Select Committee on European Scrutiny Sixteenth Report

6 Racism and Xenophobia



Draft Framework Decision on combating racism and xenophobia

Legal baseArticles 29, 31 and 34(2)(b) EU; consultation; unanimity
DepartmentHome Office
Basis of considerationMinister's letter of 22 March 2007
Previous Committee ReportHC 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)
To be discussed in CouncilJustice and Home Affairs Council 19-20 April 2007
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested


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.


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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