Leading QC attacks NI ‘hate crime’ proposals

A prominent QC has issued a hard-hitting warning over the review of hate crime laws in Northern Ireland.

In a detailed legal opinion, free speech and human rights specialist Ivan Hare attacks proposals drawn up by the judge overseeing the consultation process.

The QC argues that, in the absence of key freedom of expression provisions like those in England and Wales, the plans will leave free speech in Northern Ireland “more vulnerable” to infringement.

Mr Hare has written a 22-page opinion for The Christian Institute, which has expressed concerns about the proposals. [Click here to read the full opinion.]

The CI has expressed its deep concerns about the proposals to extend ‘hate crime’ laws to those who express disagreement on issues like marriage or transgenderism. The proposals are set out in a review being spearheaded by Judge Desmond Marrinan.

The review recommends changes to the law on incitement to hatred contained in Part III of the 1987 Public Order (Northern Ireland) Order.

But Mr Hare highlights concerns about the protection of free speech:

“I consider that speech which involves the articulation of sincerely held Christian beliefs concerning marriage and homosexual conduct and practices to be at the core of protected expression under the [European Convention on Human Rights].

“To the extent that there are suggestions in the Marrinan Consultation that all speech which falls within Part III of the 1987 Order is only entitled to a low-level of protection under the ECHR, I would respectfully submit that this view is inconsistent with a proper engagement with the jurisprudence”.

“As such, any restrictions on the exercise of that right must be clearly and foreseeably articulated in law, must fulfil a compelling state interest and must be no more than is strictly necessary in order to achieve that interest.”

Criticising the consultation document, Mr Hare states:

“…the offence of arousing fear or inciting hatred on the grounds of religion or sexual orientation in Northern Ireland is extremely broad. It is therefore very surprising to read the suggestion in the Marrinan Consultation that the threshold for prosecution in such cases may be set too high”.

“A comparison of the relevant law in England and Wales demonstrates that, contrary to the suggestion in the Marrinan Consultation, the law in Northern Ireland sets the bar at a much lower level than in England and Wales. Although referred to in passing, these differences do not appear to have influenced the development of Judge Marrinan’s views on the Northern Ireland law at all.”

Having stated that the threshold for prosecution in Northern Ireland is lower than in England and Wales, Mr Hare highlights a major difference as:

“…the absence in Northern Ireland of a clause protecting freedom of expression in relation either to religious hatred or to the discussion of sexual conduct”.

The QC says there is:

“…clear potential to infringe the right to freedom of expression” and “a very real risk that robust and uninhibited discussion of matters of great public importance will suffer a chilling effect”.

“Such a chilling effect is particularly likely where the penalty is criminal and may include imprisonment”.

Again pointing to the differences with the mainland, Mr Hare raises concerns that public debate on issues such as transgender rights may be closed down as speakers risk being prosecuted for using terms such as “fake females”.

He explains:

“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. The corollary of this is that the protection for lawful expression in Northern Ireland is very significantly more limited than in England and Wales.

“The contrast is likely to become greater still if Judge Marrinan recommends extending the protected grounds covered by the 1987 Order to include gender identity.

“If that were to be enacted, 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. For example, if the warden of a women’s hostel described transgender women as ‘fake females who pose a risk to the safety of true women’, they breach an amended 1987 Order.”

At the core of his argument the QC focuses on the absence of a freedom of expression clause. He states:

“The relevance of the absence of a freedom of expression clause is too obvious…

“The reforms in England and Wales to introduce explicit protection for freedom of expression in the offences of incitement to hatred on religious grounds and separately on grounds of sexual orientation provide a necessary clarification of the scope of the relevant offences which must be followed by the police and prosecutors and which provides some measure of reassurance to speakers…

“The absence of equivalents in Northern Ireland… is a grave lacuna in relation to religious speech and that on matters of sexual orientation. That absence renders free speech in Northern Ireland more vulnerable to infringement than in England and Wales.”

Mr Hare also criticises existing public order law in Northern Ireland, pointing out:

“Criticism of same-sex marriage is very often based on an underlying (moral, religious or other) objection to same-sex sexual conduct.

“For many Christians (and members of other faiths), the crux of the objection to same-sex marriage is that the institution of marriage is being used to endorse sexual activity outside heterosexual marriage. But [existing NI public order law] provides no protection or reassurance for those wishing to express such views publicly.”

Similarly, he says there is no protection for those who, as part of vigorous public debate, might wish to criticise religious groups:

“An example would be a public statement by an LGBT rights campaigner to the effect that Christians are dangerous bigots who indoctrinate their children to oppose same-sex marriage. Another illustration would be the actual comments contained on Professor Richard Dawkins’ Facebook page in relation to the referendum on same-sex marriage in the Republic of Ireland, one of which states: ‘I am fed up with Christians behaving like police and ISIS nut cases and trying to enforce their views on others by denying freedom’”.

Accordingly, Mr Hare writes:

“Judge Marrinan’s view ignores the need to provide guidance to law enforcement officials and some reassurance to speakers in order to prevent their speech being ‘chilled’ by the existence of broad and potentially uncertain criminal offences”.

Citing some practical scenarios, the QC says there is:

“…ample scope for the stirring up offences [proposed in the Marrinan Review] to be used to suppress expression which is at the heart of political debate in Northern Ireland in any of the following scenarios:

“ – During an Irish cultural festival in West Belfast, a speaker attacks the Plantation of Ulster and says that the descendants of the planters are colonialists and still support ethnic cleansing;

“ – At a public event in Kilkeel a speaker describes Gaelic sports as seditious and asserts that all unionists should be afraid because nationalists are using them to win a united Ireland;

“ – A teacher describes Irish Gaelic as a leprechaun language and claims that Irish medium schools in Northern Ireland are radicalising children and promoting dangerous intolerance; and

“ – In a special edition of the Irish News commemorating the Easter Rising there is an interview with a prominent politician from Dáil Éireann who compares unionists to Nazis.”

Mr Hare writes:

“Even if the police or prosecuting authorities did not take action based on the stirring up offences, their breadth creates a powerful risk of self-censorship (the ‘chilling effect’) which will further undermine the rigorous political debate as the people of Northern Ireland formulate their responses to the issues presented by the departure of the United Kingdom from the European Union.”

Mr Hare calls on Judge Marrinan to address the differences between Northern Ireland law and the law in England and Wales – which may actually amount to discrimination – stating:

“…there is no relevant principled justification for the difference in treatment between them.

“There is therefore no justification for the present difference in treatment between the jurisdictions in relation to incitement to hatred on grounds of religion or sexual orientation.

“Indeed… the arguments of principle based on the protection of freedom of expression are all the other way. As a result, free speech is significantly less well protected in Northern Ireland than in the rest of the United Kingdom to the extent that it is strongly arguable that the Northern Ireland provisions indirectly discriminate on grounds of national origin in breach of the prohibition on discrimination in the enjoyment of the rights in Articles 9 and 10 which is contained in Article 14 of the ECHR.”

He also argues the proposals could adversely impact journalists and media outlets throughout the UK:

“Since many publications and programmes originate in Great Britain where the law provides greater protection for free speech, but are broadcast, published or distributed in Northern Ireland, the restrictive Northern Ireland provisions are likely to cause a chilling effect throughout the United Kingdom. This cannot have been the intention of Parliament when passing the English and Welsh provisions on incitement to religious hatred and hatred on grounds of sexual orientation.”

In conclusion, Mr Hare says the optimal solution to protect free speech is to ditch incitement offences altogether or remodel the law to mirror England and Wales.

At the same time free speech clauses should be introduced and he emphasises:

“This is the only way in which the ministerial undertakings to ensure that religious freedom and conscience are protected in Northern Ireland can be made good.”

Commenting on the advice from Ivan Hare QC, Simon Calvert, Deputy Director for Public Affairs at The Christian Institute, said:

“Ivan Hare is a world-renowned expert on freedom of speech. 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.”

ENDS