The proposed Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 is running into serious trouble, though it passed the Dail almost unanimously! The thinking seemed to be—surely we are all against hate so let’s legislate against it!
That virtue-signalling may come naturally to politicians, ever ready for the easy plaudits: but it is not a basis for serious legislation.
The latest criticism has come from Lucinda Creighton, a former Fine Gael TD. She noted that there is a mystery as to:
“How this hate speech legislation ever passed vetting by the Attorney General’s office remains a mystery. Even to the untrained eye, the Bill is incomplete and characterised by vague phrases without any attempt to define certain critical elements… The most apparent, and inevitably controversial, term in the Bill, which is not defined, is that of “transgenderâ€. The Bill seeks to introduce this concept as a ground for protection from hate speech or hate attacks, but makes no attempt to define it. The Gender Recognition Act, and indeed the Irish Constitution Bunreacht na hÉireann, recognises only two genders—male and female… While the utterance of a statement that might be deemed offensive or hateful will be punishable as a crime under the Act, the proposed legislation once again fails to provide a definition. What is “hate†and when does it become a crime?†(Business Post, 9.7.23.)
Provisions such as ‘hate’ and ‘incitement’ are, to put it mildly, open to purely subjective judgements. But, if the law is to be implemented—somewhere at some time—these provision must be defined by somebody! Is it to be citizens, Gardai, Director of Public Prosecutions, Judges?
Will their judgements of hate be always objective, in the absence of a clear definition of what constitutes hate in the Bill—which is where the term should be defined—and nowhere else.
The Minster, Ms Helen McEntee of Fine Gael, has suggested that it is not right to criticise the Bill for failing to define hatred is not accurate. She holds that people “have an understanding of what hatred meansâ€, without it being defined!
This is an absurd statement for a legislator to make, if for no other reason than the offence she is proposing to inaugurate could lead to 5 years imprisonment!
The draft legislation lays down that simply possessing material “that is likely to incite violence or hatred†is an offence. What could this cover?
Note the word ‘likely’ : that indicates pre-judgement! But, with no official definition of offending subject-matter, it is possible for any item in a person’s possession to be used for criminalisation purposes!
The Gospels would certainly fit the bill, especially those that describe the background to the Crucifixion, which has offended Jews for millennia and presumably they are people with “a protected characteristicâ€. Such material can surely be legitimately considered an incitement to hatred, as spelt out every Good Friday from pulpits. And that is not to speak of the Old Testament!
Clearly, anybody with a copy of Mein Kampf would have to have a very good reason for possessing or reading such a publication. Indeed, could the framers of this Bill ever envisage that there might actually be any reason for anybody having a copy? Here we are clearly into the area of freedom of thought.
One suggested amendment was the addition of a statutory review period, after five years, which would show that “this is not the end of the work on hate crime†and could also help to ease concerns of critics who feel the law goes too far.
But this has been rejected, though eminently sensible for such innovative legislation with so many undefined provisions.
It is an embarrassing scandal that such a piece of legislation was ever proposed.
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