Select Committee on European Scrutiny Thirty-Second Report





COM(01) 664




Draft Council Framework Decision on combating racism and xenophobia.

Draft Council Framework Decision on combating racism and xenophobia.

Legal base:Articles 29, 31 and 34(2)(b) EU; consultation; unanimity
Document originated:(b) 6 February 2002
Deposited in Parliament:(b) 26 April 2002
Department:Home Office
Basis of consideration:(a) Minister's letter of 4 March 2002

(b) EM of 13 May 2002

Previous Committee Report:(a) HC 152 -xviii (2001-02), paragraph 5 (6 February 2002) and HC 152-xxi (2001-02), paragraph 3 (13 March 2002)
To be discussed in Council:No date set
Committee's assessment:Legally and politically important
Committee's decision:Not cleared; further information requested


  6.1  This proposal for a Council Framework Decision seeks to approximate the laws of Member States and to provide for closer cooperation in relation to offences involving 'racism and xenophobia'.

  6.2  We examined an earlier version of the proposal (document (a)) in detail on 6 February and again on 13 March. We identified a number of general concerns of principle about the wide scope of the proposal. We questioned whether the Commission was right to assert in recital (5) of the proposal that it was "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." In her letter of 4 March 2002, the then Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) explained that, although the Government was concerned that the principle of subsidiarity should be respected in this context, it was prepared to work with its EU colleagues in tackling criminal racism, particularly racially motivated violence.

  6.3  We also raised a number of more detailed points on the scope and definition of the offences which would be created. In reply to our question on the reference in the proposal to 'religion or belief', the Minister stated that the Government did not consider that racism and xenophobia should be defined in a way that included questions of religion and belief. The Minister also agreed that there were serious concerns about the breadth of the offences created by Article 4a-f, and noted that these concerns were shared by other Member States.

  6.4  In relation to the proposed offence of 'condoning' the crimes of genocide, crimes against humanity and war crimes, the Minister stated that the Government's view was that these offences should be combined to create an offence comprising both the element of a racist or xenophobic intent and the impact or likely impact on the public peace, including a general requirement that the words or behaviour which constitute these offences should in themselves be threatening, abusive or insulting.

The revised proposal

  6.5  The revised proposal (document (b)) makes only minor changes to Articles 1 to 4. Article 1 (which sets out the subject-matter of the proposal) has been deleted as a substantive article and has been transferred to the sixteenth recital. Article 2 (which sought to set out the territorial scope of the proposal) has also been deleted, on the grounds that it was superfluous and could have led to confusion.[17] A minor change has been made to Article 3 in relation to the definition of legal person.[18] Article 4 (which defines offences concerning racism and xenophobia) remains unchanged.[19]

The Government's view

  6.6  In her Explanatory Memorandum of 13 May the Minister describes the outcome of negotiations so far on the proposal. She explains that the revised proposal gives rise to no new policy implications. In relation to Article 4, she recalls that the United Kingdom's declaration in the 1996 Joint Action[20] indicated that the UK would apply the provisions of the Joint Action to behaviour that was "threatening, abusive or insulting and is carried out with the intention of stirring up racial hatred or is likely to do so". The Minister explains that the Government has made it clear that it would want to establish a similar threshold for each of the offences in Article 4.


  6.7  We are grateful to the Minister for her efforts to keep us informed of the course of negotiations on this proposal. It is apparent that the major difficulties arise over the definition of offences in Article 4, and that agreement is far from being achieved.

  6.8  We consider that the offences are presently cast in terms which are excessively subjective. We therefore support the Government's wish to establish an objective threshold for all the offences such that they are not committed unless the relevant behaviour is threatening, abusive or insulting and is carried out with the intention of stirring up racial hatred, or is likely to do so. We ask the Minister to inform us, when a revised proposal is produced, of the degree of support which is being obtained for the United Kingdom's position.

  6.9  In the meantime we shall hold both documents under scrutiny.

17  Particularly in relation to the jurisdiction rules in Article 12. Back

18  The Working Party is to revert to the question of whether the definition is superfluous. Back

19  The Working Party is to continue its examination of Article 4 at a subsequent meeting.  Back

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

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