The Department of Justice’ public consultation on reviewing the legislation on hate speech comes to a close on Friday the 13th. (You can make a submission or answer a survey here) No more suitable day for the shambles of a process that it has been.

In parallel, the Irish Human Rights Commissioner Emily Logan stated that politicians should face sanctions for racist comments without ever explaining how this would be done, and who or how they would be assessed. Archbishop Martin worried aloud about traces of racism among believers, while the Government told the UN that they may use the forthcoming legislation to invert the presumption of innocence.

Either the country has gone mad, or Ireland is a country of intolerant bigots while at the same time being about the most liberal in the world. Something is amiss, and the consultation on hate speech provides a pointer as to where we are at.

We are basically turning into an incoherent nation.

The consultation process has three key elements. The third involves NGO advocacy groups, inevitably left-wing, being allowed special treatment in ‘workshops’ as part of the review. They are a privileged ally of the government, funded by the government to lobby the government and take part in these workshops. They are not representative. They are interest groups.

The other two elements consist of reviewing a consultation document and sending in written submissions, or replying to a few questions as part of a survey, for those pressed for time.

Both the consultation document and the survey questions are a disaster. If they were written by undergraduate students in the first semester of first year, they would be handed straight back with a ‘must do better’. If they were part of a research project, they would be rejected for being infused with bias. It is hard to know where to start. Almost every sentence is a nonsense. The document is full of inaccurate, non-specific and misleading language. It is filled with bias. It is full of leading questions.

It conflates the existing legislation, which is about ‘incitement to hatred’ with hate speech. It never defines what hate speech is. It conflates and uses terms interchangeably and as suits through the document. The reader is led to believe that ‘hatred’ is the same as bias, as prejudice, as intolerance. And at the same time, the document says that it wants an Ireland where ‘where expressions of hatred and prejudice are not tolerated’. The intolerance of intolerance. Or something like that.

Who decides what is tolerated? There are many things that are not tolerable, and that people do not tolerate. Female Genital Mutilation for example. Should we stamp out intolerance of that? Or is not tolerating, tolerant?

Prejudice can be dealt with in a similar manner. Not all prejudice is bad. Most are good. Prejudice is how people make wise decision in the world. “Common sense is the collection of prejudices acquired by age eighteen,” said Albert Einstein. Trying to outlaw prejudice is akin to asking people not to use common sense. A wise person will act prejudiciously when answering the door to a stranger. Is this to be outlawed?

Bias is not to be tolerated? What bias though? This is never said. We apparently all have unconscious bias, so is the government going to lobotomise or re-educate us?

Later in the document, the Department of Justice introduce a raft of new concepts into the equation: racism, harassment, discrimination, defamation (and many other related matters) as well as hostility and prejudice, in quick two sentences, as if they all fall under the same rubric, which is misleading, or meant to be leading the reader into conflating all the issues under some form of hatred that needs to be addressed.

We are never told what we are really dealing with, but it is inferred that it is bad and hateful.

The first page of the document states that it is the aim of the process to ‘support a safe, fair and inclusive society’. A 100% safe society is hard to create through laws. All level of human freedom would have to be curtailed. This may be pedantic but it is important to highlight specific nonsensical statements. What is a fair society? What is fair? This has been a debate that has existed for centuries if not millennia- whether talking of social or economic fairness. And inclusive? What type of inclusion and of who? Of everyone? In what regard? Is it inclusive to be intolerant of some forms of intolerance?

Of course, all this hate, intolerance, prejudice and bias needs to ‘be dealt with swiftly and effectively’, though there is no clarity for how ‘mind-crimes’ such as hatred can be dealt with swiftly and effectively without recourse to lobotomy.

Bizarrely, the consultation document admits that there is no such thing as hate crime in Ireland at the moment under the law, but then goes on to state that “the Department recognises that although hate speech and hate crime are legally distinct, the real-world experiences of hate crime and hate speech are often very closely linked.” Hate crime doesn’t exist, or so the consultation document tells us, yet somehow it is closely linked to hate speech, which is the only existing hate crime in the forming of incitement to hatred. And the consultation invites you, “If you wish to include material relating to hate crime in your submission on this consultation, please feel free to do so”. In other words, please feel free to follow our lead in conflating these apparently legally distinct issues into one so as to buttress our argument.

Continuing its preamble, setting the scene, the document outlines the lofty ambitions, worthy of the greatest rhetorician:

  • To make the law “effective in meeting the real needs of communities and individuals who are living with the impacts of hate speech”. Without a definition of hate-speech in the document, it is unclear who are these real people that are assumed to exist, who are living with the impact, and nor is it clear, who are these communities? Are they particular communities, in specific counties? Are they rural or urban? What is the impact? Having never been given details, we are left to surmise of the hell across Ireland.
  • Tackling hate speech and hate crime are both essential to ensure that all people living in Ireland can feel safe, valued and equally respected and protected under law.” There is no evidence for this statement, nor is there any consideration that it could be counterproductive. Despite the previous assertion that hate speech and hate crime are distinct, they are presented together- and still no one is any clearer about what they are.
  • This tolerance and respect for the equal dignity for all human beings is fundamental to Ireland’s identity as a democratic, pluralistic society.” Firstly, are we considering our identity as a democratic, pluralist society, or our existence as one? Perception is not always the same as reality. And the question remains, whether suppression of speech (for intolerance, bias etc) is in any ways compatible with democracy, and it aligns much more with a totalitarian mindset than a democratic one that seeks to maximise

This may all seem very trite, pedantic and churlish, however, when the Department of Justice, of all government departments, is leading a process, one expects the rigorous language of the law, in all its exactness to be observed, rather than reading the ramblings of a social justice warrior who is angry at those he/she disagrees with and wants them to stop saying bad things.

Such is the seriousness, we are told that “The impact of hate speech is especially serious as it has a ripple effect which spreads far beyond the individual victim and can, if not dealt with, lead to a more divided society where entire communities feel unsafe. Hate speech therefore impacts on the cohesion and fabric of our shared community.” Of course, in that case, we surely must act. Unaddressed here is the issue of how the suppression of speech actually undermines the cohesion of society, where the public square becomes a place of fear, where people cannot say what the feel and are driven underground, and totalitarian speech monitoring forces people into ghettos and behind closed doors, where ideas are not put under scrutiny by argumentation but instead fester.

Hate speech facilitates, and can lead to, hate crime. In itself it can cause great distress or injury. It validates prejudice and can be used by individuals or groups to organise and campaign for their cause or raise funds to perpetuate and escalate the hateful climate they wish to promote.” The science fiction rhetoric and creative nonsense just goes to another level here, for many above mentioned reasons. It does not seem to be clear that we are still referring to hate speech as incitement to hatred, or rather, something else, such as previously used ill-defined ‘prejudice/bias/intolerance’ to understand what may cause distress, but even more confusing is how the speech can cause injury.

But more worryingly is the intent outlined at the end of the sentence – the law, or proposed law, seems to be laced with the intent of preventing certain – unnamed – groups, or people with particular viewpoints, from raising funds or campaigning, which makes the intent of the law very, very worrying, as it is designed, not to address a crime, but to address a perceived, potential, possible consequence, with further potential consequences later down the line, that may come from the use of the aforesaid ‘speech’.

So, let us continue. After the long pre-amble, setting the scene, the document carries an important sleight of hand. Deliberately, and in plain sight, it says, “The legislation enacted in 1989 made incitement to hatred (hate speech) a crime in Ireland”, informing the reader that incitement to hatred is the same as hate speech. It is only after this lengthy prelude, that the actual legislation gets discussed, and it is misrepresented. And this is where the document takes us next. We have been warmed up to the horrors of hate in Ireland and are now ready to loosen the constrictions on the existing law.

The section on the current legislation demonstrates how the 1989 law sought to restrict itself in order to respect the freedoms of expression and thought, and that any incitement to hatred, the conduct or material being used

whether it involves words, written material, images or sounds, must be

– threatening, abusive or insulting; and

– intended or likely to stir up hatred against a group of persons (not an individual) on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation.

There is a double lock and a high threshold to protect that most fundamental of freedoms and rights, expression and speech, under the current law. The legislation restricts speech only in tightly defined circumstances- so that it cannot be merely speech that has fallen out of favour, that is no longer considered to be politically correct, or that has been deemed ‘intolerant’ by certain groups who do not have tolerance for words or opinion that do not align with their own. And the law is also clearer and provides a much greater degree of certainty – the language has to be accompanied by a threat, abuse or an insult. On their own, it is not clear that these ought to be reasonable grounds for citing a criminal offence, however they are accompanied by an additional lock:

  • They have to be intended to stir up hatred against a group of persons
  • And this has to be on account of their race, colour, nationality, religion, ethnic or national origin, membership of the Travelling community, or sexual orientation.

All of these provide a certain amount of certainty to those under the law in order to understand what actions, or words, may fall foul of the law. The language being suggested in the consultative document does not provide such certainty at all and completely changes the issue.

And this is the problem that we are, leadingly, to address in the review. We need to loosen up the law. We are asked to include more groups under the law, with the Dept of Justice, helpfully suggesting a few to us in case we couldn’t think of any. We are then told, oddly, that we should think of the historical context to help jog our memory (does this mean Protestants?). And then, helpfully, we are told that we should only include groups whose characteristics are clear. Red-headed people can be clearly and easily identified. Does that mean that they should be included in the proposed legislation? Homosexuals cannot be clearly and easily identified. Does that mean that they should be excluded from the proposed legislation?

Then we get to the meat of the matter and we are well primed. We are told that ‘hatred’ is a high threshold, so shouldn’t we open up the law to the other terms that we were helpfully introducted to ‘hostility or prejudice, for example’.

And why? “Given that prosecutions under the Act have been relatively rare, the Department is considering whether the requirement to stir up hatred should be replaced by another term”. Does this mean that the department is disappointed at the lack of hate in Ireland? Or disappointed at the low strike rate? What does this mean? We need more criminals in Ireland so let’s create them? The number of murder convictions is relatively low in Ireland so would it be a good idea to change the definition of murder to ‘tried to do some harm to someone’, just to boost the crime rate? What nonsense is this?

We are told “the Department is considering whether a more explicit wording mentioning these forms of communication (social media etc) might result in more successful prosecutions under the legislation.” It is not clear why the DoJ wants more convictions? What is this lust to give more people a criminal record? Are there fines to be handed out so the DoJ can make more money? Is there additional money in the budget or empty beds in the prisons that needs to be filled? It is embarrassing that the consultation is based around little that is objective but there is an aim to get more convictions. It sounds like the show-trials of Stalinist Russia, where ‘the revolution can never be complete’.

The Department is considering whether this is sufficient to capture modern day communications where posts on social media sites can be general posts or theoretically limited to followers or ‘friends’ and could therefore be argued not to be public.” So, the Department is implicitly stating that it wants to prosecute people who post on social media to their ‘friends’ and is seeking to find ways around this? Does the DoJ want to eavesdrop into friends’ conversations in the pub and to prosecute those also? Do they want to come around to your house and monitor your dinner table chats? This is what seems to be the case here.

The Department wants to “make prosecutions under for incitement to hatred online more effective”.

What is meant here is more frequent, or to make it easier to prosecute. It is nothing to do with effective prosecutions, which is about process under the law as it stands whatever it may be. Changing the law doesn’t make prosecutions more effective, it just changes what gets prosecuted. But clearly the DoJ are looking for more ‘effective’ means of ensuring it can prosecute certain ideas.

The Department is “considering whether the need to prove intent or likelihood within the Act should be changed, for example to include circumstances where the person was reckless as to whether their action would stir up hatred.” Intent is a fundamental part of the law. There are also elements of the law that deal with the effect of the action, irrespective of the law and there is law for these- including the Law of Tort. If intention is removed, particularly as the ‘hatred’ is subject to how it is perceived, it may not be intended hatred, or incitement (forgetting for now that we don’t even have a definition of hatred) and totally subject then to how others decide to interpret and respond to it. One becomes responsible for the crimes and actions of others which is a very dangerous place to take the law without appropriate ring-fencing and protections for false convictions. If intention is removed, anything one says can or could be interpreted as being ‘hate speech’ irrespective of what is meant by it. Law is sophisticated enough in other areas to deal with reckless behaviour and there is no reason to assume that it cannot do this in relation to incitement to hatred (as defined under the current law).

The document ends by welcoming “any comments you wish to include on the related issue of hate crime.” How the DoJ can welcome additional comments on the issue of ‘hate crime’ when hate crime does not exist, in the legal form, here in Ireland (there is no other form of crime other than a legal one) is unknown but it is a very indicative statement to sum up the document.

At the end of the online survey, the respondent is asked if there is “anything else important we should consider as part of this review”. One can only respond by saying to consider improving the language that you use in order to provide clarity to a public consultation; consider being specific and non-prescriptive; consider being accurate; considering avoiding the temptation to frame the discussion; consider approaching the consultation through the lens of the rigour of the law; consider logic; or if all those fail, consider changing the name of the Department of Justice to the Department of Social Studies.

But ultimately, what is permitted, tolerated and considered respectful, is transient, and Ireland is a perfect example of how the perceptions have changed over the years. What was orthodoxy not very long ago, is anathema now. Who is to say what is orthodoxy now, will not be anathema in 2 years? Consider the issue of gender identity- the assertion that a male is someone that is born with a penis, or even has a penis, is under threat from the new orthodoxy and risks being considered anathema. The expectation that girls ought not to have to share bathrooms and shower facilities was a perfectly acceptable view 2 years ago and was not contentious. Are these views to be tolerated now? Are differences of opinion, or differences of fact, that are incompatible to be allowed to co-exist, however incompatible they are and irrespective of how impossible it is to put them into practice or into policy?

 


 

David Reynolds