Apply common sense to hate law
THE Government has embarked on a consultation process to update the criminal law on hate speech and hate crime. This is a welcome development. The operation of all laws needs to be monitored and updated where necessary. The current law in this area is the Prohibition of Incitement to Hatred Act 1989. That law is, therefore, 30 years old. Announcing the decision to update the law, the Minister for Justice, Charlie Flanagan, said Ireland has become a very different society over the past 20 years. That is true. Yet it would be incorrect to assume there are vast levels of hate speech and crimes in this country.
Other than from anecdotal evidence, mostly on online forums, the fact is we do not really know how extensive the problem has become, although there is undoubtedly an issue, according to experts in the area. As an initial step, however, the proper recording by gardai of such despicable acts would provide a better level of insight. For that to happen, of course, those subjected to such crimes need to report these incidents in the first place. A public awareness campaign would be useful in this regard.
The judge who officiates at citizenship ceremonies recently called for new legislation to combat hate crime amid increasing reports of attacks on minorities. It is assumed Judge Bryan McMahon knows of what he speaks. He is, after all, chair of a working group on the direct provision system which accommodates asylum seekers. In that context, he said there had been a “big rise in hate speech”, in particular reference to online forums. The judge also said a lack of government consultation on the housing of asylum seekers seemed to be creating a vacuum which was being filled with far-right “infiltrators”, particularly in the online sphere.
Consultation is always required. Of course such abuse can take place anywhere — on the street, on public transport, on the sports field, as well as online — although it would seem to be particularly prevalent online, where it is mostly, though not always, conducted in an anonymous fashion.
At the end of this current process, it is to be hoped gardai will be provided with sufficient resources and expertise to properly enforce the updated law. There is some evidence to suggest that is currently not the case.
The Garda Commissioner, Drew Harris, recently introduced a new working definition of a hate crime, as “any criminal offence perceived by the victim or any other person to be motivated by hostility or prejudice based on disability, race, colour, nationality, ethnicity, religion, sexual orientation or gender”. This was also a welcome development. It would be interesting to know the proportion of such crimes directly reported by victims.
In updating the law in this area, it also seems inevitable that the issue of free speech will arise. It is to be assumed common sense will prevail in this regard. Policymakers and those policing must be mindful of competing principles. There can be no yardstick of gross offensiveness other than by the application of reasonably enlightened, but not perfectionist, contemporary standards. As has also been said, satirical or iconoclastic or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it, should and no doubt will continue at their customary level, quite undiminished.