Hate speech legislation likely in the autumn

Legislation on hate crime and hate speech, which will set a high threshold for a criminal prosecution, is likely to be brought before the Oireachtas in the autumn.

A spokeswoman said that the Minister for Justice Helen McEntee would “publish the Hate Crime Bill in the near future” but with just four weeks remaining until the Dáil rises for the summer, it is likely that it will be the autumn before the Bill is brought before the Oireachtas.

It is expected that the new law on hate speech will set a high threshold for a criminal prosecution. Some lobby groups had argued during a public consultation on the Bill that the test for hate speech should be a subjective one — where a person perceives speech about them to be motivated by hate.

However, in a detailed statement to The Irish Times, the Department of Justice said that to be guilty of an offence under the new legislation, a person would have to intend to incite hatred against a person or group, making prosecutions more difficult.

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“The new legislation will set the threshold for criminal incitement to hatred as intent or recklessness,” the department statement said.

“This means a person must either have deliberately set out to incite hatred, or at the very least have considered whether what they were doing would incite hatred, concluded that it was significantly likely, and decided to press ahead anyway.”

The department also said that the legislation would contain “robust safeguards for freedom of expression” which would include protection for “reasonable and genuine contributions to literary, artistic, political, scientific or academic discourse, and fair and accurate reporting”.

“Prosecution of offences under the new legislation will be, as with all crimes, a matter for An Garda Síochána and the Director of Public Prosecutions,” it said.

It is expected that Ms McEntee will not follow the recommendation of the Oireachtas justice committee which suggested that the hate speech elements of the new Bill be stripped out and brought forward as an amendment to incitement to hatred legislation. It is expected that the dual hate crime/hate speech elements of the Bill will be retained.

Fianna Fáil TD James Lawless, who chairs the justice committee, said: “Legislation can be used to express approval or disapproval of certain behaviours. But the difference between virtue-signalling and effective criminal law is successful prosecutions.”

He said that in its pre-legislative scrutiny report, the committee had “recommended an objective test be used to assess whether a crime was aggravated by hate factors, such as the daubing of graffiti, accompanying racist statements, hallmark type indicators with an attack as a ‘proof’ of whether it was motivated by hate or not”.

He added: “While there is a strong rationale for deterring hateful assaults and protecting minorities that way, hate speech is far more problematic. Freedom of expression remains a core constitutional value and a subjective assessment could prove both very unfair and impossible to police. At a minimum, artistic exceptions would have to exist and the right to robustly debate the issues of the day cannot be criminalised either.”