The Minister for Justice Helen McEntee published the Incitement to Violence or Hatred and Hate Offences Bill 2022, after securing Cabinet approval for the new legislation to tackle hate crime and hate speech.

The new legislation 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.

A number of key changes have been made since the General Scheme of the Bill was published in April 2021 and are reflected in the full Bill as approved by Cabinet.

Among these, 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.

However, Minister McEntee said that 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.

Other updates since the General Scheme 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 of the Bill.

Minister McEntee said, “we are all horrified when we hear of homophobic, racist, and other hateful incidents in our country. While these repulsive acts of violence and abuse against innocent people have been extensively reported on, we know that some people go about their lives constantly in fear of abuse simply because of who they are.”

“Although it is a small minority of individuals carrying out these reprehensible acts and spouting this abuse, there is a clear desire from the public that these individuals need to be dealt with in the appropriate way. This Bill provides separately for hate crime and for hate speech, but on the basis of the same protected characteristics. All provisions throughout the Bill have been carefully developed to ensure it is victim-centred and effective in securing convictions where serious crimes are committed, and the legislation follows extensive public consultation and research.”

The need for new legislation to address hate speech and hate crime has been recognised for many years. The Prohibition of Incitement to Hatred Act 1989, has been widely considered as ineffective, with only about 50 prosecutions in the more than 30 years since it was enacted. The 1989 Act is being repealed and replaced with new, simpler provisions designed to be more effective in securing convictions.

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.

Minister McEntee added, “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 provisions of the new legislation have been crafted to ensure that they will capture hate speech in an online context. There has also been significant engagement between officials in the Department of Justice and the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media to ensure that the provisions dovetail with the regulatory framework for online safety proposed by the Online Safety and Media Regulation Bill. That Bill will link closely with these provisions on incitement to hatred, particularly in a social media environment, and the role that companies will play in managing hate speech on their platforms.

Minister 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 Incitement to Violence or Hatred and Hate Offences Bill will fulfil two important Programme for Government commitments: to introduce hate crime legislation and to update the Prohibition on Incitement to Hatred Act 1989. The new legislation is strongly aligned to the European Council Framework Decision 2008/913/JHA on combating racism and xenophobia, and will fulfil Ireland’s international obligations.

The Bill must now be passed by both the Dáil and the Seanad before it can be enacted and signed into law by the President. The government is committed to ensuring that this happens before the end of 2022.