Wednesday, 21 June 2023
Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022: Second Stage (Resumed)
Reference was made this afternoon to J.K. Rowling. I have read her commentary and have seen a lot of what she said. Again, she would not be prosecuted under this legislation. Identities described in this House as nonsense - a person's ability to identify in whatever way they so wish - is not hate speech. I might not like what is said in that way, and many others might not like it, but it is not hate speech. Many examples have been given in this House and I am saying very clearly that this is not what we are talking about here. It might not be a statement that certain people like to hear, but that does not mean it is hate speech. None of the examples referenced in this debate, while some people might not like them, would be criminalised unless the individuals can be proven to have directly incited violence or hatred on the basis of that protected characteristic. The culture wars being discussed here are happening anyway. They are happening online and horrendous things are being said. This is in the absence of hate crime legislation and hate speech legislation, which we are trying to improve.
This is not the way we have done things in this country. When it comes to the division that is being sown in this culture war, we have dealt with really difficult and serious issues, and with emotive issues, in a very calm, respectful and evidence-based manner. We can point to recent referenda on the eighth amendment to the Constitution or on marriage equality. While there have been different voices and different points of opinion, where people might disagree and might not like what has been said, that will continue and that type of discourse and debate will continue under this legislation. The law is not about cancelling people for their opinions in a modern liberal democracy. This is about our responsibility as legislators to protect victims of hate speech and hate crime from harm. As I said at the weekend, we really need to remove ourselves from a lot of the noise, the hateful commentary, and the culture wars that are happening, and bring it back to what we are trying to do here. We are trying to protect those who are most vulnerable in our society and who we know are more likely to be victims of hate speech and hate crime.
Senator Flynn emphasised the need for the enactment of the Bill in the context of her community. I was struck by the Senator's reference to the finding by Pavee Point that only five prosecutions have been successful against instances of inciting hatred against members of the Traveller community in more than 30 years of the existing legislation. If we think of that community, and with the protected characteristics that have been expanded now, most of the new characteristics were not part of the 1989 Act. That there had been so few protected characteristics for the Traveller community shows exactly why this legislation is needed.
A number of Senators said there was a need to define the terms "hate" or "hatred" for the purposes of this Bill, and this is probably one of the biggest points raised here. I have been advised by two Attorneys General - the current Attorney General and the former Attorney General - against adding synonyms for "hatred" to the Statute Book. In the 1989 Act "hate" is not defined. In many other criminal offences "hate" is not defined. I do not hear any other Senator here saying that it has not worked as part of the 1989 Act, not can I give examples to Senators of murder cases where hate is used as part of the prosecution or defence. There is no request or need for the word "hate" to be defined because it is commonly understood by the judge, by the jury, by the Director of Public Prosecutions, and by those who are prosecuting and defending.
Consider other jurisdictions where different words are used. In England, Wales and Northern Ireland the term used is "hostility", but that is not defined. People have an understanding of what hostility is. They do not find that. I believe that, legally, hostile or hostility is a lower bar than hatred. If we consider Scotland, for example, the words "ill-will" or "malice" are used but, again, they are not defined. I would certainly see ill-will as being a lower bar than hatred in this instance. The EU framework does not define "hate" either. One colleague suggested that we would use the words "intense opprobrium" or "disgust" to define hatred for the purpose of this Bill. Are we really saying that this would be a more commonly understood concept to the average person on the street or in this House than "hatred", or indeed to an average person sitting on a jury? Would it really attach much more clarity to the concept of hate or hatred? Would using those other words provide more clarity or would they make the legislation inoperable? What about the words "bias", "prejudice", "contempt", "hostility", or "bigotry", which have all been suggested? I am not saying there is anything wrong there but do any of these clarify the meaning of "hatred" or do they serve to obstruct us so we then have to clarify what those words mean?
In a practical sense, the terms "bias" and "prejudice" here are inappropriate as they create too low a threshold. Everyone holds some form of bias. It is an unfortunate part of the human condition. Some of these biases are likely unconscious. It would be inappropriate and unfair to set out that a bias or prejudice that is held by a person when they are committing an offence could necessarily be enough to label it as a hate crime. From a legal perspective, the Attorney General has cautioned about the risk of successful legal challenge to prosecutions brought if other words or synonyms are attached to a definition of "hate" or "hatred. Defining either word too narrowly could lead to loopholes and ways of evading prosecution. It would also place an almost impossible burden on the prosecution whereby each one of the proposed terms would then have to be proven beyond reasonable doubt. For example, for a hate element to be considered as a component part of a crime, one would have to show bias and would have to show prejudice, contempt, hostility and bigotry, if hatred was defined in reference to these words. There is a greater burden and less clarity if we were to move in this direction. How is it preferable to remain inconsistent with what is already on the Statute Book and with what is routinely used in court proceedings? Senator Joe O'Reilly was correct when he spoke in reference to the interpretation of the Act, that the ordinary meaning of the word to reasonable people is clear and nobody is in any doubt as to what "hate" means.
Senator Chambers was concerned that recklessness with regard to incitement offences lowers the threshold too far. However, if one looks at the existing law it criminalises material that is intended or likely to stir up hatred. Recklessness is not significantly different from "likely to". It means knowing that there was a risk and proceeding anyway. It is, simply, a change in language to update it as to what is appropriate and what is generally used now. It is important to note that incorporation of a test of recklessness was widely welcomed by many of the submissions made during the pre-legislative scrutiny. The test for recklessness is well established if one considers the Non-Fatal Offences Against the Person Act 1997 or other legislation and criminal law. Our legal advice confirms that including intent or recklessness is legally permissible and is appropriate.
Several Senators drew attention to the campaign of disinformation that has accompanied this legislation. It has included misleading claims by certain commentators, and on social media, that the public consultation outcomes have been ignored. It has been said to me time and again that this is not true. It does not reflect the deep engagement that my Department has had with key stakeholders. As I outlined in my opening remarks, the public consultation was intentionally wide in scope and included five different strands to try to seek views on the new legislation to deal with both hate speech and hate crime, and how it should be developed. Giving voices to those most affected by hate speech and hate crime was a hugely vital part of this process. Despite some online criticism and commentary being amplified disproportionately, there has been overwhelming and significant support for the inclusive and victim-centred legislation.
On four of the five strands of the consultation, we had received significantly positive feedback. The fifth, which is the one that keeps being pointed to, was an online poll where people had to actively select to take part in it. It claimed that hate speech does not exist, it does not happen, it is not true and we do not need this legislation. We can interpret things how we want to but I want to be very clear that of the consultation we had, four of the five strands were overwhelmingly positive. The fifth, which was online and where people actively took part in it themselves, claimed, with a very high percentage, that hate speech did not exist and that this legislation was not needed. There is a big difference between what is being said, that a majority of people who took part in our consultation do not want this and it is not needed. That is simply not what happened.
New research conducted by the University of Limerick and Queen's University Belfast, included an Amárach Research survey. This survey is more representative of the general population. It shows that more than two thirds of those polled are in favour of hate crime legislation. Furthermore, the research highlights the general public's understanding of the need to protect certain groups of people from hate crimes, with 82% of those polled favouring the protection of transgender people in hate crime legislation.
I will also respond quickly to a few other concerns that were raised. Senator Clifford-Lee said that anti-Semitism is not covered under this Bill.I assure the Senator that members of the Jewish community in Ireland, practising or not, are protected on the basis of the protected characteristics of either descent or religion and in prohibiting the denial, condonation or gross trivialisation of the Holocaust under section 8. Descent specifically applies in the case where there are secular or non-practising Jews, as mentioned by the Senator. This was a deliberate addition to the Bill’s protected grounds last year, and it aligns with the European Council framework decision on combating racism and xenophobia. The definitions used in relation to genocide denial are to ensure that Ireland’s international commitments in respect of Holocaust remembrance are also met.
Some Senators have taken issue with the meaning of gender for the purposes of this Bill. Unfortunately, so much of this debate has focused on the protected characteristic and gender. To take a step back, this is Pride Month. I met with quite a large group of representatives from the LGBT community last night with the Taoiseach and other colleagues. While it was a positive meeting, they are clear that it is not just that this legislation is necessary but that it is very much needed now. While we have made progress, be it around marriage equality - even yesterday, with the progression of a new scheme to disregard criminal convictions for consensual sex between men - or whether it is around banning conversion therapies, there is still a significant number of the population of the LGBT community who feel it is less safe for them now and they are more discriminated against now than they were ten or 15 years ago. When we talk about gender, sexual orientation and gender identity, and speaking to those groups and representative groups, they are clear that this Bill must encompass and represent their entire community. In addition, it is not just wanted but it is very much needed at the moment.
I mentioned at the outset of this debate-----