The year 2020 hasn’t been a good one for free speech enthusiasts. In April, Holyrood rolled out a Hate Crime and Public Order Bill in Edinburgh, to wide condemnation (including in The Critic), enormously extending the range of things Scotsmen could be imprisoned for saying. In September the English Law Commission made its own proposals, going in some ways even further than the Scottish bill. 

This month, it was the turn of Northern Ireland. On 1 December, high-profile retired judge Desmond Marrinan presented his massive three-volume review of hate crime law in the Province. Much of this is concerned with hate crime proper (that is, increasing sentences where crimes are committed from motives of, for example, religious or race hatred), but a good deal covers the criminalisation of hate speech as such. His proposals on this repay careful reading and should worry anyone.

Put bluntly, they pretty consistently reflect a Celtic streak of state bossiness by calling for new restrictions even more far-reaching and authoritarian than the proposals for either England or Scotland. They show a desire to sanitise the public sphere of discourse; an instinct to control and monitor what appears on it as closely as the state can get away with; and a dark mistrust of what ordinary people might get up to if allowed to say what they like.

This is all the more remarkable, given that in at least two ways Northern Ireland is already the most restrictive jurisdiction in the UK in terms of the views you aren’t allowed to express.

Northern Ireland is already the most restrictive jurisdiction in the UK

English hate speech law, applying to race, religion and sexual orientation, is limited to the stirring-up of actual hatred; and except in the case of race, where while it is illegal to do anything likely to stir up hostility, it requires proof of actual intent to do so. In Ulster, by contrast, proof of intent is not required in any case: you can be punished if you do or say anything likely to raise animus against any protected group, including not only race but religion, sexual orientation and disability. For good measure, it then criminalises the stirring-up not only of hatred, but of mere fear of a group: an important extension, if you think about statements suggesting that, for example, particular religious groups might present a threat to the state. 

Judge Marrinan nonetheless is convinced that Ulster urgently needs to tighten the ratchet still further. Age, sex and gender need to be added to the interest groups protected.

Not only does he say that an offence should be aggravated if shown to have been committed out of dislike of a person falling into these characteristics; but he regards it as following naturally from this that they must also be entitled to free-standing protection against speech likely to portray them as objects of hostility or fear. Oh: and one other thing. There might be other interest groups out there too needing special treatment; and in case someone thinks of one, there should be power in a Minister to add it to the list, without all the problems of actually having actually to legislate.

Again, at present, speech to be punishable under hate speech law needs to be not only productive of hostility or fear but threatening, abusive or insulting. Under the Marrinan recommendations, however, all these latter requirements would go in respect of anything intended to cause hostility or fear: in cases like this even low-key reasoned argument needs to become punishable with up to seven years inside.

If they are enacted, then watch out, those who publish earnest articles saying deviant sexual practices are a frightening scourge on society, or for that matter controversial French feminist writer Pauline Harmange if she should dare to sell Moi, les hommes, je les déteste in Belfast. They may be in trouble from a censorious government that doesn’t like such ideas and is happy to use the law to suppress them.

Yet again, the review agrees with the Scots and English proposals to get rid of the dwelling defence as an outdated relic, thus potentially criminalising things said in the home. It would be replaced with a rather vaguely expressed protection for private speech. On the precise wording of this the judge is unspecific, but he does explicitly express sympathy for the view that it should be as narrow as possible.

What about free speech? The answer is stark. For protection of freedom of speech on matters of controversy all we need is the shield of the free speech provisions in the European Convention on Human Rights. As a result, the review calls for removal of the current specific protection available in Northern Ireland for criticism of same-sex marriage in the context of sexual orientation.

Furthermore, despite the fact that England the legislation specifically allows a person to make trenchant attacks on religious or sexual practices without falling foul of it, the review is clear that no such protection should be imported across the Irish Sea. 

Thinking further of the Irish Sea, there is also a further rather unpleasant suggestion: any material posted on the Internet should, it is recommended, be within the jurisdiction of the Northern Irish criminal courts if downloadable there, wherever it is posted. This would potentially allow a person uploading material in London that was entirely lawful in England but seen as offensive by some pressure group in Ulster to be hauled before the Antrim Crown Court for any breach of the new laws, and indeed (at least in theory) arrested at home in England on a warrant issued by that court.

The list goes on. The recommendations on the Internet are almost worth an article in themselves. Broadly, the internet is seen as a kind of threatening monster that needs to be tamed, and fast. Although this is outside the devolved competence, the government’s troublesome online harms White Paper needs to be applied as soon as possible: indeed, there is a need to go further. Isn’t it anomalous, says the review, that you need a passport to open a bank account but can sign up to Twitter on a whim? Quite unacceptable: strict proof of identity and address should be required by law before you are allowed to open any social media account. And so on.

When it comes to commenting on all this, the easy part is to point out that it won’t do. The proposals here will stifle enormous swathes of forthright speech. They will also encourage publishers and internet users in Northern Ireland think twice before saying anything controversial, in case they find themselves the subject of a police knock on the door.

The review lacks any desire to promote free speech as a good in itself

Even if they are eventually proved not to have done anything wrong, no-one wishes to be dragged through the courts unnecessarily; the threat of a knock on the door from the PSNI armed with a search warrant, and the hassle of legal proceedings, is likely to have a distinctly chilling effect. The news media are also likely to be affected. There is no suggestion of a protection for journalism or news reports. Imagine someone says something hateful, or which might raise a fear of a particular group. Unless a newspaper carefully censors any report of what they said it will at least potentially itself fall foul of the law. True, it may in fact have some defence or escape prosecution as a matter of discretion. But, as the Scottish Newspaper Society pointed out in connection with the Scottish proposals, newspapers for the most part don’t have the time or the resources to argue the toss on such things. They will play safe, to the detriment of our right to know.

But there are deeper points too. One, particularly depressing, is the lack anywhere in this review of a desire to promote free speech as a good in itself, or to provide the people of Ulster with more of it than is strictly necessary, or than other people have.

Tellingly, the starting point of Judge Marrinan’s discussion of hate speech is not the principle that you should be free to say what you damn well think unless there is a very compelling reason to stop you, but the need to make sure we meticulously follow certain international conventions that require speech to be limited, such as the UN Convention on Civil and Political Rights with its provisions on racially inflammatory material.

Free speech, by contrast, is seen as just one piece of the big jigsaw, preferably looked at through the internationalist lens of the European Convention on Human Rights and not much further. If the cosmopolitan judges of the European Court, carefully protected from populist pressure, are cautious in their protection of it (which it is fairly clear they are), then that must show the correct balance, and there is no need to upset it by actually increasing freedom of speech. 

Northern Ireland might see intervention as heavy-handed and authoritarian

The other worry is that the review very much reflects the attitudes of the achingly liberal Northern Ireland academic elite. In essence, it overwhelmingly sees the whole area of hate speech as being really just a technocratic exercise in avoiding unpleasantness and offence, promoting fairness and equality for all, and placating pressure groups. If this requires measures to suppress opinions seen as undesirable, so be it. Individual freedom to demonstrate what one thinks plays the part merely of a slightly tiresome constraint imposed on us by international practice. In the absence of some such protection, the law should be perfectly happy to intervene, even if many outside Northern Ireland might see intervention as heavy-handed and authoritarian. 

Three examples demonstrate the attitude nicely. Confederate flags Judge Marrinan sees as “almost always” amounting to hate expression whose display should normally be suppressed because of the offence caused. Again, any control over the internet by a new regulator should be very broad, encompassing gnot only hate or hostility, but matters not necessarily caught by the criminal law at all, such as “bias, prejudice, bigotry or contempt”. 

Even more interesting is an example that appears in Paragraph 9.369 of the review. Here Mark Antony’s modulated words “Brutus is an honourable man – so are they all, all honourable men” are quoted, but then presented not as an example of civilised if barbed political discourse, but as precisely the kind of expression the law should be suspicious of, in case there might be a hidden hate message contained somewhere in them.

The Marrinan review is now in the hands of the Northern Ireland government, which may or may not bring these wretched proposals before the Assembly as the basis for legislation. If it does (and it probably will sooner or later), we can only hope that everyone concerned with free speech will bring to them the same degree of concerted opposition as has already happened in respect of the Scottish hate crime Bill.

However well-meaning their legislators, there is no reason why the ordinary citizens of Northern Ireland should be the least free out of anyone in the United Kingdom to articulate what is on their minds.