6 Racism and Xenophobia
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5118/07
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| 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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| Department | Home Office |
| Basis of consideration | Minister's letter of 22 March 2007
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| Previous Committee Report | HC 41-xi (2006-07), para 5 (28 February 2007); and 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 | Justice and Home Affairs Council 19-20 April 2007
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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
6.1 We considered a revised version of the draft Council Framework
Decision to approximate the laws of Member States in relation
to offences involving the concept of "racism and xenophobia"
on 28 February 2007. We noted that this marked the third attempt
to reach agreement, the first proposal having been made as long
ago as November 2001 and the present proposal being based on a
compromise text put forward by the Luxembourg Presidency in the
first half of 2005, but on which there was again no agreement.
6.2 We asked the Minister to reconsider his view
that the proposal raised no issue of subsidiarity, since in our
view, it was plain that there were 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 was also
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, given that there were wide variations
between Member States in the balance which they had achieved 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.
6.3 We also asked the Minister to explain if the
crime or crimes created by the present proposal would amount to
"racism and xenophobia" for the purposes of the list
of offences in the European Arrest Warrant and the European Evidence
Warrant (for which dual criminality could not be required), and
if they did not, what practical utility there would be in adopting
the proposal.
6.4 We drew 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 was not clear if the offence was
limited to denying, condoning or trivialising those particular
war crimes or crimes against humanity which were brought to an
end in 1945.
6.5 We agreed with the points the Minister made about
the need to retain Article 8(1) (which permits Member States not
to make conduct criminal unless it is likely to incite to violence
or hatred, or is threatening, abusive or likely to disturb public
order). 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
believed the Minister was 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.
6.6 We also agreed that the provisions of Article
8(2) (which relates to grounds for refusing legal assistance to
another Member State) should be deleted, as they were confusing
and redundant. We asked the Minister for an account of his consideration
of how sanctions might be imposed on a legal person where a lack
of control or supervision has led to the commission of an offence.
The Minister's reply
6.7 In his letter of 22 March 2007 the Parliamentary
Under-Secretary of State at the Home Office (Vernon Coaker) provides
a detailed and helpful reply to the points we put to him.
6.8 On the question of subsidiarity, the Minister
agrees with us that, "for historical and cultural reasons,
there are different approaches to certain forms of racist behaviour".
The Minister also shares our misgivings about any need to adopt,
at EU level, rules on the denial of war crimes or the Holocaust
and states that the Government agrees that the UK should not be
forced to make Holocaust denial a crime. The Minister seeks to
reassure us that the current proposal does not require the UK
to do so.
6.9 However, the Minister also states that the Government
sees a need to tackle racist and xenophobic crime at EU level
and "as such" believes the subsidiarity test "is
met in this case". The Minister states his reasons as follows:
"It is a regrettable fact that racist crime
is a problem across the EU, and the effectiveness of individual
national responses is extremely variable. There is increasing
migration between Member States, particularly with recent enlargement
of the EU. British citizens and residents increasingly work in,
and travel to, other Member States. They have the right to expect
that they will receive adequate protection from racial and xenophobic
hatred. The Government believes that when a racist or xenophobic
crime is committed, the Member State in which the crime was committed
should prosecute the perpetrator under its relevant laws, but
some Member States do not deal effectively with racist crime.
We therefore see a real benefit to citizens in setting a minimum
standard of protection from racist crime across the EU. We are
very conscious that this approach will nonetheless need to strike
a balance between the right to freedom of expression and the right
not to be a victim of racist and xenophobic hatred or violence."
6.10 We drew the Minister's attention to the absence
of any definition of the concepts of "racism and xenophobia",
"condoning" or "grossly trivialising". We
also drew attention to the ambiguity in Article 1(1)(d) where
we considered it was not clear whether the provision applied to
those crimes defined in the London Agreement of 8 August 1945
(and which were considered by the International Military Tribunal
at Nuremberg in 1946) or whether it applied to war crimes and
crimes against humanity committed on other occasions.
6.11 In reply, the Minister agrees that "racism
and xenophobia" are not defined in the proposal, but points
out that the concept is also undefined in domestic law on incitement
to racial hatred, and the term "xenophobic" is not used
at all. The Minister explains that the premise in domestic law
is to define those acts and behaviour which constitute racist
offences, and states that the proposed Framework Decision adopts
the same approach. The Minister further explains that the Public
Order Act 1986 makes it unlawful to incite hatred in a threatening,
abusive or insulting manner against a group of persons defined
by race, colour, national or ethnic origin, or nationality (including
citizenship). The Minister states that "this clearly covers
racist behaviour and we believe that the inclusion of national
origin, nationality and citizenship means that the concept of
xenophobic hatred- hatred of foreigners- is covered in our domestic
law".
6.12 In relation to the wording of Article 1(1)(d)
and the lack of definition of "condoning" or "grossly
trivialising", the Minister explains that "in the UK
we only criminalise behaviour that is carried out in a threatening,
abusive, or insulting manner that constitutes racial hatred".
The Minister goes on to suggest that the Framework Decision enables
the UK to retain that approach and "therefore we will not
be obliged to make specific criminal offences of denying, condoning
or trivialising the Holocaust or any other war crime" and
that "the absence of a specific definition does not affect
that outcome".
6.13 The Minister confirms that the proposal does
not seek to define "racism and xenophobia" for the purposes
of the list of offences in the European Arrest Warrant (EAW)and
the European Evidence Warrant (EEW), in respect of which dual
criminality cannot be required as a condition for extradition
or of executing a warrant. In reply to our question whether the
proposal had any utility if it did not at least achieve such a
definition, the Minister replies:
"the Government is a strong proponent of
the mutual recognition agenda and accepting common EU definitions
of the offences for which dual criminality is not required in
mutual recognition measures would be a move away from the basic
principles of mutual recognition i.e. that in such circumstances
it is the law of the issuing State that should apply."
6.14 The Minister explains further that Member States
will have to reflect as a minimum the racist and xenophobic offences
agreed in the Framework Decision, but that "if the Framework
Decision says that we can apply a higher criminal threshold for
Holocaust denial then we will". The Minister points out that
not all Member States will be obliged to apply a higher criminal
threshold and that the decision on this will reflect their national
practices. The Minister also states that the Government believes
that the Framework Decision "could provide value in committing
Member States to tackling the most serious forms of racist and
xenophobic conduct across Europe". In this context the Government
attaches importance to the provisions of Article 4 which requires
courts in all Member States to take into account any racist or
xenophobic motivation when sentencing for a crime.
6.15 The Minister informs us that Member States remain
divided on whether to include the provisions of Article 8(2) (which
restrict the reliance on the principle of dual criminality in
relation to mutual legal assistance), but that the Presidency
"is exploring with interested parties, on a bilateral basis,
solutions which we hope would secure that outcome". The Minister
informs us that no formal proposals have yet been tabled in that
regard.
6.16 The Minister describes in detail the provisions
of Article 5(2) of the proposal which provide for corporate liability
for offences committed by employees for the benefit of the company
arising from a lack of supervision or control by a person in a
position of authority. The Minister explains that in the majority
of cases under the Framework Decision the offences will be committed
by individuals, but that there may be cases where an organisation
or company may be involved in the activity . The Minister further
explains that the language of Articles 5 and 6 of the proposal
do not require criminal sanctions to be applicable to such conduct
and that "it is accepted" that requirements drafted
in this way can be met by civil or administrative sanctions, such
as by an action for damages or by a civil action for recovery
of the proceeds of crime under the Proceeds of Crime Act 2002.
6.17 The Minister informs us that the Framework Decision
will be submitted to the JHA Council on 19-20 April and that it
is believed the Presidency will be looking for a general approach
at that meeting, pending the opinion from the European Parliament.
Conclusion
6.18 We thank the Minister for his detailed and
helpful letter.
6.19 The proposal raises a number of difficult
issues of principle, the first of which is whether a measure should
be adopted at EU level, given the serious division of opinion
between Member States on the treatment of the public expression
of ideas. We note the comments the Minister has made about the
protection of UK nationals abroad from racial and xenophobic hatred,
but we consider the point would have greater weight if examples
could be cited of Member States where the existing legislation
does not provide adequate protection. In this regard we recall
that the Commission stated in 2001 in its Explanatory Memorandum
that "all Member States have passed legislation outlawing
racist conduct or incitement to racial hatred". We ask the
Minister if he is saying that the situation of UK nationals abroad
has become worse since 2001, and, if so, in what respects.
6.20 We note the confirmation by the Minister
that the proposal will not define "racism and xenophobia"
for the purposes of the list of the types of conduct under the
European Arrest Warrant and the European Evidence Warrant in respect
of which the safeguard of dual criminality has been abandoned.
We find it extraordinary, and likely to be incomprehensible to
the public, that so much effort should be devoted to defining
the offences which constitute "racism and xenophobia"
for the purposes of this proposal, when it will have no effect
in relation to other EU measures which refer, in terms, to "racism
and xenophobia".
6.21 We note the Minister's reply to our criticisms
of the vagueness and ambiguity of terms such as "condoning"
or "grossly trivialising" as used in Article 1(1) which
may fairly be summarised as stating that these are not of concern
to the UK as it can make use of the derogations in Article 8(1)
to criminalise only that behaviour which is carried out in a threatening,
abusive or insulting manner so as to incite racial hatred, and
would not, therefore, be obliged to provide for specific criminal
offences of denying, condoning or trivialising the Holocaust or
war crimes. However, we still think it a bad practice to define
criminal offences in such vague terms that they can only be made
sense of by relying on derogations.
6.22 In any event, it is not entirely clear to
us whether the terms of Article 8(1) are accepted by other Member
States, and we ask the Minister to inform us of the latest position
in relation to this key provision. As part of this explanation,
we would be grateful if the Minister would confirm whether the
offence under Article 1(1)(d) is limited to those crimes which
were brought to an end in 1945 or whether it applies also to war
crimes and crimes against humanity committed since then.
6.23 We also look forward to being informed of
proposals in relation to Article 8(2). We note that the Presidency
may be seeking a "general approach" on the proposal
at the JHA Council in April, but, for the avoidance of any doubt,
we make it clear that we do not clear the proposal from scrutiny
for that purpose. We shall await further information on the outcome
of negotiations, notably on the provisions of Article 8, and may
well recommend that the proposal as a whole should be debated
once its shape has become more clear.
6.24 We shall hold the document under scrutiny
pending the Minister's reply.
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