Definition of offences concerning racism
and xenophobia (Article 1)
6. A major concern of the Committee has been
to clarify the scope of any criminal offences which would be required
in domestic law. We have been critical of the terminology and
drafting of the offences in Article 1 and have sought clarification
of a number of terms and phrases (see letter of 29 October). Three
particular issues are to be noted. First, there is the use of
the term "xenophobia". Generally the Framework Decision
uses "racism and xenophobia" as a composite phrase.
Neither term is defined in the instrument. We do not use the term
"xenophobia" in our law. And even in the context of
the Framework Decision itself there is a question of what, if
anything, "xenophobia" adds to "racism". The
Government takes the view that the inclusion of references to
national origin, nationality and citizenship in our own law is
sufficient to cover the concept of xenophobic hatred. It therefore
does not see any objection to the use of the term "xenophobia"
in the Framework Decision (letter of 23 May).
7. Second, Article 1 includes in the offences
of racism and xenophobia 'public incitement to discrimination'.
When we took evidence from the Government in June 2002, the Government
took the view that such a provision was unnecessarythe
issue was 'properly dealt with by civil law measures in line with
the European Community directives' and it was 'not appropriate
to deal with it in criminal law'.
But the phrase remains in the draft Decision. When we recently
asked the Minister whether Article 1 was now acceptable to the
Government he explained that the Government had been prepared,
in the context of the Danish Presidency's attempt to secure a
compromise, to accept the text in Article 1 provided the Framework
Decision provided a means by which the offence could be restricted
to conduct presently criminal under UK law. This is provided by
Article 8(1), on which we comment further in paragraph 12 below
8. Third, there is the Framework Decision's treatment
of religion. An earlier version of the proposal required making
public incitement to discrimination on grounds of religious conviction
a criminal offence. Article 1(a) now refers to discrimination
on grounds of religion. A recital states that "religion"
broadly refers to persons defined by reference to their religious
convictions or beliefs".
Incitement to religious hatred is not criminalised under our present
domestic law and the Government has been concerned throughout
the negotiations not to prejudice or pre-empt the work of the
Select Committee on Religious Offences, chaired by Viscount Colville.
That Committee has specifically considered the case for creating
an offence of incitement to religious hatred.
Its Report has now been published.
The Select Committee has concluded that such an offence would
remedy the anomaly that some religions receive protection under
race relations legislation while others do not and would discourage
extremists from using the pretext of religion to pursue a racist
agenda. But, having considered the options and acknowledging the
issue of freedom of expression, the Report leaves it to Parliament
to decide whether there should be an offence of incitement to
religious hatred. It notes, however, that the Framework Decision
could provide the starting point for legislation which would not
be confined to race and religion and which could provide the opportunity
to include incitement to hatred across a range of targets of hate
crime (including, for example, the gay community and asylum seekers).
As mentioned the Government has been keen to maintain flexibility
on "religious" offences in the context of the negotiation
of the Framework Decision. We await the response of the Government
to the Report of Viscount Colville's Committee.
9. A separate issue arises from the reference
to "religion" in Article 1(a) and its definition in
the new recital 5(b): "religion broadly refers to persons
defined by reference to their religious convictions or beliefs".
We note that the Framework Decision does not explicitly include
incitement to discrimination on the ground of absence of religious
convictions or belief. The Government explained that it was not
the intention to turn the instrument into a broad charter against
discrimination on any grounds but to deal with what was seen as
the most salient and dangerous issues, namely racial discrimination
and, in the view of the majority of Member States, discrimination
on grounds of religion (Q 22). But the Framework Decision would
not prevent legislation in the future prohibiting incitement to
discrimination against people with no religious belief (letter
of 23 May).
Liability of legal persons (Article
10. Under the Framework Decision racism and xenophobia
offences could be committed by both natural and legal persons.
Article 5 deals with the liability of legal persons (eg
companies). Member States would be required to impose "sanctions
or measures" on a legal person where a lack of supervision
or control has contributed to the committing of an offence for
its benefit. Here the Government has had to rethink its approach
to the implementation of Article 5(2) (letter of 10 February and
Explanatory Memorandum of 25 March, para 13). The problem identified
is not one restricted to this Framework Decision but is common
to a number of Third Pillar measures.
Freedom of speech (Article 7)
11. A number of Member States and a number of
individuals have expressed concern over the implications of the
Framework Decision for freedom of speech. Article 7 has been devised,
and revised, to meet these concerns. It provides that the Framework
Decision should not "have the effect of requiring Member
States to take measures in contradiction to their constitutional
rules and fundamental principles relating to freedom of association,
freedom of the press and freedom of expression in other media
or rules governing the rights and responsibilities of, and the
procedural guarantees for, the press or other media where these
rules relate to the determination or limitation of liability".
We sought clarification of what this meant and whether Article
7 provided adequate safeguards for press freedom. Further, there
is a question of its compatibility with recital 16bis,
which suggests that the Article should not result in the exemption
of the press from criminal liability.
The Government appears prepared to accept Article 7 as part of
an overall compromise package, even though the precise scope of
this provision remains unclear. The Government has said that it
does not need, and therefore does not intend, to rely on Article
7 to protect freedom of speech in the UK. The UK will rely on
Article 8 (Q 26, letter of 23 May).
6 Combating Racism and Xenophobia-Defining criminal
offences in the EU (29th Report, 2001-02, HL Paper 162). Q
The references in Articles 1(c) and (d) to "religious conviction"
have also been amended to refer simply to "religion". Back
The possibility of creating an offence of incitement to religious
hatred had been proposed by the Government in the Anti-Terrorism,
Crime and Security Bill in 2001 and was revived in Lord Avebury's
Religious Offences Bill (HL Bill 39 53/1) in 2002. Back
Select Committee on Religious Offences in England and Wales.
Session 2002-03, HL Paper 95. Back
Ibid, at para 135. Back
Recital 16bis states: "Considerations relating to respect
for the freedom of association, freedom of the press and freedom
of expression in other media may have led to special rules in
national law as to the determination or limitation of liability,
without, however, having as a result that no one can be held criminally
responsible for offences committed through the intermediary of
the press, public media and professional organisations". Back