THERE’S A LOT of talk about the Government’s proposed hate crime legislation at the moment.
In the past few weeks, Government TDs have come out criticising it, Sinn Féin have been accused of u-turning on their initial support for it, and other voices calling for it to be scrapped entirely have gotten louder.
A lot of what’s being said about the proposed law is politically charged – so in an effort to cut through the noise, The Journal has summarised what it’s all about below.
Somewhat confusingly, the bill that would enact the hate crime law if passed is called the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022.
In a nutshell, it seeks to complement existing laws on hate speech in Ireland by strengthening the legal recognition of hatred in the criminal justice system.
It would create new aggravated forms of a number of existing crimes, where those crimes are proven to be motivated by prejudice against 10 “protected characteristics”.
These characteristics are: race; colour; nationality; religion (including the absence of religion); national or ethnic origin; descent; gender; sex characteristics; sexual orientation; and disability.
If the new bill becomes law, prosecutors will be allowed to consider that crimes against vulnerable individuals or communities could be motivated by hatred against them, based on those characteristics.
By recognising hatred as a motivation in law, Irish courts could potentially consider certain crimes to be aggravated by these protected characteristics, which in turn could lead to longer sentences.
Groups representing minorities in Irish society have long campaigned for a review of existing laws around hate speech, namely the Prohibition of Incitement to Hatred Act 1989.
Critics have argued that the old legislation is ineffective, pointing to the fact that it has only led to around 50 prosecutions in almost a quarter of a century.
In a submission to the Oireachtas in 2021, the Coalition against Hate Crime, an umbrella grouping made up of 22 representative organisations for those who are commonly targeted by hate crimes, pointed to research on the impact of hate crime.
The coalition said that this impact could be much greater than the comparative impact of crimes committed where no such bias existed.
This is because as well as the crime itself, the victim experiences an element of hatred that sends a message that they are unwelcome in society, which can in turn trigger psychological distress.
They also said that data arising from criminal convictions on future hate crime could potentially prevent similar crimes from occurring in future.
The laws will allow courts to deem that aggravating factors are present in certain crimes – such as assault, coercion, harassment, criminal damage, or threats to kill or cause serious harm – where an element of hatred is proven.
There will also be provisions for an alternative verdict to be reached in these cases, where the ‘hate’ element of the offence has not been proven.
It depends who you ask.
Conservatives and members of the far-right movement have claimed that the proposed legislation is contrary to the right to free expression in a democratic society because it will potentially criminalise forms of speech.
This is not just a domestic concern: one of the bill’s most prominent critics is Elon Musk, who has suggested he will take legal action against the Government if it becomes law.
(Musk and other US-based opponents of the legislation live in a country with extremely liberal free speech laws, which are much stronger than countries like Ireland where the right to free speech is already tempered by rigid defamation laws.)
It should be noted that the bill also contains provisions around freedom of expression, with criticisms of protected characteristics not necessarily seen as incitement to hatred. There are also exceptions for material that consists solely of “a reasonable and genuine contribution” to several fields, including artistic discourse.
Others like Independent Senator Michael McDowell have suggested that the bill does not adequately define the concept of ‘hatred’ or gender (one of the protected characteristics), which they say gives rise to fears around the freedom of expression in turn.
There have also been criticisms of Section 10 of the legislation, which outlines a proposed offence of creating or being in possession of material that is deemed likely to incite violence or hatred.
Under Section 10, it would become an offence to possesses inciteful material that could be communicated to members of the public, whether by the person who possesses it or someone else – which People Before Profit TD Paul Murphy has described as creating “thought crime”.
Internal Government criticism of the proposed legislation began to emerge last year in the Seanad, where the bill is currently stalled having already passed successfully through the Dáil (more on that in a minute).
Even though the Seanad was expected to effectively rubber-stamp the passage of the legislation, Government senators were among those to reveal disquiet when debating it in the upper house of the Oireachtas.
Fine Gael senator Regina Doherty was among those to express concerns over what she suggested was a vague definition of hatred in the law.
The Act says: “hatred” means hatred against a person or a group of persons in the State or elsewhere on account of their protected characteristics or any one of those characteristics.
Government opposition crystallised after the double No vote in the Family and Care referendums earlier this month.
Fianna Fáil’s Willie O’Dea called for his party to “abandon” the bill and “stop playing to the woke gallery”, prompting agreement from the party’s youngest TD James O’Connor.
Fine Gael’s Michael Ring followed last week, similarly calling for the legislation to be scrapped and for Fine Gael to move away from “left-wing” politics.
This week, former Justice Minister Charlie Flanagan said the bill should be “brought back to the drawing board” and that Fine Gael should concentrate on other priorities like housing, health, and law and order.
O’Connor, Ring and Flanagan all voted in favour of the proposed law in the Dáil last April, though O’Dea was not present at the time.
Sinn Féin dragged themselves into the controversy this week when they called for the proposed legislation to be scrapped.
All of the party’s TDs voted in favour of the legislation in the Dáil last April, but it now says the bill is not fit for purpose and claims far too much time has been devoted to it.
In an attempt to explain the apparent u-turn this week, Sinn Féin’s social protection spokesperson Donnchadh Ó Laoghaire told reporters:
“The reason that we voted against it last June is the reason that we are opposed to it now. We believe that it goes too far, some of the definitions are far too broad and to be honest, too much time has been taken up by this.”
In a subsequent appearance on RTÉ’s Six One News, Ó Laoghaire clarified that the party voted against the bill in the Seanad in June 2023.
This appears to refer to Senators Fintan Warfield and Niall Ó Donnghaile voting in favour of a proposal by Independent Senator Michael McDowell calling for the bill to be read a second time (an amendment which was not carried).
The party’s TDs had all voted for it in the Dáil’s most recent vote on the matter in April 2023.
The bill remains stalled in the Seanad following that vote in June. It was expected to pass through the upper house and be signed into law within a matter of months, but the Seanad intervention has slowed that progress down.
Simon Harris – who is expected to become Taoiseach on 9 April – this week accepted that legitimate questions have been raised about the legislation and that it does need revisions.
“If we’ve learned anything from the referendum, I think politicians should approach all of these issues with humility, and listen to people and the concerns that they are raising,” he said.
Justice Minister Helen McEntee is expected to table such revisions, but has also said that the legislation is an important commitment in the programme for Government.
It is not quite clear what those revisions will be, but it doesn’t seem as if the hate crime legislation is going anywhere – for now at least.
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