Joe O'Reilly (Fine Gael) | Oireachtas source

I welcome the Minister back and wish her well. It is apt that we have this important debate and it is well-attended and participative. That is important. The legislation comes in a very interesting context, in that we now live in a very diverse society which is multiracial and multiethnic and in a pluralist society in a number of respects. In that context, the legislation has a particular significance. I will reference an experience I had in the past few weeks. I attended, with my party colleague, the Minister of State, Deputy Madigan, and the Tánaiste, the opening of a new, very fine extension to a primary school in Ballyjamesduff in County Cavan. The ceremony was beautiful, but what was fascinating was in the principal's speech, when he told us 40% of the population of the school were new Irish, that is, they were born outside the country or their parents were from outside the country. That is a fascinating figure in a small town in south-west Cavan. Some 12 or 13 pupils from fifth and sixth class got up to greet us and welcome us in their own languages. The ceremony was multiracial and multilingual. I thought about it that day. It is incumbent upon us to have the debate we are having and to put legislation in place to protect those people in all situations and that vulnerable minorities and communities feel safe. That is very important. We have a duty in that regard.

The point that we should have a respectful debate and respect all points of view is core. It will be the case and is very clearly the case today. I assume it will remain the case on Committee Stage. There is no question around that but I honestly believe many of the fears of people who speak against the legislation are misplaced. I will come to some of those fears as we progress. They are extreme and almost theoretical positions that might happen. I do not, for a moment, question the motivation of the people making those remarks, because I know them privately and know them to be well-motivated people, but their fears are unfounded.

Before I get into elements of the Bill, I will make the point that nobody deserves to be targeted. Without being sensationalist, I remind people we cannot avoid this. The Holocaust did not happen in the mid-1940s; it began in the early 1930s with hate speech. Hate speech progressed to hate crimes, which ultimately progressed to the Holocaust. The attacks on the Traveller community do not begin on the night of the attack. They begin through the hate speech in pubs, the warm-up and remarks around the place that give legitimacy to all of this. Homophobic attacks in parks do not begin on the night. They begin with homophobic remarks, smutty jokes and exclusion. I know the Minister to be a sensitive and honourable individual and responsive to all, as she displayed in other Ministries. She was horrified, quite rightly, by what happened in Navan. County Meath is a neighbouring county. It never has this kind of problem, thankfully. What happened in Navan was appalling but those children did not get up one morning and decide to do that. They were conditioned by jokes, material online and on television screens etc. Conditioning brought them to that dreadful position. It was a Lord of the Fliesthing; something that was fed into. That has to be considered.

I will turn to specifics of the legislation. People here say we should have defined "hatred". If we defined "hatred", we would have limited the effect of the legislation. It is covered by the Interpretation Act, in that the ordinary meaning of the word to reasonable people is clear and nobody is in any doubt about what "hate" means. The Garda definition, as such, has no status whatsoever."Hate" is understood in a reasonable sense and we all know what it is. A narrow definition of what is meant by "hate" means that there will be acts or elements that are not included. As such, certain actions that constitute hate would fall outside the Bill. Defining hate narrowly will facilitate loopholes and ways of escaping prosecution.

I recently attended a Council of Europe meeting where hate speech was on the agenda and there were specialist speakers. The main issue they discussed was how one big out in previous legislation was for someone to say that hate was not his or her motivation and that he or she did not intend to be hateful or to engender hate. I could argue that, if I drove my car recklessly this evening, I did not intend to knock down an innocent person on the road or, if I drank and then drove, it was not my intention to damage someone. I could also point to the drugs case that was mentioned, although that is a different element. We cannot allow escape hatches. There has to be the capacity to interpret the situation.

Protected characteristics include race, colour, nationality, religion, national or ethnic origin, descent, gender, sexual orientation and disability. Their inclusion here is a product of public consultation and there is no argument around that. I do not believe that free speech is challenged by this. My good friend from the Council of Europe, Senator Gavan, spoke about how a pro-Palestinian rally could in some way constitute hate speech, but there is no question over that. The Bill, and the Minister, specifically state that political speeches, academic material, drama, artistic endeavours and so forth do not arise under the definition of "hate speech". People suggesting quotas for migrants or that they do not want particular races in the country is not hate speech, per se, if it is argued in a political or academic context or a forum of discussion. If there are debates at a pro-Palestinian rally about the role of Israel or at a different rally about the role of Hamas, they are not hate speech. As we all know and as the Minister remarked, most of our fundamental rights are qualified rights. One of those qualified rights is the right to free speech. I do not believe that our right to free speech is challenged by the Bill. It is protected by the Constitution and the European Convention on Human Rights. One could argue in an abstract sense that it is affected, and that would be a lovely debating point, but the reality is that the legislation does not encapsulate artistic endeavour, normal political discourse etc. The right to free speech is not in any sense challenged. We have to be wise about this.

It is right to refer to where someone is recklessly or intentionally engendering hatred. The latter is very clear cut, as is "recklessly". Someone could recklessly engender hatred in a way that was not clear. For example, someone could be reckless by making obscene remarks, telling lewd jokes or encouraging young people to lewdness, homophobia, racism etc. Such behaviour could also be intentional, though. This definition is a common feature of criminal law.

As the Minister stated, it is normal to reverse the burden of proof. It does not take away rights. If I have illicit substances or offensive weapons like knives on me – at the outset, Senator Ward mentioned interference in supermarkets to facilitate crime – it is reasonable that the question be asked. It is not an infringement. We cannot have absolute liberty in society. Instead, we have qualified liberty – we have liberty, but we do not have the liberty to harm others. To that extent, the measure in question is reasonable.

The concerns that were raised over pro-Palestinian rallies and similar political matters were fanciful.

There are 12 aggravated offences. The demonstration test is important for this reason, although people might argue against it. If I engage in hate speech, I could say that it was not my intention to offend, insult or incite. I used the analogy of drink driving earlier, in that it is never the intention of the person who is drink driving to knock someone down on the road, although I know this is not a good comparison. At the Council of Europe seminar – I cannot quite recall, but I believe the leader of our delegation, Senator O'Loughlin, might have been present for it – it was pointed out by senior personnel in the Council that one of the difficulties with previous legislation was how the absence of a demonstration test gave people an out in terms of alleged correct motivation, alleged misunderstanding or allegedly not knowing what they were doing.

The Bill did not escape Dáil scrutiny as my good friend, Senator Mullen, suggested. It went through the Dáil in the normal course and was amended by a majority of Deputies.

Senator Clifford-Lee made a point about antisemitism. Religion is covered under section 3(1)(d).

The fears are unfounded. It is important that we debate them further on Committee Stage.