24 Combating racism and xenophobia
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5784/14
COM(14) 27
+ ADD 1
| Commission report on the implementation of Council Framework Decision 2008/913/JHA on combating certain forms of racism and xenophobia by means of criminal law
Commission Staff Working Document: National transposition measures and data on the application of the Framework Decision submitted by Member States
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| Legal base | —
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| Document originated | 27 January 2014
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| Deposited in Parliament | 30 January 2014
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| Department | Home Office
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| Basis of consideration | EM of 13 February 2014
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| Previous Committee Report | None
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| Discussion in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Cleared
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Background
24.1 In 2008, the Council agreed a criminal law measure
— Framework Decision 2008/913/JHA — introducing a
limited harmonisation of Member States' laws on racism and xenophobia.
It requires Member States to create criminal offences and penalties
for certain types of intentional conduct directed against a group
of persons (or individuals belonging to such a group) defined
by reference to their race, colour, religion, descent or national
or ethnic origin which:
· publicly incites violence or hatred, including
through the dissemination or distribution of tracts, pictures
or other material; or
· publicly condones, denies or grossly trivialises
genocide, war crimes and crimes against humanity, or crimes within
the jurisdiction of the Nuremburg Tribunal,[110]
when such conduct is carried out in a manner likely to incite
violence or hatred; or
· instigates, aids or abets the commission
of such offences.
24.2 Member States may decide only to penalise conduct
carried out in a manner likely to disturb public order or which
is threatening, abusive or insulting. The Framework Decision
requires Member States to introduce a maximum penalty of not less
than one to three years' imprisonment and to ensure that racist
or xenophobic motivation is either considered an aggravating circumstance
when prosecuting other crimes, or may be taken into account when
determining sentence. The Framework Decision also includes rules
on jurisdiction and the liability of legal persons, as well as
safeguards intended to protect fundamental rights, notably freedom
of expression and association. Member States had until the end
of November 2010 to implement the Framework Decision.
24.3 In July 2013, the Government confirmed its intention
to opt out of all EU police and criminal justice measures adopted
before the Lisbon Treaty took effect on 1 December 2009. The
2008 Framework Decision on racism and xenophobia is not included
in the list of 35 measures that the Government has said it intends
to seek to rejoin.[111]
As a consequence, it will cease to apply to the UK with effect
from 1 December 2014 and the UK will be released from its obligation
to implement the criminal law provisions it contains.
The Commission report
24.4 The purpose of the Commission report is to assess
whether Member States have correctly transposed the requirements
of the Framework Decision into their national laws and are complying
with its provisions. The report recalls that, despite the disparate
legal frameworks and traditions governing racist and xenophobic
hate or speech crimes across Member States, the Framework Decision
establishes sufficient "common ground" to ensure that
the same conduct constitutes an offence throughout the EU and
attracts "effective, proportionate and dissuasive" penalties.
24.5 The report reveals a mixed picture, largely
because many Member States have relied on existing national criminal
laws and interpretative case law to comply with the requirements
of the Framework Decision, rather than introducing specific new
legislation. The UK, for example, has notified 22 national transposition
measures, most pre-dating the Framework Decision, which implement
its provisions in England and Wales, Scotland, Northern Ireland
and Gibraltar. In many cases, the language used in the Framework
Decision is only partially reflected in national implementing
legislation, creating a degree of uncertainty as to the scope
of the criminal offences established and their full compliance
with the Framework Decision.
24.6 The report notes that a large majority of Member
States have introduced appropriate criminal penalties and ensure
that their criminal justice systems take due account of racism
and xenophobia as a motivating factor in the commission of other
offences. The Commission questions, however, whether all Member
States have complied with the rules establishing jurisdiction
(although some grounds of jurisdiction, including extra-territorial
jurisdiction for crimes committed by a national of a Member State
outside its territory, are optional).
24.7 The report draws attention to examples of good
practice, such as the creation of specialised units to investigate
and prosecute hate speech and hate crime, and better protection
for victims. It underlines the need for close cross-border cooperation
to tackle the dissemination of hate speech via the internet, and
for the collection of reliable and comparable data on the incidence
(and response to) hate and speech crimes.
24.8 The report concludes that a number of Member
States have not yet correctly transposed the Framework Decision,
highlighting, in particular, shortcomings in relation to the definition
of offences condoning, denying or grossly trivialising genocide,
crimes against humanity and war crimes (including crimes within
the jurisdiction of the Nuremberg Tribunal), the liability of
legal persons, and jurisdiction. The Commission says that it
will seek to address any deficiencies through a process of bilateral
dialogues with the relevant Member States. It notes that it will
be able to bring infringement proceedings in the event of non-compliance
from 1 December 2014.
The Government's position
24.9 The Minister for Crime Prevention (Norman Baker)
welcomes the Commission's report, adding:
"It is encouraging to learn that criminal
legislation to deal with serious forms of racism and xenophobia
has been implemented in other Member States."[112]
24.10 However, he takes issue with the Commission's
assessment of the UK and Gibraltar's record of compliance with
elements of the Framework Decision:
"While the UK and Gibraltar have no specific
criminal offences of publicly condoning, denying or grossly trivialising
crimes of genocide, crimes against humanity, war crimes, and crimes
against peace when carried out in a manner likely to incite to
violence or hatred (as referred to in Article 1(1)(c) and (d)
of the Framework Decision) in our view, any conduct that seeks
to incite violence or hatred may well, depending on the circumstances,
amount to an offence under existing incitement to hatred legislation
in the UK. Case law[113]
setting out how this has been applied in the UK courts was submitted
to the Commission and this point is highlighted in the report."[114]
24.11 The Minister notes that that Commission report
does not make clear that some of the grounds of jurisdiction set
out in the Framework Decision are optional and so are not binding
on the UK. He considers that a combination of existing domestic
legislation and common law provisions in the UK, as well as existing
and new legislation in Gibraltar, ensures compliance with the
requirements of the Framework Decision without the need to create
specific new offences.
24.12 The Minister confirms that the Government does
not intend to seek to opt back into the Framework Decision once
it ceases to apply to the UK from 1 December 2014, but adds:
"Notwithstanding the Government's decision
to opt out of the Framework Decision, we take the issue of hate
crime very seriously, and will continue to work with other Member
States to tackle this at a practical level."[115]
24.13 He says that:
"The UK [and Gibraltar] will continue to
meet the requirements of this instrument regardless of our participation
in this Framework Decision."[116]
Conclusion
24.14 In light of the Government's decision to
exercise its block opt-out of pre-Lisbon EU police and criminal
justice measures, including this Framework Decision, the Commission
report has minimal legal or policy implications for the UK and
we are content to clear it from scrutiny. We nevertheless draw
it to the attention of the House because we consider that the
Government's commitment to continue to comply with the requirements
of the Framework Decision once it has been released from its obligation
to do so, from 1 December 2014, will be of considerable political
interest.
110 This refers to crimes, against peace, war crimes
and crimes against humanity as defined in Article 6 the Charter
of the International Military Tribunal established to prosecute
major war criminals of the Axis powers following World War Two. Back
111
See Command Paper 8671, published July 2013. Back
112
Para 22 of the Minister's Explanatory Memorandum. Back
113
http://www.cps.gov.uk/news/latest_news/101_09/. Back
114
Para 23 of the Minister's Explanatory Memorandum. Back
115
Para 31 of the Minister's Explanatory Memorandum. Back
116
Para 26 of the Minister's Explanatory Memorandum. Back
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