Point 1: Creating two classes of citizens
Have you noticed how Media talk past the real issue i.e., the stifling of free expression on controversial matters? Their focus is on ‘hate crime’, whereas the ‘hate speech’ elements of the ‘Hate Bill’ are the most controversial.
Launching the ‘Hate Bill’, the Minister for Justice said that hate speech is not about free speech – “hate speech is designed to shut people down, to shut them up, to make them afraid to say who they are and to exclude and isolate them”.
Yet the ‘Hate Bill’ will have this exact effect on people who robustly oppose Government policy in key areas. Defending potential victims by creating much greater numbers of new victims is the Government’s approach.
At a time when woke cancel culture is at its height and social media pile-ons have massive detrimental effects on people’s livelihoods, this ‘Hate Bill’ hands power over to intersectional activists. This is not a mistake. This is the purpose of this ‘Hate Bill’.
As hate is so hateful, why are only certain classes of people to be protected while others are not? Why are people who believe in science being made into second class citizens whereas protected status is granted to those who embrace gender ideology?
Robust expression of ideas is a fundamental right of all. Freedom of expression requires proper protection.
You don’t reduce hate by giving preferential treatment in law to some over others – you only add to division. You don’t solve verbal abuse issues by equating these with violence. When in doubt a democratic Government reinforces fundamental freedoms – it does not unwind them.
Point 2: The tools already exist
The Government has decided to replace this 1989 Act, but no proper research has been done as to why convictions have been relatively few. How about considering the absence of prosecutorial guidance as a potential cause?
Also, the 1994 Public Order Act can often catch hate more successfully. Yet, we are now presented with a new ‘Hate Bill’ with alarmingly low thresholds.
This new Hate Bill proposes a 5-year imprisonment term for behaviour or communication likely to incite hatred (undefined) and either having the intention to do so, or by being reckless about it. It puts incitement to hatred on the same foot as incitement to violence.
Hatred need not actually be incited. Communication need not take place. The offending material (as minimal as a tweet) need never leave one’s phone or laptop. Bodies culturally associated or aligned with the individual stand to have their offices raided and materials seized.
The Bill does not define hate. It ignores the genuine, robust freedom of expression enjoyed by ordinary citizens – except for limited groups, e.g. press, academics and politicians.
All this at a time of unprecedented criticism of the government’s immigration policy, and its mismanagement of homelessness, gender and education policies. The ‘protected characteristics’ serve as a chill on the free speech of over five million citizens.
To date, reasonable amendments to the Bill have not been entertained. This is a Bill that was finalised behind closed doors, and it appears was never open to any serious amendment.
Point 3. New vague standards
We have laws which protect all citizens. The Public Order Act makes it an offence ‘to use or engage in any threatening, abusive or insulting words or behaviour with intent to promote a breach of the peace’. This law can deal with hate incidents. But it is not enough for the Government. They want to introduce new vague standards into the Criminal Law.
The controversial new ‘Hate Speech Bill’ disregards tried and tested standards such as ‘using threatening, abusive or insulting words or behaviour’, ‘stirring up hatred’, ‘criticism in good faith’, ‘intended or likely’. It fails to define ‘hatred’, relying on the ‘current understanding’ of the word.
The Department of Justice’s view is that hatred is a commonly understood concept in law. The Minister says he does not wish to be overly prescriptive because he wants to avoid “the unintended consequence of actually raising the bar for successful prosecution”.
But the current Garda understanding of hate is an extremely broad one: ‘any non-crime incident which is PERCEIVED by any person to, in whole or in part, be motivated by hostility or prejudice.’ Is that to be the standard for investigating and hassling citizens who have no intention of stirring up hatred or inciting violence?
That is, ‘an incident …perceived by any person.., in part, to be motivated by…prejudice’.
Does this mean any offensive term? Any person? Motivated in part simply by prejudice?
Such vague standards and low thresholds should not be in the Criminal Law.
It was open to the Government to define ‘hatred’ so as to distinguish between serious, punishable stirring up of hatred, and the legitimate expression of robust opinion.
It was open to the Government to use civil law to allow citizens take each other to court if they believed words used were so hateful as to be harmful.
They did neither. Instead, they have left ‘hatred’ vague and dangerously undefined. And they are using the most extreme weapon of enforcing public order – the Criminal Law and the right to imprison people. This is not acceptable in a democracy.
International expectations for the protection of freedom of expression were ignored in the drafting of the Bill.
Your voice, expressed clearly to public representatives, can still bring about change. Please speak up and challenge the Government on this.
Point 4. The Gender Issue
The protected characteristic of ‘gender’ in the Hate Bill is a radical, new untested definition.
Since the foundation of the State, our legislation has ALWAYS defined gender as binary, while referencing gender identity as something different. This new definition conflates both. It is NOT an accidental mistake in draughtsmanship.
‘Gender’ will now mean ‘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.’
At least 105 genders are currently internet-listed by gender-engaged organisations. All these and any additional ones will now be protected. The time-honoured, scientific binary definition of male and female will no longer be the preferred one under this legislation.
Will consistent non-conformity to preferred pronouns bring the threat of prosecution? Will mocking memes be tolerated? Will robust campaigning by parents against inappropriate school curricula be allowed? Nobody actually knows.
Will teachers in the classroom be free to propose scientific views? Will radio presenters be allowed to host “big toxic discussions on the airwaves”? Will soapbox speakers be silenced? Will comedy disappear? Nobody actually knows.
The proponents of this ‘Hate Bill’ know what they were doing. This is not some big accident or mistake. The politicians have been patsies. Some activist voices are shaping-if not brain washing- political thinking.
It is not to late for the Government to withdraw this Hate Bill for major redrafting.
Point 5. Freedom of expression
Freedom of expression is a universal fundamental right, on which freedom of thought relies. It is a way to societal peace. With destructive cancel culture in full flow, the last thing society needs is to have cancel culture supported in law.
The upcoming Government Bill in the Seanad enshrines cancel culture in law. The law will now do the cancelling. This threatens the freedom of expression one expects to exist in a democratic society. Even memes or tweets on mobiles can fall foul of this law.
Government parties and politicians all deflect from the substance of the ‘Bill’. They mock its opponents, but won’t give straight answers to important questions. No one, not even the Department of Justice, will say who can and cannot be prosecuted under this Bill.
The Government hides behind generalities. They ask us to trust the Office of the DPP. In any normal society persons should understand where the threshold lies between criminal and noncriminal speech and behaviour. That is what law is all about.
In a climate where complaints against immigration policy are currently deemed racist by some Government ministers, and gender policy is hotly contested by parents of schoolgoing children, clearly the Bill weighs in heavily on one side of the debate.
It is worth noting that in order to ensure respect for the right to freedom of expression, international law only requires the criminalisation of the most severe forms of hate speech.
This Bill makes no distinction between severe, less severe and non-criminal speech.
Section 11 is entitled ‘Freedom of Expression’ but on close reading it adds no new protections to the Bill. Robust or offensive expressions on current issues are not protected. There are UN Rabat Plan of Action protocols available which could be used.
Why have the @ICCLtweet welcomed the progress of this Bill (Feb & Mar 2023), given the many serious flaws that still exist?
Either politicians don’t know what is in the Bill, or they don’t understand its power. If you don’t tell them now of your discomfort, the problem will be worse once it is passed.
Point 6. The chill factor
Democracy struggles when diverse voices are crushed in favour of a ‘single permitted narrative’. When government tries to inhibit the free expression by citizens of their views, we are all at risk. Here’s how the Government is endangering freedom of expression in this latest ‘hate speech’ legislation…
The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022, COULD HAVE defined hate using the European Commission Against Racism and Intolerance definition. This states that hatred is ‘a state of mind characterised as intense and irrational emotions of opprobrium, enmity, and detestation towards the target group’. However, this definition was NOT adopted. There is no definition of hate in the ‘Bill’ coming before the Seanad.
By failing to define ‘hate’, the ‘Bill’ effectively criminalises ‘ANY incident perceived by ANY person to be motivated by hostility or prejudice, based on an actual or perceived protected characteristic’ – the definition currently used by Gardaí to monitor hate incidents.
How better to censor freedom of expression on current controversial topics like immigration policy, gender, or education than by this ‘Bill’? It will have a chilling effect on people’s legitimate right to protest. Why? Because, to speak out is to risk, at a minimum, a Garda visit to your door.
People daring enough to challenge the law may suffer a ‘piling-on’ effect from activists, leading to a demand that the Gardaí and DPP pursue them for hate speech. The process becomes the punishment. Meanwhile, Garda time is diverted from addressing real hate.
We are assured the DPP is independent and fair. And that our courts are fair. But why should people have to run the risk of non-threatening utterances being considered by the Gardaí, DPP and courts?
Some people responding to my tweets seem willing to ‘shut people up’ all in the name of reducing racism. Do they not realise that they foment racism by abusing the power of the law? We want less hate not more hate. Fundamental freedoms are so called for a very good reason.
How could such an unsafe get so far? Maybe when we see a ‘fake tan is racist’ AI article getting past the gatekeepers of the Irish Times, it’s easier to see how oppressive legislation can get past the gatekeepers of democracy.
Point 7. Damaging democratic society
Freedom of speech is ultimately what guarantees freedom of thought. It is an essential element in the seeking of truth and advancing democracy. Fundamental freedoms cannot be treated lightly… please read on…
Burdensome limitations on freedom of speech stops democracy from functioning. These also have the power to bury truth. The Bill’s hate speech elements (and its proponents) do not take genuine account of the importance of free expression.
The ‘Bill’ will create a climate where ordinary and decent people will feel, and will be, curtailed in their speech, democratic actions and in the public expression of their views, because they don’t know the limits imposed by an imprecise law. The perceived limits are draconian.
Hate speech can certainly undermine societal cohesion. Yet hate speech laws, unless finely tuned, have the greater capacity to undermine democracy. A two-tier society consisting of the privileged and the silenced is not acceptable.
Indiscriminate suppression of unwelcome views, perversely, may lead to their popularisation. Also, limiting freedom of expression can deprive truth of the oxygen it needs to fix a society which is always in need of repair.
The ‘chilling effect’ on free expression under this ‘Hate Bill’ effectively allows certain individuals or groups in society to augment their power over others, undermining the equality associated with free citizenship. Powerful elites using the law to insert new definitions and to silence the newly created powerless is incompatible with true democracy.
All fine tuning in this ‘Hate Bill’ has been towards the suppression of views, as we can see from the Government’s failure to accept amendments in the Dáil. If you want your concerns to be heard, please contact your political representatives again, now.
Point 8. More to say on that gender definition
The smuggling of a controversial new definition for gender into a criminal law Bill by @SimonHarrisTD is unprecedented. Where did it come from? Who knew what and when? Please read on and urge your Government to redraft its ‘Hate Speech’ Bill.
According to The Irish Times, Minister Simon Harris said the (gender) definition “has been carefully considered in the drafting”.
And his justification for the definition: “The language is constantly evolving… The approach I have taken in the Bill attempts to future-proof this provision to a degree by defining gender to include genders other than male or female.”
What a giveaway! The Minister is admitting that he expects a radicalisation of official policy on gender and he is happy to punish some of those who disagree with it. In Irish law there are only two genders, male and female; “future-proofing” is confusing the law, and making obsolete a time-honoured scientific reality. In this way the Minister is seeking to advance the future that he is “future-proofing” – for a future that very few want.
Can he share the advice he got on this? Can he confirm that the potential impact of the new definition on existing law was studied? Can he share the outcome of that study?
Shockingly, in making this misunderstanding of gender into a protected characteristic the Minister is aligning hate speech law against those who might robustly express that gender is male or female, that is, a binary. The supporters of reality and of scientific truth could now become criminal ‘haters’ in our society.
You might have thought that the Government, in trying to do its best by its citizens, would not allow such a travesty to happen. But it has. We have seen in recent days how The Irish Times can own up when its gatekeepers fall down. The Department of Justice should now explain itself too.
Please ask your Government to insist that this Bill be redrafted. A criminal law should not be vague and it should not censor citizens.
Point 9. Where are the NGOs?
Have you ever wondered who actually wants the ‘Hate Speech Bill’? Most early submissions to the Government didn’t want it. The 94% No vote on a Niall Boylan tweet poll must indicate something. But there are also conflicting signals from campaigning NGOs who support the Bill.
The Bill was welcomed by The Coalition Against Hate Crime (CAMC) which comprises a range of NGOs. An Irish Council for Civil Liberties (ICCL) policy officer chairs the Coalition. The ICCL hosts useful CAHC material on its website.
In early February 2023, the Coalition (CAMC) said ‘we warmly welcome the Bill, calling for its introduction without any further delays and look forward to continued engagement on the issues of extreme hate speech and hate crime’.
At the end of April, the chair of the Coalition tweeted ‘in the Dail yesterday to see much needed Hate Offences Bill pass by huge 122-14. Now to the Seanad. At a time of rising Hate Crime, securing effective & enforceable legislation more critical than ever.’
One can only presume from such comments that the CAHC and the ICCL are happy with the Hate Bill. Yet when one examines the general principles the Coalition laid down for legislation they should be very unhappy with the final product. Is this really the Bill they want?
The Coalition (CAHC) originally spoke of criminalising ‘extreme hate speech’. The Bill does not distinguish – according to it all hate speech must be criminalised. Nobody asked for that!
Internationally in law, it is recommended that distinctions be made among severe, less severe and non-criminal hate speech. We’re not getting those distinctions in this Bill.
The Coalition wanted provisions to “be drafted in a clear and precise manner to ensure that all persons understand where the threshold is between criminal and non-criminal speech.” This was certainly not done in this Bill.
The Coalition wanted “the right to freedom of expression and the right to a fair trial, as well as the need to ensure general rule of law principles” to be respected. Surely they can’t be satisfied that genuine freedom of expression and the principles of precision, legal certainty, proportionality and necessity are being met in this Bill?
The Coalition wanted the legislation to be “compliant with national, regional and international human rights law”. Surely they would have wanted the UN Rabat principles (which define punishable hatred) included in this Bill as these are a vital part of that international standard which the Coalition would wish for?
In short, none of the Coalition’s general principles have been honoured. So how can Coalition members actually be happy with this Bill? Are they? The ICCL could not be happy with a Bill which has strayed so far from what it said it wanted. But it is effectively silent now, and the Coalition has welcomed the Bill. So the question is, who has CAPTURED whom?
Everything I’ve said about this Bill reflects a concern for free speech which used to be strongly expressed by NGOs like ICCL. Why is ICCL so weak now?
Which NGO is driving this weird new attack on free speech?
Point 10. Our International Obligations
Some argue that this Hate Bill is only complying with our international obligations. Why not judge for yourself against some recent international guidelines? These basic ideas below DO NOT find expression in the new ‘Hate Bill’. Legislators who do not wish to ‘silence’ opposing voices should take note.
On FREEDOM OF EXPRESSION:
> ‘profound commitment to the protection of the right to freedom of expression…one of the essential foundations of a democratic and pluralistic society…. which protects the freedom to hold opinions and to receive and impart information and ideas, without interference by public authority and regardless of frontiers’
> ‘freedom of expression is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.’
> ‘the exercise of the right to freedom of expression carries with it duties and responsibilities and that any restriction of this right must… (be) narrowly construed and comply with the requirements of lawfulness, necessity and proportionality to the legitimate aims’.
> ‘should pay due attention to the importance of clarifying which types of expression fall outside of the protection provided by freedom of expression.’
On PROPORTIONALITY
> ‘measures to combat hate speech should be appropriate and proportionate to the level of severity of its expression; some expressions of hate speech warrant a criminal law response, while others call for a civil or administrative law response, or should be dealt with through measures of a non-legal nature…’
> ‘offensive or harmful types of expression which are not severe enough to be legitimately restricted should be addressed through measures of a non-legal nature.’
> ‘ensure that a comprehensive and effective legal framework is in place, consisting of appropriately calibrated provisions of civil, administrative and criminal law. Criminal law should only be applied as a last resort and for the most serious expressions of hatred’
On USE and ABUSE OF LAW
> ‘In assessing the severity of hate speech case … take into account the following factors and the interplay between them: the content of the expression; the political and social context at the time of the expression; the intent of the speaker; the speaker’s role and status in society; how the expression is disseminated or amplified; the capacity of the expression to lead to harmful consequences, including the imminence of such consequences; the nature and size of the audience, and the characteristics of the targeted group.’
> ‘establish effective legal and practical safeguards against any misuse or abuse of hate speech legislation, in particular for the purpose of inhibiting public debate and silencing critical voices, political opponents or persons belonging to minorities.’
These are the sort of considerations that democratic common sense would suggest. Thus definitions, proportionality, intention, Rabat principles… It is not too late for changes to be implemented…
Point 11. Why we need to protect a fundamental freedom
Free speech or freedom of expression is not absolute, but it is basic to the working of democratic society. By saying what we think, we engage with others over our ideas. We work together towards peaceful co-existence. ‘Shutting people down’ has the opposite effect.
Human love and respect depend on this freedom of expression. A democratic society depends on the free exchange of ideas. Free speech is what makes us. We must do all we can to protect that.
The Government’s ‘Hate Speech’ Bill undermines free speech because it turns robust public exchanges into potential hate speech. It is an attempt to silence viewpoints. Even statements that are true could be targeted. Other statements that may be unreasonable or unpleasant but that don’t harm people could be in the firing line.
This Bill may catch some genuinely harmful hate speech. But we already have a law that can do that. And this Bill is so vaguely drafted that it could criminalise statements that shouldn’t be targeted.
This Bill will have a CENSORSHIP effect. Social media sites, anxious to stay on the right side of the law, may ban ideas that it should be lawful to express.
And that would appear to be the Government’s objective. We face important debates affecting the future of our country: neutrality, NATO membership, gender politics, migration policy, the education system, homelessness. People’s ideas, whether you agree with them or not, need to be heard, free from the threat of blanket criminalisation and social media censorship.
We have a few weeks to change this. Please write a letter, make a phone call or send an email to your public representative. That’s how you can effect change.
We can have effective anti-hate laws without using criminal law to enforce cancel culture and censorship.
Point 12. How the Government fails the ‘Pinocchio’ test in its answer to concerns about the ‘Hate Speech’ Bill.
A correspondent of mine wrote to a Government TD about how the controversial ‘Hate Speech’ legislation could curb freedom of expression.
The reply, whether from Party headquarters or penned by the TD himself, was a masterpiece of spin and evasion. I analyse it here and give it the ‘Pinocchio’ fact-checker test.
The TD writes: ‘Hate crime is a real and lasting problem in Ireland today’
My response: Everyone knows that hate is an unpleasant feature of human relations. We will always need appropriate and proportionate responses to help reduce it.
Most noteworthy here is that the TD wasn’t asked about the ‘hate crime’ aspect of the Bill (where existing offences such as assault are made more serious if proven to be motivated by hatred). My friend was concerned by limitations on free speech by the prohibition of incitement to ‘hatred’ – with ‘hatred’ so far undefined. If by ‘real and lasting problem’, the TD means ‘substantial problem’, there are no useful available figures on dangerous ‘hate speech’ amounting to crime…
TD: Ireland stands alone among European nations in not having introduced statutory protections from hate crime.
R: The TD has still chosen not to address the more controversial ‘hate speech’ element, focusing on the less controversial ‘hate crime’ part. Is he leaving his correspondent with the impression that we have no legislation banning speech that incites hatred? The 1989 Act is there, ready to be amended if needed.
TD: If the harm of hate is to be acknowledged and countered, it falls on us as legislators to act to provide a legislative framework for the explicit naming of bias crime.
R: Still talking about ‘hate crimes’ I notice, but is the Government admitting for the first time that it sees ‘hate’ as meaning ‘bias’? Is a Government Party finally revealing its hand on what it means by ‘hatred’ and why it has failed to define it in the Bill?
TD: ‘Ireland must join other nations in ensuring the violence of hate experienced by vulnerable individuals and communities is challenged head-on.’
R: Note that the TD does not say ‘violence caused by hate’ but ‘the violence of hate’. So ‘hate’ is automatically ‘violence’. And so ‘hate speech’ is violence? No. While speech should be criminalised if it incites violence, SPEECH ITSELF IS NOT VIOLENCE. There is international guidance here which the Government has ignored: “measures to combat hate speech should be appropriate and proportionate to the level of severity of its expression; some expressions of hate speech warrant a criminal law response, while others call for a civil or administrative law response, or should be dealt with through measures of a non-legal nature…”
TD: ‘(victims) remain at risk of repeated victimisation.’
R: A harsh law which is widely viewed as unjust may not be properly implemented for fear of injustice, and thus do little or nothing to dissuade the true haters. Alternatively, other people will be victimised by being deprived of their right to express legitimate views freely.
TD: ‘(this is) not an attempt to criminalise opinions and discourse, but to tackle extreme forms of hate speech that deliberately and recklessly incite or stir up acts of hostility, discrimination or violence’
R: Ah, look’it! The words ‘stir up’, ‘deliberately’, ‘extreme’ and ‘hostility’ are absent from the new Bill. Those words could have been included. The Bill does not distinguish extreme forms of hatred from stupidity, or from opinionated or robust speech. The European standard for freedom of expression allows for words that ‘offend, shock or disturb the State or any sector of the population.’
TD: While freedom of speech is enshrined in both the Constitution and the European Convention on Human Rights, limits may be placed on it by law in order to protect other fundamental rights.
R: Agreed, but the international way proposes: ‘the exercise of the right to freedom of expression carries with it duties and responsibilities’ and that ‘any restriction of this right must…. (be) narrowly construed and comply with the requirements of lawfulness, necessity and proportionality to the legitimate aims.’
TD: ‘The Bill takes a balanced approach in protecting freedom of expression and ensuring that the rights of minority and vulnerable communities are protected from hate speech.’
R: A lack of balance has dogged this Bill going back to the first public consultations in 2019. By not defining ‘hatred’ and by effectively penalising a thought crime, this Bill, if enacted, will have a chilling effect on the free speech rights of anyone who wishes to publicly contradict, for example, a government narrative on a controversial issue of the day. Its vagueness will invite ‘pile-ons’ by those who feel they have a right not to be offended, getting social media platforms to silence certain voices.
TD: ‘The inclusion of a general provision to further protect genuine freedom of expression, including genuine contributions to literary, artistic, political, scientific or academic discourse, and fair and accurate reporting…’
R: Section 11, on ‘Freedom of Expression’ was inserted as an afterthought and adds nothing. Journalists and politicians may not feel the heat with their ‘genuine’ contributions but the woman with the placard defending womanhood will. People should not have to wait until they are before a judge and jury to find out whether their robust freedom of expression has put them outside the law.
The verdict:
For failing to acknowledge existing statutory measures against ‘incitement to hatred’, for equating ‘hate’ with ‘bias’, for suggesting ‘hate’ is ‘violence’, and for suggesting that certain key words might be in the Bill when they are in fact absent – four Pinocchios is the appropriate response to the TD’s letter. Not much direct falsehood, but a misleading idea in nearly every paragraph.
I also note that the TD’s (standard?) letter gave no explanation for the smuggling of a controversial new definition for ‘gender’ into the Bill, another issue that his correspondent raised.
Please continue to make your views known…
Point 13 The Seanad is being presented with a Bill which DOES NOT DO what the Minister’s Office says it does.
It is good that people are writing to TDs, the Minister of Justice and the Department of Justice asking specific questions about what will be criminalised under the new ‘Hate speech’ legislation. If the answers are obscure, please continue to seek clarification. You are entitled to know what can cause a person to be jailed up to five years! One representative of a women’s group asked a number of questions. I quote the relevant passages from the Minister reply with my commentary:
Minister’s Office: ‘With regard to your question on guaranteed freedom of speech in Ireland, the right to freedom of expression is a fundamental right, enshrined in our Constitution and in the European Convention on Human Rights. Though fundamental, this right is not absolute and can be limited or restricted by law for compelling reasons, including protecting other fundamental human rights.’
My comment: At no stage since the Bill was launched has any Government representative provided ‘compelling reasons’ why freedom of expression requires these draconian limitations, and certainly they have not adverted to any ‘other fundamental rights’ which require protecting. The right not to be offended is not a fundamental human right. In response to a question as to whether limits will be placed on free speech in relation to sex, gender, ‘gender identity’, sexuality under the upcoming Criminal Justice (Hate Crime) Bill 2021,
Minister’s Office: The Minister would point out that the constitutional right to freedom of expression is not absolute and limits are sometimes imposed in order to protect the fundamental rights of others. In the existing Prohibition of Incitement to Hatred Act 1989 and the Criminal Justice (Incitement to Violence or Hatred and Hate Crime) Bill 2022 which is currently under development, it will be an offence to communicate publically for the purpose of deliberately inciting or being reckless as to whether that communication will incite violence or hatred against a person or group of people because of their association with a protected characteristic. These protected characteristics are: race; colour; nationality; religion, ethnic or national origin; sexual orientation; gender (including gender expression or identity); sex characteristics and disability.
My comment: It is unhelpful to conflate the meaning of existing legislation which is be abolished by the Bill with the new legislation that is being introduced. Where does that leave anyone? It is also notable that the response does not state clearly that a new definition of gender is to be introduced, even though the question relates specifically to the topic. Nor does the answer try to explain what might be outlawed. The Minister’s Office response then seeks to provide reassurance:
Minister’s Office: The new legislation will contain robust safeguards for freedom of expression, such as protections for reasonable and genuine contributions to literary, artistic, political, scientific, religious or academic discourse, and fair and accurate reporting. It will recognise that communication is not taken to incite violence or hatred solely on the basis that it involves or includes discussion or criticism of matters relating to the protected characteristics; rather that it is extreme forms of hate speech that deliberately and recklessly incite or stir up acts of hostility, discrimination or violence that should be criminalised.
My comment: I’ll come to that word ‘robust’ later. Unfortunately, the Bill does not use terms such as ‘extreme forms of hate speech’, simply ‘likely to incite hatred’, with ‘hatred’ undefined in the Bill and currently having a low-threshold definition with the Gardai. This omission is insidious. Nor must intention (‘deliberately’) be imputed. Nor is strong language such as ‘stir up’ used in the Bill. Speaking of the word ‘robust’, it might be something if the Minister would include ‘robust’ before the words ‘discussion or criticism’ which they say is allowed by the legislation. But there is no sign of any reflective response from the Government. This remains a Bill that has lost all the protective features the Minister’s Office believes/says that it has. It should be withdrawn.