Documents considered by the Committee on 6 June 2018 Contents

14Equal Treatment

Committee’s assessment

Legally and politically important

Committee’s decision

Not cleared from scrutiny; further information requested; drawn to the attention of the Women and Equalities Committee and the Joint Committee on Human Rights

Document details

(a) New Council text for a proposal for an Equal Treatment Directive; (b) Original Commission proposal for an Equal Treatment Directive

Legal base

(a) Article 19(1) TFEU; EP consent; unanimity; (b) Article 13 EC; EP consultation; unanimity


Home Office (Government Equalities Office)

Document Numbers

(a) (37064), 9010/15,—; (b) (29819), 11531/08 + ADDs 1–2, COM (08) 426

Summary and Committee’s conclusions

14.1In 2008 the Commission proposed an Equal Treatment Directive, (document (b)), which has been under negotiation ever since. In September 2015, the Council published a new text (document (a)), following six years of unproductive negotiations. The proposed Directive aims to extend protection against unfair discrimination on grounds of religion or belief, disability, age or sexual orientation beyond the labour market to housing, health care, social services, social security, education and the supply of goods and services. It also proposes to extend protection from age discrimination to the under 18s.

14.2Document (b) was modelled on existing anti-discrimination Directives. The Council has already adopted three Directives prohibiting discrimination in the fields of employment and occupation or training on all the grounds which were then set out in Article 13 of the EC Treaty: sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. There is also existing EC legislation prohibiting discrimination on grounds of sex and racial or ethnic origin in education, health care and goods and services.

14.3In October 2015 the Government submitted its Explanatory Memorandum on the new text. It remained largely supportive of the proposal, as many of the proposal’s requirements already exist in domestic law. But it had some reservations about aspects of the Commission’s competence and therefore the scope of the proposal.

14.4We last reported on a Government update on 23 March 2016 (see our Report of 13 April 2016). The Committee office has no record of receiving a subsequent letter of 19 September 2016 from the former Minister for Women (Caroline Dinenage) to our Chairman, but which has been recently discovered on the Cabinet Office website. As the letter was therefore not reported by us to the House at the time, we now reproduce it in full at paragraph 14.12. In short, the Government wrote to explain its competence concerns relating to the proposal, mainly concerning the provision of education:96 this was in response to the previous Committee’s report in October 2015.97

14.5We wrote to the current Minister for Women (Victoria Atkins) on 28 March98 of this year asking for an update. She now responds by letter of 24 April.99 In that letter she informs us that there have been a few changes since the last time the Government updated the previous Committee in 2016. However, the changes have all been minor, except for those concerning the relationship with the European Accessibility Act and multiple discrimination. On those changes, the Minister says:

14.6The Minister then addresses Brexit implications. On the question of any UK alignment with EU equalities legislation, she says that it will be a matter for the wider exit negotiations. But that almost all the protections encompassed in this proposed Directive will be covered by the preservation of the Equality Acts 2006 and 2010 and the equivalent Northern Irish legislation. She says that the Government has “no plans to change that position”.

14.7The Minister will update us again once there is any significant progress in the negotiations.101

14.8Clearly this proposal is only progressing slowly. In any case, the proposed Directive currently envisages very long implementation dates of four and five years and even longer in relation to certain requirements. Even in the unlikely event that the proposal was adopted later this year, the UK would not need to implement it before the end of the proposed transition/implementation period. We also accept that much of the proposal is already covered by the Equalities Acts which the EU (Withdrawal) Bill will preserve in UK law on exit day. We therefore limit our comments and questions accordingly.

14.9We have only become aware recently of her predecessor’s letter of 19 September 2016 but we welcome the Government’s continued vigilance against EU competence creep on this proposal, particularly relating to the provision of education.

14.10We note the Government’s opposition to the inclusion of a definition of multiple discrimination in the proposal. Section 14 of the Equality Act 2010 is drafted to allow some limited explicit prohibition of combined discrimination but it has not been brought into force. We recall that the current Prime Minister in her former role as Minister for Women and Equalities in a previous Government, laid a Written Ministerial Statement on 15 May 2012,102 explaining that the commencement of Section 14 was being delayed as part of the “Equalities red tape challenge”. We simply observe that if the proposed Equal Treatment Directive was adopted and included a multiple discrimination definition, this would represent an interesting example of divergence in EU and UK equalities protections after 31.12.20. Could the Minister please:

14.11In the meantime, we retain these documents under scrutiny but draw them to the attention of the Women and Equalities Committee and the Joint Committee on Human Rights.

Full details of the documents

(a) Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation: (37064), 9010/15,—; (b) Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, age or sexual orientation: (29819), 11531/08 + ADDs 1–2, COM (08) 426.

Letter of 19 September 2016 from the previous Minister

14.12The previous Minister for Women (Caroline Dinenage) wrote:

“Further to my letter of 15 March103 in response to yours of 10 February, there was a further question raised by the Committee in its report of 28 October 2015 on which I promised to write to you, once I had received and considered the input of other Government Departments. This earlier correspondence did of course pre-date the referendum on EU membership.

“This concerned how the exclusion of matters in Article 3(2) of the draft directive relates to the established division of competences between Member States and the EU, and particularly in social protection (including social security and healthcare), social advantages, education and the provision of services such as housing.

“On social protection, social security and welfare provision in the draft is intended to complement the provisions on free movement of workers in an area of shared competence (Art 45, 48, 21, 79 TFEU). In practice this means that Member States remain free to determine the contours of their own social security and healthcare systems: they may decide what the contribution levels should be, what benefits are available and what the level of benefits provided shall be, and may determine any conditions of entitlement (subject to free movement/equal treatment principles).

Regulation (EC) No 883/2004 on the coordination of social security systems provides for co-ordination not harmonisation of the social security benefits: the aim is to negate the effect of rules within national social security systems which might act as a barrier to workers or their families moving between Member States. It is worth noting that Social security for the purposes of EU law is a narrower concept than social protection or social advantages—in other words social security only covers benefits that address one of the ‘social security risks’ in the relevant EU Regulation.

“Workers have greater rights in that they are afforded equal treatment rights as regards social advantages—a wider concept than social security. Nevertheless, Member States still decide what the contribution levels are and what benefits are available, subject to this equal treatment principle, which is also enshrined in the draft directive. Given that the Draft Directive explicitly excludes in the context of social protection “conditions of entitlement to benefits and services” from its scope, the Government does not have concerns about the division of competence in this sphere.

“In relation to education the treaty base for the draft Directive is Article 19(1) TFEU, together with Articles 2 and 6 TEU. Article 19, giving the Union the competence to take action to combat discrimination, is expressly stated to be within the limits of the powers conferred by the Council and Parliament. Likewise, Article 6 TEU expressly states that it does not extend the competences of the Union as defined in the Treaties. Article 2 does not appear to add anything in this regard to the operative effect of Article 6 TEU or Article 19(1) TFEU).

“Article 165 on competence in education states that:

1. The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.”

“It is the Government’s position that there is no competence to legislate in any respect where the subject matter is the content of teaching and the organisation of the UK’s education system. By contrast, if the subject matter is something about which there is competence (e.g. equal treatment) then the EU can act within the limits of the Treaty. We are negotiating to ensure sufficient clarity of what is subject to the Directive, and what is not, in the field of education and to ensure this does not exceed the Commission’s competence.

“As we have previously registered with the Committee, we remain concerned that the text is ambiguous on the limits of EU competence, in that is can be construed in places, as extending EU competence in the field of equal treatment where other parts of the treaty make clear that areas such as education are reserved.

“Regarding the wider provision of services, this is clearly a broad area which it would be impractical to cover exhaustively and accordingly, as suggested by the Committee’s question, we have looked at the example of housing, but accept it is possible that there will be variations in other areas.

“Our starting point is that this draft directive only concerns matters within the limits of competences conferred by the EU (Article 3) and housing is not an EU competence, it is entirely within Member state competence. That said, housing matters do however engage EU law where they have an impact on the fundamental freedoms as in, for example, freedom of movement or where discrimination matters come into play. Along with other fields already discussed, housing is mentioned in the Charter of Fundamental Rights of the European Union which enshrines certain political, social, and economic rights for EU citizens and residents into EU law. Article 34 of the Charter of Fundamental Rights of the EU, is devoted to social security and social assistance. Paragraph 3 reads:

In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Community law and national laws and practices.”

“Under the Charter, the European Union must act and legislate consistently with it and the European Union’s courts will strike down legislation adopted by the EU’s institutions that contravenes it. But the Charter does not extend the competences of the EU and the Government is accordingly content with the position on housing.

“In terms of future negotiations on the directive, until exit negotiations are concluded, the UK remains a full member of the European Union and all the rights and obligations of EU membership remain in force. During this period the Government will continue to negotiate, implement and apply EU legislation.

“I hope that this analysis will be of assistance to the Committee and as ever I am happy to consider any further questions that may arise”.

Previous Committee Reports

(a) Twenty-Eighth Report, HC 343–xxvii (2015–16), chapter 7 (13 April 2016), ; Seventh Report HC 342–vii (2015–16), chapter 6 (28 October 2015) (b) Ninth Report HC 5–viii (2009–10), chapter 1 (27 January 2010); Fifteenth Report HC 19–xiii (2008–09), chapter 3 (1 April 2009); Thirtieth Report HC 16–xxvii (2007–08), chapter 8 (16 July 2008).

96 Letter from Caroline Dinenage to Sir William Cash, 19 September 2016.

97 Seventh Report HC 342–vii (2015–16), chapter 6 (28 October 2015).

98 The text of this letter will be loaded shortly here on our Committee’s website.

99 Letter from the Minister for Women (Victoria Atkins) to Sir William Cash, 24 April 2016.

100 The Minister refers to the difficulty for individuals to self-identify. We understand that that to mean identifying what are the protected characteristics at issue in any case and therefore the combined grounds of discrimination.

101 Proposal for a Directive on the approximation of the laws, regulations and administrative provisions of the Member States as regards the accessibility requirements for products and services: (37371), 14799/15 + ADDs 1–8, COM(15) 615. Our last Report on this proposal was published on 31 January 2018: Twelfth Report, HC 301–xii (2017–19), chapter 1 (31 January 2018).

102 See Written statement to Parliament “Equalities red tape challenge and reform of the Equality and Human Rights Commission: outcome”, laid in the House of Commons by Theresa May on 15 May 2012.

103 This should be a reference to the previous Minister’s letter of 23 March 2016.

Published: 12 June 2018