Proposed short title: Hate Crime Order (NI) Bill 2020
What is the proposed purpose or policy objective?
The purpose is to consolidate the existing laws on hate crime in England, Wales and Scotland which do not apply to Northern Ireland as well as the EU Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law, 28 November 2008 in order to fulfil the UK Government obligations under EU Charter of Fundamental Rights as well as international human rights standards which was identified in the Belfast/Good Friday Agreement and the subsequent signed Brexit Agreement and the annexes to Northern Ireland.
What is the case for reform?
There is no hate crime law in Northern Ireland to protect victim of hate crime nor has a legal definition of hate crime in the current offences in United Kingdom and Northern Ireland, except the Criminal Justice (No. 2) (Northern Ireland) Order 2004 (the 2004 Order) which “enables a sentence to be increased where it is proven that the basic offence for which a person has been convicted was motivated by hostility against one of the current protect characteristics (race, religion, sexual orientation or disability) or where the offenders demonstrated hostility against one of those characteristics either at the time of committing the offence or immediately before or after it.”
The legislative position on hate crime in Northern Ireland is more complex and not directly comparable with similar jurisdiction in the rest of the UK, the Republic of Ireland (RoI) which has incitement of racial hatred law only and further afield in Europe. These include overarching legislation under the Belfast/Good Friday Agreement such as Section 75 of the Northern Ireland Act 1998 (NIA) and Human Rights Act 1998 (HRA); Specific statutory hate crime offence under Part III of the Public Order (NI) Order 1987 (PO) such as stirring up hatred or arousing fear on religious belief, sexual orientation, disability, colour, race, nationality [including citizenship] or ethnic or national origins; enhancing sentencing powers under Criminal Justice (N0. 2) (NI) Order 2004 (CJ 2) on aggravated by hostility on race, religious belief, sexual orientation and disability; general legislation applicable in certain circumstances such as Protection Harassment (NI) Order 1997 (PH) on course of conduct which covered race, gender, religious belief, sexual orientation and disability; and the general outdated discrimination law under Race Relations (NI) Order 1997 (based on the Race Relations Act 1976) and subsequent amendment Order (transposed Racial Equality Directive in which European Community had no jurisdiction on criminal justice) on racial discrimination; the Amendment and definitions under Anti-Terrorism, Crime and Security Act 2001 as well as Section 127 of the Communication Act 2003 (CA) which is covered Northern Ireland.
The review of hate crime law in England and Wales in 2014, and in Scotland in 2017did not take into account of the current EU law nor international human rights standard in the conception of hate crime that based on discrimination and intersectionality between vulnerable groups. Both review recommended to extend the existing offences to the new protected characteristics as well as, in England and Wales, recommended to have a full review of hate crime law which tasked the Law Commission in October 2018 with a consultation paper in early 2020 and publication of its report for early 2021.
Moreover, “….the level of hate crimes in Northern Ireland remains stubbornly high, despite the progress that has been made by the criminal justice agencies. And when under reporting is considered alongside those incidents which fall below the threshold for prosecution, the situation becomes more glaring.”
Hate Crime Review Team (2020) Hate crime legislation in Northern Ireland – An Independent Review Consultation Paper, at Forward, p.3, 2020
Law Commission (2014) Hate Crime: Should the Current Offences be extended? Cm 8865 London: Her Majesty’s Stationery Office
Lord Bracadale (2017) A Comparative Analysis of Hate Crime Legislation: A Report to the Hate Crime Legislation Review
Criminal Justice Inspectorate Northern Ireland (2017) Hate Crime: An Inspection of the Criminal Justice System’s Response to Hate Crime in Northern Ireland, p.5.