Expressing controversial opinions on gay or trans people will not qualify as ‘hate speech’ under new law

Church sermons condemning abortion or homosexual activity, or refusal to acknowledge the preferred gender of trans people, will not qualify as “hate speech” under the new legislation to be brought before the Dáil on Wednesday.

In response to questions about how recent controversies might be treated under the proposed legislation, the Department of Justice said it would not comment on individual cases.

However, in a detailed response to The Irish Times about the aims of the legislation, the department said that it is only “extreme forms of hate speech that deliberately and recklessly incite or stir up acts of hostility, discrimination or violence that will be criminalised”.

“With the right to freedom of expression,” the Department of Justice said, “individuals can hold and express opinions which others might find offensive or shocking. The new legislation recognises that communication is not taken to incite violence or hatred solely on the basis that it involves or includes discussion or criticism of matters relating to the protected characteristics.”

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The protected characteristics under the act are race, colour, nationality, religion, national or ethnic origin, descent, gender, sex characteristics, sexual orientation and disability.

Only someone who sets out to deliberately or recklessly stir up hatred against someone on the basis of one of the protected characteristics will be liable for prosecution under the Act.

“The bar for criminal conviction will be set high, and criminal incitement to hatred will not be an area that anybody will stray into by accident,” the department said.

The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 is due to be tabled in the Dáil for its second stage – comprising the initial discussion of the bill – today. The Minister for Justice Helen McEntee has said she hopes to have the new laws in force next year.

“Once it is enacted and commenced, An Garda Síochána and the DPP will be responsible for investigation and prosecution of any alleged offence under the Act. It will be a matter for the Courts, which are independent of the Department and the Minister, to determine whether the person on charges before them should be found guilty of an offence,” the Department said.