The news that the Government is to strip controversial elements from its hate crime legislation was, in some ways, inevitable.
First of all: what is happening? The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 had a relatively uneventful passage through the Dáil, culminating in April 2023. However, since then, a range of criticisms have emerged, including around the prohibition of incitement to violence or hatred – which makes up part two of the Bill as passed by the Dáil, and which creates a range of offences.
The Government has been accused of “playing to the woke gallery”, with opposition coming from across the political spectrum – and indeed from overseas, where even Elon Musk has weighed in. This gathered pace after the shellacking of the family and care referendums in March, with Government TDs and Sinn Féin reversing ferret on the legislation and calling for it to be radically overhauled, or dropped entirely. Since then, it has been in a sort of legislative limbo, with the Government promising amendments in the Seanad to soothe concerns – but without saying exactly what it will do.
Now we know. Earlier this summer, Helen McEntee quietly received approval from Coalition leaders to remove the parts of the Bill that deal with incitement to violence and hatred, and proceed only with the elements that deal with hate crime. So, it will still provide for higher prison sentences for certain crimes where it is proven that the motivation is hatred or hatred is demonstrated. Assault or damage to property can be aggravated by hatred and there will be tougher prison sentences for this, and if hatred is not proven, a conventional charge can be brought.
Old laws dealing with the prohibition of incitement to hatred, dating to 1989, will remain in force. Government sources said on Friday that where people are targeted because of who they are, perpetrators will get higher prison sentences. “We have to stamp out the sort of vile racist attacks we have seen on our streets, and on our television screens, and higher prison sentences is part of that,” one said.
But the underlying reality is that the political threshold for proceeding with the Bill in its original form is not reachable. A Coalition source conceded: “While there was significant consensus in the Dáil for hate speech laws, with proposals from the Opposition to expand the law further, that consensus was lost.” The Government will assure victims that they are “determined to stamp out hate motivated crimes” and to protect vulnerable communities from hatred being incited against them, and the justice committee may look at the issue again – but that will be cold comfort to those who were hoping for more.
Critics of the Bill will take this as a win, although hanging issues remain – including the inclusion of the term “transgender” and the phrase “a gender other than those of male and female”. This skirmish in the culture war may have some way to play out.
For communities targeted because of who they are, it will be a dark day despite any pleas in mitigation offered by the Government, and they are unlikely to hold back with criticism.
Politically, the move forward will inevitably be construed as a clearing of the decks in advance of an election. The Government will say it has achieved the art of the possible, and that may be a credible defence, but it also illustrates how certain things end up being expendable in the face of cold, hard, political realities.
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