Helen McEntee

The Incitement to Violence or Hatred and Hate Offences Bill 2022 published today includes a number of key changes since the general scheme was published last April.

The bill will criminalise any intentional or reckless communication or behaviour that is likely to incite violence or hatred against a person or persons because they are associated with a protected characteristic. The penalty for this offence will be up to five years’ imprisonment.

It will also create new, aggravated forms of certain existing criminal offences, where those offences are motivated by hatred of a protected characteristic. These will carry an enhanced penalty and the criminal record will clearly state that the offence was a hate crime.

However, the bill now includes “a general provision to further protect genuine freedom of expression” and clarifies that a communication is not taken to incite violence or hatred “solely on the basis that it involves discussion or criticism of matters relating to a protected characteristic”, the Department of Justice said.

Other updates since the general scheme, as trailed in July, include the inclusion of a ‘demonstration test’ for hate crimes to make it easier to secure prosecutions and convictions for crimes motivated by hate. This will be an additional/alternative test to the ‘motivation test’ as previously outlined in the general scheme.

The new legislation will repeal the existing Prohibition of Incitement to Hatred Act 1989, which is widely considered as ineffective and has only led to around 50 prosecutions in the more than 30 years since enactment.

The protected characteristics in the new legislation are race; colour; nationality; religion; national or ethnic origin; descent; gender; sex characteristics; sexual orientation; and disability.

Gender, disability, descent and sex characteristics were not included in the 1989 Act, and descent and sex characteristics have been added in recent months following additional consultation with key stakeholders.

“Sex characteristics” means all physical and biological features of a person relating to their sex. “Descent” is distinct from race and would be relevant, for example, in the context of the Jewish community, where a person may have Jewish ancestry but does not practice the religion.

The specific aggravated offences provided for in the new legislation are those which most commonly manifest as hate crimes, for example assault and criminal damage. When one of these offences is committed, and the perpetrator either demonstrates hatred of a protected characteristic while committing the offence, or is motivated by hatred of a protected characteristic, this will be a hate crime.

These behaviours, such as assault and criminal damage, are already crimes, but the hate element will lead to a higher penalty and the crime will be recorded as a hate crime. For any crime other than those expressly provided for in this new law, a judge will be able to hand down a higher sentence if there is evidence that there was a hate element to the crime.

Justice minister Helen McEntee said: “The protected characteristics for this Bill are further reaching than those in the 1989 Act. These are defined in line with international best practice, and are also in line with the Equality Acts.

“They were chosen following extensive public consultation where vulnerable and minority communities shared the characteristics which are most commonly targeted.

“The new offences will allow for the ‘hate criminal’ label to follow an offender in court, in garda vetting, and so on, and the data gathered will give a fuller picture on the prevalence of different kinds of hate incidents in Ireland.”

The bill has been designed to “dovetail” with the regulatory framework for online safety proposed by the separate Online Safety and Media Regulation Bill.

Mrs McEntee added: “I want to assure the public that we have worked hard to strike a balance in this bill in protecting the right to free speech with protection of vulnerable and minority communities from dangerous hate speech.

“There are protections for freedom of expression built into this legislation. But ultimately, hate speech is not about free speech.

“Hate speech is designed to shut people down, to shut them up, to make them afraid to say who they are and to exclude and isolate them. There is nothing free about that, and there is, frankly, no place for it in our society.”

The government said it is committed to securing the enactment of the bill by the end of 2022.