Examination of Witnesses (Questions 1-19)|
WEDNESDAY 30 APRIL 2003
CBE, MR RICHARD
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
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 beenif I choose my words
carefullyperhaps 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
(Lord Filkin) Indeed.
7. That might not be so comfortable for them?
(Lord Filkin) Perhaps.
8. On a previous occasion I asked a witnessI
cannot remember, Lord Filkin, whether I asked the question of
you or whether it was another witnessas 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 recollectyou are absolutely correctthat
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 contrastthe
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 viewas we said last timethat
there is not a distinction and we revive discussions on the document,
I can see no disadvantage in us marking that to our colleague
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 isif I have understood
your questioning correctlynot 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
(Lord Filkin) Just so. Because, in a sense, if it
is racial, our current law covers it; your point is that it does
Lord Lester of Herne Hill: Exactly. I am very
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 supermarketone of the big chainsand 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
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.