It must have seemed like a good idea at the time. In October 2022, the Government introduced the Violence or Hatred and Hate Offences Bill (2022) to the Dáil. It had two main objectives: the first was to make it easier to prosecute hate crimes, and the other was to expand the definition of protected characteristics, such as race and gender, which were covered by the Act. The new Bill – which replaced the Prohibition of Incitement to Hatred Act (1989) – included transphobic speech for the first time.
It is just the sort of piece of legislation any minister or government would want to be associated with; progressive, pluralistic and righteous. Helen McEntee, the Minster for Justice, had been regularly trailing the proposed legislation – which was promised in the programme for Government – for over a year before the act was introduced.
Its introduction followed a public consultation process which drew around 4,000 responses. The Department of Justice then engaged with academics and experts before bringing the details to Cabinet.
There was little debate as to whether a review was needed. It was deemed self-evident and backed up by crime statistics and other evidence. It was a good look. The Government was listening and acting.
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Fast forward eight months and Helen McEntee finds herself being dragged into an ugly skirmish in the wider culture wars by the Bill.
These issues are the sort of navel gazing that only people in affluent peaceful liberal democracies seem to have the time or energy to engage in
The Bill, which had its initial stage in the Seanad last week after passing all stages in the Dáil, will return for detailed scrutiny in the upper chamber in the coming weeks.
McEntee has already had to clarify that if it is passed, we will still have the “right” to offend people and make them uncomfortable. Likewise, we will not be required to use someone’s chosen pronouns if we don’t want.
These issues are the sort of navel gazing that only people in affluent peaceful liberal democracies seem to have the time or energy to engage in. They are also the issues that no middle-of-the-road politician or party really wants to have to take a position on. They are classic wedge issues and whichever way to jump it will cost you votes.
‘Chilling effect’
I doubt it was part of the plan that McEntee has found herself having to explain why the Bill will not have a “chilling effect” on free speech to senator Sharon Keogan, who claims it is “so broad in its scope and casts a prosecutorial net so wide that upon its passing no citizen will ever be entirely sure what they are free to say”.
Keogan, of course, has form when it comes to stoking populist fires and her arguments are easily dismissed as playing to the gallery.
However, criticism by Senator Michael McDowell – former attorney general and minister for justice, Progressive Democrats leader, senior counsel and, last but not least, columnist for this paper – must be taken more seriously.
McDowell’s points resonate with those – and there are plenty – who at best are bewildered by the debate on trans rights
McDowell has sought legal clarity from the Minister as to what the extended definition of gender that has been included – presumably to catch hate crime against transgender people – means.
He has also raised the issue that the stiffening the penalties for hate crimes opens the possibility of people being able to make a citizen’s arrest if they think a hate crime has been committed.
McDowell’s points resonate with those – and there are plenty – who are bewildered by the discussion on trans rights. Likewise, the points about citizens’ arrests chime with what might be called “old fashioned” liberals, also known as people who get out and vote for mainstream parties.
What looked like an easy win for the Government has come back to bite them.
A choice
McEntee has a choice. She can pause the Bill now and try to address both the serious points raised by McDowell and the wider unease generated by the populist dust kicked up by people such as Keoghan. An amended Bill could be brought back in the autumn. The alternative is to push it through with the Government’s majority before the summer recess.
McEntee will probably be mindful that lurking in the background of McDowell’s question about the extended definition of gender is a possible constitutional challenge that would take what has become a discussion about trans rights to a whole new level. There is also the reality that the issues around free speech and gender recognition that have been surfaced by the Bill are not going to go away. If anything, attitudes are becoming entrenched and legislating around them is not going to get any easier. Perhaps it is better to grasp the nettle now?
Despite all of this, you suspect McEntee might be leaning in the direction of pushing it through. The controversy over pay at RTÉ has provided a focus for both public anger and attention. The right-leaning populists who could be expected to make hay out of the Bill being pushed through are probably too busy bashing RTÉ right now.