Select Committee on European Union Thirty-Second Report

Definition of offences concerning racism and xenophobia (Article 1)

6.  A major concern of the Committee has been to clarify the scope of any criminal offences which would be required in domestic law. We have been critical of the terminology and drafting of the offences in Article 1 and have sought clarification of a number of terms and phrases (see letter of 29 October). Three particular issues are to be noted. First, there is the use of the term "xenophobia". Generally the Framework Decision uses "racism and xenophobia" as a composite phrase. Neither term is defined in the instrument. We do not use the term "xenophobia" in our law. And even in the context of the Framework Decision itself there is a question of what, if anything, "xenophobia" adds to "racism". The Government takes the view that the inclusion of references to national origin, nationality and citizenship in our own law is sufficient to cover the concept of xenophobic hatred. It therefore does not see any objection to the use of the term "xenophobia" in the Framework Decision (letter of 23 May).

7.  Second, Article 1 includes in the offences of racism and xenophobia 'public incitement to discrimination'. When we took evidence from the Government in June 2002, the Government took the view that such a provision was unnecessary—the issue was 'properly dealt with by civil law measures in line with the European Community directives' and it was 'not appropriate to deal with it in criminal law'.[6] But the phrase remains in the draft Decision. When we recently asked the Minister whether Article 1 was now acceptable to the Government he explained that the Government had been prepared, in the context of the Danish Presidency's attempt to secure a compromise, to accept the text in Article 1 provided the Framework Decision provided a means by which the offence could be restricted to conduct presently criminal under UK law. This is provided by Article 8(1), on which we comment further in paragraph 12 below (Q 19).

8.  Third, there is the Framework Decision's treatment of religion. An earlier version of the proposal required making public incitement to discrimination on grounds of religious conviction a criminal offence. Article 1(a) now refers to discrimination on grounds of religion. A recital states that "religion" broadly refers to persons defined by reference to their religious convictions or beliefs".[7] Incitement to religious hatred is not criminalised under our present domestic law and the Government has been concerned throughout the negotiations not to prejudice or pre-empt the work of the Select Committee on Religious Offences, chaired by Viscount Colville. That Committee has specifically considered the case for creating an offence of incitement to religious hatred.[8] Its Report has now been published.[9] The Select Committee has concluded that such an offence would remedy the anomaly that some religions receive protection under race relations legislation while others do not and would discourage extremists from using the pretext of religion to pursue a racist agenda. But, having considered the options and acknowledging the issue of freedom of expression, the Report leaves it to Parliament to decide whether there should be an offence of incitement to religious hatred. It notes, however, that the Framework Decision could provide the starting point for legislation which would not be confined to race and religion and which could provide the opportunity to include incitement to hatred across a range of targets of hate crime (including, for example, the gay community and asylum seekers).[10] As mentioned the Government has been keen to maintain flexibility on "religious" offences in the context of the negotiation of the Framework Decision. We await the response of the Government to the Report of Viscount Colville's Committee.

9.  A separate issue arises from the reference to "religion" in Article 1(a) and its definition in the new recital 5(b): "religion broadly refers to persons defined by reference to their religious convictions or beliefs". We note that the Framework Decision does not explicitly include incitement to discrimination on the ground of absence of religious convictions or belief. The Government explained that it was not the intention to turn the instrument into a broad charter against discrimination on any grounds but to deal with what was seen as the most salient and dangerous issues, namely racial discrimination and, in the view of the majority of Member States, discrimination on grounds of religion (Q 22). But the Framework Decision would not prevent legislation in the future prohibiting incitement to discrimination against people with no religious belief (letter of 23 May).

Liability of legal persons (Article 5)

10.  Under the Framework Decision racism and xenophobia offences could be committed by both natural and legal persons. Article 5 deals with the liability of legal persons (eg companies). Member States would be required to impose "sanctions or measures" on a legal person where a lack of supervision or control has contributed to the committing of an offence for its benefit. Here the Government has had to rethink its approach to the implementation of Article 5(2) (letter of 10 February and Explanatory Memorandum of 25 March, para 13). The problem identified is not one restricted to this Framework Decision but is common to a number of Third Pillar measures.

Freedom of speech (Article 7)

11.  A number of Member States and a number of individuals have expressed concern over the implications of the Framework Decision for freedom of speech. Article 7 has been devised, and revised, to meet these concerns. It provides that the Framework Decision should not "have the effect of requiring Member States to take measures in contradiction to their constitutional rules and fundamental principles relating to freedom of association, freedom of the press and 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". We sought clarification of what this meant and whether Article 7 provided adequate safeguards for press freedom. Further, there is a question of its compatibility with recital 16bis, which suggests that the Article should not result in the exemption of the press from criminal liability.[11] The Government appears prepared to accept Article 7 as part of an overall compromise package, even though the precise scope of this provision remains unclear. The Government has said that it does not need, and therefore does not intend, to rely on Article 7 to protect freedom of speech in the UK. The UK will rely on Article 8 (Q 26, letter of 23 May).

6   Combating Racism and Xenophobia-Defining criminal offences in the EU (29th Report, 2001-02, HL Paper 162). Q 41. Back

7   The references in Articles 1(c) and (d) to "religious conviction" have also been amended to refer simply to "religion". Back

8   The possibility of creating an offence of incitement to religious hatred had been proposed by the Government in the Anti-Terrorism, Crime and Security Bill in 2001 and was revived in Lord Avebury's Religious Offences Bill (HL Bill 39 53/1) in 2002. Back

9   Select Committee on Religious Offences in England and Wales. Session 2002-03, HL Paper 95. Back

10   Ibid, at para 135. Back

11   Recital 16bis states: "Considerations relating to respect for the freedom of association, freedom of the press and freedom of expression in other media may have led to special rules in national law as to the determination or limitation of liability, without, however, having as a result that no one can be held criminally responsible for offences committed through the intermediary of the press, public media and professional organisations". Back

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