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European Standing
Committee B
Wednesday 14 May 2003
[Mr. Nigel Beard in the Chair]
Racism and Xenophobia
[Relevant Document: European Council Document No. 7280/03.]
2 pm
The Chairman: Hon. Members may take off their jackets if they wish.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): Thank you, Mr. Beard. It is good to see you in the Chair. It is the first time that I have served under your chairmanship.
The Committee is debating the draft framework decision on combating racism and xenophobia. The document is still under negotiation in the Council of Ministers, although the proposal will not be considered again until, at the earliest, the Italian presidency, which commences in the second half of this year. A number of member states, including the United Kingdom, have certain parliamentary reservations. The European Parliament has been consulted on an earlier version of the text, but will need to be consulted again in view of the extensive revisions that have been made.
Tackling racism and xenophobia is a key objective of the European Union. It is enshrined in article 29 of the treaty on European Union. The Council held at Tampere in 1999 called for measures to be developed against racism and xenophobia, and the joint declaration against racism of April 2002, which was signed by a number of European Union member states including the UK, called for measures to be adopted at European level to tackle racism. That declaration referred specifically to the relevance of this proposal.
This draft proposal establishes minimum standards in criminal law to address racist crime across the EU. It also contains safeguards to protect freedom of speech and the freedom of the press and other media. Member states would be required to punish racist and xenophobic conduct defined in article 1 only when it was carried out in a threatening, abusive and insulting manner and was likely to stir up racial hatred or violence.
I draw the Committee's attention to the key provisions of the draft proposal. The framework decision obliges member states to criminalise incitement to racial hatred or violence, at least when threatening, abusive or insulting, as set out in article 8.1. Article 1 also contains provisions on incitement to religious hatred, incitement to religious or racial discrimination and denying or trivialising the holocaust and other forms of genocide or racially motivated war crimes. However, in order to protect traditions of freedom of speech in some states, article 8.1 gives member states the discretion to criminalise those offences only when they also constitute incitement to racial hatred or violence and are
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carried out in a threatening, abusive or insulting manner.
That discretionary provision is subject to a review clause in article 8.2. That would allow the Council, after two years from the implementation date, to consider whether the discretion of allowing member states to criminalise offences only when they also constitute incitement to racial hatred or violence is still required. However, any changes to those provisions would require a unanimous vote in the Council.
The penalties for the offences are set out in article 3. Member states would be required to impose a maximum of one to three years' imprisonment for the offences in article 1.
The framework decision also provides for the liability of the legal person, such as an incorporated body. Article 5 provides for a legal person to be held liable when they intentionally allow an offence to take place for their benefit. A legal person would also be held liable when a lack of supervision or control has contributed to the committing of an offence for the benefit of the person under their authority.
Article 6 requires member states to establish sanctions, including criminal or non-criminal fines, on legal persons found liable.
Article 7 has been included at the request of some member states to protect their constitutional rules and fundamental principles of law in relation to the freedom of the press and other media. In the same way as the United Kingdom relies on article 8.1 to limit liability for racist conduct in article 1, other member states use article 7.
Article 8.3 would require member states that do not criminalise the offences in article 1 to waive the dual criminality rule when responding to requests for mutual legal assistance from other member states. In practice, that would require us to waive dual criminality when responding to requests for the search of property or the seizure of evidence in relation to racist and xenophobic offences covered by the framework decision. An example of that would be to respond positively to a request from another member state to search a person's property for material denying the holocaust. That is a particular problem to us, and is our main difficulty with the framework decision as it is currently worded.
Article 10 requires member states to establish, as a minimum, jurisdiction for the offences when the conduct has been committed in whole or in part within its territory. Member states may also choose to establish jurisdiction for offences committed by their own nationals or for the benefit of a legal person whose head office is in their territory.
I have tried to summarise the provisions of the instrument. I am sure that the Committee will want to question me, and I shall do my best to respond.
The Chairman: We now have until 3 o'clock for questions to the Minister. I remind hon. Members that questions should be brief and should be asked one at a time. There is likely to be ample opportunity for all hon. Members to ask several questions.
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David Cairns (Greenock and Inverclyde): I apologise to my hon. Friend the Minister if the answer to this question is somewhere in the bundle. What is the time scale for further negotiations? My hon. Friend has outlined his and the Government's serious reservations, which I share. What happens after this? How optimistic is he that in the process to come he will be able to negotiate that reservation out of the current document?
Mr. Ainsworth: I said that the earliest that the document could be approved is under the Italian presidency, because the Greek presidency has said that it cannot see a way of taking this forward. It is not only us who still have problems with the framework document.
Mr. Dominic Grieve (Beaconsfield): Dealing with the Government's reservations, I note that Lord Filkin of the Home Office wrote to the Chairman of the European Scrutiny Committee on 4 December 2002. In that letter, which the Minister kindly provided me with, Lord Filkin says:
''If a person goes abroad and breaks the law of another country and were to be arrested there and then, the person concerned could expect to be put on trial for his crime even if the conduct were not against the law of his home country. There is no reason why such a person should escape justice simply because he has managed to flee across a border before being arrested.''
If that principle were applied, surely we would be completely abdicating responsibility as a Parliament and a Government to form a value judgment on the offence for which we were extraditing someone to a foreign country. Are those really the principles that the Government intend to pursue?
Mr. Ainsworth: The hon. Gentleman is going a little wider than the framework document, but those are the principles that we expect nationals of other countries to apply when they are in our country. We do not expect them to adhere to their law; we expect them to adhere to our law. If they were to escape, we would expect other countries to be prepared to extradite their nationals back to our country. It is not a new principle. The Conservative Government dropped all requirements for prima facie evidence to be shown in most extradition cases.
Dr. Nick Palmer (Broxtowe): Further to the previous question, if someone from Spain were to visit Britain and were to have sexual intercourse with a 12 or 13-year-old, that would be legal in Spain but not in Britain. Would the Minister agree that it would cause outrage in Britain if such a person were to escape prosecution simply by crossing the border back into Spain?
Mr. Ainsworth: I agree with my hon. Friend. As I said, the principle is that, when Spanish nationals visit our country, they should be prepared to abide by our rules and not their own. Ignorance of the law is no excuse for breaking the law, and if they were caught while they were still in our jurisdiction, they would be brought before the courts and punished appropriately. We do not see any huge principle involved in cases of people going to another country and breaking the law. They should not come under different arrangements simply because they managed to cross a border that is readily and easily crossable, and increasingly so.
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Mr. John Wilkinson (Ruislip-Northwood): May I say how happy I am to see you chairing this Committee, Mr. Beard? May I ask the Minister a simple question? How can it be sensible, and not bring law into disrepute, to categorise as illegal a passive state—namely, xenophobia—that is a condition of mind? Is it not crazy by its very nature for law to become intrusive to the extent that we are going to have thought police in this area on a European scale?
Mr. Ainsworth: If we were intending to do that, the hon. Gentleman would have a point, but there are other countries that do. They do it for their own reasons. As the framework document is currently written, with the safeguards contained in article 8, we will be obliged to criminalise such behaviour only when it amounts to incitement in an abusive manner, as I spelt out in my opening address. Safeguards are provided, and it is our analysis that the framework document does not require us to extend our current domestic law.
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