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The Great Debate

Solicitor Gary Daly says that recent events underscore the pressing need for the proposed Incitement to Hatred Bill, but barrister Laoise de Brún argues that the measure risks criminalising “ordinary, majority-held opinions” on sex and gender

We would all benefit greatly from much more robust definitions of the crimes the Incitement to Hatred Bill establishes, argues Gary Daly

The rise in anti-refugee protests and the burning down of proposed direct-provision centres underscore the pressing need for the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill. However, we would all benefit greatly from much more robust definitions of the crimes it establishes.

Having been personally involved in counter-demonstrations against anti-refugee protests, I am a first-hand witness to how recent events bear out the need for a toughening of Ireland’s laws. I also represent numerous clients in the international-protection system, members of the Traveller Community, and members of the LGBTQI community.

The bill is designed to strengthen the law on the prohibition of incitement to violence or hatred on account of certain characteristics. It creates new aggravated forms of certain existing criminal offences, where those offences are motivated by prejudice against a protected characteristic.

The bill repeals the Prohibition of Incitement to Hatred Act 1989, which has been deemed ineffective in combating hate speech, in particular online hate speech, by multiple international human rights monitoring bodies, as well as the Irish Law Reform Commission.

The Law Society’s Human Rights and Equality Committee welcomes this much-needed legislation – but has pointed out its deficiencies.

The legislation must be clear of any ambiguity about what exactly constitutes unlawful material and behaviour.

The Law Society has outlined its concerns regarding ambiguity and unclear definitions and has made recommendations, particularly on the definition of ‘hatred’ under the section 2 of the bill: “‘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.”

Circular definition

The Law Society regards this definition as circular, and consequently the definition risks being simplified to ‘hatred is hatred’. The Law Society has reiterated the importance of clear definitions of key terms.

The UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression and other eminent bodies have proposed an alternative definition: “‘Hatred’ is a state of mind characterised as intense and irrational emotions of opprobrium, enmity, and detestation towards the target group.”

Without an adequate and robust definition of hatred, police forces cannot be expected to reliably recognise and consistently address hate crime when they are faced with it.

Definition of incitement

Neither the 1989 act, nor the hate crime bill, provide a definition of ‘incitement’.

The Law Society reiterates the importance of including robust definitions and supports the recommended definition of ‘incitement’ as provided by the Coalition Against Hate Crime – that is: “‘Incitement’ means behaviour towards, or communications, that create a serious risk of discrimination, hostility or violence … on the basis of protected characteristics.”

Section 10, on preparing or possessing material likely to incite violence or hatred, has attracted particular criticism. The language lacks certainty and precision, and risks ambiguity around the appropriate test to be applied.

According to the Coalition Against Hate Crime, the offence under section 10 may not meet the required threshold for criminal behaviour and may constitute a disproportionate interference with the right to private life, given that it does not require a clear intention of making the material public.

International standards are clear that the public element is a key requirement of an incitement offence.

Protected characteristics

The list of protected characteristics under the bill excludes a number of specific grounds, including socio-economic status, migration status (encapsulating refugees and asylum seekers), and age.

The exclusion of migration status from the list of protected characteristics is a glaring omission and could result in hate speech towards refugees and asylum seekers falling outside the definition of offences under the bill.

Section 8 introduces a new list of protected characteristics, which excludes nationality and gender.

The Law Society questions this omission and believes that the full list of protected characteristics under section 3 (which extends the protected characteristics defined under the 1989 act by including descent, gender, sexual characteristics, and disability) should also apply to the offence outlined under section 8.

Freedom of expression

There is no explicit mention of the right to freedom of expression in section 11 of the bill, despite multiple calls to ensure protection as guaranteed under the Irish Constitution and the ECHR.

It is important to note that the right to freedom of expression is not an absolute right, and there are circumstances where the State may legitimately restrict certain expressions.

Section 15 of the bill vests power to a District Court judge to issue a warrant in relation to suspected offences under section 7, 8 or 10.

The Law Society considers this section to be a significant expansion of garda search powers that risks interfering with the right to privacy and the constitutional right of inviolability of the dwelling, and stringent safeguards, such as not granting warrants to gardaí below the rank of superintendent, should be introduced.

Gary Daly is a solicitor and member of the Law Society Human Rights and Equality Committee Nadia Quinn Sciascia, formerly of the Law Society and now of the Law Institute of Victoria, Australia, co-authored the original research for this article.

The proposed hate crime bill must be examined for how it will impact the expression of belief in the primacy of biological sex over that of gender identity, argues Laoise de Brún

The annual World Bar Conference, hosted in Belfast in May by the Bar of Ireland and the Bar of Northern Ireland, included a panel entitled ‘Navigating the crossroads: cancel culture, free speech, and the right to offend’.

Johanna Cherry KC, a Scottish National Party MP, gave a powerful keynote speech on how women like her, who campaign to highlight the impact of trans rights on the rights of women, children, and LGB people, are targeted, threatened, harassed and cancelled.

She strongly rebutted the idea that this was ‘just social media’ and insisted it was systemic: women were losing their jobs and livelihoods for speaking out because of what she described as “wholesale institutional capture” of government and civic society by a gender ideology that frames any dissent as hate and bigotry.

Cherry told how police in Scotland had to deal with 7,000 complaints in the week after the enactment of hate speech legislation in that jurisdiction, forcing them to issue a statement that their ability to fulfil normal policing duties was impeded.

Context for planned laws

It was the EU’s Council Framework Decision 2008/913/ JHA, on combating certain forms and expressions of racism and xenophobia by means of criminal law, which gave rise to the requirement to enact hate crime legislation in this jurisdiction.

This framework provides for the offence of publicly inciting to violence or hatred, directed against a group of persons or a member of such a group, defined by reference to race, religion, descent, or national and ethnic origin only.

If we compare that framework decision to Ireland’s Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022, we see how the latter goes far beyond what is required by the EU. This is not mere transposition, but legislative activism, in my opinion.

Firstly, the directive does not provide for the lower threshold of ‘demonstration’ for an offence to be made out. Rather, it requires that consideration be given to enhanced sentences where an aggravated assault was motivated by hate.

The directive does not require the inclusion of gender or sex as protected categories and, lastly, it requires a balancing of the legislation with fundamental rights.

Legislators in this country agreed to introduce the novel ‘demonstration test’ and to include gender as a protected characteristic after lobbying by 22 non-governmental organisations.

Dissent

Gender-critical discourse is dissent from gender ideology. While it may be true that academia, the Oireachtas, NGOs, the public sector, and the media and tech industry seem to agree that ‘trans women are women’, it is also true that outside of this ‘bubble’ most ordinary people know that one cannot physically change sex.

Ordinary members of the public want to protect female-only sports, spaces, and services. They want them to remain separated based on sex, and not on gender identity.

The case of M Forstater v CGD Europe determined that discussion about the extent of trans rights is not, of itself, a violation of those rights.

Conflict of rights

A bona fide conversation needs to happen regarding the conflict of rights, but only proponents on one side of this argument are afforded protected characteristic status under the planned legislation.

There is a lack of symmetry at the heart of the bill, which will allow it to be used as a tool of harassment because ‘hate’ is not defined, but arises from how material or words are perceived by a member of a protected group.

I submit that this novel definition of gender is a further attempt to collapse the meaning of sex in law, in furtherance of trans-activist advocacy.

Senator Pauline O’Reilly of the Greens said the quiet part out loud in the Oireachtas debate when she stated that if “a person’s views on other people’s identities make their lives unsafe and insecure and cause them such deep discomfort that they cannot live in peace, our job as legislators is to restrict those freedoms for the common good.”

This is a remarkable statement of legislative intent and a bold departure from EU jurisprudence, given that article 10 on freedom of expression in the Irish Human Rights and Equality Commission Act 2014 includes “the right to offend, shock, disturb the State or any section of the population”.

It seems that, far from feeling offended, shocked or disturbed, certain groups cannot now even be allowed to feel discomfort.

An offence under section 7 of the planned legislation is made out when someone who identifies as trans perceives ‘hate’. And ‘hate’ is not defined.

This signals a shift away from a legislative framework of equal rights, towards a hierarchy of rights.

It risks criminalising ordinary majority-held opinions around sex and gender.

Laoise de Brún is a Dublin-based barrister and the founder and chief executive of non-profit The Countess, which advocates for the rights of women, children and LGB young people