Tom Clonan (Independent) | Oireachtas source

The Minister is very welcome to the Chamber again. I do not have any objection whatsoever to the intentions and principles that underpin this Bill. It is sometimes said that perfection is the enemy of the good, but one small imperfection in this Bill is the enemy of the good intentions of the Minister and the Government. With regard to the definition of hate I have submitted in my amendment – it is my only amendment – I want to be clear. The citing of the lack of a definition of hatred in other jurisdictions as a reason not to attempt to define hatred is an a priori position; it is not an intellectual position. What if you were to go back to the 17th century and question why, because no jurisdiction in the world gives women suffrage, it should be done here? Just because something has not been attempted elsewhere does not mean we should not incorporate it into legislation like this. We should at least make an attempt.Much has been made of the language in my amendment, particularly the words "emotions of opprobrium, enmity, and detestation rooted in bias, prejudice or hostility". I got those words from the glossary of terms of the European Commission against Racism and Intolerance, the ECRI. It was an attempt to clarify and elaborate. It was not an attempt to deflect or cause confusion. This is the Upper House. I was elected by Trinity College graduates. If there is a problem with the use of language, if we decide to censor certain words because some people have a difficulty with them, that is Orwellian. I am not addressing that to the Minister.

I seek to address the lack of clarity in the definition of "hate" and of the threshold in the context of the intention of a person by incorporating into the wording the following:

Any interpretation of hate or hatred under this Act shall be required to meet the definition and threshold set out by the UN Rabat Plan of Action including all six parts of the threshold which accounts for context, speaker’s status, intent, content and form, extent of the speech act, and the likelihood including imminence to inciting a crime towards a group. Any interpretation of hate under this Act must also be in keeping with the European Convention of Human Rights;

The Minister is not accepting my amendment. In light of what I am going to say, however, I ask her and her officials to consider it and, if they have any discretion, to include some of what it contains in the Bill. The amendment is an exhortation to bring this legislation into line with the aspirations as set out by our European partners and the United Nations. This legislation in the wrong hands and with this definition has the potential to be an oppressive instrument. What do I mean by that? Let us consider what freedom of speech means. The closest definition I could find in Irish legislation is the Universities Act of 1997. Section 14 (2) of the latter deals with academic freedom and provides that "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 test the hegemonic views of the majority, to test the group-think or Gleichschaltung of a society. I think of the ethical and intellectual failures of the Celtic tiger, when nobody could put his or hand up and say that none of what was happening made any sense without risking ridicule and opprobrium. To test and question received wisdom is a fundamental right, as set out in the Universities Act. Furthermore, it is a right to put forward new ideas and to state controversial or unpopular opinions. Imagine, that people would have the right to state unpopular or controversial opinions and "not be disadvantaged, or subject to less favourable treatment ... for the exercise of that freedom".

The reason I am so exercised about this is that as a young man and an army officer, I served my country in the service of peace in the Middle East in circumstances not unlike today, coming under direct and indirect fire to protect the lives of my fellow citizens in Lebanon. When I returned to Ireland, I did a PhD in Dublin City University in which looked at the experiences of my female colleagues in the Defence Forces. That research uncovered shockingly high levels of bullying, harassment, sexual harassment, sexual assault and rape of my female colleagues. I remind the House of the right to put forward new ideas, challenge received thinking and state controversial or unpopular opinions. One can make an ethical rationale for theft in order to feed one's children so that they do not starve. One can make an ethical argument or rationale for lying to protect oneself. One can even come up with a rationale for killing in self-defence or for defending one's comrades' lives. The one thing for which there is no ethical defence is the rape, abuse or sexual abuse of another human being. That is the one thing, as a species, for which there is no defence and that is what I spoke to. I spoke truth to power of a beloved, august institution and what was the consequence? I was exposed to hatred. I experienced reprisal. That reprisal consisted of physical assault in front of my infant children, not for who I am but for what I said. If it is an offence in this country to speak out against rape, sexual assault or sexual harassment, then hang me from the nearest apple tree. I am guilty. Some people mind find it funny, but when one has experienced opprobrium, public denunciation, enmity, detestation rooted in toxic masculinity, bias, prejudice and hostility, one knows that those words are not ambiguous.

I want to be really clear. When I did my PhD, contributed to knowledge and introduced new ideas, I experienced reprisal. This was not 100 years ago. This was 24 years ago. Ireland is a very conservative country and this type of legislation, without the proper definitions and protections, represents an oppressive instrument. Senator Ward, for whom I have the greatest respect as a colleague, a friend and someone who will probably be my local representative after the next election - and I wish him every good fortune in that - said that this Bill is not about cancel culture. I agree with him; it is not about that. However, one of the things I was threatened with by the military authorities was that I had breached the Official Secrets Act in my research, which was a criminal offence, that a file would be sent to the Director of Public Prosecutions, that I would be charged, arrested and if found guilty, I could be imprisoned. The Official Secrets Act was not designed to be a feature of cancel culture but in the wrong hands and at the wrong time that is precisely what it was used for. All the king's horses and all the king's men participated in the reprisal to which I refer. The military authorities, the Department of Defence and, might I say, the university remained completely silent. Not once did the university state that my PhD had been internally and externally examined. Not only that, it had been sent to the solicitors on retainer with the university and had been subject to all of the ethical, oversight and governance requirements.

I can tell the House from personal experience that bringing forth unpopular or controversial views that threaten the hegemonic, received views of the majority in this country can be a forlorn exercise at best, and perilous at worst. My experience was described by Transparency International Ireland as a textbook case of whistleblower reprisal. It included character assassination, denunciation and reprisal which continues to this day and which was reanimated by the emergence of the Women of Honour and their disclosures, by the publication of the findings of the independent review group and, again, on the establishment of a judge-led inquiry into the culture of our armed forces. Make no mistake about it - Ireland is not some sort of benign, neutral environment when it comes to freedom of speech and ideas around what is appropriate or not appropriate. Since I was elected to this House, I have witnessed the coercive use of power by Government to try to curb freedom of speech.I will give an example. During the referendum campaigns, a Minister told NGOs that if they disagreed with the Government line on the care referendum, they would have to defend or set out their position because of Government funding. There is an inherent conservative arc towards coercion in Irish society. I experienced that as I was growing up in the sixties and seventies when Ireland was full of nuns and priests. They had their own cancel culture and their own coercive, autocratic, authoritarian form of a prioritruth. Theirs was the ultimate form of cancellation; it was called excommunication. Within this Bill, there is the prescription for excommunication. We got rid of the last crowd of coercive, authoritarian excommunicators. I do not want to empower or embolden a new generation of high priests and high priestess of political correctness who will seek to suppress alternative views and disagreement. I go back to moral philosophy and Socrates and Aristotle. They all agree that disagreement is the most powerful engine for arriving at the truth. Disagreement is important. I welcome disagreement because without it and without dialogue, we cannot move forward. The lack of a proper definition in this Bill is the enemy of the good. I support this legislation and I ask the Minister to do the right thing on this.

There should be no impulse to censor or excommunicate in our society. I believe, notwithstanding those deletions that have been incorporated by the Government, there is the potential for this legislation to be used as an oppressive instrument in the wrong hands. The Minister might think that will never happen but it has happened to me, not because I was being offensive, being provocative or trying to rock the boat but because I was calling out the most heinous crimes against my female colleagues. Do not think it cannot happen. I have seen the coercive tendency in this Government through its warning of NGOs funded by it that they must toe the Government line. Thankfully, notwithstanding the fact that all the Government parties and all the Opposition parties, bar one, supported the Government line, the Irish people saw the truth and resoundingly voted "No" against the proposed wording of the care referendum. That is something for which I am very grateful.

While this Bill it is not about cancel culture, without the proper definition it could be mobilised to cancel dissent. I value freedom of speech in our society and our culture. We are so lucky and privileged to have it. Do not give something to a future Government or a future Minister that could be used as an instrument of oppression. I want the record to show I am warning the Minister that this contains within it the potential for that abuse. I ask the Minister and her officials to consider some broadening of the definition and some remedy because, in the wrong hands, the opportunity will exist for somebody to use this legislation as an instrument of cancellation or excommunication.

I apologise for being a little bit emotional about this but I have experienced reprisal and excommunication. I have lived with it and the risk it poses to my family, because they too have been targeted in this way recently. Why should my children need to have that conversation in our family kitchen? It all arises from speaking truth to power and holding a controversial view, in the eyes of some, no matter how worthy or how compelling that view is. As colleagues, and I include the Minister in that as I am not just referring to Senators, I ask the Government to please consider remedying the defect and the lack of precision in the definition.