5 Racism and Xenophobia
| (28294)
5118/07
—
| Draft 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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| Deposited in Parliament | 24 January 2007
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| Department | Home Office |
| Basis of consideration | EM of 14 February 2007
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| Previous Committee Report | None; but see (24132), (24263), (24295) and (24348) 7280/03 HC 63-xvii (2002-03), para 2 (2 April 2003)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
5.1 A proposal for a Council Framework Decision to approximate
the laws of Member States in relation to offences involving the
concept of "racism and xenophobia" was first made as
long ago as November 2001. The previous Committee examined successive
versions of that proposal on a number of occasions in 2002 and
took oral evidence from the then Minister on 15 January 2003.
The previous Committee considered a revised proposal on 2 April
2003 and recommended it for debate in European Standing Committee
B, which debate took place on 14 May 2003.
5.2 The proposal defined "racism and xenophobia"
as "the belief in race, colour, descent, religion or belief,
national or ethnic origin as a factor determining aversion to
individuals or groups". It provided for a number of acts
to be made criminal, if done with a racist or xenophobic purpose.
These included the public incitement to violence or hatred, public
insults or threats towards individuals or groups, the "public
condoning" of genocide, crimes against humanity and war crimes,
and the "public denial or trivialisation … in a manner
liable to disturb the public peace" of the crimes defined
in the Charter of the International Military Tribunal appended
to the London Agreement of 1945.[13]
5.3 The previous Committee had a number of concerns
over the proposal, notably as to whether it was necessary to provide
for a "common criminal law approach" on this matter
throughout the European Union, that the offences 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. In this regard, the proposal did
not seem to the previous Committee to have struck the right balance
between the freedom of expression on the one hand and the prevention
of racial hatred on the other. The Committee was also concerned
about the likely effect of the proposal taken with the European
Arrest Warrant (EAW). The Committee noted that the EAW listed
"racism and xenophobia" as one of the offences for which
Member States could not require dual criminality[14]
as a condition for extradition, that the proposal did not contain
any uniform definition of "racism and xenophobia" and
that Member States were nevertheless to provide for extended rules
of criminal jurisdiction. These factors made it likely that a
person in one Member State, although acting quite lawfully there,
could nevertheless become subject to the jurisdiction of another
Member State for a "racism and xenophobia" offence,
and become liable to extradition to that State.
5.4 It was apparent to the previous Committee that
there were substantial differences in the laws of Member States
relating to "racism and xenophobia", particularly in
relation to conduct, such as denial of the Holocaust, where the
expression of opinions — however ill-judged — was
not in itself threatening, abusive or insulting or was not of
a kind such as to be likely to incite others to racial hatred
or violence. In his evidence to the previous Committee, the then
Minister used the term "fault-line" to describe the
difference of opinion between those Member States (which the Committee
understood to be Belgium, France and Spain) which wished to see
a "low threshold of criminality" in relation to such
conduct and those, with the United Kingdom, which had strong traditions
in favour of freedom of speech and which were prepared to allow
more latitude before any intervention by the criminal law.
5.5 Evidently, these "fault lines" remained,
since the Greek Presidency decided to suspend negotiations on
the proposal in the first half of 2003. Negotiations were briefly
resumed during the Luxembourg Presidency in the first half of
2005, but did not reach agreement. The matter has now been taken
up once more by the German Presidency.[15]
The draft Framework Decision
5.6 The draft Framework Decision is largely based
on the text considered during the Luxembourg Presidency, which
failed to produce an agreement. The provisions of the revised
version may be summarised as follows.
5.7 The preamble refers to "racism and xenophobia"
in a number of contexts (such as in the statement that "racism
and xenophobia" are "direct violations of the principles
of liberty, democracy, respect for human rights and fundamental
rights and the rule of law" and in the assertion that it
is necessary to "define a common criminal law approach in
the European Union to this phenomenon of racism and xenophobia
in order to ensure that the same behaviour constitutes an offence
in all Member States"), but the concept of "racism and
xenophobia" is nowhere defined in the proposal.
5.8 A number of definitions, of terms such as "descent",
"religion" and "hatred", are set out but these
are contained in the recitals, so it is unclear whether they are
intended to form part of the operative part of the Framework Decision.
5.9 The recitals seek to argue that the proposal
is compatible with the principle of subsidiarity by stating that
the proposal has the objective of sanctioning "racism and
xenophobia" in all Member States and of improving judicial
cooperation, that "rules have to be common and compatible"
and that the objective can therefore be better achieved at the
level of the Union. However (as may be seen below) the proposal
does not in fact achieve the objective of prescribing common rules,
and no explanation is offered as to why it is said to be necessary
to ensure "that the same behaviour constitutes an offence
in all Member States" (as is stated in recital (5)).
5.10 Article 1 of the proposal defines the conduct
which Member States are required to make criminal. This consists
of four categories of conduct set out in Articles 1(a) to (d),
these being subject to the exclusions which Member States may
make under Article 8.
5.11 Article 1(a) requires Member States to make
criminal "publicly inciting to violence or hatred directed
against a group of persons or a member of such a group defined
by reference to race, colour, religion, descent or national or
ethnic origin". "Hatred" is not defined for these
purposes (the recital simply explains that "hatred"
refers to "hatred based on race, colour, religion, descent
or national or ethnic origin"), so that it appears that the
incitement need not be to any overt act against any person or
group for it to be made criminal. The offence also does not appear
to require that the behaviour be threatening in any way.
5.12 Article 1(b) requires Member States to make
criminal the "commission of an act referred to in point (a)
by public dissemination or distribution of tracts, pictures or
other material".
5.13 Article 1(c) requires Member States to make
criminal the act of "publicly condoning, denying or grossly
trivialising crimes of genocide, crimes against humanity and war
crimes" (these latter being defined as those which are defined
in Articles 6, 7 and 8 of the Statute of the International Criminal
Court)[16] when "directed
against a group of persons or a member of such a group defined
by reference to race, colour, religion, descent or national or
ethnic origin". The terms "condoning" and "grossly
trivialising" are not further defined.
5.14 Article 1(d) requires Member States to create
an offence similar to that under Article 1(c), but in this case
the offence is to be one of publicly condoning, denying or grossly
trivialising the crimes defined in Article 6 of the Charter of
the International Military Tribunal appended to the London Agreement
of 8 August 1945. Unlike the original proposal, there is no requirement
that the act be done in a manner liable to disturb the public
peace. Neither is there any requirement (as there was in the Joint
Action of 15 July 1996)[17]
that the behaviour should be contemptuous of, or degrading to,
a group of persons defined by reference to colour, race, religion
or national or ethnic origin. It is not clear if the definition
in Article 6 of the Charter of the International Military Tribunal
is to be interpreted strictly or broadly for these purposes. A
strict interpretation would limit the reference to those crimes
which were committed by "persons acting in the interests
of the European Axis countries"[18]
in the period 1939-45. The offence covered by Article 1(d) would
therefore cover "Holocaust denial" as well as denying
war crimes or other crimes against humanity committed by those
persons in that period. A broader interpretation would refer to
crimes against peace, war crimes and crimes against humanity committed
by any person at any time, leading to a much broader coverage
of the proposed offence.
5.15 Article 2 requires Member States to criminalise
the aiding and abetting of the offences in Article 1 and the instigation
of the offences under Articles 1(c) and (d), and Article 3 requires
Member States to provide for the imposition of a maximum term
of imprisonment of at least 1 to 3 years for the offences under
Article 1.
5.16 Article 4 is concerned with "racist and
xenophobic motivation" for offences other than those under
Articles 1 and 2, and requires Member States to ensure that such
motivation either is considered as an aggravating factor, or may
be taken into consideration, by a court in passing sentence.
5.17 Article 5 requires Member States to ensure that
legal persons can be held "liable" for the conduct referred
to in Articles 1 and 2 when committed for their benefit by any
person having a "leading position" within the organisation
in question. Article 5(2) requires Member States to ensure that
a legal person can be held liable where "lack of supervision
or control" by a person in a leading position has made possible
the commission of the conduct referred to in Articles 1 and 2.
By virtue of Article 6, the sanctions to be imposed must include
"criminal or non-criminal fines".
5.18 Article 7(1) states that the Framework Decision
is not to have the effect of modifying the obligation to respect
fundamental rights and fundamental legal principles, including
freedom of expression and association, as "enshrined"
in Article 6 EU. Article 7(2) provides that the Framework Decision
is not to have the effect of requiring Member States to take measures
"in contradiction to [sic] their constitutional rules and
fundamental principles relating to freedom of association, freedom
of the press and the freedom of expression in other media or rules
governing the rights and responsibilities of, and the procedural
guarantees for, the press or other media where these rules relate
to the determination or limitation of liability".
5.19 Article 8(1) permits Member States to exclude
the conduct referred to in Article 1 from criminal responsibility
in a number of circumstances. The first is where the conduct is
directed against a group of persons or a member of such a group
defined by reference to religion and where the conduct "is
not a pretext" for directing acts against such persons by
reference to race, colour, descent or national or ethnic origin.
However, it is also provided that Member States may not excuse
from criminal liability the use of threatening words or behaviour
with the intention to stir up religious hatred.
5.20 In the second case, Member States may exclude
the conduct referred to in Article 1(c) and (d) where the conduct
is carried out in a "manner unlikely to incite to violence
or hatred " directed against a group or member of a group
referred to in Article 1.
5.21 Finally, under Article 8(1)(d), Member States
may exercise an option not to make criminal the conduct referred
to in Article 1 where this is not "threatening, abusive or
insulting or is unlikely to disturb public order".
5.22 Article 8(2) restricts the reliance a Member
State may place on the principle of dual criminality as a reason
for refusing to accede to a request for mutual legal assistance.
(The scope and effect of this provision are not clear, because
"racism and xenophobia" is one of the list of 32 types
of conduct in respect of which Member States may not rely in any
event on dual criminality as a reason for refusing to enforce
a European Arrest Warrant or a European Evidence Warrant). Accordingly,
in circumstances where dual criminality could otherwise have been
relied on, the principle may not be invoked except where a "significant
part"[19] of the
offence concerned has been committed in the territory of the requested
State, or where the offence has been committed outside the territory
of the requesting State and the law of the requested State does
not allow prosecution for the same offence when committed outside
its territory.
5.23 Article 9 requires Member States to ensure that
investigations or prosecutions for the conduct referred to in
Articles 1 and 2 are not dependent on a report or accusation made
by a victim of the alleged conduct.
5.24 Article 10 requires Member States to make rules
for jurisdiction on an extensive basis. Member States are required
to establish jurisdiction where the conduct is committed in whole
or in part within its territory (Article 10(1)(a)). Additionally,
Member States are required to establish jurisdiction where the
offence is committed by one of its nationals (Article 10(1)(b)),
or where the offence is committed "for the benefit"
of a legal person having its head office within the territory
of that Member State (Article 10(10(c)), although in these two
cases, they may decide not to adopt such rules of jurisdiction
or to qualify their application (Article 10(4)).
5.25 The territorial rules of jurisdiction in Article
10(1)(a) are further amplified by Article 10(2) in relation to
conduct "committed through an information system".[20]
Member States are accordingly required to ensure that their rules
of jurisdiction cover the case where a person commits the offence
when physically present in the territory (whether or not the conduct
involves material hosted on an information system within its territory),
and the case where the conduct involves material hosted on an
information system within its territory (whether or not the person
commits the offence when physically present in the territory).
5.26 Article 10(3) sets out a specific rule on extradition[21]
. It requires those Member States which do not extradite their
own nationals to establish jurisdiction and to prosecute "where
appropriate" offences committed by its own nationals outside
the national territory.
The Government's view
5.27 In a somewhat brief Explanatory Memorandum,
the Parliamentary Under-Secretary of State at the Home Office
(Vernon Coaker) describes the effects on United Kingdom law of
the proposal and its policy implications.
5.28 In relation to the effect on United Kingdom
law, the Minister indicates that he is "continuing to explore"
the options for legislation to give effect to the requirement
under Article 5(2) of the proposal to impose "sanctions or
measures" on a legal person where a lack of supervision or
control has contributed to the commission of an offence.
5.29 The Minister goes on to explain that, as far
as Scotland is concerned, "the common law already covers
many situations in which an incitement to religious hatred might
be used". The Minister also explains that "statute provides
that where a crime is motivated by religious hatred the court
must state the extent to which the sentence has been aggravated
because of the malice directed at the victim of the crime".
The Minister adds that:
"Scottish Ministers considered this issue in
2005 and concluded that no new statutory provision should be created
but instead that the legislation should be kept under review and,
if it appeared in the future that the existing law was unable
to protect religious communities, to consider how best it could
be strengthened".
5.30 In a brief comment, the Minister states that
the proposal raises no issues of subsidiarity.
5.31 As for the policy implications of the proposal,
the Minister notes that the proposal marks the third attempt at
reaching agreement on the Framework Decision and that it is based
on a Luxembourg compromise text of June 2005 on which "there
was a wide level of consensus" under the then Luxembourg
Presidency.
5.32 The Minister nevertheless points out that Article
8 "was then and still is the main point of discussion".
The Minister welcomes the retention of Article 8(1) as it reflects
the UK's concern as to the scope of offences under Article 1,
and explains that Article 8(1)(c) gives Member States the option
of excluding from criminal liability the offences of denial of
the Holocaust and certain war crimes, where this is not done in
a manner which stirs up racial hatred or violence. The Minister
considers that this exception would allow the UK to retain the
current provisions on incitement to racial hatred in the Public
Order Act 1986.
5.33 The Minister adds that the retention of Article
8(1)(d) (which permits Member States to exclude acts which are
not carried out in a manner which is "threatening, abusive
or insulting") would permit the UK to "retain the criminal
threshold for offences of incitement to racial hatred contained
in the Public Order Act 1986".
5.34 The Minister explains that the Government is
seeking the removal of Article 8(2) as it takes the view that
it has been superseded by the European Evidence Warrant, but that
some Member States may argue for its retention.
5.35 In a letter of 13 February 2007 the Parliamentary
Under-Secretary of State at the Home Office (Joan Ryan) informs
us that the German Presidency is "keen to reach swift agreement"
on the proposal and that "whilst the UK believes it to be
worthwhile, previous experiences have shown this to be a difficult
and contentious dossier". The Minister adds this further
comment:
"We understand and respect that some States
ban Holocaust denial, but there is a consensus in the UK, across
the political spectrum and including from members of the Jewish
community, that this is not an approach we should adopt in the
UK. Another outstanding issue is that we do not support the text
on mutual legal assistance proposed at Article 8(2). We believe
that this has now been superseded by the agreement on the European
Evidence Warrant, which would govern requests for evidence in
relation to racist and xenophobic crime."
Conclusion
5.36 We believe the Minister (Joan Ryan) is right
to describe this proposal as a "difficult and contentious
dossier", and we note that the present proposal marks a third
attempt to reach agreement.
5.37 We ask the Minister (Vernon Coaker) to reconsider
his view that the proposal raises no issue of subsidiarity. In
our view, it is plain (and has been confirmed by statements from
previous Ministers) that there are serious divisions of opinion
between Member States as to whether the public expression of ideas,
without more, should be subject to the criminal law. It is far
from obvious to us why there should now be a need to adopt, at
EU level, a series of rules on, for example, the denial of war
crimes or the Holocaust. It is also apparent that the balance
struck by Member States between, on the one hand, the control
of incitement to violence and racial or religious hatred by means
of the criminal law, and the freedom of speech and association
on the other, varies considerably between Member States, and this
by reason of their own histories and social conditions.
5.38 We ask the Minister to explain if the crime
or crimes created by the present proposal will amount to "racism
and xenophobia" for the purposes of the list of offences
in the European Arrest Warrant and the European Evidence Warrant,
and if he considers such definition as is achieved by the present
proposal will apply to those measures.
5.39 We note that Germany has made, or will make,
a declaration on its adoption of the European Evidence Warrant
that it reserves the right to apply dual criminality in relation
to requests for evidence in relation to "racism and xenophobia"
unless the offences are those as defined in Joint Action 96/443/JHA.
We considered this to be a reasonable way of dealing with the
vagueness of the list of offences for which dual criminality could
not be required under the European Evidence Warrant (EEW). If
the present proposal does not seek to define "racism and
xenophobia" also for the purposes of the EAW and EEW, then
we ask the Minister to explain what practical utility there will
be in adopting the proposal.
5.40 We draw to the Minister's attention a number
of serious defects in the proposal, such as the absence of any
definition of the key concept of "racism and xenophobia",
the lack of any definition of "condoning" or "grossly
trivialising" and the ambiguity over the scope of the offence
under Article 1(1)(d), where it is not clear if the offence is
limited to denying, condoning or trivialising those war crimes
or crimes against humanity which were brought to an end in 1945.
We ask the Minister for his comments on these points.
5.41 We agree with the points the Minister has
made about the need to retain Article 8(1), if the proposal is
to be adopted. Without these exceptions, the proposal would make
a serious, and in our view, unnecessary change to the existing
law in the UK as it would criminalise the expression of ideas
as such. We believe the Minister is right to insist that criminal
responsibility should not be imposed in such cases unless the
expression of ideas is done in a threatening manner and with the
intention of stirring up racial or religious hatred.
5.42 We also agree that the provisions of Article
8(2) should be deleted. In our view, they are confusing and redundant.
However, we repeat our view that such definition of "racism
and xenophobia" as is achieved by this proposal should also
be applicable to other instruments adopted at EU level which refer
to this term. Indeed, we can see no good reason why this should
not be so, but we ask the Minister if he agrees.
5.43 We note that the Minister is considering
how sanctions may be imposed on a legal person where a lack of
control or supervision has led to the commission of an offence
and we look forward to a further account in due course of his
consideration of this question.
5.44 We shall hold the document under scrutiny
pending the Minister's reply.
13 This was concluded between the United States, the
USSR, the United Kingdom and France on 8 August 1945 and provided
for the establishment of an International Military Tribunal to
try crimes against peace, war crimes and crimes against humanity. Back
14
I.e. that the conduct in respect of which extradition is sought
is criminal both in the requesting and requested State. Back
15
In its Programme for the Presidency, Germany states that it "plans
to resume the stalled negotiations on drafting a framework decision
on combating racism and xenophobia and to drive the project forward".
It describes its goal as achieving "a minimum level of harmonization
in the penal provisions of the EU Member States, particularly
with regard to criminal liability for disseminating racist and
xenophobic ideas". Back
16
Adopted at Rome on 17 July 1998. Article 6 defines the crime of
genocide, Article 7 crimes against humanity and Article 8 defines
war crimes. Back
17
OJ No. L185, 24.07.96, p.5. Back
18
Article 6 of the Charter of the International Military Tribunal. Back
19
The equivalent provision in the EAW allows a Member State to refuse
to enforce a warrant where, under its law, the offence is regarded
as committed "in whole or in part" in the requested
State. Under the proposal, it is not clear which system of law
applies. Back
20
"Information system" is not defined, but presumably
would cover the use of the internet and other communications networks. Back
21
The relationship of this provision with the EAW is unclear. Back
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