The Wardman Wire

In my post on this yesterday I forgot another reason why the decision to exclude Geert Wilders from the UK breaches EU law. It’s arbitrary – in this sense of treating Wilders differently from UK nationals.

One of the important European Court cases on free movement is Adoui and Cornuaille in which two French women complained about Belgium’s attempts to get rid of them on the grounds that

their conduct was considered to be contrary to public policy by virtue of the fact that they were waitresses in a bar which was suspect from the point of view of morals.

The question before the court was whether Belgium, which did not outlaw prostitution, could lawfully

expel from its territory a national of another member state or deny him access to that territory by reason of activities which , when attributable to the former state’s own nationals, do not give rise to repressive measures

It’s important to note that the court was considering the same rules on explusion on grounds of public policy, and the same test – whether the individual’s conduct poses a sufficiently serious threat affecting the fundamental interests of society – as are now laid down in Directive 2004/38, under which the UK is excluding Geert Wilders. And the answer?

conduct may not be considered as being of a sufficiently serious nature to justify restrictions on the admission to or residence within the territory of a member state of a national of another member state in a case where the former member state does not adopt, with respect to the same conduct on the part of its own nationals repressive measures or other genuine and effective measures intended to combat such conduct.

So the question must be, what law would Geert Wilders have broken in the UK?

I don’t think he’d have broken any because, thankfully, the government’s mad plan to bring in a religious hatred offence was watered down. I don’t think he would have committed any offence under sections 29B(1) or 29E(1) of the Public Order Act 1986 (as inserted by the Racial and Religious Hatred Act 2006) because he’s not to my knowledge used threatening words and his film, Fitna, isn’t threatening either. Some people might find his views and the film offensive, but that’s something else. It’s not clear that his intention is to stir up hatred – it doesn’t seem to me to be – and even if it is, it’s not clear it would be religious hatred within section 29A because he does not lambast all Muslims – he has made clear he believes some or most Muslims are peaceful and law-abiding. So he’s not having a go at them as a group because of their belief.

If his conduct wouldn’t be penalised if done by British citizens here – for example, if members of the House of Lords who show his film tomorrow are not arrested under section 29E – then Wilders’s exclusion must be unlawful under the principle in Adoui and Cornuaille.

Wilders’s case gets stronger and stronger.