Seanad debates

Tuesday, 17 November 2020

Criminal Justice (Hate Crime) Bill 2020: Second Stage

 

10:30 am

Photo of Fiona O'LoughlinFiona O'Loughlin (Fianna Fail)
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I move: "That the Bill be now read a Second Time."

I am delighted to bring this important Bill before the Seanad this evening. It represents an important step forward in the pursuit of equality and justice for all our citizens. As a constitutional republican party, Fianna Fáil has always been committed to fighting discrimination in all its forms. The Bill seeks to tackle hate crimes in an effective and robust manner.

Only yesterday, The Irish Timesreported the fact that the UN rapporteur on the elimination of discrimination in Ireland stated that "Hate crime legislation ... [needs to] be introduced as soon as possible to address the escalation in racially motivated crimes and [to] help build a safer society...". This week is Stand Up Awareness week, which calls for all of us to take a stand against homophobic and transphobic bullying.

It is a sad reality that hate crime is a real and lasting problem in Ireland today and that our legislation is sadly lacking. Ireland stands alone among European nations in not having introduced statutory protections from hate crime. If the harm of hate is to be acknowledged and countered, it falls on us as legislators to act to provide a legislative framework for the explicit naming of bias crime. Ireland must join other nations in ensuring the violence of hate experienced by vulnerable individuals and communities is challenged head-on. Individual victims are all too aware of the reasons that they have been targeted. It is for the worst of reasons - the colour of a people's skin or their ethnicity, religion, immigration status, gender, age, disability, gender identity or sexuality. These reasons are diverse in nature but they all share one commonality. The victim of a hate crime has been targeted for their identity. Victims of hate crime cannot simply assert that their experience was an unlucky occurrence - the wrong place, the wrong time. Instead, they are forced to accept that their social identity was targeted and they remain at risk of repeated victimisation.

Ireland has become a more diverse and inclusive society in recent decades. Irish people of differing race and religion, Irish Travellers, LGBTQ persons and persons with disabilities have all become more visible and engaged with our political processes. This diversity is a strength. Sadly, not everyone has welcomed these changes.Some see this strength as a threat to them and are willing to engage in violence to continue that exclusion. We are all too aware of what that looks like. We think of Shelly Xiong, who was pushed into the Royal Canal due to her race. Seán Munnelly, a 15-year-old boy, was attacked in Eamonn Ceannt Park because of the colour of his skin. A young gay couple, Anthony and Gearóid, were attacked and stabbed in Newbridge because of their sexuality, only 100 yd from my home. We have also seen the arson attacks on direct provision centres and the vandalisation of a mosque in Galway. This list is only a few examples of some of the events that have taken place in the recent past. Each of us will also be aware of other cases in which victims felt they could not speak out or which did not receive the same level of prominence for various reasons.

In a society which expounds principles of inclusivity and diversity, which was founded on the idea that all people should be cherished equally, these experiences are simply unacceptable. It is the responsibility of the Legislature to send a clear message to society that this behaviour will not be tolerated. It is then the responsibility of the criminal justice system to ensure that this message is operative and functional. By adopting this Bill's legislative proposals, we can provide tools that society needs to combat criminal expressions of hatred, hostility, prejudice, bias and contempt.

The human rights of those living in Ireland are violated daily in a manner which is deeply damaging to both individuals and society. In the absence of an adequate criminal justice response to hate crime offenders, victims continue to pay for these crimes. Studies have provided convincing evidence that victims of hate crimes suffer more severely than victims of equivalent crimes, which are not associated with targeted hostility. Those who have experienced hate offences report a wider range of negative psychological impacts, which also last for longer than those exhibited by victims of non-hate-related parallel offences.

The 2016 census established the fact that diversity is now a concrete fact of life for Ireland. Shifting patterns of immigration have changed the racial, ethnic and religious composition of Irish society. This change to society has not been welcomed by all. For some, diversity represents a threat to Irishness, a threat that frequently meets with violent opposition. Those involved with representing minority communities have highlighted concerns in recent years over the rise in the number of hate crimes occurring in Ireland. These are underrecorded and underreported. I also refer to the Burning Issues 2 report, which was based on a national survey of more than 2,600 LGBT people and ten focus groups. The key issue and priority for them is the need to introduce hate crime legislation.

The Bill I introduced in the Dáil with former Deputy Margaret Murphy O'Mahony in 2016 received cross-party support in the Dáil. It went to pre-legislative scrutiny at a committee and it stayed there because of inactivity. The fact that we have not had a two hour debate about hate crime in four years in Leinster House speaks volumes. There is an onus on the Government to get its act together and to stop dragging its feet on this issue. We cannot in good conscience wait another four years for solutions and another debate. The delay in legislating for hate crimes is inexcusable and only serves to discourage people from reporting such crimes.

The purpose of this Bill is to make provision in law for hate crimes against persons based on an individual's asylum or refugee status, race, colour, religion, nationality, ethnicity, disability, sexual orientation, transgender identity, sex characteristics, age, or perceived age. It provides that a crime may be aggravated by hate if, at the time of committing the offence or immediately before or after doing so, a person displays prejudice and is motivated wholly or partly by racist, homophobic, xenophobic, anti-religious or anti-disability prejudice towards a relevant individual.Where it can be demonstrated that an offence has been motivated by hate, this Bill would ensure that it is labelled clearly as such. Those guilty of that offence would be liable to a penalty that can be imposed for committing said offence. It will also provide for those who commit hate crimes to receive counselling to address their prejudice. The Bill refers to the offences to which it will apply, which are criminal damage, public order, theft and fraud, rape and sexual offences, and assault. I acknowledge that there is widespread support across the House, from Senators I have spoken to, for the principle of criminalising hate crime. I acknowledge also that Members of this House may well have proposals to strengthen and improve the legislation. I am willing to work with Senators on the Bill to ensure it is as strong as it can be. Those who may be the victim of such a crime deserve the support of all those who are willing to work with me to improve the legislation.

I believe I have shown, through my efforts in the previous Dáil, that I am committed to addressing this issue and I am certainly willing to engage with others who have proposals. I mention specifically Senator Eileen Flynn, who has assured me of her support, and I look forward to working with her. I acknowledge that the Government has made commitments to address this problem. The programme for Government includes a commitment to introduce legislation to tackle hate crime and hate speech. I regret that it was not listed as priority legislation for the Government, which is why I tabled this Bill.

Victims are looking for change. We must show them that change through our actions, not our words. Every person has an equal right to be protected by the criminal justice system. Stopping hate crime and bringing perpetrators to justice must, therefore, be a priority. As elected representatives and legislators, we have a duty and responsibility to put in place mechanisms that will counter the prejudice, hostility and violence that people can experience as a consequence of their identity. In introducing this Bill, I am also conscious that a number of NGOs have indicated that it needs to be amended. I am fine with that and happy to discuss and agree amendments to it. I advise the House of the following three amendments that I propose to make to my Bill on Committee Stage to address drafting issues. The first is under the interpretation of hate crime, where I propose to include any relevant offence that is actually or perceived to be motivated by prejudice. The interpretation would read:

“hate crime” includes any relevant offence that is perceived by a victim or any other person, to be wholly or partially motivated by prejudice against a relevant individual based on said individual’s asylum or refugee status, nationality, religion, colour, race, disability, ethnicity (including members of the Traveller and Roma communities), gender identity and expression, sexual orientation, transgender identity, sex characteristics or actual or perceived age;

The second amendment I will propose is to include the word "relevant" in section 2(1). The third amendment will be to the Schedule and will propose to delete the following references: "2. An offence under section 21 of the Criminal Justice Act 2011"; "3. An offence under sections 6, 7, 17, 18 and 19 of the Criminal Justice (Public Order) Act 1994"; and "6. Sections 3, 4, 5, 6 and 7 of the Criminal Law (Sexual Offences) Act 1993". In Part 8 of the Schedule, it will propose to delete references to sections 2 and 11 of the Non-Fatal Offences Against the Person Act 1997.

My primary concern and that of my party is that we get hate crime legislation on the Statute Book. It is vital that this sends a clear message that crimes motivated and exacerbated by prejudice and hatred will not be tolerated. Furthermore, we must not limit our responses to hate crime to the justice system alone.We must work at all levels of society to challenge widespread discrimination and prejudice and ensure that all people are treated as full and equal citizens. I commend the Bill to the House and I look forward to other Members' contributions.

Photo of Malcolm ByrneMalcolm Byrne (Fianna Fail)
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I formally second the proposal. In doing so, I pay tribute to Senator O'Loughlin for her work on this. She has been a passionate campaigner for the rights. I particularly commend her on moving forward with the Bill. Even though there is a commitment to address this matter in the programme for Government, I share her frustration that it has not been given the priority it deserves, particularly in light of the fact that 3,800 written submissions were received in the consultation process relating to the legislation in this area. This is an important issue. Senator O'Loughlin indicated that there is a willingness to work with people on all sides in the House to get the best possible legislation. This is Second Stage, so it is about debating the principles. This is really about us, as a republic, speaking about the things that are important to us and ensuring that people are not discriminated against because of their identity.

When I was growing up as a young gay man, Senator David Norris was somebody who has been inspirational over the years. People will remember the story of Declan Flynn, a young man who was attacked in Fairview Park in Dublin in 1982. Any murder is appalling but the only reason he was killed was because he was gay or perceived to be gay. Senator O'Loughlin has outlined other instances of people who have been attacked in this country simply because of their identity. There is a responsibility on us, as legislators, to take action against criminal behaviour but where the motivation behind that criminal behaviour is driven by a hatred we, as a State and society, have to say it is not acceptable. We have come a long way since Senator Norris had to take the case to the European Court of Human Rights. Ireland has come a hell of a long way but in this area we still need to go further. It is also important, at a time when we see the disgraceful behaviour of the Polish Government towards ethnic minorities and particularly the LGBT minorities, that we need to continue to be a beacon of light in Europe in tackling homophobia.

I also want to pay tribute to the Garda Síochána in respect of its work in this area. As an organisation, it has adapted and transformed how it operates. With regard to people from various ethnic backgrounds and those who are gay, lesbian or bisexual, the Garda has gone the extra mile to understand those who come from minority backgrounds. When hate crimes are committed, gardaí provide as much support as possible to the victims. In circumstances such as these, we need to ensure that there is the power at sentencing level where the only motivation behind the action of the accused is hatred of somebody else. We need to make provision for this extra sentencing power.

I hope that we will work together in the House to achieve the best possible legislation we can but, to me, this is about what we say to those groups in our society that are discriminated against. We are going to say that if the only reason for which they are discriminated against is on the basis of their identity or perceived identity, then we will take a tougher stand.

Photo of Lisa ChambersLisa Chambers (Fianna Fail)
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I commend my colleague, Senator O'Loughlin, who has been working on the Bill for a number of years and who brought it before the previous Dáil. I know how much she cares about the Bill, how passionate she is about this issue and how much she wants to see real and meaningful change.It is a fact that Ireland, thankfully, has become a far more progressive, inclusive and diverse society over recent years and we have witnessed significant positive changes. However, not everybody has welcomed this change with open arms. With any change we always meet some resistance. Out of this have come some really hurtful and damaging behaviours by some in our society who sought to commit a crime against another citizen of the country who is another human being, simply on the basis of hate, because they perceive that person to be different to what they believe in or what they want. This needs to be dealt with.

The basis for this legislation is to allow the courts in a situation where a crime has been committed where it is known, or where there is evidence to show, that it is on the basis of hate or discrimination, be it sexual orientation, race, ethnicity and all the categories in the Bill, to take into account when sentencing that hate has been the basis for the commission of that crime. This is important for our society and that is most important for the victims of the crime so they know the harm and hurt done against them has been recognised by the courts, the laws of the land and society, and has been condemned in the strongest sway as being simply wrong and unlawful once we get these laws on the Statute Book.

It is important to note that when somebody is attacked because of their identity or the person they are it leaves a long and lasting psychological impact. Words can hurt the most. "Sticks and stones may break my bones" was something we often rhymed in the playground but the words definitely lasted longer and often can take the longest to heal. It is these types of prejudices and discrimination that we as a country and society need to discuss openly and work through and, quite frankly, stamp out. It is very welcome to have an opportunity in the House to debate the legislation and the topic.

It is very good of Senator O'Loughlin to acknowledge that there is still work to be done on the legislation and that it is not perfect. Some of the emails we have seen show how sensitive the topic is and how many communities and people are affected. Everybody needs to be brought on board and we need to listen to all of these voices. This is just a starting point and there is a long way to go in getting this legislation on the Statute Book. This is why it is important that there be cross-party and government support and that we work with all the stakeholders involved to make sure all voices are heard. The last thing we want to do is exclude anybody or enact legislation that offends our hurts in any way.

I congratulate Senator O'Loughlin on getting the Bill debated. I was not aware it had been so long since had been discussed in either House. This is certainly a failing of the national Parliament. This is a good starting point and I welcome the opportunity to make a short contribution on the matter.

Photo of Mark DalyMark Daly (Fianna Fail)
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The way our debates are structured at present means each Senator has eight minutes, which barely allows all of the groups to come in. I want to inform those coming in to chair the debate after me of this, as they will try to get people in. It is a bit like last week. We changed the rules at the Committee on Procedure and Privileges today, whereby the old rules will apply to allow for shorter contributions so more people can contribute.

Photo of David NorrisDavid Norris (Independent)
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I commend Senator O'Loughlin on bringing forward the Bill, which is very necessary. I am unusual, at least I hope I am unusual, in the House, in that I have personally known nine men to have been murdered. Among them I include Declan Flynn, with whom I was quite friendly. Declan was a shy young man. He worked in Aer Lingus. He went to Bartley Dunne's, which was a gay pub at the time. Some of his colleagues from work were there on a jaunt and saw him and started teasing him about it. He was ashamed and he never went back. Instead, he went looking for company in Fairview Park and he was murdered for that. He was brutally murdered. Even worse, the judge hearing the case let the young men who committed the act off with nothing, not even a reprimand. This was a licence to kill. It was a really shocking thing. I have been involved myself.Some years ago I was talking to a friend in Parnell Street and this trio went past me. There was a young woman in the middle of them and she grabbed my genitals. I said, "Unhand me, Madame. You know not what you touch." With that, one of the other fellows said, "That's the fellow off the television", and the third one said, "That's the effing queer off the television", and he clouted me. I immediately got the gardaí, and they caught them. They were sentenced to pay me €1,000. I asked the garda if I could have the address and he said, "For what?" I told them it was so that I could write and thank them. He said he did not think that would be a good idea at all.

I had my lip split on my own front door. I have had death threats, some of which were quite funny. One man rang me and said, "I'd like to come around there and shove a machine gun up your arse". He then thought about it for a minute and said, "Only I suppose you'd effing enjoy that too". These are the people-----

Photo of Mark DalyMark Daly (Fianna Fail)
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While the Senator is quoting directly it is slightly unparliamentary language.

Photo of David NorrisDavid Norris (Independent)
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I said "effing".

Photo of Mark DalyMark Daly (Fianna Fail)
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I am not going to go into it in detail.

(Interruptions).

Photo of David NorrisDavid Norris (Independent)
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Anyway, I thought this was rather odd because I was the one who was supposed to be unbalanced, ill, abnormal and so on yet here was this creature ringing me up.

Many years ago, one of the free newspapers in Galway put out an edition which was full of homophobic rhetoric. It was violent, aggressive and appalling. I tried to get that looked at by the Director of Public Prosecutions and I was told that there was no basis for doing that because there was no hate crime. That is a good illustration of how it is very necessary.

This has been noted internationally, as referred to by Senator O'Loughlin. The UN special rapporteur on the elimination of racial discrimination criticised the Government for failing to reform its legal framework on hate crime and called for a clear, timebound commitment to make the necessary changes in law. That is significant. This is still going on. In February of this year, a young man in Newbridge - I am not sure if it was the same case Senator O'Loughlin was referring to - was attacked and stabbed on the basis of his assumed sexuality.

I received a lengthy document from a group of women who have problems with the hate crime legislation because they said it allows for the idea of gender to replace the idea of biological sex. They say it lets someone who identifies as the male gender to be recognised by the State as a biological male and for someone who identifies as female to be recognised as a biological female. I am putting that on the record without comment because it was referred to me.

I notice Senator O'Loughlin is introducing an amendment but she is leaving in this idea of perception; the victim perceived that a crime has been committed. That is not satisfactory. It should be removed because it is so subjective. If somebody shouted, "Ya dirty aul snot" to me I would think it is because I am a fairy. It is not. It is because he thinks I am a snot. I believe this is legally challengeable also.

I commend Senator O'Loughlin on the Bill. It is very timely and I hope it passes.

Barry Ward (Fine Gael)
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This type of legislation is welcome. I agree with almost everything Senator O'Loughlin said in her contribution introducing the Bill to the House. I commend her and her colleagues on bringing it forward. It is timely and, regrettably, it is also necessary. A number of Senators recounted the stories many of us will be aware of, including famous cases like that of Declan Flynn, where the most appalling injustice for nonsensical and incomprehensible reasons have been committed against people in this State. There is no doubt that we have to deal with that.

Senator O'Loughlin also referred to the commitment in the programme for Government, which I believe was very welcome. It came not just from the programme for Government but because a number of Members of these Houses have called for this exact type of legislation over the years and for action to be taken in this area.Specifically, the programme for Government states that hate speech and hate crimes have a particularly lifelong impact on individuals and communities and have no place in our society. Senator O'Loughlin dealt with that, and Senator Chambers also made reference to it. In terms of the impact on victims in circumstances where the victims are not just of a crime but of a crime because of some aspect of their person, be it their ethnicity, sexual orientation or gender, which I will come to shortly, or the other issues I mentioned in this Bill, it is entirely understandable why that would have an incredibly pervasive effect on them and the people around them. The damage it does is largely incalculable for those of us who are outside that particular offence. There is no doubt whatsoever that the Legislature must recognise the seriousness of that added element to an offence.

The programme for Government states that hate crime legislation will be introduced within 12 months and will specifically create offences to ensure that those who target victims because of their association with a particular identity characteristic are identified as perpetrators of hate crime. That is a tremendously important statement. We will hear from the Minister, Deputy McEntee, in due course but I understand from her that that legislation is in train. A public consultation on the issue was commenced by the former Minister for Justice and Equality, Charlie Flanagan, some time late last year. I understand that is now complete and the results of that public consultation are likely to be published before Christmas. I hope we will see new legislation officially from the Government in the new year but I do not know any of the details of that legislation. It is important that we, as a House, acknowledge the importance of legislation and of making a statement in law that this State will not accept that kind of behaviour.

I do not agree with what Senator Norris said about there not being any hate crimes legislation. There is the Prohibition of Incitement to Hatred Act 1989. I do not know if the cases he mentioned predated the operation of that legislation but, for example, the reference he made to the periodical in Galway which made homophobic comments or contained articles is not acceptable and it is not lawful. Specifically, section 2 of the 1989 Act states:

It shall be an offence for a person--- (a) to publish or distribute written material,

(b) to use words, behave or display written material ...

or

(c) to distribute ... the written material [if it has] words, behaviour, visual images or sounds, as the case may be, that are threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred.

There is some legislation but it is clearly inadequate because it has not addressed many of the cases we have heard about already in the course of this debate. Everybody in this House would want to ensure that we do have the legislation and that both the Garda and the prosecutorial authorities have the instruments they need to effect prosecutions in this regard.

The other legislation is the Equal Status Acts, which is important to have reference to because that identifies nine specific grounds on which it is unlawful to discriminate against people. All of them are legitimate and important aspects of the law that protects minorities, and a majority, in our society in terms of the gender aspect of it.

It is important to recognise that while equal status legislation is tremendously important, it is civil legislation. It does not create a criminal offence and that creates a difficulty from the point of view of laying down a standard for a prosecution in terms of these matters.

I take on board what is stated in this legislation, which I welcome. I have some difficulties. Senator Norris identified one of them, that is, the subjectivity of the offence that is mentioned in section 1 on interpretation. It is vitally important when we are drafting criminal justice legislation that we have regard to the possibility of something being twisted. There is, for example, hate crime legislation in the United Kingdom which is quite strong. It provides for a mandatory increase in a sentencing regime for a judge if, in the process of that prosecution, there is a connection with some hate crime element of the kind in this Bill. Unfortunately, that was twisted in one case I am aware of where the person being arrested for an entirely unrelated offence that had nothing to do with hate crime then accused the arresting officer of being Welsh. I do not know whether the arresting officer was Welsh. I do not know whether describing somebody as Welsh constitutes a hate crime. I am aware of this story because it was told to me by my brother-in-law, who is Welsh. The difficulty is that with loose drafting we create possibilities like that. The notion that something like that would add on a mandatory component to sentencing makes a nonsense of the importance of this legislation.The difficulty I have in terms of the definitions section is the perception that a hate crime "includes any offence that is perceived by a victim or any other person, to be wholly or partially motivated by prejudice against a relevant individual". I also acknowledge that in raising this issue, Senator O'Loughlin stated that there are imperfections in the Bill, as there are in all legislation. That, however, is something we will have to address at on Committee Stage if this legislation is to move forward. Equally, the definition of homophobia is difficult. The Bill states that it "includes negative and uninformed feelings towards homosexuality" as if to suggest that had they been informed, it would not be homophobia. Again, these are matters we can tease out on Committee Stage - if and when the Bill gets to that point.

It is also tremendously important, however, to bear in mind that sections 2 and 3 deal with sentencing, and aggravating factors which can be taken into account in that regard, being related to hate crime. Hate speech, hate offences or anything that is connected to hate are already aggravating factors and every judge in the country will take those factors on board. It is tremendously important, therefore, not to send out the message that is in any way acceptable. Judges already increase sentencing tariffs.

Finally, the Schedule, which creates a provision whereby a maximum sentence would have to be handed down, is problematic. I am generally opposed to the fettering of judicial discretion on sentencing, which is tremendously important. I welcome the legislation. It is problematic but that can be fixed.

Photo of Ivana BacikIvana Bacik (Labour)
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I welcome the Minister of State. I commend Senator O'Loughlin and her colleagues on proposing a Bill on hate crime and, indeed, on raising the issue and keeping it on the political agenda. As previous speakers indicated, it is long overdue for legislation of this to be put in place. Hate crime laws are well established in other jurisdictions. They are seen as important because they vindicate the rights of victims and those who have experienced hate crimes. We heard such eloquent testimony from our dear colleague, Senator Norris, about his lived experience of suffering hate crime. That is important from the victim's perspective.

Hate crime laws are also important because they recognise motivation of hatred as an aggravating factor in an offence and, in some cases, in sentencing as well as in the aggravated offence. These laws are important because they also recognise a societal disapproval of particular biases, prejudices and hate motivation. Indeed, having hate crime laws on the Statute Book also enables the maintenance of proper recording and reporting of hate crime, a real area where Ireland has been lacking. Others have referred to the UN rapporteur as being highly critical of Ireland's lack of hate crime legislation.

For all these reasons, I have long been a proponent of the need for hate crime laws. In its 2020 election manifesto, the Labour Party put forward a policy to make hate crime illegal and to provide specific laws. It is long overdue and that is well recognised. I am aware there is also a commitment in the programme for Government to bring forward hate crime law and also reform hate speech law. They are different but often wrongly conflated. Those are all welcome.

Senator O'Loughlin has acknowledged that the Bill and the wording used in it are deeply flawed. As a criminal lawyer, I have many issues with the text, I refer to the lack of precision in the drafting, to the definitions section, to the sections on sentencing - for example, section 4 - and the lack of clarity as to whether a mandatory minimum sentence is being created, etc. Senator O'Loughlin acknowledged those flaws and I know she will be aware that, with a criminal statute, there is a requirement that the language be precise. There has been a body of case law striking down offences that are seen as too vague in their wording. Clearly, the wording needs extensive tightening, review and revision. Indeed, we have all received a great deal of comment on that via email and it has been good to see just how much people are engaged in respect of the issue. That is welcome. The Bill is problematic in terms of the wording used and it will require a good deal of amendment.

I am conscious we have debated the issue for many years and it is long overdue that we see some form of legislation coming forward. I ask that the Minister of State give us a timeframe, particularly as the commitment in the programme for Government states that hate crime legislation will be introduced within 12 months of the formation of the Government, that this legislation will be based on an aggravated offences model and that it will be supported by training across the criminal justice system, as well as victim supports. This is all welcome but when will we see it?I am conscious the Department of Justice is currently conducting a review of hate speech law, specifically the Prohibition of Incitement to Hatred Act 1989 which deals with cases of hate speech aimed at inciting hatred but which has been long criticised as being an ineffective piece of legislation under which it is almost impossible to bring a secure conviction. When is the review of the 1989 Act due? I understand that review is imminent and a White Paper is already in train in the Department of Justice. We need, however, a specific timeline to ensure we have the sort of robust and precisely drafted legislation on hate crime and hate speech that we really need.

I wish to pay tribute to the many academics and NGOs that have worked on this issue over the years and whose work has fed into a deep understanding of the sort of legislation that is really needed. University of Limerick, UL, academics, in particular, have led on this. I have long admired the work of Dr. Jennifer Schweppe but also that of her colleagues, Dr. Amanda Haynes and Dr. James Carr, whose report, A Life Free From Fear - Legislating for Hate Crime in Ireland: An NGO Perspective, was launched in 2014. I should declare an interest because I spoke at the launch. The Minister of State will be aware they drew up draft legislation at the time and their recommendations should, and I hope will, feed into the review. They worked, of course, with the Irish Council for Civil Liberties, ICCL, which has led in this area, and with other organisations. I mention NGOs such as the Irish Network Against Racism, INAR, formerly known as the European Network Against Racism, led by Mr. Shane O'Curry. Again, that organisation led the way in raising awareness about the extent to which hate crime is an issue in Ireland. Indeed, INAR and the ICCL and others are involved in a coalition against hate crime that is working to ensure we get the robust legislation we need.

I am aware there were a large number of submissions, approximately 4,000, to the Department of Justice consultation on the 1989 Act. Clearly there are strong views on this and they will need to be fed into the drafting of the legislation.

Without the drafting of the legislation we are failing the victims of hate crime and society more broadly. We are failing as a society because without hate crime legislation, we are not in a position to formally acknowledge the real damage, hurt, pain and suffering caused by hate crime. While we await the legislation we are, I suppose, in a situation where we simply do not know the extent to which hate crime is perpetrated.

In June of this year, the Garda reported that 250 crimes recorded in 2019 were judged to have a hate-based motive. It is worrying, but at the same time, I believe all of us would assume that is an underestimate of the true level of hate crime. I commend the Garda which introduced a working definition in 2019 so it could move towards the recording of hate crimes. Clearly, a statutory framework is essential to ensure we have robust reporting.

There have been some worrying reports about the policing of hate crime legislation.On 20 August of this year in The Irish Times, Mr. Conor Gallagher reported an internal Garda survey which found that a worrying number of gardaí had poor opinions of different minority communities. That is a concern and makes the programme for Government commitment to introducing supports in the form of training for those working in the criminal justice system crucial. We need to ensure the legislation is accompanied by non-legislative and non-penal frameworks which enable the legislation to be effective.

Of course, we are all well aware it will take more than hate crime laws to tackle the real extent of hate crime and hate speech in Ireland. To develop a society in which people truly feel equal and free from the sort of fears many still experience daily walking around public streets or public spaces, we must move towards changing public opinion. We must move towards a system of education and supports, not just for those in the criminal justice system but supports for teachers and students in our education system. We know the motivation behind hate crime is a deep-seated problem in Irish society and we need to make sure we tackle it.

I look forward to specific timeframes from the Minister of State on when the Government will introduce the legislation, when we will see the report published on the Prohibition of Incitement to Hatred Act 1989 and when we will see true reform taking place.

Photo of Niall Ó DonnghaileNiall Ó Donnghaile (Sinn Fein)
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Go raibh maith agat, a Chathaoirligh, and cuirim fáilte roimh an Aire Stáit. Fáilte roimh an Bille agus plé ar an Bille seo anocht. Mólam ait siud a lag é. I welcome the Minister of State and acknowledge those who have tabled this legislation. What tonight shows is how effective it is when Members adhere to proper, timely parliamentary processes and give themselves the space to debate, help and inform legislation of this and other kinds that come through this House. What I always find about the Seanad is that when the collective talent, ability and purpose of Members is harnessed, as in this instance, we can do great work but we must have the ability to acknowledge where there may be legislative weaknesses and have the space that allows us collectively, as Members, to try to help to better amend legislation as it moves forward.

Unfortunately, as has been well articulated, and some of it very acutely by colleagues here tonight, Ireland is no stranger to hate crimes. Hate crime is often motivated by power that can be institutional and personal. It taps into prejudice, inherited and learned. It can be obvious and crude, ignorant and uneducated. It can be invisible and subtle or sophisticated and educated. Senator Ward raised an important point about the issue of being uninformed and how that could, potentially, cause problems in the future with this legislation. As colleagues have already acknowledged, hate crime legislation is long overdue in this State. I have no doubt that the Minister of State will concede that in terms of his own remarks.

As some Members have already articulated, there are concerns. Indeed, the proposer, Senator O'Loughlin, acknowledged in her remarks that there are some concerns around the wording and precision of the contents of this Bill. Some of those concerns relate to the conflation between homophobia and transphobia. I acknowledge there are also concerns by some people in the trans community about what they see as outdated language that perhaps could be tweaked. As Senator Norris eloquently articulated, as always, there are concerns regarding the inclusion of the word "perceived" in the Bill. Senators Ward and Bacik also raised those concerns. I share those concerns and I hope that Senator O'Loughlin will reflect and take our concerns on board, as we move ahead.

Legislation such as this can and must be stronger. It must be informed and shaped by those most impacted. Many people have contacted us recently, which shows how important and crucial it is that when bringing in legislation, not least legislation as important and sensitive as this, we engage as broadly and extensively as possible.

In acknowledging the passage of this Bill tonight, it must be said with all due respect that this Bill and such legislation would have been much better, stronger and potentially much more effective had it have been a Government Bill from the Department and the Minister, that had been informed by the consultation that has been undertaken, as referenced by Senator Bacik in her remarks. There has to have been a purpose to the consultation. I hope that strong, robust, precise and effective legislation ultimately will be the purpose and will be informed by the important consultation on the existing Act because a lot of the relevant stakeholders and groups who have been in contact with us contributed to the consultation in the hope and understanding that this would be the trajectory the Government would follow, as laid out in the programme for Government, in bringing the kind of legislation before the Oireachtas that they want to see that will help tackle hate crime. I say that in no way to diminish or take away from Senator O'Loughlin's intention here tonight.

We have had a good and important debate. It is good that we have had the space here tonight to have such a debate. Given the rise in hate crimes in society, it is a debate that we need to have.While delivering legislation is the ultimate outcome for everyone, it is always positive, as Members of the Oireachtas and people involved in political life, to reassert our commitment to tackling hatred, prejudice and injustice when we have an opportunity to do so. Whether it is the Bill before us or the Bill the Government has committed to introducing, I hope the legislation we introduce will be as effective and robust as it can be in tackling hate crime in society. We cannot sit here in splendid isolation and say "Sin é, we have done enough" because the questions will then be, as rightly acknowledged in earlier contributions, how will the Garda implement and give effect to this legislation and how will those who are committed to hatred and intolerance be effectively dealt with in a way that stops hatred and intolerance and assists those who are most marginalised, the minorities in society, to live free from prejudice, intolerance and hatred.

I thank the proposer, Senator O'Loughlin, the Minister of State and the Cathaoirleach.

Eileen Flynn (Independent)
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I have spoken once before in the House about the need for hate crime legislation and I welcome the opportunity to address this important subject again. I came into the Seanad with the hope that I would help break down barriers for the Traveller community and for all those on the edges of society. I believe inclusive and effective hate crime legislation must be part of this.

I acknowledge Senator O'Loughlin's efforts in this area. However, I am aware that some of the issues with the previous draft legislation in 2016 have still not been addressed in the current version. During transgender awareness month, it is particularly important to point out the need to make sure that transphobia is addressed separately from homophobia in the Bill. This is not clear in the text.

As the only person from an ethnic minority group in the Seanad, I know that if this legislation is not worded appropriately, it could have a very bad impact on people from ethnic minority groups. It would be like the 1989 Act and will not work. Any legislation in this area must be informed by consultation and engagement with civil society. As politicians, we all need to learn and listen because if we do not get legislation right, it could have a negative impact on the people concerned.

One of my favourite quotes is "nothing about us without us" because work is often done without consulting the people who are impacted. While it is great to do the work, we must engage with the people who are impacted by hate crime and hate speech. This is why my colleague in the Civil Engagement Group, Senator Lynn Ruane, and I have over the last two years held consultations on hate crime with a broad network of stakeholders, including the Irish Traveller Movement, Traveller LGBTQI+ Action Group, the Irish Network Against Racism, INAR, and Muslim Sisters of Éire, to name but a few.

Since 2014, I have been involved in the #LoveNotHate campaign around hate crime legislation with Shane O'Curry of INAR and the wider INAR network. Senator Ruane and I are working passionately to deliver hate crime legislation that will work for people in Irish society. We will also follow the Department's review of the Prohibition of Incitement to Hatred Act 1989.We have been working with academics from all universities regarding legislation on hate crime that will work for people from ethnic minority groups.

Sharon Keogan (Independent)
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I thank the Minister for coming in. The Bill is flawed in its purpose of creating an offence of hate crime. It is also flawed in its principle and substance. It imports identity politics into criminal law, which will prove unworkable, profoundly arbitrary and divisive. The Bill is flawed beyond redemption. It is not capable of being amended.

This Bill seems like a desperate attempt to garner popular support and media attention on the part of Fianna Fáil.

Photo of Malcolm ByrneMalcolm Byrne (Fianna Fail)
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Shame.

Sharon Keogan (Independent)
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"Go woke or go broke" appears to have been the strategy of Fianna Fáil in recent years. This is another example of that pathetic strategy. Devoid of any true guiding principles, languishing on an historic low of 11% in the opinion polls and registering a paltry 8% support from under 35s, it looks as if Fianna Fáil is going broke. It is being devoured by Sinn Féin on its left and by its new partners, Fine Gael, on its right-hand side.

I will turn back to this fundamentally flawed Bill, the purpose of which is to create a new criminal offence of hate crime and superimpose it onto specified existing criminal offences. Section 2(1) states:

An offence is aggravated by hate crime against a relevant individual if— (a) at the time of committing the offence, or immediately before or after doing so, a person displays racism, homophobia, xenophobia, anti-religious prejudice or disability hate crime towards a relevant individual, or

(b) the offence is motivated (wholly or partly) by racist, homophobic, xenophobic, anti-religious prejudice or disability hate crime towards a relevant individual.

That section tacks the label of "hate crime" onto existing crimes as an aggravating factor for the prosecution. The vagueness, breadth and open-ended nature of this provision is quite staggering. For example, racism includes things such as antagonism. Antagonism, which is extremely subjective, would be made criminal if anyone claimed it.

The definition of "xenophobia" encompasses an accused person having a "fear of people from different cultures", meaning that fear is also a potential hate crime under the Bill.

Homophobia is defined as including "negative and uninformed feelings towards homosexuality or individuals who are identified as, or perceived as being lesbian, gay, bisexual or transgender". No matter what one thinks about this Bill, how are negative and uninformed feelings to be proven beyond a reasonable doubt?

What type of evidence is going to be used shift the evidential burden onto the accused? That question is answered in the definition of "hate crime", which includes "any offence that is perceived by a victim or any other person, to be wholly or partially motivated by prejudice against a relevant individual". That is a problematic provision. It means the accused must go into evidence, having their privilege against self-incrimination and the right to remain silent brushed aside based on the subjective perception of the victim or any other person.

The definition of a "relevant person" in section 1 includes:

... individuals who are identified on the basis of their asylum or refugee status, nationality, religion, (including no religion), colour, race, disability, ethnicity (including members of the Traveller and Roma communities), gender identity and expression, sexual orientation, transgender identity, sex characteristics or age or perceived age ...

This is also disturbing and ill-defined. "Age or perceived age" could potentially refer to everyone on planet earth. Whose perception is this based on? Does not everyone on planet

earth have sex characteristics? Nationality, religion, or no religion, colour or race can all apply to everyone on the planet, making virtually every relevant offence a potential hate crime.

The definition of "gender identity and expression" appears to omit people who decide that they are non-binary. Do they not also deserve the hate crime victims' status?Regarding sentencing of the accused convicted of a hate crime, section 3(1) states:

Where is it proven or demonstrated to the satisfaction of the court, that a motivating factor for the commission of a relevant offence (as set out in the Schedule to this Act) was aggravated by hate crime against a relevant individual, the court shall, on conviction ...

What on earth does the phrase "demonstrated to the satisfaction of the court" mean? Have those introducing this Bill invented a new, alternative standard of proof in criminal cases involving hate crimes? Whatever happened to proof beyond a reasonable doubt?

The penalty to be imposed by the trial judge under section 4 is an unwarranted intrusion by the Oireachtas in judicial discretion when sentencing. It tries to compel a trial judge to impose a maximum sentence on someone convicted of a hate crime. If this is supposed to act as a deterrent, it will not. All the evidence from the field of criminology points to the likelihood of being apprehended as a deterrent and not the potential sentence.

Section 5, like the rest of the Bill, is pointless at best. Trial judges already have considerable latitude when sentencing to make probation orders with a wide range of conditions as they deem appropriate to the offender, the offence and the facts of the case. It is my understanding, for example, that as the law stands, a trial judge could, if he or she deemed it appropriate to the facts of the particular case, stipulate that an offender must do a course while on probation to educate them about racism. Similarly, this entire Bill is unnecessary. To explain, as the law stands, if there is evidence of racism that is relevant to, and admissible in, a particular case of assault, for example, it can be presented in court by the prosecution for the judge and jury to consider, as appropriate.

Not only is this Bill poorly drafted, ill-conceived nonsense on stilts, it is, equally, a manifestation of poisonous identity politics. It is a shameful attempt to corrupt existing criminal law with this toxic, incoherent ideology for the sake of personal political gain. For this reason, I will oppose the Bill in its current form and vote against it on Committee Stage.

Aisling Dolan (Fine Gael)
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I thank Senator O'Loughlin for her work on the Bill. Hate crime is based on a criminal act and biased motive. Coincidentally, I recently read an article by Niall Stokes, who has done a lot of work on racism, in Hot Press. I read Being Black in the EU, a study conducted in 2019, which asked approximately 6,000 people of African descent in 12 countries in Europe their opinions on many different issues. I was shocked because it was an area in which I did not expect Ireland to rank highly and it is one survey that one does not want to see one's country's name listed. However, Ireland was ranked second in violent attacks against people of African descent. I could not believe that. Across all areas, there has been a lot of racially-motivated verbal abuse. We have to do something and act.

I support the work the Senator is doing and believe that we have to bring it to the fore because it is a discussion that needs to be had. We are here today to ensure that we can do something to support people who are going through this and it would be excellent to have people in here who can speak about having had this experience. We are speaking about surveys of people who are affected by this but the make-up of the Seanad and Dáil is not reflective of the community we have in Ireland at the moment. It is up to us to speak on their behalf and on behalf of us all. I support and thank the Senator.

Photo of Frances BlackFrances Black (Independent)
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There is no doubt that it is now more apparent than ever that we have an urgent need to introduce hate crime legislation in Ireland. I say "Well done" to Senator O'Loughlin for introducing it. We need to protect all minority groups in Ireland.It is essential that the silence is broken on these crimes and people actively report racism and other hate attacks in order to address and stop their occurrence. Freedom of expression should never extend to hate crimes and Irish people need to accept that.

It is great to see Senator O'Loughlin show an interest in the area of hate crime and share her views on the topic. Like others, I fear there are a number of gaps in the Bill in terms of affording protections to all minority groups. It does not extensively cover the proposed areas of protection included in the 2016 Bill. It is paramount we craft this Bill with everyone in mind so that nobody's existence is undermined or forgotten. Legislation, particularly where penalties are involved, must also be legally clear. For example, there is an important difference between a hate crime offence and hate as a factor in defining the crime. Different approaches to this have been taken in different legislation, including the Bill we are debating.

I am aware that my colleagues, Senators Flynn and Ruane, have been actively working in the area of hate crime legislation for a number of years and have consulted and engaged with non-governmental organisations and activists dedicated to hate crime legislation. It is great to see support on this issue among many politicians across the House, including Senator O’Loughlin. The Bill features very important points which will be considered by Senators Ruane and Flynn as they continue in their commitment to creating hate crime legislation that will afford adequate protections to every member of society.

Photo of Rónán MullenRónán Mullen (Independent)
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Cuirirm fáilte roimh an Aire Stáit. There are major problems with this legislation. Much has been said already about the flaws in the drafting of the Bill. I must be honest and say it is flawed in its delivery, so to speak, or in its execution. That is rooted, I am sorry to say, partly in the fact that it is also flawed in its conception. It is in places confused, erratic and, ultimately, it would be counterproductive in terms of shaping good law for our country. It gets bogged down in definitional problems that frustrate its aims but would also endanger existing rights such as equality before the law, a trial in due course of law and freedom of expression. For example, the drafters of the Bill appear to be unclear on whether hate crime is an offence motivated by certain prejudice or simply a perceived attitude of prejudice contributing to an offence. If they mean a perceived attitude of prejudice aggravating an offence, which is what I think they mean, they should not be using the term “crime” because this will cause no end of confusion. It seems the drafters want to treat certain thoughts as criminal if these thoughts are part of the background to an offence, for example, assault. The problem is that this takes us into the area of thought crime and the Bill seems to state such thought crime has been committed if any person, not necessarily the victim, alleges it and if the prosecution states it, but there is no reference to any burden of evidence or standard of proof required to establish the thought crime in question.

The Bill also fails to be precise about which categories of person might be victims of hate crime. In one place, hate crime is defined as including age-related prejudice but when it comes to the ability of the court to take hate crime into account, offences against victims of age-related prejudice are excluded.

There is no easy way to say this but I am extremely surprised the Bill has come before us in this form. While we all commend each other’s best efforts and sincerity of approach, we must bear in mind that people are looking in from outside. If we bring forward legislation that, for example, seems to define hate crime as an offence in the interpretation and then says an offence is aggravated by hate crime, which is to suggest that an offence is aggravated by an offence but that second offence is nowhere defined in the legislation, it will lead to criticisms of the Seanad. It is better to deal with these topics by way of a motion to allow us to tease issues out. Even if a Bill then comes forward at the end of that, which some people will accept and some will reject, at least we have to spend less time teasing through the issues. That is my honest opinion on this. The Bill gets bogged down in definitional problems but it also jumps the gun. The public consultation by the Department of Justice on hate speech and the review of the Prohibition of Incitement to Hatred Act 1989 is ongoing. It is my understanding that a separate consultation process is envisaged regarding hate crimes, so there is the prematurity of the issue. There is also the fact there is legislation in Britain, as mentioned by Senator Ward, among others, in sections 145 and 146 of the Criminal Justice Act 2003 in England and Wales. That English legislation does not even mention the phrase "hate crime", yet that phrase is used 25 times in this short Bill, and that worries me. What has happened here is a phrase has been taken from political discourse, namely, "hate crime", and there is an attempt to translate that into a legal concept instead of doing what Westminster did and trying to tackle the issue directly in a focused way. Legislation is one thing but public education in terms of the work of our schools, churches, non-governmental organisations or whoever it is that forms ideas and values is a very different thing from what we eventually craft into legislation. That point cannot be made strongly enough.

I wish to address the concept because there is idealism behind the idea of trying to attack nasty attitudes in our society. I understand what the proponents of the Bill are trying to do, that is, to send a message that prejudice on the basis of a person's race, religion, sexual orientation, etc., should have no place in human behaviour or in Irish society. That is excellent, but the legislation does not do this. It does not create any new category of crime. We have the reality that judges are able to take circumstances into account when sentencing. This seems like something the sentencing guidelines committee of the judicial council should be examining and reporting on before we start issuing new legislative edicts to the Judiciary.

However, most of all, I am worried about the concept underlining this Bill, which is that is there is a hierarchy of victims among people who are equally vulnerable. That would send entirely the wrong message about crime. To take an example, imagine two identical cases of assault causing harm, one is committed against an elderly woman and another is committed against a young member of a community that is an ethnic minority. Most people would think these crimes should receive roughly similar sentences or perhaps that the crime against the elderly person might deserve a harsher sentence in certain circumstances. However, this Bill would suggest the crime against the elderly person could theoretically get a fine and a suspended sentence while the assault against the younger victim would be eligible for the maximum sentence of five years in prison. Is that justice? To take another example, and I say this with great care, the case of a sexual assault against a vulnerable person, where a person carries out an assault against a vulnerable person. They do it because they are racist and the person is a member of an ethnic minority but perhaps they do it because they have a grudge against the victim's family or they have a love of violence. We need to be very careful about creating a hierarchy of victims or a hierarchy of seriousness or odiousness in circumstances like that. That is to where talk of hate crime takes us. Judges must take all sorts of circumstances into account. There may be racism. There may be prejudice based on a person's bodily characteristics or their sexual orientation, perceived or otherwise, but it may also be there are other issues involved such as love of violence or hatred of some other kind that is not defined in this Bill. We need to be very careful about setting up a hierarchy of victims. That is not good in terms of promoting the right kind of attitudes of respect for every person in our society.

The Bill waters down the notion of hate crime because potentially under its provisions every crime committed could be a hate crime. Other Members have addressed this. The Bill defines hate crime as any offence and a crime should be an offence, but elsewhere it refers to hate crime as the attitude underlining the offence.My point is that where the Bill defines hate crime as an offence, the phrase "any offence that is perceived by a victim or any other person" is used. If, therefore, some officious bystander - to borrow a legal phrase from another context - takes a view, can he or she be heard in evidence if he or she believes that the offence in question was wholly or partially motivated by prejudice against a relevant individual? On the face of it, this could mean that all offences listed in the Schedule could be hate crimes or that all offences listed in all circumstances could be seen as hate crimes because, in a country of 5 million people, there will always be at least one person who holds a particular opinion, no matter how reasonable.

Others have addressed the problem relating to the standard of proof here and, in a way, that is one of the most alarming flaws in the Bill. It seems that three things are required for an offence to be deemed to be a hate crime, namely, that there is an underlying offence, that somebody perceives it to have been a hate crime and that the prosecution has to state it in evidence. I have never seen such a low threshold that must be met before the imposition of a maximum sentence.

I thank the Leas-Chathaoirleach for his indulgence and will now conclude. In DPP v. Cagney and DPP v. McGrath in 2007, the late Mr. Justice Adrian Hardiman spoke of "the fundamental value that crimes must be defined with precision and without ambiguity so that the criminal law is certain and specific". I am afraid that this Bill fails that test.

Photo of Seán KyneSeán Kyne (Fine Gael)
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I welcome the Minister of State and I compliment those involved with this Bill, particularly Senator O'Loughlin, as lead speaker. I welcome the debate on this important matter.

One never knows from one day to the next who might be impacted upon by hate crime or hate speech. Any attempt to impose heavier penalties is to be welcomed. The Bill has been put together quite well. It encompasses a number of different areas, including issues relating to an individual's asylum or refugee status, race, colour, religion, nationality, ethnicity, disability, sexual orientation, transgender identity, sex characteristics, age or perceived age, and provides for related matters. All of these, evidence has shown, are matters in respect of which people have either suffered abuse or been subjected to hate speech and hate crime. Obviously, there is a history here in the context of LGBT communities, people with disabilities, who are constantly discriminated against in any event, and those who are coping with very difficult situations regarding transgender identity.

The previous Government did a great deal work on transgender issues in particular. We have been approached by a number of individuals who have made submissions regarding concerns that they have that the Bill could cause problems for some within the LGBT community. This stems from concerns regarding the Gender Recognition Act 2015, with which I would have been involved via the Government that was in office at that time, as would other Members of both Houses, past and present. We celebrated the introduction of that groundbreaking legislation. The main problems are arising because of the idea of gender replacing the idea of biological sex. The 2015 Act allows someone who identifies as being of the male gender to be recognised by the State as a biological male and for someone who identifies as female to be recognised by the State as a biological female. There are concerns within the LGBT community about certain aspects of the Bill. I know that it would not have been the intention of those who drafted it to be the cause of such concerns. I am sure that if the Bill is allowed to proceed to Committee Stage, some of these issues could be ironed out.The purpose of the Bill is to make provision in law for hate crimes against persons on the basis of asylum or refugee status. Many of us have experience in dealing with very vulnerable people who are discriminated against because of who they are, their race, or their status in society. I had direct experience of that in the past year in my previous role. It is an area that is fraught with difficulties so I can very much understand the rationale behind a Bill that will give additional and added protections to individuals who face that level of discrimination and who are the victims of such hate crimes.

I mentioned sexual orientation and transgender identity. When in government, we have done a great deal to be proud of, with cross-party support over the past number of years in this area of recognising the identities of people. We passed a groundbreaking referendum on sexual orientation as well, which has thankfully resulted in a positive impact on the status of, and access to, civil marriage as well. I welcome the debate and the work that has been done by the Fianna Fáil Senators on the Bill and look forward to the Minister of State's response to the views.

Photo of James BrowneJames Browne (Wexford, Fianna Fail)
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I thank Senator O'Loughlin for her remarks and I acknowledge the intent and work behind this Private Members' Bill. The area of hate crime is of particular interest to the Senator and I am aware of her track record and considerable work in trying to advance the legislative position in recent years. The proposals in this Bill reflect the vital public interest in protecting persons from the harm caused by crimes motivated by hate and prejudice. I thank Senators for their contributions. I will address some of the issues throughout my response and will relay their contributions to the Minister.

It is fair to say that the historical approach to hate crime was perhaps defined by a sense that Ireland was a place where very few minorities lived and so we believed that hate crime did not really exist to any significant extent. Our society has changed and is so very colourful and diverse in comparison with the country of 50 years ago. We must acknowledge the reality that Ireland has always had minorities and categories of people who were treated shamefully. These were often people who did not have a voice and who were not listened to or taken seriously. I am proud that we are now taking serious steps to improve our criminal law in this important area and congratulate Senator O’Loughlin for her work in developing a genuine, concrete attempt to do just that. A deeper understanding of the problems and dangers of hate and division has now developed in Ireland, reflecting developments internationally. Academics and experts have for some time called for effective legislation to deal with these problems swiftly and effectively, wherever they occur. The work done by the Senator is one part of that and is to be welcomed for that reason.

Hate crimes cause very serious harm. They are especially serious because they are often used as a way of sending a signal to certain groups of people that they are not safe, not wanted or not entitled to the same freedoms as everybody else. This signal is not intended just for the victim but for their whole community and everyone who is like them. These crimes spread fear, anger and division. They make our societies less safe for everyone and, because of this, they are everyone’s problem and need to be taken very seriously. Development of new legislation in this area has wide community and cross-party support, which I welcome. The Government has reiterated its commitment to introducing such legislation in the programme for Government, Our Shared Future.

There is no doubt that the issues the Bill seeks to address are difficult and complex. This is why such significant and comprehensive work has been undertaken already by the Department of Justice to ensure that the different groups that will be impacted by hate crime legislation or that have expertise and experience working in the area, have an opportunity to feed into the development of that legislation. As well as a form of public consultation, engagement with civil society organisations and other experts is an ongoing feature of the development of the legislation.I acknowledge the significant contribution made to the work by all of those who have been so generous with their expertise and with sharing their stories, even though for some of the contributors, this will have been a painful process. I acknowledge that and thank those people.

A report on the results of the consultation and research in this regard will be published by the Minister for Justice, Deputy McEntee, shortly. This work has provided very valuable insights which will inform the legislative proposals the Minister has committed to publishing in the early part of 2021. As Senators may be aware, the Minister's work in this area reflects the programme for Government commitment to introduce legislation within 12 months. Once published, the Government's legislative proposals will go forward to the Joint Committee on Justice and begin a process of comprehensive pre-legislative scrutiny. There will be ample opportunity for the Members of this House and other Oireachtas colleagues to participate and contribute further to the discussions during that process. The Minister is looking forward to seeing the results of the scrutiny process further inform and improve the legislative proposals.

The emotive and sensitive nature of the subject matter makes it particularly important that the debate around new hate crime legislation is as coherent and factually based as possible, and that any new legislative proposals in this regard are clear, proportionate and evidence-based. While the Bill is a genuine attempt to address the issues, parts of it would benefit from further detailed scrutiny and consultation. On the most fundamental level, I am advised that the proposed definition of hate crime in the Bill would not be suitable for use in criminal legislation. It is based on a definition used by An Garda Síochána for investigative purposes and is very useful and suitable in that context. However, the use of such a broad definition in criminal legislation, where an offence could be a hate crime in the event that a victim or any other person perceives it to be so, is not being considered by the Minister.

It will be important in bringing forward Government legislation in this area that any new definition of hate crime is workable and clear, and respects the correct balance of rights needed to ground a criminal prosecution. It is critically important that any legislation to deal with hate crime balances the important need to protect people from the very real and harmful impact of these crimes, while also protecting the human rights of those accused of wrongdoing. There are certain legal and drafting issues with the Bill which the Senator may wish to consider further. For example, some of the key definitions will need to be examined again to ensure they do not cause unintended cross-cutting effects. In addition, the sentencing provisions will need careful calibration to ensure they are proportionate and do not encroach on the independence of the Judiciary. We also need to be particularly mindful of the role of the jury in finding a person guilty of a crime. The section dealing with the hate element of the crime in question and how a person is able to defend himself or herself in relation to this part of the offence would also benefit from careful examination.

On a final point, the exclusion from the scope of the Bill of offences which are prosecuted summarily needs further consultation and, perhaps, consultation with those who are familiar with such prosecutions to ensure the most common forms of the offences are not outside of the scope of the Bill.

On the issue of the matter not currently being priority legislation, the first priority for the Minister was to get the required level of public consultation, and we had almost 4,000 contributions in that respect. As Senator Flynn correctly pointed out, it was a case of "nothing about me without me". The important part of the consultation was to enable individuals, civic society and organisations to make those contributions. I acknowledge, as Senator Bacik did, the work of the Irish Network Against Racism, Dr. Jennifer Schweppe and all those who made significant contributions in that respect. It is not possible to make this priority legislation until a scheme of the Bill has been prepared and sent to the Office of the Parliamentary Counsel, OPC. The legislation will be a priority for the Government as soon as the scheme has been completed and submitted to the OPC. The Minister expects to have the scheme ready in the early part of 2021. I assure Senators that this a priority for the Government, and it will be priority legislation in the new year.

I acknowledge again the work of Senator O'Loughlin and congratulate her on bringing this Bill forward. As legislators, we all have a grave responsibility to make sure society can deal effectively with hate crime. A great number of people are relying on us in this regard, and it has taken too long to get to this point. A collegiate and collaborative approach will be of utmost importance as the Government's legislative proposals on both hate crime and incitement to racial hatred are developed and go through the scrutiny process in the coming months in accordance with the programme for Government commitments. I ask for the support of all Senators for the important work that this will involve. I thank Senator O'Loughlin again for bringing this Bill to the House. I assure all Senators that their contributions will be a valuable addition to this process and will be taken into consideration. I thank the Leas-Chathaoirleach and Senators for their attention.

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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Notwithstanding the remarks of Members of the House, this is a very important Bill.Senator O'Loughlin deserves to be supported for bringing it forward. There are many people in our society who are less privileged that us, in particular those in the transgender community, and we have a lot of work to do as a society. I want to commend the Senator on bringing this legislation forward and it is something we can work on. It is about reducing hate, enshrining and protecting people and enhancing their quality of life but it is also about ensuring that we live up to the aspirations of the Proclamation. I want to commend those behind this Bill, because it is the stepping stone and the platform from where, as the Minister said, we can collectively go to make life better for people.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Senator Boyhan has two minutes.

Photo of Victor BoyhanVictor Boyhan (Independent)
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No.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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He can avail of them; they are available.

Photo of Victor BoyhanVictor Boyhan (Independent)
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I will not spend my time talking about the Bill; I will repeat what I said this morning, namely, that to give this 90 minutes was nothing short of a disgrace. I look forward to talking about it again another day. I did make the case, and clearly there was a very constructive debate which I watched from the television screens, but to set aside 90 minutes to deal with hate crime and hate speech is very disappointing. It is disappointing that Members of this House could not make this a priority. We had people come in and make statements, whereas we want to walk our talk and want to see action on it. I am more interested in hearing whether we can extend the debate. I know that the Deputy Leader of the House is here today, but next week I would like a second discussion and debate on this issue, because it is too serious and too important an issue. I will leave the House with one message. I met a Pakistani man last summer when I was coming from a park in Dundrum. He had been beaten to lard by three teenagers because of hate and hate crimes. He did not have his own immigration status regularised and he was told that if he went to the Garda, he would be put out of this country. He was a big, grown man who could have beaten the lard out of the three of them, but he was in fear, and he did not want to get involved. I will wrap up at this point. It is too serious-----

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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The Senator can resume speaking on the next day.

Photo of Victor BoyhanVictor Boyhan (Independent)
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I will hold my space.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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The Senator can continue on the next occasion.

Photo of Victor BoyhanVictor Boyhan (Independent)
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I will, but 90 minutes is a joke.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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As 90 minutes has now elapsed, the debate must be adjourned in accordance with the Order of the House today. I am sure the remainder of the debate will be scheduled by the Leader for another day, and Senator Boyhan is in possession on that occasion.

Photo of Fiona O'LoughlinFiona O'Loughlin (Fianna Fail)
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On a procedural point, do I have the opportunity to respond to some of the comments made next time?

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Yes.

Debate adjourned.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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When is it proposed to sit again?

Photo of Lisa ChambersLisa Chambers (Fianna Fail)
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At 10.30 a.m. tomorrow.

The Seanad adjourned at 6.48 p.m. until 10.30 a.m. on Wednesday, 18 November 2020.