RACE DISCRIMINATION DIRECTIVE
(a)
(21360)
9264/00
COM(00) 328
(b)
(21369)
9339/00
|
Amended draft Council Directive implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin.
Council Directive implementing the principle of equal treatment
between persons irrespective of racial or ethnic origin.
|
| Legal base:
| Article 13 EC; consultation; unanimity
|
| |
|
| Document originated:
| (a) 31 May 2000
(b) —
|
| Forwarded to the Council:
| (a) 5 June 2000
(b) —
|
| Deposited in Parliament:
| (a) 27 June 2000
(b) 29 June 2000
|
| Department: |
Home Office |
| Basis of consideration:
| (a) EM of 7 July 2000
(b) (separate) EM of 7 July 2000, Minutes of Evidence HC 581 (1999-2000) 14 June 2000, and Minister's letter of 21July 2000
|
| Previous Committee Report:
| None; but see (20831) —; HC 23-vii (1999-2000), paragraph 4 ( 2 February 2000) and HC 23-xix (1999-2000), paragraph 2 (24 May 2000)
|
| Discussed in Council:
| 6 June 2000 |
| Committee's assessment:
| Legally and politically important
|
| Committee's decision:
| (Both) Cleared |
Background
23.1 We cleared an earlier version of this
document in May. Following the Employment and Social Policy
Council at which it was agreed, we asked the Parliamentary Under-Secretary
of State at the Home Office (Mr Mike O'Brien) to give evidence
to us about the agreed version of the Directive and its implications
[83].
After the evidence session, we wrote to the Minister, reminding
him that he had been asked to clarify one point in writing, and
asking him some further questions. The Minister has now responded
and we print his letter as an annex to this Report.
23.2 Meanwhile, the Minister of State at
the Home Office (Mrs Barbara Roche) has deposited two further
texts, each with its own Explanatory Memorandum. Document (a)
is a version of the text as amended in the light of the opinion
of the European Parliament; document (b) is the final text which
was agreed at Council, and to which Mr O'Brien's response relates.
Our report concentrates on document (b) as it supersedes the earlier
texts.
Document (b) and the Government's view
23.3 The most significant features in the
final text are outlined below:
— Definition of indirect discrimination
23.4 The definition of indirect discrimination
has been amended to read:
"Indirect discrimination
shall be taken to occur where an apparently neutral provision,
criterion or practice would put persons of a racial or ethnic
origin at a particular disadvantage compared with other persons,
unless that provision, criterion or practice is objectively justified
by a legitimate aim and the means of achieving that aim are appropriate
and necessary."
In the evidence session[84],
the Minister told us that the Government would have preferred
the definition from the Burden of Proof Directive[85],
but recognised that other Member States could not accept a definition
which demanded, or appeared to demand, statistical proof. The
Government considers the final version to be an improvement on
the original one.
— Scope
23.5 There are several changes to Article
3, which defines the scope of the Directive. The head of the Article
has been expanded to read:
"Within the limits of
the powers conferred upon the Community, this Directive shall
apply to all persons, as regards both the public and private
sectors, including public bodies...[new text in italics]."
23.6 The list that follows now includes
healthcare and housing, while the earlier qualifications in 3.1
(f) have been dropped so that the item simply reads "education".
In her Explanatory Memorandum on document (b), Mrs Roche tells
us that the Government is "now content that Article 3 as
currently drafted gives a clear indication of which aspects of
education would be covered by the Directive."
23.7 A new Article 3.2 reads as follows:
"This Directive does
not cover difference of treatment based on nationality and is
without prejudice to provisions and conditions relating to the
entry into and residence of third-country nationals and stateless
persons on the territory of Member States, and to any treatment
which arises from the legal status of the third-country nationals
and stateless persons concerned."
23.8 In the evidence session[86],
Mr O'Brien expressed satisfaction with these provisions, which
are seen as giving the Government the flexibility it sought for
services linked to immigration status. In his subsequent written
response (annexed to this report) he comments in more detail on
questions of scope.
Conclusion
23.9 After the uncertainties of the early
summer, it is useful to see the final text of this Directive,
although, given the significance of the changes, we would have
liked more detailed Explanatory Memoranda.
23.10 While, like the Government, we
would have preferred the definition of indirect discrimination
from the Burden of Proof Directive, we recognise that an acceptable
compromise has been achieved. We urge the Government to press
for this definition to be used in future anti-discrimination measures,
such as the amended Equal Treatment Directive[87],
in the interests of consistency.
23.11 We thank the Minister for his written
response to our questions following his evidence session.
23.12 We note that he takes a broad view
of the scope of Article 13 EC in as much as he says that
it is a free-standing legal base and that boundaries within the
field of competence are set by the subjects in relation to which
the Community has power. We understand his view to be that the
power under Article 13 EC may be exercised simply by reference
to subjects in which the Community has competence. On this view,
as there is Community competence in relation to the subject matter
of goods and services, it would follow that a situation which
is purely internal to a Member State, such as the refusal by national
suppliers to supply to a national on grounds of race, is dealt
with by the Directive.
23.13 On the other hand, Article 3 of
the Directive itself reproduces the limiting words "within
the powers conferred on the Community" which are contained
in Article 13 EC. The consequence appears to be that, at least
until the question is determined by the European Court, it will
be for each Member State to take a view, in relation to Article
14 (h), on how far it is within the powers conferred on the Community
to adopt rules prescribing a principle of equal treatment on "access
to and supply of goods and services", even in relation to
a situation wholly internal to a Member State. Although the United
Kingdom takes a broad view of the scope of the Directive, it remains
to be seen how far this view will be shared. At present, it seems
difficult to be certain that all Member States will give effect
to the Directive in relation to wholly internal situations.
23.14 We are grateful for the Minister's
assurance that the Directive has only a limited application to
education, and will not apply to the content of the curriculum.
We are also pleased to be assured that the Directive will not
apply to policing.
23.15 In relation to our question about
the actions of individuals, we note that the Minister says
that the laws giving effect to the Directive would need to apply
to individuals and bear on their dealings with other individuals.
We also note his remarks about the "added value" of
the Directive in circumstances of non-provision on the grounds
of race. Clearly, the Directive will be of assistance in those
cases where there is discrimination on grounds of race which does
not also amount to discrimination on grounds of nationality.
23.16 As the Government is aware, we
welcome the principle behind this Directive. Nevertheless, we
remain of the opinion that it has not been sufficiently well drafted
to avoid difficulties of interpretation in the future.
23.17 We clear the documents.
83 HC 581; see headnotes to this paragraph. Back
84 HC
581, Q. 6. Back
85 Directive
97/80/EC. Back
86 HC
581, Q. 39. Back
87 (21473)
10382/00; see HC 23-xxviii (1999-2000), paragraph 2 ( 1 November
2000). Back
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