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

I thank them and acknowledge the work they have done in contributing and taking part in the overall consultation of this.

As I mentioned at the outset of this debate, it is common legislative practice to have different meanings and terms in different Acts specific to the purpose of the legislation in question. This is referring to gender for the purposes of this Bill. It is provided that, for the purposes of this Bill, gender means the gender of a person or the gender of which a person expresses as a preferred gender or with which the person identifies, and includes transgender and genders other than those of male and female. This is to allow for the protection of transgender and non-binary persons based on recommendations from civil society organisations and is in line with international good practice. For example, if a person who identifies as non-binary leaves an LGBTQ+ venue and are then subjected to a homophobic attack, the intention is that they should also benefit from this legislation. Without the interpretation we have set out, they would not. That was highlighted to us and that is the reason for the definition. To define gender in the same way as in the Gender Recognition Act would mean that this person would not be protected. I refer to this definition and the suggestion that we are now changing all the legislation. It only applies within this legislation and would have no bearing outside of it. This is for the purposes of this legislation and what we are intending to do here, which is to protect people from hate speech and hate crimes. It does not change the Gender Recognition Act, any definition there or in any other legislation.

I wish to touch on other points that have been made by colleagues, in particular around the reverse burden of proof. First, this is very much part of the 1989 legislation. This is not changing anything or introducing anything new. It is a concept in criminal cases. It has to be proven that there was an intent to incite hatred. I gave the example over the weekend where someone is stopped on their way to a protest and they have significant amounts of literature on which there is clear language that would incite violence or hatred against a group of people. If a person was caught with a bag full of drugs, the assumption is that they are either trying to or will distribute them. The assumption here would be that the intention is to distribute this literature, unless somebody can prove otherwise. That is not new; it is a concept in criminal law. It is already in the 1989 Act. We are not changing it. I want to be clear. I do not think any Senators are trying to change how that applies in other criminal instances. This is not new; it already applies here.

Second, this Garda power already exists in law. We are not changing it. We are simply modernising it to make sure that it can take into account the changes in technologies and the ways in which people communicate that would not have been applicable back in 1989.

Senator Craughwell asked if we would be pausing the Bill. We do not intend to pause the Bill. It is important that we progress through the stages and allow for debate. As I said, I will engage with colleagues the entire way throughout. I do not see any purpose or reason to pause the Bill when we have spent four years debating it to get to the point it is at now.

Regarding language and the Irish language being a protected characteristic, the way in which we identified protected characteristics was through public consultation, expert engagement, looking at the facts that we have where people are most likely to be discriminated against and data from the Garda. That is where we came up with the protected characteristics. Specifically for Irish language, that would be covered under nationality, national or ethnic origin, descent or race. It is and will be covered under those areas.

Senator Clonan is not here, but I would like to say that I am very sorry for what happened to him at the time. That happened 25 years ago. This was not about persecuting him, it was about people who did not like what he had to say and tried to shout him down and prevent him from saying what he had to say. This Bill will not prevent somebody like Senator Clonan from saying what he has to say. It will not criminalise provocation or provocative opinions. It sets out clear grounds for reasonable and genuine debate in section 7(3). What happened 25 years ago should not have happened, but this legislation does not change the fact that people will continue to shout down others and try to stop them from having opinions. The legislation would not criminalise the Senator for what he was saying. In fact, it is actually protected in what we are saying here. If you are an academic and saying things for academic debate and discussion, be it in an artistic or political way, you are protected in this legislation. People keep saying that this is happening to them now and they are afraid with this legislation they will not be able to say what they are saying. People are already being attacked and verbally abused, be it online or elsewhere, irrespective of this legislation. I bring it back to the fact that there are a minority of people who are being verbally targeted that we are trying to protect here. They are being physically targeted and they are the people we are trying to protect here, not people who are making contributions to political or academic debate. That is very clear in this legislation. If one goes through every single part of the Bill, that is clearly set out.

That is in line with what Senator Malcolm Byrne said. However, the law is not absolute. The Senator said that it depends on the individual circumstance, the evidence and context in which something has been said. Looking at any other type of crime, we do not set out absolutely every single possible outcome because we cannot do that here. We do not know what might happen. We have to allow a judge, jury and group of our peers to decide what the circumstances are and how we apply them. We can, insofar as is possible, set out the parameters, clear guidelines, rules, protections and defences, but we need to ensure that there is an ability for a judge and a jury to take all of the circumstances into account and make a decision as to what the outcome should be.

I think I have addressed all of the points that were raised. I appreciate there are different views on this. Senators may be receiving a lot of information or emails on this and I too have received many emails. I have had much commentary online and otherwise. While there are people who have genuine concerns that their freedom of expression will be prohibited, much of what I am seeing is actually what we are trying to prevent. Much of it is targeted. For people who perhaps are not strong and are not able to deal with some of the targeted abuse and online hatred, we need to make sure there are protections in place to support them, and that is exactly what I am trying to do here.