Select Committee on European Scrutiny Eighteenth Report


RACISM AND XENOPHOBIA


(23001)

14904/01


Draft Council Framework Decision on combating racism and xenophobia.

Legal base:Articles 29, 31 and 34(2)(b) EU; consultation; unanimity
Document originated:28 November 2001
Forwarded to the Council:30 November 2001
Deposited in Parliament:17 December 2001
Department:Home Office
Basis of consideration:EM of 15 January 2002
Previous Committee Report:None
To be discussed in Council:No date set
Committee's assessment:Legally and politically important
Committee's decision:Not cleared; further information requested

Background

  5.1  This proposal by the Commission seeks to harmonise the substantive criminal law of EU Member States on racism and xenophobia. The proposal would repeal Joint Action 96/443/JHA of the Council of 15 July 1996,[17] and thus give effect to the resolution of the European Parliament of 21 September 2001 calling for a Framework Decision to replace the Joint Action.[18] In the Joint Action the Member States undertook to ensure effective judicial cooperation in respect of racist and xenophobic behaviour, either by making criminal such behaviour, or by not requiring dual criminality[19] in respect of it. The Commission now asserts that "it is necessary to define a common criminal law approach in the European Union to this phenomenon of racism and xenophobia in order to ensure that the same behaviour constitutes an offence in all Member States".[20]

  5.2  "Racism and xenophobia" is also one of the crimes listed in Article 2(2) of the draft Council Framework Decision on the European Arrest Warrant as being a crime giving rise to an obligation to surrender without regard for the principle of dual criminality, provided the offence carries a penalty of at least three years' imprisonment in the State seeking extradition. The absence of definition of the term "racism and xenophobia" as used in Article 2(2) of that draft Framework Decision, taken with the abandonment of dual criminality, has been the object of criticism, including criticism by us.[21] The adoption of an agreed EU-wide definition of the crime would make dual criminality of less importance, as the courts of all Member States would then be able to recognise the classification of the offence by other courts.

The draft Framework Decision

  5.3  The purpose of the proposal is set out in Article 1. It is to approximate the laws of Member States and to provide for closer cooperation in relation to offences involving "racism and xenophobia". Article 2 provides that the Framework Decision is to apply to such offences committed within the territory of Member States, by the nationals of Member States where the act affects individuals or groups of that State, or where the offence is committed for the benefit of a legal person established in a Member State.

  5.4  Article 3 contains definitions of terms used in the Framework Decision, the most important of which is "racism and xenophobia". This is defined as "the belief in race, colour, descent, religion or belief, national or ethnic origin as a factor determining aversion to individuals or groups".

  5.5  It appears that, by itself, such a belief is not to constitute an offence. Article 4 sets out six categories of intentional conduct 'committed by any means'[22] which are to be punishable as a criminal offence. Article 4(a) refers to 'public incitement to violence or hatred for racist or xenophobic purpose or to any other racist or xenophobic behaviour[23] which may cause substantial damage[24] to individuals or groups concerned'.

  5.6  Article 4(b) refers to 'public insults or threats towards individuals or groups for a racist or xenophobic purpose'.[25] Unlike Article 4(a), the provisions of Article 4(b) are new and were not contained in the Joint Action of 1996.

  5.7  Article 4(c) refers to 'public condoning for a racist or xenophobic purpose of crimes of genocide, crimes against humanity and war crimes as defined in Articles 6,7 and 8 of the Statute of the International Criminal Court'.[26] 'Condoning' is not defined, but there seems to be no requirement that it be done in a threatening manner, or that it should amount to an incitement to violence or hatred. 'Condoning' was used in the same sense in the Joint Action of 1996.

  5.8  Article 4(d) seeks to address what is often referred to as 'Holocaust denial' by referring to the 'public denial or trivialisation of the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 April 1945 in a manner liable to disturb the public peace'.[27] The Joint Action of 1996 had contained a reference to the 'public denial' of the crimes defined in Article 6 of the Charter 'insofar as it includes behaviour which is contemptuous of, or degrading to, a group of persons defined by reference to colour, race, religion or national or ethnic origin.' The proposed draft Article 4(d) omits this qualification, and introduces the concept of 'trivialisation' of the Article 6 crimes. The Commission explains that the changes to the wording of the Joint Action 'are largely inspired by the German law, which incriminates not only the denial but also the trivialisation of the crimes mentioned, if that is liable to disturb the public peace'. The Commission further explains that 'this should be interpreted as regards to the potential of the conduct of disturbing the public peace'.

  5.9  The draft Article 4(d) does not define the term 'trivialisation', and the Commission Explanatory Memorandum does not explain how this concept is treated in the German law to which it refers. Neither is there any attempt to define or explain the concept of 'disturbing the public peace'. As the language of the Joint Action is no longer used, it is presumably the case that the 'public peace' is that of the public at large, rather than that of a particular minority group.[28]

  5.10  Article 4(e), which refers to the 'public dissemination or distribution of tracts, pictures or other material containing expressions of racism and xenophobia' repeats the language of Title 1 A(d) of the 1996 Joint Action.

  5.11  Article 4(f) refers to 'directing, supporting of or participating in the activities of a racist or xenophobic group, with the intention of contributing to the organisation's criminal activities'. As a 'racist or xenophobic group is already defined as a 'structured organisation acting in concert to commit' the offences listed in Article 4(a) to (e), it is not clear what is added by the reference to the 'organisation's criminal activities', unless the definition is also meant to refer to criminal activities other than those listed in Article 4(a) to (e). It is also not clear what is meant by 'supporting' in this context, for example, whether the provision would go so far as to make it an offence to support a political party which commits any of the acts referred to in Articles 4(a) to (e).

  5.12  Article 5 sets out a provision requiring Member States to ensure that criminal penalties are also applicable to instigating, aiding, abetting or attempting to commit an offence referred to in Article 4.

  5.13  Article 6 deals with penalties and requires (in Article 6(2)) that Member States provide for custodial sentences 'which can give rise to extradition or surrender' in the case of the offences under Article 4(b) to (e), and (in Article 6(3)) a maximum penalty of not less than two years' imprisonment for any of the offences referred to in Article 4(a) to (f).[29] Article 6(5) requires the Member States to ensure that fines can be imposed 'or payment for charitable purposes accepted' in respect of the offences under Articles 4 and 5.

  5.14  Article 7 requires Member States to ensure that the sentence can be 'aggravated' where the offender is acting 'in the exercise of a professional activity and the victim is depending on this activity'.[30] Article 8 requires Member States to ensure that 'racist and xenophobic motivation' may be regarded as aggravating circumstances for determining the penalty for crimes other than those referred to in Articles 4 and 5.

  5.15  Articles 9 and 10 provide for the liability of legal persons and the sanctions which may be imposed. They are in the standard form used in Framework Decisions. Article 11 provides that investigations into, or prosecutions of, offences under Articles 4 and 5 must not be made dependent on a report or accusation made by a victim of the offence.

  5.16  Article 12 provides for jurisdiction. By virtue of Article 12(1) Member States are required to adopt rules providing for jurisdiction on a territorial basis, on the basis that the offence is committed by one of its nationals and affects individuals or groups of that State, and on the basis that the offence is committed for the benefit of a legal person having its head office in the territory of that Member State.[31] Article 12(2) attempts to address the question of offences committed through an information system, such as the internet. It requires each Member State, when adopting territorial rules of jurisdiction, to ensure that such rules cover the case where the offender is physically present in the national territory (whether or not the 'racist material' is hosted on an information system within the national territory) and the converse case where the racist material is hosted on an information system within the national territory but the offender is not physically present.

  5.17  The Commission explanatory memorandum explains that the provisions of Article 12(2) are intended to cover the case where a person in a Member State places racist material on a website located in a third state and the case where a person in a third state places the racist material on a website hosted in the territory of a Member State.[32]

  5.18  Articles 13 and 14 contain provisions on extradition, but these would become redundant with the adoption of the proposal on the European Arrest Warrant.[33] Articles 15 and 16 are concerned with the exchange of information and implementation respectively.

The Government's view

  5.19  In her Explanatory Memorandum of 15 January 2002, the Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) reviews the impact which the proposal would have on the law of the United Kingdom. The Minister points out that the definition of 'racism and xenophobia' in Article 3 (which defines this as the belief in race, colour, descent, religion or belief, national or ethnic origin as a factor determining aversion to individuals or groups) has a wider scope than the relevant UK legislation (Part III of the Public Order Act 1986), which is concerned only with incitement to racial hatred. This is defined as 'hatred against a group of persons in Great Britain defined by reference to colour, race, nationality (including citizenship) or ethnic or racial origins'.[34]

  5.20  In relation to Article 4 (which sets out the conduct which is to be criminal in all the Member States), the Minister comments that:

"In general terms most of this behaviour could be criminal in the UK but only if the words or behaviour were threatening, abusive or insulting and intended to stir up hatred. Some of the offences in Article 4 have some of the elements required by our domestic law but others do not. To comply with this article the UK would have to lower the current criminal threshold for existing offences or create new offences."

  5.21  The Minister considers that the acts described in Article 4(a) and (b) (which are concerned with incitement to violence or hatred, and public insults or threats, for a racist or xenophobic purpose) are 'close' to the existing law in the UK and 'would be covered with only some amendments to the text'.

  5.22  In relation to Article 4(c) and (d) (which address the public condoning of crimes of genocide, crimes against humanity and war crimes, and the public denial or trivialisation of the crimes defined in the 1945 Charter of the International Military Tribunal) the Minister describes these provisions 'as an attempt to deal essentially with Holocaust denial'. The Minister further explains that:

"Holocaust denial is potentially criminal in the UK as long as the words and behaviour used are threatening, abusive or insulting and intended to stir up racial hatred. The current draft of these articles requires, for 4(c), condoning for 'racist or xenophobic purpose' but not to stir up hatred and there is no requirement that the condoning should be in a threatening manner. Article 4(d) talks about denial of crimes 'in a manner liable to disturb the public peace'. There is no mention here of a racist intent or, again the use of threatening behaviour. These offences are therefore a reduction in the criminal threshold for UK law."

  5.23  The Minister comments, in relation to Article 4(e) (dissemination of tracts or pictures containing 'expressions of racism and xenophobia'), that the offence would amount to a 'reduction of the criminal threshold of UK law', since it does not require an intention to stir up hatred or the use of threatening behaviour.

  5.24  In relation to Article 4(f) (which would make it an offence to direct, support or participate in the activities of a racist or xenophobic group, with the intention of contributing to the organisation's criminal activities), the Minister points out that the exercise of the power under the Terrorism Act 2000 to proscribe an organisation must be based on a belief that the organisation is involved in terrorism.[35] The Minister further explains that, even in the case of an extreme domestic racist group, the factor determining proscription would always be the organisation's involvement in terrorism, and that no such organisations are proscribed at present, and that there are no other powers to deal with membership of such groups.

  5.25  The Minister suggests that the offence under Article 4(f) could be covered by the existing law on conspiracy, and incitement or attempts to commit a criminal offence. This is because "the current text defines the group by virtue of the criminal activities and the offence is directly related to criminal activity".[36]

  5.26  The Minister states that there has been no consultation so far with outside interests, and describes the policy implications of the proposal as follows:

"The Government recognises the importance of tackling racism, especially when it manifests itself in violence and harassment. We therefore welcome any proposals to ensure protection against violent racism across Europe. We are, however, concerned to ensure that the exercise of the rights of freedom of expression and association are balanced with the prevention of disorder and crime and the protection of the rights of others. Under our current law, for example, we believe that a high criminal threshold for offences of incitement to racial hatred is required to balance protection of communities with the importance we place on freedom of expression. Some material that may be offensive to many will not be threatening, abusive or insulting.

"Our aim will be to negotiate a text for the Framework Decision that does not further limit freedom of expression and association on the subject of race and religion. Whilst the Commission has emphasised the requirement that the Framework Decision should be compatible with the ECHR [European Convention on Human Rights], there are likely to be different approaches by those Member States who have stronger attitudes to freedom of expression and those who do not. We understand that the Commission is well aware of the potential for controversy regarding these proposals and has produced a far-reaching first draft with the expectation that the provisions will be amended during the negotiation process."

Conclusion

  5.27  This proposal could have far-reaching effects on the balance struck in this country between the use of the criminal law to control incitements to violence and racial hatred on the one hand, and the freedom of speech and association on the other. The case law of the European Court of Human Rights has recognised that Contracting States have a "margin of appreciation" in relation to the necessity in a democratic society for restrictions on these freedoms.[37] Having regard to the sensitivity of the subject-matter in each of the Member States, which is reflected in the different approaches of their criminal law, we find it surprising that neither the Commission's explanatory memorandum, nor the one from the Minister, even mentions the concept of subsidiarity. We therefore ask the Minister if she accepts the assertion made in recital (5) of the proposal that 'it is necessary to define a common criminal law approach in the European Union ... in order to ensure that the same behaviour constitutes an offence in all Member States'.

  5.28  In this connection, we ask the Minister to state her view on whether the expression 'racism and xenophobia' as used in Article 3 should extend to questions of religion or belief.

  5.29  We have concerns over the width of the offences created by Article 4(a), (c), (d), (e) and (f). In relation to Article 4(a), we ask the Minister to explain what is intended by making criminal 'racist or xenophobic behaviour which may cause substantial damage to individuals or groups'. Could this make criminal a call to boycott the goods of a particular producer in a Member State or in a third State on the grounds of his national origin?

  5.30  In relation to Article 4(c), we would be grateful if the Minister would explain what is intended by 'condoning' in this context.

  5.31  In relation to Article 4(d), we would be grateful for the Minister's views on what factors (if any) now make it necessary to introduce into the law of this country a new offence of 'public denial or trivialisation' of the crimes dealt with by the International Military Tribunal established in 1945, when there has been no such offence for over fifty years.

  5.32  We would be grateful for the Minister's views on the question of whether public dissemination or distribution of tracts, pictures or other materials should be made criminal under Article 4(e), even in circumstances where there is no intention to incite to racial hatred or other threatening behaviour.

  5.33  We ask the Minister to explain in more detail the scope of the offence under Article 4(f), in particular whether the term 'criminal activities' is meant to refer to acts made criminal under the Framework Decision, or to other criminal offences.

  5.34  We ask the Minister for her views on the provisions of Article 6(5) and on whether it would require a court to accept a payment for charitable purposes instead of imposing a fine.

  5.35  We ask the Minister for her views on Article 7. As the offences are essentially public order offences, we do not understand how a provision of this nature (which refers to a person acting in a professional capacity and a victim being dependent on this activity) can operate.

  5.36  We shall hold the document under scrutiny pending the Minister's reply.


17  OJ No L 185, 24.07.1996, p. 5. Back

18  OJ No C 146 of 17.05.2001, p. 110. Back

19  The principle in the law of extradition by which a person is not extradited unless the conduct for which he is sought is also criminal in the extraditing country.  Back

20  See recital 9 to the proposal. However, it appears from the Commission's Explanatory Memorandum that 'propaganda offences' are proportionately more important in Germany, whereas unlawful threats and assaults are more important in the UK and Sweden. Back

21  (22876) 13425/01; HC 152-viii (2001-02), paragraph 1 (28 November 2001).  Back

22  The Commission explains that the 'by any means' formula is meant to include racist and xenophobic contents on an information system such as the Internet. Back

23  'Behaviour' is not defined, but presumably refers to behaviour other than 'public incitement'. Back

24  'Substantial damage' is not defined. It is not clear if mere economic loss is included, so it is not clear that calling for a boycott of goods on grounds of the producer's national origins would not constitute an offence.  Back

25  This would correspond to the offence under s.18 Public Order Act 1986. However, it is not clear if the 'threats' referred to must also be made in public in order to amount to the offence. Back

26  Adopted at Rome 17 July 1998. Article 6 defines the crime of genocide, Article 7 crimes against humanity and Article 8 defines war crimes. Back

27  The London Agreement was concluded on 8 August 1945 between the United States, France, the United Kingdom and the Union of Soviet Socialist Republics and provided for the establishment of an International Military Tribunal for the trial of major war criminals of the European Axis countries. Article 6 of the Charter set out the jurisdiction and general principles of the Tribunal and defined three categories of crimes carried out by persons acting in the interests of the European Axis countries, namely crimes against peace, war crimes and crimes against humanity. Back

28  The Joint Action referred instead to denial of the crimes defined in Article 6 of the Charter of the International Military Tribunal 'insofar as it includes behaviour which is contemptuous of, or degrading to, a group of persons defined by reference to colour, race, religion, or national or ethnic origin'. Back

29   Under the European Arrest Warrant, a sentence of at least three years must be imposable, if the person is to be surrendered without regard for the principle of dual criminality. Article 6(2) and (3) would therefore seem to maintain the requirement of dual criminality, but this would be inconsistent with the Joint Action of 1996.  Back

30  The Commission Explanatory Memorandum does not explain the reason for this provision. As the offences are essentially ones of public order, involving public acts, it seems unreal to speak of individual victims. Back

31  This latter basis has become usual in Framework Decisions, but the concept of 'benefit' seems particularly difficult to apply in this context where no material gain is in issue. Back

32  The rules do not, therefore, cover the wholly extra-territorial case where a person in a third country places material on a website hosted in a third state, but which is accessible from a Member State. The only basis of jurisdiction available would be that based on the nationality of the offender, but in that case the material must affect individuals or groups of that State. Back

33  As to which, see HC 152-xvii (2001-02) (30 January 2002). Back

34  Section 17 Public Order Act 1986. The section does not cover hatred based on religion or belief. Back

35  Section 3(4) Terrorism Act 2000. Back

36  On the other hand, Article 4(f) refers only to an intention of 'contributing to the organisation's criminal activities'. It is not clear if the 'criminal activities' also include those made criminal under this Framework Decision. If they do, then an act such as paying a subscription for the material under Article 4(e) would itself be criminal, since the payment would 'support' the activity under Article 4(e) and would contribute to that activity. Back

37  See, in particular, Handyside v. United Kingdom judgment of 7 December 1976 A.24. p.22. Back


 
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