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Wednesday 13 February 2002
[Mr. Edward O'Hara in the Chair]
1976 Equal Treatment Directive
[Relevant Document: European Union Document No. 14492/01]
The Minister of State, Cabinet Office (Mrs. Barbara Roche): I start by welcoming you to the Chair, Mr. O'Hara. This is an important debate and a good opportunity to discuss issues arising from the European Commission's proposal to bring up to date the main European Community law on sex equality dating from 1976, the equal treatment directive.
The Committee will realise, from its earlier view of the proceedings, that negotiations on proposals to amend the directive have been going on for some time. I know that the Belgian presidency was disappointed not to be able to conclude the dossier. The Spanish presidency is pressing on with it, and it is now entering the crucial stage of conciliation.
The equal treatment directive became law in February 1976. It establishes that the principle of equal treatment between men and women means that there should be no direct or indirect discrimination whatsoever on the grounds of sex in the fields covered. Any exceptions to the rule are to be limited. It covers employment and vocational training, and is implemented in the United Kingdom through the Sex Discrimination Act 1975, which also covers, but is not limited to, those areas.
Since 1976 the text of the equal treatment directive has proved so broad that it has been open to interpretation. Over the years, substantial case law has built up from the European Court of Justice that assists us in interpreting the directive and finding the approach that should be taken in issues of equal treatment between men and women.
The United Kingdom has played an important part in the development of the principle of equal treatment over the years. Several important, leading cases have been referred to the European Court of Justice from our courts. I pay tribute to the Equal Opportunities Commission, which has often been instrumental in that area. It has supported important cases that have clarified the law in such areas as discrimination on the grounds of pregnancy and indirect discrimination.
We have reached a stage at which the European Parliament, Commission and Council all aim to bring the 1976 equal treatment directive up to date to reflect the changes generated by modifying the original treaty of Rome under the most recent treaty, the treaty of Amsterdam, by many years of case law from the European Court of Justice, to which I have referred and, very importantly, by the need to read across, where appropriate, to the two important directives
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agreed in 2000 under article 13 on race discrimination and on discrimination in employment on grounds of age, disability, sexual orientation, religion and belief.
Through our support for the modernisation of the equal treatment directive, the UK Government hope to ensure that all member states operate the same standard of protection against sex discrimination, which will ensure a level playing field for business and workers across Europe. As far as practicably possible, race and sex discrimination law should be comparable to avoid unnecessary confusion arising from different definitions and standards. However, it is true that gender has unique features, such as pregnancy, associated absences and maternity leave. Also, unlike groups protected under the new directives, women are not a minority.
On 7 June 2000, the Commission proposed a directive to amend the equal treatment directive. Following negotiations, the Council's representatives produced a common position, a text to which all member states agreed. The Council adopted it formally on 23 July 2001. We, like other member states, believe that the common position is a balanced text that will strengthen the principle of equal treatment, and its practical implementation.
That text contains a specific text that requires member states actively to take into account equality when making and implementing law and policythe mainstreaming principlesand includes a definition of sexual harassment, which European and UK case law has already established as a form of sex discrimination. Instructions to discriminate against a third party are also to count as sex discrimination.
The text includes a right to return to work after maternity leave. The principle of equal treatment is extended to trade unions, employers' organisations and professional bodies, as exists in the Sex Discrimination Act 1975, but not in the original directivean interesting point. There is protection from discrimination by a former employer even after the employment relationship has ended, for example, when providing a reference. It includes support for people claiming discrimination, and for those who have a legitimate interest in supporting individuals taking cases, such as trades unions, equality bodies and citizen advice bureaux.
There is protection from victimisation for those complaining of sex discrimination. There is a requirement on member states to designate bodies for the promotion of equal treatment, and of dialogue between the two sides of industry, which is to be achieved in accordance with national traditions. The text also includes a requirement on the European Commission to report every five years on positive action measures undertaken by member states from information provided by them.
Those are sensible and practical measures supported by all member states. We shall strongly defend the common position, although we are not totally opposed to clear, workable improvements. The directive is for co-decision by the Council and the European Parliament. Under that process, the European Parliament proposed amendments. The Committee
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has the document that shows that the European Commission has taken a view on the 15 amendments. In the main, it has rejected, or partially accepted, them.
During negotiations, the UK was conscious of the need to ensure that any amendment was consistent with the principle of equal treatment between men and women, and with other relevant legislation. That legislation makes a difference to the working lives of women and men, and all of it must be appropriately linked to, but differentiated from, the equal treatment directive, so as not to confuse case law arising from different directives. The European Parliament amendments do not sufficiently recognise that. They blur the distinction between equal treatment on the grounds of sex, and between those pieces of legislation that flow from the social agenda in respect of balancing family and working life. The Commission acknowledges that.
The Commission also shares our view that the European Parliament's amendments depart from the texts of the two article 13 directives. All member states want clarity not only to avoid confusion, but to avoid lengthy and expensive references to the European Court of Justice.
The Committee will know that we are currently consulting on how to implement the two article 13 directives through regulations in the UK. We have allowed a long consultation period and it is currently going on.
As far as those proposals are concerned, the next stage is the formal one of conciliation, which will begin very shortly. I cannot predict the outcome, but I can predict that the UK will continue to work with other member states, the Commission and the presidency to achieve a workable and legally sound directive. In doing so, we shall continue to set out our position clearly with reasons for any concern, while recognising the need to reach a compromise that is acceptable to all. I hope that that will help the Committee in its deliberations this afternoon.
The Chairman: We now how have until 5.30 for questions to the Minister. I remind members of the Committee that their questions should be brief, and should be asked and answered one at a time. With mutual co-operation there should be ample opportunity for all hon. Members present to ask more than one question.
Mrs. Caroline Spelman (Meriden): Thank you for your guidance, Mr. O'Hara. I am new to the European Standing Committee format and I appreciate any gentle redirection that may be necessary along the way. I have a series of questions, which are, as you recommended, short. I know that other hon. Members may also have questions and I am happy to take my turn.
My first question is a general one: does the Minister accept that many employers have become wary of getting it wrong on sex discrimination? Clearer guidelines will need to be issued to give employers confidence in the correct way to approach recruitment,
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staff retention and discipline while avoiding discrimination. On first acquaintance with the bundle from the Vote Office I had to apply a cold towel to my forehead in order to read it. It is no understatement to say that it is fairly technical. When the text is concluded, what does the Minister have in mind to make it readily intelligible to people who have to use it?
Mrs. Roche: I have some sympathy with the hon. Member for Meriden (Mrs. Spelman), and I would say, without any disrespect, that much of this is for the anoraks. The Committee is faced today with the common position from the Council, detailed amendments from the European Parliament and the opinion from the Commission. We shall then go into a period of conciliation.
I understand the hon. Lady's point. It is important that we look for clarity both for employees and employers. In a sense, that is part of the UK's position as far as that agenda is concerned. We are now updating a directive that dates back to 1976without giving my age away, that was about one year after I came down from universitywhich is a long time ago. Case law has developed, and we need to bring the directive up to date. I hope that by bringing this up today and by having a common positionof course, if there are sensible improvements, we shall look to themwe shall reach a position that is helpful to employees and employers.