Former attorney general, Senator Michael McDowell SC pointed this out during the second stage debate on the proposed legislation in the Seanad. Senator McDowell is a senior counsel and he is concerned that this legislation passed in its current form will have a chilling effect on free speech.
This is the full transcript of what he said:
A kinder society and a moral society are not necessarily the same thing. One can be unkind and offensive. Free speech, sometimes, is offensive to other people and people legitimately cause offence and take offence from free speech. A guarantee of free speech without the right to offend has, on many occasions, been described by people across civilisation as worthless.
The same applies to minority opinions.
This legislation proposes to criminalise some behaviour. In particular, section 7 states that if “the person behaves in a public place in a manner that is likely to incite violence or hatred against a person or a group of persons on account of their protected characteristics … and the person does so with intent to incite violence or hatred against such a person or group … or reckless as to whether” that behaviour will cause that kind of reaction, they commit an offence punishable by five years’ imprisonment. As a result of that, two things happen under the Criminal Law Act 1997. First, a member of An Garda Síochána can arrest and detain them and bring them to a Garda station, where they can be detained under the provisions of the Criminal Justice Act 1984. Second, any citizen can arrest them if he or she believes they are actually committing an offence under the section. To create such an offence without it being clear to everyone what is constituted by the term “hatred” is very dangerous.
Some people may say that a behaviour, for example, outside a synagogue, was calculated to cause hatred to the Jewish population using their synagogue, who then attempt an arrest, or a member of An Garda Síochána may do so in the same circumstance.
We are putting in place the legal basis for those arrests and for detention of people on the basis of the view taken as to whether there is reasonable cause in the mind of an ordinary citizen or a member of An Garda Síochána that they are witnessing the commission of an offence under this Act.
Is it reasonable to accept the word of two Attorneys General that it would complicate things if we attempted to define the term “hatred”?
As a former Attorney General, I see that it probably would complicate prosecution and would possibly do what the Minister said it would – make it more difficult to prosecute in some cases.
Why would it do that? If “hatred” is defined as being a particular level of intense opprobrium or disgust or some other formula proposed in Dáil Éireann, are we saying that something less than that will suffice for “hatred”? In the last analysis, if a definition of “hatred” is provided, a judge will determine whether the prosecution has established it.
To say to members of An Garda Síochána and members of the public, who have a power of arrest, that you do not want to define “hatred” because everyone knows what it means is a very bold statement.
The funny thing is, it is not just me saying that – the United Nations Human Rights Council specifically stated that if incitement to hatred is to be criminalised, the term “hatred” should be defined and, indeed, the term “incitement”. This is part of the Rabat plan of action, adopted in October 2012. It is not just me saying that I want a definition of “hatred”.
“Hatred” could mean an awful lot to an awful lot of different people. Senator Flynn spoke recently about the necessity for this legislation, referring to a particularly repugnant incident in which she was involved relating to a taxi journey.
Was hatred involved? She may have thought there was hatred by the driver towards her but, on the other hand, is that an objective test?
At what stage should a judge say that this is what the Legislature meant when it prohibited the behaviour likely to incite hatred?
I intend to table a fair few amendments. I also wish to stress to the Minister that the 1989 Act is clearly past its sell-by date, not because there have not been enough prosecutions under it but because it belongs to a different era and is to do with what happens in public spaces and outside the home and does not take into account the Internet at all.
I accept that we must modernise our law to stop rabid anti-Semitism being spread via the Internet with a view to causing hatred against Jews and other religious and racial minorities. Every time I hear people talking about hatred and violence and the like, I have not heard many of the NGOs that complain about this talking about the violence and threats of violence levelled at people such as journalist Mary Kenny if she went to Limerick to speak to the students.
Riot squads have to be deployed to protect some people because they want to exercise their right of free speech. I echo what Senator Mullen said; in the days of a cancel culture, violence and the threat of violence are not a one-way street. The amount of vile vituperation against people by members of minorities and protected minorities or self-appointed spokesmen for particular varieties of protected minorities launched anonymously at people who they say are homophobes, transphobes and the like on social media is significant. I do not hear protestations that they need protection from anybody. Whether they are authors or lecturers or whatever, they are only being attacked for expressing a view, for example, on the subject of transgender and as to whether it is a viable concept. They are only being attacked for their views on that matter, in the most trenchant terms – they are being cancelled, there are near riots if they go to speak in places and hotel meetings are held in secret lest they be disrupted. Who is standing up to speak for freedom of speech?
If we bring in a law that states that somebody stands up in public and a member of An Garda Síochána or a member of the public with a camera takes a clip of what has been said has the right to detain that person, who is going to say there is not going to be a chilling effect, especially when there are people who will resort to violence to prevent people articulating a view hostile to theirs?
In the last half-minute I have, I wish to say that this Bill must be amended. It is not in good shape.
It emerged from Dáil Éireann on a wave of generalised support. It has come before us in a state in which it can be a charter for freezing genuine free speech and prevent people from articulating unpopular views, such as J.K. Rowling’s or whosever they are. She is entitled to express her views and not to be arrested by a citizen or garda. Saying that, when it comes to court she will have all her protections.
Going to court to defend your remarks in public and being acquitted is a pretty horrific experience for most people. Most people will take many steps to avoid the danger of being prosecuted and shut their mouths. It has been referred to in this House by Senator Chambers.
People in this House feel constrained about what they can say on certain topics. This because on both sides outside of the House, there is such a violent reaction on social media and in the conventional media. I want to say that I have no objection to this Bill being brought forward because the 1989 legislation is in need of radical overhauling. I have no objection to a Bill that prevents the abuse of free speech to create a violent threat against minorities in our society.
However, we must go through the Bill line by line and with huge care to ensure it does not have the effect of having people being dragged before courts by citizens and members of An Garda Síochána who have a particular view of what is or is not hatred, because we were too lazy to define our terms.”