Part I: Dawning of the Age of the Omnipotent Victim
In this two-part series, I dissect the Criminal Justice (Hate Crime) Bill 2021 and look at the implications for democracy, freedom of speech and the rule of law.
Short version: The recently published Criminal Justice (Hate Crime) Bill 2021 is a charter for busybodies and ideological agitators to silence those who annoy or irritate them or say things they disagree with.
Longer version: Over 20 years ago, I coined the term ‘Omnipotent Victim’ to describe an emerging phenomenon I had observed at work specifically in the operation of family law courts but also more generally in areas governed by the misleadingly innocuous-sounding concept of political correctness (PC). The idea was that, if someone qualified in one or more respects under a list of protected categories, it was impossible to win against them — no matter what the facts or circumstances — in any context in which State or media actors were involved.
Back then I rather prematurely announced that we had arrived to the Age of the Omnipotent Victim. Franz Kafka, in The Trial, I wrote — all of two decades ago — had made visible the phenomenon of absolute and arbitrary power exercised anonymously, perhaps the great tyranny of the age then just departed. In the age about to unfold, I predicted, the greatest tyranny would be the spectre of absolute power in the hands of the apparently defenceless victim: ‘We stand on the threshold of an era when, by virtue of being black, female, or the claimed sufferer of abuse or deprivation, the Omnipotent Victim will be set beyond justice, morality, fairness and the law, and anyone she accuses will be automatically convicted. In this future, if you come into conflict with someone whom our various ideologies designate as victim, by virtue of sex, race or origin, you had better have your affairs in order in advance of the hearing. Victims are never guilty of anything, and those they accuse never innocent.’
This prediction achieves its fullest flowering in the just-published Criminal Justice (Hate Crime) Bill 2021, long heralded as the imminent introduction of ‘hate speech laws’.
It is not an exaggeration to say that this Bill is perhaps the most radical and the most momentous ever introduced into our country in this state of — whatever it might be called, that might once have been mistaken for freedom. This, finally, is the legal charter of the Omnipotent Victim, a programme for the marginalisation and silencing of the mainstream indigenous population, who will, if this Bill becomes law, become permanently prohibited — under pain of imprisonment — from defending their culture, their values, their children’s birthright, their country, their home.
Normally, laws come into being because of some need emanating from the population, but this is true in this instance in only the narrowest of sense. This law does not arise from any need of the Irish public, even widely defined, but out of the dim depths of political corruption and opportunism, being designed to protect from public comment or criticism the ideologies now festering in the undergrowth of our public life and in particular the unlawful and undemocratic practices that have arisen around mass migration into Ireland over the past two decades.
This Bill seems to be clumsily constructed, contradictory and vague, but this is an exercise in misdirection. It has the appearance of being thrown together, but it is actually cunningly contrived to achieve a nefarious purpose: the unleashing of a legal time bomb that may in due course prohibit just about everything worth saying. It has been drafted by the Department of Justice, clearly with the enthusiastic assistance of a vast array of NGOs, existing and continuing to operate off public funds allocated to the migrant sector.
It was signalled first a few years back by politicians persistently bemoaning the activities of the ‘far right’, a completely fictional entity invented by politicians for the purposes of creating a bogeyman for the moment that is now upon us. The most memorable such episode occurred in 2019, when the then Minister for Justice Charlie Flanagan claimed he had been attacked at the Ploughing Championship by the ‘far right’. What happened was that a young citizen journalist, Niall McConnell, going under the YouTube handle ‘The Irish Patriot’, had attempted to doorstep the minister and ask him a couple of questions about mass migration into Ireland. Flanagan ran away and subsequently went on to RTÉ radio to claim that this supposed attack on him proved the necessity for hate speech laws. Flanagan, who seemed to regard the purpose of the laws as having something to do with putting an end to criticism of himself, was succeeded last year by Helen McEntee, who continued this line of hysterical mendacity, as though the highways and byways of Ireland were teeming with foaming ‘racists; and ‘white supremacists’.
Following the harrowing 2019 attack on Charlie Flanagan, a ‘public consultation’ process was launched, which soon revealed itself as essentially a trawling exercise designed to draw in as many victim groups as possible and fly a kite to test the chances of introducing a package of laws that would, in the name of anti-discrimination, set out to cow the indigenous population of Ireland by putting them under the cosh of an unprecedented set of powers placed in the hands of certain minorities acting in concert under the direction of NGOs, with the desired effect of turning the presumption of innocence on its head in any proceedings in which the law would be invoked.
The ‘public consultation’ document was essentially an exercise in malicious fudge, designed to sow confusion concerning the meanings of words and eliminate all clear distinctions between established legal concepts and certain ideological constructs. It was clear also that the trawling exercise was designed to identify ways in which the State could prosecute people for holding and expressing certain ideas, thereby achieving a chilling effect with view to achieving a climate of self-censorship that would in time largely obviate the need for prosecutions.
The consultation document sought to break down distinctions as to gravity and intentionality, treating ‘hate crime’, ‘hate speech’ and ‘incitement to hatred’ as more or less coterminous concepts, essentially treating any criticism or unfavourable comment in relation to certain categories of person in the same manner as a knife attack that fell short of actual homicide. Similarly, it treated ‘intolerance’, ‘bias’, ‘hostility’ and ‘prejudice’ as if they were not merely identical to one another but also the same as ‘hatred’, ‘incitement to hatred’ and ‘hate crime’. The document had the tenor of being drafted by social justice warriors, or at least displayed little evidence of being drafted by lawyers, certainly not lawyers worthy of the name. It was clear that the document, which can be regarded as an early draft of the legislation, was put together by NGOs operating in the migration industry, which is to say extreme leftist organisations who thrive courtesy of the public purse, which has the collateral benefit of enabling them to summon state coercion to the defence of their ideologies.
The consultation document used as its starting point the Prohibition of Incitement to Hatred Act 1989, which it proposes to amend, treating it as though it were woefully inadequate for some unspecified purpose, and lamenting that hardly any prosecutions had been advanced on foot of it. Because the existing legislation had failed to yield many prosecutions, a new law was now necessary.
‘Given that prosecutions under the Act have been relatively rare, the Department is considering whether the requirement to stir up hatred should be replaced by another term.’
In other words, because little or no evidence of hate crime was to hand, it was necessary to create new definitions — a net with smaller holes — in order to create business for the courts and/or scapegoats for the ideologues.
The Prohibition of Incitement to Hatred Act 1989 had notably avoided extending the concept of ‘hatred’ to include accusations involving alleged verbal attacks on individuals, specifically emphasising ‘not an individual’. This, it becomes clear, was most unsatisfactory from the perspective of those seeking to change things. The consultation document sought to fudge the difference between ‘hatred’ of an individual and ‘hatred’ of a group or ethnicity (specifically: ‘race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation) by virtue of the defining characteristics of such a group or ethnicity. (Herein lie many absurdities, for example the assurance that ‘religion’ includes ‘the absence of religious belief.’)
Moreover, the 1989 Act did not allow for subjective apprehension of a ‘hate’ incident — grounded in, for example, sensitivity, political correctness, etc. It required the incident to involve some kind of threat or an instance of abuse or insult so egregious that it was clearly intended to stir up hatred against a group or an entire ethnicity or sexual orientation etc. To qualify as an offence, the words or material had to be intended or likely to stir up ‘hatred’ against one of a list of protected groups. The term ‘hatred’ was to be understood by its ordinary meaning. One of the objectives of the 2019 consultation process appeared to be the solicitation of views from individuals and interest groups wishing to extend the existing definition to incorporate anything that a ‘protected’ person or group might find objectionable, offensive or even unwelcome.
Centrally, it was clear, the aim of the ‘hate speech’ enterprise is to remove obstacles to prosecutions such as the necessity to prove deliberate intent or directly damaging effect arising from the alleged instance of incitement or hate-mongering.
The 2019 consultation document confided that the Department was already ‘considering whether the need to prove intent or likelihood within the Act should be changed, for example to include circumstances where the person was reckless as to whether their action would stir up hatred.’
Recklessness in this context means that the speaker must be cognisant of the likely effect of his words on the most sensitive, impulsive or neurotic hearer. Given the variety of such personalities that may exist, especially in a culture that has been ‘enriched’ from alien cultures, the only way of avoiding conviction under this category would be to say or write nothing at all. This logic also assumes that the speaker/writer is to be regarded as responsible for the actions, however egregious, of any person claimed (or claiming) to be reacting to his words, even though there may be myriad other factors involved that are unknown, unknowable or not given in evidence.
The necessity to prove intent has long been part of the process of trying even the gravest of crimes, notably murder, as in the mens rea, which concerns the identification of an advance intention or knowledge of the wrongdoing in question. Establishing ‘intent’ is a matter requiring very precise proofs, involving an excursion into the mind and history of the accused. ‘Recklessness’ is something that may be diagnosed by an observer, on the basis of — yes — bias, hostility or prejudice. These are words we shall hear more about, but not so much in this context.
The consultation document was jam-packed with meaningless, tendentious, unsubstantiated blather. For example:
‘The impact of hate speech is especially serious as it has a ripple effect which spreads far beyond the individual victim and can, if not dealt with, lead to a more divided society where entire communities feel unsafe. Hate speech therefore impacts on the cohesion and fabric of our shared community.’
What is meant by the term ‘shared community’? Is a population comprising a (for the moment) larger host population and a series of a (for the moment) smaller imposed, planted populations to be regarded as in any sense a ‘community’? What, here, is being shared? A piece of territory? An island? A sand bank? And, within, for example, a national ‘community’, is there to be no possibility of differentiation as between, say, a large metropolitan ‘community’ and a tiny rural one. Are both to be subjected to the same requirements of ‘inclusivity’ and ‘pluralism’? How long might the average rural community continue under such requirements? Surely ‘divisions’ are more likely to occur because an existing community has been radically disturbed by the intrusion of uninvited outsiders, especially in circumstances where all questioning has been suppressed within that community, on pain of criminalisation and imprisonment.
Is there to be any protection for a host community in such situations, since these would not, generally speaking, qualify as protected groups? What happens if, as a result of the imposition of outsiders, a community is itself subject to the forces of prejudice, hostility and hatred? Is there any protection then for the host community? Or is it to be assumed that members of protected groups are above all hatreds, are in fact ubiquitously angelic in their treatment of other people?
The document also conflates feelings with actions: The fact of thinking something and speaking it is itself treated as a kind of action. Prejudice is treated as though it were unambiguously and invariably bad, whereas it is an everyday aspect of human reality: tea rather than coffee, this shop rather than that shop, this lover rather than the other. Are we no longer allowed to simply dislike certain types of people? Is dislike also to become tantamount to hate?
When the word ‘prejudice’ is used in this context, one would expect to be able to intuit what it means — something along the lines of dislike of certain categories of human person relating to ethnicity, sexual orientation etc., and this likely to lead to unjust treatment or assault. Everyone might be able to agree not merely on some such definition but on the necessity for a law that would punish such wrongful discrimination. But in the ‘hate speech’ context the word is used to denote any form of objection or aversion to, dislike or repugnance of, any individual who happens to qualify as a person imbued with ‘protected characteristics’ — regardless of the context or justification. It might, for example, become dangerous to engage in politically-inspired criticism of Leo Varadkar because he is gay, but safe to criticise Mattie McGrath because he does not belong to any of the protected groups.
And what, in such a context, does ‘inclusive’ mean? What about a hate speech law that excludes those who do not agree with a governmental policy of cosseting certain groups to the detriment of others? What about those who insist on repeating that this cosseting is inflicting enormous, unquantifiable damage on their society, on their community? Is this kind of ‘exclusion’ acceptable? If so, how?
Similarly ‘intolerance’, one of those spell-words that are nowadays used to smear those who views are inconvenient or problematic.
Are we obliged to ‘tolerate’ drag queens imparting sex instruction to our children? Is the phenomenon no longer to be regarded as objectively intolerable to all but the most libertine? Are we now required to ‘tolerate’ female genital mutilation, to keep any objections to ourselves? Who will decide these things? Judges appointed by the same politicians who have put these laws in place?
Must a man who is invited on a date by a trans woman now say yes for fear of being prosecuted because his refusal might cause offence, leading to ‘an offence’? Does this mean we have embarked down a road where it will be forbidden for anyone to refuse a date with anyone provided the soliciting person has some kind of identifiable listed characteristic, such being black or gay? I agree that this seems absurd, but then so do most things emanating from official sectors these days — until a couple of days later when they become enforceable law.
The objective of hate speech laws, declared the 2019 consultation document, is to ‘support a safe, fair and inclusive society’. But it does not appear to have been considered that a safe, fair and inclusive society might not be possible if people are forbidden to speak their minds. There is no attempt to define what ‘inclusive’ means. Does Irish society have an obligation to include anyone who arrives here, no matter the reason or pretext? It does not appear to have occurred to those involved that one way of making a society unsafe is to impose upon it hundreds of thousands of alien persons with no loyalty to the host people or their culture.
We were told that ‘ tolerance and respect for the equal dignity for all human beings is fundamental to Ireland’s identity as a democratic, pluralistic society.’ But nobody had ever asked the Irish people how ‘pluralist’ they wished their society to become. And when did this become a matter of ‘identity’? Who decided this? What does it mean? Is it possible for a society imposing totalitarian controls on freedom of speech to remains ‘inclusive’, ‘fair’ or even particularly ‘pluralist’? Surely the fairest and most pluralist society is one in which everyone is able to say exactly what they think and believe?
Betimes the document moved into the realm of malign fantasy, all the while directed at the host population. ‘Hate speech facilitates, and can lead to, hate crime. In itself it can cause great distress or injury. It validates prejudice and can be used by individuals or groups to organise and campaign for their cause or raise funds to perpetuate and escalate the hateful climate they wish to promote.’
This amounted, in effect, to felon setting by means of verbal gymnastics. Having already assumed that ‘hate speech’ means what they wish it to mean, they go on to infer all kinds of unproven consequences from this concept that has neither been defined nor identified in reality. Already, shadowy groups are summoned up which are likely to engage in ‘hate speech’, leading inexorably to incitement to hatred and hate crime, without a scintilla of evidence being advanced in support of these contentions, yet potentially charging every word of such persons with the possibility of criminality. Here, the initiative reveals its true purpose: to stifle political opposition, to place certain groups, by virtue of their raising questions on certain issues, beyond the Pale. This is, in fact, the sole purpose of the ‘hate speech’ legislation — not to protect minority groups or ethnicities, but to insulate the government/political class from any criticism or questioning about its policies in certain areas, in particular — here — the policy of imposing on the Irish population countless unknown migrants with no love of or loyalty to Ireland.
And now we have had delivery of the Criminal Justice (Hate Crime) Bill 2021, these tentative kite-flying exercises have been made flesh.
‘Hate speech laws’ are the enforcement arm of political correctness, which is the statute of Cultural Marxism. There are many problematic elements within this, but the most urgently so are the trans movement, which promises to do unspeakable harm — spiritual, mental and physical — to the coming generations of young people, and mass inward migration, which threatens to destroy the sovereignty and capacity for self-realisation of the Irish people within a few decades unless something it done to bring these drifts to a halt.
It should not be necessary to say this, but in the dishonest, bullying, moronic cacophony generated around these issues by mendacious politicians covering their corruption, vested interest both economic and ideological, hypocritical pastors misquoting their churches’ teachings, and the ubiquitous journaliars who act as ringmasters for the entire sick circus, it becomes necessary.
To oppose mass, uncontrolled inward migration, unleashed by politicians who never sought a mandate for it, and imposed on existing communities who have spent sweat and blood in building up a safe home for their children, is not the same as opposing immigration. People have always come to Ireland and have invariably been welcomed. Neither ethnicity nor colour has been an issue for most people. We welcome people who come to our country in respect and hope, seeking to build a life for themselves here. But we would like to know who they are, why they come here, what their intentions are, and what they propose to do to assimilate themselves into our way of life. That is not unreasonable. The politicians, vested interests and journaliars know this full well, but citing facts does not meet their need to create bogeymen — the ‘far right’, ‘white supremacists’, ‘racists’, all imported concepts which have no currency here other than a mendacious one. The ‘hate speech laws’ are their way of bringing things to a new and final level: If this Bill becomes law, there will in future be no means of resisting what is planned for our country; and then, in due course, all its people, whatever their colour or creed, will have cause in time to mourn the inevitable consequences of that.
The central identifiable characteristic of the advance indicators as to the likely content of ‘hate speech laws’ was something like the pursuit of a new frontier in criminalisation, which might be defined as the subjectivisation of the concept of offence. An ‘offence’ would become something that is taken rather than given. The ‘victim’ could lodge the complaint him/herself or it could be lodged by a third party, a witness to the alleged ‘offence’, with or without the knowledge or consent of the ‘victim’. Such laws promised, in other words, to be a charter for busybodies and ideological agitators to set about silencing those who annoyed or irritated them or said things they disagreed with. The objective, quite clearly, was to define an offence or offences — in the legal sense now — that would not require the accuser to demonstrate any level of intent on behalf of the alleged perpetrator, the entire focus being on the sense of offence — the potential for hurt or harm, the hurt feelings — of the alleged ‘victim’. These indicators and mutterings ought to have given grave cause for concern to any sentient person, requiring no more of a complainant than that the ‘victim’ qualify under one or more of a series of listed categories of protected species, that something ‘offensive’ had been said to or in the presence of that person, and that the accused person had said (or written) it. In short, the proposal was to introduce a measure that would in time lead to the deletion of the constitutional guarantee, expressed at Article 40.6.1° of Bunreacht na hÉireann in which the State ‘guarantees liberty for the exercise of the . . . right of the citizens to express freely their convictions and opinions.’
It is clear that almost all the measures included in the Criminal Justice (Hate Crime) Bill 2021 are prima facie unconstitutional, but the past year has told us that the judiciary, almost to a judge, has no interest in upholding any longer the fundamental rights of the indigenous people of Ireland. Indeed, much of the content of this Bill would actually reverse the onus of proof concerning both intentionality and consequences in relation to alleged incidents of ‘hate speech’, requiring the accused to exonerate himself or be presumed guilty as accused — a total reversal of the spirit of Article 40.6.1°.
How the final draft of the Bill deals with these dimensions of the proposal is both interesting and deeply scarifying. It pulls back, for the most part, from putting into writing the precise degrees of absurdity intimated by the advance publicity in such as the ‘public consultation document’ of 2019. However, it essentially translates the same underlying purposes into a series of provisions that really amount to the same thing. It achieves this by maintaining the various fudges and verbal conflations outlined above and also by an odd mechanism whereby the Bill is studded around with a series of ‘notes’ that appear to be by way of direction to a court as to how circumstances and evidence are to be weighed, weighted and interpreted. As the title of the Bill suggests, ‘speech’ and ‘crime’ have been conflated, as — predictably — have ‘hatred’, ‘hate speech’ and incitement to hatred, as well as ostensibly more political words like ‘prejudice’, ‘bias’ and ‘hostility, which here all amount to much the same thing.
The definitions inform, for example, that ‘hatred’ means ‘detestation, significant ill will or hostility, of a magnitude likely to lead to harm or unlawful discrimination against a person or group of people due to their association with a protected characteristic.’ ‘Prejudice’ is deemed to be an aggravating factor, and ‘bias’ appears to be regarded as an active motivating ingredient within the concept of prejudice.
There are two discrete sections to the Bill: ‘Incitement to Hated’ and ‘Hate Crime’. The Bill creates new offences of incitement to hatred to replace the offences in the 1989 Prohibition of Incitement to Hatred Act, which is being repealed by this Bill.
Under ‘Incitement to Hatred’, it will be an offence to communicate something ‘to the public or a section of the public by any means, for the purpose of inciting, or being reckless as to whether such communication will incite hatred against another person or group of people due to their real or perceived association with a protected characteristic.’ This, the notes to the Bill make clear, ‘prohibits communicating with the public by any means, where the purpose of the communication is to incite hatred, or where the person is aware that there is a significant risk that the communication will incite hatred.’
Someone convicted under this section will be (summary conviction) subject to a class A fine or imprisonment for a term not exceeding 12 months, or both, or (on indictment) to a fine or imprisonment for a term not exceeding 5 years, or both
A person will be guilty of an offence who ‘publishes or otherwise disseminates, broadcasts or displays to the public, or a section of the public, images, recordings or any other representations of a relevant communication.’ Such a person will be subject on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months, or both, or on conviction on indictment, to a fine or imprisonment for a term not exceeding 2 years, or both.
The section dealing with such publishers allows for a ‘defence’ under various sub-headings:
That the material concerned consisted solely of
- a reasonable and genuine contribution to literary, artistic, political, scientific, or academic discourse,
- an utterance made under Oireachtas privilege,
- fair and accurate reporting of court proceedings,
- material which has a certificate from the authorising body, in the case of a film or book,
- a communication necessary for any other lawful purpose, including law enforcement or the investigation or prosecution of a hate crime offence.
These exceptions apply only to offences relating to accused persons collaterally involved in publication. There is no defence where the person communicating is deemed to have deliberately or recklessly ‘incited hatred’.
In the case of dissemination of material by a body corporate, it shall be a defence for that body to prove that it has in place ‘reasonable and effective measures to prevent dissemination of communications inciting hatred generally’, that it was complying with those measures at the time, and that it was unaware and had no reason to suspect that the particular content complained of was intended or likely to incite hatred. This is intended to provide a reasonable avenue for companies (including social media companies) who are engaged in good-faith efforts to deal with material inciting hatred, but who, despite their best efforts, missed a specific piece of content. There are a couple of things to note about this defence: firstly that it does not apply where there is deliberate or reckless incitement by the company, and secondly, it only applies where all three tests are met (reasonable measures, being applied properly, and no knowledge that the specific content at hand amounted to incitement).
In the case of dissemination or distribution of material by an individual, it shall be a defence for that individual to prove ‘that they (sic) were unaware and had no reason to suspect that the communication concerned was intended or likely, in all the circumstances including the manner in which they (sic) either obtained or disseminated it, to stir up hatred.’
Here, too, an inversion of the presumption of innocence is achieved. There will be a rebuttable presumption in such prosecutions that the person responsible was aware of what the material contained and what it meant, and that, in the event of its publication, was aware that this would occur. The prosecution does not have to prove that a person knew what their material contained. Unless the person can show, on the balance of probabilities, that they didn’t know what the material contained, then it can be presumed that they did. Secondly, the prosecution does not have to prove that the person knew what their material meant, and thirdly, where a person posts material on a public forum (on their social media account, for example) the court is entitled to presume that the person knew it would be public.
The Bill also provides that a person may be found guilty of such an offence regardless of whether or not the communication the subject of the offence was ‘successful’ in inciting any other person to hatred, or whether or not any actual instance of harm or unlawful discrimination is shown to have occurred, or to have been likely to occur, as a result. In other words, this is not a standard incitement-to-hatred provision, but a provision that nothing may be said by any person that, in the opinion of a judge, might have led to some unspecified person doing something ‘harmful’ or ‘discriminatory’.
A bizarre note is included in the Bill, elaborating that the provision is ‘designed to ensure a person can still be found guilty of incitement to hatred even if no imminent harm to any other actual person occurred as a result of their actions. The ‘notes’ ‘explain’: This is designed to cover situations where, for example, those present are sympathetic to the victim, rather than siding with the perpetrator. The offence of incitement to hatred, as defined here, is composed of the mental element (intent or recklessness) and the act (communicating with the public or a section thereof) and does not require any actual consequences as a result of that act in order for the person to be guilty.’
Eh? This would seem to mean that the law here depends on the ‘sympathies’ of witnesses, a new dimension in law-making, implying what seems the unavoidable effect of placing interpretation of the entire matter in the hands of the ‘victim’ and/or any bystanders who happen to be present at the time of the incident. In this context the law provides for ‘[e]vidence of the perception of any victim or witness to the event as to the motivation of the defendant’ — i.e. the witness will be required not merely to give a factual account of what he or she observed, but to interpret these events on the basis of ‘perception’. This bizarre provision within the notes appears also to leave it to witnesses to the alleged ‘hate’ incident to decide how serious the episode was, how deliberate the intent of the alleged perpetrator and the extent of the ‘prejudice’, if any, that may have been involved. Just, one presumes, to make sure that no prosecution ever fails.
This, of course, makes the Bill not merely a charter for busybodies and ideologues, but also a charter for silencing anybody who might be disposed to say anything with the potential to ‘offend’ persons or groups of particular ideological hues, or persons and/or groups identifiable by ‘protected characteristics’, or publicly to discuss any controversial topic impinging or touching upon the concerns of demands of such individuals or groups. This will have the added effect that, in matters where the authorities — State, government, political class or other entity with the capacity to wield or usurp state power — seeking to advance any cause, issue or measure under cover of the alleged interests of a listed minority defined by ‘protected characteristics’ under the understandings set down in the Bill, will be able to insulate themselves from all political criticism or public debate on that matter.
The interpretation of the words used will be entirely in the gift of the victim or witness(es) The pleaded intentionality of the accused, by his own telling, will be irrelevant.
The Bill also provides that a prosecution may take place regardless of whether or not the accused person was physically present in the State when the offence occurred, or whether or not the offence involved material hosted on an information system in the State, or whether or not any person to whom the material the subject of the offence was disseminated was physically present in the State.
This provision might more economically be rendered as: ‘A prosecution may proceed concerning any person, anywhere in the world, which concerns a complaint by any person, anywhere in the world, about material published or posted anywhere at all.’
There is also a range of new categories of offence concerning assault, harassment, coercion, bodily harm, endangerment, criminal damage etc., when ‘aggravated by prejudice’. The Bill also contains amendments to several related Acts, including The Non-Fatal Offences Against the Person Act 1997 and The Criminal Damage Act 1991, and The Criminal Justice (Public Order) Act 1994.
There is a new offence of ‘denial or gross trivialisation of crimes of genocide’:
A person commits an offence who publicly condones, denies or grossly trivialises any act falling within the definition of a ‘genocide’ in Article II of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention).
Humour will not be a defence, nor will irony. Fact will not be a defence. Someone who says that Islamists have been responsible for stoning women to death for adultery will be liable to prosecution and conviction of the statement is heard by another person who has been or claims to have been offended.
An Irish Times report published in December 2020, in advance of the publication of the Bill suggested that this would not be the case, that, ‘unlike in the UK, the test for hate speech will be objective rather than subjective.’
In the UK, the report by the paper’s Crime Correspondent Conor Gallagher continued, ‘speech can be treated as hateful if another member of the public believes it to be hateful. However under the Irish proposals, specific and pre-existing guidelines will be used to determine if speech is hateful, not just whether the alleged victim felt they were the victim of a hate attack.’ Wrong again.
In fact, the ‘notes’ make clear that the Bill is primed to achieve the same end as the UK laws, albeit by a more subtle mechanism. It is clear that the drafters, perhaps forewarned by the advance incredulity that met the suggestion that the laws might be based on the subjective apprehension of an ‘offence’ by ‘victims’ or ‘witnesses’, have couched the same kind of instrument in a slightly different form, in effect floating the unmodified boat on a different pond. Here, much of the heavy lifting is done by the ‘notes’ with which the Bill is punctuated, these clearly being intended to steer the thinking of those who will adjudicate in such proceedings, be they judges or juries. The overall effect is to abolish legal niceties and distinctions and replace them with an ideological language designed to weaponise now widespread views about what is acceptable speech or thought.
This Bill comes after a long softening-up process wherein it has been repeatedly insinuated, by politicians and their tame journaliars, that stating an opinion with the potential to offend — or indeed provoke a strategic ‘taking of offence’ by members of listed victim groups — is equivalent to a violent crime against someone on the basis of ethnicity, religious belief or skin colour.
It is hard to see how or whether there can be any line of demarcation in this for distinguishing between criticisms which relate to what might be termed genuine hatred of a particular ethnicity and, for example, critiques of the actions or performance/behaviour of a member of such ethnicity who him- or herself would normally be subject to public debate and criticism but is able to claim that the motive behind the criticism is, for example, ‘racist’, ‘sexist’ or ‘homophobic’. Feminists have been pulling this trick for decades, yelling ‘Misogynist!’ at the merest intimation of questioning or criticism, but now it will be possible for — to take a random example — a politicians of foreign extraction to say that the only reason he or she is being criticised is because of his or her ethnicity. There does not appear to be anything in this Bill that safeguards against this possibility.
This Bill, if passed, therefore has the potential to impose a terminal chill on public dissent or debate on just about anything of significance relating to the agendas currently being promoted by lobbyists, NGOs, politicians and journaliars. Even the word ‘journaliar’ will in the future become unsafe unless directed at a straight, white, Christian, able-bodied male, and even then, ideally, in the absence of witnesses.
* The second part of this two-part essay will be published this coming weekend.