Michael McNamara (Clare, Independent) | Oireachtas source

I am not going to take anything like ten minutes. I had an opportunity to look through the Bill. Like many previous speakers, it seems to me that many aspects of the Bill are quite confused and confusing and perhaps ill-thought out. The Long Title demonstrates to some extent the purpose of the Bill.

[A]n Act to amend the law relating to the prohibition of incitement to violence or hatred against a person or a group of persons on account of certain characteristics...and to provide for an offence of condoning, denying or grossly trivialising genocide, war crimes, crimes against humanity and crimes against peace and, in doing so, to give effect to Council Framework Decision 2008/913/JHA.

There are several significant differences between the framework directive and the Bill as drafted, certainly with the offences concerning racism and xenophobia. That is the exclusive focus of the framework directive, which it is proposed to implement. It refers to "publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin". Whereas, when we turn to the Bill, it goes a lot further. It includes race, colour, religion, national or ethnic origin and, like the framework directive, also includes descent, to cover people who are descended from persons who are identifiable on that basis, but where that may no longer be present.

The Bill goes on to include gender, sex characteristics, sexual orientation and disability. I have a question on the protected characteristics. I do not fully understand what "sex characteristics" refer to. "Gender" is clearly defined and means “the gender of a person or the gender which a person expresses as the person’s preferred gender or with which the person identifies and includes transgender and a gender other than those of male and female”. "Sexual orientation" and "disability" are defined by reference to the Equal Status Act, but the Bill states that “references to sex characteristics shall be construed as references to the physical and biological features of a person relating to sex”. I am slightly confused about what that is intended to cover, particularly in the context of the Bill.

The Bill goes far beyond the purpose of the stated intention of the framework directive in dealing with gender and sexual orientation. What I am most concerned about is the idea of motivation. The framework directive states, “Member States shall take the necessary measures to ensure that racist and xenophobic motivation is considered an aggravating circumstance, or, alternatively that such motivation may be taken into consideration by the courts in the determination of the penalties.” That brings us to the crux of the Bill and the definition of "aggravating circumstances". There is an article on this by University of Limerick academics in The Irish Times today, which I do not need to go into because many previous contributors referred to it. It is not just motivation that is an aggravating factor but also what that is accompanied by, and that is problematic to an extent.

I understand the reason the Minister has chosen to go down this road, because of the difficulty of proving motivation, but there are downsides to that, as those academics and previous contributors have pointed out. In other elements of the Bill, such as section 7, with regard to the offence of incitement to violence or hatred against persons, intent will still have to be proved and, therefore, I do not see how that difficulty is not surmounted with regard to the offence of incitement to hatred given the definition of the offence requires that the person communicate material to the public that is likely to incite violence or hatred against a person and that he or she do so with intent to incite violence or hatred. Likewise, to be guilty of the offence of possessing material, a person must have prepared or possessed material that was likely to incite violence or hatred against a person and prepared or possessed such material with intent to incite violence or hatred.

That is the crux of it. If we are required to prove intent with regard to the incitement of violence or hatred and if that same requirement to prove intent is an element of the offence for the purpose of possessing material, I am not entirely convinced as to what is achieved by defining it as an aggravating circumstance given the downsides, as have been pointed out. I look forward to the Minister elaborating on that and on the definition of "sex characteristics". What exactly is it hoped to capture by that and how is it hoped to improve the framework directive by specifically including sex characteristics? Those are my concerns and I look forward to having them addressed.

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