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  • Senator Sharon Keogan

Senator Sharon Keogan — Full Rebuttal of Proposed 'Hate Speech' Bill

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 micromanaging 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 10 is 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 quo against 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.

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