Michael McDowell (Independent) | Oireachtas source

I lost count but one does not have to go to those lengths to simply ask if the former Senator, Regina Doherty, is right that there are nine definitions, for starters, and would somebody kindly enumerate them for us so that we can see what we are actually putting into criminal statutes such as: the Non-Fatal Offences Against the Person Act; the Criminal Damage Act; the Criminal Justice (Public Order) Act 1991; the various other statutes that will be amended including the Criminal Law (Jurisdiction) Act; by inference the Bail Act; the Criminal Justice (Safety of United Nations Workers) Act; the Criminal Justice (Public Order) Act 2003; and the schedule of the Criminal Justice (Terrorist Offences) Act 2005, among others. If we are going to say that for the purpose of those statutes "hatred" means hatred on the basis of protected characteristics, and if we are going to say that protected characteristics for the purpose of those Acts now involves importing into those statutes by indirect reference the notion that there are, as a matter of Irish law, genders other than male, female and transgender, and that there are other things out there we are now saying are part of the official law of Ireland, part of our criminal law and recognised by law, then what are we talking about?

Does the Minister, Deputy McEntee, agree with the former Senator, MEP Regina Doherty who, on behalf of the Minister's party, went to Edinburgh and said there are nine genders and possibly more? The Minister owes this House an explanation as to what is in fact meant by genders other than those of male and female that are not transgender. What is the Minister actually saying? I could not understand most of Senator Keogan's list but I do not know what most of those labels apparently referred to. I do not even have an idea what the former Senator's nine genders are. I have no idea and I do not see why we in this House should be asked to bring into Irish law the concept that there are unspecified genders, maybe nine in number, which are different from transgender, different from male and different from female but nobody will tell us what they are. That to me is bad legislation. We should at least know what we are actually doing when we amend our criminal law in this way.

We are asking criminal judges to look at that definition as well. This goes back to a little thing that happened in the two referenda that the Minister may remember. Are we saying that judges will decide what it means? Are we just putting it up there and they will decide, in their independence and their wisdom, what a gender that is not transgender, male or female actually can be and is? Is it anything that somebody claims about himself or herself, or themselves to use the new phraseology? I just want to know and I believe we deserve a bit of honesty on this. It is all very well for the Minister to come in here - and I fully support her - to say the victims of hate who are assaulted, harassed, and had their property, families, privacy and their whole lives wrecked are entitled to protection. I agree with that but I also say that if the Minister wants me to change the criminal law of Ireland and introduce a concept of hate based by inference on the existence of genders other than male, female and transgender then the Minister must please tell me what she is talking about. That is not a huge demand to make. It is not a huge demand to make and it is not reactionary to ask what it is she is talking about. Be frank with us. Will the Minister give us three, four or five things that the she says are genders that she believes will be protected in the future by reference to this legislation, but maybe not the full nine as referred to by the former Senator, Regina Doherty, in Edinburgh?

It is not reactionary and it is not divisive to ask that the Minister would please just say what she is talking about and explain her own legislation. I ask the Minister to justify the proposition whereby the definition of gender in the Bill "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...", which I understand and if it stopped there it would be fine but it goes on to say "... and a gender other than those of male and female,", in addition to transgender. No explanation has been given to this House as to what the Minister means. When the present Taoiseach was holding the Minister's position temporarily I did inquire what was meant by this. I got no satisfactory reply. If the Minister is going to rush this Bill into law and deem it to have been passed by this House, even though we will not have had an opportunity to consider any reply the Minister makes to my speech now, or put amendments down to deal with it because there will be no Report Stage, we are entitled to a straight and honest answer now.The question I am putting to the Minister is whether there are genders other than male, female and transgender to which this Bill is going to apply. What are they? How many of them are there? Will the Minister name any of the genders we are being asked to say exist as a matter of Irish law in this Bill? When this Bill becomes law, it will affect a variety of different criminal law statutes, including the Criminal Law (Jurisdiction) Act.

I do not know how temporary the decision to drop the Council framework decision aspect of this legislation is but the House should know what is involved in it. It is said that it does not prevent a member state from adopting provisions in national law that extend Articles 1(1)(c) and 1(1)(d), which deal with genocide and the results of the Nuremburg trials, to crimes directed against a group of persons defined by criteria other than race, colour, religion, descent or national or ethnic origin such as social status or political convictions. It is said that the objective of the framework decision is to ensure that racist and xenophobic offences are sanctioned in all member states by at least a minimum level of effective, proportionate and dissuasive criminal penalties and that, for the purpose of judicial co-operation between member states, there should be a common understanding of these terms. We should be conscious of what we are doing here. People will be the subject of justice and home affairs, JHA, European arrest warrants in respect of the offences it is proposed to standardise. Irish citizens will face trial in other jurisdictions based on those jurisdictions' interpretation of what the term "hate" actually amounts to. We have to be very clear that this is what is intended by this legislation. All that was asked for was that each member state would:

take the measures necessary to ensure that the following intentional conduct is punishable: (a) publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin;

(b) the commission of an act referred to in point (a) by public dissemination or distribution of tracts, pictures or other material;

I reiterate my point about the Internet. We have to do something about that. Article 3 of this framework decision says that:

1. Each Member State shall take the necessary measures to ensure that the conduct referred to in Articles 1 and 2 is punishable by effective, proportionate and dissuasive criminal penalties.

2. Each Member State shall take the necessary measures to ensure that the conduct referred to in Article 1 is punishable by criminal penalties of a maximum of at least between 1 and 3 years of imprisonment.

That is very easily achieved. Apart from a common assault or something like that, there is practically nothing that is not punishable in such a way under Irish law. Article 4 provides that:

For offences other than those referred to in Articles 1 and 2, Member States shall take the necessary measures to ensure that racist and xenophobic motivation is considered an aggravating circumstance, or, alternatively that such motivation may be taken into consideration by the courts in the determination of the penalties.

Let us be truthful; of course, this can be taken into consideration. That is already the law in Ireland. Does anybody seriously think that, when imposing a sentence, an Irish judge cannot take into account that there was racism or xenophobia involved? Do we want to approximate laws across Europe for the purpose of having a common understanding of what hatred is without providing any definition in our own law as to what it amounts to?

The Minister has referred to the advice of two successive Attorneys General. She may not have done herself justice on the last occasion she was here. She said that they had advised her that it would make it more difficult to secure convictions if what is meant by "hatred" and so on was defined in the legislation, which it certainly would. Allowing that their advice to the Minister was somewhat more sophisticated than what was suggested, it seems that the whole purpose of this legislation in its new truncated form is a mere illusion. Nearly every serious offence I can think of that involves damage to people, threats to kill people and all of the other things that are to be considered new offences where hate is a motivation are already punishable by very severe sentences. Nobody has complained that they are not. We are mirroring many offences such as making death threats with offences such as making death threats where hate is an element and we are providing that people can be prosecuted under the new offence with a heavier sentence. At the end of the day, if the jury finds that it has doubt about the hate element, people can nonetheless be convicted of the original offence. Is a judge to say that, because the jury had doubts about the hate element even though that judge is clear in his or her mind that an offence was xenophobic or racist, he or she is not allowed to take that into account when imposing a sentence? These are the kinds of issues that are going to arise. We are tinkering with our criminal law for visual effect.

The serious thing the Minister or her successor must do is to address the need to look at the Internet and its potential to disseminate hatred and to build up threats against people based on protected characteristics. That is the big priority and we are not doing it with this Bill as it is proposed to be amended. We are not going to get an opportunity at the end of this Committee Stage debate to have Report Stage amendments through which we could try to embody the fruit of Committee Stage because a decision has been made that all of this must be guillotined through tonight. Why could it not have been given another week? Is the election so imminent that the Bill has to be rushed through this House so that it can get to the Dáil, in whatever amended state it is in, to be rushed through there so as to create the impression that the Government did not completely back down in the face of legitimate criticism of the Bill as originally intended?

I will reiterate that the procedure whereby the Members of this House were asked to submit amendments on the blind and whereby we are not in a position to amend the Minister's amendment in any shape or form is a shameful procedure to deploy. It was not necessary. Even if the Minister said that she wanted to do this before she goes to the people in November or whenever it is, she could at least have allowed this House to have two bites of the cherry, to see what she was actually proposing and to see whether we wanted to amend what she was intent on doing by way of amendment.The revising function of this House is being short-circuited, deliberately I am afraid, for purposes that are unnecessary, which lack the degree of urgency that they must be done in the next few days. We could have had a better debate and a better Bill if the guillotine had not been imposed.