Select Committee on European Scrutiny Minutes of Evidence



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?


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