Examination of witnesses (Questions 1
- 19)
WEDNESDAY 14 JUNE 2000
MR MIKE
O'BRIEN, MR
WARWICK MAYNARD
and MS SALLY
WESTON
Chairman
1. Minister, can I begin by welcoming to you
our Committee. I believe this is the first time you have been
before our Committee. We welcome you and look forward to a fruitful
exchange and session this afternoon. Perhaps I might begin by
asking you to introduce your colleagues to the Committee.
(Mr O'Brien) Can I introduce Sally Weston and Warwick
Maynard from the Home Office. Sally advises on the legal side
and Warwick, broadly, on race equality issues. Can I thank the
Committee for the invitation to come before you. It is a great
pleasure to be here, and, hopefully, when I leave the Committee
as well. Tessa Jowell did much of the negotiations in relation
to the Directive. I am happy to answer questions on the race issues.
I think Tessa is going to come before the Committee at some stage
to discuss some of the other aspects, particularly dealing with
issues relating to employment. The Directive is, I think, enormously
important and something we as a country can be very proud of.
Your constituents and mine who are black or Asian will be able
to travel within the EU and also in applicant countries to the
EU and have a similar level of legal safeguards for their protection
against discrimination to those which they enjoy in the United
Kingdom. As a result of the work that has been done on this Directive
I would like to thank the Committee for the way in which the Committee
has approached this, because it took us somewhat by surprise,
the speed at which we were able to move towards political agreement
in relation to the Race Directive and, to some extent, the Committee
were helpful in enabling us to do that by allowing us to proceed
with the negotiations, not being fully aware of all of the details
of what we were doing. It was a very fast moving negotiation.
Can I say, that to some extent from the start of the negotiations
we probably were not happy. I know from the report of the Scrutiny
Committee that you were not happy with some of the original draft.
We were moving from a position where there were some difficulties
and we have ended up with a draft that the British Government
is very pleased to sign up to. The fact that we were able to do
so is, I think, a tribute to the way in which the Scrutiny Committee
and the Government have been able to work successfully together
on this as a result of this. As I indicated, our constituents
will have safeguards which they otherwise would not have had and
I think it would have been wrong if we had delayed because we
had to report back. The indulgence of the Committee is something
which the Government very much appreciates. As a result of this
Directive our legislation, which broadly complies with it, will
need some minor changes. I will come back to those in a second.
Our legislation is broadly in line with the Directive but it will
mean that other European countries, some of whom do not have any
legislation dealing with race equality and dealing with discrimination
issues, will have to introduce legislation which will, at least,
bring them up to a standard not far off what we have. I think
as a result, particularly, of the new Bill, which is going through
the House of Commons, our race equality legislation will continue
to be somewhat in excess of the Directive but nonetheless, it
is not too far off our standards. Certainly much of what that
Directive has is learned from our legislation. I thank the Committee
for their scrutiny report as well. Before we went into negotiations
it raised a whole series of issues for ministers, so that when
we were in negotiations we knew what you were concerned about
and we were able to amend and gauge our response to particular
issues, to some extent, by knowing where you had some concerns.
That was a valuable guide to ministers. I think as a result of
that we were in a strong position, we were able to be at the forefront
of negotiations. We can be proud of what has been achieved. These
are minimum standards across Europe. They are important ones,
I think, and that is a tribute to the work that we have been able
to do together that we have been able to achieve that. There are
some issues where we will need to make some minor changes to our
legislation. No doubt you will wish to discuss those issues, like
indirect discrimination, burden of proof, and issues like that.
I am very happy to answer those questions.
2. Thank you very much for the introduction
and the kinds words to our Committee. I think I can say on behalf
of the Committee that we did support the Racial Discrimination
Directive in principle. We do have a number of important concerns,
in particular about the legal implications, which is why we invited
you to this evidence session today, also, about how it relates
to the scrutiny process itself. We first took an interest in the
Directive in February, as a Committee, and we have been in touch
with your Department since then. All of a sudden and rather unexpectedly
there was a sudden sense of urgency to get agreement, which you
got on 6th June, around this Directive. Many of us on the Committee
are pleased that you have that agreement but why that sudden sense
of urgency? Why do things suddenly speed up? Why that extra pressure?
(Mr O'Brien) As I indicated, it took us somewhat by
surprise. We did not expect that there would be a very substantial
amount of agreement at an early stage and that it would enable
us to proceed quite so quickly. We know that at Tampere the various
Governments took a view that they wanted to move forward. They
wanted to send a very clear message, in the light of certain events
in Europe, that the EU was an area which had a certain set of
common values. Among those values was a refusal to accept racial
discrimination. It appeared as the negotiations developed that
there was a large measure of common agreement and the Presidency
took the view that it could proceed quite quickly. Working together
with the Commission it did so and as a result we found that the
Portuguese, in particular during the course of their Presidency,
were very anxious to move forward and we were anxious too and
this was an area where we could be very positive an co-operative.
Indeed, the way things turned out we turned out to be one of the
lead countries that was pushing for a successful conclusion. We
have that. I think it will be a very good political agreement
here.
3. We supported it in principle and that is
why we responded in the way we did. If we wanted to make life
difficult we had a number of grounds on which we could have done
so, in particular the Committee have called for more information
about this Directive, about more consultation on this Directive,
which I do not believe took place. Did it take place? If it did,
what were the results?
(Mr O'Brien) Over the negotiations we had some representatives
from the TUC and the CBI, and also some other business organisations,
who were able to give us some insight into their views about how
we should deal with particular issues. That was enormously valuable.
Certainly, perhaps on some of the details, some of them might
have worded it differently but they could all live with it. That
is an important success. There was some limited consultation with
them. It was very fast moving. It took place, much of it, over
a day or two, literally. We were able, eventually, to reach an
agreement. Now we have done that we want to embark on a wider
process of consultation with business and other organisations
to ensure that the detail of how this Directive is implemented
will be the product of contributions from various organisations
who will have a view on this.
4. Thank you. Can I take the opportunity to
ask you, on behalf of the Committee, whether we could have copies
or some information about the results of that consultation, the
consultation that has already taken place and the new consultation
you are proposing. It would be very helpful if we could have sight
of the results of that in due course[1].
(Mr O'Brien) I will be very pleased to let you have
that.
5. Not only did things move very swiftly to
a conclusion, as they moved to a conclusion there were a number
of changes in the Directive. My main concern is not so much as
about the changes themselves, although other colleagues may want
to pick up on that, but the fact that normally your Department
is very good at keeping our Committee informed of such changes
and that did not happen in this case. I wondered what the reason
for that was?
(Mr O'Brien) The changes were happening, as I have
indicated, quite quickly, particularly towards the end of the
negotiations. Some of the issues were about the precise wording
of some of the amendments. I think there was some problem because
there were a number of different textural amendments being floated
at different stages. There was some quite intensive discussion
within the Working Group about how we would reach agreement to
get the balance right. That was a fast changing situation and,
of course, it was done, in a sense, in privacy within a very short
period of time, within the Working Group. It would have been very
difficult to have kept sending out messages. To be honest, from
what I can gather, I was not there during much of the negotiations,
it would have become somewhat confusing about what was being done
at precise stages. What we ended up with was the ability to put
the concerns that the Scrutiny Committee had about the original
draft and the original proposals into our negotiated strategy
so that we were, I think, able to respond to most, if not all,
of the most serious concerns that the Committee had. Although
we were not able to keep you briefed on a blow-by-blow, hour-by-hour
basis, as we would have preferred, the Committee will understand
the nature of those negotiations is very fast moving and also
tends to be private, because of arrangements that are made and
negotiations with various countries. We were able, eventually,
to get the agreement. All I can say is, we do endeavour to keep
the Committee informed whenever we can and were we able to have
done so we would have done so in this case. The practicalities
of the situation did not lend themselves to it.
Mr Connarty
6. It is pleasant to see you here. You may know
that when we last considered this Directive, I believe it is in
our 19th report, it was a response by Barbara Roche to questions.
In question 7 in the minutes of that report it said, from your
Department, "In our view, a single definition of indirect
discrimination would be much clearer". Clearly the definition
which is agreed differs widely from that in the Burden of Proof
Directive, there is no change in that. Can you just outline for
us what way you think it is different and, if this is so, why
did the United Kingdom agree to it?
(Mr O'Brien) Perhaps if I give you the broad background
and then come to some of the detail. The Burden of Proof Directive
was primarily concerned with sex discrimination and employment
issues. The way in which we tend in this country to approach race
issues, particularly on indirect discrimination, is by looking
at the statistical evidence: for example, the numbers of people
from particular ethnic minority groups that are able to be employed
in a company compared to the number of ethnic minority people
living in the surrounding area. That is fairly straightforward
for us because we tend to have available information about ethnic
minority backgrounds. In some countries, such as the Netherlands
and Scandinavia, for historic reasons, some of them going back
to the Second World War, they have a view that ethnic minority
questions are prohibited, so they are not able to raise those
questions. Whereas in looking at statistical issues, as the Burden
of Proof Directive does in relation to sex discrimination cases,
it is fairly straightforward, you have a view about the percentage
of men to women and the background issue does not have to be looked
at. In the case of race issues and the Race Directive because
some of the European countries are not able under their legislation—and
their view was that they should not—collect data in relation
to the ethnic minority background of individuals, they were not
prepared to agree to have precisely the same definition as applied
in the Directive on the Burden of Proof. We would have preferred
the same definition in the same way as the Committee would have.
During the course of the negotiations we realised that, frankly,
we were not going to get an agreement on that, and, in many ways,
from their point of view for good reasons, they took that view.
We did not want to get into that long-term debate. We listened
very carefully and we came to a conclusion that the new wording,
which is now agreed and is in the Directive, is the best one.
The original draft which contained the phrase, "Liable to
adversely affect" we found to be unacceptable. The Committee
were concerned about that phrase too. It was, in our view, not
only just a low test, it was a vague test, a somewhat hypothetical
test. Liable! Hypothetically it might be liable. We now have a
definition which is much more definite. In that sense this new
definition of indirect discrimination is one which we can live
with. It also allows, because there is a section in the recital
which says it, "Indirect discrimination may be established
by any means, including on the basis of statistical evidence."
It is an option that enables us to continue to use the methods
we use in the United Kingdom but it does not oblige the Scandinavians
and the Dutch to use the methods we prefer. It resulted in reaching
the conclusion that this test was one with which we were comfortable,
one which was not a lower test, one which we would normally apply.
It will require some amendment to our legislation, in the sense
that it will enable, for example, some expert evidence to be brought
in in race discrimination cases. I think that will be helpful.
I do not think it would affect a large number of cases, in fact
I hesitate to say whether we are talking about fingers on one
hand, we are not talking about very large numbers. What is the
case in some areas of Britain is that the numbers of ethnic minority
people in the general population are quite small. Obviously in
those circumstances it can be quite difficult for a person from
an ethnic minority background to show race discrimination based
on the statistical approach that we would adopt. What this would
enable them to do is that if statistical evidence is unavailable
to use some other expert evidence. We have consulted with most
employer organisations and the CBI and they can live with this
and they are comfortable with it. As I say, no one expects it
to affect a large number of cases. We think it is quite helpful
and we are quite comfortable with it.
7. Since, Minister, you have moved on to the
Race Relations Act, it is defined differently, can you be specific
on how you think it would impact on cases of indirect discrimination
that are brought in the United Kingdom? How do you think that
would play out in the United Kingdom?
(Mr O'Brien) The only way, as I say, would be to allow
some expert evidence. It would have to very good expert evidence,
it would have to be expert evidence that would establish a prima
facie case. That would, on the face of it, be the only change.
There would be, in real terms, not a change of great significance,
except to the individuals involved. In sheer numbers it would
be small. In terms of particular individuals, of course, where
they might not otherwise have been able to show a prima facie
case they might, by providing some expert evidence, be able to
do so.
8. You are arguing it is improving the chances
of somebody who is indirectly discriminated against in the United
Kingdom using this Directive.
(Mr O'Brien) I would not want to make too much of
it. I would not argue this was a big change or an enormously significant
one. It is a marginal benefit to our Race Relations legislation.
It is something which we were quite comfortable with and happy
to endorse. The numbers, as I say, of individuals who will benefit
will be small. In terms of the significance of it I would not
want to overplay it. In terms of the benefit I think it is something
which is good.
Mr Cash
9. I would like to go back to the question of
the Burden of Proof for a moment. We had a Standing Committee
A this morning which looked at the Environmental Liability White
Paper and the question of Burden of Proof comes up there. It comes
up again today. What we have, therefore, is a shift in the Burden
of Proof, which is agreed to because, as you rightly said, or,
at least, as you accurately said, you have lost before you begun
because the other Member States have a different Burden of Proof.
On qualified majority voting you were dead in the water as soon
as the issue came up. There is no need to look quite so puzzled,
Minister.
(Mr O'Brien) I disagree with you.
10. You said it yourself. You said, in as many
words, that you were not going to be able to achieve your objectives
with respect to the Burden of Proof because you knew that the
other Member States who had their own version of a Burden of Proof
would insist on it which, in a nutshell, means you are going to
be outvoted.
(Mr O'Brien) I think you put a different interpretation
to what I intended to say.
11. I would not like to use the word slippery.
I would say that your answer is not really consistent with what
you said a few minutes ago.
(Mr O'Brien) I disagree with you on that.
12. I dare say you would. The fact is that we
now end up with a different burden of proof because the other
Member States would not have gone along with it. Can you tell
me, if you understand, what impact that would have in relation
to the legal position in a given case? Can you give me an illustration
of how the burden of proof, as it was originally conceived for
this purpose, has now been shifted and give us an example of how
it would have changed the position had it been under the British
Burden of Proof arrangements?
(Mr O'Brien) First of all, can I say I think you are
misinterpreting what I said. I was talking about indirect discrimination
earlier, and I think you applied that generally to issues of burden
of proof. This has been interpreted by some as an anti-European
slant or an anti-EU slant in some of our newspapers in a way which,
frankly, is complete nonsense. They talked about people being
guilty before the case was proven, and all this sort of absolute
rubbish. In fact when the CBI and other employers' organisations
looked at this they realised what was being proposed was, pretty
much, the same as what we are doing in employment tribunals today.
What happens is that one side presents a prima facie case and
once they have done that under the Burden of Proof Directive and
under this Directive, once they have shown a prima facie case,
the other person responds to it and sets out their view of why
they were not discriminating. In practice what difference does
this make in terms of the nature of the decisions that are likely
to come out of tribunals, out of courts? The answer is, not a
lot. The claims by some that this is some great imposition of
a European approach to law are, frankly, complete nonsense. What
this is is a minor alteration in the way in which we word our
procedures. It does mean that there is a requirement for those
who are showing there is no discrimination to demonstrate that
clearly, but other than that this is not a substantial change
in our law of the sort that some have suggested.
13. We will find out how that works in practice.
(Mr O'Brien) I am sure you will.
14. In terms of the definition, which you say
you now agree—
(Mr O'Brien) Yes.
15. —would you have considered the possibility
of adding to the end of that definition, "Of equivalent ability",
or words to that effect. One of the matters that concerns people,
I think, is that however important, and I think it is important
that we have a proper law of race relations, and I supported it
right the way through from 1965 to 1976, and so forth, nonetheless,
there is also a requirement, surely, to have regard to the impact
that this can have.
(Mr O'Brien) Can I just interrupt to clarify, you
are talking about Article 8 here and the Burden of Proof part
of the Directive?
16. I am talking about the definition that you
gave.
(Mr O'Brien) The indirect discrimination definition?
17. Yes. I think there is a certain amount of
uncertainty, some might even say concern, about the extent to
which one can simply state, which we could not even in this room,
that we all have equivalent ability. It is true to say that some
of us have more ability in certain areas than others. Simply to
pass a law for the whole of Europe saying there is going to be
a completely flat application of a definition without having regard
to questions, for example, in relation to obtaining work as they
pass from one country to another, that they all have equivalent
ability when it is tested, would you not agree that there is something
to be said for getting that measure and that weighting into the
definition itself?
(Mr O'Brien) I do not think we need to do it because
it is implicit in the provisions. The way in which these provisions
are operated is such that I do not think anyone would say that
you must take on someone because they are of a particular ethnic
minority even though all the other potential applicants are of
greater ability. No one is suggesting that. Indeed, that would
in the view of most people from ethnic minority communities in
Britain be patronising. They want to be judged on merit without
glass ceilings, without discrimination, on the basis of the qualities
that they have. Quotas of course are illegal in Britain and rightly
so. I do not subscribe to the view that there should be quotas
and neither does the government. At the same time, having a view
that there should be targets, encouragement, facilitation of the
recruitment of ethnic minority people but, most importantly, that
we should end discrimination and glass ceilings, is enormously
important. The definition that we have here of indirect discrimination—I
know your record in relation to these issues on race equality
has always been positive—is one which I think is very good
and adds in many ways to our approach on these issues and strengthens
it. I do not think there is anything particularly to fear from
this.
Mr Marshall
18. Could we move on to the scope of the Directive?
The Directive will only be applicable where the Community has
a competence, so it is not going to be of universal application.
In view of that, could you give us examples of where our domestic
race relations legislation will still continue to operate, because
those areas are outside the scope of the Directive?
(Mr O'Brien) Article 3 on the scope, as you can see,
opens with the words which we certainly wanted in the Directive,
"Within the limits of the powers conferred upon the Community
...". In terms of the report by the Scrutiny Committee, it
was particularly some of the sections of that which caused us
to consider this particular approach in our negotiations. We wanted
these words in and our colleagues in the European Community were
anxious to ensure that we had these in too. We are grateful to
the Committee for that indication. If I understand you rightly,
you are asking me—
19. Which areas are not covered.
(Mr O'Brien) Education and policing are covered in
our legislation, or at least they will be in terms of the policing
and already are in terms of education. In terms of Community competence,
that is more restricted. Our legislation will go further in those
areas than this Directive will.
1 The Minister has responded to the request for information
about the consultation that has already taken place by forwarding
to the Committee copies of responses to two Written Questions
which confirm that a range of business and employee organisations
and some 80 non-governmental organisations working in the race
relations field were consulted at five meetings held between November
1999 and the Social Affairs Council on 6 June 2000. No information
about the views of the consultees has yet been supplied. See Official
Report, 8 June 2000, col. 377W; and Official Report, 19
June 2000, col. 145W. Back
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