Xenophobia comes to town

Our regular readers will know that we do not have a very high opinion of the British blogosphere. When a small corner of it sounds the alarm over a particular EU measure, therefore, we are inclined to ignore it.

However, the issue is the Council Framework Decision on Combating Racism and Xenophobia, which the Justice and Home Affairs Council agreed yesterday. This is something we would have reported anyway.

That the groupescules are getting excited about it now, therefore, is of little importance – although we could ask where they were in 2004 when we warned of the Hague Programme and the coming of this and other EU initiatives, or even in January when we were warning of its impending arrival.

Anyhow, according to the Council communiqué (link above) the text now agreed (subject to the lifting of some EU parliament reservations) establishes that certain intentional conduct will be punishable in all EU member states.

This includes publicly inciting to violence or hatred, even by dissemination or distribution of tracts, pictures or other material, 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.

It also makes an offence publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes "as defined in the Statute of the International Criminal Court (Articles 6, 7 and 8)" 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, and – crimes defined by the Tribunal of Nuremberg (Article 6 of the Charter of the International Military Tribunal, London Agreement of 1945).

Effectively, this will make Holocaust denial a criminal offence throughout the 27 EU member states, but it will also include denial of atrocities like the Rwanda massacre. Demands from Baltic nations that major Stalinist atrocities be included were rejected.

The communiqué goes on to say 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. Crucially, it also states that the reference to religion is intended to cover, "at least", conduct which is a pretext for racism.

The conduct defined has to be punishable by criminal penalties of a maximum of at least between 1 and 3 years of imprisonment.

However, we are also told that the Decision will not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, including freedom of expression and association, as enshrined in Article 6 of the Treaty of the EU. Furthermore, member states will not have to modify their constitutional rules and fundamental principles relating to freedom of association, freedom of the press and the freedom of expression.

We have made our views well known on this blog, and have no hesitation in condemning the utter fatuity of this new attempt to make Holocaust denial a crime throughout the EU. But, acknowledged by the limited media reporting, the current draft is considerably watered down from the original proposal in 2001.

We had been concerned that the reference to religion would outlaw such activities as publishing the Danish cartoons. But the offence kicks in only when religion is used as a pretext for racism, so there seems to be no problem here. By no measure can an attack specifically on Islam be considered racism.

What really offends us though is the very fact that the EU is legislating in this sphere (Not that we are "unoffended" by other legislation, although laws on the sizes of rear-view mirrors are in a somewhat different league). We are totally opposed in principle to the idea that the EU should have any power in this area. However, since it is a Framework Decision, it had to be agreed unanimously. Once again, therefore, this is not so much an imposition by the EU as something imposed by our own government. It could have blocked the measure if it had so wished.

That said, 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.

Concern has been expressed that this will badly affect the freedom and rights of bloggers to express themselves but, since no right-minded person would seek to indulge in denying Mr Hitler's schemes (or anything similar), the limitations are fairly academic.

In fact, the overall applications of the Decision are so heavily circumscribed that it is difficult to see how they will have much impact at all. Once the lawyers have finished with it, and it has been taken apart by civil liberties groups, and indeed national parliaments – making a mockery of the good intentions - it may well turn out that the EU has shot itself heavily in the foot.

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