The Irish Parliament has just passed the Hate Offences Bill. The good news, David Thunder says, is this bill does not criminalise hate speech.

The bad news is that the Bill undermines the rule of law, particularly the clarity of law by introducing undefined concepts like “gender” and “hatred.”

By offering more protection to groups with certain characteristics while diminishing protection and introducing harsher punishment for others, it also raises the question of whether the Bill violates the principle of equality before the law which is written in the Irish Constitution.

David Thunder, a native of Dublin, Ireland, is a political philosophy researcher and lecturer at the University of Navarra in Spain. His research, which aims to develop an ethically rich and psychologically plausible theory of politics and social organisation, exposes the limitations of top-down, Statist models of order and the advantages of bottom-up, community-based approaches to the governance of social life.

On Friday he published a short video about Ireland’s “Hate Offences Bill,” officially known as the Criminal Justice (Hate Offences) Bill 2022 which has been passed through both Houses of the Oireachtas (Houses of Parliament). 

Amendments made in the Seanad Éireann (Senate) have been referred back to the Dáil Éireann (House of Representatives) where it will go through some of the stages of debate again before being given to the President, Michael Higgins, for signing into law.

In an earlier version, the Bill included certain “hate speech” provisions that would have made it considerably easier to prosecute people for hate speech crimes, Thunder explained.  “The good news is these provisions have been removed from the current Bill.”

However, there is some bad news too. 

“This bill remains deeply problematic because it contains certain features that undermine rule of law and undermine any sound legal system,” he said.

Last week we published an article which took a deep dive into what the rule of law is in the United Kingdom.  You can read our article HERE.  Unlike the UK, Ireland has a codified constitution. While the rule of law is not explicitly stated in the Irish Constitution its principles and importance are implicit throughout the document.

As the Irish Legal Blog states, “It is a fundamental principle of the Constitution that the State and State authorities must follow the rule of law.”

One of the core tenets of the rule of law is that offences must be clear, precise and publicly available, and must not be overly vague.  This ensures that people can understand their rights and obligations.  The Irish Legal Blog gives the relevant case law (common law) that supports this principle:

In King v Attorney General, offences under the Vagrancy Act, including being a suspected person and a reputed thief, were found to be insufficiently certain, so to constitute a criminal offence for Constitutional purposes.

“[The Hate Offences] Bill undermines the clarity of law in two ways,” Thunder said.

“First of all, a crime may be aggravated – that is it may deserve a steeper penalty – if it’s targeted against a group that is defined by gender, a category that we have no idea what it means because it can mean whatever somebody’s preferred gender is,” he explained.

The second unclear offence within the Bill is that crimes can be aggravated by hatred.  “‘Hatred’ is nowhere defined in the law and therefore we have no idea what it really means for a crime to be motivated by hatred,” Thunder said.

This is not the first time that the Bill has been noted for its lack of clarity. In September 2022, The Times reported that Minister for Justice Helen McEntee had to amend the “hate speech” laws, as the predecessor to the “Hate Offences Bill” was known, after concerns were raised about a lack of clarity on the concept of “hate.”

“Concerns have been raised around a lack of clarity on the detail, such as what “hate” means and what impact the legislation could have on freedom of speech,” The Times wrote.

The current form of the Bill has the same problem.  Changing the word “hate” to “hatred” has not magically addressed the lack of clarity.

Additionally, the new version of the Bill states that a crime can be aggravated by hatred, but it only applies to “hatred” towards specific groups of people.  This raises the second problem – equality before the law.

According to the Irish Constitution, Article 40.1, “All citizens shall, as human beings, be held equal before the law.” This principle ensures that the State cannot unjustly, unreasonably or arbitrarily discriminate between citizens.

“[The Hate Offences Bill]  undermines the concept of equal protection under the law because it gives special protection to certain groups. The average person on the street will be less protected by the law because of this Bill,” Thunder explained.

Another point worth Irish citizens’ consideration is whether positive discrimination – also known as affirmative action which is discrimination – is in play.  It’s unclear whether positive discrimination is expressly unlawful in Ireland but it certainly is unlawful in the UK under the Equality Act 2010.

In England and Northern Ireland, positive action might be used by some companies, for example, to help people who share a particular “protected characteristic” to overcome certain barriers.  However, “employers need to ensure they do this in a way which does not unfairly disadvantage other groups as this could amount to ‘positive discrimination’, which is unlawful,” the UK Government website states.

Further reading: NHS DEI programme is hugely costly and disruptive

You can watch Thunder’s brief video post about Ireland’s Hate Offences Bill below.

Featured image: Irish Minister for Justice Helen McEntee. Source: The Times