Alice-Mary Higgins (Independent) | Oireachtas source

I pick up where Senator Warfield finished, which was on education. Concerns have been expressed in the House about education. One of the key tools is education that reflects the experiences of minorities in the State and the fact that there is gender, sexuality and ethnic diversity, as well as all the other categories discussed in terms of protected characteristics. That understanding and acceptance from an early day and it not being treated as something frightening is a matter of reality about the people who are here. This is not an ideological piece. It is about who is here, who is part of our society and the fact there is diversity in our society. Early education that continues throughout life in public education is one of the key ways we challenge these issues.

Within this group there are some useful suggestions. There is a general valid point that it would be better if there were greater clarity on some of the definitions. Some of the concerns expressed have been overstated, however, to the point that there is almost a suggestion that we should not include these matters as they are. There are some constructive points. One of the key differences in the definition put forward by Senator Warfield and others is that it does not just talk about hatred in the context of emotion or enmity. Crucially, it speaks to how it is addressed towards persons as part of their membership or presumed membership of a group defined by related or protected characteristics.While there have been strong inputs in this House regarding the appalling treatment of whistleblowers, the hostility with which those who have taken a stand on an issue of principle or difference of opinion have been treated, and suggestions regarding other categories of persons, the key thing in relation to all of these views is that it is not hatred based on your membership or presumed membership of a group of people. It is not hatred addressed towards you simply because of who you are or who you are presumed to be. It is not appropriate to create an equivalence between extraordinarily poor behaviour and abuse, which has been named as abuse and so forth, towards individuals in a situation related to their actions and the kinds of hatred we are talking about here, where actions are directed towards a person simply because of their existence and who they are.

We heard a long list of purported genders earlier. The one word that came to me was not "gender" but "disingenuous", because I believe it is disingenuous to suggest that this will somehow be so wide and confusing, we should almost stay away from it. That is one of the ways in which you silence people, by saying, "Let's make this issue too difficult to touch; let's take it off the table." Let us be clear about the reality. The known fact now is that those who would benefit from protection and indeed who need protection by the State from the hatred and violence they experience regarding gender are predominantly transgender people. Women and men can also experience discrimination but transgender people experience extraordinary abuse, real levels of violence and extraordinary levels of silencing in this State. I think skelligogender was suggested, which I presume is a very small number of persons given that is an uninhabited island, but to be frank, the idea or suggestion is that the danger we might accidentally protect somebody else would somehow warn us off proceeding with legislation that protects a known vulnerable minority of transgender people who experience some of the worst abuse and worst violence that is addressed towards anybody and who have experienced that, not since 2015 but who have seen that intensified in recent years, largely emboldened by the fact there are so many new figures in public life who are willing to create fear around the existence of transgender people and what that might mean. We need to be very clear and honest. There was a call for clarity. Let us also be clear and honest about who actually needs protection and should be protected under this.

I know we are coming towards the end of the debate. Some of my own amendments are unlikely to be discussed. I regret the guillotining of the legislation, as others have said. As has been noted and outlined, the fact is Ireland needs to comply with Council Framework Decision 2008/913/JHA. I have been asking the Minister for a report on it. In the absence of that, if we are removing those sections from the Bill - had they remained, I, along with others, would probably have been looking to amend further and adjust them as I think they could have been better drafted, and I will come to some of the areas that need to be considered in any new attempt - will the Minister in her reply to the debate say what the plans are regarding the framework directive, because we need to see a clear arrow and signal of them? What comes next? As we know, infringement proceedings are being talked about. I suggest we need to know what the plan is to address what was said in terms of expressions of racism and xenophobia and how they should be appropriately tackled.

I would suggest a couple of areas in which there should be learning from the debate on all sides regarding areas that need to be addressed when we come to address these issues. The principles of equality, fairness, proportionality and justice are important. Proportionality was, of course, one of the key tests that IHREC signalled needs to be applied. Power dynamics is one of the key pieces missing from the legislation, since it does not really address power imbalances. I will look at this in two separate ways that need to be addressed. One has been touched on by other speakers but another has been neglected. Crucially, we need to look at the power imbalances in terms of the context, such as situations of employment where somebody is in a position of authority over you or where someone has financial resources, for example, if you are a major tech multibillionaire and are more in a position than others to take action and have impact. Those factors of power imbalances need to be addressed, both in the circumstances whereby you look to someone who is in a vulnerable position in a specific context and how their words are taken, and to the situation where it is particularly difficult for somebody who is receiving abuse or hatred from somebody who is in a position of authority over them to take action on it. There are a couple of ways in which that needs to be considered. Those are the specific circumstances. Some of that contextual piece has been talked about.

There is also the piece, which has been missing from some of the contributions of other Senators, which is the other part of context. We have heard a lot about the context and how it might be taken. Another part of the context is the historical power imbalances, the fact we have a deeply unequal society, and the fact there are those categories of persons, exactly those who were attempted to be listed here, who have experienced higher levels of abuse and violence historically, who have had less power regarding some of the situations they are facing, and who need the State to signal to society that it is not acceptable that there are groups of people in society who can be punched and kicked down at, treated as lesser, marginalised and be subject to the kinds of pressure to silence them and keep them in the margins that we see. That is why it is important, when we talk about it being named in court cases, that it is not simply about the individual. It is important to society to have racism, xenophobia and hatred recognised as aggravating factors because it sends a signal to society by saying you are damaging our society by making it a less equal, less inclusive place, and one in which all are not being treated equally and there are whole categories of persons living in fear and being placed into fear.

It is important when there is incitement to hatred that it is recognised. I disagree with the other contributors who say it is a minor issue in the sentencing. The signal that it sends is actually very important. The power imbalance historically needs to be addressed. That is part of the context too. That is why there is a need for legislation that at least attempts to address this, even though I would be clear that I do not believe this legislation, as is, is perfect. One of the issues regarding power is, for example, the imbalance of economic power, the fact that those with significant corporate power should not be more protected from or less vulnerable to prosecution under this Bill than the individual who says something. One of the other things the Minister, or the next Minister, when coming back to address this, as is required under the Council framework directive, needs to look to is addressing the question of the amplification, including the commercial amplification, of expressions of racism and xenophobia, those who profit from and promote racism and xenophobia for financial interest. That is not solely about the individual who makes the expression; it is that person who profiteers from the amplification of it.That needs to be addressed. It is part of the fundamental problem.

There was a discussion of inclusive and democratic participation and its importance. We need to look at that democratic participation and fair political criticism, which is important. Part of looking at that is ensuring that there is an inclusive public sphere in which people are not literally intimidated from participation in the public sphere, be it political or elsewhere, because of the simple fact of who they are, even before they open their mouths for what they say. All the people who are afraid they will be judged for what they say were spoken about. Simply stepping forward and existing in the public space may make them a target of hatred. That is a problem we need to address. It is one reason we need to tackle these issues.

The EU context has been mentioned. Sadly, there are concerns around some of the transposition in some other EU states. Ireland, rather than aligning with that, should look to avoid those mistakes. It is important that there is no equivalence between political criticism of a state and any other form of hatred. Explicitly, we need to make sure that the protection of the right to criticise any government or state and its actions is protected and that it is not falsely equivalised with any other issue. It is appropriate that denunciation of the crime of genocide or any other human rights crimes, or denial of them, should be addressed but it is also important that we have the right to critique any state and its actions. That must be maintained. This is not the end of the road on this discussion. We have a next stage to come. I hope that there is deep learning from this debate and these categories and that some of those important issues of power and context are better addressed.