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Secular and faith based groups have both expressed alarm at the proposals published by Justice Minister Naomi Long. Her proposals are similar to a Scottish hate crime bill which prompted the Scottish Police Federation to warn that it risked forcing members into “policing of what people think or feel”.

In 2020 the judge leading NI’s hate crime review, Des Marrinan, recommended abolishing ‘protected speech’ in private dwellings on issues such as race, sexual orientation, transgenderism and religion. Instead he proposed introducing legal protections for “private conversations”.

His recommendation is now included in Department of Justice (Doj) proposals for a Hate Crime Bill, however critics are concerned that the police and courts could now end up deliberating on what does and doesn’t constitute a private conversation in NI living rooms as part of hate speech prosecutions.

The proposed criminal offence would be “stirring up hatred” against people on the basis of their race, nationality, religious belief, sexual orientation or disability, by using “threatening, abusive or insulting words or behaviour or.. written material”.

However critics are alarmed at proposals to end the presumption of privacy in one’s own home - and claim that there can be no easy definition of what the law would define as private and non-private conversations in a private dwelling.

Similar proposals in England and Scotland have caused alarm and protests from some journalists, lawyers, MPs, campaign groups, comedians and police representatives.

The concerns have particularly been raised in the wake of heated public vitriol being poured on public figures such as JK Rowling after she expressed personal opinions on transgender issues.

Simon Calvert, a Deputy Director at The Christian Institute, claimed that Judge Marrinan had made no case for removing the private dwelling defence - and emphasised the difficulty of defining in law what would qualify as a private conversation.

“The dwelling defence is well established and there is no evidence of it currently causing any problems,” he said. “The Marrinan report gave no specific cases of the dwelling defence getting in the way of a justifiable prosecution. They are offering a solution to a problem that does not exist.

“The home should be a sanctuary for discussions and debate without fear of police intervention. You can’t have the police arbitrating on what can be talked about around the dinner table.

“The DoJ talks about replacing the dwelling defence with a ‘private conversations’ defence. We think the dwelling defence should be retained and additional protections introduced for other private conversations.

“The dwelling defence should be retained to protect familylife, even if further protections for private conversations are brought in. Defining a dwelling is far easier than defining a private conversation. The difficulty of defining ‘private conversation’ illustrates that the dwelling defence should be preserved as an important backstop.”

Stephen Evans, Chief Executive Officer of the National Secular Society, also expressed deep concerns.

“Northern Ireland already has the most restrictive speech laws in the UK,” he said. “Plans to further criminalise ‘hate speech’ coupled with the absence of free speech protections for robust discussion around religion show an alarming disregard for freedom of expression.”

What is even more risky for Northern Ireland, he said, was that the DoJ bill would not require prosecutors to prove that a suspect was acting with a guilty motive - so even comments meant quite innocently could be criminal if the complainant feels them to be so.

“And we know that abuse and insult are subjective terms.”

He added: “So if you think about comments about the Prophet Mohammed that aren’t intended to insult anyone but inadvertently do... you could find yourself on the wrong side of the law and potentially convicted of hate speech”.

He said it was also “inexplicable” that the proposals fail to include plans to abolish NI’s “archaic” blasphemy laws.

However a DoJ spokeswoman insisted the proposals would not bring the PSNI into policing conversations in private dwellings - adding that it had not yet adopted any policy position on the matter.

She said that currently, the private dwelling defence against charges of “stirring up hatred” allows the accused to prove they had no reason to believe the words or behaviour used, or written material displayed, would be heard or seen by anyone outside that dwelling.

But following Judge Marrinan’s hate crime review for NI, the dwelling defence was considered by some to be outdated, she added.

“For example, people can now communicate with the whole world online from inside their house. This means the dwelling defence is potentially ineffective to private online conversations occurring within homes. It also means the current defence may be protecting those communicating in the online world, from their homes, that could be seen to stir up hatred.”

She said the Minister of Justice agrees that, if the dwelling defence is removed, an alternative protection - a private conversations defence - needs to be put in place to “avoid the criminalisation of private conversations and to preserve the right to freedom of expression”.

The DOJ recognises the need to ensure that any future change in the legislation “does not unduly interfere” with the rights of people to privately discuss matters, she added. It also recognises the law must recognise the right to freedom of expression under Article 9 and 10 of the European Convention on Human Rights.

She noted the the Law Commission in England and Wales have recommended making a similar change and that the private dwelling defence was repealed by Scottish MSPs last year. The repeal of the defence in Scotland was fiercely opposed by campaigners but was eventually passed after almost two days of debate by MSPs.

The Scottish Police Federation general secretary Calum Steele expressed concern about the Scottish hate crime bill before it was passed.

“Police are all too aware that there are individuals in society who believe that to feel insulted or offended is a police matter,” he said. “The bill would move even further from policing and criminalising of deeds and acts to the potential policing of what people think or feel, as well as the criminalisation of what is said in private.”

Opponents of the bill said they still have concerns about a possible chilling of free speech.

The News Letter asked the DoJ a number of questions about the proposals for NI;-

1) What threshold would have to be exceeded to constitute a criminal offence in one’s own home? How could the ordinary layperson gauge this threshold?

3) Would the proposals allow one family member to report another family member for this offence?

4) Would the proposals allow a guest in a house to report the homeowner for this offence?

5) There are already so many laws constraining abuse of electronic communications eg the prosecution of Pastor Jim McConnell - even if new legislation is needed, why is it so necessary to end the private dwelling defence?

The DoJ did not offer any direct answers to the questions - or provde direct assurances that the concerns expressed in them were misplaced.

“The purpose of any consultation is to hear views,” the spokeswoman replied, as she restated the details of the proposed offence of stirring up hatred.

However Daniel Holder, Deputy Director of the Committee on the Administration of Justice firmly defended the DoJ proposals.

“The ‘dwelling defence’ – essentially that you incited hatred from inside your own home and it was only heard or read by people gathering in your home - is a loophole and anachronism,” he said. “It makes sense to replace it with a private conversations defence as recommended by the review.”

He added that there is already a very strong legal defence for freedom of expression thanks to the Human Rights Act.

Similar hate crime legislation has been proposed for England by the Law Commission however the government has not yet indicated what its response will be to the proposals, which have drawn much criticism.

The proposals for NI come as Communities Minister Deirdre Hargey is working on legislation against gay ‘conversion therapy’ after an indicative vote against the practise was passed by MLAs last year.

The non-binding motion argued it is “fundamentally wrong” to view the LGBTQ community as needing a “fix or cure”. It passed by 59 votes to 24.

Hower faith based groups have expressed concern that the motion as passed could even criminalise traditional pastoral care and prayer from clerics towards parishioners who ask for support with unwanted same-sex attraction.

The 2020 NI Hate Crime review found that in 2018/19 just over 10% of abuse reports were homophobic. Transphobic incidents and crimes saw the largest increases of all categories, with 29 more incidents and 26 more crimes in the same period. The report also found there is a one in 31 chance of being the victim of race hate, compared to approximately one in 1777 of sectarian hate.

Details of how to respond to the consultation, which closes on 28 March, can be found at: www.justice-ni.gov.uk/consultations/consultation-hate-crime-legislation-northern-ireland

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Northern Ireland Hate Crime Bill: Justice Minister Naomi Long consults on end of private dwelling legal defence which critics say could lead to ‘Big Brother’ in NI living rooms