COMMISSION PROPOSAL TO COMBAT DISCRIMINATION
(a)
(20771)
13537/99
COM(99) 567
(b)
(20801)
13540/99
COM(99) 565
(c)
(20816)
13536/99
COM(99) 564
(d)
(20831)
—
COM(99) 566
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Draft Council Decision establishing a Community Action Programme
to combat discrimination (2001-2006).
Draft Directive establishing a general framework for equal treatment
in employment and occupation.
Commission Communication on certain Community measures to
combat discrimination.
Draft Directive implementing the principle of equal treatment between
persons irrespective of racial or ethnic origin.
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| Legal base:
| (a), (b), (d): Article 13 EC; consultation; unanimity
(c) —
|
| |
| Department: |
(a) - (c) Education and Employment
(d) Home Office
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| Basis of consideration:
| Minister's letter of 20 April 2000
|
| Previous Committee Report:
| HC 23-vii (1999-2000), paragraph 4 (2 February 2000)
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| To be discussed in Council:
| (a) - (c): No date set
(d) 6 June 2000
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| Committee's assessment:
| Legally and politically important
|
| Committee's decision:
| (a) Cleared
(b) Not cleared; further information requested
(c) Cleared
(d) Cleared, but Minister to be invited to give oral evidence on the outstanding issues
|
Background
2.1 This is a significant package of measures
which includes two proposals intended to enact for the first time
at Community level legislation which prohibits discrimination
—
(1) on grounds of race
or ethnic origin across a broad spectrum from employment to access
to goods and services (document (d)); and
(2) on grounds of race or ethnic origin, religion
or belief, disability, age or sexual orientation in the fields
of employment and self employment (document (b)).
2.2 Both proposals are based on Article
13, inserted in the EC Treaty by the Treaty of Amsterdam, which
enables the Council to legislate to combat discrimination. As
well as these two legislative proposals, the package includes
an action programme (document (a)) and a communication from the
Commission (document (c)).
2.3 When we first considered this package
on 2 February 2000, we put a number of questions to the Minister
of State at the Home Office (Mrs Barbara Roche) and to the Minister
for Employment, Welfare to Work and Equal Opportunities at the
Department for Education and Employment (The Rt. Hon. Tessa Jowell).
We have now had a joint response in the form of a paper. We are
grateful to both Ministers (and to their officials) for a full
and helpful reply to our questions. We print their paper below
and, in the following section, provide our response.
Our response to the Ministers' paper
Scope of Article 13 EC
2.4 Our first concern was to establish the
scope of the power to act conferred upon the Council by Article
13 EC and the extent to which the documents in the package stayed
within those boundaries. We note and welcome the Ministers' agreement
that the scope of Article 13 is narrower than that of Article
12 EC (discrimination on grounds of nationality) and is limited
to areas where the Community already has competence. We welcome
the Ministers' intention to pursue with the Commission those areas
of the action programme which are ill defined and appear not to
be within the scope of Article 13 EC as we, and the Ministers,
understand it.
2.5 As regards the proposal on racial discrimination
(document d), we are not yet wholly reassured by the Ministers'
argument that because the Community has extensive competence in
relation to goods and services (in order to remove obstacles to
intra Community trade) it has competence to prohibit discrimination
in access to goods and services (in situations wholly internal
to a single Member State). This approach also has the disadvantage
that the EU legislation on race discrimination will go considerably
wider than its legislation on sex discrimination whereas the UK
has always sought to keep these two areas of legislation in step
with each other.
2.6 We also note that, in the Ministers'
view, the proposal on race discrimination as drafted does not
make clear the extent of the limitation of Community competence
in the field of education.
Positive discrimination
2.7 We were concerned that the authorisation
of positive action in the two draft Directives might extend to
permitting quotas, for example, for employment in particular organisations.
We find convincing the Ministers' arguments that the European
Court of Justice ("the ECJ") would adopt broadly the
same approach as it has towards the Equal Treatment Directive
and reject any interpretation which allowed absolute and unconditional
priority for any group.
Hypothetical comparisons
2.8 We accept that the draft Directives,
in enabling a claim to be based on a difference between the treatment
received by the applicant and the treatment that another would
have received, follows the models of the Sex Discrimination Act
1976 and the Race Relations Act 1975 and note the Ministers' assurance
that this has not been found to be a difficulty in practice in
litigation under those Acts. We note that the Ministers expect
the Courts to follow, in the case of the proposed Directives,
a similar approach to that adopted by the Court of Appeal under
the Disability Discrimination Act 1995; in other words to concentrate
on the reason for the unfavourable treatment and to ask whether
another person to whom that reason did not apply would have been
treated in the same way. It is clear in the case to which the
Ministers draw our attention[9]
that the applicant, a cold store employee in a post which required
considerable manual labour who suffered disabling injuries, would
not have been dismissed had he been an able bodied person.
2.9 But we note —
(1) that under the Disability
Discrimination Act, direct discrimination may be justified; and
(2) as the Ministers point out, it will be for
the ECJ, not for the courts of the United Kingdom, to decide on
the appropriate comparison.
2.10 In any event the crucial issue may
be, not whether the treatment is less favourable than that accorded
to another, but the ground of the treatment. To take the example
given in the paper : Muslim employees dismissed for refusing to
work on a Muslim holy day, such as Friday. Is this an example
of direct discrimination: dismissal by reason of being Muslim
(because a non-Muslim would not have been dismissed); or indirect
discrimination: application of an apparently neutral criterion
(a requirement to work on Fridays) which adversely affects Muslims?
This distinction is crucial because under the proposed Directive
on discrimination in employment the former may not be, but the
latter may be, justified.
Relationship between the two draft Directives
2.11 If, as the Ministers explain, practicality
is the reason why the Commission has chosen to propose two draft
Directives in this particular form, one would have expected the
Commission to propose individual Directives, each devoted to one
of the specific grounds of discrimination. It is already evident
that disability on the one hand, and age on the other, require
different approaches and cannot easily be lumped together with
measures prohibiting discrimination on grounds of sexual orientation
or religion and belief. We continue to doubt the appropriateness
of the proposed Directive on discrimination in employment, which
is, as the Ministers say, much more detailed than is generally
the case with framework Directives. While it is interesting to
learn that the Acting Deputy Director General of the Commission's
Employment Directorate considers that the Employment Directive
and the Race Directive should not be seen as a framework directive
and its daughter, the very use of the term "framework directive"
encourages this (apparent) misconception.
2.12 In response to our later question about
whether the proposals have an implicit hierarchy, we welcome the
Ministers' recognition that race is given a particular emphasis
in the package. We also agree that this emphasis is a reflection
of current political priorities and the state of existing legislation.
Definition of indirect discrimination
2.13 We strongly agree with the Ministers
that a single definition of indirect discrimination would encourage
observance of the law and that to have competing definitions as
proposed would bring confusion and complicate the case law of
the ECJ. We also accept the Ministers' view that the definition
in the burden of proof Directive offers the best approach.
Consequences for the Disability Discrimination
Act
2.14 One consequence of the Commission's
approach is that indirect discrimination on grounds of disability
is prohibited, as is indirect discrimination on the other grounds
set out in the proposed Directive on discrimination in employment.
The Ministers' analysis demonstrates that the concept of indirect
discrimination has no place in relation to disability. The reason
for a different approach is that whereas unfavourable treatment
of a person on grounds of sex or race (including the application
of an apparently neutral criterion, which that person can satisfy
less easily than another person of a different sex or race) is
unjustifiable, unfavourable treatment of a person on grounds of
disability may well be justified — it is reasonable to expect
a steeplejack to have the full use of all four limbs. Hence the
crucial question is — has the employer done whatever can
reasonably be done to accommodate a person's disability? The substantial
amendments to the Disability Discrimination Act 1975 that would
be needed if this Directive were adopted in its present form would
clearly be unwelcome.
Direct effect and the meaning of key terms
2.15 Given the Ministers' expectation that
these Directives would have direct effect, it becomes particularly
important to know how the ECJ will interpret key terms such as
"religion or belief" and "ethnic origin".
The Ministers admit, in effect, that they do not know. We make
no criticism on that score; any Court's interpretation of instruments
of this nature would evolve with changing circumstances. It underlines,
however, the extent to which agreement to these instruments is
a leap in the dark.
Monitoring
2.16 We are not convinced by the Ministers'
argument in favour of voluntary, rather than statutory, monitoring.
Nor do we see why decisions about the specific requirements which
would provide valuable information are best decided at national
rather than European level. We do, however, welcome the co-ordination
work which the European Monitoring Centre against Racism and Xenophobia
is beginning to undertake.
Genuine occupational qualification
2.17 We had asked the Ministers in what
circumstances sexual orientation or ethnic origin would constitute
a genuine occupational qualification because we could not envisage
any; it appears that the Ministers are in the same position. It
is therefore particularly important to clarify, as the Ministers
propose, the reason for retaining at all a provision excusing
treatment that would otherwise constitute discrimination on the
grounds that it constitutes a genuine occupation qualification,
and, if it is retained, how it would apply in combination with
other provisions. It is particularly disquieting that the provision
might undermine the requirement to make reasonable accommodation
for the needs of a disabled person under the Disability Discrimination
Act 1975. We agree with the Ministers' doubt whether it is at
all appropriate to apply this concept in relation to disability.
2.18 We remain concerned about Article 4(2)
in document (b). We understand that the Commission interprets
it as enabling, for example, a Roman Catholic foundation providing
education to children to insist on any teacher of religious education
in the school being a Roman Catholic but not to allow such a requirement
with regard, say, to cleaners. Nonetheless, we agree with the
Acting Deputy Director General of the Commission's Employment
Directorate who, in her evidence to our sister Committee in the
House of Lords, described it as "an awful provision which
is impossible to read..."[10]
Given that the Ministers consider that Article 4(2) is already
covered in Article 4(1), we wonder whether it would not be better
for it to be deleted.
Third country nationals
2.19 We asked the Ministers to state their
view on the application of both proposals to third country nationals
and did not receive a clear reply. We invite the Ministers to
state without equivocation whether in their view both proposals
should and would apply to third country nationals resident in
the EU.
Codes of practice
2.20 The Ministers' explanation is reassuring:
we had some concern that they might consider codes of practice
would be sufficient in themselves.
Discrimination on grounds of nationality
2.21 We note and welcome the Ministers'
acceptance that differences in treatment on grounds of nationality
can constitute indirect discrimination on grounds of race or ethnic
origin. However, we do not understand how indirect discrimination
against any racial or ethnic group can be called merely a "side
effect" of a difference of treatment on the grounds of nationality.
Conclusion
2.22 In our last Report, we signalled
that we were likely to have further questions as work on this
significant package of proposals continued. The impression we
had at that time was that negotiations were proceeding slowly
and carefully in view of the sensitivity of the measures and the
importance of getting the drafting right. The Ministers' paper
(which had obviously taken time to prepare) did nothing to disabuse
us of that impression; indeed, it reinforced the view that a good
deal of work remained to be done on both the draft Directives.
We were therefore surprised to learn that the Presidency was seeking
political agreement on the Draft Directive implementing the
principle of equal treatment between persons irrespective of racial
or ethnic origin (document (d)) at the Social Affairs Council
on 6 June.
2.23 In our view, documents (a) and (c)
— the draft Community Action Programme and the Commission
Communication — are in a state to be cleared from scrutiny.
There are unresolved questions about both the draft Directives,
as identified in our response to the Ministers' paper. Although
we understand that amendments have been proposed to the text of
document (d), we have had no sight of them. Nor have we heard
about the outcomes of the extensive consultation exercise which
the Ministers promised, or seen the impact assessments.
2.24 We are particularly concerned about
the "one size fits all" nature of document (b), especially
in relation to age and disability. We shall keep this document
under scrutiny until we have a better sense of the progress of
negotiations. In particular, we will wish to know what decisions
are taken about the definition of indirect discrimination, and
the issues surrounding "genuine occupational qualifications".
When we are clearer about these matters, we may well recommend
this proposal for debate.
2.25 In relation to document (d), we
have questions about the scope of the measure, the definition
of indirect discrimination and the question of application to
third country nationals.
2.26 The UK enjoys the benefit of well
established legislation prohibiting racial discrimination which,
it is generally accepted, works well. Although in the form of
a Directive, this legislative proposal is likely to have direct
effect which means, the Government admits, that the ECJ will be
the ultimate arbiter not only of the meaning and scope of its
application but also of the UK legislation which implements it.
The Government is unable, quite understandably, to predict the
ECJ's future judgments.
2.27 It is clear from experience with
the Equal Treatment Directive that the ECJ can interpret legislation
of this type with unexpected results, for example, the case of
P v S[11]
in which it held that the dismissal of a transsexual constituted
discrimination on grounds of sex. The consequences of adopting
this proposal, and its eventual impact on existing UK legislation
on discrimination on grounds of race, is not readily predictable.
2.28 On the other hand, other Member
States are less advanced; there is little protection in some parts
of the Community for the fundamental rights of members of racial
minorities. Evidence to the European Union Committee of the House
of Lords alluded to "the difficulties of moving employees
around Europe because of some forms of discrimination in certain
other Member States". There would, therefore be clear advantages
to the extension of common minimum standards on discrimination,
particularly on racial grounds.
2.29 Whether or not those benefits outweigh
the costs in terms of the impact on existing UK legislation is
a matter of political judgment. On balance, therefore, we have
decided to clear the racial discrimination Directive (document
(d)), but to signify our intention to ask the Minister to give
oral evidence to us as soon as possible after the Council meeting
on 6 June in order to give the House further information on the
issues identified above.
9 Clerk v Novacold Ltd [1999] ICR 951. Back
10
EU Proposals to Combat Discrimination: Ninth Report
of the Select Committee on the European Union, HL Paper 68 (1999-2000),
paragraph 109. Back
11
Case C-13/94, P v S and Cornwall County Council, [1996]
ECR I-2143. Back
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