Not Saussure

April 19, 2007

EU proposals on racism and xenophobia: worrying but not for the obvious reasons

Filed under: civil liberties, Law — notsaussure @ 8:09 pm

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.

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17 Comments »

  1. Interesting and well balanced stuff, compared to most of the stuff spouted on this question today and yesterday. As you rightly point out, substantial parts of the material will be based on permissive rules for Member States, not dispositive ones, and anyway, there is no sanction for a Member State which chooses completely to ignore Framework Decisions, as the Framework Decision on the European Arrest Warrant shows. Almost all of the Member States, including the UK, have national implementing laws which are not in conformity which the Framework Decision. And the Commission can do? Diddly squat. Combine with that the fact that there are no references from UK courts on third pillar measures, basically you can practically forget about legal effects of this measure. So it is all a storm in a [UKIP?] teacup, basically. But where I part company with you is in relation to the proposition that this ‘extends’ EU competence. The only things that extend EU competence are treaties, agreed by Member States. In 1997, the early months Blair government signed the Amsterdam Treaty, containing: “Article 29 EU: Without prejudice to the powers of the European Community, the Union’s objective shall be to
    provide citizens with a high level of safety within an area of freedom, security and justice by
    developing common action among the Member States in the fields of police and judicial
    cooperation in criminal matters and by preventing and combating racism and xenophobia.” That’s the competence basis. Arguably, the Framework Decision under discussion is quite an extensive interpretation of how those competences should be used, but again – I would say – any Member State that is not happy can refuse to vote for the proposal. So the UK can easily say no. So my profound objection is to those who characterise this as some sort of perversion of existing EU competences (which clearly already exist) and those who characterise this as somehting the EU is “doing to us”. This is an area of intergovernmental action where the UK government is free to say no.

    Comment by Bondwoman — April 19, 2007 @ 9:31 pm

  2. The problem with the anti EU posse is that as soon as EU is mentioned, whatever it is, they get on their high horses and start foaming at the mouth.

    This proposal has been watered down so that the countries who did not agree with it originally, can do what they like.

    What I object to personally is that it reinforces the impression that the EU spends a lot of time and (our) money needlessly, and it just ends up reinforcing the anti feelings.

    Comment by Pascal — April 20, 2007 @ 11:34 am

  3. Thanks for the clarification and for correcting me, Bondwoman. Obviously, I don’t know a great deal about EU law, but I’d been under the impression that the provisions about criminal law in the Amsterdam Treaty were primarily about dealing with cross-border crime and inchoate offences involving several jurisdictions — that’s the way it was presented, as I recall. But clearly not.

    I’m still very unhappy at the idea of what seems to me interference in domestic matters; it’s no business of the UK, to my mind, how the Germans deal with neo-Nazis in Germany, and it’s no business of theirs how we deal with such people over here, except when we find ourselves dealing with extremist groups who’re operating internationally.

    But, from what you say, this is all a bit of a dead letter anyway, since any government may simply ignore all these resolutions — which rather raises the question of what point there is in passing them in the first place. Is it — as I rather suspect — a way for the Germans to claim they’ve achieved something with their EU Presidency, or is it a way, as some have suggested, of embarrassing the Turks, or what?

    Comment by notsaussure — April 20, 2007 @ 3:58 pm

  4. Bondwoman

    If I understand you correctly you are saying we have to have such a law, but are free to ignore it. I’m not sure I like the principle of introducing laws that are not going to be enforced. You know, rule of law and all that.

    Presumably though, since the EU’s competence was not extended, we are free to repeal this?

    Can the EU change its mind about whether to impose sanctions on countries which are not in conformity with Framework decisions?

    Comment by Bishop Hill — April 20, 2007 @ 6:12 pm

  5. …going around attacking people just because they’re Brits or because they’re white…

    Depends, doesn’t it, on the virulence of the attacks? I’ve been called some choice things recently but wouldn’t get upset by these. Methinks there’s too much thin-skinnedness about.

    Comment by jameshigham — April 20, 2007 @ 6:28 pm

  6. I meant physical assault, James; the allusion was to racially aggravated crimes, a category of offence created by Part 2 of The Crime and Disorder Act 1998. Before something can be racially aggravated, it’s got to be a criminal offence anyway (e.g. assault or harassment).

    Comment by notsaussure — April 20, 2007 @ 6:40 pm

  7. On a similar note, have you seen this?

    http://news.independent.co.uk/world/fisk/article2469270.ece

    Comment by jailhouselawyer — April 21, 2007 @ 10:44 am

  8. I did see it, JHL, but thanks for pointing it out. For those who haven’t read Fisk’s article in the Indy, it’s a worrying tale of how a Turkish Armenian who’s had the temerity to write about the massacres — and who eventually obtained political asylum in Germany because of the persecution his writings brought on him back home — has found himself the victim of wholesale vilification and harassment by Turkish nationalists, using the anonymity of the internet to attack him via websites, blogs, Amazon reviews and Wikipedia.

    The whole story raises some interesting questions about freedom of speech on the internet. Personally, I don’t have a problem with the idea that bloggers are as subject to the laws of their own country when it comes to libel, harassment and contempt of court as is anyone else, though some people seem to think otherwise, but you’ve then got the problem of what happens when someone does something in one jurisdiction that affects people somewhere else.

    It also, as Fisk points out, raises some rather worrying questions about the extent to which American and Canadian Immigration officials rely on anonymous allegations about people in Wikipedia articles when making decisions about visa applications.

    Comment by notsaussure — April 21, 2007 @ 12:53 pm

  9. As a general proposition there are difficulties with the enforceability of framework decisions. They are binding on the Member States, but they have to be implemented by national law. Unlike EU directives, there are no effective mechanisms for the Commission to ensure that Member States have actually complied. So if you look at the case of the European Arrest Warrant Framework Decision you see that almost all of the national laws impementing the surrender provisions include the possibility for national courts to consider factors when deciding whether to allow surrender which are not permitted under the EAW Framework Decision, and all the Commission can do is issue impotent reports on the matter. So if you want to interpret this as meaning that the Member States can just ignore the Framework Decision, then that’s more or less a legitimate interpretation, even though the Framework Decision remains strictly speaking binding. The original justification for extending EU competence under the third pillar to cover racism and xenophobia was a good one, ensuring that there is effective protection right across the EU, in all Member States. The inclusion of what for shorthand we can call holocaust denial is obviously more problematic, from the perspective of freedom of speech, and also because there is no clear evidence that the lack of provisions on this across all the EU Member States over the years has been a problem (whereas there is deepseated unease about the fact that some Member States lack effective criminal law protection in respect of racist and xenophobic crime, or racially aggravated crime). I think the argument that this is a step too far, and is effectively being imposed by some Member States on the others, is quite a strong one. However, as I have yet to see the final version of the framework decision, I am not at all clear that this measure will in fact require any changes to UK law, assuming that the UK government decides that it wants to ensure that UK law is in compliance. There are a lot of provisions allowing Member States flexibility, and I think we should reserve judgment until we see the final version [of course, the fact that we cannot see it now raises profoundly troubling questions about this whole method of legislating in secret, but that’s another matter…]. The report on the German Presidency website is quite interesting, and also refers – at the bottom – to the fact that European Parliament is going to be re-consulted. See http://www.eu2007.de/en/News/Press_Releases/April/0420BMJRassismus.html

    Comment by Bondwoman — April 21, 2007 @ 4:28 pm

  10. OK, so this is wrong in the specific case (it’s an attack on free speech, and there’s no evidence that it’s required anyway), and it’s also wrong in principle (it’s a law that we are not going to have to enforce). We can’t observe the process by which decisions are reached either.

    I’m glad you conclude that the arguments against are strong ones!

    Are there any arguments in favour of either this specific decision or the general process?

    And, as I asked previously, can we repeal these laws?

    Comment by Bishop Hill — April 21, 2007 @ 6:30 pm

  11. The EU can, and sometimes does, repeal laws. The UK cannot do it unilaterally. But as this measure requires unanimity for its adoption, then the UK, and any other Member State, could veto its adoption.

    Comment by Bondwoman — April 21, 2007 @ 6:35 pm

  12. OK, so a bad government agrees to adopt a bad piece of EU legislation. We are then stuck with it permenantly, with every country having a veto on the repeal.

    It’s supposed to be a fundamental of the British Constitution that no government can bind its successors. But this appears to be what is achieved by our membership of the EU.

    A good reason for leaving, I would have said.

    Comment by Bishop Hill — April 22, 2007 @ 7:54 am

  13. I think that rather overstates the case, Bishop Hill. In the immediate matter, there’s nothing I can see in the proposals that necessitates our changing British law in any material respect and, if Bondwoman is correct (and I’ve no reason to suspect otherwise) then there’s no practical anyone can take against any country whose government decides, in the future, to repeal any domestic legislation associated with this measure. If the Austrians, in 5 years time, decided to decriminalise holocaust denial, then it appears the EU couldn’t do much about it.

    The point about no government being able to bind its successors is, I fear, a complete red herring since, as you suggest, it’s always open to any future British government to leave the EU, NATO or any other organisation a previous government has joined up to by treaty. Leave the organisation and you cease to be bound by its rules. That doesn’t look to me so much like an argument for leaving the EU (good idea though this may be) as for staying in and lobbying to make it easier for member governments to resile from agreements their predecessors made.

    Comment by notsaussure — April 22, 2007 @ 10:16 am

  14. Are you comfortable with the situation where an agreement that is binding on member states (but is not currently enforceable) places restrictions on freedom of speech in the UK? Just because there are no enforcement measures now, that is no reason why there shouldn’t be enforcement measures in the future. I can’t see that any government can argue against their introduction because it is already agreed that framework agreements are binding.

    You are surely not going to argue that it is acceptable that our only protection against the imposition of this law on a semi-permanent basis is the continued willingness of the EU not to enforce it?

    I understand what you are saying about leaving the EU, but I hope you recognise that what is happening is that we are building up a corpus of law that is extremely hard to change – probably harder than changing most written constitutions. Yes, there is a nuclear option of leaving the EU, but it is hard to do this over any single issue. We just go on drip feeding sovereignty and now liberties to the EU.

    What do you think would we would have to hand over to make you say “No more”? When would you decide that persuasion wasn’t working? For me, freedom of speech seems like a good place to stop.

    Comment by Bishop Hill — April 22, 2007 @ 12:32 pm

  15. But, Bishop Hill, I don’t see what’s such a problem in the instant case since, as far as I can make out, existing British law already complies with all the provisions in this set of proposals. As Richard North says in EU Referendum, ‘there are so many caveats on the application of what will have to be transposed into UK law that it is very difficult to see what it adds to the existing code, other than making an offence egregious examples of Holocaust (and like) denial,’ and I think he’s got it wrong about Holocaust denial; as far as I can make out, our status quo for the last 30 years — Holocaust denial is legal but using it as a pretext to incite racial hatred isn’t — complies perfectly well with the proposals.

    In what way do you say these proposals require existing British law to be altered in order to comply with them?

    Comment by notsaussure — April 22, 2007 @ 12:59 pm

  16. My gripe is not that this is different to what we have now, but that there is a real possibility we might be stuck with it on a permanent basis.

    Comment by Bishop Hill — April 22, 2007 @ 4:00 pm

  17. […] a read April 23rd, 2007 — ukliberty Not Saussure: EU proposals on racism and xenophobia: worrying but not for the obvious reasons. Posted in […]

    Pingback by UK Liberty worth a read « — April 23, 2007 @ 11:58 am


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