Great concern from various bloggers, not least Devil’s Kitchen (who’s collating reactions) about the new EU proposals on combating racism and xenophobia (pdf).
My initial reaction is that people are certainly right in being extremely concerned about this but they’re getting concerned for the wrong reasons.
I’m open to persuasion that I’ve misunderstood this, but I can’t — at least at first glance — see how the proposals, with one exception, materially alter the status quo, at least in the UK. As DK says, the provision that
Each Member State shall take the measures necessary to ensure that the following intentional conduct is punishable: (a) publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin;
is already the case here. Pace DK, provisions such as
(b) the commission of an act referred to in point a) by public dissemination or distribution of tracts, pictures or other material;
merely rehearse the present position in British law; as the CPS guidelines explain,
This offence is committed when the accused person says or does something which is threatening, abusive or insulting and, by saying or doing whatever it is, the accused intends to stir up racial hatred or, alternatively, whatever is said or done is likely to stir up racial hatred. This can include such things as making a speech, displaying a racist poster, publishing written material, performing a play or broadcasting something in the media.
Cartoons, photoshop montages and the like are already caught by existing law.
As to the point about holocaust denial, which many commentators — including me, at least at this point, though I’m open to persuasion I’m mistaken — think waters down the original proposal, rider is all important:
publicly condoning, denying or grossly trivialising the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group.
Well, that’s the case here anyway. David Irving can, if he wishes, perfectly legally deny that the holocaust ever took place. However, what he can’t do, and what he hasn’t legally been able to do for the last 30 years, is then say that the fact they’ve got everyone to believe that it did happen shows that Jews are wicked, horrible people whom everyone should hate and/or commit acts of violence against. DK expresses a fear that a further idea in the proposals, that
Member States may choose to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting.
could have been used, had it been law, against a blogger who published some material that upset people considerably. Well, quite possibly so, though I read the concessive may as meaning that Member States may, if they wish, comply with this proposal by limiting the offence (holocaust denial) to circumstances where public order is threatened, which is pretty well covered by our existing provisions on incitement to racial hatred. But, in any event, it’s only a suggestion — member states may do this, rather than must — and I’ll not hold my breath waiting for a new law criminalising holocaust denial (or anything else) in circumstances where the threat to public order is caused by the reaction against the denier, rather on the lines of conduct likely to cause a breach of the peace.
No, I can’t see that this set of proposals necessitates any changes to UK law, with the exception that it envisages (Article 4)
For offences other than those referred to in Articles 1 and 2, Member States shall take the necessary measures to ensure that racist and xenophobic motivation is considered an aggravating factor, or, alternatively that such motivation may be taken into consideration by the courts in the determination of the penalties.
This, potentially at least, extends the range of ‘racially aggravated offences‘ to all offences (so, for example, we might see ‘racially aggravated burglary’, though it might be a bit difficult to prove).
I don’t particularly have a problem with racist or xenophobic motivation as an aggravating factor when it comes to sentencing; one of the main purposes of the law, as I see it, is to enable people peacefully to go about their business without fear of crime. It’s bad enough, it seems to me, that I should be impeded in so doing because I’m put in fear since so-and-so bears a grudge against me personally (I owe him money, perhaps, or I’ve had an affair with his wife) but it’s considerably worse people are going around attacking people just because they’re Brits or because they’re white (or because they’re Catholics, come to that) or whatever, and it’s quite reasonable to reflect this in sentencing; the offence tends to put whole groups of people at risk and in fear. I can’t understand why it needs to be a separate offence — we don’t, after all, have separate offences of burgling domestic properties during the hours of darkness or when the householder is present, though those are certainly aggravating factors — but that’s a separate issue.
No, the reason this set of proposals is profoundly objectionable, it seems to me, is that it extends EU competence into something that’s clearly a matter of domestic criminal law. Obviously we need laws against theft and assault, but it’s no business of the EU to tell us that we should have them or how they should be defined and what the minimum penalties should be, and I can see no difference in principle between that than letting the EU tell us we must have laws against incitement to racial hatred, desirable though such laws may well be.