A guest post by Ray Bassett.
The Criminal Justice (Incitement to Violence or Hatred or Hate Offences) Bill 2022, which is currently before the Irish Senate, is expected to become the law of the land in September. It is a poor piece of legislation, which infringes civil and human rights, while masquerading as a progressive measure to protect vulnerable groups. As a person who was heavily involved in drafting the human rights and equality sections of the Good Friday (Belfast) Agreement, I am appalled that it strikes directly at the ethos of the GFA.
At the outset, I must admit I was very reluctant to get involved in opposing the Bill because nobody wants to be considered as condoning hatred. The Bill elicited very little interest as it passed through the Dáil, I imagine on the same grounds. However, on reading the substance of the legislation, I felt it was my civic duty to speak out.
The thrust of the provisions of the GFA was to ensure “freedom from discrimination for all citizens” and parity of esteem for all. The Agreement affirmed “the right of free political thought” and, inter alia, the right to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity. In drawing up the provisions, I worked very closely with Inez McCormack of the trade Union, UNISON, a tireless campaigner for equality.
In other words, the Good Friday approach is to ensure people on the island of Ireland should be equal before the law and be permitted to pursue their political objectives in a peaceful and free manner.
The proposed legislation is in many ways the antithesis of the GFA approach, criminalizing those who differ with the State narrative. The legislation enters into the territory of limiting public comment, in some cases on wholly legitimate topics. An example is Section 8 which criminalizes “denial or gross trivialization of genocide”. Transgression can be punished by up to one year in prison. Hence a person of Turkish descent in Ireland who will not accept that what happened to Armenians in 1915 as genocide could be jailed. The State should not be in the business of telling people what to think. This is a clear violation of the GFA commitment to the right to free political thought.
Section 10 of the Bill makes it a serious offence to prepare or possess material which is deemed to be hateful. The legislation will allow the Gardaí to enter a personal home, after a search warrant is issued, at any time of day or night and confiscate all material, including electronic, (computers, phones, tablets, etc.,) of all the people in that premises at the time of the search. The material may be in draft form, and it is up to the accused to prove it will not be circulated, a complete reversal of the concept of being innocent until proved guilty.
The Bill creates a number of “protected characteristics” which are afforded a special status under the law, clearly violating the concept of parity of esteem for all. It also carries a very confusing definition of gender which repeatedly uses the term gender to explain gender,
“gender” means 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”.
I am a holder of a Ph.D. in biochemistry from Trinity College Dublin and am unable to decipher what this definition actually means.
The criminal law demands precision since the consequences of transgression can be severe, namely imprisonment. Hence the absence of definitions of what actually constitutes “hatred” or indeed the crime of being “reckless” is nowhere to be found in the legislation.
The Minister for Justice in defence states that Judges will know what hatred is, a rather weak response. In addition, it will not be the Judges which will enforce the law but rather the Gardaí. It may be that the Judges will be reluctant to convict but the trauma of being arrested is a severe punishment in itself, without the subsequent conviction. If the Gardaí fail to act on a complaint they will be vilified in sections of the media.
The Bill does provide a number of defenses which reek of class consciousness. These included if material is a genuine contribution to literary, artistic, political, scientific, religious or academic discourse. No such protection for the hoi polloi.
The bill would seem not only to violate the Good Friday Agreement but Article 40 of the Irish Constitution which includes the two following elements;
All citizens shall, as human beings, be treated equal before the law
The Right of a citizen to express freely their convictions and opinions, subject to public order and morality.
The legislation was put out for public consultation and the submissions were overwhelmingly opposed to it. Opinion polling shows that the legislation enjoys little public support.
Ireland is much less racist and hugely more tolerant than it was when I was growing up. I have to question the need for these new provisions when society is increasingly intolerant socially of prejudiced behaviour.
There is already legislation in force prohibiting acts which could be constituted as incitement to hatred and successful convictions have been obtained under the old Act. The question therefore must be asked as to why is the Government proceeding with the Bill which is at odds with the GFA?
There are two motivating factors, namely strong NGO groups who genuinely, and in my view, wrongly, are pushing the concept that Ireland is becoming more intolerant and needs the criminal law to whip it back to tolerance.
The second and probably more important motivation is to please Brussels. The EU Commission has made no secret of the fact that it would like to amend Article 83 of the Treaty on the Functioning of the European Union (TFEU) to include “hate crimes” and give Brussels more power to intervene in member States. The chances of the EU achieving this are close to zero since it requires unanimity among member States. It has called on individual countries to pass national legislation on the matter.
Our Government and its members are always conscious of the need to be regarded as the “best student in the classroom”, with the EU and are pushing this legislation which is inappropriate for Ireland. It will look good on job applications in Brussels to have supported this type of legislation. Even at this late stage it would be better to drop the flawed current Bill and start afresh, to look where, and if, the current legislation needs updating.
Ray Bassett is ex-Irish Ambassador to Canada, Jamaica and Bahamas, and author of Ireland and the EU Post Brexit and The Phoenix Park Way: Walking the Walls of the Phoenix Park.