A barrister reviewing the government’s controversial hate speech bill has said that a claim by the Department of Justice – reported by the Irish Times – which asserted that church sermons on issues such as abortion or transgenderism would not qualify as “hate speech”, is not actually included in the legislation.
In an analysis on the impact of the hate speech legislation – and of so-called safe access zones proposals- on free speech and religious freedom, Grace Sullivan BL, writing in the Bar Review, said that both Bills “criminalise religious speech, even potentially where there is no identifiable victim.”
“The claim reported in The Irish Times that “church sermons condemning abortion or homosexual activity, or refusal to acknowledge the preferred gender of trans people, will not qualify as ‘hate speech’”, is nowhere replicated in the legislation,” Ms Sullivan wrote.
“Section 11’s protection of “discussion or criticism of matters relating to a protected characteristic” does not in any way purport to protect speech within the four walls of a church. Indeed, the proposed legislation specifically provides for a “defence” for religious discourse, underlining the clear warning that those exercising religious speech regarding “protected characteristics” do so facing the risk of criminal litigation, to which a defence must be successfully raised to avoid criminal sanction.” she said.
In fact, she argued, because the hate speech Bill includes a defence for religious speech in some instances (being a genuine contribution to discourse), it can be implied that this defence “implicitly acknowledges” its potential to also restrict religious speech.
The barrister argued that the Irish Constitution guaranteed freedom of conscience and the free profession and practice of religion – and also guaranteed the “the right of the citizens to assemble peaceably”.
The Constitution, however, “does not protect the right to live ‘unoffended’,” she wrote. “The nature of a society that values freedom of speech, thought and opinion, remains one in which ‘offence’ will be inevitable.”
Ms Sullivan wrote that: “the creeping criminalisation of aspects of religious speech in Ireland may mean that society’s ‘offence’ will write individual criminal records.
“[I]n Ireland, recent legislative developments reveal a concerning parallel trend towards criminal restrictions on free speech, particularly religious speech,” she said.
THRESHOLD FOR CRIMINAL ACTIVITY IN HATE SPEECH BILL
The barrister pointed out that while existing legislation only criminalised “threatening, abusive and insulting” language when said utterances reach a certain threshold, namely that there was an “intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned”.
“The Hate Offences Bill goes further than its previous counterparts,” she said . “There is no requirement that the speech be with intent/recklessness that a breach of the peace be occasioned.”
“There is no requirement that the material be threatening, abusive or insulting. There is no requirement that the speech occasion a victim of hatred, section 9(1) providing that an offence is committed “irrespective of whether the communication of material or behaviour the subject of the offence was successful in inciting another person to … hatred”.”
Ms Sullivan pointed out that since there was “no external requirement of harm suffered by another individual whatsoever within the proposed legislation, the pertinent question arises: what language reaches the threshold of the offence “inciting hatred”?”
“Section 2(1) of the Bill lends little clarity to the matter in its explanation that “hatred means hatred …”, and purports to protect individual(s) not even present in the jurisdiction.”
“The apparently low threshold for prosecutorial success leaves the uncomfortable impression that the legislation is criminalising speech that is simply likely to cause ‘offence’ to someone somewhere,” she said.
Also addressing the bill which has been described as seeking to criminalise even silent prayer at abortion centres, the barrister wrote that, when taken in conjunction with the Hate Speech bill, “in totality, these actions demonstrate a concerning trend towards the deployment of the heavy hand of criminal law to silence religious speech that does not incite violence, harass, or intimidate, but has the capacity to ‘offend’.”
She argued that: “it is admitted that certain religious speech may be considered offensive by many in modern society; however, it is argued that free speech protections are rendered impotent if they only cover speech that is endorsed by the majority.”
Ms Sullivan said that, somewhat surprisingly, government seemed to believe that the power of prayer could influence a woman to change her mind on abortion.
“Under the legislation, it will presumably become a criminal offence to offer prayer to a woman entering a designated premises. It is unclear whether the legislation
has gone further.”
Is the Government tacitly and somewhat surprisingly endorsing the power of prayer to persuade a woman to change her mind and therefore prohibiting such activity within 100 metres of a designated premises in totality?” she asked.
“This question loses any element of the ridiculous in light of recent reports from the United Kingdom, where it is reported that prosecutions for standing outside of service providers silently praying have been pursued,” Ms Sullivan added.
“It is questionable how the act of standing praying 75 metres from a designated premises, or indeed, offering a woman a leaflet, could prohibit her safe access to said premises. Rather, it appears that “safe” is synonymous with being shielded from unwanted speech proximate to the provider’s locus,” she said.
CRIMINALISING SPEECH WHERE NO HARM HAS BEEN SUFFERED
Concluding, the barrister wrote that “neither Bill requires that there be an individual who has suffered harm or even insult.”
“Both Bills on their face curtail religious freedoms through the heavy hand of the criminal law: one through its recognition of the obvious clash with religious freedoms by the inclusion of a nebulous ‘defence’ to speech contributing to religious discourse, and the other because it criminalises the act of public prayer,” she wrote.
“A free society will be one in which unpopular and offensive concepts will be aired publicly. It is axiomatic that the use of police powers should be exercised with caution when curtailing important human rights protected under the constitution,” she concluded.
“The country whose history tells of a complex battle to liberation from religious persecution is approaching the situation in which the criminal records of some individuals who act upon their religious convictions will be written by the ‘offence’ of others.