Select Committee on European Union Minutes of Evidence

Examination of Witnesses (Questions 20-39)



  20. Lord Filkin, can we be confident that the Government will use the power under Article 8(1)(b)?
  (Lord Filkin) You can be confident, that is our policy and our position.

  21. Is it the Government policy to do that in relation to Articles 8(1)(a), (b), (c) and (d)?
  (Lord Filkin) Yes, indeed so. That is correct.

  Chairman: That is it then. There was a short bunch of questions I was going to ask about that. Thank you. Lord Lester?

  Lord Lester of Herne Hill: Could I just ask about religion, my Lord Chairman?

  Chairman: Yes.

Lord Lester of Herne Hill

  22. In the earlier draft, Lord Filkin, I think I am right in saying that there was reference to religion or belief, and what has happened is that the present draft focuses on religion alone and this troubles me, unless it is clarified. The first thing that troubles me is the definition of religion in the Preamble to paragraph 5(b) which tells us that "religion" broadly refers to persons defined by reference to their religious convictions or beliefs. Is that intended to include people like me who have no religious beliefs but are humanists or atheists or agnostics, or is the notion that the criminal law is only going to protect against incitement to hatred against those with religious beliefs? If I can explain why I am worried. I am worried by the fact that in the Preamble it refers in recital 15 to the Human Rights Convention, Article 10 (ie free speech) Article 11 (ie freedom of association) but it does not refer to Article 9 (ie freedom of religion and belief). What I am worried about, as a non-religious person, is if there was to be discrimination built into the European Criminal Code and its national equivalent between those who profess religious beliefs and those who do not, with fundamentalist religious extremists being able to attack people like me as liberal secular humanists or something in a way that I could not attack them. This is, of course, quite different from English law at present and it would violate the European Convention as being discriminatory as well as in violation of Article 9. I have said a lot in that turgid way of putting my question, but I hope that my concern is expressed.

  (Lord Filkin) It is very clearly expressed and I do not think I know the answer offhand. Do you, Richard?
  (Mr Bradley) I will try to comment on that. I know that in the negotiation there was much discussion about the term "religion" and whether to include "belief" as well. The majority judgment was not to extend it to "belief" because we did not talk about "atheism" so much as about other kinds of belief, political belief, a whole variety of beliefs that people might hold which had nothing to do with religion. The majority view was that it was not a good idea to turn this instrument into a broad charter against discrimination on any grounds whatsoever, but to deal with what were seen as the most salient and dangerous issues which were racial discrimination, but also, in the view of a majority of Member States, discrimination on grounds of religion. Now, of course, it is quite possible that in future there might be discrimination against people on the grounds of their being atheists, but that has not so far appeared to be a serious problem in the European Union and, therefore, I think the majority view was to prefer to focus on the issue of discrimination based on religion. Of course, in UK law at present there are no specific laws on incitement to religious hatred, as you know, but where incitement to religious hatred was as it were, a cloak for incitement to racial hatred, then that could be penalised through our law.

  23. I wonder whether, with my Lord Chairman's consent, I could unpick that a bit because I would be really grateful if further thought could be given to this issue. First of all, under the EU equality on religion is going to include belief as well as religion. In other words, discrimination against atheists will be forbidden under the EC Equality Directive—please take my word for that—as it is for religious people. So the Equality Directive, under Article 13 of the Treaty of the European Union, is not going to commit this sin. The sin which I have focused on, is this. Once you move beyond race and ethnicity—things that people cannot help but are born with—to religion, you are dealing with ideas and beliefs that people choose to have. The thing I would be very grateful for further thought about is, is it not blatantly discriminative to protect people who have a one belief system but not another and to use the criminal law to do so? Would that not be a conflict with Article 14 of the European Convention, which forbids discrimination in the enjoyment of Article 9 rights? It seems to me quite clear that in its present form it would have that effect, and if further thought could be given to that I would be very grateful.
  (Lord Filkin) Yes. I think we would welcome the chance to look at all that you advance there, reflect on it and give a considered view, not least, of course, before if it goes live as a negotiation process.

  Lord Lester of Herne Hill: If I used the word "sin" improperly, I withdraw that word and say vice instead.


  24. Lord Filkin, I wonder if I could ask you just one other question about discrimination and that is to do with competence. The Commission contends that there is First Pillar competence for the Community—not the Union, the Community—to adopt criminal sanctions in the field of combating discrimination. We know that there is a competence to adopt civil sanctions, but the Framework Decision is aimed at criminal sanctions. Does the Government accept that there is competence for the Community to adopt criminal sanctions in the discrimination field as opposed to civil rights?

  (Lord Filkin) In a word, no. The Government is of the view that matters relating to criminal law including the imposition of criminal sanctions fall under Third Pillar and are not a competence of the European Community. We would not support First Pillar measures to adopt criminal sanctions to tackle discrimination.

  25. I am grateful. Thank you. Article 5(2) of the proposed Framework Decision requires Member States to take measures to ensure that legal persons, companies and so forth, can be held liable for racism and xenophobic conduct where a person who controls the company has made possible the commission of the conduct. The Explanatory Memorandum says that the Government officials are exploring options for legislation to give effect to Article 5(2). What are the problems about this and what are the options that are being considered?
  (Lord Filkin) The problem, as I suspect you well know, is that the type of provision is contained in a number of Framework Decisions, but is unfamiliar to our own domestic law. The Government's view is that such provisions are compatible with UK law in circumstances where the offending corresponds to conduct attracting offences of strict liability under UK law, or where the company knowingly and directly profits from the offence. A further option would be to rely on civil action by someone who has suffered loss or damage as a result of the offence. Officials, as you indicate, are part way through a comprehensive review of all Framework Decisions and other international agreements which contain this type of provision, and are assessing whether our domestic law is fully compliant with this provision. We have not yet reached any firm conclusion as yet. The process has not been completed nor have we reached any firm conclusions on it. Therefore, I am not able at this stage to give you a definitive response, firstly, as to whether we think there is currently any problem of compliance or, secondly, how—were this to be put into legislation—we would need to change our own domestic legislation. What I will do though is keep the Committee informed of our considerations on this when we come to a conclusion on it.

  26. I am grateful. Thank you. Article 7 of the proposal says: ". . . This Framework Decision shall not have the effect of requiring Member States to take measures in contradiction to their constitutional rules and fundamental principles relating of freedom of association, freedom of the press and the freedom of expression . . .". That has to be read in the context of paragraph 16bis of the recitals, which says: ". . . The considerations relating to freedom of association . . ." and so on may have left a special rule for international law which had the result that people constantly are criminally responsible for offences committed through freedom of the press and so forth. In the Government's view, what are the implications of these provisions with regard to press freedom and the safeguards that may be necessary to ensure press freedom?
  (Lord Filkin) Article 7 was originally included at the request of some Member States in order to protect their constitutional rules and their fundamental principles of law in relation to the freedom of the press and other media. It enables those Member States to limit the liability for the racist conduct defined in Article 1. Negotiations on Article 7 have not been concluded and—as I think you implied—as drafted there would appear to be some contradiction between this Article, which suggests that the press would be exempt from criminal liability for these offences and recital 16bis of the Preamble, which states that this Article will not result in the exemption of the press from criminal liability. Most of the Member States who need Article 7 are satisfied that it does adequately protect the freedom of the press in their countries. The UK, however, relies on Article 8(1) rather than Article 7 to protect the right of the press and the individual to free speech because it allows Member States to limit their race hate offences to conduct which is threatening, abusive or insulting and is likely to lead to violence or hatred. This is exactly consistent with our domestic law and, therefore, in this respect as long as 8(1) is there we are satisfied with the provisions.

  27. You are referring to 8(1)(c) in particular, I take it, which caters for Article 1(c) and 1(d)?
  (Lord Filkin) It is not just (c).
  (Mr Bradley) If I may, there are several of these paragraphs in Article 8(1) which limit the criminal threshold and which might be relevant to press freedoms. One of them is 8(1)(c) which specifically refers to offences of Holocaust denial or condoning war crimes, but also 8(1)(a) would be relevant because that refers to the issue of religion and makes sure that such expressions are limited to where they are concerned with directing acts against persons defined by reference to race and so on. If in the press there were a critical comment made about a religious group then the test which is found in 8(1)(a) would then apply to that. I am sorry I am spelling it out at greater length than I am sure you require.

  28. I am grateful. Article 7 refers to constitutional rules governing the rights and responsibilities of, and procedural guarantees for, the press. Just leave aside procedural guarantees for the moment. The rules in question would include Article 10 of the European Convention. Are there any other rules that would be applicable in this country that the Government has in mind?
  (Mr Bradley) As we have tried to explain, we are not proposing to rely upon Article 7 or on the reference in the preamble to the preservation of press freedom, so we have not looked up our books of reference on the principles of press freedom. We are relying instead on Article 8.

  29. What does Article 7 mean when it speaks of "procedural guarantees"?
  (Lord Filkin) I think it is as yet unclear on that. The negotiation has not been done. It is ambiguous. It needs further work.

Lord Lester of Herne Hill

  30. I am being slow, my Lord Chairman. Is the position, then, that the Government will rely upon Article 8(1)(a) in a Satanic Verses kind of situation? In other words, if one takes a case where a novel is written that expresses very strong criticism of a religion, causing outrage to some of its adherents who wish the author or publisher to be guilty of criminal misconduct, and relies upon this Framework Decision, the position taken by the Government will be, "We do not need Article 7, freedom of speech, because we will not legislate under this Decision at all for attacks on religion unless they are pretexts for racial attacks"?

  (Lord Filkin) Or are likely to incite violence or hatred.

  31. In other words, this Framework Decision is not going to affect the substance of our criminal law except in that narrower context where it is already covered by our law?
  (Lord Filkin) Just so.


  32. Following on from that, the ability of Member States to use the opt-outs in 8(1) will be reviewed in two years' time, 8(2) so states. It says: ". . . the Council shall review this Article with a view to considering whether paragraph 1(a), (b) and (c) should be retained", so 1(d) is going to be retained anyway, apparently. But as to 1(a), (b) and (c), we know from looking at the proposed draft constitutional suggestions emanating from Giscard d'Estaing's Convention that it has been proposed that the Council should operate by qualified majority voting pretty well across the board. Will the UK Government insist on retaining unanimity for the purposes of the Article 8(2) review?

  (Lord Filkin) I think the answer is yes. Article 17 of Part 2 of the draft Constitution as proposed by the Convention's Praesidium 14 March addresses the issue of substantive criminal law. The draft Article envisaged framework laws for minimum rules concerning the definition of incriminations and sanctions. This is restricted to two categories of offences. The first is the restriction to a specific list of crimes which are considered to be particularly serious with cross-border dimensions and racism and xenophobia is not on the list. Most of the other crimes have been or are being approximated at EU level and new crimes can be added to the list only on the basis of unanimity. Secondly, the draft Article enables approximation of substantive criminal law where this is essential to ensure effective implementation of a Union policy. Racism and xenophobia falls into the second category. An approximation would be based on the current non-discrimination Article, Article 13. The Government believes that the voting regime should be based on the relevant Union policy area which, in the case of racism and xenophobia, is governed by unanimity. This was also the conclusion of the JHA Working Group in the Convention. However, as currently drafted, Article 17 does not yet achieve this, and therefore we proposed an amendment to the Convention to ensure that the voting rules for approximation of substantive criminal law in areas of Union policy should follow the voting rules for that specific area of policy. We are optimistic that the revised Articles of Part 2, which will be published later in May, will take on board our concerns on this issue. I am sorry to have gone on at length on that but it has been an issue that ministers have been highly focused on and highly vexed about.

  33. I am grateful. The short answer is that the Government will insist on unanimity remaining?
  (Lord Filkin) You are absolutely right: that is the short answer. I could have saved you a lot of trouble.

  Lord Neill of Bladen: Lord Filkin, I have got a question on Article 7, the thrust of which seems to be dealing with freedom of press and freedom of expression in other media. I have left out in saying that word "freedom of association". Forget that for the moment. The whole thrust is about the media and it is saying in simplistic terms that this Framework Decision shall not have the effect of requiring Member States to take measures in contradiction of fundamental rights relating to those freedoms. What about the ordinary person? It does not talk about the ordinary freedom of expression that John Smith or the man in the street has. Why is that? This seems to be specifically designed to stress the viability of the press and the media or to protect them. I would have thought it would be more general.

  Lord Lester of Herne Hill: Especially, if I may say so, because recital 15 refers to Article 10 of the Convention on Human Rights, which is not confined to the media but includes everyone's free speech.

Lord Neill of Bladen

  34. We must not argue between lawyers. The negative implication of Article 7 is that it will be perfectly all right if it does have the effect, this Decision, of limiting the fundamental rights of the ordinary citizen.

  (Lord Filkin) I will reflect on it. I do not think that will be our interpretation. I think where we will direct that question is at those Member States who have asked for Article 7 and why they have not sought to have it wider to cover just the point that you address. Our position, which I will reflect on and make sure is sound, is that we do not rely on that to guarantee our freedom of expression. That is there already and is only limited, in so far as we have previously discussed, in terms of conduct likely to incite racism.

  35. Yes, but, as you appreciate, whatever our internal law may be, these Framework Decisions that are going to be like Directives, are used as instruments to construe the validity of the English provisions.
  (Lord Filkin) Indeed, which is why I have undertaken that we will raise that issue back with other Member States and, secondly, try to ensure that even if we did not persuade them to change their position we are not in any way at risk ourselves because we would very much wish to protect that.

Lord Lester of Herne Hill

  36. Still on Article 7 and Article 8, and in relation to incitement to religious hatred, I see that the declaration by the United Kingdom in Annex II mentions a number of things in this connection. One is that the UK Government supports in principle "a proposal to make incitement to religious hatred an offence", which is currently being examined by a Select Committee of this House. What the declaration does not make clear, and I think it needs to be clarified, is that this covers people without a religious conviction, as I said before. That needs to be made clear because of the ambiguity in the Framework Decision. If that point could be considered I would be grateful.

  (Lord Filkin) Can we consider that point as an addition to the previous point you made on a similar thrust and we will do so?

  37. Yes. The other point is that I take it as read that we would regard Article 10 of the European Human Rights Convention and the other relevant Convention rights as having to be treated as paramount in interpreting the Framework Decision and UK domestic legislation.
  (Lord Filkin) They are paramount.


  38. Lord Filkin, can I ask you now about Article 8(3) which I have been puzzling about a little? I think I have the understanding of it right. It seems to me to be saying, and for "Member State" I will substitute "United Kingdom", that where the United Kingdom in relation to criminal matters can refuse to provide mutual assistance on the basis of the principle of double criminality, "it may, regarding conduct it has excluded from criminal liability pursuant to paragraph 1,"—and that is going to apply to us because that is what we are going to do—"only use that possibility where the offences concerned" are committed, at least to a significant extent, in the United Kingdom, or if the offence is committed outside the territory of the requesting state, Ruritania, and the law of the United Kingdom does not allow prosecution for that offence where committed outside the United Kingdom. Do I have it right that this will only apply in relation to offences where the principle of double criminality still pertains? I am considering this in the context of extradition, you appreciate, which is a form, perhaps the most important form, of mutual legal assistance that would be in question under 8(3). Suppose one gets a publication on the internet which is at the same time available to be downloaded in this country or in other Member States, and let us suppose that it contains material falling within a racist and xenophobic category which would not be criminal in this country but would be criminal in the other Member States. How will this apply to an extradition request from the other Member State?

  (Lord Filkin) To use an example to illustrate, because it may help, taking Holocaust denial as the topic that we often look at in this context, which is clearly not an offence in the United Kingdom but is an offence in Germany, if a British citizen posted something on a website in the UK, for whatever reason, denying the Holocaust, and that was accessed by a German citizen and the German state wished to act on that and asked for extradition under the Extradition Bill to the United Kingdom, we would not do so because it is not an offence in Britain to deny the Holocaust and therefore we would not extradite in those circumstances.

  39. And you would not consider that the offence had been committed in part in Germany?
  (Lord Filkin) There has been some discussion on this in the Commons' consideration of the Extradition Bill. Whilst our position is that we think that the Bill as currently drafted is sound, we intend to put the matter beyond doubt by introducing an amendment into the Lords at committee stage on the Extradition Bill, making it absolutely explicitly clear that if an act is in part committed in the United Kingdom we will still not extradite it in those circumstances.

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