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Baroness Anelay of St Johns: Before the noble Lord, Lord Goodhart, speaks to his amendment and naturally, as we are in Grand Committee, withdraws it, perhaps I may add a couple of remarks and questions to the Minister.

She referred specifically to the arguments that we have had many times about xenophobia being included in the list of offences for which dual criminality will no longer be a requirement. One of our arguments is that if such a narrow band of offences comprise xenophobia, it would be far better if the Government were to define them. We could then at least have a debate about whether specific offences should be included. That refers back to a comment made by the noble Lord, Lord Goodhart, in introducing his amendment: that at least if there were a list of the offences, there would be greater clarity.

The Government always refer to Holocaust denial as being an important offence in Germany—and it is. The problem is that it appears that that item on the list of 32 is being designed against one particular writer—like the noble Baroness, I shall not dignify him with the name of "historian"—who has taken a particular course, as he considers his right. We are trying to achieve a system whereby the Bill can operate satisfactorily not just for individuals now but for the whole of its future. We are still concerned that it will not do so while xenophobia appears on the list, unless

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we also include Amendment No. 142. I hear what the Minister says about Amendment No. 142 and shall of course listen carefully to what the noble Lord, Lord Goodhart, says, but I give notice that during the summer I shall carefully consider what progress is made on that because he has raised a matter vital to this part of the Bill.

4 p.m.

Lord Stoddart of Swindon: Before the noble Lord, Lord Goodhart, rises to reply, like other noble Lords, I welcome the fact that the 32 offences are to be included in the Bill. That is essential, but I am not quite so pleased about how they may be altered. I should have thought that the Minister could have given us an assurance this afternoon that any alteration would be made, if not by primary legislation, at least by affirmative resolution. I did not hear her give that assurance. I should have thought that that was an easy—and essential—assurance to give us at this stage, to save our time on Report.

With regard to racism and xenophobia, I think that every one of us knows what racism is. We can define racism quite easily. For example, I am Welsh. When I came to England, I got used to being described as a Taffy—and a Taffy who went into a butcher's shop and stole a leg of beef. As it happens, we were able to shake off that sort of racism in those days. We laughed it off and gave back as good as we got. But times have changed. So I think we understand what racism means. But I am not at all sure that anyone in this room—including me—really knows what xenophobia means.

Before I came out, I looked in my dictionary. It states that xenophobia means dislike, hatred or fear of foreigners. People can be imprisoned for disliking a foreigner, for hating him—not doing anything about it; just hating him, as far as I can see—or even for being afraid of him. There are some foreigners of whom I have had experience in my lifetime of whom I am still afraid. How are we to define xenophobia given those dictionary terms?

The noble Baroness, Lady Anelay, instanced the disgraceful remarks of Signor Berlusconi, but I would not describe them as xenophobic. I would describe them as insulting and unnecessary and, if I had been Mr Schultz, I should have replied that Signor Berlusconi was giving a good imitation of Signor Mussolini. But I am not at all sure that I would have said that he was being xenophobic. It is extremely difficult to define that crime—because that is what it will be, a crime—of xenophobia.

I could go on at great length—so could we all—but that word does not have a place in the Bill. Nor, indeed, should it have a place in the law of any other nation of the European Union because it smacks of the withdrawal of freedom of speech. It is essential in a free society that you should be able to speak freely—without the intent to hurt or insult people but to give your view on virtually everything.

I therefore do not believe that that word, which can have so many definitions and which is viewed in different ways in different cultures, should be part of

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any Bill passed in this country. Indeed, I recommend that the Government say, "No, no, no, no", to its inclusion in any list. Having said that, I hope that the views of the Committee will be taken into account before we reach Report.

Baroness Carnegy of Lour: I endorse what the noble Lord said. I have said more than once during our proceedings—I apologise for saying it again—that what most people who understand the Bill are frightened about in it is that they may make a mistake and commit a crime without knowing it. The noble Lord—and my noble friend Lady Anelay—reflected the British attitude to such matters. People often make a casual half joke, which in this country is understood as a joke that is perhaps a little near the edge but which would in another country be regarded as xenophobic. That could easily happen. That is a real risk if we include the offence and make it possible for people to be extradited for it.

I think that the noble Baroness said that the Government are trying to find a way of adding a new offence to the list. Does she mean other than by order or simply that they are wondering whether to do so by affirmative or negative resolution? Are they contemplating another way? If so, can we know what the alternative is so that we are prepared when she tables her amendment at the next stage?

Baroness Scotland of Asthal: Perhaps I may first deal with the question asked by the noble Baroness, Lady Carnegy. We are still considering how we should deal with any alteration to the list, so I cannot tell her whether it will be by affirmative or negative resolution. We are at present considering how to respond. We have taken on board what has been said in Committee about the importance of changing the list. As I said earlier, we think it unlikely that any significant changes will be made to the list very soon. The noble Baroness will know that when enlargement takes place, there will be 25 or 27 member states, and there are hugely important issues for us to address.

The work on the framework decision involved many hours, months and years of deliberation to reach this stage. Your Lordships will see that the list is fairly comprehensive. It covers the majority, almost to the exclusion of the offences that should be covered. At present, we do not see the need to increase the number of offences, not least because your Lordships will see that the list deals with generic types of crime as opposed to specific crimes. That leads to what I said earlier—we have not defined them and we use different names. I also say to the noble Lord, Lord Stoddart, who rightly raised the same issue, that we shall continue to consider the matter. I can assure him that everything said in the Committee will be taken into account.

However, I must say as gently as possible that we cannot really define the nature of other countries' offences and how they craft offences within their own states. I believe that the noble Lord, Lord Stoddart, said that these laws should not have a place in any other nation in the EU. As is the case with other

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countries, we are not subject to anyone else's diktat. I know from the many contributions that the noble Lord has made to our debates in a very energetic and thoughtful way that he would be absolutely appalled if anyone else in Europe sought to tell us what should be on the face of our statute book.

Lord Stoddart of Swindon: Unfortunately I have to deal with things that are. It is true that I not only would resent but would always resent being told by other countries what we should do. But, of course, the whole essence, and indeed the whole concept, of belonging to the European Union depends on democracy and free speech. If you do not believe in that, you really should not be in the European Union. It was in that sense that I said that the term "xenophobia", which is difficult to interpret, should not be part of any free and democratic state which believes in free speech. If it is, then that state should not be in the European Union in the first place.

Baroness Scotland of Asthal: I believe that takes us down a very difficult and thorny path. Of course, implicit in the debate that we have had is a recognition that certain forms of xenophobia are illegal in our own legislation and are also illegal in the legislation of other states. However, the issue is whether we can confine how this generic term should be used.

I believe it is right to say that the countries which at present have crafted their laws while pursuing the generic term "xenophobia" have all created laws which pertain to the needs of their particular state. Of course, I recognise the sympathy that has been shown and the acknowledgement that has been expressed in this Committee and, indeed, elsewhere with regard to the nature of Holocaust denial in relation to Germany. We are not including this generic term on the face of the Bill for any one writer. I believe we all know that that is simply an example of the problem that we might need to face.

Therefore, we cannot have a definitive list because we cannot force any other EU partner to say that it will never seek to change its law. As I said earlier in Committee, the whole premise upon which this issue is founded is that we work in comity with our partners and we respect their traditions and their ability as democratic states to craft laws which meet the needs of their systems. Provided the offences fall within the criteria set out in the framework decision, we believe that we should properly respect that agreement. I do not believe that we will be able to give the noble Baroness, Lady Anelay, the definitive list that she seeks, because that is simply not within our control. We can say what it is now and where there is dissonance or difference, but we would not be able to say that for all time. Certainly, before the list changes, we could determine what each European Union state believed to be included within the generic term. I hope that Members of the Committee will understand the limitations that we face in relation to these matters.

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4.15 p.m.

Lord Goodhart: I am, of course, grateful to the Minister for telling us that the framework list will now be brought into the Bill. That is plainly a major step forward and one that I certainly applaud.

I agree, somewhat unusually, with the noble Lord, Lord Stoddart of Swindon, and, perhaps less unusually, with the noble Baroness, Lady Carnegy. Like them, I am puzzled as to why the Government are not prepared to take the obvious course in relation to adding new offences to the list, which would be through an Order in Council approved by the affirmative resolution procedure. It seems to me that anything less than that would be entirely inappropriate.

On xenophobia and racism, the Government are, of course, much less accommodating and indeed have not moved at all. I understand the difficulties that the Government face, but the issue certainly worries us. If I might hark back to a debate that we had at our previous sitting, I think that our concern would be that much greater if the Government were to insist on applying the abolition of the dual criminality rule to offences that carry—to use an oxymoron—a minimum maximum sentence of 12 months, when they could perfectly legitimately stick to the minimum maximum sentence of three years, which is the sentence that is required by the European framework decision.

In light of that, the inclusion of racism and xenophobia in its present and entirely undefined form becomes increasingly objectionable. That will have to wait for another occasion to be further debated, as I have every expectation that it will be. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 141 had been withdrawn from the Marshalled List.]

[Amendments Nos. 142 and 143 not moved.]

[Amendments Nos. 144 to 145A had been withdrawn from the Marshalled List.]

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