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

It is good to be back. I am delighted to be here specifically to deal with this Bill. I thank Senators for attending this evening's debate. I am pleased to present this Bill and to have the opportunity to discuss it with Members of the Seanad. The Bill has obviously gone through the Dáil and it is important that we have an opportunity to discuss and debate in this Chamber.

Enactment of this Bill will deliver two important programme for Government commitments, first to introduce hate crime legislation for the first time in order to ensure that those who target victims because of their association with a particular characteristic are identified as perpetrators of hate crimes and second to repeal and update the Prohibition of Incitement to Hatred Act 1989 so that those who seek to encourage and incite hatred against minority and vulnerable groups can be prosecuted. Enactment will also ensure full transposition of an EU Framework decision on combating certain forms and expressions of racism and xenophobia by means of criminal law.

The Ireland that we inhabit today is a diverse country that is increasingly open, welcoming and progressive. However, as with every society, there is a very small minority of people who target the most vulnerable amongst us purely because of a hatred of some inherent part of their identity. I know that every Member of this House recognises that hate speech and hate crime cause untold trauma for victims, their communities and our broader society. In fact, research shows that victims of hate crimes suffer significantly more distress than victims of other crimes. Such crimes are completely reprehensible and unacceptable. Yet, hate-based offences have become increasingly common in recent years. It often feels as though we take two steps forward and one step back.

An Garda Síochána reported a 29% increase in reported hate crimes in 2022 compared to the previous year. The most prevalent discriminatory motives for hate crimes last year were race, sexual orientation and nationality. We all know that June is Pride Month, and I had the pleasure of speaking at the launch of Navan Pride last night. This comes just after an appalling attack against a young member of the LGBT+ community in Navan, in my own county. What was clear last night is that the community has come together to say very clearly that members of the LGBT+ community should be entitled to live in a safe way in their own community and to love who they want to love. That was a very clear message last night.

Last year saw similar horrendous acts in Sligo, Dublin and Cork. The targeting of immigrants, people with disabilities and members of the Traveller community, simply because of who they are, is shocking and unfortunately tragically frequent. It is hard to believe that despite increasing instances of hate crime and general support from the public to criminalise such acts, Ireland does not have hate crime laws in place and will be one of the last countries in Europe to enact such legislation. That is why it is so important that we enact this Bill.

While we have had legislation in place against hate speech for almost 35 years, it has been ineffective, limited and largely discredited. We bear a responsibility as legislators to do our utmost to provide a safe, fair and inclusive country for all, reflecting the modem Ireland I spoke of earlier. The overwhelmingly positive passage of this Bill through the Dáil has made me very optimistic that the legislation is victim-centred, timely and clear in the protections it provides for those most seriously affected by hate crime and hate speech.

The Bill has been broadly welcomed across the political spectrum, as well as by the large and diverse array of representative organisations of these minority groups we are seeking to protect. While there has been much valuable and positive discussion and reflection since the Government announced its intention to legislate in this area, it has unfortunately also been subject to deliberate misinformation and distortion, including from fringe commentators and US-based social media personalities who I do not need to mention. In framing our discussion in this House, I hope Members will keep in mind that the core purpose of developing this legislation is to ensure that vulnerable and minority communities can feel safe. That is the core aim of what we are setting out to achieve here. We must keep people safe. Nobody deserves to be targeted for the intrinsic and unchangeable characteristics of their identity. To do so is cowardly, callous, contemptuous and should be open to prosecution. The increase in hate crime is not limited to Ireland, but rather is a broader phenomenon globally. It is often fuelled and amplified by social media and the politicisation of certain media outlets that attempt to use the so-called "Culture Wars" to reach a wider audience.

The approach we have taken in developing this Bill has been to develop an evidence-based, fit-for-purpose and legally prudent approach to legislating for hate-based offences in Ireland, in line with EU and international good practice. The development of this legislation is underpinned by an extensive public consultation and research process that began in 2019. I counter any suggestion that this has been rushed by saying that it has been anything but. This included a short public survey, detailed written submissions, seven independently facilitated discussion workshops around the country and a series of meetings with stakeholder groups, civil society, academics, law enforcement professionals and other experts. The first-hand testimony and lived experiences that emerged from the facilitated workshops and meetings with various different victims' groups was particularly insightful for any of us who read through what was discussed. It was profound and in many instances it was devastating. There are people in this country who do not leave their houses because they are afraid. It provided much-needed awareness-raising of the true hostility faced by vulnerable and minority communities in Ireland. I have no qualms in standing up against those who criticise this Bill and those who say that hate speech and hate crimes do not exist in this country. That is simply not true. Most of those proclaiming the loudest do not seem to have taken the time to read the Bill or to understand that it does not seek to infringe on their rights to say offensive things. Nor do they seem to understand that hate speech is already a crime in Ireland.

This legislation was developed with the objective of providing that the individuals who target victims because of their association with a particular identity characteristic can be identified and prosecuted. This is a requirement of the EU Framework decision that we must transpose. There has been some recent discussion - I might touch on some of the issues that have been raised and discussed in these Houses and in the public - around the terminology used in this legislation. Throughout its development, particular attention has been given to the persons, or groups of persons, designated under the protected characteristics as set out in section 3 of the Bill. These are race, colour, nationality, religion, national or ethnic origin, descent, gender, sex characteristics, sexual orientation and disability.These protected characteristics, which underpin the legislation, were selected on the basis of the public consultation and submissions from key stakeholders. They are the characteristics most commonly targeted for hate-based offences in our country. The meaning given to these protected characteristics in the Bill are for the specific purpose of this legislation. We are not seeking to change existing statutory definitions, as some have claimed. This is specific to this legislation. Indeed, it is very common in legislation to have different meanings for terms in different Acts, depending on the specific purpose of the legislation in question. The meaning of "gender" as a protected characteristic in the Bill expressly provides for gender expression or identity in order to include transgender and non-binary persons. This is in line with international good practice and was a strong recommendation from stakeholders. Similarly, the addition of "sex characteristics" and "descent" as protected characteristics was to ensure that the Bill is as inclusive as possible; to include intersex persons and people of Jewish descent or mixed race, further to recommendations from minority communities.

During the Dáil debates, there was some discussion about defining "hatred" in the Bill. On the strong advice of the Office of the Attorney General - the former Attorney General at the beginning of this Government's term and the current Attorney General - we have not sought to limit the definition of the widely understood concept of "hatred" beyond its ordinary and everyday meaning. It is the definition which has been used by the courts, the Garda and the DPP. I am advised that defining it further at this juncture could risk prosecutions collapsing and victims being denied justice. Furthermore, it has been an established term on the Statute Book for several decades, as it carries over from the definition in the 1989 Act. In order to use different words, we simply have to try to describe what those different words mean, and that makes absolutely no sense. That Act, the 1989 Act, which will be repealed and replaced by this Bill, has been on the Statute Book for nearly 35 years. It has resulted in 50 convictions in this period; and many of these were successfully appealed. In updating our incitement or hate speech laws, we must recognise that there are individuals and groups that are deliberately, and recklessly, spreading hatred in our country without any regard for the people they are victimising.

However, I need to make it clear that no one has a right not to be offended. We are not saying we are going to legalise or criminalise somebody offending another person. That is not what is happening here. The right to freedom of expression and freedom of speech are vital rights in any democratic society, and I will defend them the same as anybody else. These rights are protected by the Irish Constitution and the European Convention on Human Rights. People have a right to express their convictions and opinions, no matter how unpopular they might be. People have a right to be divisive and argumentative, as we all are in here, much of the time. People have a right to offend others and to hold political opinions which are not the mainstream.

Section 11 explicitly provides protection for freedom of expression. This section provides that discussion or criticism of matters relating to a protected characteristic does not constitute incitement to hatred in and of itself. However, freedom of speech is not an absolute right. We have seen in other countries that words can result in violence and incitement to hatred. People do not have a right to shout "fire" in a crowded room. They do not have a right to make defamatory statements, and they do not have a right to incite hatred or violence against individuals. When a communication incites hatred or violence against others, a very clear line is crossed and such behaviour must be dealt with through effective, and prosecutable, legal recourse. The incitement offences that currently exist under the 1989 Act are being updated to encompass any communication or behaviour that intentionally or recklessly incites hatred or violence, so that they can be prosecuted more effectively. This is not about lowering any bar, it is about updating legislation that already exists. The key change here is that we are simplifying the core incitement offence and setting the standard at recklessly or intentionally inciting hatred. "Recklessness" is a very common feature in criminal law already. This means a person must either have deliberately set out to incite hatred or violence, or knew that what they were doing would incite hatred or violence, and did it anyway. This is the change that is happening. This is already on the Statute Book but we are now including "recklessness" as part of that. While it is still very challenging to prove, including recklessness as part of this offence was widely welcomed during the pre-legislative scrutiny process. It is hoped that it will contribute to more effective implementation of this legislation in comparison with the existing Act.

It is a lesser offence to prepare or possess material such as posters or leaflets, which is intended, or is likely, to incite violence or hatred, even if the material has not yet been shared or made public. However there would have to be evidence that the person intended that this material would be made public in order to secure a conviction. This provision has attracted a lot of attention, with claims that it equates hate speech to "thought crime". However, the provisions on possessing material are an exact replica of what is in the 1989 Act, so what we are talking about here is not new. I wish to make it clear that this provision only applies in cases where an individual has a very clear intention to disseminate harmful material that would stir up violence or hatred. This would need to be proven in court beyond a reasonable doubt. The provision is being carried over from the 1989 Act, so it is not new. It is intended to cover situations where material might be intercepted before it is communicated; for example in the case of a person travelling to a far-right rally with posters expressly inciting hatred or violence in a car or backpack. We have this measure already in place and a huge number of cases have not been brought.

A lot of this activity is now online so we must ensure that we update our legislation to include online communication. Again, there must be clear evidence of intent or likelihood to stir up violence or hatred for a prosecution to be brought under this section. There has been much discussion on the burden of proof. The burden of proof for preparing and possessing material likely to incite violence or hatred is consistent with what is already on the Statute Book in the 1989 Act. Again, we are not changing anything. This is already in law. What I am proposing is to maintain this standard, as to do otherwise would make convictions significantly more difficult to secure; even where these offences have clearly taken place. Reverse burdens of proof, as applied here, are a common feature of criminal legislation. For example, in section 15(2) of the Misuse of Drugs Act 1977, a person in possession of a large quantity of a controlled drug is presumed, until the court is satisfied to the contrary, to possess these drugs for the purposes of sale or supply to a third party. This does not affect the protections that we have built into our laws around the presumption of innocence, and the general burden of proof remains on the prosecution to show the facts of the case to the court. This is no different. I reiterate that all of the incitement provisions have been carefully drafted to criminalise only the extreme forms of hate speech that deliberately and recklessly incite or stir up acts of hostility, discrimination or violence. The legislation contains robust safeguards for freedom of expression, such as protections for reasonable and genuine contributions to literary, artistic, political, scientific or academic discourse, and fair and accurate reporting. This is about criminalising those who deliberately or knowingly put other people in harm's way through their statements and views. Fundamentally, free speech does not entitle any person or group to cause harm to another.

Similarly, we have a responsibility to tell victims of hate crimes that we are determined to keep them safe from harm, and to let perpetrators know that they will be punished for spreading hatred. As I mentioned, hate crime causes significant psychological trauma and distress to victims. We have to offer the most vulnerable communities within our society the protections that they need, and give An Garda Síochána and the DPP the powers necessary to investigate and prosecute these crimes for what they actually are. A hate crime happens when someone commits an offence because they have a hatred of a person with a particular personal characteristic. For example, if someone was followed leaving an LGBTQ+ bar and then assaulted and shouted at using homophobic slurs, under the Bill, they have been subjected to a hate crime. Another example would be if someone's property is intentionally damaged, or anti-migrant slogans were painted on their property, because they are a member of a migrant community. The demonstration test is used. Assaulting someone or damaging their property is already a crime. It is the hatred against an individual or group on the part of the perpetrator that makes it a hate crime.