6. RACISM AND XENOPHOBIA
(a)
(24079)
15095/02
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(b)
(24132)
15490/1/02
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Draft Council Framework Decision on combating racism and xenophobia.
Draft Council Framework Decision on combating racism and xenophobia.
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| Legal base: | Articles 29, 31 and 34(2)(b) EU; consultation; unanimity
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| Document originated: | (b) 18 December 2002
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| Deposited in Parliament: | (b) 23 December 2002
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| Department: | Home Office
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| Basis of consideration: | (a) EM of 10 December 2002
(b) EM of 10 January 2003; Minister's oral evidence of 15 January 2003
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| Previous Committee Report: | (a) HC 63-v (2002-03), paragraph 7 (18 December 2002); and see (23808) 12221/02: HC 63-i (2002-03), paragraph 9 (20 November 2002)
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| Discussed in Council: | JHA Council 28-29 November 2002
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| Committee's assessment: | Legally and politically important
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| Committee's decision: | (a) Cleared
(b) Not cleared; further information requested
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Background
6.1 The proposed Council Framework Decision seeks to
approximate the laws of Member States and to provide for closer
co-operation in relation to offences involving the concept of
'racism and xenophobia'. We examined earlier versions of the proposal
on 6 February, 13 March,12 June and 23 October and document (a)
on 25 November, 4 December and 18 December. Document (a) was also
the subject of our request for oral evidence from the Minister,
which he gave on 15 January. In the event, the current version
(document (b)) became available before that evidence session,
so that our questions to the Minister were able to take account
of this latest text.
Our examination of document (a)
6.2 Document (a) was the subject of our Report of 18
December. We identified there a number of areas of concern which
we wished to raise with the Minister when he appeared before us.
These were, first, the extension of the proposal to include public
incitement to discrimination on grounds of religious conviction.
Secondly, we expressed a concern of longstanding that the offences
set out in the draft Framework Decision were cast in terms which
were excessively subjective and did not seem to require that the
relevant conduct be carried out in a manner which was likely to
incite others to violence or hatred or to be likely to disturb
the public peace. Although Member States were to be permitted
to require such objective factors as an essential part of the
offence in their national law, this permission appeared to be
subject to a review by the Council after only two years of operation
of the Framework Decision.
6.3 Thirdly, we continued to have concerns about the
likely effect of this proposal taken with the European Arrest
Warrant (EAW). It seemed to us that the proposal did not reach
any uniform definition of the offences constituting 'racism and
xenophobia', and that wide differences would continue between
the Member States as to the conduct they would regard as criminal.
On the other hand, Member States were to be required under this
proposal to provide for jurisdiction over offences taking place
wholly or in part within the national territory, including the
case where the conduct involved material hosted on an information
system whether or not the offender was present within the national
territory. These two factors made it quite likely that a person
in Member State A, even though acting lawfully under the law of
that State, would nevertheless become subject to the jurisdiction
of Member State B for a 'racism and xenophobia' crime.
6.4 This concern was heightened by the fact that 'racism
and xenophobia' was simply listed (without any definition) in
Article 2(2) of the EAW as one of the offences for which Member
States were no longer to be allowed to require dual criminality
as a condition of extradition. We considered that the abolition
of dual criminality under the European Arrest Warrant and the
absence of any uniform definition of 'racism and xenophobia' created
a substantial risk that persons would be extradited from this
country in respect of conduct which was lawful in the United Kingdom.
In his letter of 4 December, the Minister agreed with us that
it was possible that a person could be extradited from the UK
in respect of a conduct which amounted to a 'racism and xenophobia'
offence abroad, even if the conduct was lawful in the UK. The
Minister added that this was the case so long as the conduct concerned
took place in the country which made the extradition request.
The Minister also repeated an earlier commitment that no-one would
be extradited for conduct which took place in the UK which was
not contrary to the law of the United Kingdom.
The Minister's oral evidence of 15 January
6.5 The Parliamentary Under-Secretary of State at the
Home Office (Lord Filkin) appeared before us on 15 January to
give evidence on these and other concerns. Our questions to the
Minister covered four principal themes. First, we wished to know
more about the outcome of the Justice and Home Affairs Councils
of 28-29 November and 18 December. Secondly, we wished to ask
the Minister if the proposal complied with the principle of subsidiarity.
Thirdly, we wished to question the Minister on the scope of the
proposed offences and their lack of objectivity. Finally, we wished
to explore further the effect of this proposal in the light of
the European Arrest Warrant.
— The Justice and Home Affairs Councils on 28-29 November
and 18 December
6.6 We noted that the Written Answer of 16 December 2002[11]
by the Parliamentary Under-Secretary of State at the Home Office
(Mr Bob Ainsworth) reported that four Member States, including
the UK, thought that the proposal "struck the right balance
between punishing racist and xenophobic acts and protecting freedom
of expression" whereas the remaining Member States either
expressed "fundamental problems" with the scope of the
proposal or wished "to go substantially further, in particular
in reducing the threshold for criminal liability".
6.7 In his letter of 23 December, the Minister informed
us that at the Justice and Home Affairs Council on 19 December,
the Presidency decided to withdraw the item from the agenda, "concluding
that the current extent of the outstanding reservations precluded
agreement", and that negotiations would continue under the
Greek Presidency.
6.8 The Minister explained that there were two or three
Member States which wished to see a 'low threshold for criminality'
on these issues, whereas the UK and a number of other Member States
had strong freedom of speech traditions which meant they wished
to allow freedom of speech 'up to a point' before the criminal
law intervened.[12] The
Minister commented that 'some other European Union members find
that a difficult thing to comprehend' and that the 'fault line'
did not move, so that agreement was not reached at the December
JHA Council. The Minister added that he would be indicating to
the Greek Presidency his view that this was an important measure
and that 'it would not be good for Europe if it just failed or
disappeared'. On the prospects for an agreement, the Minister
thought that 'it would not be impossible' to reach an agreement
with further work.[13]
— The draft proposal and the principle of subsidiarity
6.9 From the introduction of the proposal, we questioned
the validity of the assumption, now set out in recital (5) of
the latest version, that it was necessary 'to ensure that the
same behaviour constitutes an offence in all Member States'. We
asked the Minister if such uniformity was necessary, and what
purpose it would serve. We also asked the Minister if the fact
that Member States were so far apart in agreeing the proposal
suggested that the principle of subsidiarity ought to be applied,
leaving each Member State to legislate for its own criminal law
adapted to its own social needs and traditions.
6.10 The Minister replied that the UK had argued that
the Framework Decision should confer a discretion to allow for
the different traditions in Member States on such issues as Holocaust
denial. The Minister continued:
"Clearly the position, for example, in Germany on Holocaust
denial is substantially different from the position as we are
used to it. We may think that people are unwise or even mad to
deny that there was a Holocaust but it is not a criminal offence
by itself in Britain. Therefore the approach has been to try and
put in place minimum standards, and that has been done, furthermore,
by the mechanisms for the review clause as well, which allows
Member States the discretion to limit the scope of offences to
conduct which is threatening, abusive or insulting and likely
to incite race hatred or violence as part of it. In other words,
Holocaust denial by itself if, as we would do, we invoked that,
would still not be an offence but it could be an offence if it
was done in a manner that was likely to incite race hatred or
violence, which we felt was a reasonable compromise and an appropriate
approach."[14]
6.11 The Minister went on to explain that at the JHA
Council most Member States were ready to agree to this compromise
and to the adoption of a review mechanism, with only two or three
wishing to adopt higher minimum standards. The Minister identified
these as Belgium, France and Spain. On the question of subsidiarity,
the Minister commented that the Government needed to ask itself
if the benefits of a collective agreement provided any 'gains
compared to a subsidiarity position' and added:
"There are two tests for that. Is it better in the narrow
term for British citizens in isolation, or is it better for the
wider picture? I still think we think there are appreciable gains
from seeking to get an agreement. Clearly, you have understood
from what I have just said that there are certain lines where
we will be very resistant to compromise. Those are often around
the freedom of speech issue. You will be keen to maintain that.
That is why we were disappointed with the collapse of the Agreement
because most were agreeable to the document which seemed to us
to make progress on racism whilst preserving our position on freedom
of speech, within reason."[15]
— The scope of the proposed offences
6.12 In our Report of 18 December, we recalled our concern
that the offences under the proposal were cast in terms which
seemed to us to be excessively subjective. We therefore welcomed
the provisions (now in Article 8) which permitted (but did not
require) Member States to limit criminal responsibility to those
cases where the acts were done in a manner likely to incite violence
or hatred or where the conduct was not threatening, abusive or
insulting. These seemed to us to re-establish the necessary objective
element for criminal offences.
6.13 It nevertheless remained the case that offences
could be constituted under the proposal without these objective
elements. We asked the Minister if it was satisfactory for the
proposed Framework Decision to make the publishing of unpopular
opinions, such as by distributing 'tracts pictures or other material'
a 'racism and xenophobia' offence, even where there was no likelihood
of an incitement to violence or hatred, or where the conduct was
not threatening or abusive or insulting. The Minister replied
that this would not be satisfactory as far as the United Kingdom
was concerned. Provided the publishing of such opinions was not
unlawful for other reasons, such as under the law of defamation,
this was 'the necessary price we pay for freedom of speech'.[16]
6.14 In our Report of 18 December we also noted our concern
about the extension of this proposal to cover public incitement
to discrimination on grounds of religious conviction. We noted
that the UK was not obliged to make such conduct criminal, unless
such discrimination is a pretext for conduct directed against
members of racial or ethnic groups. However, we also noted that
the freedom of the UK not to make such conduct criminal was to
be subject to a review by the Council within two years of adoption
of the Framework Decision. We asked the Minister why it was agreed
to institute such a review, and why it was to take place within
only two years.
6.15 In reply, the Minister pointed out that the Government's
stance on the issue of activities likely to provoke religious
hatred had not been one of neutrality, and that it had sought
to introduce corresponding measures in the Anti-Terrorism, Crime
and Security Bill but that these measures had had to be abandoned.
The Minister commented that the review clause would give the Government
an opportunity to reflect on the work of the Select Committee
in the House of Lords on this issue[17]
and that the two-year review was 'the necessary product of a negotiating
process'.[18]
— The effect of the proposal in the light of the European
Arrest Warrant
6.16 In our earlier reports, we drew attention to the
fact that the European Arrest Warrant (EAW) abolished dual criminality
in relation to 'racism and xenophobia', and that the present proposal
did not arrive at any uniform definition of the offences constituting
'racism and xenophobia'. We considered that the combination of
these two factors would lead to a substantial risk that persons
would be extradited from this country in respect of conduct which
was lawful in the United Kingdom. To meet this point, the Minister
gave a commitment that no-one would be extradited from the United
Kingdom for conduct here which was not contrary to United Kingdom
law.[19] We welcomed
this statement of UK law and practice on extradition. However,
we found it difficult to reconcile with the abolition of dual
criminality under the EAW and with the provisions on jurisdiction
in the proposal, which required Member States to provide for jurisdiction
over offences taking place partly, as well as wholly, within the
national territory.
6.17 We therefore asked the Minister to explain how his
commitment would apply to the case where the offence consisted
of acts done partly in the United Kingdom and partly in the State
requesting extradition. The Minister was invited to consider the
example of a television interview conducted in the United Kingdom
but which was broadcast to Germany or Austria, or the example
of the internet being used to convey offending remarks. The Minister
replied as follows:
"No-one will be extradited from the United Kingdom under
the European Arrest Warrant in respect of conduct which has occurred
here and which is legal here. The issue will turn on the judgment
about whether it occurs here or not....Ultimately, it will be
for the courts to decide whether or not, in some of the circumstances
you have instanced, they judge that the conduct occurred here
or whether they judge it occurred in the Member State that was
seeking to extradite someone to face action that they believed
had infringed their laws. With regard to, for example, a United
Kingdom citizen in the United Kingdom putting on what we would
think might be rude or stupid remarks about the Holocaust on to
a website, our view — and it is only our view and not the
court's view necessarily — would be that doing that, even
if it was accessed by German citizens and was accessible to a
German citizen, as it would be if it was on the web, would be
action in the United Kingdom and, therefore, would not be subject
to German law or extradition by the European Arrest Warrant".[20]
6.18 The Minister was pressed to consider the example
of a person accessing a German-based server in a German-based
'chat room' by means of a computer in the United Kingdom, and
to consider whether or not the German legal authorities would
be likely to seek extradition of a person who was posting material
denying the Holocaust. The Minister described this example as
'more difficult', but concluded:
"Ultimately, it will not be Ministers that make the decisions
about whether action took place in the United Kingdom or not,
it will be a court. I think our view is that the second example...is
more risky but we would still think it was probable that that
was an action that took place in the United Kingdom."[21]
6.19 On being questioned further, the Minister conceded
that the person who was behaving in the way suggested was 'running
a risk'.[22]
6.20 The Minister was invited to give a categoric and
unqualified assurance that no person would be liable to extradition
for 'racism and xenophobia' where any part of the conduct relied
on as constituting the offence took place in the United Kingdom
and where that conduct was lawful here. In reply, the Minister
stated as follows:
"With regard to the position on whether a person commits
an act in the United Kingdom which might be seen in another country
as racist or xenophobic, if that act takes place in the United
Kingdom they will not be extradited from the United Kingdom."[23]
6.21 This question was pursued with the example of a
person giving an interview in a London studio in which he made
remarks denying the Holocaust which were broadcast in Germany.
The Minister was asked to confirm that, because part of the act
took place in the United Kingdom, the person would not be liable
to extradition under the EAW. In response, the Minister stated
as follows:
"The act only needs to be partially taking place in the United
Kingdom for dual criminality to apply. Therefore, because dual
criminality applies, if you have got one foot in terms of locality
in the United Kingdom, if it is not an offence in the United Kingdom
you cannot be extradited."[24]
6.22 Our other concern in relation to the EAW was that
'racism and xenophobia' under the EAW appeared not be defined
in the same way as under the present proposal. In our Report of
18 December, we indicated we would ask the Minister if the proposal
ought to make clear that any reference to 'racism and xenophobia'
in the EAW was limited to to conduct proscribed by the present
proposal.
6.23 The Minister confirmed that there was no provision
requiring Member States to define the offences they classified
as 'racism and xenophobia' under the EAW in the same way as was
done under the present proposal. The Minister also commented that
"we are not using this [i.e. the Framework Decision] as a
mechanism to try to set minimum standards for the European Arrest
Warrant".[25]
The revised draft Framework Decision
6.24 The revised draft Framework Decision (document (b))
reflects the outcome of the Justice and Home Affairs Council of
28-29 November and of COREPER on 17 December. The only material
change is to Articles 1 and 8. The effect of the change is that
none of the conduct described in Article 1 needs to be 'threatening,
abusive or insulting' in order to be made criminal, but that Member
States may exclude from criminal liability any or all of such
conduct if it does not have this character (Article 8(1)(d)).
6.25 As before, Member States are permitted not to make
criminal public incitement to discrimination on grounds of religious
conviction where this is not a pretext for racial attacks and
where the conduct is not carried out in a manner likely to incite
to violence or hatred (Articles 8(1)(a) and 8(1)(b) and (c)).
Provision is made for a review by the Council of Articles 8(1)(a),
(b) and (c). However, the ability of Member States not to criminalise
conduct which is not 'threatening, abusive or insulting' is not
subject to the review.
The Government's view
6.26 In his Explanatory Memorandum of 10 January 2003
the Parliamentary Under-Secretary of State for Race Equality,
Community and European and International Policy at the Home Office
(Lord Filkin) explains that document (b) reflects the outcome
of meetings which took place during the run-up to the December
Justice and Home Affairs Council. The Minister explains that some
Member States continued to oppose wording which required Member
States only to criminalise conduct which was 'threatening, abusive
or insulting'. They argued that this requirement was unnecessary
in relation to the offences of public incitement to discrimination,
racial hatred and violence in Article 1(a), and also 1(b). They
have also argued that the requirement is unnecessary in relation
to the offences of denying or trivialising the Holocaust and other
forms of genocide because these acts are by their very nature
threatening, abusive or insulting.
6.27 The Minister explains that, notwithstanding the
change to Article 8, the UK's domestic position is still protected
in that the provision (Article 8(1)(d)) allows Member States the
discretion to criminalise conduct under Article 1 only when the
conduct is threatening, abusive or insulting. The Minister also
explains that the Presidency has not proposed that the review
clause should apply in this area. It will therefore apply only
to Article 8(1)(a) to (c).
Conclusion
6.28 We thank the Minister for his oral evidence,
which we have found helpful and informative.
6.29 In relation to the operation of the European
Arrest Warrant for a 'racism and xenophobia' offence, we draw
from the Minister's evidence the conclusion that, where the conduct
in question is lawful in this country, a person will not be liable
to extradition to another Member State for such an offence if
any part of it takes place in this country. This conclusion would
be welcome in relation to the offences provided for in the present
proposal, but we ask the Minister if he agrees with this conclusion,
and, if so, whether this principle will be made clear in the Extradition
Bill.
6.30 We infer from what the Minister has told us that
more work will be needed on this proposal before agreement will
be possible. We shall therefore clear document (a) on the grounds
that it has been superseded, but we shall hold document (b) under
scrutiny pending deposit of a revised text and a new Explanatory
Memorandum.
11 Official
Report, 16 December col. 628W. Back
12 Q.1.
(Numbers prefixed 'Q' relate to the oral evidence of 15 January
2003 printed at the end of this volume.) Back
13 Q.2. Back
14 Q.3. Back
15 Q.7. Back
16 Q.8. Back
17 The
Religious Offences Committee, appointed on 15 May 2002. Back
18 Q.10. Back
19 See
Minister's letter of 11 November: (23808) 12221/02; HC 63 -i (2002-03),
paragraph 9 (20 November 2002). Back
20 Q.11. Back
21 Q.12. Back
22 Q.13. Back
23 Q.14. Back
24 Q.24. Back
25 Q.25. Back
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