Examination of witnesses (Questions 40
- 54)
WEDNESDAY 14 JUNE 2000
MR MIKE
O'BRIEN, MR
WARWICK MAYNARD
and MS SALLY
WESTON
Mr Bradshaw
40. My understanding of Ms Jones's question
was it was not about third country nationals; it was about the
commission of discrimination on the grounds of nationality. Let
me put the question this way: we had in the south west an horrific
incident a couple of weeks ago where a group of German school
children were abused, sworn at, physically attacked over a period
of ten days. Am I right in thinking that those German school children
or their equivalent would not enjoy the same protection because
they were white that they would have done if they were black or
Asian Germans in this country?
(Mr O'Brien) They would enjoy the same protection[3]
on the basis of their nationality. They have the right to be here;
they were discriminated against, it would appear, and therefore
they would be able to be protected.
41. The drawing of the definition of race is
broader?
(Mr O'Brien) It includes nationality. The provision
is quite clear. There is coverage in relation to this.
(Ms Weston) The Directive does not cover direct discrimination
on the grounds of nationality. There is an acceptance that the
effect that has is that, if there is indirect discrimination on
the grounds of racial and ethnic origin, that will not fall within
the Directive. It will fall within our race relations legislation.
Because the Directive does not apply to direct discrimination
on the grounds of nationality, it would not cover indirect discrimination
on the grounds of racial and ethnic origin, but our domestic race
relations legislation would, in those circumstances, so the Directive
does have a narrower scope.
42. Are you saying that our domestic race relations
legislation does cover discrimination on the grounds of nationality?
(Mr O'Brien) Yes. These children to which you referred
in what does appear to have been a particularly horrific incident
would be covered. Yes, they are protected in law in this country.
43. Incitement does not cover nationality, does
it? You cannot prosecute somebody for using language about Germans
in the same way that you can prosecute them for using language
about blacks or Asians.
(Ms Weston) The legislation on incitement to racial
hatred uses the same definition of racial grounds as the Race
Relations Act.
44. Including nationality?
(Ms Weston) Yes.
(Mr O'Brien) It sounds like you have been advised
differently.
Mr Bradshaw: I have indeed. I shall take it
up with the Home Secretary.
Mr Marshall
45. Can I ask you to clarify and perhaps re-emphasise
a comment you made in response to Jenny Jones's question? Am I
correct in believing that you said that the directive does actually
apply to third country nationals?
(Mr O'Brien) Yes.
46. Residing in the European Union?
(Mr O'Brien) Yes.
47. You are giving the Committee a categoric
guarantee?
(Mr O'Brien) Yes. I do not think there is any doubt
about that. You have suddenly raised a doubt with me.
Mr Cash
48. There has been quite a lot of comment on
the floor of the House about the implications for Catholic schools.
Could you elaborate on that because I know particularly the Member
of Parliament for Gainsborough has—and I declare an interest
in this as a Catholic myself—been deeply concerned about
it. I know that, had he been here which he could not be, he would
have asked the question that I am now asking. Given the fact that
you have obviously had to grapple with this with the authorities,
could you give us a brief outline as to the implications of what
has been said and what your response to it is?
(Mr O'Brien) As far as Catholic schools are concerned—as
you declared an interest perhaps I, as a Catholic too, might declare
an interest—it is only in the sense of racial discrimination.
It applies in exactly the same way as it applies to any other
institution, but religion is not covered as such in this Directive.
Is there a problem in relation to Catholic schools, any issue
which they may need to be concerned with? I hope not. I am not
aware of any. As far as religion is concerned, there should not
be an issue as far as this Directive is concerned.
49. Mr Maynard is scribbling away pretty fast
there. I have a feeling he might pass you something.
(Mr O'Brien) Not on this. This is not to do with religion.
There may well at some later stage be issues in relation to religion.
The Home Office has a working party and some research going on,
looking at issues of religious discrimination, but that is an
entirely different issue. It is not covered by this Directive
and need not in that sense concern you as part of this particular
scrutiny.
Mr Connarty
50. Something that is covered by this Directive
is the term "genuine occupational qualification". It
mentions race or ethnic origin and we have some difficulty in
thinking of a particular instance. I can think of maybe an Afro-Caribbean
group not containing anyone other than of Afro-Caribbean origin
or gypsy music containing no-one other than of gypsy origin. I
know that Martin Taylor plays the best gypsy guitar in the United
Kingdom and he is from Ayrshire. You can see why that would be
difficult. Is this exception to the prohibition still in the draft
Directive as agreed?
(Mr O'Brien) Yes.
51. Can you think of an instance where it would
apply?
(Mr O'Brien) Yes, I can think of a number of instances.
For example, the sale of cosmetics by a company which was targeting
Asian customers might well choose to use a model displaying the
cosmetics from the Asian community. That would seem to me to be
a genuine occupational qualification. We were having a discussion
about this earlier and I suggested that it might be, for reasons
of authenticity, in, say, Asian, Indian restaurants. They might
well feel it is part of the way they run the business that they
would wish to have people from a particular country or ethnic
background as waiters. An issue might arise in relation to the
chef. Authenticity might not be necessary there if the quality
of the food was good enough, but in terms of the waiters arguably
that is an issue which might be a genuine occupational qualification.
Recently, Michael Caine appeared in a film opposite Sydney Poitier
who played Nelson Mandela and it would be difficult to suggest
that Michael Caine could have claimed that he wanted to play Nelson
Mandela, because of reasons of authenticity. He could not for
example suggest that the director had discriminated against him
by refusing to have him rather than Sydney Poitier play the role
of Nelson Mandela: a genuine occupational qualification. Of course,
it was pointed out to me that Ben Kingsley had played Gandhi,
so it is not necessarily the case that you would have to have
a person from a particular background as the actor for reasons
of authenticity. Ben Kingsley did a very competent job. However,
it would not be open to a claim of racial discrimination on the
grounds of genuine occupational qualification for a director to
be sued by an actor who wanted to play the role for which authenticity
suggested they were not entirely suited.
Mr Dobbin
52. It is generally accepted that there is much
more work to be done on the framework Directive but now that agreement
has been reached on the more high profile measure, is there a
danger of loss of momentum or is there a danger that pressure
will be put on Member States to accept the directive before it
has been properly revised?
(Mr O'Brien) A loss of momentum in the EU or in Britain?
I can assure you there will be no loss of momentum in Britain.
We have legislation going through now. Will there be a loss of
momentum on this issue in relation to the EU? To some extent,
we are dependent upon the Commission, who assure us that they
want to see Article 13 pressed forward with. It will depend on
the Presidency and how they take forward these issues, but we
have had some indications that presidencies which will follow
would wish to pursue the Employment Directive and indeed at Helsinki
there was some indication that there was a willingness to move
forward with reasonable expedition in relation to the Employment
Directive.
Chairman
53. Minister, we began this evidence session
by saying that the Committee is supportive of this measure in
principle and asking you about the sense of urgency in getting
agreement on this at the Council on 6 June. You have explained
why there was some speeding up and a sense of urgency, but is
there going to be the same sense of urgency in terms of the implementation
of this measure, both in the United Kingdom and across the European
Union, in your view?
(Mr O'Brien) We want to undertake a proper consultation
with interested businesses and other organisations on how this
Directive should be applied. We do not want to rush to legislation.
We have three years in which to put this into UK law, English
law and Scots law. We will ensure that we move to do so with proper
consultation, taking on board the views on interpretation of interested
organisations. We have the time so that we do not need to rush
it. Can I say again, with reference to your quite proper concern
of the Scrutiny Committee about the speed at which we agreed the
Directive itself, that we did have excellent advice from Sally
and from Warwick. There was enormous hard work done by them in
terms of the delivery of this Directive. Obviously, ministers
take the credit but often the hard work is done by others and
credit is also due to many officials, including UKRep, who worked
very hard on this. What was enormously helpful was the consultation
and the report that we were able to get from this Committee. Officials,
I am sure, would agree that that managed to focus and target a
lot of their concerns. There is a lot of expertise on this and
other committees and that expertise has the ability to ask questions
that enable officials to do their work better and we all appreciate
that. I hope there will not be any rush but will there be due
and proper expedition of the Directive? I am sure there will be.
54. Minister, thank you very much. It has been
at times a very wide ranging evidence session. At times we have
gone into a very deep level of detail and it has been very informative.
I think you have addressed our concerns and given us valuable
incites into the process itself. I am grateful for your comments
about the value of working with this Committee. It is precisely
because you value the work of this Committee that it is a pity
in a way that we were not able to work together more strongly
because of the time constraint in this case. The valuable input
that you have highlighted that this Committee has had perhaps
could have been even more valuable had we had more time and more
exchange in your preparations for this Directive.
(Mr O'Brien) We are grateful to the Committee for
understanding that that was not always possible.
Chairman: We understand the constraints. This
has helped set that straight. We very much value your presence
here today and what you have said to us today. Can I thank you
very much for your contribution to this evidence session on behalf
of the Committee?
3 In our domestic law. Back
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