Barry Ward (Fine Gael) | Oireachtas source

Ar dtús báire, cuirim fáilte roimh an mBille agus roimh an Aire. Gabhaim comhghairdeas léi agus cuirim fáilte roimpi ar ais don Roinn Dlí agus Cirt. Táimid go léir sásta í a fheiceáil sa suíochán seo arís.

There is much to unpack in this Bill. The Minister has covered a lot of the material. What is important is to dispel much of the opposition to this that has appeared online and in the ether, almost all of which is ill-founded and misplaced. Legitimate questions have been raised, and I intend to address them as well. On the whole, I welcome this Bill on behalf of the Fine Gael group as a progressive movement towards saying to people in Ireland who fall within the protected characteristics outlined at the beginning of the Bill that we support their right, the same as anybody else’s, to peaceably enjoy the space they have in their homes, on the public streets, in schools, in their workplace or wherever it might be, and that we as a Legislature and State recognise there is no basis and never an acceptable level at which people can render hate against any person because of who or what they are, whatever that might be. That is at the heart of this Bill.

The Bill is not about stifling debate but taking hatred out of debate. As the Minister said, it is not about saying to people they may no longer be offensive; unfortunately, including Members of this House, they can continue to offend and to be offensive for years to come without committing any offence. The Bill is specific in what it does. I ask Senators speaking against the Bill today and telling people publicly they will vote against it to tell us if they oppose legislation against hate speech or is it just this Bill. If it is just this Bill, what would they take out that would not render the Bill toothless but leave it as an effective measure to support people with protected characteristics? Will those voting against the Bill tell us why and not give us the rubbish we have seen online about the things the Minister mentioned, namely, removing freedom of expression or speech and overturning the burden of proof. I will come to each of them. Do not give us that. Tell us if you are in favour of legislation against hate speech or not. If you are not in favour, that is one thing. If you are in favour, how would you do it differently?

Let us look at some of the things we have seen floating around in respect of the Bill. First, I welcome the repeal of the Prohibition of Incitement to Hatred Act 1989. Its time has come and probably came many years ago. Fifty prosecutions in 30 years show how ineffective that legislation was. More importantly, times have changed. In 1989, everybody did not have the Internet in their pocket. Kids did not have the Internet. It was not everywhere. The Minister mentioned the example of the assault in Navan. These are things that did not exist in 1989 so it is appropriate that the legislation be updated to address situations like that. That is why I welcome the expansion of the scope of the Bill to information systems provided for in section 6(1).

People have said this removes our freedom of speech. Members of this Chamber have said online today the Bill will remove freedom of speech and freedom of expression. Nothing could be further from the truth. Everybody in this country’s right to freedom of expression is protected by Article 10 of the European Convention on Human Rights. If not that, then by Article 40 of the Constitution. If not that, by section 11 of this Bill. If not that, all of the fair procedures measures within our courts are still there to protect anyone accused of an offence under this Bill. So go away with your nonsense about removing freedom of expression. That is not true. It is misleading and grossly irresponsible.

That is the first point. The second is about thought policing. Nothing in the Bill affects anyone’s thought. You can continue to think offensive, wrong and moronic things if you want. You are still not committing an offence, no matter how hateful they are. It becomes an offence when you turn those thoughts into action, when you go out onto the streets, when you talk to your neighbours, friends and co-workers and express hatred towards them or to another person about them. That is when it becomes an offence. It is entirely appropriate that should be against the law because every time you do that you damage us all. You damage everyone in society and the fabric of this country when you say to people they are not as good as you because of their religion, ethnicity, sexual orientation or whatever it might be. It is not okay. It is time we shut it down and that we shut down the nonsense going on online about this.

We have been told the Bill overturns the burden of proof. I am a criminal barrister and work only in criminal defence.I deal with this issue every day. There is no way I would stand in this Chamber and say it is acceptable to overturn the burden of proof. This Bill does not do that, which is why I am supporting it.

Let us consider what the Bill does achieve. It creates presumptions, or what we call in law "rebuttable presumptions", that exist in so much other legislation. The Minister gave one example, the Misuse of Drugs Act, but one could also have given the examples of the Criminal Justice (Theft and Fraud Offences) Act 2001 or the firearms legislation. If I am walking down the street with a knife in my pocket and get arrested by the Garda, for whatever reason, it is reasonable to require that I explain why I have a knife in my pocket. There would be a rebuttable presumption that I had the knife for a nefarious purpose. By the same token, if a search is conducted of a person's house and it is found to contain hateful material, including pamphlets decrying particular groups because of certain characteristics, it is reasonable to expect the person to explain why he or she has them and reasonable to conclude, in the absence of a rational explanation, that the person has them for a nefarious purpose. This provision exists in legislation of all kinds. Therefore, the same Senators who will today complain about the overturning of the burden of proof would need to complain about all the Acts in the criminal canon. One could say it is absolutely unfair to require people who walk into shops with foil-lined bags to explain why they have devices that are designed specifically to defy the magnetic detection devices at the entrances to shops, but of course it is not. Senators who are going to say things like this in this debate should tell us why what they propose should be the case.

Senators told us that search warrants that might be used are somehow much stronger or more abhorrent than search warrants used in every other area of criminal law, but of course they are not. The provisions that apply to search warrants in all kinds of other areas are exactly the same as those required under this Bill. The Garda has to be able to conduct its business under reasonable circumstances. With all the constitutional protections and all the fair-procedure protections we would expect in any area of law, the Garda needs to be able to conduct searches as part of its investigative powers. If Senators are saying the search warrant provisions in this Bill should not be there, they need to explain to us how this Bill will not be toothless if we remove them. They need to explain to us how gardaí will actually do the job they are required to do when investigating the crimes this Bill creates.

The Senators also pointed to the recklessness provision, but, as the Minister said in her speech, recklessness is a standard provision within any criminal offence. If you commit an offence and say afterwards that you did not think you would do X, Y or Z, it is not good enough. We require a certain level of thinking things through on the part of every member of society, in whatever area. A recklessness provision is standard for most criminal offences in Irish law. By the same token, if you are unhappy with the recklessness provisions in this Bill, you need to complain about them in respect of every other offence that exists. Senators should go away with the rubbish on this as well.

There is a provision in the Bill implying that the possession of material, even if it is not distributed, can tend be an offence as well. This is another area where a provision is believed to entail thought policing or thought crime. Again, this is absolute nonsense. It is not illegal to be in possession of material; it is illegal to be in possession of hateful material without any explanation or reasonable basis for having it. If, for example, gardaí search my home and it is found that I have several articles that might be regarded as hateful by some but which are letters to all the Deputies, Senators and councillors, that is a reasonable explanation. However, if I have many boxes of pamphlets decrying a particular group, it is not reasonable. What this Bill does, in quite a delicate way, is find a balance between respecting the principle of freedom of expression or freedom of speech that we all enjoy and need, and which this country needs, and dealing with people who seek to abuse and misuse it. I hope the provisions on hate crime will lead to the Garda using its powers more effectively. The crime element of this Bill creates a specific aggravated offence in several areas – criminal damage, public order, assault and various offences covered by the Non-Fatal Offences against the Person Act. The Minister mentioned this as well.

An offence covered is the offence under section 7 of the Criminal Justice (Public Order) Act 1994, which refers to the distribution of images or other material that might be offensive. We know that happens all the time, yet the Garda has not taken action, to the frustration of many. The reality is that this Bill will now create a specific offence where the offence is committed with hateful intent. That is really important.

The word "intent" is perhaps central to the Bill. It is not a matter of having internal thoughts or a discussion in a reasonable way with friends; it is a matter of intending to spread hate with the intention of causing violence or hatred against particular groups. I do not understand how anybody could be opposed to that principle. I do not understand how anybody in this House can stand up and say he or she does not want a law making it unacceptable to be hateful publicly and incite hatred against various groups. I would be grateful if the Senators who oppose this Bill explained to me why this is happening.

This is very fine legislation. I am sure the Minister will listen on Committee Stage to Members' proposals to improve it. I may even have some amendments myself. There are provisions in the Bill that challenge us in some ways. One of the issues raised in this regard is the definition of "gender", for example. I do not agree with the submission that it somehow changes how we define gender in Irish law. The definition is specifically limited to this Bill and is very broad. It is broad to the extent that it includes anybody's interpretation of their own gender. People who fall outside the norms of how we interpret gender are exactly the kinds of people who frequently fall victim to hate crimes, hate speech and victimisation generally. Therefore, it is entirely reasonable that the definition be as broad as it needs to be to include as many people who might be victims under the legislation as possible; it does not mean you can now register as many genders as you want under the Civil Registration Act, for example. It is really important that it not be represented in that way.

The Minister stated any of the factors under discussion would be seen as aggravating in sentencing by any judge in this country today, but the Bill writes it down in black and white, or black and green, as the case may be. It states to anybody with a protected characteristic that we recognise they are vulnerable and that things will be said and done today to people with the characteristics listed in the definition section of this Bill that are unacceptable, divisive, hurtful and harmful. We are also stating in black and white that we do not and will not accept this and that we will create specific offences that deal with it. We are also stating we will prosecute people who commit the offences in question and that they will suffer the rigour of what is in the Bill, because that is the way it should be.