“Will carrying a placard stating “Men cannot breastfeed” warrant a hate speech investigation or up to five years’ imprisonment, a lifelong label as a criminal hater and all of the stigma and life limitation that goes with that? Nobody actually knows,” Senator Ronan Mullen said during hate speech bill second stage debate in the Seanad

Senator Rónán Mullen

I congratulate the Minister on her return and on the joy that led to her absence.

I want to quote something for the Minister: “I believe my new Hate Crime and Hate Speech Bill will contribute in a very real way to allowing everybody in Ireland to live without fear, to live the most authentic version of themselves.” That is something the Minister tweeted on the day she introduced this Bill in the Dáil. I do not believe she tweeted it today. It would be very strange if she did because, in a very real way, her Bill has contributed to the fear among many ordinary people that if this legislation passes there will no longer be clarity on what they may say using robust freedom of expression – expression not intended to harm people but expression that might certainly offend and that could be called hate speech, as such expression frequently is.

With regard to the very word “hate”, which is at the core of the Bill, the sensible thing for the Minister to do would be to separate out the hate crime dimension of Bill, which is what she says needs to be dealt with in line with international standards. She would get this through in a heartbeat. If she were seriously interested in consultation, she would separate it and put it through. We could return on another occasion to tease out the issues of hate speech. Fundamentally, it is not the incitement-of-violence dimension of the Bill that worries anybody here – we are all against that and hate crime and accept what the Minister is seeking to achieve in this area – but the incitement-to-hatred dimension, because the Bill leaves “hate” undefined. I wonder why that is.

The Minister’s predecessor, Deputy Harris, reminded us that the view of the Department of Justice is that hatred is a commonly understood concept in law. Deputy Harris said he did not wish to be overly prescriptive because he wanted to avoid the unintended consequence of actually raising the bar for a successful prosecution. Without any further guidance, we can only presume that the current Garda understanding of hate will apply. That definition, insofar as it relates to non-crime incidents, covers any non-crime incident that is perceived by any person to be motivated, in whole or in part, by hostility or prejudice. Is that to be the subjective standard for investigating and harassing citizens?

Is that to be the subjective standard for investigating and harassing citizens, namely any incident perceived by any person to be motivated by prejudice? Is the Bill to be a licence for cranks and the easily offended? I hear Senator Ward’s “Trust me I’m a barrister” approach to the Bill. Frankly, to paraphrase Ronald Reagan to Mikhail Gorbachev, let me tell you why we do not trust you. It is because he has come in here with college debate level denigration of the sincere concerns of many, concerns that have been forcefully and relatively articulately expressed by a broad range of people in recent times. His response is to denigrate them and then tell us that he will listen carefully nonetheless to what is proposed.

Senator Barry Ward

Will the Senator take a point?


Senator Rónán Mullen

No, I certainly will not. The Minister said the Bill is about tackling extreme forms of hate. Her officials seek to reassure the public. It is not. The Bill is about tackling anything understood as hate, be it mild or extreme. On pages five and six of the Minister’s speech she seeks to reassure us by reiterating that the Bill has been drafted to criminalise only the extreme form. The term “extreme” is deliberately not mentioned in the Bill. The Minister’s speech refers to “incite or stir up”, something that is not mentioned in the Bill. I cannot understand why her officials put that in her speech. I am not accusing her of anything here, but it is a deception to use language like that when it is not in the Bill. The Minister’s presentation of the Bill on Second Stage to the Dáil and the reassuring language, some of which she has repeated here, is not in the language of the Bill.

She said at the time that, “While individuals can hold and express opinions that others might find offensive or shocking, I want to make it clear that”, but, as I have said, the phrase “stir up” is not in the Bill. She has lowered the threshold. Indeed, she said that is her intent. The Government has said it wants more prosecutions. The Minister understands and knows there are international understandings in this regard from the Council of Europe in September 2022. It stated that measures to combat hate speech should be appropriate and proportionate to the level of severity of its expression and that some expressions of hate speech warrant a criminal law response while others call for a civil or administrative law response or should be dealt with through measures of a non-legal nature. There is nothing of that nature in the Bill. The Minister has gone for the extreme end of social sanction, namely criminal law, to target people’s speech.

We are all against incitement to violence and hatred of a kind that can harm people, but there is an absence of a definition of hatred. We are in a society dominated by cancel culture where people are frequently accused of being haters for expressing points of view that are not hate but simply robust expressions of opinion. Some of us had the honour of listening today to Dr. Helen Joyce who briefed some of us. She is the Bray-born author of Trans: Gender Identity and the New Battle for Women’s Rights. She and many others have been cancelled and denied a forum in university for simply speaking the truth about gender. She is one of the many people who have concerns about the impact of this Bill. I do not know if she is in the Gallery, but I would welcome her if she is because she has done the State some service by her work.

What about a definition of hatred, since there is such a thing as extreme hate speech and hate speech that should be dealt with through measures of a non-legal nature? What about a definition to put people at ease? Let us not hide behind the hope of a benign prosecution service. When the social media mob is on the rampage, the Garda and the prosecution service will have little choice but to pursue the Graham Linehans and JK Rowlings of Irish society for robustly expressing their points of view.

Of course, I should not have to make this plea. Freedom of expression is a fundamental human right. Without it, there is no free exchange of ideas at all levels within society. In short, there is no democracy. That is why we use the term “fundamental”. Freedom of expression does not just apply to information or ideas that are favourably received or regarded as inoffensive or a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. That, again, is from the Council of Europe but there is no nod to that kind of standard in the Bill.

The Minister’s office’s letter to an inquirer suggests that freedom of expression can be limited or restricted by law for compelling reasons, including protecting other fundamental human rights, but the right not to be offended is not and never will be a fundamental right. One can sense in the Bill, and I hope I am wrong on this, a surreptitious attempt to set a new international standard, one which might be applicable to all social media companies and their users across Europe. There is no doubt that undefined hate speech creates a dilemma for social media companies which, conscious of Irish law, will be obliged to err on the side of caution and thus bring down a dark pall on freedom of expression throughout Europe. That is what is called the chilling effect and it is that which has so many people worried about the Bill.

It is not, in the end, a question of who will be prosecuted to the point of being convicted. Rather, it is about who will be prosecuted or harassed in the first instance by the forces of law and order and put through a process which is, in itself, the punishment, simply for robustly expressing a point of view. It is not those of us who have parliamentary privilege, but the ordinary Joe or Jane who perhaps does not always express themselves as eloquently as us – perhaps they express themselves rudely or crudely – who have the right to express themselves in a democracy who will be affected. It is important that we are able to tolerate things that offend our ears, provided, of course, that they are not harming people or exposing people to harm. The Minister has put no such test into the Bill. It includes a word she refuses to define.

Whatever about “hatred” being undefined in the 1989 legislation, it is much more serious that it is undefined now because we are in the context of cancel culture where people are trying to shut each other down. It is precisely because of that that the expansion of the legislation includes a radical new definition of “gender” that, to my mind, is at the core of this Bill. We are right in the middle of the culture wars. We are in the very place where people want to close each other down. One does not expect the Government, frankly, to present a revolutionary new definition of such an important term as “gender” in a criminal law Bill. It is unprecedented. It has not been discussed to date. It escaped Dáil scrutiny and, despite the attempts of me and other Senators to find out from the Minister’s predecessor what the definition means, we have been unsuccessful.

I would like us all to pause for a moment to take this in. Gender will now mean:

“[T]he gender of a person or the gender which a person expresses as the person’s preferred gender or with which the person identifies and includes transgender and a gender other than those of male and female

In the 2015 legislation, transgender meant people chose one or other of the existing genders. This redefines all that and creates further new realities. There are about 105 genders listed on the Internet, including agender, acegender, androgyne, apogender, astronomique, cookie gender, gendercat, fluid queer, one that I cannot politely render here, hyperfluid, etc. All of this is now being landed in the middle of a criminal law Bill where somebody could be attacked for being a hater for stating in robust, but necessarily robust, terms that not only is this nonsense but it is dangerous nonsense that puts children at risk when it is imported into the curriculum of schools. The NCCA was moving in that direction when it originally spoke about presenting gender as a spectrum. All of this stuff that is not evidence based and has parents worried around the country has been landed in the middle of a hate speech Bill which does not even define “hatred”. The Minister is wondering why people are worried about their freedom of expression in a democracy.

Insofar as this means anything, the gender binary is no longer what the State wishes to protect. Rather, it is the opposite. The time-honoured scientific binary definition will no longer be the preferred one under this Bill. It is not simply that a new understanding of gender is being recognised; it is being afforded the title of protected characteristic which leads to questions about whether consistent non-conformity to preferred pronouns will bring the threat of prosecution on someone. Will mocking memes be tolerated? Will robust campaigning by parents against inappropriate school curricula be allowed? Will carrying a placard stating “Men cannot breastfeed” warrant a hate speech investigation or up to five years’ imprisonment, a lifelong label as a criminal hater and all of the stigma and life limitation that goes with that? Nobody actually knows.

Someone intimated that the conflation of gender, gender expression and gender identity arose as an attempt to limit the number of protected characteristics. As I have said, in the light of what I have said it has done nothing but extend the risk. It is the vagueness at the heart of this Bill and the non-definition of “hatred” that is the real weapon because it creates uncertainty in ordinary people’s minds about what they may or may not say in a cancel culture where people are called haters and people pile on people if they say something that is unpopular and call on the Garda to investigate. There is all of that pressure. Existing legislation could be carefully amended, including the 1989 legislation. Public order legislation could be amended if necessary to bring about an increase in the number of prosecutions we have been told the Government wants, without giving us any practical day-to-day examples of things that should have been prosecuted successfully but which were not.

For all of those reasons it would be impossible for people concerned about this Bill to accept it on Second Stage. I sincerely hope that the Minister and her officials will have a rethink about what they are putting through the Seanad in these days. Go raibh míle maith agat.