London QC Ivan Hare has written a detailed 22-page response to the ongoing review into “hate crimes” in the Province, saying what is needed is a straightforward, binding guarantee that people’s right to freedom of speech will be protected.
He warns of the potential of a “chilling effect”, where people would will “self-censor” in order to avoid any risk of possible prosecution under the law – saying the situation at present is bad, and could get even worse if the boundaries of “hate crime” law are stretched further.
He drew up his analysis at the behest of the Christian Institute – a UK lobby group which describes itself as being a “Christian influence in a secular world”, and which is probably best-known for backing Ashers bakery during the so-called “gay cake” saga.
The current case has its origins in June 2019, when the Department of Justice (DoJ) announced that judge Desmond Marrinan would carry out a review into the scope and effectiveness of “hate crime” legislation in the Province.
That review is still going on, and at the heart of it are efforts to draw up “ a workable and agreed definition of a hate crime”, and to consider “whether new categories of hate crime should be created”.
Mr Hare argues in his analysis that, as the law currently stands, “the offence of incitement to hatred on grounds of religion or sexual orientation in England and Wales is very substantially narrower than that in Northern Ireland”.
He goes on to add that “the contrast is likely to become greater still if Judge Marrinan recommends extending the protected grounds” covered by existing Northern Irish law “to include gender identity”.
If that happens, he warns that “some of the debate around, for example, accommodating transgender women in female prisons or in women’s hostels may expose the speakers to the risk of criminal prosecution”.
Fundamentally, he argues that England and Wales have introduced “explicit protection for freedom of expression in the offences of incitement to hatred on religious grounds and separately on grounds of sexual orientation” – and this therefore “renders free speech in Northern Ireland more vulnerable to infringement than in England and Wales”.
He goes on to say that the need for a clear commitment to free speech is so transparently plain that he does not even intend to elaborate on it, saying: “The relevance of the absence of a freedom of expression clause is too obvious to require lengthy exegesis.”
Mr Hare was the editor of a 2011 Oxford University Press book entitled ‘Extreme Speech and Democracy’, which looks at modern-day curbs upon expression.
In a statement accompanying the legal analysis, the Christian Institute’s Simon Calvert says: “His commentary on the Marrinan Review confirms our fears that Northern Ireland law is already open to misuse by those who want to shut down debate, and that introducing swathes of new ‘hate crimes’ would make the situation much, much worse.
“Whatever your views on politics or religion, we can all agree that the law should protect our ability to have a robust debate. Otherwise you just end up giving one side a stick with which to beat the other. That is divisive and counter-productive.”
As the News Letter has previously reported, the Presbyterian Church is so concerned about the effect of “hate crime” law on practising Christians that it has asked judge Marrinan to ensure quoting the Bible does not become illegal.
Specifically, the church has called for “clarity that the legitimate use and exposition of scripture, even in an online environment, is a protected right in itself and does not constitute a hate crime”.
The Church of Ireland response to the consultation was strikingly different, replete with terms such as “intersectionality” and “dog whistling” which have come to be associated with what is often described as “identity politics” activism.
The Church of Ireland said that hate crime law should indeed be extended further, adding: “It should be sufficiently defined as to recognise the existence of and protect cisgender people but also intersex, transgender and non-binary people.”
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