New laws will criminalise incitement to hatred against transgender people and those with a disability, the Cabinet agreed on Tuesday when approving a Bill intended to make prosecutions for hate speech and hate crimes easier.
The Bill will add gender, including gender expression and identity, as well as disability to a list of “protected characteristics” which already include race, colour, nationality, religion, ethnicity or national origin and sexual orientation.
Ministers were told the protected characteristics are being expanded based on best practice internationally. In the case of gender and sex characteristics, this was to reflect the experiences of certain groups of people targeted for hate crime.
A person who seeks to incite hatred against a person or group with one of these characteristics may be guilty of an offence which could carry a penalty of up to five years in prison.
The new legislation will repeal the previous incitement to hatred laws and is intended to make prosecutions easier. However, the bar for a prosecution remains high — a defendant must have deliberately intended to incite hatred or violence against a person on account of their protected characteristic and there are defences for a reasonable and genuine contribution to literary, artistic, political, scientific or academic debates.
Furthermore, the Bill also includes a general provision to protect freedom of expression which clarifies that a “communication” will not be taken to incite violence or hatred solely on the basis that it involves discussion or criticism of matters related to one of the listed protected characteristics.
The new legislation will more clearly define the types of communication or conduct that might incite violence or hatred for hate speech and hate crime, with the Bill set to create an offence of the condoning, denial or gross trivialisation of genocide and war crime with Ministers told that this includes Holocaust denial.
Ms McEntee intends to include a “demonstration test” in the Bill, where guilt can be established if the perpetrator uses, for example, racial language or other evidence of hate against the victim. A demonstration test hinges on a perpetrator showing hostility towards someone with a “protected characteristic” at the time of an offence being committed. The Cabinet was told this could include the use of hostile or prejudiced slurs, gestures, other symbols or graffiti.
Separately, there will be safeguards built into the new legislation where a perpetrator could still be convicted of the “ordinary” or original form of the offence if there is not enough evidence to prove the hate element. There will also be a new separate and lesser offence of preparation or possession of material that is likely to incite violence or hatred. This will also apply to people who create content that would incite violence but have not yet communicated it publicly.
The Bill was developed following a public consultation process which drew around 4,000 responses. The Department of Justice then engaged with academics and experts before bringing the details to Cabinet on Tuesday.