Seanad debates

Wednesday, 21 June 2023

Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022: Second Stage (Resumed)


Question again proposed: "That the Bill be now read a Second Time"

10:30 am

Photo of Sharon KeoganSharon Keogan (Independent)
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The Minister is welcome back to the Chamber. I will begin by saying there is no great secret about my opposition to this Bill but more than that, it is no secret that the vast majority of people in Ireland are opposed to it. We know that because the Government's own public consultation was met with 73% of respondents opposing the Government's plans to crack down on what can and cannot be said in this country without fear of prosecution. Most people would think that such overwhelming opposition to Government plans would result in them being changed or scrapped, but most people have not been paying attention. They know that in 2023, the Government knows best and the uneducated Irish public must be led by the nose and taught what to think lest their empty heads be filled with insidious far-right propaganda, such as perhaps Ireland has an upper limit on how many tens of thousands of people it can import. As such, the Government deigned to ignore the results of its consultation and ploughed ahead, making a prophet out of the author of one submission which predicted it does not matter what anyone says; the Government will do what it wants regardless.

The philosophy behind this bizarre behaviour is quite clearly that of an avowed nanny state. The members of our Cabinet and our senior civil servants do not view themselves as servants of the public at all but rather as enlightened and elevated individuals with a quasi-divine mandate to decide exactly how each and every Irish person lives his or her life.

In private recognition of their inability or unwillingness to solve the real and pressing issues facing Ireland, namely, housing and immigration, both of which are issues of its own making, the Government instead busies itself by mircomanaging the day-to-day experiences of ordinary people, deciding what cars they are allowed to drive, what drinks they are allowed to buy, what fuels they are allowed to use, what their children learn in school and now what ideas and opinions are allowed to be shared or what beliefs may be held or expressed in private. In this way, we see clearly the anarcho-tyranny described by Samuel Francis in the 1990s, which is the combination of oppressive Government power against the innocent and the law-abiding and the simultaneous grotesque paralysis of the ability or the will to use that same power to carry out basic public duties such as protection or public safety.

This proposed legislation is so broad in its scope and casts a prosecutorial net so wide that upon its passing, no citizens will ever be entirely sure if they are free to say what they wish to. The law contained within this legislation is so ambiguous and uncertain that one cannot but think that the intent is to create exactly this sort of hazy legal environment which forces individuals to err on the side of caution by self-censoring as they will never know what utterance of theirs might be reported as hateful.

Most laws are painstakingly drafted so as to isolate specific actions and single them out for criminal prosecution, taking great care not to mistakenly punish benign activities. This law does almost the opposite. It is hard to view the goal of this legislation as anything but the pursual of a nationwide chilling effect on freedom of speech and freedom of expression. If the Government wanted a legal basis to use its monopoly or force to punish anyone who would speak out against the prevailing narrative, it is hard to imagine what it would do differently to this.

In recent times, the Government has become fond of playing a certain card by saying it is sorry but its hands are tied and it must do something because of the EU. That is a ready-made excuse to wriggle out of accountability for everything from immigration to energy taxes. However, in this circumstance, the EU Council framework decision 2008/913/JHA does not go nearly as far as the Irish Government has with this Bill. The Council decision only targeted certain forms of expression of blatant racism and xenophobia. It was this Government that decided to add a nonsensical and circular definition of gender and to choose not to list "sex" as a protected characteristic, in favour of the meaningless phrase "sex characteristics".This is just the tip of the iceberg of bad law that comprises this legislation. I have drafted over 80 amendments to try to put some semblance of sanity and respect for civil rights into the Bill. The definition of hatred is circular. The definition of gender is nonsensical word salad. The very premise of the Bill is that some persons are worthy of protections and others are not, hence the exclusive list of protected characteristics. Someone who happens to be hated for something to do with their person that is not on the list is fresh out of luck; the characteristic for which they are being persecuted is not in vogue.

Various sections rely heavily on the legal fiction of the reasonable person, which is all but useless as an aid to the courts when it comes to controversial social issues upon which reasonable people diverge. The lower threshold of recklessness instead of intent in section 7 places an entirely undue onus on a person to rack their brains as to how someone, anyone, could possibly interpret their speech as being likely to incite violence before anything is said.

Section 9 establishes that someone can be put into jail for having incited violence without actually having incited violence. This is clown-world stuff. The law is there to protect people. What we have here is draconian legislation which can put someone in jail where not one single person has been harmed or victimised. Some people, whom the Government thinks it is protecting, have highlighted the dangers of this legislation, including many gay and lesbian groups. Not all gays have been in touch with every single Senator in this House.

Sections 9 and 10 contain provisions reversing the burden of proof, placing it on the defendant to prove that they did not intend to communicate the material to the public or a section of the public and did not possess material with a view of such material being communicated, respectively. Section 10 criminalises the preparation or possession of material that is likely to incite violence or hatred against a person because of the protected characteristics with the view of the material being communicated to the public or a section of the public even where the material has not been published. Section 10(3) goes on to state that where it is reasonable to assume that the material was not intended for the personal use of the person that person would be considered to be guilty unless they can prove their innocence. This reverses the burden of proof and interferes with their rights to be innocent until proven guilty. Therefore, merely possessing private material which someone finds interesting, engaging or intellectually stimulating may be a criminal act if some hypothetical people were to find such material hateful.

Section 11 contains the most pathetic afterthought of a defence of freedom expression I have ever seen and is entirely unfit for purpose. The irony is that in the Dáil, Deputy Paul Murphy tried to enshrine into the section the protection of Article 10 of the European Court of Human Rights, the EU's own protection, and was voted down. The Government has the gall to throw up its hands and say, "Whoa. The EU is making us pass this. Our hands are tied." It then voted against the inclusion of the EU's own protection for free speech. It shows a staggering contempt for the rule of law and the intelligence of the Irish people.

Section 14 establishes that the DPP has absolute discretion when it comes to which cases to pursue where a contravention of the Act has taken place. Obviously, there will not be enough members of An Garda Síochána to carry out all the arrests that would be necessary under this Act if it had to be enforced at all times. The DPP can pick and choose who to make an example of.

Section 15 covers search warrants. Section 15(1) states:

If a judge of the District Court is satisfied by information on oath of a member that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an offence under section 7, 8 or 10is to be found in any place, the judge may issue a warrant for the search of that place and any persons found at that place.

This is any member of An Garda Síochána. The Offences against the State Act 1939 provides that it has to be a judgment call of the officer of An Garda Síochána not below the rank of chief superintendent. Now it can be just any member. Obviously, this is to expedite the process. Upon such evidence being given and a warrant granted, a garda may enter someone's home search every person there seize every electronic device in the house, including phones, laptops and tablets, as well as those of the person's partner or children. Actually, they can take anything - diaries, books, any object at all - and retain it for an indefinite period. There is no time limit at all on that. However, it gets better: the garda can sit someone down at their computer, force them to log on and compel them to provide any or all of their passwords. Refusal to do so is a crime that will result in up to a year in prison for not willingly handing over personal information to the State even where no crime has been committed and where the person has done nothing wrong.

Laws such as this have to be used in other jurisdictions to attack journalists and political opponents. Imagine all of a candidate's devices being seized in the middle of an election campaign only to be returned three years down the line with a quick "Sorry, you weren't doing anything illegal after all." This is dreadful law, and I genuinely think the Minister is pushing it too far. The Irish people will forebear a lot but the Government is really pushing it here. Its forcing this law through against the will of the people is an act that will be paid for at the next election and then its political opponents will have this legislation to use against whom they will. Now that is food for thought.

Many people from the Government parties will talk about how we all have to band together to stop the dreadful hatred that is out there and how hate speech leads to hate attacks or is an attack in itself. This is a silencing Bill. It is a censorship Bill. It is a Bill made by the powerful to stamp out the dissent of minority voices. It is a Bill that seeks to codify the prevailing narratives and restricts the free exchange of ideas insulating the status quoagainst criticism. I will be opposing the Bill along with anyone who believes in civil rights, inalienable freedoms and the just rule of law. The voting records show that today. I call on Members to be brave and speak up. I thank the Acting Chair for her lenience.

Photo of Regina DohertyRegina Doherty (Fine Gael)
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The Bill is absolutely necessary. While we might argue about the definition, we can all agree that the rise of hatred and ill-behaviour by some people in this country towards others has grown exponentially. I do not know whether that is to do with the advent of social media over the past ten years that we have more of a platform for people to show their hatred. Society itself is changing. People always had platforms and they always had pens and paper. We definitely need to do something to recognise that there are those who are incredibly vulnerable and who need protection from people who are incredibly nasty minded and who just want to spread hatred.

I have some concerns. I listened to the Minister's contribution last week and to all of the interviews she has done since. I also listened to Senator McDowell over the past week and read some of his writings. The Minister might explain why we were reluctant to define hatred. Why are we leaving the definition of what constitutes hatred in the mind of the person who is doing the activity or, far more concerning for me, in the mind of the person carrying out the arrest? While I am not criticising any rank-and-file gardaí, they certainly do not all hold the same definition of what constitutes hatred. It is even more concerning in the case of civil or citizen arrests and it is the person carrying out the arrest who has a view as to how hatred is defined.

I am clear in my mind that in order for us to do something that is meaningful, there should not be any ambiguity and this Bill is full of ambiguity. According to the United Nations High Commissioner for Refugees, we should have a definition of hatred in order that everybody is clear where the line is. My line, Senator McGahon's line and Senator Gallagher's line might be slightly different. I am concerned that for the people carrying out the arrests, their knowledge of where the line begins and ends should be clearly defined. They should know exactly what constitutes an act of hatred and probably just as importantly what constitutes an act of incitement.

I have been around this House and the Lower House for many years. Other than in the context of the mother and baby homes, I do not think I have received as many emails about a particular piece of legislation as I have in respect of this one. That does not mean all of those people are wrong, but it absolutely means all of those people have concerns which have not been addressed. In order for this Bill to be successful, we need clear definitions of what hatred is and what incitement is. In order for it to be accepted, we absolutely need to address the concerns of the hundreds if not thousands of people who are emailing all of the Senators and presumably emailed all of our colleagues beforehand.

We have been at pains to say that freedom of expression is absolutely protected not only in this Bill but also in various other Bills and, indeed, our Constitution. Section 9 is very misleading because now a person can be convicted of incitement to hatred even though there was no incitement.Somebody can be convicted of or charged with a crime when there was no outcome to their actions. Either I have or do not have freedom of expression to be able to say that I agree or do not agree with something, or even just not like something, and I do not need to have an explanation for it. That is my freedom of expression. Now, however, what this Bill is proposing, I think, and I am open to correction, is that I do not even need to incite hatred to be charged. I just need to express my view and even though nobody else agrees with my view, there can still be a charge on account of this. I hope I am wrong and I am looking for clarity on it.

We definitely have to do something but I am just not sure that the ambiguity in this Bill is going to bring people with us or have the desired effect. I think it is going to have the unintended consequence that some of my colleagues in the House have raised, and, probably more importantly, some of the very malign groups we have in society today will use it to their advantage. It will not have the desired outcome we all want, which is a safer, kinder, more accepting society, not just of minorities but of everybody and each other's views, and that we are more tolerant. That is my contribution. I am just looking for some answers.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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The Minister is welcome and I congratulate her on her return to work. Before I start, Senator Keogan and I would like to thank Free Speech Ireland for all of the work they have done over the past two years on this Bill. Their efforts have not gone unnoticed, especially those of Alex Sheridan and Sarah Hardiman.

I will deal primarily with two points, the definition of hate and the issue of gender. Many have discussed at length the problem of not having a clear definition of hate and some, in their contributions in the House, said things to the effect we all know what hate is. Do we really? I do not want to spend my time going back over anything others have said but I want to pay close attention to how the Minister's comments over recent days illustrate the problem.

The Minister has sought to reassure us but, based on her speeches and media appearances since the previous debate, I am far from reassured. Instead, I am more fearful now than I ever was and not at all confident that the Minister for Justice truly understands the public concerns on this Bill that she is hoping to pass through this House. This is especially so when, within this Chamber and on the national airwaves, she keeps claiming that certain things are covered in the Bill that are not in the Bill. There has been a tendency on the Minister’s part to discuss points that nobody is making against the Bill, such as saying it will not result in a right not to be offended. Nobody has said that the Bill will create a right not to be offended. If we turn to section 15, to be convicted of an offence, gardaí can search your house and you can be arrested. You do not even have to intend to spread the hate material you have. Gardaí just need to suspect that you might. This endangers press freedoms and any group that might have an opinion that dissents from the mainstream, or what the mainstream believes at any given time. What is considered a status quoview today might be considered hate speech tomorrow.

While I know these transcripts will be looked at by those who are interpreting the law, clarity is needed on the wording of the Bill. The approach of the Government seems to be never mind what anyone says, bang on, keep going and ignore the lot. Let us ignore the Irish Council for Civil Liberties, ignore The Bar Review, ignore one of the leading barristers in the country, Baroness Nuala O’Loan, and ignore the United Nations. Let us just push full steam ahead and label all those with concerns, such as have been stated here by the Opposition and in the thousands of emails we are getting, as spreading disinformation, even as we say things that are not easily refutable.

Many national newspapers are carrying headlines that J.K. Rowling would not be prosecuted under Irish law. The Minister spoke on the Gavan Reilly show on Newstalk without having the full knowledge of everything J.K. Rowling posted on Twitter or what she might say in the future. At the moment, the Bill is putting a new definition on gender that is not accounted for anywhere else in Irish law. The definition of gender in this Bill also, very oddly, equates biological sex with gender when these two terms are often understood to mean two separate things. In the view of many people, J.K. Rowling has said things that are hateful while others think she is protecting sex-based rights. Which one is it? That would depend on the subjective views of whoever you ask. Similarly, what about those who denounce J.K. Rowling and call her a TERF, a trans-exclusionary radical feminist, or use that term? Is it, or could it be considered, a form of hate speech?

Assuming these comments are made in Ireland, the decision as to whether she would be prosecuted would depend on individuals in the Office of the Director of Public Prosecutions or in the Judiciary at the time. Whatever a person's opinion on the transgender issue, he or she is liable to be prosecuted without a definition of hate and is subject to the whims and individual thoughts of those in the Director of Public Prosecutions or the Judiciary. We know well that people's views or opinions sway from time to time. On the national airwaves, the Minister said that hate is not a mild feeling but we are not legislating for people's feelings. We are legislating for what can be construed as hate without any definition. How can we do that? What does the term "hate" mean?

This is very dangerous and the Minister has failed to soothe these legitimate concerns. On Newstalk at the weekend, she said, "However, where people intentionally set out to do something knowing that they are going to pit one group of people against another, that is where we're saying a line has been crossed." This is not in the Bill but it could apply to just about anyone, any political campaign or any issue we care to think about. Any group, such as the Ireland Palestine Solidarity Campaign, could find itself subject to prosecution based on the definition the Minister gave, and this also happens not to be in the Bill. It is doublespeak. Contrary to what the Minister has said, what is considered hate is not clear. That is why Senator McDowell said the United Nations advises countries to have a clear definition of what hate is. Both in this Chamber and on the airwaves, the Minister keeps making contradictory statements, such as saying this is not about policing people's thoughts. However, this is about people's right to freedom of expression and there is no getting away from that. The Director of Public Prosecutions and the Judiciary will be able to decide what hate is and that will be the key to determining whether a person can be convicted.

The Minister has said her intention is to increase the number of convictions. The arbitrary enforcement of this new law will create a chilling effect that will endanger protest groups and legal professionals because of the Bill’s failure to account for legal privilege and even journalists who may be covering the activities of groups disseminating hate material. As this debate progresses, I ask that the Minister and her colleagues do not keep discussing acts that are already illegal, and which almost everyone condemns, as a reason to pass this Bill. That is just a smokescreen to smuggle through flawed hate speech legislation. I hope that, going forward, we can have a robust debate concerning what is in this Bill and not what the Minister thinks is in the Bill. So far, there has been too much discussion from the Minister about things that are not in the Bill and a contemptuous attitude by the Government to addressing many of the legitimate concerns expressed by legal experts in the Irish Council for Civil Liberties, Baroness O’Loan and trained barristers in our own Chamber.

I have been subjected to hate speech and I think most people in this House have at one stage or another, but I have never in nine years in this establishment had so many emails and heard so many concerns. No matter how much I would like to try, I cannot define all of those who have contacted me as being from lunatic right-wing organisations. There are decent people contacting us every day who have huge concerns about this Bill. I ask the Minister to do what Senator McDowell asked her to do and to step back. Let us have six months to discuss this in-house, let us sit around tables and thrash out the issues that are a problem for members of the public, and let us see if we can make a hate Bill that will really work so we will not find a situation where it is contested every time it is spoken about in public.

In its present form, I can say today that I will have no alternative but to vote against it. Believe me, that is more of a problem for me than the Minister can imagine because I despise those who use hate and hate speech to attack those of us who are in the public eye. I ask the Minister to step back from it. Let us get it right the first time. Let us not finish up by passing flawed legislation.

Photo of Robbie GallagherRobbie Gallagher (Fianna Fail)
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I welcome the Minister back to the House. This is the first opportunity I have had to congratulate her on the recent addition to her clan. I wish her well in that regard.

From a Fianna Fáil perspective, I welcome the Bill and what it seeks to address. The one thing we all have in common in this House, regardless of which side of the argument we come down on, is our belief in the need to have legislation on hate crime and hate speech. It is sad we have to go there but unfortunately that is the world we live in today. As Senator Craughwell said, at some point in time most of us in this House, including me, have been subjected to it. Unfortunately, it is something we must address. This legislation is an attempt to do so. We are not unique in that. I understand that we are one of 15 countries that have moved to legislate on this. Six of those countries are in the EU. Our closest neighbours in the UK have also moved to address it.

I listened to the first session of the debate last week and found it informative. As legislators, we have a responsibility to ensure that when we introduce legislation that the general public has clarity on where the line is. It is reasonable to suggest that there is a lot of debate about certain aspects of the Bill. Senator O'Doherty spoke about definitions of the word "hatred" and mentioned "incitement". Senator McDowell, whose opinion, among others, I value greatly made a powerful contribution during the last session about that. It would be wise for us all to take all those contributions on board. I have no doubt the Minister will do so. I look forward to hearing her contribution at the end of this debate, having listened attentively to all the contributions made on this issue. I hope and am confident that she will bring clarity to all the concerns that are genuinely held by people who all agree that something needs to be done about the issue, but have concerns about how far we go and about the clarity of the legislation we are introducing.

With that in mind, I was contacted in recent days by a number of people who inquired about the exclusion from the Bill of language as a protected characteristic. Perhaps the Minister will comment on that as it is not in line with the EU Charter of Fundamental Rights. Language is very much part of who and what we are. We do not have to look too far from where we are standing, across the Border, to see that language can unfortunately be used against people. Was the inclusion of the Irish language considered in that context when the legislation was drafted? Does the Minister feel it could be addressed on Committee Stage if she feels there is a need to address it?

Most of the interpretation of the Bill is based on what a reasonable person would interpret as offensive. When legislation is introduced in this House - across all Bills - many Senators state that sometimes ordinary people would find it difficult to understand exactly what is going on. If ever there was an argument for legislation to be put into plain language in order that ordinary people - I include myself in that - would understand exactly where the line is, it is this Bill. It is vital that people know beyond doubt where the line is drawn on hatred and incitement.

I will not repeat what other speakers have said on the Bill. As I said earlier, I know the Minister has listened attentively to what has been said. On the volume of emails, like all other Senators, I have received hundreds. As Senator McDowell stated, some were extreme. I certainly agree with that, but some raised genuine fears and concerns which I hope, at the conclusion of this debate, the Minister will be able to shine a light on. Perhaps the concerns that are legitimately held by many will be addressed by her when she is summing up.

Photo of Niall Ó DonnghaileNiall Ó Donnghaile (Sinn Fein)
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I dtús báire, cuirim fáilte ar ais roimh an Aire. The Minister is welcome back. It is good to see her. Last week, at the earlier session of this Second Stage debate, my colleague, Senator Gavan, covered for me. I was in London on committee business. He outlined comprehensively where Sinn Féin stands on this Bill. Other colleagues have reflected on the importance of getting this legislation right and ensuring that it is as robust and effective as it needs to be in striking the correct balance between the right to freedom of speech and punishing those who engage in hate, violence and intolerance. I do not need or intend to rehearse what Senator Gavan said last week, but I will re-enforce the message that we will work, as we did in the Lower House, with the Minister and her officials to ensure we get the legislation right. As colleagues on both sides of the House have reflected this afternoon, there are concerns and issues that need to be tightened up and strengthened and I believe we can do that. Otherwise, this will not be a good Bill.

Senator Gallagher raised an interesting point regarding language. I, too, have been contacted about language, probably primarily the Irish language, but also other languages. I am keen to know whether the Minister has thought about it and whether she considering it going forward. What is her view on it at this stage?

Photo of Victor BoyhanVictor Boyhan (Independent)
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I welcome the Minister and thank her for being here and for listening to the contributions at the previous session and today. She has an unenviable task in bringing forward this legislation. We need clarity and less ambiguity around anything to do with this legislation. I will be clear. We absolutely need hate crime legislation. There is no question about it. We are coming from the premise that the legislation is needed. There is an issue about its interpretation, including about the definition of "hatred". The United Nations has published a definition of "hatred" on its website. Somehow the UN can have a definition of "hatred", "incitement to hatred" and crime but we are falling short in this legislation.

At the outset, I co-signed a motion with my colleague, Senator McDowell, who is a former Attorney General, former Minister for Justice, senior counsel and a strong legal and parliamentary advocate with a lot of experience in this area. The Minister will agree with that. The motion proposed that the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 be read a Second Time on 31 December 2023. The motivation behind it was that we felt more time was needed. I am conscious of the debate and what happened in the Lower House. Since then, there has been further comment. The Irish Council for Civil Liberties had one view of the Bill that evolved and changed, as did the Law Society and the Bar Council or members of the legal professions who may not always have been speaking on behalf of the Law Society or Bar Council as collectives. There are huge concerns. The Leader of the House spoke earlier about the two major issues raised in emails. One was the mother and baby homes and we will deal with that later today. This is the other one. We have received hundreds of emails, some of which are repeat emails. Many people will be listening from their homes and offices and they are welcome. They are telling us in their emails that they are listening and engaging. They are pleading with us. They are from all walks of life and all different sectors and divisions. We need a more caring, compassionate and gentle world. We need to treat one another in a more compassionate way.We also need to be able in our political discourse to disagree amicably and respectfully. We may hold different positions based on our experiences, our identities or our religious beliefs or backgrounds but that is what makes for diversity and society, and that is especially good.

I am still of the view we should proceed with the amendment to defer this matter. I have talked to colleagues in the Minister's party and other parties in the House and, as individuals, they have concerns. I do not believe a Whip should apply, and I appeal to the Minister and the leaders of the three parties in government not to apply a Whip to this issue. Members should be able to vote according to their conscience, sets of beliefs and principles, and I ask the Minister to convey that to her ministerial colleagues. Clearly, it is a matter for them, but I am asking her to raise it with them. Furthermore, I ask that we all be respectful of one another in this debate. It is important the Minister give some assurance today, if she can, that there will be no attempt by the Government to guillotine this legislation. My colleague Senator McDowell asked that of the Minister and impressed it on her in respect of the amendment. I do not believe she was in a position there and then to make a commitment in that regard, and while she may or may not be now, but I would like her to share her view on it. I do not think there should be a guillotine on this debate. There should be a teasing-out of all the issues.

The Bar of Ireland publishes a great magazine known as The Bar Review, editions of which I am sure the Minister receives. I have to hand a copy to hand of the June edition. It contains a great article penned by Grace Sullivan BL under the title "Speaking Freely?". I am not going to attempt to interpret it but rather just quote from it. The article states, "The creeping criminalisation of aspects of religious speech in Ireland may mean that society's 'offence' will write individual criminal records." It goes on, “The Constitution of Ireland guarantees, subject to public order and morality, freedom of conscience and the free profession and practice of religion". We all know that but it is important to note it has been written in an independent publication. Further in the article, the author states, "it is argued that free speech protections are rendered impotent if they only cover speech that is endorsed by the majority." What a challenge to us that is. The final line I wish to highlight from this extensive paper is as follows: "A free society will be one in which unpopular and offensive concepts will be aired publicly." For anyone who wants to read the article, every Member of the Oireachtas will have received a copy, given everyone is on the mailing list. It appears in The Bar Review, volume 28, number 3 this month. I would urge anyone who has not had time to look at it to do so because it is important.

We operate in a parliamentary democracy, so it is only right and appropriate that we have regard to those issues I touched on. How can we move on? How can we collaborate constructively in a parliamentary democracy to tease out the various important issues? I do not doubt the Minister's commitment. She knows more about this than anyone, given she has spoken in both Houses regarding the knock-on effects of hatred. It is not right that people should be singled out, whether because of their religion, sexual orientation, ethnicity or background, to be subject to hatred. There can be no place for hatred. I am not sort of religious maniac by any stretch of the imagination, but I value the prayer that is recited in these Houses. Our Standing Orders provide for a prayer to be said every day in each of the Houses. I again mentioned this on record the other day because it is important. I have always said every parliamentarian should have to take a copy of the Constitution in his or hand before being sworn into office. I would love that to be the case at some point, given the Constitution is what shapes and moulds us as a republic. Whether we say a prayer, make a declaration or bow our heads in silence and reflect, I think I can say that, in general, we are here to do good, be kind and supportive of one another and help validate and encourage one another, regardless of our tradition, background or where we come from. That is the essence of a true republic, to which we all aspire and want to live in and be happy to live in.

I would like the Minister to touch on the question of providing for a free vote for members of her party, given she can speak only for them, and to carry that message back to the Government. Second, I would like there to be a guarantee there will be no guillotining of this legislation in this House and that we can work constructively. The record of this tripartite, coalition Government is not good when it comes to amendments being debated in this House. Cleverer Ministers have come in and gone halfway to accepting some of the amendments put to the House, but time and again, it is a case of "No" and a simple majority sitting to my right comes in and opposes everything. A log has been kept throughout the term of this Seanad and it is a disappointing read for what is meant to be a parliamentary democracy.

I am not saying the Minister is part of that and I have always found her to be decent and forward in assisting us both inside and outside the House in regard to her brief, and I genuinely acknowledge that. I know where she stands on this legislation. She is a reforming Minister and she wants to get this through. I want to support legislation that will address hatred. I want to go most of the way with the Minister in respect of this legislation, but let us be open to listening to the amendments because they tend to go only one way, although each Senator will have an opportunity to have amendments put to the House. I noted with some interest that Senator Ward, who studied law in preparation to become a barrister, indicated to us he was considering putting down amendments. I thought that was a pleasant surprise, given the Government side does not tend to do that. I will remind him about it at a later date, but I look forward to reading his amendments and to, I hope, being able to support them. I urge other Senators on the Government side of this House to work constructively, and the Minister with them, to bring forward amendments she might have reflected on or changed her mind about in the course of this debate. Likewise, I hope we on this side of the House will collaborate and put forward amendments. We do not have to agree on them all, but we should at least be respectful in teasing out the debate on them before we vote on them. Whatever the outcome, that will amount to democracy and the legislative process.

Let us not fool ourselves, however. This legislation was passed in Dáil Éireann; we in the Seanad now have an opportunity to shine. We are the reforming Chamber, the revising Chamber, as the leader of the Minister's party, our Taoiseach, has reminded us time and again. We should be polishing up and improving legislation that has come from the Lower House. We have that opportunity here but in a constructive, positive way. I hope we can have that sort of healthy, political dialogue and traction to address the issues of hatred, which have no place and should have no place in our society and democracy.

I thank the Minister for her time and look forward to engaging with her. I would like to be in a position to wholly embrace her legislation because I see the need for it, but there is some tweaking to be done, which we can do at various stages of the passage of the Bill.

Photo of Tom ClonanTom Clonan (Independent)
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Fearaim fáilte ar ais roimh an Aire agus déanaim comhghairdeachas leis arís. I stand in this Chamber as a completely independent Senator in my own right. I am not part of any coalition of views and, despite certain graphics that have appeared online without my consent or knowledge, I am not part of a coalition of people who oppose the Bill. I want to be absolutely clear about that. I stand alone in what I am about to say.

I welcome the Bill, and I think I know something of the Minister's motivation in trying to introduce legislation that will protect people from the febrile and almost feral space our public discourse has assumed with the advent of digital platforms.At the outset, I will say I agree that in section 3(1), the protected characteristics set out in (a) to (j), from race to disability, are a worthwhile catalogue of people and groups of people in our society who require protection. These categories of people are subject to the most hostile scrutiny and the most appalling abuse on a day-to-day basis, notwithstanding the fact they struggle with their own tectonic challenges in their lives. I want to be absolutely clear about that because of the volume of correspondence and, ironically, the type of abuse and hatred being heaped on me by people who purport to represent either end of the spectrum of opinion on this Bill. How ironic it is that they mobilise the very things this Bill seeks to contain and prevent.

I struggled to find a positive definition of freedom of expression in Irish legislation. Given my professional background, the closest I could find to that was in section 14(2) of the Universities Act 1997, which states:

A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions and shall not be disadvantaged, or subject to less favourable treatment by the university, for the exercise of that freedom.

In that legislation, the right to be provocative and the right to offend within reason are guaranteed. That is a very valuable articulation of freedom of speech. My fear is that this Bill, which I do not oppose, as it is currently configured would inhibit that freedom and would inhibit freedom of speech. I will elaborate on that.

In regard to my experience of freedom of speech in the academic context, I published my doctoral thesis in 2000 on the status of and roles assigned to female personnel in the Irish Defence Forces, a beloved institution of the State, 100 years old last year. Unfortunately, my research found that it was a toxic workplace environment where women were routinely sexually assaulted and raped. For expressing those unpopular, provocative and new views and contributing to knowledge, I was subjected to the most horrific campaign of retaliation which continues to this day, 23 years later, despite the fact that in 2021, the Women of Honour came out and made fresh disclosures of sexual violence, and despite the fact that earlier this year, the judge-led inquiry vindicated the warning I gave 23 years ago. On each of those occasions, I was met with a fresh round of reprisal and retaliation. That has included physical assault, defamation, character assassination, rumours, innuendo and false accusations targeting my family. I know what it is like when you bring forward unpopular views that may test received wisdom. I know what it is like to experience retaliation in that regard.

My fear is that the Bill, as currently worded, without a precise definition of hate, may, in the wrong hands, permit this Bill to be used as an instrument of oppression, although not in the Minister’s hands and not perhaps in the next administration’s hands, but who knows in the future in what set of circumstances we may find ourselves?

The Bill, as currently worded, is so vague in regard to the definitions of hatred, motivation and advocacy, incitement and so on, that it could easily be weaponised by somebody to curb freedom of speech and freedom of expression. I will table an amendment that the definitions as set out by the United Nations Office of the High Commissioner for Human Rights, which is a simple, one-page set of definitions, be incorporated into the legislation to remove any doubt as to what precisely we mean. I speak particularly here about definitions of the terms "hatred" or "hostility", referring to intense and irrational emotions of opprobrium, enmity and detestation toward the target group. The term "advocacy" is to be understood as requiring an intention to promote hatred publicly towards the target group, and the term "incitement" referring to statements about national, racial or religious groups or the protected categories as set out in the legislation.

It is important that within the legislation, there is a very clear statement of what the threshold is. Otherwise, it is so vague and loose that it could be weaponised by any other group. I shudder to think what would have happened to me if this legislation had been in place when I brought forward my unpopular and provocative findings in regard to sexual violence. I cannot overstate how traumatic and appalling that was. I was threatened with prosecution under the Official Secrets Act, a criminal offence. I was told a file would be sent to the Director of Public Prosecutions and that if proceedings went forward, I could be imprisoned. For what? For calling out sexual violence against women in the armed forced? Guess what? The warning I gave was completely ignored. The people who visited that reprisal on me have never been taken to task. Many of them have been promoted to the highest levels in our Defence Forces. I wish the current Chief of Staff and the Secretary General of the Department of Defence the best of luck with the process of transformation and restorative justice that, hopefully, a tribunal of inquiry will bring.

I am saying this to say that these are not just hypothetical fears. These things happen in Ireland. I am old enough to remember the orthodoxy of the Catholic Church and its doctrine, an a priori set of unchallenged domain assumptions with which any person who was not aligned was deemed to be wrong, to be sinful, in the times of Archbishop McQuaid. I am afraid the Bill, as currently worded, would allow certain groups in society to weaponise the legislation so as to create their own new orthodoxy that is equally oppressive.

As I said, in the past number of weeks, I have experienced the type of opprobrium and oppressive, abusive commentary, including emails coming into the office, that are consistent with precisely what it is the legislation seeks to address, from people at either end of the spectrum who might claim that this protects them. How ironic it is that they would mobilise the very dynamic that we are seeking to remove from our society.

I received a huge amount of correspondence on this. It is the largest volume of correspondence I have received from a huge swathe of people in Irish society. They are not the keyboard warriors and lunatics. It is from all parts of Irish society, professional groups, advocacy groups, NGOs and the Irish Council for Civil Liberties. There is a wall of concern being raised. We have an opportunity in this Chamber and on the next Stage to remedy those defects. I absolutely support the Minister in introducing this legislation but please listen to all of my colleagues here and the concerns raised. They are grave concerns. They impact not just on freedom of speech but on freedom of thought, whereby you could possess a diary in which you might have written something and, on the basis of a search warrant, it could be seized. As currently written, the Bill would empower An Garda Síochána to go on a fishing exercise and seize all of a person’s mobile and digital devices and those of everybody resident and trawl through them. It includes a requirement to give up your passport and incriminate yourself. I am aware, and Senator McDowell made me aware, of cases where An Garda Síochána has gone through people’s devices, not found what it was looking for, but found other things and used them to target an individual.I am very concerned in that regard. Senator Boyhan stole my thunder because I was going to use this issue of The Bar Reviewas my prop as well. Among the concerns raised in the volume of correspondence I have received there are also the concerns alluded to by Senator Boyhan and raised in The Bar Review.

I appreciate the Minister giving us the opportunity to talk about this at length. I echo Senator McDowell's and Senator Boyhan's call that we get an opportunity to revisit this later in the year. I ask the Minister to feed this back to Cabinet and with all her party colleagues: let us not guillotine this. It is just too important. As I said at the outset, fearaim fáilte ar ais roimh an Aire agus déanaim comhghairdeas léi. I thank her for hearing me out.

Photo of Malcolm ByrneMalcolm Byrne (Fianna Fail)
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I welcome the Minister to the Chamber and congratulate her. I want to support the Bill. I think it is necessary to address the challenges of hate crime and incitement to hatred in Ireland. There are some concerns, however, and they have been reflected by colleagues already. Senator Clonan spoke about some of them. Second Stage is the opportunity during the legislative process to talk about the general principles of the legislation and its objectives, what we think is important in the general principles, and where we can improve the Bill in order that we can better the lot of all our citizens.

In many ways this Bill represents one of the most fundamental challenges of our age: how we balance two competing sets of rights. On the one hand, we have the right to freedom of expression, the right to free speech and, as Senator Clonan said, the right to challenge and the right to hold controversial opinions. On the other hand, we have the right of the individual not to be targeted because of his or her identity or perceived identity.

In many ways it is sad we have to have this kind of debate and that hate crime and hate speech are very much real things that exist in Ireland. I would much prefer we were talking as a society about how we can look at including people to a far greater extent and how we can recognise them. While love is the opposite of hate and while it is impossible to promote love speech, it is very important within our society that we do much more to recognise those who promote tolerance and inclusivity in our communities and our country. It would do us much better to look at how we as legislators can seek to break down some of those barriers and perceived barriers. If anything, our experience with regard to the North of Ireland and those barriers teach us more than ever before why that is important. I know colleagues said earlier in the debate that we cannot legislate for kindness, but I read all the debate for last week and followed most of the contributions and it is unusual and interesting that the word "love" has not been used in a single contribution. If we are to have legislation to promote kindness, there are those Christian tenets, "Love one another as I have loved you" and "Do unto others as you would have them do unto you". I sometimes get concerned that we do not focus enough on promoting positive behaviours.

That said, we obviously need to tackle what this legislation seeks to achieve. Why do we need to do so? I have just come from a meeting of the Oireachtas Committee on Tourism, Culture, Arts, Sport and Media, of which I am a member, where we had a discussion about inclusion in sport. We heard from different groups about how even in the sporting field they are subject to racist, homophobic and targeted abuse. That is not just in the form of verbal abuse but also in the form of signs displayed at sporting grounds, and more invidious in many ways is the campaign of online abuse that tends to follow. The Oireachtas Committee on Tourism, Culture, Arts, Sport and Media, as the House may know, published a report, one of the recommendations of which was that where national governing bodies do not promote positive codes of behaviour and where some of this abuse in sport is not tackled, there would be implications for the funding of those sporting bodies. I am glad to say all the national governing bodies are on board on that. I will use the specific example of Lee Chin, who is an outstanding Wexford sportsman, but not just that. He is a role model within communities. He has suffered horrific abuse and continues to suffer it. We saw it only recently at a charity match, of all things, when Wexford played Tipperary. I was glad the GAA - not the State, but the GAA - took strong action against those who perpetrated that abuse because it is not just about the impact it had on Lee Chin. There is also the impact it had on those from minorities who want to play sport. When they see that, it is highly impactful.

I have personally experienced homophobic abuse. I have witnessed homophobic and racist abuse against friends of mine. I have had friends who have been physically attacked because of their sexuality or their race or, indeed, their perceived sexuality. They know it because of the language that is used when they are attacked. The reality is this is happening on the ground. The question is how much we should tolerate before we as a State decide we have to step back. I advocate very strongly for freedom of expression, but questions need to be asked as to where we look to draw the line.

Many people here talk about general speech in the media and so on but, apart from journalists, I want to talk about artists. Artists, by their nature, need to be controversial and challenging, they sometimes can even be offensive, and they have a right to be offensive. Often that abuse is in the religious sphere. I will use an example, and this is where we might think about how this legislation would come out in practice. For something to be an offence, it is not just that the act is created but there has to be the intention behind it. I think of, for instance, the time when Charlie Hebdo, the satirical magazine in France, decided to post particular cartoons about the prophet Muhammad, which the House will remember. That was deemed to be deeply offensive to those of the Muslim faith. The following questions then arise. Is it the case that the intention of those cartoonists was to engage in what might be classified as hate speech? Could they then be prosecuted on the basis for publishing that? How would we determine their intention in those circumstances? People remember the horrific attacks and the murders that took place of those cartoonists and those journalists. Would it be considered an aggravating factor in the prosecutions of those who carried out those murders that they carried them out on that basis? I am not certain I have the answers, but we need to be very clear in legislation as to what the answer is and what the purpose is. I take the same view, by the way, when we come to those of Christian beliefs, because many people would take grave offence to, for instance, an artist's depiction of Christ in a particular manner. In those circumstances, if Christians are being discriminated against, we have to know for certain the motivation behind that. Is the motivation purely that of an artist expressing something or is it hatred of religion and of Christians, and in what circumstances would we then proceed to prosecute?

One important thing, and something we all use, is language. We have to understand language and the use of words, and the use of words and language changes over time and in cultural contexts. I speak as a gay man. The word "queer" was traditionally used as a pejorative term, whereas in many cases now the gay community has taken ownership of the word "queer". The N-word, which I will not use in this House, is predominantly used as a negative term against people of colour, yet many people of colour who are musicians and others have taken control of that word and used it. The circumstances in which language is used, therefore, also needs to be considered. Interestingly - I will use the word because I read Senator Flynn's speech because of the dispute about the word "knacker" and the word "knackered" - I have an Australian friend who was here in Leinster House and who could not understand the fuss. It is used in slang in Australia regularly. Most of those phrases came originally from Ireland, but they do not have the same context there, so the question will also have to be the context in which particular language is used. That will, I believe, need to be understood. Freedom of expression is a fundamental right for us, as individuals. Senator Clonan mentioned the large volume of correspondence on this issue. I keep track of when we get correspondence from the same individuals. I find it ironic that some of the individuals who are arguing most strongly and loudly calling for freedom of expression with regard to this legislation are also calling at times for certain books to be banned in some of our schools and libraries. You cannot have it both ways. You cannot be looking for freedom of expression, on the one hand, and seeking that books be banned because they express a view with which you do not agree, on the other. There has to be consistency.

Photo of Sharon KeoganSharon Keogan (Independent)
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On a point of order, is the Senator referring to age-appropriate material-----

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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That is not a point of order.

Photo of Malcolm ByrneMalcolm Byrne (Fianna Fail)
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My point is valid. You have to be consistent in your point of view. My challenge on this issue is because you are dealing with two competing rights, both of which are exceptionally important rights. We do need to introduce an aggravated offence when it comes to hatred because the purpose of law is ultimately to favour the victim. It is very clear that we have hate crime and hate speech in this country.

That said, what is essential is for us to have certainty when it comes to enforcement. I am talking again about artists, journalists and others - people who want to be challenging and who are at the cutting edge. Provided that their motivation is not coming from a place of hate, they need to know what they can do. Again, our test has to be how we test that motivation. We cannot read their minds. If somebody stood up on a pulpit or painted a wall and said "all gays must die" or "we should kill all Jews", that is a very clear expression of something. My concern is that there are some areas of the definition here that need to tightened up because they are too loose. I hope that in the context of this debate that we will be able to ensure that we have a good piece of legislation that will protect victims.

The right to free speech is not without limits. We all know that. There is the famous American court case where the judge Oliver Wendell Holmes said somebody cannot go into an open theatre and just shout "fire". At times, there have to be limits placed on free speech but if we are to put in those limits in terms of protecting the victim, there has to be certainty. I am concerned about some of the definitions.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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With the agreement of the House, I will probably give a lengthy response if that is okay because I do want to respond-----

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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I hope the Minister will not take until-----

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I will not take that long. I promise.

Photo of Sharon KeoganSharon Keogan (Independent)
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We are here until 5 p.m. The Minister is all right.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I appreciate that there have been a lot of contributions, not just today but last week as well. I also appreciate the views that have been shared and recognise that these are complex, varied and different. I will set out some clear facts and try to respond to many of the comments and statements made and questions posed over the past week.

What we are proposing here is not radical. It is not new. It is the norm in many EU member states. What we are introducing is new legislation for hate crime but we already have legislation around hate speech. It is important to stress at the outset that this is not new or radical. Hate speech and hate crime exist in our society and very few people would reject that statement, although I know there would be some that do.

Many Senators argued that the legislation has been rushed, that it potentially came from nowhere and that enough time has not been allowed for the debate on it. The legislation is long overdue. It has been in development for four years since the initial consultation in 2019. The general scheme was approved by Government in April 2021 - more than two years ago. It was then another year before pre-legislative scrutiny was concluded last April and after a period of what was intense drafting, a Bill was published in October and then spent six months passing through the House. This has not been rushed - far from it. I cannot stress that enough. There has been ample time for discussion, debate, engagement and consultation. It has not been rushed. I commit to colleagues that this will not be rushed again. I am not going to rush this through the Houses.

While hate crime offences are new, I again remind Senators that hate speech offences are not new despite a narrative to the contrary that continues to dominate a lot of what I am seeing. Hate speech is currently an offence under section 2 of the Prohibition of Incitement to Hatred Act 1989. That is the law that is in place right now and that we must all adhere to. I have yet to hear anyone state that the 1989 Act does not need to be updated. In simple terms, that is what we are doing here. Regarding much of what is being discussed and many of the comments and issues raised by Senators, it is already dealt with in legislation and we have not had an avalanche of people being prosecuted or put in prison. Again, far from it.

I will use my time to address the points made by Senators. A number of Senators raised concerns around what they see as a possible chilling effect. Senator Chambers raised that matter, as did many others. As I have tried to explain or been at pains to stress that people can continue to say what they want but not if it incites hatred and not if it incites violence against others. People can still say awful things to each other. I was asked why I am talking about offending. This has been raised. People can still offend other people. That is happening now irrespective of whether this legislation is in place. People are not being put in prison. They are not being prosecuted. People will continue to say horrible and hateful things regardless of whether this legislation is in place. It is not our intention to stifle debate or shut down criticism. There are very clear and very explicit safeguards in this legislation to make sure we protect freedom of expression and that there are robust defences people can avail of.

In line with the Constitution, an explicit protection is included such that you can discuss or criticise a protected characteristic and there is a very clear defences for what was outlined by Senator Malcolm Byrne - reasonable, genuine contributions be they in literary, artistic, political, scientific form or academic discourse. Religion obviously is a protected characteristic and that was mentioned in the article referred to by both Senators but not just that. This is not just about an individual member of An Garda Síochána deciding to press charges. There has to be clear evidence of what the intent was here and there has to be a decision by the DPP that this evidence is there. It is then up to a jury of the person's peers to decide whether, beyond a reasonable doubt, a crime has been committed. I cannot stress enough that it is not the case that somebody will say something, not mean it and suddenly find themselves prosecuted or that they would say something they genuinely believe but with which a lot of people disagree and suddenly find themselves prosecuted. That is very clear in this legislation because we have an explicit protection contained around freedom of speech and the ability to discuss and criticise protected characteristics - the defences that are there for all the reasons I have outlined. This is in line with Article 10 of the European Convention on Human Rights, which provides that a communication will not be taken to incite violence or hatred solely on the basis that it contains information or ideas that offend, shock or disturb.

People still have an absolute right to say offensive things. Free speech will remain a cornerstone of our democracy. It is enshrined in Article 40.6.1 of our Constitution. However, as many Senators have pointed out, this is not an absolute. Nobody has the right to incite hatred or violence against others through their actions or words on account of their hatred of that person's identity. To paraphrase Senator Ward's remarks, this Bill is not about stifling debate. It is about taking hatred out of the debate, and there is a lot of hatred in discussion, content and engagement online or outside the online space.

Senator Mullen mentioned that one of the primary aims of this Bill is to simplify the hate speech and incitement offences provided for in the 1989 Act. That is why the broadly understood legal term of "incite" has replace "stir up". We are not confusing language or saying one piece is not connected to the other. It was agreed that this is a more appropriate use of modern legislation, although the meanings are exactly the same. "Incite" is a word that is used more appropriately in this day and age.

Senators should also be aware that they and everyone else in the State will be able to retain the freedom to offend whomever they want even in the discussion of protected characteristics as long as they do not cross a clear line into incitement to violence or hatred. It is only the extreme forms of speech that deliberately and recklessly incite acts of hostility or violence and cause harm to persons with a protected characteristic that will be criminalised.

I will refer to some of the other points that were made.I believe Senator Mullen referred to a comment that men cannot breastfeed. That is not hate speech. That is not what we are talking about here. That is a statement that might be somebody's belief but it is not a person setting out to incite violence or hatred against men, women or transgender people.

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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I must stop the Minister for one second to welcome the Cushla Active Age group from Roscommon and Athlone. They are very welcome to the Public Gallery.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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Reference was made this afternoon to J.K. Rowling. I have read her commentary and have seen a lot of what she said. Again, she would not be prosecuted under this legislation. Identities described in this House as nonsense - a person's ability to identify in whatever way they so wish - is not hate speech. I might not like what is said in that way, and many others might not like it, but it is not hate speech. Many examples have been given in this House and I am saying very clearly that this is not what we are talking about here. It might not be a statement that certain people like to hear, but that does not mean it is hate speech. None of the examples referenced in this debate, while some people might not like them, would be criminalised unless the individuals can be proven to have directly incited violence or hatred on the basis of that protected characteristic. The culture wars being discussed here are happening anyway. They are happening online and horrendous things are being said. This is in the absence of hate crime legislation and hate speech legislation, which we are trying to improve.

This is not the way we have done things in this country. When it comes to the division that is being sown in this culture war, we have dealt with really difficult and serious issues, and with emotive issues, in a very calm, respectful and evidence-based manner. We can point to recent referenda on the eighth amendment to the Constitution or on marriage equality. While there have been different voices and different points of opinion, where people might disagree and might not like what has been said, that will continue and that type of discourse and debate will continue under this legislation. The law is not about cancelling people for their opinions in a modern liberal democracy. This is about our responsibility as legislators to protect victims of hate speech and hate crime from harm. As I said at the weekend, we really need to remove ourselves from a lot of the noise, the hateful commentary, and the culture wars that are happening, and bring it back to what we are trying to do here. We are trying to protect those who are most vulnerable in our society and who we know are more likely to be victims of hate speech and hate crime.

Senator Flynn emphasised the need for the enactment of the Bill in the context of her community. I was struck by the Senator's reference to the finding by Pavee Point that only five prosecutions have been successful against instances of inciting hatred against members of the Traveller community in more than 30 years of the existing legislation. If we think of that community, and with the protected characteristics that have been expanded now, most of the new characteristics were not part of the 1989 Act. That there had been so few protected characteristics for the Traveller community shows exactly why this legislation is needed.

A number of Senators said there was a need to define the terms "hate" or "hatred" for the purposes of this Bill, and this is probably one of the biggest points raised here. I have been advised by two Attorneys General - the current Attorney General and the former Attorney General - against adding synonyms for "hatred" to the Statute Book. In the 1989 Act "hate" is not defined. In many other criminal offences "hate" is not defined. I do not hear any other Senator here saying that it has not worked as part of the 1989 Act, not can I give examples to Senators of murder cases where hate is used as part of the prosecution or defence. There is no request or need for the word "hate" to be defined because it is commonly understood by the judge, by the jury, by the Director of Public Prosecutions, and by those who are prosecuting and defending.

Consider other jurisdictions where different words are used. In England, Wales and Northern Ireland the term used is "hostility", but that is not defined. People have an understanding of what hostility is. They do not find that. I believe that, legally, hostile or hostility is a lower bar than hatred. If we consider Scotland, for example, the words "ill-will" or "malice" are used but, again, they are not defined. I would certainly see ill-will as being a lower bar than hatred in this instance. The EU framework does not define "hate" either. One colleague suggested that we would use the words "intense opprobrium" or "disgust" to define hatred for the purpose of this Bill. Are we really saying that this would be a more commonly understood concept to the average person on the street or in this House than "hatred", or indeed to an average person sitting on a jury? Would it really attach much more clarity to the concept of hate or hatred? Would using those other words provide more clarity or would they make the legislation inoperable? What about the words "bias", "prejudice", "contempt", "hostility", or "bigotry", which have all been suggested? I am not saying there is anything wrong there but do any of these clarify the meaning of "hatred" or do they serve to obstruct us so we then have to clarify what those words mean?

In a practical sense, the terms "bias" and "prejudice" here are inappropriate as they create too low a threshold. Everyone holds some form of bias. It is an unfortunate part of the human condition. Some of these biases are likely unconscious. It would be inappropriate and unfair to set out that a bias or prejudice that is held by a person when they are committing an offence could necessarily be enough to label it as a hate crime. From a legal perspective, the Attorney General has cautioned about the risk of successful legal challenge to prosecutions brought if other words or synonyms are attached to a definition of "hate" or "hatred. Defining either word too narrowly could lead to loopholes and ways of evading prosecution. It would also place an almost impossible burden on the prosecution whereby each one of the proposed terms would then have to be proven beyond reasonable doubt. For example, for a hate element to be considered as a component part of a crime, one would have to show bias and would have to show prejudice, contempt, hostility and bigotry, if hatred was defined in reference to these words. There is a greater burden and less clarity if we were to move in this direction. How is it preferable to remain inconsistent with what is already on the Statute Book and with what is routinely used in court proceedings? Senator Joe O'Reilly was correct when he spoke in reference to the interpretation of the Act, that the ordinary meaning of the word to reasonable people is clear and nobody is in any doubt as to what "hate" means.

Senator Chambers was concerned that recklessness with regard to incitement offences lowers the threshold too far. However, if one looks at the existing law it criminalises material that is intended or likely to stir up hatred. Recklessness is not significantly different from "likely to". It means knowing that there was a risk and proceeding anyway. It is, simply, a change in language to update it as to what is appropriate and what is generally used now. It is important to note that incorporation of a test of recklessness was widely welcomed by many of the submissions made during the pre-legislative scrutiny. The test for recklessness is well established if one considers the Non-Fatal Offences Against the Person Act 1997 or other legislation and criminal law. Our legal advice confirms that including intent or recklessness is legally permissible and is appropriate.

Several Senators drew attention to the campaign of disinformation that has accompanied this legislation. It has included misleading claims by certain commentators, and on social media, that the public consultation outcomes have been ignored. It has been said to me time and again that this is not true. It does not reflect the deep engagement that my Department has had with key stakeholders. As I outlined in my opening remarks, the public consultation was intentionally wide in scope and included five different strands to try to seek views on the new legislation to deal with both hate speech and hate crime, and how it should be developed. Giving voices to those most affected by hate speech and hate crime was a hugely vital part of this process. Despite some online criticism and commentary being amplified disproportionately, there has been overwhelming and significant support for the inclusive and victim-centred legislation.

On four of the five strands of the consultation, we had received significantly positive feedback. The fifth, which is the one that keeps being pointed to, was an online poll where people had to actively select to take part in it. It claimed that hate speech does not exist, it does not happen, it is not true and we do not need this legislation. We can interpret things how we want to but I want to be very clear that of the consultation we had, four of the five strands were overwhelmingly positive. The fifth, which was online and where people actively took part in it themselves, claimed, with a very high percentage, that hate speech did not exist and that this legislation was not needed. There is a big difference between what is being said, that a majority of people who took part in our consultation do not want this and it is not needed. That is simply not what happened.

New research conducted by the University of Limerick and Queen's University Belfast, included an Amárach Research survey. This survey is more representative of the general population. It shows that more than two thirds of those polled are in favour of hate crime legislation. Furthermore, the research highlights the general public's understanding of the need to protect certain groups of people from hate crimes, with 82% of those polled favouring the protection of transgender people in hate crime legislation.

I will also respond quickly to a few other concerns that were raised. Senator Clifford-Lee said that anti-Semitism is not covered under this Bill.I assure the Senator that members of the Jewish community in Ireland, practising or not, are protected on the basis of the protected characteristics of either descent or religion and in prohibiting the denial, condonation or gross trivialisation of the Holocaust under section 8. Descent specifically applies in the case where there are secular or non-practising Jews, as mentioned by the Senator. This was a deliberate addition to the Bill’s protected grounds last year, and it aligns with the European Council framework decision on combating racism and xenophobia. The definitions used in relation to genocide denial are to ensure that Ireland’s international commitments in respect of Holocaust remembrance are also met.

Some Senators have taken issue with the meaning of gender for the purposes of this Bill. Unfortunately, so much of this debate has focused on the protected characteristic and gender. To take a step back, this is Pride Month. I met with quite a large group of representatives from the LGBT community last night with the Taoiseach and other colleagues. While it was a positive meeting, they are clear that it is not just that this legislation is necessary but that it is very much needed now. While we have made progress, be it around marriage equality - even yesterday, with the progression of a new scheme to disregard criminal convictions for consensual sex between men - or whether it is around banning conversion therapies, there is still a significant number of the population of the LGBT community who feel it is less safe for them now and they are more discriminated against now than they were ten or 15 years ago. When we talk about gender, sexual orientation and gender identity, and speaking to those groups and representative groups, they are clear that this Bill must encompass and represent their entire community. In addition, it is not just wanted but it is very much needed at the moment.

I mentioned at the outset of this debate-----

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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We should welcome members of the LGBT Ireland group who are in the Gallery. I welcome them formally.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I thank them and acknowledge the work they have done in contributing and taking part in the overall consultation of this.

As I mentioned at the outset of this debate, it is common legislative practice to have different meanings and terms in different Acts specific to the purpose of the legislation in question. This is referring to gender for the purposes of this Bill. It is provided that, for the purposes of this Bill, gender means the gender of a person or the gender of which a person expresses as a preferred gender or with which the person identifies, and includes transgender and genders other than those of male and female. This is to allow for the protection of transgender and non-binary persons based on recommendations from civil society organisations and is in line with international good practice. For example, if a person who identifies as non-binary leaves an LGBTQ+ venue and are then subjected to a homophobic attack, the intention is that they should also benefit from this legislation. Without the interpretation we have set out, they would not. That was highlighted to us and that is the reason for the definition. To define gender in the same way as in the Gender Recognition Act would mean that this person would not be protected. I refer to this definition and the suggestion that we are now changing all the legislation. It only applies within this legislation and would have no bearing outside of it. This is for the purposes of this legislation and what we are intending to do here, which is to protect people from hate speech and hate crimes. It does not change the Gender Recognition Act, any definition there or in any other legislation.

I wish to touch on other points that have been made by colleagues, in particular around the reverse burden of proof. First, this is very much part of the 1989 legislation. This is not changing anything or introducing anything new. It is a concept in criminal cases. It has to be proven that there was an intent to incite hatred. I gave the example over the weekend where someone is stopped on their way to a protest and they have significant amounts of literature on which there is clear language that would incite violence or hatred against a group of people. If a person was caught with a bag full of drugs, the assumption is that they are either trying to or will distribute them. The assumption here would be that the intention is to distribute this literature, unless somebody can prove otherwise. That is not new; it is a concept in criminal law. It is already in the 1989 Act. We are not changing it. I want to be clear. I do not think any Senators are trying to change how that applies in other criminal instances. This is not new; it already applies here.

Second, this Garda power already exists in law. We are not changing it. We are simply modernising it to make sure that it can take into account the changes in technologies and the ways in which people communicate that would not have been applicable back in 1989.

Senator Craughwell asked if we would be pausing the Bill. We do not intend to pause the Bill. It is important that we progress through the stages and allow for debate. As I said, I will engage with colleagues the entire way throughout. I do not see any purpose or reason to pause the Bill when we have spent four years debating it to get to the point it is at now.

Regarding language and the Irish language being a protected characteristic, the way in which we identified protected characteristics was through public consultation, expert engagement, looking at the facts that we have where people are most likely to be discriminated against and data from the Garda. That is where we came up with the protected characteristics. Specifically for Irish language, that would be covered under nationality, national or ethnic origin, descent or race. It is and will be covered under those areas.

Senator Clonan is not here, but I would like to say that I am very sorry for what happened to him at the time. That happened 25 years ago. This was not about persecuting him, it was about people who did not like what he had to say and tried to shout him down and prevent him from saying what he had to say. This Bill will not prevent somebody like Senator Clonan from saying what he has to say. It will not criminalise provocation or provocative opinions. It sets out clear grounds for reasonable and genuine debate in section 7(3). What happened 25 years ago should not have happened, but this legislation does not change the fact that people will continue to shout down others and try to stop them from having opinions. The legislation would not criminalise the Senator for what he was saying. In fact, it is actually protected in what we are saying here. If you are an academic and saying things for academic debate and discussion, be it in an artistic or political way, you are protected in this legislation. People keep saying that this is happening to them now and they are afraid with this legislation they will not be able to say what they are saying. People are already being attacked and verbally abused, be it online or elsewhere, irrespective of this legislation. I bring it back to the fact that there are a minority of people who are being verbally targeted that we are trying to protect here. They are being physically targeted and they are the people we are trying to protect here, not people who are making contributions to political or academic debate. That is very clear in this legislation. If one goes through every single part of the Bill, that is clearly set out.

That is in line with what Senator Malcolm Byrne said. However, the law is not absolute. The Senator said that it depends on the individual circumstance, the evidence and context in which something has been said. Looking at any other type of crime, we do not set out absolutely every single possible outcome because we cannot do that here. We do not know what might happen. We have to allow a judge, jury and group of our peers to decide what the circumstances are and how we apply them. We can, insofar as is possible, set out the parameters, clear guidelines, rules, protections and defences, but we need to ensure that there is an ability for a judge and a jury to take all of the circumstances into account and make a decision as to what the outcome should be.

I think I have addressed all of the points that were raised. I appreciate there are different views on this. Senators may be receiving a lot of information or emails on this and I too have received many emails. I have had much commentary online and otherwise. While there are people who have genuine concerns that their freedom of expression will be prohibited, much of what I am seeing is actually what we are trying to prevent. Much of it is targeted. For people who perhaps are not strong and are not able to deal with some of the targeted abuse and online hatred, we need to make sure there are protections in place to support them, and that is exactly what I am trying to do here.

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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Amendment No. 1 was moved by Senator McDowell on 13 June, 2023.

Amendment put:

The Seanad divided: Tá, 6; Níl, 27.

Tellers: Tá, Senators Victor Boyhan and Tom Clonan; Níl, Senators Robbie Gallagher and Regina Doherty.

Amendment declared lost.

Question put and agreed to.

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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When is it proposed to take Committee Stage?

Photo of Regina DohertyRegina Doherty (Fine Gael)
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Next Tuesday.

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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Is that agreed? Agreed.

Committee Stage ordered for Tuesday, 27 June 2023.

Cuireadh an Seanad ar fionraí ar 4.26 p.m. agus cuireadh tús leis arís ar 5.02 p.m.

Sitting suspended at 4.26 p.m. and resumed at 5.02 p.m.