Barry Ward (Fine Gael) | Oireachtas source

This type of legislation is welcome. I agree with almost everything Senator O'Loughlin said in her contribution introducing the Bill to the House. I commend her and her colleagues on bringing it forward. It is timely and, regrettably, it is also necessary. A number of Senators recounted the stories many of us will be aware of, including famous cases like that of Declan Flynn, where the most appalling injustice for nonsensical and incomprehensible reasons have been committed against people in this State. There is no doubt that we have to deal with that.

Senator O'Loughlin also referred to the commitment in the programme for Government, which I believe was very welcome. It came not just from the programme for Government but because a number of Members of these Houses have called for this exact type of legislation over the years and for action to be taken in this area.Specifically, the programme for Government states that hate speech and hate crimes have a particularly lifelong impact on individuals and communities and have no place in our society. Senator O'Loughlin dealt with that, and Senator Chambers also made reference to it. In terms of the impact on victims in circumstances where the victims are not just of a crime but of a crime because of some aspect of their person, be it their ethnicity, sexual orientation or gender, which I will come to shortly, or the other issues I mentioned in this Bill, it is entirely understandable why that would have an incredibly pervasive effect on them and the people around them. The damage it does is largely incalculable for those of us who are outside that particular offence. There is no doubt whatsoever that the Legislature must recognise the seriousness of that added element to an offence.

The programme for Government states that hate crime legislation will be introduced within 12 months and will specifically create offences to ensure that those who target victims because of their association with a particular identity characteristic are identified as perpetrators of hate crime. That is a tremendously important statement. We will hear from the Minister, Deputy McEntee, in due course but I understand from her that that legislation is in train. A public consultation on the issue was commenced by the former Minister for Justice and Equality, Charlie Flanagan, some time late last year. I understand that is now complete and the results of that public consultation are likely to be published before Christmas. I hope we will see new legislation officially from the Government in the new year but I do not know any of the details of that legislation. It is important that we, as a House, acknowledge the importance of legislation and of making a statement in law that this State will not accept that kind of behaviour.

I do not agree with what Senator Norris said about there not being any hate crimes legislation. There is the Prohibition of Incitement to Hatred Act 1989. I do not know if the cases he mentioned predated the operation of that legislation but, for example, the reference he made to the periodical in Galway which made homophobic comments or contained articles is not acceptable and it is not lawful. Specifically, section 2 of the 1989 Act states:

It shall be an offence for a person--- (a) to publish or distribute written material,

(b) to use words, behave or display written material ...

or

(c) to distribute ... the written material [if it has] words, behaviour, visual images or sounds, as the case may be, that are threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred.

There is some legislation but it is clearly inadequate because it has not addressed many of the cases we have heard about already in the course of this debate. Everybody in this House would want to ensure that we do have the legislation and that both the Garda and the prosecutorial authorities have the instruments they need to effect prosecutions in this regard.

The other legislation is the Equal Status Acts, which is important to have reference to because that identifies nine specific grounds on which it is unlawful to discriminate against people. All of them are legitimate and important aspects of the law that protects minorities, and a majority, in our society in terms of the gender aspect of it.

It is important to recognise that while equal status legislation is tremendously important, it is civil legislation. It does not create a criminal offence and that creates a difficulty from the point of view of laying down a standard for a prosecution in terms of these matters.

I take on board what is stated in this legislation, which I welcome. I have some difficulties. Senator Norris identified one of them, that is, the subjectivity of the offence that is mentioned in section 1 on interpretation. It is vitally important when we are drafting criminal justice legislation that we have regard to the possibility of something being twisted. There is, for example, hate crime legislation in the United Kingdom which is quite strong. It provides for a mandatory increase in a sentencing regime for a judge if, in the process of that prosecution, there is a connection with some hate crime element of the kind in this Bill. Unfortunately, that was twisted in one case I am aware of where the person being arrested for an entirely unrelated offence that had nothing to do with hate crime then accused the arresting officer of being Welsh. I do not know whether the arresting officer was Welsh. I do not know whether describing somebody as Welsh constitutes a hate crime. I am aware of this story because it was told to me by my brother-in-law, who is Welsh. The difficulty is that with loose drafting we create possibilities like that. The notion that something like that would add on a mandatory component to sentencing makes a nonsense of the importance of this legislation.The difficulty I have in terms of the definitions section is the perception that a hate crime "includes any offence that is perceived by a victim or any other person, to be wholly or partially motivated by prejudice against a relevant individual". I also acknowledge that in raising this issue, Senator O'Loughlin stated that there are imperfections in the Bill, as there are in all legislation. That, however, is something we will have to address at on Committee Stage if this legislation is to move forward. Equally, the definition of homophobia is difficult. The Bill states that it "includes negative and uninformed feelings towards homosexuality" as if to suggest that had they been informed, it would not be homophobia. Again, these are matters we can tease out on Committee Stage - if and when the Bill gets to that point.

It is also tremendously important, however, to bear in mind that sections 2 and 3 deal with sentencing, and aggravating factors which can be taken into account in that regard, being related to hate crime. Hate speech, hate offences or anything that is connected to hate are already aggravating factors and every judge in the country will take those factors on board. It is tremendously important, therefore, not to send out the message that is in any way acceptable. Judges already increase sentencing tariffs.

Finally, the Schedule, which creates a provision whereby a maximum sentence would have to be handed down, is problematic. I am generally opposed to the fettering of judicial discretion on sentencing, which is tremendously important. I welcome the legislation. It is problematic but that can be fixed.