COMBATING RACISM AND XENOPHOBIA (5118/07)
Letter from the Chairman to Vernon Coaker
MP, Parliamentary Under Secretary of State, Home Office
This proposal has been considered by Sub-Committee
E.
We welcome the resumption of negotiations on
this proposal as we consider that it is important to tackle racism,
particularly in cases where this leads to violence and harassment.
However, we continue to emphasise the need to ensure that other
liberties such as freedom of expression are not excessively curtailed
by attempts to fight racism. Do you consider that the present
draft Framework Decision strikes the right balance between competing
objectives? Given that the Government do not anticipate legislative
changes being required in the UK as a result of this Framework
Directive, what do they see as the benefits of agreeing the instrument?
Although not raised in you EM, it seems from
press reports that there may be some disagreement among Member
States as to the proposed scope of the Framework Decision. We
understand that some Member States are pressing for inclusion
of denial of crimes of totalitarian regimes, including communism,
to be included in the text. Has this been discussed in the Working
Group and if so, with what reaction has it been met?
What do the Government understand by the term
"grossly trivialising" in Article 1? As you know, following
the ECJ judgment in Pupino, UK courts will be expected
to have regard to the terms of the Framework Decision itself when
interpreting the relevant UK legislation. Do you anticipate any
problems in ensuring the uniform interpretation of this expression
across the EU?
You explain the position in Scotland as regards
racial hatred as an aggravating factor in other crimes. What is
the position in England and Wales, Northern Ireland and Gibraltar?
Would legislative changes be required?
We welcome the Government's strong support of
the exclusions from criminal liability contained in Article 8(1).
What is the view of other Member States? Is this provision likely
to be agreed in the Council?
You say that the mutual assistance provisions
in Article 8(2) were discussed at the JHA Council of 15 February.
We would be grateful if you would let us know the outcome of that
discussion.
The review procedure envisaged in Article 8(3)
is not clearly set out. We would welcome your assurances that
any changes proposed to Article 8 once the Framework Decision
has been implemented would be submitted for scrutiny in the usual
way.
In the context of previous scrutiny of this
matter, we drew attention to the uncertainty regarding the scope
of the Article 7 provisions on the rights and responsibilities
of the media. At that time we were advised that a solution was
being sought through clarification in the Recitals. We note that
the inclusion of a new Recital 16a but are not convinced that
this provides the necessary clarity. Is the intention of Article
7 to allow Member States to limit the liability of the media for
racist or xenophobic publications?
We have decided to hold the proposal under scrutiny.
13 March 2007
Letter from Vernon Coaker MP to the Chairman
Thank you for your letter of 13 March summarising
the outcome of consideration of the proposed Framework Decision
on racism and xenophobia by Sub-Committee E. I will deal with
each issue raised in turn.
Like you, we welcome the resumption of negotiations
by the Presidency and are keen to ensure that the instrument strikes
an appropriate balance between on the one hand tackling racism,
particularly where it leads to or incites violence and harassment
and on the other freedom of expression. That is why we are insisting
on provisions which allow us to exclude certain actions from criminal
liability and enable us to impose our domestic criminal threshold.
This will enable us to determine the appropriate balance. We are
supported in this by a number of Member States and are confident
that our negotiations will be successful.
You rightly seek clarification of the benefits
to be accrued from a Framework Decision where we anticipate no
legislative change, in the UK. We do see a need to tackle racist
and xenophobic crime at EU level. 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 currently 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.
You are absolutely right in you understanding
that some Member States have made proposals to increase the scope
of this Framework Decision to include, for example, crimes commited
under totalitarian regimes. Whilst we have sympathy with that
approach we believe that to include these crimes would go beyond
what we are seeking to achieve with this Framework Decision. We
intend therefore to continue to resist such measures. It is possible
that some reference to these will be included in a recital to
the text in order to acknowledge the concerns of those Member
States, but I assure you that will not affect the scope of the
offences in the Framework decision. We are strongly supported
in this view by a number of other Member States so we believe
all such attempts will continue to be resisted.
You also sought clarification on the term "grossly
trivialising". In the UK we only criminalise behaviour that
is carried out in a threatening, abusive or insulting manner that
incites racial hatred. The Framework Decision enables us 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. The absence of a specific definition does
not affect that outcome. We agree that the Pupino judgment
applies, however, that does not change the fact that in implimenting
third pillar measures we have some discretion under the terms
of the Treaty. As you will be aware the legal base of this Framework
decision is Article 34(2)(b) of the Treaty on the European Union
which states that "Framework Decisions shall be binding ...
as to the result to be achieved, but shall leave to the national
authorities the choice of form and methods."
Turning to how we cover racial hatred in the
UK. For England and Wales, our domestic law defines what acts
and behaviour are offences: the draft Framework decision and we
believe that this is the right approach. To be more specific,
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). Nine racially-aggravated
offences were introduced in the Crime and Disorder Act 1998, which
include assaults, criminal damage and harassment, which make available
to the courts higher maximum penalties where there is evidence
of racist motivation or racial hostility in connection with offence.
The Act also requires a judge or magistrate dealing with any offence
that is racially-aggravated to state in open court that they have
found it to be aggravated, and meriting an increased sentence.
The offences also give a higher profile to the racial elements
in crimes by requiring the police to look for evidence at the
earliest possible opportunity, and by ensuring that the racial
element of a crime goes before the jury. For other offences, we
have also introduced a requirement for courts to take account
of racial or religious motivation in sentencing (Powers of Criminal
Courts (Sentencing) Act 2000). I am verifying the position in
Northern Ireland and Gibraltar and will clarify as soon as possible.
As requested, I would also like to update you
on the progression of negotiations with respect to Article 8(2).
The Government has argued for deletion of this provision on mutual
legal assistance and we expect a revised draft to accommodate
this position.
I fully understand your concern that any changes
proposed as a result of review pursuant to Article 8(3) should
not bypass due process in Member States. Any proposals to amend
the Framework Decision would be subject to the usual Parliamentary
process.
As to the provisions in Article 7, these reflect
language used in other EU JHA instruments, in particular the European
Arrest Warrant (Article 1(3) and the final part of Recital 12
of that Framework Decision). They were proposed by several delegations
in relation to this measure to reflect the importance Member States
attach to the principles of freedom of speech and expression which
are particularly relevant in relation to the offences proposed
by this Framework Decision. We support the text since we believe
that it will also allow the UK to maintain its unique balance
of rights and responsibilities around freedom of speech. The media
has a role to play in normal discourse on issues of racism, but
they also have a responsibility to report in a way so as not to
endanger lives.
Finally, in terms of timetable and next steps,
the Framework Decision will be submitted to the JHA Council on
19-20 April. We believe that the Presidency will be looking for
a general approach at that meeting, pending submission of the
opinion from the European Parliament. I am aware that Parliament
is in recess in the intervening period but I would appreciate
your consideration of the outstanding issues on this proposal
as a matter of priority so that your views can be factored into
any new proposals that are prepared for the April JHA Council.
23 March 2007
Letter from the Chairman to Vernon Coaker
MP
Thank you for your letter of 23 March 2007 which
has been considered by Sub-Committee E. We found it very helpful.
We agree that while it may be appropriate to
legislate in respect of crimes of totalitarian regimes at some
point, such an increase in scope goes beyond what the current
Framework Decision is intended to achieve.
We note what you say regarding the meaning of
"grossly trivialising". Although the vague nature of
this phrase would allow the UK to retain its current approach,
there remains a concern regarding how the phrase may be interpreted
by other Member States: in some it may be interpreted in too broad
a manner leading to a greater interference with freedom of expression.
Further, while Member States have some discretion in the implementation
of Framework Decisions, we remain of the view that should an ECJ
ruling be issued on the meaning of "grossly trivialising"
this could require changes to the UK approach. In this context
you will have seen the approach taken by the House of Lords to
Pupino in the recent Dabas case ( [2007] UKHL 6).
Is there any prospect of further clarification of the meaning
of "grossly trivialising" in the Framework Decision?
We are grateful for your explanation of the
current position relating to racially-aggravated crimes in England
and Wales and look forward to hearing from you with regards to
Northern Ireland and Gibraltar in due course.
We welcome your assurances that any proposed
changes to Article 8 under Article 8(3) will be submitted for
scrutiny in the usual way.
Your explanation of the background to Article
7 is most helpful. Do you agree that it may be desirable to include
a recital to clarify the intention behind Article 7?
We note that you have not responded to our query
regarding the support in the Council for the Article 8 exclusions
as expressed in the draft Framework Decision submitted to us for
scrutiny. Are you in a position to let us know whether these are
likely to be agreed by the other Member States? If not, does the
UK intend to agree the measure at the April meeting?
We have decided to hold the proposal under scrutiny.
29 March 2007
Letter from Vernon Coaker MP to the Chairman
Thank you so much for your letter of 29 March
outlining the consideration of Sub-Committee E of this document.
May I say how much I appreciate the Committee making time to consider
this important issue and for responding so quickly.
I enclose the latest version of the text, document
8180/1/07 DROIPEN 29 REV 1 (not printed). The Government considers
that this latest text represents a very significant improvement
on both the text currently under scrutiny and on the version that
cleared scrutiny in 2003. I very much hope that you will find
time to consider it at your next meeting on 18 April.
Scope of the instrument
The difficulty in agreeing a measure at EU level
largely arose from the differences of opinion on the treatment
of expression of ideas in different Member States. In particular,
this resulted in disagreement over the relationship between the
possibility to exclude certain behaviours from wide-ranging criminal
liability and the obligation to provide mutual legal assistance.
The Government's position has been that rules on judicial co-operation
should not be included in a substantive criminal law instrument,
which is regulated by other EU instruments. In contrast, some
Member States insisted on retaining the mutual legal assistance
provision if it remained possible to exclude certain behaviour
from criminal liability.
The Presidency has sought to resolve the difficulty
of such differences in approach by narrowing the scope of the
Framework Decision to focus on combating certain, more serious
forms of racism and xenophobia through the criminal law. Article
1 of the revised text now includes a list of the conduct that
all Member States must make punishable, set at a higher, common
threshold than previously (in all cases it must be intended to
incite violence or hatred) with no possibility for exclusions.
Article 8(1) has been deleted.
The Government welcomes this pragmatic approach,
which has found support from all Member States as a means of reaching
agreement. It focuses the instrument on the most serious conduct
and sets common standards across the whole of the EU. Member States
may still choose to punish only conduct which is either carried
out in a manner likely to disturb public order, or which is threatening,
abusive or insulting. As the instrument is now focused only on
tackling certain forms of racism and xenophobia through the criminal
law, the provision on mutual legal assistance (previously 8(2))
has been deleted.
Value of a Framework Decision
The Government supports the general approach
of the Framework Decision. Preventing and combating racism and
xenophobia is one of the objectives of the Treaty on European
Union, which provides a mandate for common rules in this area.
As now drafted, the Framework Decision will ensure that the same
serious conduct is criminal across the whole of the EU. The Government
considers that the text finds the right balance between freedom
of expression and public protection. It is in line with our current
domestic law, and will not require us to criminalise racist speech
or writing that does not incite violence or hatred.
"Grossly trivialising"
The Government notes that the Committee continues
to have concerns about the meaning of "grossly trivialising"
and the risk of either another Member State to interpret it too
widely, or of the ECJ ruling in a way that requires changes to
our legislation. Further clarification of the meaning of the phrase
would be highly unlikely to be successful at this stage and given
the progress made on the text, reopening debate would be undesirable.
However, the Government considerts that the amendment to the scope
of the Framework Decision to only apply to where conduct is likely
to incite violence or hatred, in all Member States, greatly mitigates
the risks identified.
Article 7
It is highly unlikely that at this stage we
would be successful in securing amendments to the recitals to
further clarify Article 7.
Article 8(3) (Review clause)
The review clause previously in Article 8(3)
has been deleted and replaced with a more general provision for
the Council to conduct a review on the effectiveness of the FD
(Article 11(2)). The Government considers this an improvement.
It does not single out any particular area for review and does
not pre-empt the need for further legislation.
There is one outstanding issue for the JHA Council
next week, which concerns the ongoing desire of some Member States
to include in the Framework Decision provisions regarding acts
committed by totalitarian regimes, such as those that existed
during the Communist era. As previously explained, we have expressed
sympathy for the argument posed, but resisted amendments along
these lines which we do not believe would be consistent with the
focus of the Framework Decision on serious racist and xenophobic
crimes. We believe that the Presidency will seek to address the
outstanding concern with a political declaration on the subject,
although we have yet to see a specific proposal.
The Government is satisfied that this latest
draft of the Framework Decision represents a good outcome for
the UK after years of difficult negotiation and hopes to be able
to support agreement of a general approach on the text at the
Council, subject to our Parliamentary scrutiny reservation.
12 April 2007
Letter from Joan Ryan MP, Parliamentary
Under Secretary of State, Home Office to the Chairman
Further to Vernon Coaker's letter of 12 April
2007 on the above dossier, I am writing to clarify the position
the UK will take at the forthcoming Justice and Home Affairs (JHA)
Council on 19-20 April in Luxembourg.
The German Presidency has, as you know, put
considerable effort into this dossier, including working hard
to address UK concerns, even where those concerns were shared
by only a minority of other Member States. I am now satisfied
that the current text addresses all of the Government's points
of substance. It therefore represents a real improvement on the
earlier version of the text cleared for scrutiny by debate in
2003. In particular, our concerns that we should not be obliged
to amend our domestic law have now been fully satisfied.
Racist or xenophobic behaviour is intolerable
in any circumstances but particularly when intended to incite
hatred or violence. Our domestic law already reflects this. The
current text of this proposal represents the best chance we are
likely to see to establish a minimum level of effective, proportionate
and dissuasive criminal penalties across the European Union. I
would not wish to see this chance wasted, especially given that
the Government is content with the substance of the proposal as
now drafted. The aims of the Framework Decision send a powerful
message to those who would seek to promote violence or hatred
against any group of persons, when such behaviour is deplored
throughout Europe.
The Presidency has also made it clear that,
in the light of the consensus now emerging among Member States,
it will not delay seeking a general approach on the text until
the next JHA Council in June and intends, instead, to capitalise
on that momentum. We therefore fully expect them to push for a
general approach this week as we emphasised to me by the German
Justice Minister in my own recent conversations with her.
Against that background, as I have previously
said, blocking a general approach at this stage would seriously
damage our relations with the current Presidency, who have been
very helpful on this matter already, and may impact on future
negotiations to the UK's overall detriment.
As outlined by Vernon Coaker in his letter of
12 April the Government is satisfied that this latest draft of
the Framework Decision represents a good outcome for the UK. Should
the Presidency request a general approach at this weeks JHA Council,
the UK will participate, whilst making it clear that, if the dossier
has not cleared scrutiny by 18 April, we have a parliamentary
scrutiny reserve and that we reserve the right to re-open negotiations
should that prove necessary.
Cabinet Office could not see, on the basis of
the Government guidance on scrutiny, an obvious reason for the
Home Office to prevent the JHA Council on 19-20 April reaching
a general approach on the dossier, as long as it is clear that
the UK parliamentary scrutiny reserve remains.
17 April 2007
Letter from the Chairman to Vernon Coaker
MP
Thank you for your letter of 12 April 2007 which
was considered by Sub-Committee E at its meeting of 18 April 2007.
Given the difficulties encountered in the Council
as regards exclusions and mutual legal assistance provisions,
we too welcome the new approach in the Framework Decision which
limits the scope to more serious forms of racism and xenophobia.
However, we are concerned by the creation of a new Article 1(1
a) which is less than clear in its aim and likely impact. We assume
that its aim is to enable Member States in their implementing
legislation to limit further the "intentional conduct"
which has otherwise to be made punishable under Article 1(1).
But the present language could be interpreted in the opposite
sense, or at least as indicating that the thresholds for criminalising
conduct under Article 1(1) are lower than would otherwise appear.
If intentional conduct has met the threshold of "publicly
inciting to violence or hatred" or being "likely to
incite to violence or hatred", what limitation really results
from a further restriction to conduct which is "likely to
disturb public order" or "threatening, abusive or insulting?"
We are particularly concerned that the last two adjectives (abusive
or insulting) could, in practice or in the implementing legislation
of some Member States, be taken as downplaying the significance
that would otherwise attach to the thresholds in Article 1(1).
This concern has also to be seen in conjunction with Article 10(2)(b)
(jurisdiction of State A in respect of publication in State A
by an offender present in State B), and the concomitant possibility
of arrest of an offender in State B at the instance of the prosecuting
authorities of State A for an alleged offence of racism or xenophobia
created and defined by the law of State A.
We continue to support the Government's opposition
to the inclusion of crimes of totalitarian regimes in the present
Framework Decision and look forward to receiving further details
of the proposed political declaration once a draft has been circulated.
We note what you say as regards further clarification
of the meaning of "grossly trivialising". We remain
concerned that interpretations may vary across Member States and
although, as you say, the narrower scope of the Framework Decision
may go some way to limiting that risk, there is nevertheless a
potential problem.
It is unfortunate that Article 7 has not been
further clarified in the proposal. While we understand that it
would be difficult to revisit the matter at this late stage, we
trust that every effort will be made in future negotiations to
clarify issues such as this earlier in the process. You do not
suggest that clarification in this case would have been particularly
controversial.
We strongly support efforts to ensure that adopted
EU legislation is operating effectively and consider the new review
provisions in Article 11(3) to be a useful addition to the Framework
Decision.
We note that you have not yet provided details
of the position in Northern Ireland and Gibraltar as regards racist
and xenophobic motivation as an aggravating factor in other offences
and would be grateful to hear from you on this point.
As we have previously explained, we consider
this to be a highly sensitive area and great care is needed to
ensure that the right to freedom of expression is not undermined
by well-intentioned efforts to fight racism and xenophobia. In
the circumstances we do not feel able to clear the proposal from
scrutiny at this time. We take the view that Member States should
not agree a general approach until the exact extent of and thresholds
for offences created under the Framework Decision are resolved.
It is therefore disappointing that the UK appears to intend to
agree this proposal while it remains under scrutiny in this House.
19 April 2007
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