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Second Standing Committee
on Delegated Legislation
Wednesday 11 June 2003
[Mr. Mike Hancock in the Chair]
Draft Race Relations (Amendment) Regulations 2003
The Chairman: Before I call the Minister, let me say that it will be in order for hon. Members to take off their jackets.
The Minister for Citizenship and Immigration (Beverley Hughes): I beg to move,
That the Committee has considered the draft Race Relations Act 1976 (Amendment) Regulations 2003.
It is a great pleasure to appear for the first time in a Committee that you are chairing, Mr. Hancock. I am sure that it will be very well managed.
The draft regulations are made under section 2(2) of the European Communities Act 1972. They implement the United Kingdom's obligations under Council directive 2000/43/EC—the race directive—to prohibit discrimination and harassment on the grounds of racial or ethnic origin. Approval of the regulations will be important in enhancing our existing legislation and in ensuring that everyone can contribute to the best of their ability to the society in which we all live.
I shall start by briefly setting out the context. The race directive flows from article 13 of the treaty of Amsterdam and is being implemented in tandem with the article 13 employment directive. The employment directive introduces into the employment field new anti-discrimination legislation dealing with sexual orientation, religion and age. It also amends the employment provisions of the Disability Discrimination Act 1995. The UK was a leading player in negotiating the legislation before us, which introduces a common minimum standard of legal protection from discrimination across Europe. We welcome the results of that process.
The implementation of the two directives has been subject to extensive discussions with interested parties over the past three years. Since the directives were adopted, there have been two formal consultation exercises in the UK. The first was called ''Towards Equality and Diversity'', and the second was called ''Equality and Diversity: The Way Ahead''. The regulations before us, and those implementing the employment directive, have been informed by the comments and detailed suggestions that were submitted in two exercises.
Mr. Dominic Grieve (Beaconsfield): Could the Minister tell the Committee what discussion there was in Parliament before the directives were issued? What opportunity has there been since to debate the implications of the directives?
Beverley Hughes: I am sure that the hon. Gentleman is aware that the directives have been subject to exactly the same process as similar directives. The nature of
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that process is determined largely by the 1972 Act to which I just referred.
The race directive requires the UK to import certain principles into domestic legislation—in this case, the Race Relations Act 1976. The principles that we are incorporating include widening the definition of indirect discrimination, changing the emphasis of the burden of proof as between complainant and respondent, and introducing the concept of genuine occupational requirements.
I should explain that the amendments that we are making extend across virtually all the areas covered by the Race Relations Act, including employment, training, education and the provision of goods, services and housing.
Mr. Grieve: I am sorry to intervene a second time, but I was making a genuine inquiry. There is, of course, a European Scrutiny Committee, but I have had some difficulty—perhaps the Minister can help me—determining when the directive's contents were scrutinised and whether there has been an opportunity since it was issued for the House, at any level, to discuss its implications. The Minister referred to having consulted widely with interested groups. That is marvellous, but one interested group is Members of Parliament who have to enact these regulations. I wondered whether, apart from the hour and a half that we have today, there had been opportunities for the measure to be considered at any parliamentary level.
Beverley Hughes: I explained to the hon. Gentleman that the directives have gone through the same process that most directives go through as a result of the requirements in the Act. With this directive, that has included lengthy debates on the draft directives in the House of Lords in July 2000 and in a Commons Standing Committee at about the same time, as well as scrutiny by the European Scrutiny Committee, as is usual.
Simon Hughes (Southwark, North and Bermondsey): I understand that the directive was proposed in November 1999, decided on in June 2000 and came into force in July 2000 with a three-year period by which the UK had to comply. I have not checked through the whole timetable, but will the Minister say whether the directive's implication was known and understood when Parliament debated, and Opposition Members supported, the Race Relations (Amendment) Act 2000, and whether it was fully taken into account during the passage of that Bill? I served on the Standing Committee and my recollection is that it was not. I accept some responsibility for that, but obviously the prime responsibility must lie with the Government.
Beverley Hughes: As I explained, in 2000 and beyond we considered the draft directive, which has gone through a process of formalisation. Today, we are considering the conclusions of that process and incorporation. I understand the hon. Gentleman's point, which is sensible. It is unfortunate that sometimes our parliamentary processes do not coincide with those for directives coming from Europe. Would that we could always make those coincide; unfortunately, that is not always possible.
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Mr. Grieve: Picking up what the hon. Member for Southwark, North and Bermondsey (Simon Hughes) said, there was a debate in July 2000, but it is noteworthy that that was after the directive was issued and it covered much wider issues than the particular matters that we have to consider today. I am sure that the Minister will understand my concern, which I shall explain at greater length later. It is that there does not seem to have been an opportunity in Parliament for a wide-ranging discussion of what best to do with the directive, either before or after it came into operation.
Beverley Hughes: I explained to the hon. Member for Southwark, North and Bermondsey that unfortunately the timing of the two processes was not coincidental, nor could it be made so. The Race Relations (Amendment) Act came into force before the directive—as opposed to the draft directive—was agreed. In addition, the directive, although clearly relevant in the wider sense, was not directly relevant to the subject matter of that Act. If hon. Members examine it closely, they will see that.
Simon Hughes: I entirely accept that the timetable was as the Minister said. Could she convey to her colleagues who deal with European business and the business of the House the fact that, if there is a relevant draft directive or final directive when any Bill, but particularly a Government Bill, comes before us, it would be helpful if we were all alerted to that, so that we could consider the implications? I sense that, had we known that, we might have amended the Race Relations (Amendment) Bill to deal with these issues then, and would have been able to debate them and amend the provisions in Committee in the usual way.
Beverley Hughes: I accept the general point although, as I made clear, we could not have done what has been suggested without delaying the Race Relations (Amendment) Act, because the directive had not been finalised. That raises difficult issues about getting our own priorities through in legislation.
The race directive is wider in scope than the employment directive, which covers only employment and vocational training. The regulations will widen the definition of indirect discrimination, so that there are more circumstances in which claims can be brought. A new definition of harassment will be introduced. At present, the UK courts consider harassment to be a form of discrimination, but we have taken the opportunity to formalise the position. The regulations also make a change to the burden of proof, so that there will be more emphasis on the respondent to prove that he or she did not discriminate.
Mr. Grieve: Will the Minister give way?
Beverley Hughes: Can I finish the explanation? The hon. Gentleman may then find that he does not need to ask a question. However, if he does, I will be happy to answer it.
Until now, the emphasis has been on the person who alleges that discrimination took place to prove a case. Now, once the complainant has established the facts that would indicate to a court or tribunal that there has been discrimination, the respondent will need to prove that the action taken was not discriminatory.
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If the respondent fails to do that, the court or tribunal will rule against them. That change in emphasis will come into action only after the individual has made a convincing case. A respondent would not have to disprove an accusation of discrimination by someone who has no evidence to back up his or her claim. However, a respondent who does not have a good defence will no longer be able to refuse to answer in the hope that a court or tribunal will not draw an adverse inference.
Mr. Grieve: How does that procedure differ in practice from the current rules? In my experience, if someone raises a case on which the tribunal may make a finding, and no evidence is advanced in answer, it is 100 per cent. certain that there will be a finding. Does the rule change mean that the threshold for a case will be less than that which has to be reached at the moment to get over the first hurdle of establishing a prima facie case?
Beverley Hughes: No, the threshold that a claimant has to surmount will not be lower than at present. The key difference lies in the consequences of a respondent's refusal to put forward a defence, once that threshold has been established. At present, a court is able to draw inferences from such a refusal, but is not obliged to do so. In future, in the event of such a refusal, a court or tribunal will be obliged to find in favour of the claimant. The claimant first of all has to meet the threshold of a prima facie case, as happens now.