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Lord Tebbit: I am most grateful. My noble friend set out in broad terms the position of the Conservative Party and its opposition to discrimination. However, just before that he raised some enormously interesting questions and asked where the Government would stand on some of them, such as those relating to Church schools, and so on. However, I am no longer quite sure where the Conservative Party stands on those issues.
Lord Moynihan: I am sure that the Conservative Party stands very firmly and clearly on those issues and would find considerable if not total agreement with my noble friend in the answers to many of the questions that I put forward. However, perhaps I could make a clear and telling point in that context. In my view--and I know my noble friend will agree with me--it is a matter for the Houses of Parliament to consider the answer to that important question and for a decision to be made in this Parliament. My worry is about the implications, especially the legal implications, of another body determining the answers to those questions without recourse to the views expressed in this place.
I mentioned the Public Order Act 1986 as an exemplary measure. It is right also to recognise the Criminal Justice and Public Order Act 1994 which, for
example, made the publication of racially inflammatory material an arrestable offence and created the new offence of intentional harassment. Now, in opposition, we remain ready and willing to support any sensible and effective measures that the Government may take to combat discrimination. We believe that problems of discrimination, especially on such sensitive questions as race and religion, are best dealt with through national legislation. Legislative provisions to deal with discrimination need to be carefully tailored to the particular circumstances and traditions of each member state. The exact nature of problems of discrimination depends on the country in which those problems occur. This is an extraordinarily sensitive area and requires very sensitive handling.I believe that our domestic legislation has always sought to reflect our particular circumstances. The great disadvantage of the provisions in Article 6a (new Article 13) is that they do not meet that essential requirement. It is yet another example of an ill-fitting "one size for all" measure, tacked approximately into place for general use from Italy to Ireland. Therefore, we do not believe that the European Union is the right context for a general clause prohibiting discrimination on the grounds of gender, sexual orientation, race, religion, age or disability in that way.
Why do I say that? Perhaps it would be better if I were to pose that in the form of a question to the Minister. It is critical that we look to the legal basis. I would be grateful if the Minister could confirm that this article enables the European Court of Justice to intervene, go beyond specific legislation and act on the basis of the treaty language that we find here. For example, could the European Court of Justice give direct application to the article? Could a complaint be brought before the ECJ on the basis of Article 13 and the general principles laid down under it? Can the Minister help me by giving a specific and categoric assurance that that court will not be able to intervene on the basis of this article unless and until there are specific legislative provisions under it? I hope that that is the case, but it would be most helpful if the Government could clarify the position for the purposes and the benefit of the Committee.
We on this side of the Committee wanted to see co-operation on racial and other discrimination issues achieved. We wanted to reach agreement on those issues under the third pillar. However, it seems that the introduction of the article into the treaty would give the European Court of Justice jurisdiction and that it is a treaty article which could be taken into account by the ECJ in reaching decisions on complaints brought before it. I would welcome the Minister's response to that issue.
I am aware that we were discussing an enabling measure which is not, at this stage, a directive or binding in law and which, as I understand it, will not change any Act of Parliament or any measure covered by such an Act. I am also aware that decisions taken, based on the provisions of the measure, must, as I mentioned earlier, be adopted by unanimity. Yet its general catch-all provisions and ambiguous definitions nevertheless open up a minefield of social and ethical
dilemmas which could have far-reaching implications for the traditions and beliefs of this country. For example, does the Minister believe that the magistracy should be opened up to adults under the age of 27, as could happen under the age provisions of this article? Should doctors be able to refuse fertility treatment to women over 40? Should the institution of marriage--as I mentioned earlier--be restricted to heterosexual couples? As regards religious groups in the United Kingdom, all at present can technically refuse to admit individuals to membership on the basis of their religious belief. Mosques, for example, are allowed to employ only practising Moslems. The Roman Catholic Church is allowed to ordain only men into the priesthood. I do not seek to debate these detailed points but to ask the Minister's views on the application of the article to them.Can the Minister give examples of the kind of appropriate action (which I mentioned at the outset) that this article will entitle the Council--after consulting the European Parliament which has a veto in this area--to take with regard to the relevant areas of discrimination? Of course, such an article has merits and drawbacks. Its merits are its good intentions. However, those good intentions should be reflected in the individual legal frameworks of member states. All states should be encouraged to ensure that their frameworks are adequate. I firmly believe that national domestic legislation should be introduced to cover key questions--I have mentioned many--not least the need for members of racial minorities to travel freely throughout the Union without suffering discrimination. But if countries which do not have such legislation prove reluctant to introduce it, the unanimity requirement in this article--which is rightly part of the provision--would prevent those countries being obliged to do so by any action under the treaty. If such an objective was the raison d'etre for this article's inclusion in the treaty, in that situation it is effectively rendered useless.
The drawbacks and the unknown aspects of this blanket provision have caused widespread apprehension and genuine concern, particularly given the sensitivities of the issues involved which far outweigh the arguments in favour of the inclusion of this article in the treaty. I hope that the Government will inform the Committee of the position they are taking on these points. In terms of the broad principles I am at one with colleagues on all sides of the Chamber as regards the importance of tackling these measures. However, I believe that the focal point for tackling them should be the national parliaments, and that there are real dangers--I hope that I have mentioned many of them--as regards uncertainty and the language that is employed. I hope that the Minister will be able to answer my questions.
6.30 p.m.
Baroness Symons of Vernham Dean: My noble friend Lord Whitty expressed his regret earlier this afternoon at the absence of our noble friend Lord Shore of Stepney. I am sure I speak for the whole of the Government Front Bench in wishing the noble Lord, Lord Shore, a speedy recovery from what I understand
is an extremely painful condition. I hope that he will return shortly to give us the benefit of his wisdom on this matter as on so many other issues.We have had a wide-ranging and interesting debate on Amendments Nos. 13 and 50. First, I shall concentrate on Article 6a and Amendment No. 13 which pertains to it. The new clause provides a legal base for Community measures to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation. As such it represents a new power to adopt by unanimity legislation in fields where the Community already acts, such as employment and social policy. This is welcome to the Government. It is also welcome to the noble Baroness, Lady Williams of Crosby, and to my noble friend Lord Desai. I had thought that it was also welcome to the noble Lord, Lord Moynihan, but towards the end of his peroration I was in some doubt of that.
The Government have always supported the fight against unfair discrimination in the United Kingdom and across the European Union. While this country already has relatively advanced anti-discrimination legislation such as the Race Relations Act, the Disability Discrimination Act and the Equal Pay Act, the same cannot necessarily be said of other member states. We should not claim that our domestic legislation is perfect in every respect, but we are in the vanguard on much anti-discrimination legislation. We are confident that the experience of our domestic laws will help to shape EU legislation in a way that brings positive effects in Europe.
It has been suggested in this Chamber this afternoon that issues of such sensitivity should be handled only at national level. Some Members of the Committee have argued that only national governments can take proper account of national sensitivities. While it is true that incidents of discrimination differ between member states, many are common problems. To take one example, racism is a blight across Europe. In discussion of this provision in another place a number of speakers referred to the discrimination suffered by their black and Asian constituents when they travelled in Europe. Most notably the honourable Member for Leeds, North gave an example of two of his constituents, one of whom had been born in St. Kitts and another of whom had been born in Karachi, who had experienced difficulties when travelling in Europe.
Before I joined your Lordships' House I was the general secretary of a Civil Service trade union. I am proud of that record. Unlike some Members of the Committee I do not regard trades unions as the inevitable and awful instigators of all that is wrong with industrial relations in this country. When I was general secretary of the FDA, incidents were brought to my attention of fairly middle ranking or senior civil servants who had experienced racial discrimination in different parts of Europe. When noble Lords ask what is the point of trying to do anything about this in Europe, I must point out that at the moment some British nationals suffer racial discrimination when they travel in Europe. If European legislation can help to prevent that, we should be prepared to support it. This Government are prepared to support it. Of course we shall need to
consider individual proposals when they are presented, but we believe there is an important role here for co-ordinated action at European level.
It has also been suggested that Article 6a will have direct effect and could be interpreted widely by the courts. However, that is not the case. As the noble Lord, Lord Moynihan, said, the article is clearly couched as an enabling provision for future action and is not couched as a freestanding and unrestricted principle. In itself it does not outlaw discrimination on any of the grounds that have been listed in the Chamber this afternoon. The examples given by the noble Lord, Lord Monson, were not only preposterous but also groundless. I refer to the view supported by other member states and by Justice, which is chaired by the noble Lord, Lord Alexander. I had thought that that proposition was also accepted by the noble Lord, Lord Tebbit, until he also allowed himself to be tempted into giving possible examples which would automatically be put in place by this provision. As the recent report of Justice on the Amsterdam Treaty states--
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