Select Committee on European Union Minutes of Evidence

Letter from Lord Filkin, Parliamentary Under Secretary of State, Home Office, to Lord Scott, Chairman of Sub-Committee E of the European Union Committee

  I am writing in response to your letters of 7 and 12 May requesting my further views on a number of issues raised during the course of my appearance before the Committee on 30 April.

  At Questions 9 and 13, the Committee asked about the definition of xenophobia and the extent to which this differs from racism. We have taken a pragmatic approach to this. Neither racism nor xenophobia are defined in the draft framework decision nor in our own domestic criminal law on incitement to racial hatred, and we do not use the word "xenophobic" at all in our law on incitement. Both our domestic law and the draft framework decision define what acts and behaviour are offences, and we believe that this is the right approach. The Public Order Act 1986 makes it unlawful to incite hatred in a threatening, abusive or insulting manner against a group of persons defined by race, colour, national or ethnic origin, or nationality (including citizenship). We believe that the inclusion of national origin, nationality and citizenship means in effect that the concept of xenophobic hatred—hatred of foreigners—is effectively covered in our domestic law. It follows that the example cited by the committee of inciting hatred against the French or the Poles would already be unlawful under the Public Order Act, providing the behaviour meets the criminal threshold of being threatening, abusive or insulting. We cannot therefore see any objection to the use of the term "xenophobia" throughout the framework decision. The key issue is to ensure that the criminal threshold is acceptable to us.

  At Questions 23 and 36, the Committee raised concerns about whether incitement to religious hatred should protect those with no religious belief. Our own laws on "religiously aggravated offences" introduced in the Anti-terrorism, Crime and Security Act also protect those with no religious belief, and our proposals for incitement to religious hatred, which were eventually withdrawn from the Anti-terrorism, Crime and Security Bill, would similarly have prohibited incitement to religious hatred directed against people with no religious belief. The current draft framework decision does not explicitly include incitement to hatred against people with no religious belief, but it would not prevent us from legislating in the future along these lines.

  At Question 34, the Committee raised concerns about Article 7 of the draft framework decision. As I explained to the Committee, this article was included at the request of some other member states who needed to protect their constitutional rules in this area, while we will rely on Article 8 to protect freedom of speech. It is important to bear in mind that Article 7 is permissive, rather than prescriptive. It will not require the UK to do anything. It will allow member states to continue applying constitutional rules that they already have, and is not one that we would make use of in this country.

23 May 2003

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