Atheist Ireland asks TDs to amend Incitement to Hatred Bill

Atheist Ireland is asking TDs to amend the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 as follows:

Please amend the above Bill to: (a) give equal protection to people with religious beliefs, and people with positive nonreligious philosophical convictions including atheism and secularism, and (b) take account of the rights to change and make choices in the field of religion or belief.

We ask you to amend the following:

3(1)(d) “religion”

Amend to: “religion or belief”

3(2)(a) “references to “religion” include references to the absence of a religious conviction or belief.”

Amend to: “references to “religion or belief” include references to religious or philosophical convictions or beliefs or their absence.”

6(1), 7(3)(a), 10(2)(a)

“literary, artistic, political, scientific, religious or academic discourse”

Amend to: “literary, artistic, political, scientific, religious, philosophical, or academic discourse”

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“Protection of freedom of expression: For the purposes of this Part, any material or behaviour is not taken to incite violence or hatred against a person or a group of persons on account of their protected characteristics or any of those characteristics solely on the basis that that material or behaviour includes or involves discussion or criticism of matters relating to a protected characteristic.”

Add after the above: “There is a wider scope of legitimate intellectual provocation in the field of religion or belief, because of the rights to change and make choices in the field of religion or belief.” *

* Note: this distinction originates with Heiner Bielefeld, the former United Nations Special Rapporteur on Freedom of Religion and Belief. See more detail on page 3 of this document.

Replacing the Term ‘Religion’ with ‘Religion or Belief’

Atheist Ireland recommends replacing the category of ‘religion’ under this Bill with ‘religion or belief,’ and clarifying that beliefs include positive philosophical convictions that are not based on religion.

Currently the Bill refers only to ‘religion’ and not to ‘religion or belief.’ Those of us with beliefs or philosophical convictions are defined merely in relation to the absence of ‘religion,’ and are deprived of an equal position and equal protection, as people with positive philosophical convictions of our own.

In the Venice Commission Guidelines for Legislative Reviews of Laws Affecting Religion or Belief includes it states:

“3. International standards do not speak of religion in an isolated sense, but of “religion or belief.” The “belief” aspect typically pertains to deeply held conscientious beliefs that are fundamental about the human condition and the world. Thus atheism and agnosticism, for example, are generally held to be equally entitled to protection to religious beliefs.”

Constitutional Obligations

The Bill does not reflect the Irish Constitution because the Constitution also protects those with beliefs based on their conscience and is not confined to religious beliefs. Article 44.2.1 of the Irish Constitution guarantees freedom of conscience to everybody.

In the High Court in 2011 (AB v Children’s Hospital Temple Street), Justice Hogan stated that:

“35. There is thus no doubt at all but that parents have the constitutional right to raise their children by reference to their own religious and philosophical views.”

“27. Along with the guarantee of free speech in Article 40.6.i, Article 44.2.1 guarantees freedom of conscience and the free practice of religion. Taken together, these constitutional provisions ensure that, subject to limited exceptions, all citizens have complete freedom of philosophical and religious thought, along with the freedom to speak their mind and to say what they please in all such matters….”

International Obligations

The Bill does not reflect international instruments such the legally binding Charter of Fundamental Rights of the European Union which states:

“10. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief…”

Our submission to the Department of Justice’s consultation on the review of the Equality Acts elaborates on this, as well as on the following instruments:

• The EU Employment Equality Directive (Council Directive 2000/78/EC)
• The EU Race Directive (Council Directive 2000/43/EC)
• The European Convention on Human Rights
• The International Covenant on Civil & Political Rights
• The Belfast Agreement (Comparable Steps by the Irish Government)

The Law Must Not Become a Blasphemy Law by Another Name

Because religion is one of the characteristics that is protected under the Bill, there is a danger that the Bill might evolve into becoming a blasphemy law by another name. The Bill should take into account the same principles that led to the law against blasphemy being removed from the Constitution and from our statute law.

Those principles include that the law should protect people from harm, but that the law should not protect ideas or beliefs from criticism, including harsh or unreasonable criticism, or even ridicule. These principles also apply to ideas or beliefs related to other characteristics protected by the law. This balance can best be reached by basing the law on human rights standards.

Heiner Bielefeld, the former United Nations Special Rapporteur on Freedom of Religion and Belief, wrote in the Oxford Journal of Law and Religion that:

“Given the right to also change one’s religion or to have and adopt a religion or belief of one’s own choice, the notion of identity in the area of religion or belief conceptually differs from, say, identity in the area of ethnicity. When using the somewhat fashionable identity language, at least one has to insist that religious or belief-based identity is always an identity ‘in the making’, ie in the sense that it can change in most different ways and can also legitimately be exposed to missionary activities, including non-violent forms of provocation.

Saying this does not imply denying the possibility of serious changes also in other areas, like ethnicity. But still there remains a conceptual difference that in my opinion receives too little attention. To give just one example to illustrate the significance of that difference: While negative comments on some particular ethnic characteristics—an extreme case would be skin colour—for good reasons are generally condemned as unacceptable, negative remarks on religious ideas like, for instance, monotheism, divine revelation or re-incarnation, although possibly deemed offensive by the recipient groups, in my view clearly deserves a different assessment.

I would insist, at any rate, that there is a wider scope of legitimate intellectual provocation in the field of religion or belief than in the field of ethnicity—which has to do with the explicit recognition of the rights to change and to make choices in the field of religion or belief. Hence, if we simply lump together religion, belief, ethnicity, ‘race’ and other elements of a person’s or a group’s identity, with the purpose of protecting such identities, we run a serious risk of losing out of sight some crucial elements of freedom of religion or belief, including the freedom to search, choose, change, reach out, communicate, convert and peacefully provoke in the field of religious or belief.”

We have elaborated on these matters in our submission to the Department of Justice’s consultation on hate crime and hate speech laws.