall be a new offence. I will take the example of the Non-Fatal Offences Against the Person Act, which deals with assault or assault causing harm. In respect of each of those offences in that legislation, there will be a new offence of aggravated assault as a result of an act of hate. I mentioned the principle of equality under the Constitution because I suspect that when this comes before any court, it may come in on the basis of the principle of equality, where a person convicted of an aggravated crime, including aggravation through hate, will compare themselves to another person convicted of the same crime that was not aggravated through hate, but the appropriate comparison of the two will result in scrutiny. That is something of which the Minister needs to be conscious.

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