Rónán Mullen (Independent) | Oireachtas source

I welcome the Minister to the House and I thank her for taking on board, in part at least, the criticisms of the Bill that were made in this House. It is fair to say that if it was not for the Seanad, we would not be in the place we are in today. The Government has taken on board, at least temporarily, the serious concerns people had about this legislation in its original form, as passed by the Dáil, and its implications for legitimate freedom of expression on important issues of controversy.

That is not to say the Bill did not attempt various protections for freedom of expression and I have always acknowledged that. It is also not to deny there were categories of communication that the Bill sought to protect. However, as was pointed out to the Minister at the time, those protections did not go far enough. In fact, it was all about the context. I previously said to the Minister what seems like a long time ago now, when we had the Second Stage debate on this Bill, that our society is in the middle of a cancel culture. People attempt to weaponise taking offence at other people's communication in order to close down the expression of opinions and ideas they disagree with and believe should not be allowed. Such a culture is of course toxic to any free society. It was pointed out to the Minister, and I again acknowledge what cannot be denied, that were it not for some people on the Government side who accepted there were problems with the Bill as previously cast - insofar as they related to incitement to hatred in particular, the non-definition of hatred in the Bill, the problematic definition of gender in the Bill and the potential for something that was designed to ostensibly protect people from hate-related speech which could endanger them - the Bill could have in fact gone much further and been used to close down the legitimate exchange of ideas on controversial issues. To the extent that the Government has, as I put it earlier, pulled in its horns on the incitement to violence or hatred, that is welcome. However, I can give it only a partial welcome. First, I put on the record that I would have had no problem supporting an update of the 1989 legislation so far as the prohibition on the incitement of hatred or violence is concerned. What we should be dealing with today are Government-sponsored amendments to that legislation to deal with the legitimate concerns the Minister took on board. I do not understand why the Government's response was simply to cut that out of the Bill. My suspicion is that it is just parking it for another day and that when the members of the Government get back into government, they will come back with it and use their majority to push it through without ever engaging with the concerns people had about how far these provisions on incitement to violence or hatred went. As the Minister knows, I have the greatest of respect and goodwill towards her personally, but I am disappointed that no attempt has been made to seek out those who expressed concerns about the Bill and to see whether we could work together to address those concerns in a way that would meet the objective of updating the Prohibition of Incitement to Hatred Act, if that was necessary. I am concerned by the lack of communication that has taken place and what that means in regard to the Government's true intentions, which we must try to discern. That is my first point.

Second, it has been said, rather casually and sometimes glibly, that the 1989 legislation is not fit for purpose and is out of date. My friend and colleague, Senator Ward, mentioned in a prerecorded Newstalk interview we did earlier today that this Bill is to take account of the new digital space, which is not covered by the 1989 Act. I am not sure that is the case. In advance of the European and local elections, helpful documentation was produced by the Electoral Commission to enable politicians to protect themselves and keep themselves safe in the context of the election campaigning. It is interesting, if I recall correctly, that among the legislation invoked as being of assistance was that 1989 legislation. I am not sure there has been careful and honest scrutiny of how the 1989 Act could have been tweaked, if necessary at all, to transfer over what that legislation does in regard to traditional modes of communication and media to ensure, for the avoidance of doubt, that it would also cover anything expressed in the digital and online space.

Of course, as we know, the Government has expressed the desire to secure more prosecutions in this area. That is why we had the strange situation on Second Stage of the Minister, if I recall correctly, using language like "stir up" and talking about how the legislation was intended to prevent people from stirring up hatred, when, in fact, that language was not in the Bill. A lower threshold was being established, which bolstered our concerns that this could be used to close down legitimate freedom of expression. As I said, the Minister has dealt with that temporarily by simply pulling the whole thing out of the Bill. I have concerns about that approach as opposed to a more studied and consultative set of amendments that would allow us to agree on how to cast legislation for this era dealing with incitement to violence or hatred.

The Minister also mentioned, and she is right, that it was said that this legislation would pass in a heartbeat if it contained only the hate crimes element. I think I am the party who spoke in that respect. It is true in that I have much less concern about the hate offences part of the Bill than I had about the implications for the free expression of ideas contained in the incitement to violence or hatred portion. In the same way, I had much less concern about the section of the Bill, which has not been removed, to do with genocide, Holocaust denial and so on. That is not to say I have no concerns. I remember, before any of this legislation came to the House, taking part in an online briefing with Department of Justice officials. I put on record my concern then and I put it on the record again today. I understand the argument for identifying certain groups of people in society in respect of whom if crimes of violence or assault on their property or person take place, and if such crimes are motivated by hatred towards them because of the particular characteristics they might have, that may have a chilling effect on them as a community and there is a particular damage that is done. I can imagine a scenario, for example, where there is a small minority-ethnic group in a particular community and they are being subject to a series of attacks motivated by hatred towards them. I get how that would have a frightening effect not just on the person who is attacked but on the small group as a whole. It is not that there is no argument for selecting particular groups whereby if hatred is shown towards them in the context of a crime committed against them, it is especially grave. I accept that argument.

There is an argument against it, however, to which the Government has not faced up. That argument is that in a society that is already polarised and divided, it is dangerous to go creating different tiers of victimhood in respect of the same crime. It is dangerous to go beyond the point where judges already have a certain amount of latitude and leeway to have regard to the particular circumstances of a crime committed, including not just the mentality of hatred that might underline the crime but other circumstances that would make a given offence particularly egregious in a particular set of circumstances. That discretion and latitude is already there for the courts. It is best left there, even as I acknowledge that there may be, as I said, cases and categories where certain crimes are particularly harmful. It is best left to the courts to take all of that into account in the context of sentencing.

Why do I say that? I do so because, as I said, in a society that is, sadly, polarised and, it seems, more polarised than it used to be, where people are very quick to sense that they are being left behind or are uncared for, anything that suggests that, in the eyes of the State, a crime against X is less serious than a crime against Y is potentially damaging to the common good. I gave the example in my debate with my friend and colleague, Senator Ward, earlier today that if somebody assaults a child because there is a hatred towards that child's parent or just because the attacker is being malicious on a given day, to that child and to that family, the offence is just as serious and grave and deserves the same level of seriousness from the State as if the offence were an offence committed against that child because he or she is a member of a particular ethnic group. It really is for judges to decide what is going on in a particular case. An underlying attitude of hatred towards a particular community or group is just one of the issues a judge should take into account.

On balance, if I were asked, níorbh é an cloch ba mhó ar mo phaidrín, mar a deir siad i gConamara. This was not my biggest concern. However, I do have a concern about the tiering of victimhood. When we tier victims, we also tier offenders. Treating one offender's offence as more serious because it is motivated by a mentality towards a particular group is a dangerous road to go. The solidarity we need to promote in society demands a constant reinforcement that we are all equal in the eyes of the law. That is a fundamental constitutional principle which I should not have to restate. There is something about the hate offences section of the Bill that subtracts somewhat from the principle that we are all equal in the eyes of the law. However, as I said earlier, I was happy to live with that.One of the reasons I am happy to live with it is because when you are talking about hate offences, you are talking about people who have committed a crime anyway. While they might deserve incarceration that is designed not just to punish them but to rehabilitate them, my sympathy towards them does not go very far. Where we are talking about a criminal act, one can make an argument that there is already a level of punishment that is deserved and it may still be that even if the crime is upgraded because of a hate motivation towards people with a protected characteristic, there are still other issues judges may take into account in the sentencing in individual cases. That makes me think there will be no real difference, in practice, to the actual discretion judges might have in a given situation. I am very interested in hearing what the Minister has to say to that and indeed, what my colleagues Senator Ward and Senator McDowell might have to say that to that idea when they come in.

The point I made at the time to the officials from the Department of Justice is that the problem here is a tiering of victimhood that makes me nervous. I will park that, however, and not oppose the Bill today on that ground alone. I will express my concern and move on. There are other, more serious issues with the Bill. I will go further and say that the failure to define hatred, while less serious because the prohibition of incitement to violence or hatred will be removed from the Bill temporarily anyway, remains nonetheless problematic. That is all I will say about that for the moment because I will propose my own amendments, with Senator Keogan, which will offer different alternatives as to how hatred might be appropriately defined having regard to international instruments.

For me, the big challenge remains that a strange, anomalous, innovative, weird and dangerous definition of gender has been left in this Bill. I urge the Minister to change course on that. Let us recall that this Bill grew out of a European framework decision of 2008 and 2009 that put the onus on member states to take actions in order to combat racism and xenophobia, as we all know. The concepts we were asked to deal with as member states, with latitude given in various respects, were all about race, colour, religion, descent, or national or ethnic origin. This Bill clearly goes much further than that. It is worth recalling that is what this framework decision was about. The reference to religion is required to cover at least conduct that would be a pretext for directing acts against a group of persons or a member of such group defined by reference to race, colour, descent, or national or ethnic origin. Clearly, the issue underlying the framework decision was racial harmony. It was about racism and xenophobia. The framework decision required each member state to take measures necessary to ensure that certain types of conduct would be punishable, such as publicly inciting violence or hatred directed against a group of persons or a member of such group defined by reference to race, colour, religion, descent, or national or ethnic origin. Clearly, there is a requirement on foot of the framework decision with regard to certain kinds of incitement to violence or hatred. Obviously, that is not addressed in today's Bill so this work remains unfinished from the perspective of the decision. It requires thinking about it in terms of groups defined by reference to race, colour, religion, descent, or national or ethnic origin.

To the extent that we see the framework decision as binding, it is clear that the Minister has to think in terms of the groups in the legislation that she is casting here to implement that decision. This does not mean that the route of greatly widening the list of groups by reference to protected characteristics needed to be travelled in the way it was. It would be possible - indeed, I have amendments that seek to do this - to achieve a hate offences provision that has regard to hatred but widens the groups' possibilities, as the framework decision entitles the Minister to do. The Minister could take account of hatred aimed at individuals or at individuals by reference to their group status, and such group status could include their family membership. I refer to circumstances in which a person is a member of a particular family, and a child is targeted because they are from that family. I argue and have argued here in my amendments for including people's political opinions as entitling them to be considered in terms of group characteristics. If somebody is attacked because of their connection with a person who has particular political opinions or affiliations, or indeed because of their own political affiliations, I see that level of victimisation as just as serious. I think the Minister should seek to secure that in the context of what she is doing around hate offences.

As regards the troubling issue of gender, and I will return to this in my amendments, it is clear to me-----