Mick Clifford: Hate speech bill in danger of failing due to noise around relatively minor element
Last year's riots in Dublin. In 2022 there was a 29% increase in hate crimes up to a total of 582 incidents. These included public order incidents, assaults causing harm and criminal damage. File picture: Colin Keegan, Collins Dublin
The name of the Facebook page was ‘Promote the use of knacker babies as shark bait”. On the page there was a reference to suggest that Traveller babies could be useful at “feeding time in the zoo”. There was also a phrase suggesting Travellers could be used for testing new drugs in viruses.
The man responsible for the postings was prosecuted in Killarney district court under the 1989 Incitement to Hatred Act. He was a barman who created the page after he had a bad experience with a group of Travellers in his workplace. Garda Stephen Hourigan, who received a complaint about the posting and interviewed the man responsible, told the court he thought it was outrageous.
“It was a direct attack against a group in society,” he said. Despite that, Judge James O’Connor ruled that while the material was “revolting and insulting”, it could not be deemed incitement to hatred. He dismissed the case.
That occurred in 2011, and was one of a very small number of prosecutions taken under the 1989 act. The ineffectual nature of that law prompted a whole range of people, from gardaí to prosecuting authorities to various groups representing minorities, to the belief that it required updating.
The result was the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022. This is now known as the hate speech bill.
The bill has gone from being hugely popular to being shunned. Some of the opposition is based on genuine flaws which could be rectified. However, even if the flaws are addressed, there will remain opposition on the basis that it has come to represent both in political and public opinion an instrument in what is known as the culture wars.
And in that respect, a bill designed to protect all sorts of minorities looks set to fall over the overblown — by both sides in the culture war — issue of gender dysphoria. Such an outcome should, but probably won’t, give pause to anybody who worries about the kind of society we are creating.
Hate speech is only one, and arguably the lesser, part of a complex piece of legislation. The other part involves hate crime, such as physical attacks on a person or on property as has been seen in the recent arson attacks on accommodation centres due to host asylum seekers.
In 2022 there was a 29% increase in hate crimes up to a total of 582 incidents. These included public order incidents, assaults causing harm and criminal damage. The gardaí believes that the existing law is not sufficient to deal with this kind of crime.
Very few, if anybody, appears to be objecting to updating the law to tackle hate crime. But as it is in the same bill as the hate speech element the chances are that it won’t see the light of day. So while there are frequent calls across society for new laws to tackle crime in general, it would appear the urgency to address this aspect of crime is completely absent.
According to the bill, the possibility of hate crime or speech arises when it is directed at people who have up to 10 characteristics. These include, race, colour, nationality, religion, ethnic origin, gender, sexual orientation and disability.
One of the flaws is that hate is not defined in the bill. This has elicited concern on both the left and right of the political spectrum. The government says the failure to define hate is on the advice of the Attorney General.
Yet organisations like the Council for Civil Liberties have pointed out that it is defined in other jurisdictions. Certainly, it is an issue that could be examined.
Another issue arises in section 10 of the bill that makes it a crime to be in possession of material likely to incite hatred even if the material has not been disseminated. Again, this has been referenced as a problem across the political spectrum, but it also could be addressed through amendment.
The problem is that large tracts of the body politic have gone beyond framing amendments and just want shot of the bill following the recent referendum results which were interpreted as an ‘anti-woke’ mandate.
The reasoning for such is unclear, as are the precise reasons why both referendums were rejected. But politics is about perception and right now many are viewing the hate crime and speech legislation as an example of some ‘woke’ agenda, or an instrument in the culture wars.
Fianna Fáil TDs, Willie O’Dea and John McGuiness have said it should be dropped. Sinn Féin, which once had a protective attitude to minorities, has called for its abandonment. Simon Harris is expected to give it lip service when he takes the Taoiseach’s office, but few believe he has any interest in its passage through the Oireachtas.
One indicator of the prospects for the bill will be whether Helen McEntee, who has been vocal in supporting it, will be moved from the Justice portfolio.
Why has it become so unpopular, in an alleged enlightened society, to protect all sorts of minorities from physical or verbal attack? The answer is both bizarre and alarming. Much of the opposition arises from positions that have been adopted on gender dysphoria.
Those on the right who have major issues with transitioning gender don’t want it included as a protected characteristic. Senator Ronan Mullan, for instance, has voiced concerns in this regard on air and on his own blog.
“The protected characteristic of ‘gender’ in the Hate Bill is a radical, new untested definition,” he writes. “Since the foundation of the State, our legislation has ALWAYS defined gender as binary, while referencing gender identity as something different. This new definition conflates both. It is NOT an accidental mistake in draughtsmanship.”
He and those who share his opinion suggest that expressing concerns about aspects of gender dysphoria could lead to prosecution. “Nobody actually knows,” he writes.
He goes on to suggest that the framing of the bill in relation to gender was not an accident or mistake. “Some activist voices are shaping — if not brainwashing — political thinking,” he writes.
Mullan’s analysis, it is reasonable to assume, is shared by those who class the bill as woke.
He may have a point about activist voices. There has been, in recent years, a huge degree of intolerance among some of those on the illiberal left for any debate around legitimate concerns to do with gender dysphoria.
It is also the case that transgender people are frequently victims of hate crimes such as assault simply because of who they are. Being subjected to verbal or physical attack over their physical characteristics requires that they, like every other minority group, receive special protection.
What is really alarming is that the whole bill is now likely to fail because of the noise created around this relatively minor element. As such, the protection of all minorities, in an increasingly fractured society, is being relegated to an afterthought in a dispute that has come to be dominated by strongly held views on gender dysphoria among a relatively small group of people.
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