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

We need to get this legislation passed, notwithstanding the fact that there are challenges involved. People have different views, but in the round they support the need for this legislation and want to see it passed, but they want to see it done right. There will not be any attempt to rush this through without listening to views and opinions. We will ensure that we have the legislation right. I want to be very clear on that.

On the point about education and other policy measures, I fully agree that the legislation cannot be the one and only solution. We must ensure that we are engaged in education in our schools and that we get to the root causes of these crimes. At the same time, we are dealing with a criminal justice matter in the Department of Justice in this legislation. The victims of these types of crimes need to know that there is justice at the end of the day. We do not have hate crime legislation, and it has been clearly pointed out that the Prohibition of Incitement to Hatred Act 1989 simply does not work. We are here and we are dealing with the legislation before us, but I fully agree that further policies and developments need to be introduced in education to make sure that we can deal with the underlying issues. Victims need to know that there is justice at the end of the day. That is specifically what we are talking about here.

On the issue of demonstration versus motivation, which has been raised today, I know articles have been published on the various ways of looking at it, saying there is a difference between a premeditated crime and one that is not. Whether or not a person sits at home and intentionally decides to go out and assault another person based on who they are or a characteristic, or whether somebody who assaults a person and clearly demonstrates, during the assault, that they are doing that because of that characteristic, it is no less hurtful or damaging. It is no less difficult for the victim, irrespective of whether the crime was premeditated or not. It is important that we do not make it a lesser crime simply because the perpetrator has not spent five hours sitting at home deciding they are going to do that. In saying that, we will not see the floodgates opening with the passing of this legislation. The suggestion that we will see more cases coming before the courts is not what has been reflected in the UK's experience. Looking at the figures, of 155,000 pre-recorded hate crimes there were 10,000 prosecutions, and 86% of defendants were found guilty. It is not as though suddenly 155,000 people were found guilty of these crimes even though they were reported. It has not opened the floodgates. There have not been significantly more cases in other jurisdictions.

We do need to ensure that this legislation works. People have said, throughout the debate, that we want legislation that is effective and that works, so that the Garda and the DPP can bring prosecutions and there is justice at the end of the day.

It was strongly felt, having listened to the arguments from the committee and many others, and having examined other jurisdictions, that the motivation test alone, which would require motivation to be proved, and, in that way, would involve getting into the mind of the person, would not be sufficient and that the demonstration test would assist while at the same time ensuring nobody randomly and accidentally finds themselves being targeted or prosecuted for a hate crime.

In respect of free speech and freedom of expression, we have strengthened the current draft of the Bill. Section 11 deals with the protection of freedom of expression. This is taken directly from the European Convention on Human Rights. As Deputy Connolly referenced, the right to freedom of expression means individuals can hold and express opinions which others might find offensive or shocking. It is clear that one cannot stumble one's way into incitement to violence, hatred or hate speech. One must intentionally or recklessly set out to incite violence or hatred against another group of people so simply having a view or belief that I or another person might not like, and which is shocking to others, is insufficient. The definition we have set here, taken from the European Convention on Human Rights, makes that clear. That is why we have not gone any further. We had added the defences to try to make the situation as clear as possible. That is clearly set out in what we have included in that paragraph, as deemed appropriate by the European Convention on Human Rights. We need to get the balance right and must ensure that people can have genuinely held views and beliefs, even when others may not like them. It is about dealing with occasions where people intentionally or recklessly set out to cause harm to another group of people. Somebody might say something we do not like but that does not mean they are setting out to harm a group of people. They might just hold a different view from others. I agree we must get that balance right. If there are more ways to do so, I am open to suggestion but we have tried to examine the situation as carefully as possible.

There were a few suggestions that the legislation will impact a person's right to protest. There is a valid and genuine right to peaceful protest in this country. I do not think it would be possible for a rogue member of the Garda to use this legislation to suddenly accuse someone of a hate crime. If somebody is not peacefully protesting and fires a firework at a member of the Garda, traps somebody in a car or does something else they should not do, that is a crime and the person can be convicted under this legislation if there is a hate element to it. However, if people are protesting peacefully, there is no reason for this legislation to impact them.

This is not about becoming the thought police and preventing something from happening before it happens. A more extreme example of a similar crime is that of conspiracy to murder. Just because a person does not commit the crime or is stopped before they commit it, they are no less guilty for what they intended to do. If a person clearly intends to distribute material that is inciting hatred or may incite hatred against a person or group of people, it is important that is acknowledged. It is deemed a lesser offence in the legislation. It is not the same as if somebody actually distributed that offensive material but acknowledges there was intent that could have caused harm. That would obviously have to be proven and there are defences in that regard.

A review after one year is included in the legislation. People might say that does not happen but my officials tell me they have recently conducted two reviews of pieces of legislation a year after their enactment. It does happen. That provision is set out in the legislation itself.

The reason we have such a small level of instances, those 448 incidents, is because we have not had hate crime until now and we have lacked a mechanism to capture these data. That is part of the problem and that is why this legislation is so important. We will shortly have an ability to capture those data because this Bill will be on our Statute Book. We will establish hate crime as a crime and the data that will follow will enable us to design new policies on education, and to understand the incidents that take place and the people who are impacted. It will help us to deal with many of those issues.

I was asked about the situation in respect of the sex characteristics. The Bill focuses on physical characteristics. That is why that was included. Male, female, intersex separate to somebody who identifies, and that is why that is included in that.

There was a question about the threshold and the evidence that is required. For incitement, the threshold is intent or recklessness and the evidence is the actual communicating piece, which includes the words that are spoken, the literature that is provided or the online commentary. The threshold is that a person's actions would intentionally or recklessly incite hatred. When we are talking about a hate crime, the motivation is proof for the demonstration of the hatred in itself.

I was also asked about the characteristics and how we decided on the list. We tried to engage as widely as possible during public consultation. The list is based on the most commonly targeted identities. Others can be added at a later stage and do not need to be included now. If some other types of characteristics incite significant levels of hate crimes, we can deal with it.

There is an idea that has come up in a number of different quarters to the effect that some of the work I am doing in the Department of Justice is woke, which is a term that has been used previously, or deals with matters that are not the bread and butter of justice. I appreciate that for many people, justice means investing in and supporting the Garda in the work it does. The Garda is integral to the justice system. A significant part of my budget goes to supporting the Garda. A considerable amount of the work I do is intended to support the Garda and improve how it can work and do its job through investment and increasing numbers of personnel. I disagree that focusing on domestic violence, protecting women and girls, hate crime, hate speech, protecting vulnerable people and reforming our family court system is not the bread and butter of justice. We need to focus on all measures-----

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