Carol Nolan (Laois-Offaly, Independent)
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1042.To ask the Tánaiste and Minister for Justice and Equality if she is in a position to provide a full reply to Parliamentary Question No. 377 of 4 July 2024; and if she will make a statement on the matter.[33792/24]

Helen McEntee (Meath East, Fine Gael)
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The Deputy will recall that when I responded to Question 377 on the 4 July I explained that the information requested was not made available within the specified timeframe. I committed to responding directly to the Deputy once the requested information was received, and that response issued to the Deputy last month.

The post reply explained that the requested information had been received from An Garda Síochána, who advised that the recording and retention of hate incidents (non-crime) by the police service on the PULSE system is in line with relevant data protection laws and that Section 7(1) of the Garda Síochána Act 2005 states that the function of the Garda Síochána is to provide policing and security services for the State with the objective of vindicating the human rights of each individual.

The information further advised that An Garda Síochána defines a hate incident as any non-crime incident which is perceived by any person to, in whole or in part, be motivated by hostility or prejudice, based on actual or perceived age, disability, race, colour, nationality, ethnicity, religion, sexual orientation or gender.

An Garda Síochána’s policy document titled ‘Responding to Hate Crimes and None-Crime Hate Incidents’ states that the perception of the victim or other relevant person is central to determining whether to record an incident as a Hate Crime or a Hate Incident. Hate Incidents (Non-Crime) are by (working) definition not criminal offences and therefore do not result in criminal investigations.

Once an incident is reported to An Garda Síochána it must be recorded on the PULSE system. Records made on PULSE is data generated that forms an accountable record of the actions taken by members of An Garda Síochána when performing their statutory policing function.

The records of data gathered and created within the course of business of An Garda Síochána are departmental records within the meaning of Section 2 of the National Archives Act, 1986. An Garda Síochána is a scheduled body within the meaning of Section 1 of the Act and is therefore legally obliged to retain and preserve departmental records made in the course of its business.

The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill is currently before the Houses and the purpose of this Bill is to protect those who are most vulnerable to hate crime and hate speech. The Bill will legislate against hate crimes for the first time in Irish law and bring us into line with our European counterparts.

It will also update our existing incitement to hatred laws dating from 1989 which do not reflect the modern online context; and in order to ensure compliance with EU law. In doing so, it will update and simplify existing offences to reflect the online context in which people now communicate and to ensure the legislation is more effective.

Under the new legislation, it will be an offence to communicate, or to behave in such a way that incites violence or hatred against a person on the basis of their race, colour, nationality, religion, national or ethnic origin, descent, gender, sex characteristics, sexual orientation or disability. It will not be an offence to hold an unpopular opinion, or to criticise or insult a person on account of their protected characteristics.

The legislation is designed to protect vulnerable communities from the most serious types of hate speech – speech that will put them in harm’s way. It is not intended to enforce politeness or political correctness. A person will still be able to, for example, say that they disagree with using a certain pronoun a person uses to identify themselves, and not use that pronoun if they don't wish to.

The Bill provides for an objective demonstration test, similar to that used in neighbouring jurisdictions, which allows for guilt to be established if the perpetrator uses, for example, a racial slur, gesture or other evidence of hatred towards the victim. The demonstration test is not based on the perception of the victim. For a prosecution to succeed, a jury will have to be convinced beyond reasonable doubt that a hate-aggravated offence has been committed.

The new law includes defences for reasonable and genuine contributions to literary, artistic, political, scientific, religious or academic discourse, and fair and accurate reporting. These are not covered by the existing Prohibition of Incitement to Hatred Act 1989 and show the Government’s commitment to protecting genuine debate. The Bill also includes a general provision on the right to protect freedom of speech.

It is my intention to bring the Bill through the Houses in due course having considered appropriate amendments on foot of concerns raised.