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
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 xenophobiadefining 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
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
(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
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