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

Amendments Nos. 2 and 13 are required because of the removal of the Schedule to the Bill, which itself is due to the proposed removal of Part 2. The provisions in Part 2 were intended to address most of our outstanding obligations to full transposition of Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law. This is why it is referenced in the Bill. With the deletion of the incitement to violence or hatred provisions, we will no longer be transposing the framework decision. This will be progressed separately in due course. Reference to the framework decision in sections 2(1) and (2) are to be removed.

Amendments Nos. 175, 177, 178 and 180 remove the references to incitement to violence or hatred from the Long Title, along with references to the Prohibition of Incitement to Hatred Act 1989, given that these provisions have been deleted throughout the Bill. I cannot accept Senators Keogan’s and Mullen’s amendments to the Title as the amendments I move have been expressly drafted by the Office of Parliamentary Counsel to the Government.

I propose to take amendments Nos. 3, 4, 5, 6, 8 and 10 together as they all deal with the definition of "hatred". One of the key criticisms of this legislation is that hatred has not been defined in the Bill. I wish to again explain to the House why this is the case. When drafting new legislation, a comparative exercise is undertaken to examine how other jurisdictions have legislated for a particular topic. This exercise was undertaken in developing this Bill at great length, I must add, given that Ireland is one of the last countries in western Europe and the western world to provide to hate crime laws, as I mentioned. There is, therefore, a great body of comparative legislation available worldwide. No other jurisdictions have defined hatred - none; zero. Similarly, legislation from many different jurisdictions around the world has been examined and hatred is not defined in any of them. Some jurisdictions use synonyms for hatred such as “hostility”, “ill will” and “malice”, such as England and Scotland, but again these terms are not defined. In addition, the framework decision of 2008 on combating racism and xenophobia, the one Ireland is required to transpose and which I referred to earlier, does not define hatred. It states, “‘Hatred’ should be understood as referring to hatred based on race, colour, religion, descent or national or ethnic origin.” This is exactly in line with the approach being taken in this Bill.

The definitions of hatred proposed by Senators Clonan, Gavan, Keogan, Mullen and Warfield are based on a European Commission against Racism and Intolerance definition of hatred, which is used for policy and advocacy purposes, not legislation. I stress to Senators that I expressly contacted the ECRI, which confirmed it was never intended for inclusion in criminal legislation. On the contrary, the ECRI made very clear that this definition is only intended to inform policy and offer guidance to member states. I have been strong advised by the current and former Attorney General against using the ECRI definition on the basis that attaching different words to the definition of the explanation of hatred would then require the explanation of each of these constituting words. The Senators used the terms “opprobrium”, “enmity” and “detestation”. These are not commonly understood concepts in the same way that hatred is. These terms do not provide any additional precision. In fact, they just confuse things even more. They could leave the legislation vulnerable to constitutional challenge on the basis that the offences become excessively broad, vague, uncertain and inconsistent with the rule of law. The Attorney General also advises that it is not possible or appropriate to provide exhaustive definitions of every term in the legislation. Additionally, if the amendments were accepted, each of the proposed terms would have to be proven beyond a reasonable doubt in court to secure a conviction. Think of this. This would mean that on top of proving that the person committed the crime, it would have to be proven that the individual concerned demonstrated opprobrium, enmity and detestation, that they were biased, that there was prejudice, that they held contempt or that they were hostile and bigoted. This would place an almost impossible burden on the prosecution. That is what is being asked here. That is what is being proposed to put into this Bill. In essence, I believe that for the purpose of this legislation, many of the terms proposed to define hatred are simply more obscure words which are more likely to confuse a jury in the course of a criminal prosecution than what is a widely understood term - hatred. This is the view also shared by the Office of the Director of Public Prosecutions.

The definition of hatred as currently set out in the Bill represents the word’s ordinary and everyday meaning. The person who attacks a person leaving a gay club for no reason other than they hate gay people can be prosecuted to the fullest extent of the law and be labelled the hate criminal they are. The person who attacks a person simply because of the colour of their skin can be prosecuted to the fullest extent of the law and be labelled the hate criminal they are. There will be no legal uncertainty as to what constitutes a hate offence, as hatred will have its ordinary and everyday meaning. This reflects the rules of statutory interpretation, which the Supreme Court has consistently upheld. For these reasons, I cannot accept these amendments.

Senators Keogan’s and Mullen’s amendments dealing with the definition of “incitement” will be overtaken by the Government proposal to delete Part 2 from the Bill, which contains all of the provisions for incitement to violence or hatred as well as those definitions that are required only for the purposes of Part 2, so I cannot accept these amendments. To Senator Keogan, for the avoidance of doubt, we are not progressing with hate speech. Despite the many social media posts over the weekend and otherwise, we are not progressing with the hate speech element of it. Similarly, I cannot accept amendments Nos. 36, 37 and 38, as this section is to be removed.

I propose to speak to amendments Nos. 9 and 12 together. The definition of “gender” contained in this legislation is confined to this legislation. It does not affect the Gender Recognition Act. This is not a gender recognition Act; it is a hate crime Act. It does not affect the Civil Registration Act - this is not a civil registration Act - or any other Act on the Statute Book. I want to be very clear on this and I want to ensure everyone in this House understands this. The definition of "gender" provided for in this Bill is specific for the purpose of this Bill, and that is to protect our citizens from hate crime. That is the only reason for this. We know members of the LGBTQI communities experience a disproportionate amount of harassment and abuse and a disproportionate level of violence. We know members are targeted for the way they look, the way they dress, the way they identify and the people they love. We know it is precisely the people who do not fit into conventional ideas of gender and sexuality who are most vulnerable to this kind of victimisation.

This legislation is vital and long overdue. Our statistics on hate crime and hate-related incidents have risen year on year. I have just given an example of some of the recent crimes that have taken place in the past year. The Council of Europe has noted a marked increase in hate speech and hate crime, targeting people and organisations based on sexual orientation, gender identity and sex characteristics. This has also been documented by the EU’s Fundamental Rights Agency. Its 2024 survey of more than 100,000 LGBTQI people across Europe gives us a clear snapshot of the scale of discrimination, bullying, harassment and violence that members of this community face. More than half of surveyed respondents were victims of hate-motivated harassment - half of the 100,000 people.Ireland's statistics are no different. Over half the respondents in the EU survey said prejudice and intolerance in Ireland have increased, while two in three said violence in Ireland has increased. In the year before the EU survey, more than half of those surveyed had been harassed. One in 20 had been attacked. We need to think about these figures when we are talking about definitions and what we are trying to achieve here. The numbers illustrate the scale of the problem but do not adequately convey the impact of the incidents on the victims themselves and the broader LGBTQI community.

I received a phone call about two weeks ago – I will not get into the details – about a person who was attacked simply because of who they were. It was a mother who called me. It was devastating for the individual attacked, the mother and the entire family that the individual was singled out because of who they were. The idea that it would be one of my two boys in the future, for whatever characteristic is represented here, is unthinkable. It is heartbreaking to think people are still being targeted because of who they are. These incidents send a message that people in communities are unsafe because of who they are. The physical and psychological impacts of hate crime are much deeper than those of regular crime. Hate crime dehumanises and goes to the heart of a person's identity. It damages their dignity and forces people to change their behaviour and hide who they are.

The objective of this legislation is to provide protection to victims of hate crime on the basis of personal identity characteristics. These protected characteristics include gender, sex characteristics and sexual orientation. This approach is deliberately inclusive to ensure we are adequately capturing the individuals and communities targeted by such crimes. Acknowledging that LGBTQI people are under increasing attack in Europe, the Council of Europe has called on member states to ensure a strong legal framework is in place to prevent and combat hate-motivated offences based on sexual orientation, gender identity, gender expression and sex characteristics.

Gender, as set out in the legislation, means "the gender of a person or the gender which a person expresses as the person's preferred gender or with which the person identifies and includes transgender and a gender other than those of male and female". This broad definition of gender ensures protection for transgender people, as well as non-binary persons and others who do not identify with any of the terms expressly included in the definition. Why would we leave these people out when we know they are more likely to be victims of an attack, an assault or a crime? Inclusion of this broader meaning was on foot of recommendations from civil society organisations representing vulnerable minority groups, including the Coalition Against Hate Crime, which I acknowledge and thank for its work in supporting minority groups. The broad definition of gender ensures protection for transgender persons as well as non-binary persons and others who do not identify with the terms expressly included in the definition. It is also included because the Garda has said very clearly that it needs stronger laws and to ensure the people it sees and engages with daily are included in the legislation. Inclusion of the broader meaning was recommended by the civil society organisations, as well as An Garda and many others. Transgender and non-binary persons experience extraordinary violence – physical, sexual, social, emotional and psychological – daily, often because they do not fit societal gender norms and stereotypes.

The EU survey found that more than one third of transgender and non-binary respondents had been physically or sexually attacked in the preceding five years. Furthermore, transgender and non-binary people were much more likely to have been attacked several times, with almost a quarter indicating they were attacked at least twice. Over half of transgender, non-binary and gender-diverse people say they have suicidal thoughts. We must protect these vulnerable members of our society. This is not just my view; it is the view of the vast majority of Irish people. An all-island national survey undertaken last year showed that 82% of Irish people believe transgender people should be protected by hate crime legislation. Not a single amendment from the Senators in this House would protect a transgender person.