Tom Clonan (Independent) | Oireachtas source

Fearaim fáilte ar ais roimh an Aire agus déanaim comhghairdeachas leis arís. I stand in this Chamber as a completely independent Senator in my own right. I am not part of any coalition of views and, despite certain graphics that have appeared online without my consent or knowledge, I am not part of a coalition of people who oppose the Bill. I want to be absolutely clear about that. I stand alone in what I am about to say.

I welcome the Bill, and I think I know something of the Minister's motivation in trying to introduce legislation that will protect people from the febrile and almost feral space our public discourse has assumed with the advent of digital platforms.At the outset, I will say I agree that in section 3(1), the protected characteristics set out in (a) to (j), from race to disability, are a worthwhile catalogue of people and groups of people in our society who require protection. These categories of people are subject to the most hostile scrutiny and the most appalling abuse on a day-to-day basis, notwithstanding the fact they struggle with their own tectonic challenges in their lives. I want to be absolutely clear about that because of the volume of correspondence and, ironically, the type of abuse and hatred being heaped on me by people who purport to represent either end of the spectrum of opinion on this Bill. How ironic it is that they mobilise the very things this Bill seeks to contain and prevent.

I struggled to find a positive definition of freedom of expression in Irish legislation. Given my professional background, the closest I could find to that was in section 14(2) of the Universities Act 1997, which states:

A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions and shall not be disadvantaged, or subject to less favourable treatment by the university, for the exercise of that freedom.

In that legislation, the right to be provocative and the right to offend within reason are guaranteed. That is a very valuable articulation of freedom of speech. My fear is that this Bill, which I do not oppose, as it is currently configured would inhibit that freedom and would inhibit freedom of speech. I will elaborate on that.

In regard to my experience of freedom of speech in the academic context, I published my doctoral thesis in 2000 on the status of and roles assigned to female personnel in the Irish Defence Forces, a beloved institution of the State, 100 years old last year. Unfortunately, my research found that it was a toxic workplace environment where women were routinely sexually assaulted and raped. For expressing those unpopular, provocative and new views and contributing to knowledge, I was subjected to the most horrific campaign of retaliation which continues to this day, 23 years later, despite the fact that in 2021, the Women of Honour came out and made fresh disclosures of sexual violence, and despite the fact that earlier this year, the judge-led inquiry vindicated the warning I gave 23 years ago. On each of those occasions, I was met with a fresh round of reprisal and retaliation. That has included physical assault, defamation, character assassination, rumours, innuendo and false accusations targeting my family. I know what it is like when you bring forward unpopular views that may test received wisdom. I know what it is like to experience retaliation in that regard.

My fear is that the Bill, as currently worded, without a precise definition of hate, may, in the wrong hands, permit this Bill to be used as an instrument of oppression, although not in the Minister’s hands and not perhaps in the next administration’s hands, but who knows in the future in what set of circumstances we may find ourselves?

The Bill, as currently worded, is so vague in regard to the definitions of hatred, motivation and advocacy, incitement and so on, that it could easily be weaponised by somebody to curb freedom of speech and freedom of expression. I will table an amendment that the definitions as set out by the United Nations Office of the High Commissioner for Human Rights, which is a simple, one-page set of definitions, be incorporated into the legislation to remove any doubt as to what precisely we mean. I speak particularly here about definitions of the terms "hatred" or "hostility", referring to intense and irrational emotions of opprobrium, enmity and detestation toward the target group. The term "advocacy" is to be understood as requiring an intention to promote hatred publicly towards the target group, and the term "incitement" referring to statements about national, racial or religious groups or the protected categories as set out in the legislation.

It is important that within the legislation, there is a very clear statement of what the threshold is. Otherwise, it is so vague and loose that it could be weaponised by any other group. I shudder to think what would have happened to me if this legislation had been in place when I brought forward my unpopular and provocative findings in regard to sexual violence. I cannot overstate how traumatic and appalling that was. I was threatened with prosecution under the Official Secrets Act, a criminal offence. I was told a file would be sent to the Director of Public Prosecutions and that if proceedings went forward, I could be imprisoned. For what? For calling out sexual violence against women in the armed forced? Guess what? The warning I gave was completely ignored. The people who visited that reprisal on me have never been taken to task. Many of them have been promoted to the highest levels in our Defence Forces. I wish the current Chief of Staff and the Secretary General of the Department of Defence the best of luck with the process of transformation and restorative justice that, hopefully, a tribunal of inquiry will bring.

I am saying this to say that these are not just hypothetical fears. These things happen in Ireland. I am old enough to remember the orthodoxy of the Catholic Church and its doctrine, an a priori set of unchallenged domain assumptions with which any person who was not aligned was deemed to be wrong, to be sinful, in the times of Archbishop McQuaid. I am afraid the Bill, as currently worded, would allow certain groups in society to weaponise the legislation so as to create their own new orthodoxy that is equally oppressive.

As I said, in the past number of weeks, I have experienced the type of opprobrium and oppressive, abusive commentary, including emails coming into the office, that are consistent with precisely what it is the legislation seeks to address, from people at either end of the spectrum who might claim that this protects them. How ironic it is that they would mobilise the very dynamic that we are seeking to remove from our society.

I received a huge amount of correspondence on this. It is the largest volume of correspondence I have received from a huge swathe of people in Irish society. They are not the keyboard warriors and lunatics. It is from all parts of Irish society, professional groups, advocacy groups, NGOs and the Irish Council for Civil Liberties. There is a wall of concern being raised. We have an opportunity in this Chamber and on the next Stage to remedy those defects. I absolutely support the Minister in introducing this legislation but please listen to all of my colleagues here and the concerns raised. They are grave concerns. They impact not just on freedom of speech but on freedom of thought, whereby you could possess a diary in which you might have written something and, on the basis of a search warrant, it could be seized. As currently written, the Bill would empower An Garda Síochána to go on a fishing exercise and seize all of a person’s mobile and digital devices and those of everybody resident and trawl through them. It includes a requirement to give up your passport and incriminate yourself. I am aware, and Senator McDowell made me aware, of cases where An Garda Síochána has gone through people’s devices, not found what it was looking for, but found other things and used them to target an individual.I am very concerned in that regard. Senator Boyhan stole my thunder because I was going to use this issue of The Bar Reviewas my prop as well. Among the concerns raised in the volume of correspondence I have received there are also the concerns alluded to by Senator Boyhan and raised in The Bar Review.

I appreciate the Minister giving us the opportunity to talk about this at length. I echo Senator McDowell's and Senator Boyhan's call that we get an opportunity to revisit this later in the year. I ask the Minister to feed this back to Cabinet and with all her party colleagues: let us not guillotine this. It is just too important. As I said at the outset, fearaim fáilte ar ais roimh an Aire agus déanaim comhghairdeas léi. I thank her for hearing me out.