If you haven’t done so, we encourage you to write or call Senators to express your concern about the Incitement to Violence or Hatred Offences bill. We are not against people being punished for deplorable crimes against people motivated by prejudice. We question the possible stifling of our constitutional right to freedom of expression due to the wording in this bill. Contact Senators and implore them to scrutinise this bill, propose amendments and attend the Seanad debate on behalf of many ordinary citizens and residents who have raised their concerns.
73% of responses from people during the public consultation of this bill raised concerns and did not support some sections of the bill. This is an alarming majority. What’s the point of public consultations when the government will proceed without amendments to issues raised? Or are our government’s public representatives only here to listen to people and NGOs they agree with?
As a grassroots feminist group made up of Irish and migrant women of colour from the Global South, lesbian and bisexual women, we here at Radicailín have put forward a couple of points which you can reference when you get in touch with Senators.
- Hate Crime should be separate
Minister Helen McEntee is passionate about punishing people who commit crimes motivated by prejudice against people of certain characteristics and it is well-meaning and we welcome steps that give people the confidence to feel safer in the community they’re in. However, this is separate to ‘incitement’ and there are a few sections in the Incitement to Violence or Hatred Offences bill that need to be scrutinised despite Minister McEntee trying to reassure people that this bill does not stifle freedom of expression.
Senator Lisa Chambers, a sponsor of the Hate Crime Bill of 2020 said in her speech, “Most people here are united on hate crime legislation, it’s the hate speech element causing the most difficulty because there is an element of vagueness around it.”
And we couldn’t agree more.
Senator Fiona O’Loughlin, also a sponsor of the Hate Crime Bill of 2020 raised an important issue.
‘Hatred needs to be defined.”
- No clear definitions to allow for more prosecutions
People don’t get a free pass to threaten, harass or violate others. That’s not what freedom of expression is about. We 100% agree. But there needs to be a clear definition in law on what hatred is because when there is no clear definition, you are dealing with an abstract concept.
How can you enforce a law when it is vague? What is hatred and what is considered incitement to hatred? Who decides what hate is and how do you prove intent?
UN Human Rights Commission said “If you’re going to criminalise incitement to hatred, you should define the word hatred and the term incitement”.
According to the Attorney General, defining hate would make it difficult to prosecute and this is exactly the reason why Minister Helen McEntee purposefully made the definitions in this bill unclear, they want more prosecutions. So if the sole goal is more prosecutions, that doesn’t really give the public any confidence that this legislation might not be used to potentially silence dissent or restrict freedom of expression.
What this actually does is create an environment of division. If you want people to feel more safe and welcome, don’t pass bills that would create an atmosphere of fear and civil unrest. Dismissing concerns as “far right” or “fringe” brought about by people from a wide range of backgrounds, some of whom are on the left side of the political spectrum won’t make our criticism on this deeply flawed bill disappear.
- Presents a level of subjectivity
Senator Barry Ward explained in his speech that this bill is “not stifling debate but taking hatred out of that debate” and he cannot understand why people would be against it but what kind of debate can one have when you’re unsure what you can talk about? Unless we have a clear definition of what hatred is then incitement to hatred or violence presents a level of subjectivity and the protections of our freedom of expression is a genuine concern.
Senator Paul Gavan stated, “There’s a difficult balance between freedom of speech and inclusion. Hate and violence must be restricted and punished in some cases.” He cited an example about groups campaigning for civil rights and national liberation of Palestine and shared, “We cannot restrict freedom of speech for those who are most vulnerable” — does criticising Israel’s treatment of Palestine be considered “incitement to violence or hatred” or “antisemitism”?
Is it considered anti-Islamic and hate speech for us as radical feminists to criticise Taliban and how they are treating women and girls in Afghanistan?
- Totalitarian and Chilling
According to Senator Pauline O’Reilly, “All law is restricting freedom and we are doing it for the common good” — this, we believe is a dangerous stance for anyone in government, whatever jurisdiction you’re in. “Common good” can be interpreted differently depending on ideologies people in power hold and any law that has the potential to stifle dissent should not be passed in any democratic society.
In the 20th century, there were totalitarian states that used the same ‘common good’ rhetoric and they weren’t sincerely meant to progress the good of all but they were meant to serve the dominant class agenda.
Totalitarianism in the name of collectivism was very much part of the Nazi’s playbook.
A number of politicians including the Irish Council of Liberties have said there are problems with the Bill that have not been addressed, in particular Section 7 which lowers the threshold of criminality.
According to their Briefing Note,
“The offence of preparing or possessing material likely to incite to violence or hatred may not meet the required threshold for criminal behaviour and may constitute a disproportionate interference with the right to private life – Only extreme forms of hate speech should be addressed through criminal law.”
In Helen McEntee’s recent speech at the Seanad, she tries to reassure the Senators in attendance that “this is only for EXTREME forms of hate speech that DELIBERATELY incite or stir up acts of hostility” but as Senator Ronan Mullen rightly pointed out in his speech, the words ‘extreme’ and ‘deliberately’ were not mentioned in the bill, which we think is a form of deception.
Section 7 of the bill states that
“A person shall be guilty of an offence under this section if—(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, and
(b) the person does so with intent to incite violence or hatred against such a person or group of persons on account of those characteristics or any of those characteristics or being reckless as to whether such violence or hatred is thereby incited.”
Senator Michael McDowell raised his concerns on this section in his speech and refers to the Criminal Act of 1997,
“As a result, two things happen.
- Garda can arrest you…
- Any citizen can arrest you if he or she believes that you are actually committing an offence under section 7
So to create an offence without clarification what constitutes as hatred is very dangerous indeed.”
- Deceitful and Unconstitutional
The Bill in its current form is unclear and is not fit to be passed.
Senator Denis O’Donovan raised his concerns and explained that this bill conflicts with our constitutional rights to free speech despite Minister McEntee’s reassurance that section 11 of the bill should protect people’s freedom of expression. He explained, “Rushing legislation through is not a good thing ever and this legislation didn’t get due consideration in the Lower House and that troubles me” and we couldn’t agree with him more.
How can section 11 guarantee our freedom of expression when in this bill, you’re considered ‘guilty’ first and the onus is on you to prove you’re not.
On section 10 of the Bill, possessing material that is considered hateful shall be an offence and the burden of proof is on the accused to prove that he or she did not commit an offence. Minister Helen McEntee and Senator Barry Ward compared this section of the bill to existing laws we have against firearms/dangerous weapons and drugs which creates presumption of guilt or rebuttable presumption where the accused will have to prove some evidence to the contrary.
Carrying firearms/deadly weapons or being in possession of drugs is hardly the same as someone with stickers “We are women, not cervix havers.”
This is incomparable, non analogous and disingenuous.
In 2015, France convicted 12 pro-Palestinian activitists for wearing T-shirts with, “Long line Palestine, boycott Israel”
Under the French hate speech law that this offence “prescribes imprisonment or a fine of up to $50,000 for parties that ‘provoke discrimination, hatred or violence toward a person or group of people on grounds of their origin, their belonging or their not belonging to an ethnic group, a nation, a race or a certain religion.’”
CALL TO ACTION
We urge you to call or email your senators, personalise your plea and how you think it relates to you. No decent person would ever want crimes committed against others for whatever reason. What we are concerned about is the creation of criminal offences on personal opinion or thoughts mainly because the bill does not contain any clear definitions and this directly conflicts with our constitutional right to freedom of expression.
Below is a list of senators who are in favour of the bill in its entirety:
Barry Ward
Annie Hoey
Eileeen Flynn
Pauline O’Reilly
Joe O’Reilly
Aisling Dolan
Below is a list of senators who raised some concerns on the hate speech element and the lack of definitions and how it might conflict with freedom of speech:
Ronan Mullen
Lorraine Clifford Lee
Dennis O’Donovan
Paul Gavan
Lisa Chambers
Michael McDowell
Fiona O’Loughlin
Sharon Keoghan
Here is a link to all senators emails. Get in touch with the remaining senators on the list who haven’t spoken up yet and encourage them to do their job and scrutinise this bill accordingly.
