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‘Hate speech’ Bill: What’s in it and should we be worried about intrusion on right to free speech?

Simon Harris has pledged not to abandon legislation but critics point to lack of clarity

Minister for Justice Helen McEntee has told the Seanad that amendments to the Bill are being prepared. Photograph: Niall Carson/PA Wire

Mary Carolan
Thu Mar 28 2024 - 05:00

The fate of the proposed hate speech Bill is uncertain despite a pledge this week by incoming Taoiseach Simon Harris not to abandon it. Critics point to a lack of clarity about key concepts, including a precise definition of “hate”, and claim the Bill may adversely affect free speech. Supporters say the legislation can be improved but is necessary to safeguard migrants and other minorities.

What is in the Bill?

The Bill is intended to replace the 1989 Prohibition of Incitement to Hatred Act, regarded as outdated in an online age, with simpler provisions for incitement to hatred considered more likely to result in convictions. It will create new aggravated forms of certain existing criminal offences such as assault and violent public order offences, where those offences are motivated by hatred against people with a “protected characteristic” such as race, gender, religion, sexual orientation or disability. In all, the Bill will create 12 aggravated offences which can be classified as “hate crimes”.

What about ‘hate speech’?

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The Bill creates a new offence of incitement to violence or hatred, based on a person communicating material to the public “likely to incite violence or hatred”. The person must intend to incite violence or hatred or be reckless in that regard. It creates a further offence of creating content that would incite violence, with the intention of communicating that content, but which has not yet been communicated publicly.

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

[ Bring hate speech legislation ‘back to the drawing board,’ says former minister for justice Charlie Flanagan ]

Should we be worried about intrusion on the right to free speech?

The Bill explicitly deals with freedom of expression, saying that discussion or criticism of matters relating to a protected characteristic does not constitute incitement to hatred in and of itself. Supporters say judges are clear about the meaning of “hate speech” and those on the receiving end of racist abuse, for example, wonder how there could be any confusion. Minister for Justice Helen McEntee has said there is a clear difference between a person holding an offensive view about a characteristic and a person directing hate at an individual because of a characteristic.

Critics, including Independent Senator Michael McDowell, insists the Bill requires radical amendment to ensure clarity, including about the meanings of hate and gender, and to avoid curbing freedom of expression. People Before Profit TD Paul Murphy has voiced concern, as the Bill stands, we could be moving into the realm of “thought crime”.

Along with advocates for the rights of migrants, Travellers, LGBTQ and people with disabilities, the Irish Council for Civil Liberties (ICCL) supports the Bill but wants some amendments and stresses education and other non-criminal responses are necessary to address the causes of hate crimes.

[ Bring hate speech legislation ‘back to the drawing board,’ says former minister for justice Charlie Flanagan ]

Hate speech is “abhorrent” but should only be outlawed in the “most extreme” cases such as incitement to violence because legislation risks impinging on freedom of expression, the ICCL said.

What stage is it at?

The Bill was voted overwhelmingly through the Dáil, by 110 votes to 14, last summer but is not yet at committee stage in the Seanad. Sinn Féin supported it in the Dáil but opposed it in the Seanad, saying the Government had failed to address its concerns. This week Sinn Féin’s justice spokesman Pa Daly said it wanted the Bill scrapped, saying it lacked support across the political spectrum and was “badly thought through”. Former Fine Gael justice minister Charlie Flanagan and some other backbenchers also want it binned. There is considerable agreement across both right and left that the Bill needs more clarity. The Minister for Justice, a strong advocate of the legislation, has told the Seanad amendments are being prepared.

Is the Government for turning?

Simon Harris said this week the programme for government contains a commitment to legislate for hate crime but he expects “constructive amendments” and clarity for the public. Because any amendments approved by the Seanad mean the Bill must return to the Dáil, its fate is unlikely to be decided any time soon.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times

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