Maria Byrne (Fine Gael)
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Amendments Nos. 1 to 6, inclusive, 8, and 15 to 18, inclusive, are related and may be discussed together. Is that agreed? Agreed. There is no Senator here to move Amendment No. 1.

Alice-Mary Higgins (Independent)
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I wish to check the grouping.

Maria Byrne (Fine Gael)
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That is not a problem: amendments Nos. 1 to 6, inclusive, 8, and 15 to 18, inclusive are related and may be discussed together.

Alice-Mary Higgins (Independent)
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I just want to check in case I have some of that grouping.

Maria Byrne (Fine Gael)
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Would any Member like to speak?

Conor Murphy (Sinn Fein)
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I move amendment No. 2:

In page 3, between lines 21 and 22, to insert the following: “ ‘organising or facilitating travel for the purpose of serving in the armed forces of a state engaged in war crimes, crimes against humanity or genocide’ shall be construed in accordance with section 4F;”.

I was going to speak on a group of amendments.

Maria Byrne (Fine Gael)
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I will just clarify, as the Senator was not here, that amendments Nos. 1 to 6, inclusive, 8, and 15 to 18, inclusive, are related and may be discussed together. That has been agreed, so the Senator is entitled to speak to the group.

Alice-Mary Higgins (Independent)
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I was indicating.

Maria Byrne (Fine Gael)
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Nobody moved amendment No. 1. That is why I asked the Senator to wait.

Alice-Mary Higgins (Independent)
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We normally discuss all the amendments in a group and then put the questions at the end.

Maria Byrne (Fine Gael)
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I will bring Senator Higgins in. I am just asking Senator Murphy to move his amendment first.

Alice-Mary Higgins (Independent)
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I get that, but why would we have finished amendment No. 1? Normally we discuss them all.

Maria Byrne (Fine Gael)
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There was nobody here to move amendment No. 1. It was not moved.

Alice-Mary Higgins (Independent)
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Is it not included in the grouping?

Maria Byrne (Fine Gael)
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I read out the group but there was nobody here to move amendment No. 1. None of the Senators listed as being behind it was here to move it.

Alice-Mary Higgins (Independent)
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I get that, but because it was a grouping, I thought we would discuss them all and then the formal question would be put.

Maria Byrne (Fine Gael)
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We normally do not go through them amendment by amendment.

Alice-Mary Higgins (Independent)
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We do not normally put the question on the amendments until we finish the full discussion.

Maria Byrne (Fine Gael)
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Since amendment No. 1 was not moved, we moved to the next amendment. We can discuss the amendments now. The Senator is welcome to come in on amendment No. 2 after Senator Murphy, if that is okay.

Alice-Mary Higgins (Independent)
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Yes.

Maria Byrne (Fine Gael)
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Great. Thank you, Senator.

Conor Murphy (Sinn Fein)
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My apologies for being late. I accept responsibility for not having moved the first amendment. The series of amendments to this section, in my name and the names of my colleagues, is necessary to lay a foundation for later amendments to define circumstances in which it would be an offence to join, train or recruit for an armed force that is engaged in crimes against humanity, war crimes and genocide. This is not anything fanciful. The existing legislation ignores the greatest terrorism crimes of our time, which are the actions of the Israel Defense Forces in Palestine. The current laws that we have do not prevent people from joining a military engaged in genocide with gross human rights violations. While right now this arises in relation to the actions of the IDF, it may in future arise in relation to armed forces of other states engaged in war crimes that recruit what are in fact mercenaries. The IDF recruits foreign fighters, just as others do who are targets of this legislation.

The EU directive dates from a period when ISIS was at its peak and there was a significant problem with people travelling from Europe to join ISIS. While it is not the case that many Irish people join the IDF, it is important that, as a State, we make it clear that participating in the actions of armed forces in other states engaged in war crimes and genocide is unacceptable, and those who do so will be held accountable for their actions. The failure of the State to have any sanctions or restrictions against those travelling and participating in war crimes and genocide as part of an armed force leaves the State open to the allegation that we are complicit in this genocide. We have to remind ourselves of what we are dealing with. As a State, we cannot stand by and allow citizens to serve the IDF or any other armed forces engaged in war crimes.

Sinn Féin's amendments are designed to outlaw citizens of this State travelling or training to participate in genocide or war crimes. They also outlaw recruitment by the armed forces of such a state. Our amendments would have the effect of preventing the IDF or other armed forces engaged in genocide or war crimes from training with the Defence Forces. It was previously revealed that IDF military personnel had trained in the Irish military college over the previous six years. This is something that would not be permitted under our amendments. The amendments I have tabled are no less important than the introduction of the occupied territories Bill in the stance that this State takes against genocide and war crimes. I ask the Minister of State to accept them all and for the Committee to support them.

Alice-Mary Higgins (Independent)
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I indicate my support for this set of amendments. It is important. I refer to previous legislation.I understand it was the case that participation in an armed force which is engaging in terrorist activity would have been included and was something that was identified. A shift has been taken to remove accountability for members of such armed forces in regard to terrorist offences in the Bill.

Reference was made to international humanitarian law and other structures in place regarding such offences. There is a significant concern, however, that that is not always applied and there is an inequality in the Bill to which we will come later. There are measures in the Bill which could lead to somebody who is taking action to prevent breaches of international law becoming, in effect, criminalised and committing criminal offences. I refer to those in breach of international law, the deepest essence of what we mean when we talk about terror and terrorism, who are instilling and dealing in terror and who have terror as their goal, strategy and modus operandiin terms of what they inflict on the civilian population in places like Gaza. They might fall outside the rubric of the Bill. However, a person who prevents to seek such action might come under it. That is a problem and needs to be addressed.

I will support the amendments put forward. This is not theoretical because we know Israeli armed forces have been trained in Ireland in the past. There are major concerns about whether we might find ourselves complicit and give the rubric of legitimacy to actions which are flagrantly in breach of international law, including the Genocide Convention, one of the greatest and strongest obligations on all states, which is to take all necessary steps in respect of crimes of genocide.

Catherine Ardagh (Dublin South Central, Fianna Fail)
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I thank Senators who have contributed to the debate. I will address amendment No. 1, which I understand has not been moved. It provides interpretation in respect of the terms "crimes against humanity", "genocide" and "war crime" to be inserted into section 3 of the interpretation section of the principal Act, linking these terms to the definition in the statute of the International Criminal Court, which I take to refer to the Rome statute of the International Criminal Court.

Amendments Nos. 2 to 6, inclusive, and 8 provide for new terms to be included as part of the definition of terrorist-linked activity in the definitions section 4 of the principal Act. These new terms are further defined and expanded definitions to be inserted as proposed in amendments Nos. 15 to 18, inclusive, as discussed. They would insert a new section 4F into the principal Act. Combined, they create new terrorist offences in the engaging in terrorist-linked activity offence in section 6 of the principal Act. The effect is to criminalise as terrorism travel, organising travel, providing training, receiving training and recruitment for the purposes of serving in the armed forces of a state engaged in war crimes against humanity or genocide.

As explained, when the Bill was before the Dáil the Minister, Deputy O'Callaghan, understood the intention behind these amendments was to ensure that those who partake in or facilitate acts that contribute to the commission of breaches of international law, including war crimes, crimes against humanity and acts of genocide at the behest of a state via the armed forces, can be convicted of terrorist offences. I would like to condemn the actions of the IDF, the atrocities carried out in Palestine, the killing of innocent civilians and children and the starvation of a population, as well as the destruction of civilian infrastructure.

The principal Act does not exclude the activities of armed forces during an armed conflict and in the exercise of their official duties from being categorised as terrorist offences, insofar as those activities are governed by humanitarian or other rules of international law. This was a requirement of the original underlying EU measures underpinning the Bill, namely the 2002 EU Council framework decision on combating terrorism.That requirement remains in the 2017 EU directive on combating terrorism, and the primary Act, on foot of the Bill, will give effect to it. The aim of the Bill is to give full effect to that directive. Therefore, the proposed offences fall outside the scope of the Bill. This exclusion is not intended to allow armed forces to act with impunity. Rather, it reflects the importance of maintaining the distinct legal frameworks that govern armed conflict and terrorism.

International humanitarian law regulates the conduct of parties of law. While it allows certain acts of military violence may be lawful, it absolutely prohibits attacks against civilians. Such violations of international humanitarian law are war crimes. Acts of terrorism are always criminal offences and terrorists are criminals. There is no lawful terrorism.

I emphasise the commitment to the rule of international law is enshrined in our Constitution. This is one of the core principles of Irish foreign policy and includes customary international law as well as international agreements Ireland is party to. These include the Genocide Convention and the Geneva Conventions, which established international legal standards for humanitarian treatment in war.

In relation to international criminal law, most significantly Ireland gave effect to the Rome Statute of the International Criminal Court via the International Criminal Court Act 2006. This enables Irish courts to punish breaches of international law that fall within the jurisdiction of the International Criminal Court, namely, genocide, crimes against humanity and war crimes. It also makes it an offence to facilitate the commission of these offences, including aiding, abetting or otherwise assisting in their commission. It allows for the prosecution for such offences in Ireland while empowering authorities to assist the International Criminal Court in the investigation or prosecution of such offences.

The Act also provides for universal jurisdiction over war crimes constituting grave breaches of the Geneva Conventions. An individual accused of such crimes can be prosecuted in Ireland regardless of their nationality or where the offence occurred. A similar form of universal jurisdiction is provided for in respect of certain offences under the Geneva Conventions Act 1962, as amended by the Geneva Conventions (Amendment) Act 1998. Thus, violations of international humanitarian law by the armed forces of a state are already crimes in our domestic law. International humanitarian law already delineates the spectrum of lawful and unlawful conduct in war. Overlaying a terrorism label onto this framework where all acts of terrorism are automatically illegal is redundant, disruptive and potentially dangerous. This is particularly the case where the armed forces or even the population of one side in a conflict is labelled as terrorist, as this can serve to circumvent the protections of international humanitarian law. For these reasons, I do not support the amendments.

Maria Byrne (Fine Gael)
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Before I call an Seanadóir Murphy, I acknowledge the presence of the Park Community Centre, guests of the Minister of State, Deputy Higgins. There was a group in the Gallery who were guests of An Taoiseach and there were also some guests of Deputy Healy-Rae.

Conor Murphy (Sinn Fein)
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I thank the Minister of State for her assurances that these matters are already covered. The experience in Europe, and these laws reflect European laws, is that there has been an unwillingness to do anything about the genocide and those involved in perpetrating it. Many of them come from European countries, join the IDF and go back home again. People with lead responsibility in the Israeli Government have travelled to European countries and there has been no follow-through on the legislation. If it is simply a matter of political will that the legislation will be followed through, Ireland needs to look carefully at whether this reflects that type of European legislation. There has been a distinct lack of action against any of the people involved in the genocide on the ground, and especially those who planned, led and advocated for it, in relation to their treatment in various European countries.

Alice-Mary Higgins (Independent)
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I will make a similar point. We are not seeing international humanitarian law being upheld in its spirit or its letter. There should be consequences for those who have engaged in breaches of international humanitarian law. The Minister of State said there are domestic measures but I do not know what domestic measures there are.

It has now been moved but when the football match was due to be happening, there were discussions about what screening would take place in relation to potential war crimes and breaches by those who would have been attending. There was not a sense of a satisfactory system being in place in Ireland to meet our obligations under the International Criminal Court in respect of investigating those potential breaches.There is a concern of international law not being upheld. We sadly see it, even in Ireland, in the dilution of the occupied territories Bill, we see it in the continued failure to actually examine what is moving through Shannon Airport and we see it in the failure to investigate and properly step up to the fact that we have had a sevenfold increase in the export of military technologies from Ireland to Israel that maps directly onto the assault on Gaza, which is that dual-use goods have had a sevenfold expansion that directly maps on to that period of time. There is a huge question of the eyes wide shut approach to potential areas of complicity. This was a good faith attempt to try to ensure that we would be marking and having a proper standard in relation at least to this kind of activity.

I appreciate the Minister of State's point that the labelling of things as "terrorist" can move them outside the international humanitarian law framework but that is a concern we are going to come to a little bit later. If states have huge powers to label things potentially as terrorist and move them outside of the international humanitarian law framework, yet actions and war crimes by those who may be members of state militaries are not getting captured, are not getting properly sanctioned and are not getting dealt with systemically, we do create a danger of a two-tier system in terms of who is actually obliged to comply with laws or not, and who has the protections of international law and who does not. The Minister of State just made a point herself that there are question marks about some offences being labelled as terrorist and then being moved out of the protection of international humanitarian law. It is something I am sure we will come to on some of my later amendments.

Catherine Ardagh (Dublin South Central, Fianna Fail)
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I understand and appreciate the point the Senator has made and where these concerns come from. I note and reiterate that the current terrorism framework legislation before the House is not the correct law to address matters that have been raised today. Violations under international law, as outlined, by the armed forces of a state are already crimes in our domestic law. As was stated, the International Criminal Court Act 2006 sets out that in Ireland crimes against humanity, war crimes and genocide are criminal offences. It also makes it an offence to facilitate the commission of these offences, including aiding, abetting or otherwise assisting in their commission, which the acts of those amendments could be categorised as. I have nothing further to add.

Maria Byrne (Fine Gael)
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I would like to acknowledge the Minister of State, Deputy Frankie Feighan, and his guests who are in the Gallery. You are all very welcome here today. Enjoy your visit to Leinster House.

Conor Murphy (Sinn Fein)
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I move amendment No. 3:

In page 3, between lines 25 and 26, to insert the following:

“ ‘providing training in the armed forces of a state engaged in war crimes, crimes against humanity or genocide’ shall be construed in accordance with section 4F;”.

Conor Murphy (Sinn Fein)
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I move amendment No. 4:

In page 3, between lines 27 and 28, to insert the following:

“ ‘receiving training in the armed forces of a state engaged in war crimes, crimes against humanity or genocide’ shall be construed in accordance with section 4F;”.

Conor Murphy (Sinn Fein)
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I move amendment No. 5:

In page 3, between lines 27 and 28, to insert the following:

“ ‘recruitment for purpose of serving in the armed forces of a state engaged in war crimes, crimes against humanity or genocide’ shall be construed in accordance with section 4F;”.

Conor Murphy (Sinn Fein)
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I move amendment No. 6:

In page 3, between lines 27 and 28, to insert the following:

“ ‘travel for purpose of serving in the armed forces of a state engaged in war crimes, crimes against humanity or genocide’ shall be construed in accordance with section 4F;”.

Conor Murphy (Sinn Fein)
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I move amendment No. 7:

In page 5, to delete line 17.

This section raises very significant concerns. We only have to look to our near neighbours in Britain to see where issues have arisen with protests. Some time ago, the Minister of State spoke about her own views regarding some of what has been going on in the Middle East, Palestine and Lebanon and her opposition to all of that. We can see how the definition of "glorification of terrorism" has been open to abuse. In Britain, 3,500 people who have declared themselves in support of Palestine Action have been arrested in recent times. Some 80% of these are pensioners. Despite this, something like 35 people have been arrested as the result of race riots and racist violence. That shows how such laws are applied where a government wants to shut down protests it considers to be embarrassing in light of its international relationships. This has moved clearly and evidently towards something that is completely ludicrous. Elderly people who are genuinely, legitimately, deservedly and with some merit protesting against genocide are treated in such a way under laws that are not directly related to this one but that have a similar theme. There can be unintended consequences in how these things are interpreted and in how particular governments might propose to approach them.

A significant problem with this Bill is the widening of the definition of "provocation of terrorism" contained in section 3. We will be opposing this section. It is our view that this expansion of the definition is deeply problematic. We are yet to hear a credible rationale for this broadening. As I have said, it is a cause of serious concern, particularly in relation to the glorification of terrorism, but also as a result of its general vagueness and the broadness of the language, which will be wide open to misuse and to suppress freedom of speech.

The provisions are too broad and are open to abuse. Public provocation charges can be brought where no terrorist offence has been committed, with those charged facing up to ten years in prison. Again, the provisions are so broad that people could be found guilty of a terrorism offence in relation to provocation where they distribute or publish a message that could reasonably be construed as inciting terrorism or glorifying terrorist activity. That includes praise and celebration. As was said when this Bill was discussed previously in the Dáil, it is very probable that putting up a poster of Bobby Sands or Nelson Mandela in the 1980s could have been construed as glorifying terrorism. This legislation parrots some of the language of the far right, especially the language of the DUP in the North, in relation to the glorification of terrorism. We are led into territory where commemoration or celebration of the 1916 Rising, wearing a lily or the legitimate commemoration of loved ones killed during the conflict in the North could fall under the provisions of this Bill.

This takes place against the backdrop of debate across Britain, Europe and America regarding legislation against legitimate protest, including protest in relation to Palestine. We cannot ignore that context. We have seen the figures in relation to some of the people who have been protesting. The assurances that the provisions will not be misused in any way do not really give me any confidence. While the Minister and her current partners in Government may be well intentioned, we have no sense of how these provisions will be used in future. We can see very clearly how such powers are being used in other countries. The section smacks of an attempt to crack down on freedom of speech rather than terrorist activities. That can be seen across Europe, particularly with regard to the Middle East, in the approach of states like Germany and France to legitimate protest as opposed to their approach to pursuing people on the far right who are creating difficulties. The section should be opposed. The provisions smack of authoritarianism. They are not called for and they are open to abuse.

Alice-Mary Higgins (Independent)
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I have also proposed the deletion of this language, "public provocation to commit a terrorist offence", from the definition of "terrorist-linked activity".My concerns are very similar. They relate to the very slippery slope that the provisions in this Bill set out. The Minister of State, Deputy Ardagh, stated on Committee Stage that "The offence of public provocation to commit a terrorist act seeks to target those who glorify and justify terrorism, or who disseminate messages or images online and offline ... as a way to gather support for terrorist causes".

Let us look at that language, as the Minister of State used it, and imagine how that can play out. She said to "justify terrorism". Take those who do not believe what the Government is labelling as terrorism is terrorism and who believe it is actions necessary under international law and they are within their rights. If they simply say they agree with that interpretation, which in some cases is still being teased out before the courts, or they agree with an interpretation that is different from a government's interpretation, where does that leave us if we follow that through? Then anything can be labelled as terrorism and anybody who suggests they do not agree with that label are themselves creating a new offence.

If we follow it through further, the Minister of State said, "terrorist causes". What are going to be terrorist causes? Mandela's push against apartheid was regarded as a terrorist cause in the South African State. There are certain states that are trying to get climate action labelled as terrorism. We see pushes and intents for that in the United States and elsewhere. Will climate action then be a terrorist cause for those who are literally trying to save all of our lives in relation to climate action? Does it mean that once that label has gone on it, you cannot even challenge it? Regardless of the offence, if someone has broken something and we are dealing with criminal damage, by labelling it "terrorist" the Government cuts off the ability of anybody to actually speak in support of, contextualise or talk to the wider context of what somebody has done. That is a massive piece.

The figures are there in terms of what we have seen unfolding in the United Kingdom. There were 63 arrests under the terrorist legislation. When they proscribed Palestine Action, there was a 2,608% increase in the arrests, with almost 2,000 people arrested. Of those arrested, 80% were women. A majority of them were over 60 years of age. They were not a threat to a population and not instilling terror but simply saying the illegal message, "I oppose genocide. I support Palestine Action." To have that image or sign on a T-shirt gets you arrested right now in the UK. If we bring in laws that allow the same thing to happen, whether or not the Minister of State tells us we are lovely and do not do terrible things with terrible laws, and if the Government puts the toolbox in place that has allowed that to happen, it is creating a danger. We are going to come to this a little bit later on some of the other ways that comes in.

Let us get back to it again. The Minister of State said on Committee Stage:

It must be shown that he or she possessed the requisite intention of inciting persons to commit a terrorist activity when he or she distributed, published or had caused to be distributed or published a message. The message itself must have glorified, including by praise or celebration, a terrorist activity.

She also said, "The publication of the message must give rise to a reasonable apprehension that someone might, as a result of such a publication, commit a terrorist act". That sounds like a good safeguard but that is the same kind of safeguards the UK has. That is an entirely subjective test in terms of the reasonable apprehension.There are judges in the United Kingdom who are looking at 80-year-olds in wheelchairs, holding a piece of paper with the words “I am against genocide”, and saying they believe that person is a threat. It is a ludicrous situation, but it is deeply consequential.

As we are going to discuss with some of the later amendments, there is a significant issue about what is included in the definition of terrorist activity. In other jurisdictions, there is a shift whereby convictions that would normally be treated as criminal property damage are now being considered and prosecuted as terrorist offences. It may be right that something normally treated as criminal property damage is prosecuted and so forth. However, by labelling it as a terrorist offence, it is moved to a much more serious and intimidatory legal consequence for those engaged in it, and it also cuts off the sources of support. If somebody is engaging in the activity and then they say, “I do not like your climate policies” or “I do not want arms used in this way”, they are not just getting done for criminal damage. They are now getting done for terrorism because there is a cause attached to it even if the cause, in some cases, such as climate and preventing genocide, is not a cause that is delivering terror. In fact, it is the opposite. It is a cause that is seeking to give hope and move us back towards a world in which people are not living in terror, either in terms of illegal military action or unliveable climate disaster.

Simply by labelling it in this way for these actions, which may well be correctly prosecuted as criminal damage, there is a levelling up where someone doing criminal damage is to be treated with much less severity than somebody who may have a belief attached to that, which happens to fall under the rubric of this Government or any other state. We will come back to this point because the Bill is setting us up to enforce what other states might consider to be an offence. Will it include people who graffiti a building? If somebody puts graffiti on a building and says they believe a state should or should not do something, will that not just be criminal damage but a terrorist offence? What is the threshold where property damage is going to become a terrorist offence? That is a very serious question in terms of how it will pan out.

The Bill, as drafted, also allows for the prosecution for terrorist-linked activity of people who praise the actions of protesters engaged in direct action in or outside the State, which may include damage to property or other offences. This includes those who are damaging weapons facilities to interrupt the supply of murderous technologies that are directly facilitating a genocide. We have heard about the Genocide Convention, which the Minister of State mentioned, and the obligation of states not to provide arms. We have heard calls at the United Nations for arms embargoes in respect of the provision of weapons for genocide. Where is the threshold where somebody says, “I am glad they were not able to drop those bombs” or “I am glad they stopped those weapons systems from delivering the bombs they were due to drop on Gaza”? Is that person celebrating? Does that person now come under the criminal offences Act as well?

Under paragraph (b), the definition of terrorist activity includes “an act committed ... outside the State that, if committed in the State, would constitute an offence specified in Part 2 of Schedule 2”. What happens if those actions - we are coming to my set of amendments now - committed outside the State happened in an occupied territory? If these actions were committed in the State they would be criminal offences, but what happens if they were committed in an occupied territory?If someone in an occupied portion of Ukraine taking action against the Russian military were to take a similar action here in our State, it would be an offence, but as it is taking place in an occupied territory, is it still an offence? The contexts are slightly different.

Another piece I am concerned about is that provision in regard to an act committed outside the State which, if committed in the State, would constitute an offence. I will let the Minister have the advice on this one and then I am going to come to it. In this scenario, where an act is committed outside the State that, if committed in the State, would constitute an offence, the emphasis is on the action, taking into account the wide range of actions, but if you had an action, for example, criminal damage of a piece of property, in support of a terrorist cause, whose definition of "cause" is it? Ireland is putting in place the same toolbox, or a very similar toolbox, to what we are seeing being applied in a very authoritarian way in the UK or what we see being deployed in Germany. We are putting in place the same toolbox with the same sets of offences, if we are taking that common set of offences. Will it be the case that we will have a law in another country that is very similar to the law here but who we consider to be proscribed or terrorist organisations may differ from country to country? We do not have such a proscription list in the same way others may have. Will we take the United States definition of terrorist organisations, and when we consider whether people should be prosecuted in Ireland, because of the fact we have a similar offence in our law as they have in their law, are we just going to be comparing action with action or will we be comparing action with action in terms of who it is?

In the UK and the US, in the move to proscribe, an ever-larger number of organisations are being defined as terrorist organisations. A swathe of those who wish for action in areas like Palestine, human rights or climate are being labelled as terrorist organisations. When we are considering whether it is a terrorist activity, how are we going to say that we do not believe it would be an offence in the State here? Will we be saying it is because it says the act is the same? If the act is the same but the entity doing it is one we might not have identified as a terrorist organisation, where does that come in? It is not clear to me, but as I read the law, it looks to me that the test is the act, not the nature of the organisation.

I have further concerns on this that I will return to on Report Stage relating to how offences are added to the list of offences that may be considered a terrorist activity in Part 1 of Schedule 2. The Bill allows for the adding of an offence to the Schedule in section 12 of this Bill. An offence under section 3 or 4 of the Criminal Justice (Offences Relating to Information Systems) Act 2017 is going to be added as an offence that may be considered terrorist activity. This relates to persons who damage, interrupt or render inaccessible the functioning of an information system without lawful authority. The definition of an information system is extremely wide and, again, I am concerned about how that is going to be applied under the Bill. I am concerned about what that is actually going to mean in practice and how that may be applied.

Again, I am concerned about the procedures for how new offences are being added to the list in Part 1 of Schedule 2. I think there has to be special scrutiny and proper transparency in regard to those offences and clarity as to how they will be added.That is my amendment No. 7. Have we come to amendments Nos. 9 to 14, inclusive, yet?

Maria Byrne (Fine Gael)
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No, we have not.

Alice-Mary Higgins (Independent)
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I will come back to them.

Catherine Ardagh (Dublin South Central, Fianna Fail)
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I thank the Senators who put this amendment before the House and made contributions today. I understand the genuine questions raised by Senator Higgins. Some were rhetorical and some were genuine, but I understand the point being made.

This amendment seeks to delete the phrase "public provocation to commit a terrorist offence" from the definition of terrorist-linked activity in section 2 of the Bill. The effect of this amendment would be to remove public provocation as an offence under the Bill. Noting the concerns around the public provocation offence, the Minister, Deputy O'Callaghan, committed to reflecting on the wording of this on Committee Stage in the Dáil and sought further advice from parliamentary counsel on the proposed changes.

Parliamentary counsel confirmed the necessity for the restructuring of this offence, both from a compliance perspective and to add greater safeguards as to its interpretation and use. The purpose of this legislation is to give full effect to the provisions of a 2017 EU directive on combating terrorism that are not already provided for in Irish law. Article 5 of the directive requires that public provocation to commit terrorism be criminalised.

As mentioned on previous Stages, the amendment of section 4A of the principal Act does not create a new or separate offence of public provocation by way of glorification, nor does it make unduly vague and expansive. Rather, the amendment clarifies that the scope of the public provocation offence is such that it can include public provocation by way of the glorification of terrorism. This clarification stems from the requirements of Article 5 of the 2017 EU directive. The clarification does not change the substantive offence and provocation by way of glorification is encompassed in the offence as it currently stands. Its explicit reference now in the amendment is an exercise in clarity and compliance.

Section 3 of the Bill also reformulates the wording of the offence provision more generally to give clarity to the elements necessary for a prosecution of public provocation. This serves to safeguard the offence from abuse and misuse. The current wording in the principal Act reads:

“4A. For the purposes of this Part, public provocation to commit a terrorist offence means the intentional distribution, or otherwise making available, by whatever means of communication by a person of a message to the public, with the intent of encouraging, directly or indirectly, the commission by a person of a terrorist activity.”

The revised section 4A as proposed by this Bill provides:

“4A. For the purposes of this Part, a person publicly provokes the commission of a terrorist offence if—

(a) he or she, with the intention of inciting persons to commit a terrorist activity, distributes or publishes, or causes to be distributed or published, by any means (including via the internet) to the public or a section of the public a message—

(i) inciting, or that could reasonably be construed as inciting, persons to commit a terrorist activity, or

(ii) that glorifies (including by praise or celebration) a terrorist activity,

and

(b) such distribution or publication gives rise to the reasonable apprehension that the commission of a terrorist activity could thereby result.”.

Parliamentary counsel confirmed that the revised text affords greater protection to someone exercising their right to freedom of expression than the current section 4A. The current section 4A simply refers to the publication of a message. It does not say anything about the nature or content of the message. The only thing that makes the publication of the message criminal under the current section 4A is the intent of the publisher. Proof of that on its own will not be sufficient to secure a conviction under the reframed section 4A. Furthermore, the publisher of the message must not only intend to incite the commission of a terrorist offence, but the published material must give rise to a reasonable apprehension that a terrorist act could result. The latter element is also absent from the current section 4A.

In summary, the proposed new section 4A contains two new safeguards that are not present in the current version of section 4A:. The message itself must reasonably constitute an incitement to commit a terrorist activity as defined in the Act, or to glorify a terrorist activity as defined in the Act when objectively tested. The publication of the message must give rise to a reasonable apprehension that someone might, as a result of such publication, commit a terrorist act. Paragraph (b) is also an objective test.

The use of a reasonableness test is an objective legal standard used in law to prevent arbitrary or irrational interpretation, assessing circumstances against a hypothetical reasonable person's response or action.These ingredients serve to act as safeguards, ensuring that it is only those who set out deliberately to incite terrorist activity and it is reasonable to assume that a terrorist activity as defined in the Act would result are captured by this offence.

The high standard of proof contained within the reframed section 4A ensures that a person's fundamental rights such as freedom of expression and association - to be allowed carry a Bobby Sands banner - are protected, and situations do not arise where activities that are otherwise lawful are considered as falling within the scope of this section.

Senators Higgins and Murphy just raised a case that arose in the UK and the legislation in the UK. Thankfully, the law in England and Wales is different from ours. This legislation will be different. There is a marked difference between the two statutory provisions in question. In Ireland, we are proposing section 3 of the Bill, which reformulates the definition of public provocation offence and what exists under section 13 of the Terrorism Act in England and Wales. Under the legislation in England and Wales, there is no requirement for a person's act or behaviour to carry with it the intention of seeking to cause the committal of a terrorist offence. It is much broader than that, simply requiring that in a public place a person wears or displays an article that would arouse suspicion that the person is a supporter of a proscribed organisation. Let us contrast that with section 3 of this Bill, which carries a much higher burden of proof to bring about a successful prosecution for the offence of public provocation to commit a terrorist offence by glorification. It must be shown that the person possessed the requisite intention of inciting persons to commit a terrorist activity when he or she distributed, published or caused to be distributed or published a message inciting or glorifying, including by praise or celebration, a terrorist activity. It is also a requirement of the offence that such distribution or publication must give rise to the reasonable apprehension that the commission of a terrorist activity could thereby result. These additional elements serve to act as safeguards in ensuing it is only those who set about to deliberately set about to incite terrorist activity and, where it is reasonable, a terrorist activity would result, are captured by the offence. I cannot support the amendments.

Maria Byrne (Fine Gael)
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Before I call Senator Murphy, I welcome guests of the Minister of State, Deputy Harkin. They are from the Sligo, Leitrim and South Donegal constituency. They are very welcome and I hope they enjoy their visit to Leinster House.

Conor Murphy (Sinn Fein)
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I move amendment No. 8:

In page 5, between lines 21 and 22, to insert the following: “(j) organising or facilitating travel for the purpose of serving in the armed forces of a state engaged in war crimes, crimes against humanity or genocide,

(k) providing training in the armed forces of a state engaged in war crimes, crimes against humanity or genocide,

(l) receiving training in the armed forces of a state engaged in war crimes, crimes against humanity or genocide,

(m) recruitment for purpose of serving in the armed forces of a state engaged in war crimes, crimes against humanity or genocide, or

(n) travel for purpose of serving in the armed forces of a state engaged in war crimes, crimes against humanity or genocide;”,”.

Maria Byrne (Fine Gael)
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Amendment No. 11 is a physical alternative to amendment No. 10. Amendments Nos. 9 to 14, inclusive, and 19 are related and may be discussed together by agreement. Is that agreed? Agreed.

Sarah O'Reilly (Aontú)
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I move amendment No. 9:

In page 5, to delete lines 32 and 33 and substitute the following: “(i) inciting by its express terms, or that could reasonably be construed as inciting by its express terms, persons to commit a terrorist activity, or”.

I welcome the opportunity to speak to amendments Nos. 9 and 12. I begin by making one thing absolutely clear. These amendments are not about weakening our response to terrorism or making it harder to prosecute people who genuinely encourage or incite terrorist acts. Everyone in this House will agree that if someone sets out to incite terrorist activity, that person should be prosecuted. These amendments are focused on ensuring the legislation is precise and clear.

The Minister has previously said the Bill is intended to deal with genuine public provocation to commit terrorist offences, and I accept that.The Minister has also said the Bill is not a response to the Mo Chara issue and is not intended to lead to prosecutions like those we have seen in Britain. While I accept the Minister's intentions, we do not legislate for one Minister or one Government but, rather, for the future. We make laws that may be interpreted years from now in very different political circumstances and by people who were never even aware of this debate.

My amendments do not fundamentally change what the Government is trying to achieve. They simply tighten the wording to require an expression of direct incitement to commit a terrorist activity. This raises the bar slightly but with good reason. Criminal law should punish people for what they intentionally encourage others to do, not for meanings that might later be read into words, that is, for an interpretation down the line. History shows us that opinions about conflicts and liberation movements and organisations can change over time. For example, Senator Higgins spoke about Nelson Mandela and our own 1916 leaders. We should be slow to create criminal offences that depend on what a publication could reasonably be construed to mean. It should be clear that the communication itself has expressly and directly incited terrorist activity.

We are back again to interpretation and that is why I want to tighten up what is set out in the legislation. I think it is reasonable to do so. There must be a clear line between expressing an opinion, however controversial, and actively encouraging others to commit an act of terrorism. The Bill is vague in this regard. As Senator Higgins said in the previous debate, it could have an unintended chilling effect, which we do not want to see. People should be free to express themselves. The Bill could lead to self-censoring, not because there is an intent to cause violence but because people cannot be sure how their words might later be interpreted. That is not healthy in a democratic society.

The more serious an offence, the more important it is that the boundaries of that offence are clear. These amendments do not prevent prosecution. They simply ensure that a communication must expressly encourage terrorist activity before an individual can be charged. I ask the Minister of State to give consideration to the amendments.

Alice-Mary Higgins (Independent)
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The Minister of State suggested that the Government had looked to introduce a few safeguards into the Bill. What she is seeing in these amendments are good-faith suggestions for further safeguards we believe are needed in terms of the risks associated with the language in the Bill. In responding to this group of amendments, she might also provide clarity on the issues I raised regarding offences committed inside versus outside the State and the question of a comparator Act. If there is a similar law in Germany to the law here, for instance, but a different construction of what constitutes terrorists and terrorist organisations, it is not clear to me where the law would stand on that. I ask the Minister of State to include a response on that point.

The previous speaker made the point very well that we are legislating for the future. If we create a toolbox that can be used in an authoritarian manner, we have a responsibility in terms of how it may be used. The question of who we think will use it and our presumption of best intent are not really our business as legislators. Our business is to consider what tools and safeguards we can put into play. With respect to the Minister of State, there is still a huge amount in the definitions that is open to dangerous and loose interpretation.I note explicitly the safeguard the Minister of State mentioned, namely, "the reasonable apprehension that the commission of a terrorist activity could thereby result". It is not that it will result or is likely to result; it is that it could result. The reasonable apprehension is whether one can imagine a scenario whereby somebody could do a terrorist activity arising from the distribution or publication of materials. That is the big safeguard being put in place and it is pretty woolly - "could thereby result".

The other things the Minister of State mentioned are not "and" but are "or", which means it could be any one of these. It is not that it has to be inciting and glorifying and it has to be the intent. It could be inciting or it could be just glorifying. That is the piece I am concerned about. My amendment No. 10 acknowledges that even though we already have incitement to hatred legislation and so forth, we could look to mirror the incitement to hatred legislation, which is sometimes underused to a degree. On the incitement piece, if the incitement threshold is left in, that is, the phrase "inciting, or that could reasonably be construed as inciting," and then if the reasonable test is added, there are concerns but they are not as strong because it is about inciting a particular kind of action, plus the reasonable test that it is likely to have an effect. The amendment proposes to remove the much woollier and far more worrying phrase, "that glorifies (including by praise or celebration) a terrorist activity". I emphasise for the public and everybody to understand that right now it is "glorifies" in itself alongside that clause that "reasonable apprehension that the commission of a terrorist activity could thereby result". That is what public provocation counts as right now. The incitement in the proposed new section 4A(a)(i) is not a requirement at the moment for something to be prosecuted as public provocation. It can be just solely on the basis of the glorification. I have suggested removing the language in relation to glorification and if that is not possible, due to the EU directives and others, to at least remove the incredibly vague language of "including by praise or celebration".

I still have that question. What if you say, "I am glad they stopped those bombs" or "I am glad they destroyed those bombs and that they are not going to fall on children in Gaza"? If people say that who had nothing to do with the activity - they had not done it, they are just people expressing their feeling and response to something that has been designated as a terrorist activity by praising it, are they made vulnerable now? Are they vulnerable as long a judge decides to state that you saying you are glad they did that could conceivably encourage others to do the same kind of thing? That is the reasonable apprehension that the commission of a terrorist activity could thereby result. You do not have to prove it is going to result; there is no direct or explicit piece that is in the other amendments. It is simply the fact that you have praised something and somebody says he or she believes an activity could conceivably happen out of it. That is the really muddy bit. We have seen the silencing of difference of opinion with governments internationally in relation not just to Gaza but to others who have taken stands on issues on human rights and other issues.We have seen lots of governments that have taken actions in relation to that. Is it going to end up being an effective silencing of opposition? In a future government in Ireland, if Ireland gets rid of the triple lock, as has been proposed by some in government, and we find ourselves in wars and the population says that it does not love being part of an illegal war, for example, will those who comment in relation to that find themselves in a situation where they are suddenly being pulled up under this piece as well? Again, that is what has been the experience of others, such as those in the UK.

Amendment No. 10 seeks to delete the glorification line. Amendment No. 11 seeks to specifically remove that language around "praise or celebration" because it is so amorphous. It is the kind of thing that we can see being used against the most vulnerable or those who see themselves at the margins of society or young people who give an expression that can be construed as praise. I worry about who that will get used against. Will Elon Musk be getting prosecuted under this? I would put money on it that he will not. Will some 20-year-old who says, "I am glad that they took that climate action because I am terrified of climate change", get prosecuted? Maybe. That is what is happening in the UK and US. It is not a "it would never happen here" matter. We do not get to put in up-to-date modern authoritarian laws and then say "But we are so nice". We have to make sure our laws are full of safeguards if we want that "we are so nice" label still attached to us.

I have a lot of specifics on amendment Nos. 13, 14 and 15. One is, again, another safeguard, which if we put these in, it will be better because we will feel more reassured, which reads "for the avoidance of doubt, non-violent expressions of solidarity or support for actions that are taken in relation to matters of international law [I mentioned climate, which does quite come under that, and perhaps, it is something I can come back to, but regarding international law, for example, the Genocide Convention] shall not be construed as glorification for the purposes of this section". If the Minister of State is telling us that it is not needed, let us put it in for the avoidance of doubt. If somebody says they are glad that an action was taken to ensure a breach of international law did not take place, they should not be construed as glorifying if the expression of solidarity and support they are making is in relation to support for international law.

Amendment No. 14, which again is something that was raised by Senator Murphy, reads “for avoidance of doubt, the distribution or publication of materials in relation to historic or contemporary resistance to colonial occupation or exploitation, shall not be construed as glorification for the purposes of this section”. Colonialism is not solely historic. We still have situations, for example, the colonial exploitation of Western Sahara by Morocco. We have the issue of colonial occupation in relation to West Papua by Indonesia. We have a large number of our European colleagues who still have colonies around the world, many of whom are taking a very active interest in the extraction of resources and minerals from those colonies in a new period of time. Of course, we have the colonial occupation of Gaza, the West Bank, East Jerusalem and Crimea. Colonial occupation is still a very current piece. Historically, there are also a lot of people invoking in some cases, for example, in the Caribbean, where many countries have become republics, historic points of resistance as a catalyst to new political resistance. I am thinking of the example of Haiti whereby they were not allowed to have their football strip because it contained a picture of the battle to overthrow slavery.That has obviously been construed as glorifying violence, even though it refers to events of the 1700s. Where is the bar in terms of colonialism and occupation and when the actions are being taken in relation to illegally occupied territory? I would like that to be not construed as "glorification", for the purposes of the section and clarity, where it is "in relation to historic or contemporary resistance to colonial occupation or exploitation".

Amendment No. 19 seeks to insert after "terrorist-linked activity" the following, "other than activity described in section 4A(a)(ii)".

I think I have everything covered here. We need to bear in mind that the sentences we are talking about here range from 12 months to up to ten years in prison. This is not a fine or a slap on the wrist. It can be up to ten years in prison for these offences. We can look at the recent prosecutions in the UK but also in Germany, which is transposing the same directive. Are they going to transpose it similarly, in terms of how the judicial systems in those countries are treating protest actions? We have the case of the Filton 4 in England and the Ulm 5 in Germany. In both instances, the cases against the activists link accusations of damage to property with terrorist activity. These alleged actions include damage to weapons factories that are providing weapons which are being used to commit genocide in flagrant and open violation of international law.

I will come back on some of these. Regarding conscientious motivation for actions, this is what Amnesty has said about the UK context:

... cases of criminal damage committed through direct action ... misconstrue activists' conscientious motivation for activism and instead consider them an aggravating factor to justify the use of terrorism sentencing powers.

For example, if somebody goes and smashes something or throws paint on a military system, they will get a conviction for criminal damage, which is only small. Somebody who does it, motivated by international law, will get a far harsher sentence and can spend up to ten years in prison. The person who just does the criminal damage is getting one sentence but the person who does the criminal damage for the purpose of ensuring a state's compliance with international law will get a higher sentence. Acting with conscience gets construed as acting for a cause and that cause gets translated as acting for the purposes of terrorism and with the motivation of bringing change of some kind.

Amendment No. 19 is more technical but it suggests that this should not be a ground for a person in terms of the offences.

Catherine Ardagh (Dublin South Central, Fianna Fail)
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Apologies for my voice. Please bear with me. I thank the Senators for their amendments and contributions. Unfortunately, I cannot accept Senator O'Reilly's amendment No. 9. The directive, under Article 5, requires that the public provocation offence encompass direct and indirect incitement. An example of indirect incitement might be how to build a bomb or other publications.

The amendments set down today seek to introduce various changes to section 3 of the Bill or to delete the proposed restructuring of this offence, as put forward in the Bill. Section 3 proposes a new form of words for the offence of public provocation to commit a terrorist offence in section 4A of the principal Act. As I said in my previous intervention, the Bill will improve and add additional safeguards to the public provocation offence in section 4A of the principal Act. I do not propose to repeat my earlier intervention but, for the reasons I have outlined already, I must oppose amendments Nos. 9 to 14, inclusive.

I note that in her amendments Senator Higgins gets quite prescriptive in terms of what she is seeking to exclude. I understand that but sometimes when we are so prescriptive it can be counterintuitive. I would like the Senator to know that a huge amount of work has been put in by the Department to ensure these safeguards are adequate. As Senators know, these safeguards have already been back before the House to ensure they will have full effect and will stand the test to ensure the legislation is properly utilised with these important safeguards.

I will now address amendment No. 19, proposed by Senator Higgins, which would amend the existing section 6(1)(a)(ii) of the principal Act.

Shane Curley (Fianna Fail)
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We will resume this session at 6 p.m. I apologise to the Minister of State. We have to adjourn at 4 p.m. and move on to the next item.