Ireland’s proposed hate speech laws are chillingly vague and ill-defined

June 16, 2023 in News by RBN Staff




Source: Catholic Herald

This week the Irish Senate (Seanad) will commence a futile debate which is unlikely to amend the proposed legislation on hate speech and hate crimes that has already passed through the lower house of the Government with barely a ripple.

The proposed addition to the Irish Statute book, the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022, seeks to create a new crime of hate speech (incitement to violence or hatred) as well as upgrading existing criminal acts when aggravated by hatred.

Criticism has focused primarily on the chilling effect that the new law will have on freedom of speech and expression, rather than the creation of a new category of hate crime.

A number of Irish Senators have already spoken publicly about the impact that the law will have.

Senator Ronan Mullen recently tweeted:

“‘Cancel culture’ provides the climate in which vague ‘Hate Speech’ rules will be abused. Without a robust freedom of expression clause the Bill will place a chill on free speech at dinner parties, in boardrooms, and in any public fora. By not defining ’hatred’ in the Bill, the Government will extend the chill to the social media posts of active concerned citizens. That would appear to be their aim. By introducing a new definition of gender, the Bill harnesses the power of the law to empower an ideology that wants to deny physical reality.”

A significant issue with the law is that the definition of hatred has remained circular and self-referential through each iteration of the Bill. Under the Bill, hatred is defined as follows:

“Hatred” means hatred against a person or a group of persons in the State or elsewhere on account of their protected characteristics or any one of those characteristics.”

Deputy Thomas Pringle noted that the Bill “is remarkable in that hate is not defined in it”.

The Minister for Justice at the time, Simon Harris, stated that the government did not wish to be “overly prescriptive” as this would “potentially have an unintended consequence of actually raising the bar for successful prosecution” begging the question as to what the government wished to see prosecuted that it was not able to define.

In earlier discussions on the Bill reasons given for its introduction included the lack of convictions for hate under existing law, yet the government has not provided examples of actions that it would not like to see prosecuted as crimes under the Bill.

Currently, the Irish police (Gardadefine 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”, creating a concern that such subjective perception will find its way into the interpretation of the proposed loosely defined law.

For the average citizen, it will be unclear what will constitute hate under the new law. The vagueness and uncertainty itself will create a chilling effect. Equally, the law will set activist and identity groups representing the various protected characteristics under the Bill against each other, claiming victimhood of hatred at every turn.

With religion being one of these protected characteristics, the incessant attacks on the Church and Catholics in general and particular may abate. Equally, concerns that expression of religious belief are offered some protection as a defence may be found if the assumed “hate speech” offers “a reasonable and genuine contribution to literary, artistic, political, scientific, religious or academic discourse.”

It is unclear how reasonableness will be interpreted in the same way that it is unclear how hatred is to be interpreted – and by whom – under the law where there is a diminishing consensus on what is considered reasonable, in particular when it comes to freedom of religion.

An additional concern relates to “gender”, another of the protected characteristics, as the Minister for Justice introduces a definition that is circular, intangible and open-ended. “‘Gender’ means the gender of a person or the gender which a person expresses as the person’s preferred gender or with which the person identifies and includes transgender and a gender other than those of male and female.”

Senator Michael McDowell in May wrote to the Minister for Justice asking for clarity on the matter, as he had “great difficulty in understanding what is intended by the term ‘transgender’” and the phrase “a gender other than those of male and female”.

An additional area of confusion comes from the “hate crimes” section of the proposed legislation, where additional punishments are to apply to existing crimes which are “aggravated by hatred”. Along the same lines as the above-discussed issues, the lack of definition of hatred is exacerbated by a lack of definition as to what entails aggravated and how it is to be determined as a contributory factor, irrespective of whether one believes violent crimes should be given a hierarchy of rationale. 

That the government remains of the view that hatred has a common and shared understanding in Ireland, while at the same time admitting that it does not wish to be overly prescriptive recalls a story told be Judge Robert Bork.

“There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, ‘Do justice, sir, do justice’. Holmes stopped the carriage and reproved Hand: ‘That is not my job. It is my job to apply the law’.”

What the law in Ireland proposes is to offer each judge the option of doing justice based on how they interpret each ill-defined term rather than the responsibility for applying the law. It opens the door to a dog-eat-dog free-for-all of claim and counter-claim from interest and identity groups, risking the Twitterisation of criminal justice.

Undoubtedly, given the current climate in Ireland, the Church and its teachings will be vulnerable to what will be a nasty and brutish environment. While the debates in the coming days will be important to raise issues for the official record, the Senate in Ireland has little power to change the law. The Parliament (Oireachtas) can ignore any rejection of law by the Senate and choose whether or not to take on board its advisories or recommendations and with a media seemingly supportive of the proposed chilling curtailment of open discussion, it is unlikely that the Senate will have much impact.

(Photo: The office of the Taoiseach, Dublin)