Select Committee on European Union Minutes of Evidence

Explanatory memorandum submitted by the Home Office on Proposal for a Council Framework Decision on Combating Racism and Xenophobia 7280/03 DROIPEN 14


  This Explanatory Memorandum (EM) covers a proposal from the Commission for a Council Framework Decision on combating racism and xenophobia by approximating laws and regulations of Member States regarding racist and xenophobic offences and facilitating and stimulating co-operation among Member States to combat these offences.


  1.  EM 14904/01 was deposited for scrutiny on 15 January 2002. The European Scrutiny Committee (ESC) considered it on 6 February and 13 March. The ESC held the document under scrutiny and asked for further information on both occasions. A response was sent on 4 March. This EM was sifted to Sub-Committee E of the European Union Committee (EUC) where it was considered on 11 April. A response was sent on 30 April and I appeared before Sub-Committee E to give evidence on this proposal on 26 June 2002.

  2.  Supplementary Explanatory Memorandum 5983/02 (DROIPEN 4) was deposited for scrutiny on 13 May. The ESC considered this, along with 14904/01, on 12 June and held both documents under scrutiny pending the deposit of revised texts. The EUC sifted it to Sub-Committee E in connection with its enquiry into combating racism and xenophobia—defining criminal offences in the EU.

  3.  An EM covering 9740/02 (DROIPEN 38) and 10338/02 (DROIPEN 44) was deposited for scrutiny on 15 July 2002. A further EM covering documents 10817/02 (DROIPEN 49) and 11460/02 (DROIPEN 55) was deposited for scrutiny on 12 September.

  4.  An EM covering 12221/02 DROIPEN 63 was deposited for scrutiny on 11 October 2002. Following this EM, the ESC in its report of 23 October and the EUC in its letter of 29 October asked for clarification on a number of issues. Replies were sent to both Committees on 11 November. On 4 December I accepted an invitation to appear before the ESC and responded to further queries raised in its published report of 20 November.

  5.  An EM covering 14283/02 DROIPEN 83 was deposited for scrutiny on 21 November. A further EM covering documents 14665/02 (DROIPEN 86) and 15095/02 (DROIPEN 89) was deposited for scrutiny on 10 December. In its uncorrected report of 18 December, the ESC continued to raise concerns in relation to the European Arrest Warrant and the review clause in Article 8.

  6.  An EM covering 15490/1/02 DROIPEN 92 was deposited for scrutiny on 10 January 2003. The EUC asked for clarification on a number of points and a reply was sent on 10 February.

  7.  The ESC's uncorrected report of 5 February 2003, following Lord Filkin's oral evidence session on 15 January, sought reassurance on concerns about the link between this Framework Decision and the European Arrest Warrant. The response to this report was included in EM 6296/03 (DROIPEN 9), which was deposited for scrutiny on 21 February 2003.

  8.  An EM covering 6658/03 DROIPEN 10 was deposited for scrutiny on 7 March 2003. The ESC and the EUC are presently holding 15490/1/02 (DROIPEN 92), 6296/03 (DROIPEN 9) and 6658/03 (DROIPEN 10) under scrutiny.


  9.  The Home Secretary has responsibility for policy matters relating to the criminal law (except in Scotland) and takes the lead on judicial co-operation with other EU Member States within the framework on Title VI of the Treaty on European Union. Scottish Executive Ministers also have an interest.


(i)   Legal Basis

  10.  The Commission proposes to use Articles 29, 31 and 34(2)(b) of the TEU.

(ii)   European Parliament Procedure

  11.  Article 39 of the TEU provides for the Council to consult the European Parliament before adopting any measure referred to in Article 34(2)(b) within a time limit, laid down by the Council, of not less than three months.

(iii)   Voting Procedure

  12.  Unanimity in the Council.

(iv)   Impact on United Kingdom Law

  13.  My officials are continuing to explore the options for legislation to give effect to the provision which requires Member States 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 (Article 5(2)).

(v)   Application to Gibraltar

  14.  The proposal has a legal base in Title VI of the TEU. The Government of Gibraltar has advised that it wishes to participate in this measure and this is set out in Article 13.


  15.  As a document directed at EU Member States, the draft Framework Decision has no effect on the EEA.


  16.  No issues of subsidiarity arise here.


  17.  The Government has consulted Internet Service Providers regarding this Framework Decision.


  18.  7280/03 reflects the outcome of discussions at the Justice and Home Affairs Council on 27-28 February. Article 8(3) has been slightly revised, but it maintains a territorial limitation on the requirement for Member States, who make use of Article 8.1, to derogate from dual criminality in responding to mutual legal assistance (MLA) requests for racist and xenophobic offences. This Presidency proposal for Article 8(3) gained further support from Member States. A few Member States indicated that they were willing to agree to a compromise on the entire text, if an agreement could be reached on Article 8(3). The Presidency clearly sees Article 8(3) as the key to reaching a consensus on this instrument. We therefore do not feel that it is realistic to continue to maintain outright opposition to this provision. We have reiterated that Article 8(3) is too wide in its scope (it would require the UK to search and seize material that is not illegal in the UK). But we have indicated that we would consider wording on the derogation from dual criminality if it was in accordance with agreed instruments on MLA or in accordance with mutual recognition instruments. Our position on requiring dual criminality for search and seizure requests would therefore be protected.

  19.  At the Council it was agreed to delete the reference to "belief" from Article 1 but instead a new Recital has been included at 5(b) to the effect that religion broadly refers to persons defined by reference to their religious convictions or beliefs.

  20.  The Presidency has put forward another revised text for Article 7 to meet freedom of speech concerns of one Member State. The scope of the provision has been widened to include all forms of media. It also provides for "procedural guarantees" for the media. This would appear to allow a Member State to refuse to provide judicial co-operation to another Member State in respect of racist and xenophobic offences involving the media. The latter proposal did not receive much support and may well prove unnecessary if agreement can be reached on a compromise wording for Article 8(3).


  21.  These remain unchanged from the EM on Council Document 14283/02 (DROIPEN 83).


  22.  The Presidency has indicated that they will table this instrument for discussion at the JHA Council meeting on 8 May with a view to reaching a general approach on this text.

25 March 2003

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