Nobody can answer one simple question about the hate speech Bill

A showdown within Government is looming on the hate crime/hate speech legislation, which has been stalled since this time last year. It probably won’t happen until after the local and European elections in a month’s time. But it will come.

This week, the Garda reported that there had been a 12 per cent increase in hate crimes and “hate related incidents” last year, to 651. This followed a 29 per cent increase in 2022. A group of NGOs and campaigning organisations called for the Garda statistics to be the catalyst for revived Government and legislative action on the issue.

“These numbers should serve as a wake-up call for all public representatives and political parties as to date, Ireland still has no hate crime legislation,” said Luna Lara Liboni of the Coalition Against Hate Crime.

Well, quite. Though you would never guess it from much of the coverage, there is no such thing in law as a hate crime. That is not to say there are no hate crimes in Ireland – clearly there are crimes motivated by hate, and they are, worryingly, on the increase. But the concept of hate crime is not one currently recognised in law.

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The stalled Bill would fix that. It will not actually – despite what a lot of people appear to think – make it a crime to hate someone. Rather, it will make existing crimes more serious by the addition of a hate motivation. It’s already a crime to assault someone. But if the hate crime legislation is passed then, for example, assaulting someone while exhibiting signs of racial hatred towards them would be classed as a hate crime and would attract a heavier sentence.

One of the few things that I remember from a long-ago law degree is the principle that the criminal law should be clear about what is and isn’t illegal – lex certa, as the Latin aphorism goes

That is not the politically difficult bit of the legislation – though there is a difficulty with it that will have to be ironed out. Gardaí use a far looser definition of hate crime in compiling their (self-reported) statistics than the one proposed in the legislation. At the moment, the Garda test is a subjective one: if hatred is “perceived by the victim” to be based on any “protected characteristics” – age, disability, race, colour, nationality, ethnicity, religion, sexual orientation or gender – that’s good enough for the gardaí.

The definition in the proposed law is a much narrower one – instead of a “perception test”, it requires a “demonstration test”, where the person accused of a hate crime must be found by the court to have exhibited some demonstration of hatred – for example, by using hateful language in the course of an assault.

[ ‘Badly thought through’ hate speech law should be shelved, says Sinn Féin ]

Though it is not what some NGOs lobbied for, that seems sensible. One of the few things that I remember from a long-ago law degree is the principle that the criminal law should be clear about what is and isn’t illegal – lex certa, as the Latin aphorism goes. You can’t beat the bit of Latin, as all lawyers know. You also can’t reliably legislate for someone’s perception.

There is general agreement in Government on the need for hate crime laws. Or at least sufficient agreement to proceed with it. Where the political difficulty emerges is with the hate-speech element of the Bill. The Bill stalled a year ago in the Seanad – having been passed by the Dáil – after senators, prominent among them Michael McDowell, raised a number of significant questions about it, not least its failure to define hatred. McDowell also asked the Department of Justice “what is intended by the term ‘transgender’ and the phrase ‘a gender other than those of male and female’” in the definitions of the Bill. He has not yet been favoured with an explanation. It would be hard, I promise you, to overstate the lack of enthusiasm in Government for a debate on how many genders there are.

[ Michael McDowell: Clarity needed on definitions of gender in new hate speech Bill ]

Perhaps these things can be ironed out. But it seems that the proposed law will need to be a lot clearer about what it actually means. This week, the Department of Justice told me that it 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 department said.

But what exactly, I asked repeatedly, would it be illegal to say in future that it is not currently illegal to say? There is, after all, already legislation criminalising incitement to hatred, so I don’t think that’s an unreasonable question. But answer there came none.

‘This law will not be enacted,’ the source, who is usually right about these things, says. ‘The question is how much harm the parties will inflict on themselves before accepting that’

The state of play now is that chunks of the Fianna Fáil and Fine Gael parliamentary parties are dead set against proceeding with the hate speech elements. The Green Party said this week that it was a “key commitment in the Programme for Government.” One Government insider, however, says that “the PPs [he means the Fine Gael and Fianna Fáil ones] are near unanimous ... they will be in uproar if it’s pushed forward.”

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“This law will not be enacted,” the source, who is usually right about these things, says. “The question is how much harm the parties will inflict on themselves before accepting that.”

Another senior figure in a decision-making role is less definitive but concedes that “significant amendments” to the hate-speech elements will be necessary. Colleagues agree, several stressing the amendments bit.

No hurry, this person adds – time for some sort of a deal before the summer recess, and then maybe back to the Seanad in the autumn. I’d say the chances are not much better than 50:50. And the chances of a proper row are somewhat higher than that.