Select Committee on European Scrutiny Twenty-First Report



Draft Council Framework Decision on combating racism and xenophobia.

Legal base:Articles 29, 31 and 34(2)(b) EU; consultation; unanimity
Deposited in Parliament: 17 December 2001
Department:Home Office
Basis of consideration: Minister's letter of 4 March 2002
Previous Committee Report: HC 152 -xviii (2001-02), paragraph 5 (6 February 2002)
To be discussed in Council: No date set
Committee's assessment:Legally and politically important
Committee's decision:Not cleared; further information requested


  3.1  This proposal for a Council Framework Decision seeks to harmonise the substantive criminal law of EU Member States on racism and xenophobia. The purpose of the proposal is to approximate the laws of Member States and to provide for closer cooperation in relation to offences involving 'racism and xenophobia'.

  3.2  We examined the proposal in detail on 6 February and identified a number of general concerns of principle about the wide scope of the proposal. We also raised a number of more detailed points on the definition of the offences which would be created.

  3.3  Our principal concern was that the proposal could have far-reaching effects of the balance struck in this country between the use of the criminal law to control incitements to violence and racial hatred on the one hand, and the freedom of speech and association on the other. We noted that the subject-matter is a sensitive one in each of the Member States, and that for the purposes of the European Convention on Human Rights each State had in this area a wide "margin of appreciation" to determine whether restrictions on these freedoms were necessary in a democratic society. It followed that, in accordance with the case law of the European Court of Human Rights, each State had a margin within which to assess whether the balance between the various interests required restrictions to be imposed or not. We questioned whether the Commission was right to assert in recital (5) of the proposal that it was "necessary to define a common criminal law approach in the European order to ensure that the same behaviour constitutes an offence in all Member States."

The Minister's letter

  3.4  In her letter of 4 March 2002, the Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) addresses our concerns of principle as well as the detailed points we made on the definition of offences. The Minister was asked if she accepted the assertion made in recital (5) of the proposal. Her reply is as follows:

    "The Government is concerned that the principle of subsidiarity should be respected in this context. We would point to the fact that the criminal law has to a great extent already been harmonised by the 1996 Joint Action on Racism and Xenophobia. However, racism and xenophobia feature in the 1998 Vienna Action Plan and the conclusions of the Tampere European Council. They remain, rightly in the Government's view, important issues across the EU. We are therefore prepared to work with our EU colleagues in tackling criminal racism, particularly racially motivated violence. As the explanatory memorandum suggests, the real issue is where the line should be drawn in defining criminal behaviour."

  3.5  We noted that Article 3 of the proposal, which defines 'racism and xenophobia', referred to the belief in 'religion or belief' as a factor determining aversion to individuals or groups. We asked the Minister to state her view on whether the expression 'racism and xenophobia' should extend to questions of religion or belief. The Minister replies as follows:

    "The Government considers that racism and xenophobia should not be defined in a way that includes questions of religion and belief. It is of course open for Member States to go beyond the scope of the Framework Decision in their own law taking into account of domestic circumstances. It should be clear that the Government is not opposed to extending our domestic law to protect religious groups. That is why we have introduced religiously aggravated offences in the Anti-Terrorism, Crime and Security Act 2001 and why we sought to introduce an offence of inciting religious hatred."

  3.6  We raised a number of questions on the scope of the offences created by Article 4(a),(c),(d) and (f). We expressed concern that the reference in Article 4(a) to making criminal 'racist or xenophobic behaviour which may cause substantial damage to individuals or groups' could make it criminal for a person to call for the boycott of the goods of a producer in a Member State or a third State on the grounds of his national origin. The Minister replies as follows:

    "The Government has serious concerns about the breadth of the offences created by Article 4a-f, as have other Member States. Part of the negotiation process of the Framework Decision will be to establish and define the scope of these offences in a manner which is acceptable to all Member States. We understand why the European Commission might seek to begin this process from the widest possible base, but in our view the scope of the offences is simply too wide, encompassing a very great variety of behaviour, some of which should not necessarily be subject to criminal penalties. We shall seek clarification of the expression "behaviour which may cause substantial damage to individuals or groups" as it is not clear what behaviour it is intended to cover, including the example cited by the Committee."

  3.7  In relation to Article 4(c), we asked the Minister what was intended by 'condoning' the crimes of genocide, crimes against humanity and war crimes. We also asked the Minister, in relation to Article 4(d) about the factors which now made it necessary to introduce a new offence of 'public denial or trivialisation' of the crimes dealt with by the International Military Tribunal established in 1945. The Minister replies as follows:

    "It is the Government's view that Articles 4(c) and (d) should, if they are to be retained, be combined into a single more closely defined offence.

    "One of our negotiating objectives will be to arrive at a satisfactory understanding of the meaning of the term "condoning" in relation to the offence at 4(c). Our current view is that it refers to an attempt to justify a criminal act of genocide specifically for a "racist or xenophobic purpose". The offence 4(d), which is essentially denial or trivialisation of the Holocaust, requires the behaviour to be conducted in a manner liable to disturb the public peace. The Government's view is that these offences should be combined to create an offence comprising both the element of a racist or xenophobic intent and the impact or likely impact on the public peace. We would also wish to see, either specifically in this offence or, as suggested in the first explanatory memorandum, a general requirement that the words or behaviour which constitute these offences are in themselves threatening, abusive or insulting.

    "Whilst we recognise the significant degree of offence that this kind of material causes to many people, particularly the Jewish community, the Government does not support the idea of an absolute offence. Such an approach is not, in our view, an effective remedy for dealing with the harm of Holocaust denial nor is it in keeping with our view of Article 10 of the European Convention on Human Rights. Our position in negotiation will be to argue that if such offences are to be retained they should provide a suitable criminal threshold to ensure a proportionate response to the harm which we all recognise."

  3.8  We noted that in relation to Article 4(e), it seemed to be provided that the public dissemination or distribution of tracts, pictures or other material containing expressions of racism or xenophobia should be an offence even where there was no intention to incite to racial hatred or other threatening behaviour. The Minister replies that these offences should not be absolute and that they should contain a test of intent, and that the Government would be seeking appropriate drafting changes to the text of Article 4(e).

  3.9  In relation to Article 4(f) (which makes it criminal to direct, support or participate in the activities of a racist or xenophobic group, with the intention of contributing to the organisation's criminal activities) it was not clear to us whether the 'criminal activities' in issue were those under the Framework Decision, or whether the reference was to criminal activities generally. The Minister explains her understanding that, by implication, Article 4(f) refers to acts made criminal under the Framework Decision, but that the Government would be seeking clarification of the point during negotiations.

  3.10  We asked the Minister if the provisions of Article 6(5) would require a court to accept a payment for charitable purposes instead of imposing a fine. The Minister replies that this type of penalty did not currently exist in the law of the United Kingdom and that the Government was not convinced that there would be any benefit in introducing it solely for one category of offence.

  3.11  We also asked the Minister for her views on Article 7. This appears to require that sentences for offences under Articles 4 and 5 be increased where the perpetrator "is acting in the exercise of a professional activity and the victim is depending on this activity". As the offences created by Articles 4 and 5 are essentially public order offences, we did not understand how this provision could operate. The Minister replies as follows:

    "We will be seeking further clarification on the meaning of Article 7 during negotiations. Our understanding is that it refers to a public official acting in a racist manner while carrying out a public duty, which is a specific criminal issue for some legal systems in Europe, including Spain."


  3.12  We are grateful to the Minister for her detailed and helpful answers to the points we have raised. Her reply gives us confidence that the serious issues raised by this proposal will be given thorough treatment in the course of negotiation.

  3.13  We note the reference by the Minister to the Joint Action on Racism and Xenophobia of 1996, but we remain of the view that the present proposal is much more radical than that measure, since it will require changes to the substantive criminal law of Member States, and not merely an abandonment of dual criminality when extraditing offenders. We also note a number of significant changes from the Joint Action, in particular the introduction of the offence of trivialisation of the crimes dealt with by the Nuremberg Tribunal established in 1945.

  3.14  We welcome the indications the Minister has given as to how the points we have raised will be addressed, and we shall look forward to the deposit in due course of a revised text.

  3.15  In the meantime, we shall hold the present version under scrutiny.

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