The introduction of a new hate crime law is a step closer after it passed second stage in the Seanad.
Concerns were raised by some Senators about the potential for the legislation to have a “chilling effect” on freedom of speech and at the lack of a definition for hatred in the proposed law.
However, Minister for Justice Helen McEntee defended the Bill saying it has been in development for four years and insisted it has not been rushed.
A bid by some senators to have consideration of the legislation postponed to the end of the year to allow more time for the debate around the controversial issues it deals with was defeated in a Seanad vote.
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The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 is aimed at updating laws criminalising hate speech and legislating against hate crimes for the first time.
It will criminalise any intentional or reckless communication or behaviour that is likely to incite violence or hatred against a person or persons because they are associated with a “protected characteristic”.
Such characteristics are set to include race, colour, nationality, descent, religion, ethnic or national origin, gender (including gender expression or identity), sexual orientation or disability.
The debate on the legislation resumed in the Seanad on Wednesday with a contribution from Independent Senator Sharon Keogan.
She argued that the proposed law is “so broad in its scope and casts a prosecutorial net so wide that upon its passing no citizen will ever be entirely sure what they are free to say”.
She suggested the goal of the legislation is to have a “chilling effect on freedom of speech”.
Ms Keogan described the definition of gender in the Bill as “nonsensical” and said she has drafted more than 80 amendments “to try and put any semblance of sanity and respect for civil rights into this Bill”.
She also said the legislation “reverses the burden of proof” highlighting parts that criminalise the possession or material likely to incite violence or hatred.
She said a section of the Bill says that it in instances where it is reasonable to assume that the material was not intended for personal use, the individual “would be considered to be guilty unless they can prove their innocence.”
Ms Keogan said “This really is dreadful law and I do genuinely think that you’re pushing it too far minister.”
Ms McEntee later defended the way the law describes the protected characteristic of gender saying it allows for “the protection of transgender or non-binary persons based on recommendations from civil society organisations and is in line with international good practice”.
On the argument about reversing the burden of proof Ms McEntee said the issue is already covered in the previous 1989 legislation and the new law was not introducing anything new.
She offered the example of someone being stopped on their way to a protest with significant amounts of literature containing “very clear language which would incite violence or hatred against a group of people.”
Ms McEntee said: “The assumption would be here that the intention is to distribute this literature unless somebody can prove otherwise. That’s not new, it’s a concept in criminal law.”
Fine Gael Senator Regina Doherty said the premise of the Bill is “absolutely necessary” due to the “rise of hatred”.
However, she questioned why there was a reluctance to define hatred saying it is concerning to her that that people - including gardaí making arrests - do not all hold the same definition of hatred.
Ms McEntee said she had been advised by two attorneys general against adding synonyms for hatred to the Statute Book.
She argued that the term hatred is commonly understood by judges, juries and prosecutors and defining hatred too narrowly “could lead to loopholes and ways of evading prosecution”.
Fianna Fáil Senator Malcolm Byrne said he had personally experienced homophobic abuse and witnessed homophobic and racist abuse against friends.
He said he “advocates very strongly for freedom of expression but I think questions do need to be asked as to where we look to draw the line.”
Mr Byrne said there is a need to introduce an aggravated offence when it comes to hatred.
He did say that artists and journalists and others “who want to be challenging” need to know what they can do and said he was concerned “that there’s some areas of the definition here that needs to be tightened because I think that they are too loose”.
Ms McEntee said “people can still offend other people” and there is no intention of stifling debate.
“There are very clear and very explicit safeguards in this legislation to make sure that we protect freedom of expression that there are robust defences that people can avail of too”.
She said: “In line with the Constitution an explicit protection is contained that you can discuss protected characteristics, that you can criticise protected characteristics and then you have very clear defences... for reasonable, genuine contribution whether it’s in literary form, artistic, political, scientific, academic discourse”.
Ms McEntee also said: “this is not just about an individual member of An Garda Síochána deciding to press charges.
“There has to be clear evidence of what the intent was here.”
She said the Director of Public Prosecutions would have to decide the evidence is there and a jury would then have to decide on the case “beyond reasonable doubt”.
“So I cannot stress enough this is not the case that somebody is going to say something, not mean it, and suddenly find themselves prosecuted or that they would say something that they genuinely believe that a lot of people disagree with them on and that they’re suddenly going to find themselves prosecuted.”
