Select Committee on European Scrutiny Thirty-Ninth Report



3. RACISM AND XENOPHOBIA

 

(a)

(23001)

14904/01

COM(01) 664

(b)

(23414)

5983/02

(c)

(23601)

9740/02

(d)

(23623)

10338/02

(e)

(23722)

11460/02

(f)

(23731)

10817/02

(g)

(23808)

12221/02

 

Draft Council Framework Decision on combating racism and xenophobia.

 

 

Draft Council Framework Decision on combating racism and xenophobia.

 

 

Draft Council Framework Decision on combating racism and xenophobia.

 

 

Draft Council Framework Decision on combating racism and xenophobia.

 

 

Draft Council Framework Decision on combating racism and xenophobia.

 

 

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:

(c) 12 June 2002

(d) 25 June 2002

(e) 2 August 2002

(f) 9 July 2002

(g) 25 September 2002

Deposited in Parliament:

(c) 28 June 2002

(d) 8 July 2002

(e) 7 August 2002

(f) 9 August 2002

(g) 30 September 2002

Department:

Home Office

Basis of consideration:

(a) Minister's letter of 4 March 2002

(b) EM of 13 May 2002

(c) and (d) EM of 15 July 2002

(e) and (f) EM of 12 September 2002

(g) EM of 11 October 2002

Previous Committee Report:

(a) HC 152-xviii (2001-02), paragraph 5 (6 February 2002)

(a) and (b) HC 152-xxxii (2001-02), paragraph 6 (12 June 2002)

To be discussed in Council:

JHA Council 28-29 November 2002

Committee's assessment:

Legally and politically important

Committee's decision:

(a) to (f) cleared; (g) not cleared; further information requested

 

Background

    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'.
    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. On 12 June we examined a further document (document (b)), which contained some minor revisions to Articles 1 to 4. We noted that major difficulties arose between the Member States in relation to the definition of offences in Article 4. We considered that the offences were cast in terms which were excessively subjective and we supported the Government's wish to establish an objective threshold for all the offences so that they would not be committed unless the relevant behaviour was threatening, abusive or insulting and was carried out with the intention of stirring up racial hatred, or was likely to do so.
    3. The revised proposal

    4. Document (c) is a revised version of Articles 1 to 5 of the proposal reflecting the outcome of the Council working party's meeting on 5 June. That version was superseded by document (d), following the working party's meeting on 18 June. These versions were superseded by documents (e) and (f) which set out revised versions of the entire proposal as they stood on 9 July and 2 August, but they have since been superseded by document (g). The current version is therefore document (g).
    5. In document (g) the definition of offences is now set out in Article 1. The Article defines four types of conduct which are to be made criminal 'at least when threatening, abusive or insulting'[7]. The first type of conduct, described in Article 1.1(a), consists of 'public incitement to discrimination[8], violence or hatred in respect of a group of persons or a member of such a group defined by reference to colour, race, descent[9], or national or ethnic origin.
    6. The second type of conduct, described in Article 1.1(b), consists of the 'commission of an act referred to in point (a) by public dissemination or distribution of tracts, pictures or other material'[10].
    7. The third type of conduct, described in Article 1.1(c) consists of the 'public condoning' of genocide, crimes against humanity and war crimes. These crimes are defined as those defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, 'at least when recognised as such by a final and binding decision by a competent court'[11]. The offence of 'condoning' is complete if it is directed against a person or a group of persons defined by reference to colour, race, descent, or national or ethnic origin. There is no requirement[12] that the condoning should be done in a manner liable to disturb the public peace.
    8. The fourth type of conduct is described in Article 1.1(d). It consists of the 'public denial or gross 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 at least when recognised as such by a final and binding decision by a competent court'[13]. The public denial or gross trivialisation must be directed against a person or group defined by reference to colour, race, descent, or national or ethnic origin but there is no requirement that the denial or trivialisation should have been done in a manner liable to disturb the public peace.
    9. The four types of conduct referred to in paragraph 1 of Article 1 are, by virtue of Article 1(2), to be made punishable when directed against a group of persons or a member of such a group 'defined by reference to religious conviction' where 'this[14] is a pretext[15] for directing the acts against the groups of persons or members of such groups referred to in paragraph 1'.
    10. As in previous versions, the current version of Article 2 deals with aiding and abetting. Article 3 requires Member States to provide for penalties of at least one to three years, or two to five years' imprisonment.
    11. Article 4 requires Member States to take the necessary measures to ensure, for offences other than those referred to Articles 1 and 2, that racist and xenophobic motivation is considered an aggravating factor or that such motivation may be taken into consideration by the courts in the determination of the penalties.
    12. As with previous versions, the current version of Articles 5 and 6 provides for the liability of legal persons and sanctions on such persons respectively.
    13. The current version contains a new Article 6bis which provides that the Framework Decision shall not prevent any Member State from applying its constitutional rules and fundamental principles relating to 'freedom of association and trade union, freedom of the press and freedom of expression in other media and national legislation governing the rights and responsibilities of the press'[16].
    14. A new Article 6ter has also been included in the current version. This provides that a Member State may exclude the conduct referred to in Article 1(1)(a),(c) and (d)[17] where the conduct is not carried out 'in a manner liable to disturb the public peace'. Article 6ter also provides that public incitement to discrimination under Article 1(1)(a) may be excluded from criminal liability where the conduct is committed 'without the intention of incitement to violence or hatred directed against a group of persons or a member of such a group as referred to in Article 1'[18]. Finally, Article 6ter also provides that the conduct referred to in Article 1(1)(c) and (d) may be excluded from criminal liability where it is committed with no intention of incitement to violence or hatred against a person or group referred to in Article 1.
    15. Article 7 repeats the provision in the earlier versions to the effect that an investigation or prosecution should not depend on the making of a complaint by a victim 'at least in the most serious cases where the conduct has been committed in its territory'.
    16. Article 8 deals with jurisdiction. In addition to making rules to establish jurisdiction where the offence is committed within its territory, Member States are required also to establish jurisdiction over offences committed by their own nationals (Article 8(1)(b)), or for the benefit of a legal person which has its head office in that Member State (Article 8(1)(c)). In these two latter cases, however, a Member State may decide not to apply these rules, or apply them only in specific cases (Article 8(4)).
    17. Article 8(2) contains provisions on jurisdiction where the offence involves use of an information system (e.g. posting material on an internet website). Article 8(2)(a) requires the Member State to establish jurisdiction where the offender commits the conduct when physically present in its territory, whether or not the conduct involves material hosted on an information system in its territory.[19] Member States are also required to establish jurisdiction where the conduct involves material hosted on an information system in its territory, whether or not the offender commits the conduct when physically present in its territory.[20]
    18. Article 8(3) contains provisions on extradition which may be deleted because of the adoption of the Council Framework Decision on the European Arrest Warrant.[21]
    19. Articles 9, 10 and 11 are concerned with implementation, the repeal of Joint Action 96/443/JHA and entry into force respectively.
    20. The Government's view

    21. In his Explanatory Memorandum of 11 October the Parliamentary Under-Secretary of State at the Home Office (Lord Filkin), describes the latest version (document (g)) and its policy implications. Explanatory Memoranda of 15 July and 12 September 2002 from the Minister covered documents (c) and (d), and (e) and (f), respectively.
    22. The Minister points out that, because of the amendment of Article 1 and the addition of Article 6 ter, the provisions in the latest version of the proposal (document (g)) concerning definitions and penalties will not have any impact on United Kingdom law. The Minister explains that these amendments meet the Government's concerns regarding criminalising public incitement to discrimination, holocaust denial and condoning of war crimes.
    23. In his Explanatory Memoranda of 12 September and 11 October the Minister states that no issues of subsidiarity arise.
    24. On Article 1, the Minister commented on 12 September that Member States have been asked to accept Article 1(1)(a) as a 'compromise solution'. The Minister points out that the conduct described in Article 1(1)(a) (i.e. 'public incitement to discrimination, violence or hatred in respect of a group of persons or a member of such a group defined by reference to colour, race, descent, national or ethnic origin') is to be made criminal 'at least when threatening, abusive or insulting'. The Minister explains that the Government welcomes the inclusion of this wording 'as it matches the United Kingdom law on race hatred'. However, the Government still has concerns regarding 'public incitement to discrimination', since this is not a specific criminal offence under United Kingdom law, even when 'threatening, abusive and insulting'. The Minister points out that instructions or pressure to discriminate are unlawful under sections 30-31 Race Relations Act 1976, but that this is a civil matter. The Minister indicates that the Government is currently considering all of the implications of this inclusion.
    25. In relation to Article1(1)(c) and (d), the Minister commented on 12 September that the wording of these provisions was ambiguous and that it would prefer to a return to the wording of document (d) where there is a reference to incitement to racial hatred, discrimination or violence. On 11 October the Minister explained that in relation to these provisions, the words 'at least when' have been added to qualify the requirement that the crimes (i.e. condoning of war crimes, genocide etc. or holocaust denial) should be recognised as such by a final and binding decision of a competent court. The Minister does not explain how this definition can be made to work, but he does indicate that Article 1 is closely linked to Articles 6bis and ter.
    26. The Minister explains in relation to Article 6 bis that the Government would be prepared to agree to its insertion as part of an overall compromise, which meets the Government's concerns. The Minister states that the Article safeguards certain Member States' existing rules on fundamental freedoms 'but would have no impact on United Kingdom law'.[22]
    27. The Minister explains that Article 6ter is new and that it has been added to meet the concerns of certain Member States, including the United Kingdom, over freedom of expression issues. The Minister states that the article has been inserted 'in response to the Government's need to limit the scope of offences to conduct that is intended to stir up racial hatred' and that it meets the Government's concerns regarding 'criminalising public incitement to discrimination, holocaust denial and the condoning of war crimes'.
    28. Conclusion

    29. Like the Minister, we welcome the addition of the new Article 6bis which makes it clear that a Member State is entitled to apply its constitutional rules relating to freedom of expression and of association.
    30. We also welcome the addition of the new Article 6 ter which will make sure, at least in those Member States which make use of the provision, that the offences are not committed unless there is a likelihood of disturbing the public peace or unless there is an intention to incite violence or hatred against individuals or groups.
    31. We also welcome these provisions as a means of alleviating the difficulties in the definitions in Article 1(1)(c) and (d), which appear to us to be unworkable. We ask the Minister if he can explain the purpose of referring, in both cases, to a crime being 'recognised as such by a final and binding decision by a competent court'.
    32. The provisions of Article 6 bis and ter, although welcome in minimising the effect of this Framework Decision on the law of the United Kingdom, will nevertheless have the likely consequence that there will remain substantial differences in the laws of Member States on 'racism and xenophobia'.
    33. In this regard, we are concerned that the effect of the European Arrest Warrant may be insufficiently appreciated. Since the European Arrest Warrant does not require dual criminality to be shown in the case of the offence of 'racism and xenophobia', it follows that persons may have to be surrendered in respect of conduct which is lawful in the place where it is committed, particularly as a result of the jurisdiction rules in Article 8. We ask the Minister for his assessment of the effect of Article 6 bis and ter and the rules on jurisdiction of this proposal in the light of the European Arrest Warrant. We ask the Minister, in particular, if he can give an assurance that a person will not be extradited from the United Kingdom for 'racism and xenophobia' in respect of conduct which is lawful in this country, by reason of the UK's reliance on Article 6bis or ter or for any other reason, but which is not lawful in the Member State requesting extradition.
    34. We also ask if the Minister will explain his conclusion that this proposal does not raise any issue of subsidiarity, given that it appears to have been necessary to allow for substantial differences of approach between the Member States in order to reach any kind of common understanding in this sensitive area.
    35. We clear documents (a) to (f), as they have been superseded, but we shall hold document (g) under scrutiny pending the Minister's reply.

 


7  It is not clear whether these characteristics are to be assessed objectively, or whether they depend solely on the views of the victim. Back

8  'Discrimination' appears to be left at large, and it is not clear to what it relates. It could mean that discrimination on grounds of disability or sexual orientation is not criminal unless it is directed at an ethnic or national group having these characteristics. Back

9  It is not clear what is meant by 'descent'. It is not, for example, the term used in Article 14 ECHR dealing with discrimination.  Back

10  It is not clear what this adds to Article 1.1(a), or why this particular form of incitement is singled out for special treatment. Back

11  This element of the definition seems unworkable. Only the International Criminal Court has jurisdiction to try crimes under Articles 6, 7 and 8 of the Statute, and then only in respect of acts committed after the entry into force of the Statute. If there is then a further requirement that the decision of the ICC be 'recognised' by a final and binding decision by a national court, the scope of the offence under Article 1.1 (c) will be arbitrary and uncertain. Back

12  There was such a requirement in document (d), but it appears to have been deleted in the current version, document (g). Back

13  This part of the definition seems as unworkable as that of Article 1.1(c). Only the International Military Tribunal had jurisdiction to try the offences of crimes against peace, war crimes and crimes against humanity as defined in Article 6 of the Charter. It is not clear why the trivialisation of a conviction before the Nuremberg Tribunal should depend on there subsequently being a decision of a national court recognising the conviction. Back

14  It is far from clear what the word 'this' refers to. It could be read as 'these' so as to relate to the acts referred to in paragraph 1, or it could refer to the defining of a group by reference to religious conviction.  Back

15  It is not clear why it should be necessary to establish a 'pretext' when the acts are already directed against the persons or groups referred to in paragraph 1. Section 28(5) Crime and Disorder Act 1998 refers to groups defined by their lack of religious belief, but it is not clear that Article 1(2) covers this case. Back

16  Since recital 15 provides that the Framework Decision respects the rights recognised by the European Convention on Human Rights, in particular Articles 10 and 11, the constitutional rules and fundamental principles are presumably those provided for in national law apart from the ECHR. Back

17  It is not clear if the conduct in Article 1(1)(b), which deals with the commission of an act referred to in Article 1(1)(a) by the dissemination or distribution of tracts, pictures or other material, is also covered.  Back

18  Presumably, the public incitement to discrimination by dissemination or distribution of tracts and material is also covered, since this arguably is conduct referred to in Article 1(1)(a).  Back

19  This would seem to include the case where a person in State A sends material to a website in another Member State where the conduct is not criminal in that State e.g. because of Article 6bis or Article 6ter, or to a third state where the law guarantees the freedom of speech as with the First Amendment to the US Constitution. Back

20  This would seem to cover the case where a person in State A, where the conduct is not criminal in that State (e.g. because of Article 6bis or 6 ter constitutional guarantees of freedom of speech) sends material to a website in State B where the conduct is criminal. Back

21  OJ No L190, 18.7.2002, p.1. The extraterritorial effect of that measure should be noted. It abolishes dual criminality for 'racism and xenophobia', with the apparent result that a person must be extradited in cases where jurisdiction is asserted by another Member State under Article 8(2)(a) or (b). This appears to be so even in the case where the extraditing Member State applies Article 6bis or 6ter but the receiving State does not. To that extent, the receiving State is able to apply its more restrictive law extraterritorially.  Back

22  We do not assume that the Minister is saying that there are no fundamental freedoms which would be relevant under Article 6bis, but rather that nothing in the Framework Decision could affect the operation of the Human Rights Act 1998, even without Article 6bis.  Back

 
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