Select Committee on European Union Minutes of Evidence

Examination of Witnesses (Questions 1-19)




  1. Lord Filkin, thank you very much for taking the time to come along this afternoon and help us with the current draft of the racism and xenophobia proposed Framework Decision. We all think it is a very important and relevant piece of proposed legislation and we would welcome your assistance on it. I wonder if you would like to start by introducing your two colleagues who flank you.

  (Lord Filkin) Thank you very much indeed. Thank you for inviting me. We share your view it is an important piece of legislation, therefore, it is only right that there is some scrutiny, even though we may be "on hold" a little bit as I will explain later. Perhaps I could ask my officials, some of whom you may remember from last time, to introduce themselves.

  (Mr Bradley) I am Richard Bradley from the Judicial Co-operation Unit in the Home Office.
  (Mr Regan) I am Paul Regan from the Extradition Bill team.

  2. We have met before have we not, Paul?
  (Mr Regan) We have indeed, but I have never been on the receiving end of cross-examination from you.

  3. It is nice to see you. Minister, the racism and xenophobia proposal has a lengthy scrutiny history and we have had evidence before from a Minister on it. I understand that it is somewhat in abeyance at the moment having been not pursued by the Greek Presidency and is awaiting being taken up by the Italian Presidency. Is that right?
  (Lord Filkin) Yes, you are absolutely right. In fact, I seem to recollect that I gave evidence to you on this issue last June and here we are again, in a sense. Yes, the Greek Presidency decided that there does not seem to them to be a realistic prospect of making progress and, therefore, they have said they do not intend to bring it back to JHA during their current presidency. As for the Italians, in a sense, we wait and see. It is well possible that they may bring it forward, in which case it would not be before October which is the first real JHA, if I can use that term, under their presidency. It will be interesting to see if they do because they have probably been—if I choose my words carefully—perhaps working less vigorously than some at trying to find the middle ground on this issue.

  4. The proposal has been promoted by the Commission. It is the Commission's proposal, is it not?
  (Lord Filkin) Yes, indeed.

  5. What is the UK Government's attitude to it? Is the UK Government enthusiastic about it, or is it just reacting to the proposal?
  (Lord Filkin) No, I think it is more than just reacting. We can see there is benefit in an appropriately crafted measure which puts in place minimum standards to outlaw or, hopefully, prevent racism and xenophobia across the European Union. So we start from a principle that there is benefit in terms of establishing the European Union as an area of peace and justice and security. There are benefits potentially to British citizens who may increasingly be travelling or working in other European Union Member States that they know that they would have at least minimum protections in this respect. The devil is in the detail, as you know.

  6. One of the problems, of course, is that they might have some exposure as well while they were travelling in foreign states.
  (Lord Filkin) Indeed.

  7. That might not be so comfortable for them?
  (Lord Filkin) Perhaps.

  8. On a previous occasion I asked a witness—I cannot remember, Lord Filkin, whether I asked the question of you or whether it was another witness—as to what the expression "xenophobia" added to racism. I recall receiving the answer that it really added nothing, that racism and xenophobia had become a composite phrase which to all intents and purposes simply meant what we would understand by racism, and it was as well left there because in their view they had grown accustomed to it and comfortable with it. I understood that answer but I was a little alarmed to see that in this current draft there is on page 6, recital 6, the two adjectives are placed in contrast with one another, rather than as a composite expression: "Racist or xenophobic motivation . . .", which rather re-ignites my curiosity as to what xenophobia does add to racism. I wonder if you could help on that?
  (Lord Filkin) You are right on one of your recollections, you did ask it before and it was of me at our last session. I seem to recollect—you are absolutely correct—that the answer I gave you was that it has not much impact, they are almost a composite phrase. All I can say in response to clause 6, on page 6, which may or may not add comfort, is that, of course, this recital is not part of the legal force of the document and, therefore, in that sense I do not think it carries any great weight.

  9. It may not, but one of the problems about it is that if one gets language of this sort that will be taken as some sort of guide to construction, and it might then be argued that there is something which could be called "xenophobia" which would not come within the expression "racism" as normally understood. It is unfortunate to have this contrast—the only place in the Directive where one finds it. Consistency of language is to be recommended, surely?
  (Lord Filkin) Let me take that point. We will go away and apply our brains again to see whether we can think of any significant difference in terms of the distinction like that, and if we come to a view—as we said last time—that there is not a distinction and we revive discussions on the document, I can see no disadvantage in us marking that to our colleague Member States.

  10. Thank you. Lord Lester?

Lord Lester of Herne Hill

  11. I wonder if I could just add further food for thought about this issue? I understand what is meant by racism: it means hating somebody, or discriminating against them for something that they cannot help, that is to say what they are born with, whether it is their national ethnic origins, their colour, their ethnicity, or their ethnic group. I always thought that xenophobia by contrast was the unattractive quality of hating someone because of the country to which they belong, as in "bloody Ruritanians". What I am troubled about is when you look at something like Article 4, which says that if there is an offence other than an Article 1 or 2 offence: ". . . Member States shall take the necessary measures to ensure that racist and xenophobic motivation is considered an aggravating factor . . .". If there is any difference between racism as defined by our Race Relations Act and something more, that seems to me to be a command to states to require a broad range of criminal wrongdoing from the point of view of sentencing to cover this broader concept of xenophobia. I find that very troubling in terms of legal certainty as well as liberal principles.

  (Lord Filkin) Yes. If I heard your argument correctly, it is if someone hits a Frenchman after an argument and says at the same time: "I am hitting you because I loathe you because you are a Frenchman"—

  12. Or "I hate Poles or Austrians because they killed so many Jews" and then some poisonous and appalling attack upon the Polish or Austrian nation of a non-racist but xenophobic kind. That is how I was trying to phrase it.
  (Lord Filkin) Yes. It is in the context of an aggravating factor, is it not? In other words, it would be consequent to presumably some other action which was an offence.

  13. An appalling round of public violence between a Jew and a Pole?
  (Lord Filkin) Yes, that is the example I gave. If I assault somebody the implication is—if I have understood your questioning correctly—not just being a question of whether it was GBH or ABH, it would be that there was potentially a cause for aggravation because one said: "I am hitting you because I hate Frenchmen or I hate Poles". That seems to me the correct interpretation and a good question, is it not?
  (Mr Bradley) Yes.
  (Lord Filkin) Do we have an answer to that?
  (Mr Bradley) I think our answer would be that we already, in our law, have offences which are racially aggravated. We do not use the term xenophobia, but we refer to racial aggravation and that refers back to our own law, on incitement to race hatred. I think the point that you are putting to us is because the words "and xenophobic" are included that therefore it has a wider meaning. Obviously, I think that is a point we ought to consider and come back to the Committee with a view on it.

  14. Yes, that is exactly the point. Thank you very much.
  (Lord Filkin) Just so. Because, in a sense, if it is racial, our current law covers it; your point is that it does not.

  Lord Lester of Herne Hill: Exactly. I am very grateful.


  15. Lord Lester's example was of a Jew and a Pole; it would be more akin to xenophobia if it were an Israeli and a Pole.

  (Lord Filkin) Yes.

  Lord Lester of Herne Hill: Yes. Anyhow, attacking someone for more than their ethnicity.

  Chairman: Lord Neill?

Lord Neill of Bladen

  16. It is a very simplistic question I shall be asking out of ignorance. Is it common to have statutes in English law which make a difference in the penalty depending on the motivation with which the crime is committed? Let me give you a very simple example, you may say it is absurd. On day one, somebody goes into the supermarket—one of the big chains—and steals a loaf. The second day he goes into a local Pakistani corner shop and steals a loaf and when he is arrested he says to the police: "I hate these Paki businesses." Are we saying here that there should be guidance on the statute saying the magistrate, on considering the second offence, should be taking into account the motivation with which that theft was committed?

  (Lord Filkin) I tremble to give a comment on the interpretation of the law to Lord Lester on this respect, but there are already such statutes on our statute book. That it is for exactly the circumstances—

  17. For racial discrimination?
  (Lord Filkin)—for racial discrimination, indeed.

  Lord Lester of Herne Hill: I think it was in the Crime and Public Order Act that a provision was inserted which, to the best of my memory, did precisely that. It said that if someone commits a crime and in turn it was done for a racial motive, the sentencing judge may take into account that as an aggravating factor. It is fair to say that the judges are already doing that at common law in certain contexts, but it was put into statute before.

Lord Neill of Bladen

  18. There is a precedent?

  (Lord Filkin) There is a precedent and that is exactly as I understand it, yes.

  Lord Neill of Bladen: Thank you.


  19. Lord Filkin, Article 1 of this current draft includes in the offences of racism and xenophobia public incitement to discrimination; those are their opening words in sub-paragraph (a). When evidence was given to this Committee on the last occasion, I think Mr Bradley told us that the Government takes the view that discrimination is properly dealt with by civil law measures in line with the European Community Directive on this provision and it was not appropriate to deal with it under the criminal law, but Article 1 now arranges to have it dealt with under the criminal law. What has changed?

  (Lord Filkin) It shows the dangers of taking a long time over these negotiations, does it not? You call us back to account for changes. I think, in a sense, the inclusion of incitement to discrimination has been very contentious. It was included in the Framework Decision by the Danish Presidency in an attempt to secure a compromise on the text. We did not support this proposal, but we did concede to the majority view on this point in exchange for the inclusion of Article 8(1)(b). Article 8(1)(b) gives Member States the discretion to limit the offence of incitement to discrimination only where the conduct is threatening, abusive or insulting and is likely to stir racial hatred or violence. We did so because this is consistent with our domestic law on incitement to racial hatred and, therefore, we had brought it back within the ambit of our own current law.

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