Select Committee on European Union Thirty-Second Report


Appendix 2: Explanatory Memorandum, Correspondence and Oral Evidence

During my appearance before Sub-Committee E of the European Union Committee on 26 June, I agreed to write to you regarding the relationship between rights arising from the European Convention on Human Rights (ECHR) and obligations imposed by EU legislation and in particular the European Arrest Warrant. This arose from discussions on the Framework Decision on combating racism and xenophobia and your concern that the UK would be obliged to surrender a person to another Member State for an offence of racism or xenophobia which was not punishable in the UK.

  As we discussed at the evidence session, the Treaty on the European Union (TEU) makes explicit reference in Article 6(2) to the requirement on the Union to respect fundamental rights as guaranteed by the European Convention for the protection for Human Rights and Fundamental Freedoms. Consequently, any instrument adopted on the basis of the Treaties, including the Framework Decision establishing the European Arrest Warrant, must be consistent with ECHR rights. This is enforced by Article 35(5) TEU, which states that the Court of Justice can review the legality of a Framework Decision in an action brought by a Member State or the Commission on the grounds that the Framework Decision infringes the Treaty.

  This requirement is reflected explicitly in the European Arrest Warrant and will be carried through into domestic law in the legislation transposing the Framework Decision. Clause 17 of the draft Extradition Bill requires a judge to consider whether a person's extradition would be compatible with ECHR rights within the meaning of the Human Rights Act 1998. If the judge decides it would not be compatible, he must refuse the extradition and order the person's discharge. Consequently, if a person who was the subject of a European Arrest Warrant in the UK could satisfy the UK court that his surrender to the requesting Member State would breach ECHR rights, then the judge would have to refuse to surrender that person. Consequently, and in answer to your original question, his Convention rights would be guaranteed.

  I should explain that the European Arrest Warrant applies only to cases where a person has been convicted in another Member State and that State is seeking his return to serve his sentence or where the person concerned is suspected of committing an offence in the requesting Member State and is sought for trial. Equally, as we discussed at the evidence session, although the Warrant does not allow a dual criminality requirement as a bar to surrendering a person for certain offences, including racism and xenophobia, clause 47 of the draft Extradition Bill (which transposes Article 4(7) of the Framework Decision) defines extradition offences in such a way that a person cannot be surrendered for conduct occurring in the UK which is not contrary to UK law.

19 July 2002

Letter from Lord Brabazon of Tara, Chairman of the European Union Committee, to Lord Filkin, Parliamentary Under Secretary of State, Home Office

   Sub-Committee E (Law and Institutions) examined the proposal at its meeting on 28 October. The revised draft adequately addresses a number of the Committee's concerns, as regards in particular the scope of the offences and the challenges to freedom of expression and association. A number of the Government's concerns seem also to have been taken into account, most notably in the introduction of the requirement of incitement to racial hatred for conduct to be criminalised and the formulation of Article 1(2) regarding religious hatred. There remain however a number of unresolved issues:

TERMINOLOGY/SCOPE

  There are a number of terms in need of clarification. One of them is "descent", which is used in Article 1 as a factor for identifying a group of persons or one of its members—and there appear to be a number of scrutiny reservations in this context. The scope of Article 1(d) seems unclear in two respects. First, the offence of public denial of the crimes referred to in Article 6 of the 1945 Charter might preclude comment on the outcome of legal proceedings in a particular case. It will be helpful if you could clarify what is intended to be covered. Second, "gross trivialisation" has been maintained as a criminal offence (Article 1(1)(d)), but its meaning is far from clear. The same could be said for "religious conviction" (Article 1(2)) and the opening words of Article 6bis ("insofar at least one person can be held liable"). You have also expressed concerns regarding the meaning of the requirement for conduct to be carried out "in a manner liable to disturb the public peace" (Article 6ter(b)).

IMPACT ON DOMESTIC LEGISLATION—INCITEMENT TO RELIGIOUS HATRED

  We note that Article 1(2) largely incorporates the UK amendment regarding conduct directed against religious groups, which is criminalised only when religion is used as a pretext for incitement to racist hatred. What would be the implications of this provision for domestic legislation, especially in view of the debate regarding the criminalisation of incitement to religious hatred?

RELATIONSHIP WITH THE EUROPEAN ARREST WARRANT

  The Committee noted in its Report that the absence of harmonisation regarding the scope of racist and xenophobic offences would cause considerable problems, in view of the abolition of the dual criminality requirement for a European Arrest Warrant to be executed for one of these offences. This could result in the issuing of a European Arrest Warrant for behaviour that not only does not constitute an offence in the UK and other Member States, but is also viewed as a legitimate freedom of expression. While the freedom of expression concerns are partly addressed by Article 6bis, there could still be substantial differences between Member States' laws on racism and xenophobia. In order to alleviate concerns by a number of Member States, the drafters have adopted a "minimum standard" approach. This may mean that the Decision would not require any change to UK law, but at the same time does not prevent other Member States from maintaining or adopting broader offences. The danger of an Arrest Warrant covering conduct which is not a criminal offence in another Member State is thus very real. In the UK, clause 47 of the extradition Bill would not exclude extradition in such circumstances. Indeed the clause appears to go further than Article 2(2) of the European Arrest Warrant Framework Decision in having a 12 months penalty threshold.

  Furthermore, an ECHR challenge before the courts of the executing State may be of limited use in such cases, as the Court will have to examine if the rights will be breached in the issuing State if the warrant is executed. The fact that the defendant will be tried for an offence which is punishable under the national law of the issuing State may not necessarily constitute a breach of ECHR rights.

  We would welcome your comments to these points. The Committee decided to retain document 12221/02 Droipen 63 under scrutiny. Documents 14904/01 Droipen 105, 5983/02 Droipen 4, 9740/02 Droipen 38, 10338/02 Droipen 44, 10817/02 Droipen 49 and 11460/02 Droipen 55 have been cleared.

29 October 2002

Letter from Lord Filkin, Parliamentary Under Secretary of State, Home Office, to Lord Brabazon of Tara, Chairman of the European Union Committee

   I am writing to you in response to your letter of 29 October concerning the proposal for a Council Framework Decision on combating racism and xenophobia. You have asked for clarification on a number of points.

  You sought clarification on a number of terms used in the Framework Decision and on the scope of some of the provisions. The term "descent" derives from the UN International Convention on the Elimination of all Forms of Racial Discrimination, to which the UK is a signatory. It is also used in the Additional Protocol to the Cybercrime Convention, which defines "descent" as "referring mainly to persons or groups of persons who descend from persons who could be identified by certain characteristics (such as race or colour), but not necessarily all of these characteristics still exist . . . because of their descent. In spite of this such persons . . . may be subject to hatred, discrimination or violence. Descent does not refer to social origin". We are content with the term as it stands because it would be covered in our own laws by "national or ethnic origin", but we have welcomed a request, made by a Member State, to clarify the term along the lines of the Additional Protocol to the Cybercrime Convention.

  The term "religious conviction", appears in the context of incitement to religious hate crime when religion is used as a pretext to race hate crimes. The term "conviction" rather than "belief" was included at the request of French-speaking Member States and is a linguistic point. The original term used was "religion or belief". But in response to Member States concerns that the meaning of "belief" was unclear, the text was changed.

  Article 6bis was included at the request of two Member States in order to satisfy their respective constitutional and fundamental principles of law in relation to freedom of the press. The phrase "in so far as at least one person can be held liable" refers to the fact that only one person can be held liable for a racist offence committed by the press. "Trivialisation" or making light of the holocaust is not an offence under our domestic law but is common to the laws of a number of other European countries. These types of offences would only be criminalised in the UK if they also constituted incitement to racial hatred within the meaning of our own laws. Article 6ter(a) was included at the request of another Member State. This particular phrase was needed in order to raise the criminal threshold of the Framework Decision and to ensure compatibility with their national law.

  You also sought clarification on the scope of Article 1(d), which relates to "holocaust denial" types of offences. For some Member States it is sufficient for the crimes to have been defined in the Charter of the International Military Tribunal of 1945, but for other Member States it is necessary for national "competent" courts to validate this decision. Again these types of offences would only be criminalised domestically if committed in the context of race hate crime.

  You also asked about the implications the provision on criminalisation of incitement to religious hatred (Article 1.2), where religion is used as a pretext for incitement to race hatred, will have on our domestic law. As the text stands, incitement to religious hatred would only be criminalised in the context of race hate crimes, which is in line with our domestic law. As you know the Government is not opposed in principle to legislating further in this area but is aware of Lord Avebury's Private Member's Bill and that a select committee, chaired by Viscount Colville, is taking evidence on this subject. We do not intend to anticipate the findings of this Committee by including provisions on incitement to religious hatred in the Framework Decision. But there is pressure from other Member States for us to do so.

  Finally you raised the issue of the relationship between the European arrest warrant (EAW) and this Framework Decision. As you correctly point out Racism and xenophobia is one of the 32 generic offences categories in the Framework Decision on the EAW, for which dual criminality requirement is largely removed. For the purposes of the execution of an EAW, the definition of racist and xenophobic offences is based on the issuing Member State's national laws and not on the minimum provisions set out in the Framework Decision.

  If a British person goes abroad and engages in conduct that is contrary to the law of that state he or she should expect to face punishment. The fact that the conduct in question may not be contrary to the law of this country does not absolve him of responsibility for his actions in the same way that we would not excuse a visitor to this country who broke our law simply on the grounds that the conduct was not criminal in his home country.

  The same principle applies if the person having committed the crime flees to another country. We should return a person who has broken the laws of another country—including laws relating to racism and xenophobia—while in that country. It is for these reasons, and in line with the Framework Decision on the European arrest warrant, that the draft Extradition Bill does not impose a dual criminality requirement in these circumstances.

  However, the definition of extradition offence in the draft Extradition Bill makes it clear that the situation is different where the offence occurs outside the territory of the requesting state. I am happy to reiterate a commitment that has previously given—no one will be extradited from the United Kingdom for conduct here which is not contrary to UK law.

  You also made the point that an ECHR challenge relating to the absence of the dual criminality requirement made before the courts of the executing State is unlikely to succeed. You are correct that there is nothing in the ECHR to prevent a defendant being tried for an offence, which is punishable under the national law of the issuing State, but not the executing State. We believe that this is as it should be and that it is right that a person who has broken the laws of another country, while in that country, should be brought to justice. But, as you know the Extradition Bill explicitly provides that we cannot extradite where it would be incompatible with the fugitive's convention rights.

  Finally, I'd like to take this opportunity to inform you that the Presidency has confirmed its intention to submit this Framework Decision to the next meeting of the JHA Council on 28-29 November for discussion, possibly with a view to reaching an agreement on the text.

11 November 2002

Letter from Lord Grenfell, Chairman of the European Union Committee, to Lord Filkin, Parliamentary Under Secretary of State, Home Office

  Sub-Committee E (Law and Institutions) examined the proposal on 18 December. We would like to reiterate our view that the draft currently under scrutiny constitutes a substantial improvement compared to the initial Commission proposal. The scope of the offences has been tightened, and a number of important safeguards have been added. However, a number of points remain of concern to the Committee.

THE MEANING OF ARTICLE 7

  It is stated that the Framework Decision is without prejudice to "rules governing the rights and responsibilities of the press where these rules relate to the determination or limitation of liability". The meaning of this clause is unclear. Does it refer to criminal or civil liability, or both? Would it mean that the press would not be responsible to pay compensation for damage done by racist publications?

ARTICLE 8(2)—THE REVIEW

  We note that the compromise relating to incitement to religious hatred involves a review after two years. What form do you envisage the review taking? Will unanimity be required in order to remove Article 8(1)?

THE "MINIMUM STANDARD" APPROACH

  We note your agreement with the Committee's point regarding the limitations of the use of the European Convention on Human Rights as a safeguard in cases where a warrant is issued on the basis of conduct which constitutes an offence in the issuing, but not in the executing, Member State. We further note that, in order to accommodate Member States' concerns, the text reflects a "minimum standard" approach, which may result in some Member States adopting broader criminal offences of racism and xenophobia than others. As the Committee has previously pointed out, this approach may lead to problems in the implementation of the European Arrest Warrant. The Committee believes that the concerns regarding the European Arrest Warrant could be alleviated, to some extent, if the current proposal were to provide a common definition of racism and xenophobia which would also serve for the purposes of the Arrest Warrant. This could be limited to the "minimum standard" provided in Articles 1 and 8(1).

  We would welcome your comments on these points. The Committee decided to retain document 15095/02 Droipen 89 under scrutiny. Documents 12221/02 Droipen 63, 14283/02 Droipen 83 and 14665/02 Droipen 86 have been cleared.

19 December 2002

Letter from Lord Filkin, Parliamentary Under Secretary of State, Home Office, to Lord Grenfell, Chairman of the European Union Committee

  I am writing in response to your letter of 19 December concerning the proposal for a Council Framework Decision on combating racism and xenophobia.

  You have asked for clarification on Article 7 relating to Member States' constitutional rules and fundamental principles. This Article was included at the request of two Member States in order to protect their constitutional rules and fundamental principles of law in relation to freedom of the press. As originally drafted the provision provided for limited liability "in so far as one person could be held liable". A revised text was put forward, which has had the effect of widening the scope of the provision. The Presidency are seeking to clarify the text in the recitals. We believe that Article 7 refers mainly to criminal liability under Articles 1 and 2. It could also cover liability for sanctions that might be imposed on legal persons under Article 6, some of which are civil rather than criminal. We do not think, however, that Article 7 would remove anyone's liability to pay compensation under civil law as the Framework Decision does not deal with compensation.

  You have also asked for an explanation of the review clause as it applies to Article 8.1 (a), (b) and (c). This review clause requires the Council after a period of two years from the date of implementation of the Framework Decision to consider whether the discretion afforded to Member States in criminalising the offences in Article 1 is still required. The review would be carried out in Council working structures and in consultation with Member States. It would be for the Presidency at the time to decide precisely how this would be done.

  You have suggested that the definition of offences, in the operation of the European Arrest Warrant, should be based on a "minimum standard" as provided for in this Framework Decision. This would in effect reintroduce a form of dual criminality for the offences listed in the Framework Decision on the European Arrest Warrant. As you know we argued against this approach and Racism and Xenophobia is one of the 32 generic offences categories in the Framework Decision on the European Arrest Warrant for which the dual criminality requirement is largely removed. Limiting the European Arrest Warrant as you suggest would contravene mandatory provisions of the European Arrest Warrant Framework Decision. The Government's view is that a person who commits a serious offence in another Member State should not be able to escape arrest by crossing a border, even if the conduct would not be an offence in his home country.

10 January 2003

Letter from Lord Grenfell, Chairman of the European Union Committee, to Lord Filkin, Parliamentary Under Secretary of State, Home Office

   Sub-Committee E (Law and Institutions) considered the proposal, along with your letter of 10 January, at its meeting on 29 January. We would wish to pursue farther the points raised in my letter of 19 December, as the situation has not been fully clarified.

THE MEANING OF ARTICLE 7

  It is evident from your letter that there is still a level of uncertainty regarding the exact scope of Article 7 and what is meant by "rules governing the rights and responsibilities of the press where these rules relate to the determination or limitation of liability". You have indicated that the Presidency is seeking to clarify the situation "in the recitals"—what does this mean in practice? And is there any prospect of further amending the wording of Article 7 in order to clarify its scope?

ARTICLE 8(2)—THE REVIEW

  We note that the procedure and form of the Article 8(2) review has not been decided. The review process will not itself require new EC/EU legislation—and thus would not necessarily trigger national Parliamentary scrutiny. We would welcome your assurance that you will keep the Committee fully informed about the review process and deposit for scrutiny any document regarding its outcome.

ARTICLE 5(2)

  We note that in paragraph 11 of your Explanatory Memorandum you are exploring the options for legislation to give effect to Article 5(2). It would be helpful if you could provide some clarification of the Government's position. In particular, when you refer to the "options for legislation", are there problems of substance? Or do the issues you are exploring solely concern the type of legislation (primary or secondary) needed to implement the Framework Decision?

  We also note that the core provision in Article 5(2) (`each Member State shall take the necessary measures to ensure that a legal person can be held liable where the lack of supervision or control by a person . . . has made possible the commission of the conduct') is similar to the one in other documents (for example the proposals on corruption in the private sector and attacks against information systems). Are the concerns to which you refer in paragraph 11 specific to the racism and xenophobia proposal or is there a general problem?

RELATIONSHIP WITH THE EUROPEAN ARREST WARRANT

  Last, but not least, concerns remain regarding the relationship of the current proposal with the European Arrest Warrant. We note that the Government are not prepared to discuss any limitation to the definition of racist and xenophobic offences for the purposes of the European Arrest Warrant. We regret that the Government has not taken the opportunity to clarify the scope of the European Arrest Warrant by limiting the Warrant to the minimum standard as defined in the present instrument.

  The Committee decided to retain document 15490/1/02 Droipen 92 under scrutiny. Document 15095/02 Droipen 89 has been cleared.

30 January 2003

Letter from Lord Filkin, Parliamentary Under Secretary of State, Home Office, to Lord Grenfell, Chairman of the European Union Committee

   I am writing in response to your letter of 30 January concerning the proposal for a Council Framework Decision on combating racism and xenophobia. You ask about the possibility of further clarifying the drafting of Article 7. The Government is satisfied that the Danish Presidency's compromise proposal to insert wording in the introductory recitals would be sufficient to clarify the position in respect of the liability of the media. The recital will state to the effect that this Article will not result in the exemption of the media or professional organisations from liability. Although the recitals are not binding, this statement would provide guidance on the interpretation of Article 7 and would reflect the assurances given by the Member States concerned, that the media will not be exempted from liability by this provision. In my view, any attempts by the UK to re-open detailed discussions on this Article would not be supported. In particular, the draft is the result of extensive negotiation. Furthermore, given our need for flexibility in respect of the level of criminal threshold, I would be reluctant to reopen discussions on this issue.

  You have asked about the scope of the proposed legislation in respect of the liability of legal persons, where a lack of supervision has contributed to the committing of an offence for its benefit. In previously negotiated Framework Decisions, the UK has relied upon the legal principle of strict liability and the civil law of negligence to fulfil this provision. But it has become apparent in the context of the Framework Decision on Racism and Xenophobia, that strict liability and civil action (where there is no victim) would not be sufficient to fulfil this provision in all cases. As you have noted, a number of other Framework Decisions containing this provision are currently being negotiated and it is likely that this provision will also feature in future Framework Decisions. My officials are therefore looking at how best to legislate in this area and are currently considering the scope of the proposed legislation and whether the legislation should provide for criminal liability or for civil penalties. I will write to you again once our proposals are more developed and after we have had the opportunity to consult more widely on this issue.

  Finally I can assure you that I will keep you fully informed about the outcome of the review process in Article 8 and will deposit for scrutiny any proposal which may result from that process.

  I would like to inform the Committees that we now expect this Framework Decision, based on the compromise package which was due to be discussed at the December JHA Council, to be submitted for a general approach at the Justice and Home Affairs Council on 27-28 February 2003.

10 February 2003


 
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