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

I believe that we need to have it.

We are here to make sure that we have hate crime legislation on the Statute Book for the first time, but I believe we need to do more to update, amend and improve the 1989 Act. That Act will still exist. It will still be there. We will still have incitement legislation. Many points of the points raised by people here and in the Seanad during the debate last summer -people thought it would be the end of the world - related to aspects that had been contemplated in law since 1989. I accept that there are different ways that this could have been done. However, I fundamentally believe that we need to have hate crime legislation on the Statute Book. That is why we are here. That is why I am progressing this. That is why I hope, at a later stage, we will be able to address the incitement to hatred and violence elements that have been removed.

In response to Deputy Howlin's point and to the question around the technicalities, the point is that I believe we need to keep the incitement to hatred and violence elements together and to progress them together at a later stage. Obviously, that will be a matter for the next Dáil. On the technical element of how the amendment is drafted, the proposal relates to the definition of hatred, as currently drafted in the Bill, that is

"hatred" means hatred against a person or a group of persons in the State or elsewhere on account of their protected characteristics or any one of those characteristics;

However, because the term "protected characteristics" does not appear in the 1989 Act, applying this definition of hatred to the constructed term that is in the Prohibition of Incitement To Hatred Act 1989 would not have the legal effect without also defining the protected characteristics themselves. There is a technical element to it. Overall, I genuinely believe that we need to progress that piece and as a whole. I do not like the fact that we might have two separate definitions or characteristics for both pieces of legislation. That is why we need to make sure that, for the next Government and the next Dáil, we have a structure in place to make sure that we can update the legislation.

Deputy Daly referred to the concept of recklessness. This was included in the incitement to hatred provisions that have already been removed. In general, there was broad support for those aspects of the Bill anyway.

Deputy Barry spoke about the demonstration tests and people who are demonstrating in general. It is really important to point out that we are talking about where a crime has already been committed. If somebody is at a protest for whatever reason, if he or she is not protesting peacefully and is committing a crime, he or she already is committing a crime. We are talking about making sure that where there is an aggravating factor of hate, it is taken into consideration as well. There was discussion about possession of material again. That is something that is already in the 1989 Act and provided for in law.

I will speak to the two areas people have referenced quite significantly, that is, the definitions of hatred and gender. I note Deputy Carthy did not table amendments to either of these. I outlined this to the Seanad but it is important to outline it here again. One of the key criticisms is that hatred has not been defined in this Bill. I want to explain to the House why this is the case. When drafting new legislation, a comparative exercise is undertaken to examine how other jurisdictions have legislated for a particular topic. This exercise was undertaken in developing this Bill at great length, I would add, given that we are one of the last countries in the western world to provide for hate crime laws, as I have mentioned. There is therefore a great body of comparative legislation available worldwide and I can say that no other jurisdictions have defined hatred. Similar legislation from many different jurisdictions around the world have been examined and hatred is not defined in any of them. Some jurisdictions use synonyms for hatred such as hostility, ill-will or malice, such as is the case in England and Scotland, but again these terms are not defined. In addition, the framework decision of 2008 on combating racism and xenophobia that Ireland is required to transpose and to which I referred earlier does not define hatred. It states that hatred should be understood as referring to hatred based on race, colour, religion, descent or national or ethnic origin. Again there was a suggestion that we use the definition of gender in the Equal Status Act. There is no definition of gender in the Equal Status Act. This is exactly in line with the approach we are taking in this Bill. The definitions of hatred proposed by Deputies and indeed by Senators previously are based on those used for policy and advocacy purposes through the ECRI. They are not intended for legislation. To be clear, my officials and I expressly contacted the ECRI, which confirmed it was never intended for inclusion in criminal legislation. On the contrary, it has made it very clear that this definition is only intended to inform policy and to offer guidance. I have been strongly advised also by the Attorney General against the use of the ECRI definition on the basis that attaching different words to the definition with the aim of explaining hatred would then require an explanation for each of these constituent words. Deputy Carthy stated we need simple and clear definitions. What was proposed were the terms "opprobrium", "enmity" or "detestation". As far as I am concerned, these are not commonly understood concepts in the same way that hatred is. They do not provide any additional position. They could leave the legislation vulnerable to constitutional challenge on the basis that the offences become excessively broad, vague, uncertain and inconsistent with the rule of law. Most of them are certainly not words that I would use on a daily basis. The Attorney General also advised that it is not possible or appropriate to provide exhaustive definitions of every term in the legislation. Additionally, if these type of amendments were accepted, each one of the proposed terms would have to be proven beyond reasonable doubt in order for a court to secure a conviction. This would mean that on top of providing that the person committed the offence, the DPP would have to prove that the individual concerned demonstrated opprobrium, enmity, or detestation, was biased, prejudiced, held contempt, was hostile and was a bigot. This would place an almost impossible burden on the prosecution. We want to make sure we are enacting legislation that can be workable.

In essence, I believe that for the purpose of this legislation, many of the terms proposed to define hatred are simply more obscure words that are more likely to confuse a jury in the course of a criminal prosecution than the widely understood term of hatred. This is a view that is also shared by the Office of the Director of Public Prosecutions. The definition of hatred as currently set out in the Bill represents the word's ordinary and everyday meaning and I think we can all understand what it means. The person who attacks a person leaving a gay club for no other reason other than he or she hates gay people can be prosecuted to the fullest extent of the law and labelled the hate criminal he or she is. The person who attacks a person simply because of the colour of that person's skin and who clearly demonstrates that can be labelled the hate criminal that he or she is. There will be no legal uncertainty as to what constitutes a hate offence as hatred will have its ordinary and everyday meaning. This reflects the rules of statutory interpretation, which the Supreme Court has also consistently upheld. It is for those reasons that we have not changed it. I believe this is the correct approach.

Separately, in terms of the definition of gender, again so many people are missing the point here. This is not about somebody's legal definition. If somebody is being attacked, they are not being asked if they have a gender certificate. They are not being asked if this is their gender or what their gender is. They are being attacked because of who they are. People are missing the point here. To be clear, it does not affect the Gender Recognition Act, the Civil Registration Act or any other Act on the Statute Book. I want to be clear and ensure that everyone understands this. The definition of gender provided for in this Bill is for the specific purposes of this Bill, that is, to protect our citizens from hate crime. We can have different definitions. We had legislation previously where we had three different definitions for children in the one item of legislation. It is not to say that this immediately impacts on others. We know that members of our LGBTQI communities in particular experience disproportionate levels of harassment, abuse and violence. We know that members are targeted for the way they look, the way they dress, the way they identify and of course the people they love. We know that it is precisely the people who do not fit into conventional ideas of gender and sexuality who are most vulnerable to this kind of victimisation. This legislation is vital and it is long overdue. Statistics on hate crime and hate-related incidents have shown rises year on year across Europe. Harassment and violence against LGBTQI people is increasing. The Council of Europe has noted a marked increase in hate speech and hate crime targeting people and organisations based on sexual orientation, gender identity and sex characteristics. This has also been documented by the EU's Fundamental Rights Agency. In 2024, a survey of more than 100,000 LGBTQI people across Europe provided a snapshot of the scale of discrimination, bullying, harassment and violence that members of this community face. More than half of surveyed respondents were victims of hate-motivated harassment. Ireland is no different. Over half of the respondents in the EU survey say that prejudice and intolerance in Ireland have increased while two in three say that violence in Ireland has increased. In the year before the EU survey, more than half of those surveyed had been harassed and one in 20 had been attacked. These numbers illustrate the scale of the problem but they do not adequately convey the impact of these incidents on the victims themselves and on the broader LGBTQI community. They send a message to these people that they are unsafe simply because of who they are. This is not about legal status; this is about who they are as people.

The psychological impact of hate crime is much deeper than regular crime as well. Hate crimes dehumanise people. It goes to the heart of a person's identity. It damages their dignity and forces people to change their behaviours and hide who they are. This is not a vanity project. This is people's lives that we are talking about here. The objective of the legislation is to provide protection to victims of hate crime on the basis of personal identity characteristics. These include gender and sex characteristics and sexual orientation. The approach we have taken here is deliberately inclusive to ensure we are adequately capturing the individuals and communities we know are targeted by these crimes. Inclusion of this broader meaning was on foot of recommendations from the civil society organisations, particularly those representing vulnerable and minority groups. The broad definition of gender ensures protection for transgender persons, as well as for non-binary persons and other people who do not identify with any of the terms expressly included in the legislation.

It is important to outline a couple of cases that we are talking about here. We are not talking about it in the abstract. We are talking about very real people. This is the anti-gender and anti-sexual orientation crime report from An Garda Síochána. To outline some of the cases here, first we have a robbery from an individual. The injured party was with a group of friends when a group of three to five individuals began intimidating the person in question. This was a transgender person. The person attempted to evade these individuals, was pursued, was punched three times to the face and pushed to the ground. Their runners and hoodie were taken. At least two youths, one male and one female, were involved. Once gardaí arrived, the person in question had a cut lip, loose lower front teeth and visible grazes to the left arm. This was a hate crime. This was motivated by a person's hatred because they were anti-transgender. They did not single out any other individual in the group, just the person who was transgender. I have a second case to outline. A female was on the way to the market with two friends and was attacked by a man physically who threw his body at her with all of his strength. The person asked him what he was doing. He said that she was nothing more than a man. Again, he repeated several times, saying she was nothing more than a trans. These are real incidents, these are real people. These are people who are being targeted simply because of who they are. This is not a discussion about gender or somebody's legal status.

These are facts. These are people who are already impacted by hate crimes, and it is not about just gender. It is about individuals who are being attacked and targeted because of the colour of their skin, because they might have a disability or because they come from a different country from where we were born. There are many reasons people are being targeted. We know that targeting somebody simply because of who they are as a person has a greater impact on them. That is why this law is being passed.

It is important to be clear here because there is an objective, whether intentional or otherwise, to misconstrue facts to suggest we are still changing the hate speech legislation. To be clear, for any social media clips people want to put out, we are not amending the 1989 Act. I have been clear that that is being progressed at a later stage. We are talking about hate crime and making sure that where a crime that has been committed is motivated by hatred of a particular person and their characteristics, that is, who they are as a person, there will be an increased sentence and penalty because we know that has a greater impact on those individuals. As a country and society, we need to be clear that that is not something we are going to tolerate.

I firmly believe this legislation needs to be enacted this evening. I absolutely believe we need to come back to the hate speech element of it. I stress I made that decision to ensure this element of the Bill would be enacted but we need to come together, as an Oireachtas and Dáil, however many of us come back after the election, to make sure we can update the 1989 legislation. Let us send a very clear message to those who are vulnerable in our communities at the moment that we will not tolerate any form of violence, intimidation or crime against them simply because of who they are. That is all we are doing here this evening. We are sending a very clear message that if you target someone because of who they are, you will face a stronger penalty, and we need to send out that message this evening.

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