Examination of Witnesses (Questions 20-39)|
WEDNESDAY 30 APRIL 2003
CBE, MR RICHARD
20. Lord Filkin, can we be confident that the
Government will use the power under Article 8(1)(b)?
(Lord Filkin) You can be confident, that is our policy
and our position.
21. Is it the Government policy to do that in
relation to Articles 8(1)(a), (b), (c) and (d)?
(Lord Filkin) Yes, indeed so. That is correct.
Chairman: That is it then. There was a short
bunch of questions I was going to ask about that. Thank you. Lord
Lord Lester of Herne Hill: Could I just ask
about religion, my Lord Chairman?
Lord Lester of Herne Hill
22. In the earlier draft, Lord Filkin, I think
I am right in saying that there was reference to religion or belief,
and what has happened is that the present draft focuses on religion
alone and this troubles me, unless it is clarified. The first
thing that troubles me is the definition of religion in the Preamble
to paragraph 5(b) which tells us that "religion" broadly
refers to persons defined by reference to their religious convictions
or beliefs. Is that intended to include people like me who have
no religious beliefs but are humanists or atheists or agnostics,
or is the notion that the criminal law is only going to protect
against incitement to hatred against those with religious beliefs?
If I can explain why I am worried. I am worried by the fact that
in the Preamble it refers in recital 15 to the Human Rights Convention,
Article 10 (ie free speech) Article 11 (ie freedom of association)
but it does not refer to Article 9 (ie freedom of religion and
belief). What I am worried about, as a non-religious person, is
if there was to be discrimination built into the European Criminal
Code and its national equivalent between those who profess religious
beliefs and those who do not, with fundamentalist religious extremists
being able to attack people like me as liberal secular humanists
or something in a way that I could not attack them. This is, of
course, quite different from English law at present and it would
violate the European Convention as being discriminatory as well
as in violation of Article 9. I have said a lot in that turgid
way of putting my question, but I hope that my concern is expressed.
(Lord Filkin) It is very clearly expressed
and I do not think I know the answer offhand. Do you, Richard?
(Mr Bradley) I will try to comment on that. I know
that in the negotiation there was much discussion about the term
"religion" and whether to include "belief"
as well. The majority judgment was not to extend it to "belief"
because we did not talk about "atheism" so much as about
other kinds of belief, political belief, a whole variety of beliefs
that people might hold which had nothing to do with religion.
The majority view was that it was not a good idea to turn this
instrument into a broad charter against discrimination on any
grounds whatsoever, but to deal with what were seen as the most
salient and dangerous issues which were racial discrimination,
but also, in the view of a majority of Member States, discrimination
on grounds of religion. Now, of course, it is quite possible that
in future there might be discrimination against people on the
grounds of their being atheists, but that has not so far appeared
to be a serious problem in the European Union and, therefore,
I think the majority view was to prefer to focus on the issue
of discrimination based on religion. Of course, in UK law at present
there are no specific laws on incitement to religious hatred,
as you know, but where incitement to religious hatred was as it
were, a cloak for incitement to racial hatred, then that could
be penalised through our law.
23. I wonder whether, with my Lord Chairman's
consent, I could unpick that a bit because I would be really grateful
if further thought could be given to this issue. First of all,
under the EU equality on religion is going to include belief as
well as religion. In other words, discrimination against atheists
will be forbidden under the EC Equality Directiveplease
take my word for thatas it is for religious people. So
the Equality Directive, under Article 13 of the Treaty of the
European Union, is not going to commit this sin. The sin which
I have focused on, is this. Once you move beyond race and ethnicitythings
that people cannot help but are born withto religion, you
are dealing with ideas and beliefs that people choose to have.
The thing I would be very grateful for further thought about is,
is it not blatantly discriminative to protect people who have
a one belief system but not another and to use the criminal law
to do so? Would that not be a conflict with Article 14 of the
European Convention, which forbids discrimination in the enjoyment
of Article 9 rights? It seems to me quite clear that in its present
form it would have that effect, and if further thought could be
given to that I would be very grateful.
(Lord Filkin) Yes. I think we would welcome the chance
to look at all that you advance there, reflect on it and give
a considered view, not least, of course, before if it goes live
as a negotiation process.
Lord Lester of Herne Hill: If I used the word
"sin" improperly, I withdraw that word and say vice
24. Lord Filkin, I wonder if I could ask you
just one other question about discrimination and that is to do
with competence. The Commission contends that there is First Pillar
competence for the Communitynot the Union, the Communityto
adopt criminal sanctions in the field of combating discrimination.
We know that there is a competence to adopt civil sanctions, but
the Framework Decision is aimed at criminal sanctions. Does the
Government accept that there is competence for the Community to
adopt criminal sanctions in the discrimination field as opposed
to civil rights?
(Lord Filkin) In a word, no. The Government
is of the view that matters relating to criminal law including
the imposition of criminal sanctions fall under Third Pillar and
are not a competence of the European Community. We would not support
First Pillar measures to adopt criminal sanctions to tackle discrimination.
25. I am grateful. Thank you. Article 5(2) of
the proposed Framework Decision requires Member States to take
measures to ensure that legal persons, companies and so forth,
can be held liable for racism and xenophobic conduct where a person
who controls the company has made possible the commission of the
conduct. The Explanatory Memorandum says that the Government officials
are exploring options for legislation to give effect to Article
5(2). What are the problems about this and what are the options
that are being considered?
(Lord Filkin) The problem, as I suspect you well know,
is that the type of provision is contained in a number of Framework
Decisions, but is unfamiliar to our own domestic law. The Government's
view is that such provisions are compatible with UK law in circumstances
where the offending corresponds to conduct attracting offences
of strict liability under UK law, or where the company knowingly
and directly profits from the offence. A further option would
be to rely on civil action by someone who has suffered loss or
damage as a result of the offence. Officials, as you indicate,
are part way through a comprehensive review of all Framework Decisions
and other international agreements which contain this type of
provision, and are assessing whether our domestic law is fully
compliant with this provision. We have not yet reached any firm
conclusion as yet. The process has not been completed nor have
we reached any firm conclusions on it. Therefore, I am not able
at this stage to give you a definitive response, firstly, as to
whether we think there is currently any problem of compliance
or, secondly, howwere this to be put into legislationwe
would need to change our own domestic legislation. What I will
do though is keep the Committee informed of our considerations
on this when we come to a conclusion on it.
26. I am grateful. Thank you. Article 7 of the
proposal says: ". . . This Framework Decision shall not have
the effect of requiring Member States to take measures in contradiction
to their constitutional rules and fundamental principles relating
of freedom of association, freedom of the press and the freedom
of expression . . .". That has to be read in the context
of paragraph 16bis of the recitals, which says: ". . . The
considerations relating to freedom of association . . ."
and so on may have left a special rule for international law which
had the result that people constantly are criminally responsible
for offences committed through freedom of the press and so forth.
In the Government's view, what are the implications of these provisions
with regard to press freedom and the safeguards that may be necessary
to ensure press freedom?
(Lord Filkin) Article 7 was originally included at
the request of some Member States in order to protect their constitutional
rules and their fundamental principles of law in relation to the
freedom of the press and other media. It enables those Member
States to limit the liability for the racist conduct defined in
Article 1. Negotiations on Article 7 have not been concluded andas
I think you impliedas drafted there would appear to be
some contradiction between this Article, which suggests that the
press would be exempt from criminal liability for these offences
and recital 16bis of the Preamble, which states that this Article
will not result in the exemption of the press from criminal liability.
Most of the Member States who need Article 7 are satisfied that
it does adequately protect the freedom of the press in their countries.
The UK, however, relies on Article 8(1) rather than Article 7
to protect the right of the press and the individual to free speech
because it allows Member States to limit their race hate offences
to conduct which is threatening, abusive or insulting and is likely
to lead to violence or hatred. This is exactly consistent with
our domestic law and, therefore, in this respect as long as 8(1)
is there we are satisfied with the provisions.
27. You are referring to 8(1)(c) in particular,
I take it, which caters for Article 1(c) and 1(d)?
(Lord Filkin) It is not just (c).
(Mr Bradley) If I may, there are several of these
paragraphs in Article 8(1) which limit the criminal threshold
and which might be relevant to press freedoms. One of them is
8(1)(c) which specifically refers to offences of Holocaust denial
or condoning war crimes, but also 8(1)(a) would be relevant because
that refers to the issue of religion and makes sure that such
expressions are limited to where they are concerned with directing
acts against persons defined by reference to race and so on. If
in the press there were a critical comment made about a religious
group then the test which is found in 8(1)(a) would then apply
to that. I am sorry I am spelling it out at greater length than
I am sure you require.
28. I am grateful. Article 7 refers to constitutional
rules governing the rights and responsibilities of, and procedural
guarantees for, the press. Just leave aside procedural guarantees
for the moment. The rules in question would include Article 10
of the European Convention. Are there any other rules that would
be applicable in this country that the Government has in mind?
(Mr Bradley) As we have tried to explain, we are not
proposing to rely upon Article 7 or on the reference in the preamble
to the preservation of press freedom, so we have not looked up
our books of reference on the principles of press freedom. We
are relying instead on Article 8.
29. What does Article 7 mean when it speaks
of "procedural guarantees"?
(Lord Filkin) I think it is as yet unclear on that.
The negotiation has not been done. It is ambiguous. It needs further
Lord Lester of Herne Hill
30. I am being slow, my Lord Chairman. Is the
position, then, that the Government will rely upon Article 8(1)(a)
in a Satanic Verses kind of situation? In other words,
if one takes a case where a novel is written that expresses very
strong criticism of a religion, causing outrage to some of its
adherents who wish the author or publisher to be guilty of criminal
misconduct, and relies upon this Framework Decision, the position
taken by the Government will be, "We do not need Article
7, freedom of speech, because we will not legislate under this
Decision at all for attacks on religion unless they are pretexts
for racial attacks"?
(Lord Filkin) Or are likely to incite
violence or hatred.
31. In other words, this Framework Decision
is not going to affect the substance of our criminal law except
in that narrower context where it is already covered by our law?
(Lord Filkin) Just so.
32. Following on from that, the ability of Member
States to use the opt-outs in 8(1) will be reviewed in two years'
time, 8(2) so states. It says: ". . . the Council shall review
this Article with a view to considering whether paragraph 1(a),
(b) and (c) should be retained", so 1(d) is going to be retained
anyway, apparently. But as to 1(a), (b) and (c), we know from
looking at the proposed draft constitutional suggestions emanating
from Giscard d'Estaing's Convention that it has been proposed
that the Council should operate by qualified majority voting pretty
well across the board. Will the UK Government insist on retaining
unanimity for the purposes of the Article 8(2) review?
(Lord Filkin) I think the answer is yes.
Article 17 of Part 2 of the draft Constitution as proposed by
the Convention's Praesidium 14 March addresses the issue of substantive
criminal law. The draft Article envisaged framework laws for minimum
rules concerning the definition of incriminations and sanctions.
This is restricted to two categories of offences. The first is
the restriction to a specific list of crimes which are considered
to be particularly serious with cross-border dimensions and racism
and xenophobia is not on the list. Most of the other crimes have
been or are being approximated at EU level and new crimes can
be added to the list only on the basis of unanimity. Secondly,
the draft Article enables approximation of substantive criminal
law where this is essential to ensure effective implementation
of a Union policy. Racism and xenophobia falls into the second
category. An approximation would be based on the current non-discrimination
Article, Article 13. The Government believes that the voting regime
should be based on the relevant Union policy area which, in the
case of racism and xenophobia, is governed by unanimity. This
was also the conclusion of the JHA Working Group in the Convention.
However, as currently drafted, Article 17 does not yet achieve
this, and therefore we proposed an amendment to the Convention
to ensure that the voting rules for approximation of substantive
criminal law in areas of Union policy should follow the voting
rules for that specific area of policy. We are optimistic that
the revised Articles of Part 2, which will be published later
in May, will take on board our concerns on this issue. I am sorry
to have gone on at length on that but it has been an issue that
ministers have been highly focused on and highly vexed about.
33. I am grateful. The short answer is that
the Government will insist on unanimity remaining?
(Lord Filkin) You are absolutely right: that is the
short answer. I could have saved you a lot of trouble.
Lord Neill of Bladen: Lord Filkin, I have got
a question on Article 7, the thrust of which seems to be dealing
with freedom of press and freedom of expression in other media.
I have left out in saying that word "freedom of association".
Forget that for the moment. The whole thrust is about the media
and it is saying in simplistic terms that this Framework Decision
shall not have the effect of requiring Member States to take measures
in contradiction of fundamental rights relating to those freedoms.
What about the ordinary person? It does not talk about the ordinary
freedom of expression that John Smith or the man in the street
has. Why is that? This seems to be specifically designed to stress
the viability of the press and the media or to protect them. I
would have thought it would be more general.
Lord Lester of Herne Hill: Especially, if I
may say so, because recital 15 refers to Article 10 of the Convention
on Human Rights, which is not confined to the media but includes
everyone's free speech.
Lord Neill of Bladen
34. We must not argue between lawyers. The negative
implication of Article 7 is that it will be perfectly all right
if it does have the effect, this Decision, of limiting the fundamental
rights of the ordinary citizen.
(Lord Filkin) I will reflect on it. I
do not think that will be our interpretation. I think where we
will direct that question is at those Member States who have asked
for Article 7 and why they have not sought to have it wider to
cover just the point that you address. Our position, which I will
reflect on and make sure is sound, is that we do not rely on that
to guarantee our freedom of expression. That is there already
and is only limited, in so far as we have previously discussed,
in terms of conduct likely to incite racism.
35. Yes, but, as you appreciate, whatever our
internal law may be, these Framework Decisions that are going
to be like Directives, are used as instruments to construe the
validity of the English provisions.
(Lord Filkin) Indeed, which is why I have undertaken
that we will raise that issue back with other Member States and,
secondly, try to ensure that even if we did not persuade them
to change their position we are not in any way at risk ourselves
because we would very much wish to protect that.
Lord Lester of Herne Hill
36. Still on Article 7 and Article 8, and in
relation to incitement to religious hatred, I see that the declaration
by the United Kingdom in Annex II mentions a number of things
in this connection. One is that the UK Government supports in
principle "a proposal to make incitement to religious hatred
an offence", which is currently being examined by a Select
Committee of this House. What the declaration does not make clear,
and I think it needs to be clarified, is that this covers people
without a religious conviction, as I said before. That needs to
be made clear because of the ambiguity in the Framework Decision.
If that point could be considered I would be grateful.
(Lord Filkin) Can we consider that point
as an addition to the previous point you made on a similar thrust
and we will do so?
37. Yes. The other point is that I take it as
read that we would regard Article 10 of the European Human Rights
Convention and the other relevant Convention rights as having
to be treated as paramount in interpreting the Framework Decision
and UK domestic legislation.
(Lord Filkin) They are paramount.
38. Lord Filkin, can I ask you now about Article
8(3) which I have been puzzling about a little? I think I have
the understanding of it right. It seems to me to be saying, and
for "Member State" I will substitute "United Kingdom",
that where the United Kingdom in relation to criminal matters
can refuse to provide mutual assistance on the basis of the principle
of double criminality, "it may, regarding conduct it has
excluded from criminal liability pursuant to paragraph 1,"and
that is going to apply to us because that is what we are going
to do"only use that possibility where the offences
concerned" are committed, at least to a significant extent,
in the United Kingdom, or if the offence is committed outside
the territory of the requesting state, Ruritania, and the law
of the United Kingdom does not allow prosecution for that offence
where committed outside the United Kingdom. Do I have it right
that this will only apply in relation to offences where the principle
of double criminality still pertains? I am considering this in
the context of extradition, you appreciate, which is a form, perhaps
the most important form, of mutual legal assistance that would
be in question under 8(3). Suppose one gets a publication on the
internet which is at the same time available to be downloaded
in this country or in other Member States, and let us suppose
that it contains material falling within a racist and xenophobic
category which would not be criminal in this country but would
be criminal in the other Member States. How will this apply to
an extradition request from the other Member State?
(Lord Filkin) To use an example to illustrate,
because it may help, taking Holocaust denial as the topic that
we often look at in this context, which is clearly not an offence
in the United Kingdom but is an offence in Germany, if a British
citizen posted something on a website in the UK, for whatever
reason, denying the Holocaust, and that was accessed by a German
citizen and the German state wished to act on that and asked for
extradition under the Extradition Bill to the United Kingdom,
we would not do so because it is not an offence in Britain to
deny the Holocaust and therefore we would not extradite in those
39. And you would not consider that the offence
had been committed in part in Germany?
(Lord Filkin) There has been some discussion on this
in the Commons' consideration of the Extradition Bill. Whilst
our position is that we think that the Bill as currently drafted
is sound, we intend to put the matter beyond doubt by introducing
an amendment into the Lords at committee stage on the Extradition
Bill, making it absolutely explicitly clear that if an act is
in part committed in the United Kingdom we will still not extradite
it in those circumstances.