Calls for improvements to new hate speech legislation to avoid courts struggling to interpret law

“Significant improvements” are needed to new legislation on hate speech to avoid a situation where the courts struggle to interpret the law, according to the Irish Council for Civil Liberties (ICCL).

The ICCL also suggested that the Government is “steamrolling” the complex legislation through the Oireachtas and this is “risking bad law”.

The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 is to be debated at second stage in the Dáil this week and the Coalition hopes to have it enacted by the end of the year.

The Bill aims to provide stronger laws against the incitement of hatred than exist in legislation dating back to 1989 and it lowers the threshold for successful prosecutions.

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It outlines a list of “protected characteristics” that includes race, colour, nationality, religion, ethnicity or national origin, sexual orientation, gender and disability.

In terms of hate crime, the legislation creates new “aggravated” versions of existing offences, where those offences are motivated by prejudice against a protected characteristic of the victim.

ICCL’s head of legal and policy Doireann Ansbro outlined her organisation’s concerns about the incitement part of the Bill, saying it is seeking “significant improvements” and calling for “much clearer definitions” in the law.

She said there should be more clarity on the definition of hatred. The Bill says “‘hatred’ means hatred against a person or a group of persons in the State or elsewhere on account of their protected characteristics”. However, Ms Ansbro said this amounts to a definition of “hatred is hatred”.

She suggested the definition should be similar to one put forward by the European Commission against Racism and Intolerance (ECRI) which says hatred is “a state of mind characterised as intense and irrational emotions of opprobrium, enmity, and detestation towards the target group”.

She said this would be a “significant threshold” and “would give much clearer guidance to courts”.

Ms Ansboro said, under the current terms of the Bill, ICCL is concerned that the courts “will struggle to interpret what hatred is and therefore people who potentially should be convicted won’t be convicted”.

She also raised concern about the general provision to protect genuine freedom of expression.

The relevant section of the Bill currently only references the protection of freedom of expression in the title.

It says that material or behaviour in question in is not taken to incite violence or hated solely on the basis of discussion or criticism of a protected characteristic.

Ms Ansboro welcomed the provision on freedom of expression but said ICCL would like to see an explicit reference to protections under the European declarations on rights as well as the jurisprudence of the European Court of Human Rights.

She cited one European court case involving the right to shock, offend and disturb and said: “We have to be clear that we’re not criminalising offensive language and we’re not protecting people from being offended.”

She also said there should be a specific reference for the freedom of the press to mitigate against a potential “chilling effect” on news reporting.

Some organisations representing minority communities have raised concern that defences open to a person accused of incitement to hatred like political, academic or religious discourse under the legislation are too broad.

Ms Ansboro suggested that such specific defences would be unnecessary if there was a “proper” freedom of expression defence framed in human rights language.

She said: “If you had a proper defence citing the right to freedom of expression ... that would protect every individual in the same way from an unfair prosecution.”

Luna Liboni, ICCL’s equality and hate crime policy officer is also the chairwoman of the Coalition Against Hate Crime Ireland which includes 21 organisations that represent people most at risk of hate crime.

She said the legislation is “only one piece of the puzzle” and said the Coalition is calling on the Government to develop an action plan to tackle hate crime “aimed at challenging the beliefs and attitudes that are underlying such crimes”.

She said it should include awareness raising, improved monitoring and data gathering of hate crimes and better victim support.

Ms Liboni said: “The legislation alone will not be enough to prevent and tackle hate crime.”

A spokeswoman for the Department of Justice said the development of the legislation was informed by “extensive public consultation” that took place “to ensure that the Department could identify how our laws in this area could be improved while being informed by a firm understanding of the lived experience of those impacted by hate incidents”.

She said the Joint Oireachtas Committee on Justice also considered the views of all stakeholders who made submissions to its pre-legislative scrutiny of the Bill.

“The Department considered and took into account where possible the recommendations of the Committee arising from the pre-legislative scrutiny process, in line with legal advices received around the drafting of the bill,” the spokeswoman added.

She said enactment of this legislation is a priority for the Government and “a key part of our mission to ensure a safe, fair and inclusive Ireland”.