<em>The new proposed law in Ireland will criminalise Catholics</em> <em>for their beliefs, writes</em> Dubhaltach O Reachtnin
Last week in Ireland proposed legislation was put forward to create a new crime under Irish law: "hate speech". Under the new law, "a person shall be guilty of an offence if <em> "(a) the person— (i) communicates material to the public or a section of the public, or (ii) behaves in a public place in a manner, that is likely to incite violence or hatred against a person or a group of persons on account of their protected characteristics or any of those characteristics, </em> <em>and (b) does so with intent to incite violence or hatred against such a person or group of persons on account of those characteristics </em>
The <em>Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill, 2022</em> is designed to replace the 1989 <em>Prohibition of Incitement to Hatred Act</em>, a law widely considered to have achieved the necessary balance of protecting free speech while outlawing overt incitement toward violence in society.
A press release from the Department of Justice however informs that the 1989 law was ineffective because it only secured 50 convictions over 30 years, implying, somewhat worryingly, that the objective of the law is to create more criminals, and that the value and efficacy of law is assessed based on this quantitative metric.
While the Minister for Justice contends that protection of free speech has been adequately built into the proposed law, a reading of the proposed legislation tells otherwise. For defenders of free speech, the creation of a class of crime based on speech is problematic in itself. There are things that are bad to say but it is not the place of the law to police speech – save perhaps when it is libellous or clearly inciting towards violence against a person or group of persons.
The proposed law is much broader than that. The Minister for Justice laments the inability of the 1989 law to criminalise “a small minority of individuals carrying out these reprehensible acts and spouting this abuse” yet the 1989 law was never designed to do such a thing. The new law is designed to create crimes for speech that is deemed unacceptable.
Since its inception, the debate around the proposed law has centred around characterising forms of speech as "hateful" without defining "hate" and to refer to such communication as a crime <em>a priori</em> although it had yet to be written into law. The act of legislating is treated – by the Government as well as much of the establishment – as a mere formality of codifying what the Minister already knows in her heart to be criminal.
The proposed law extends the list of protected characteristics which include race, colour, nationality, religion and sexual orientation to also cover gender, including gender expression and identity, and disability. While religion remains a protected characteristic under the law, that protection is a defensive one rather than a freedom in this case.
The Irish Constitution protects freedom of religion and its practice, but only to the extent that it clashes with, or is subject to ‘public order and morality’. How the new criminalisation of certain forms of speech will be considered under an interpretation of public order and morality remains to be seen, however, the proposed legislation essentially codifies a ‘public order’ for the proper use of speech, and also legislates for a new form of morality – that of only speaking in certain acceptable terms.
There are good reasons for the religious to be concerned. The Catholic Church has long-standing objective positions on issues, which, if they are to be uttered in public (and that may include the pulpit), may cause the priest or other adherent to be made subject to prosecution. Although there is a subjective space for “reasonable and genuine contribution” in relation to literary, artistic, political, scientific, religious or academic discourse, this is based on what is "considered by a reasonable person as being reasonably necessary”.
What is likely to be considered reasonable, or what is a reasonable person, is contested in an increasingly polarised world. And because the law also places culpability on the "body corporate" to be responsible for what is communicated on its behalf, the Church may be equally culpable for the utterances of its more forthright members.
The underlying challenge is the absence of definition. <em>Hatred </em>is defined, circularly, as<em> 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.</em> No one can know with such a definition what amounts to inciting hatred. And as society changes, where words are now considered by many as violence, what may be considered as "hatred" tomorrow is anyone’s guess.
Equally, gender is also defined self-referentially as “the gender of a person or the gender which a person expresses as the person’s preferred gender or with which the person identifies and includes transgender and a gender other than those of male and female”. A millennia-old position of biological determination for sex and gender is no longer allowed, which is problematic for the Church and many others.
Further, under the law, it is not required that actual hatred be incited (however ill-defined it may be) but only that the accused have had in his/her possession such material that could be considered to incite hatred, and that under the law, suspicion of having such materials warrants the invasion of said person’s home and seize their property, "for so long as is necessary".
To take the law at its word, the Irish police force could be entitled to raid anyone’s house to search for their Bible or Catechism were someone to take the view that it incites hatred against a protected characteristic and then prosecute them for simply having it, let alone promoting its teachings. Ownership of Helen Joyce's book <em>Trans, </em>for example, may be a future crime.
Only a few short years after the crime of blasphemy was removed from the Irish Constitution and Statutes, it is being introduced in a much wider form - and the much mocked <em>Index Librorum Prohibitorum</em> is on the way back, extended and expanded.
While the Minister for Justice states that “Hate speech is designed to shut people down, to shut them up, to make them afraid to say who they are and to exclude and isolate them", the effect of the proposed law is likely to be an extremely chilling one that does exactly that. Except in this instance, it is the power of the State that is doing it rather than some small minority "spouting abuse".
