Previous Section Back to Table of Contents Lords Hansard Home Page

EU Proposals to Combat Discrimination: Select Committee Report

12.13 p.m.

Lord Wallace of Saltaire rose to move, That this House takes note of the report of the European Union Committee on EU Proposals to Combat Discrimination (9th Report, HL Paper 68).

30 Jun 2000 : Column 1178

The noble Lord said: My Lords, when I arrived this morning someone in the Whips' Office said to me, "I hope you have had a good breakfast. Those who speak for too long in the debate will be extremely unpopular with the Doorkeepers who do not like to go home too late on a Friday". It is, however, an indication of the importance of the issue that we are debating that there are so many speakers in the debate. Indeed, we have for a Friday a relatively full Chamber.

The issue before us is a major innovation in EU legislation, more modest in scope than the Charter of Fundamental Rights, but raising some of the same issues as were debated on Friday 16th June, of the regulation of individual and collective rights above the level of the state. Its origins lie in a provision of the Treaty of Rome, as amended by the Amsterdam Treaty, hardly noticed at the time of ratification, but pressed forward by the Irish presidency, resisted by the previous UK government and accepted by our present Government when they came into office in May 1997. Article 13 of the Amsterdam Treaty states:

    "within the limits of the powers conferred by it [the Treaty] upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation".

For those who may wish to question the use of the phrase "religion or belief" in the proposed framework directive, I note that it is used within the treaty itself.

The Commission brought forward proposals under this new article at the end of November 1999. Four documents were forwarded to our committee: a general and introductory "communication"; an "action programme" proposing the exchange of information and of national best practices among member states in combating discrimination; and two directives. The first directive, colloquially known as the "race directive", relates to implementing the principle of equal treatment between persons, irrespective of racial or ethnic origin. The second, colloquially known as the "framework directive", relates to establishing a general framework for equal treatment in employment and occupation.

Our report is primarily concerned with the two directives. Your Lordships will be aware of the difference between a regulation and a directive. Community regulations are directly applicable in national law; Community directives leave room for national governments to adapt their national legislation into the appropriate form while still reflecting the diversity of national practices and cultures.

The British Government forwarded the directives to the scrutiny committees in the Commons and the Lords in January this year. Your Lordships' committee held its first evidence session on 2nd February and completed an extensive investigation in April. The report was published on 16th May, with a recommendation for early debate. I set out the dates in detail because the first directive, the race directive, was agreed by the Social Affairs Council of Ministers on 6th June, before this House had had

30 Jun 2000 : Column 1179

the opportunity of a debate, and indeed before your Lordships' EU committee had lifted its scrutiny. Furthermore, it is anticipated that the framework directive may be adopted at the next Social Affairs Council, on 26th October. In terms of European policy-making, this is fast-track legislation.

Before turning to the substance of the report and to the important question of the haste with which the Council of Ministers is moving towards legislation, I should like to thank all those who contributed to the inquiry. It was in some ways the most contentious inquiry that Sub-Committee F has conducted in the two and a half years since I became its chairman. We agreed a unanimous report, but, as will no doubt become evident in the course of the debate, there were diverse opinions in the sub-committee on several aspects of the directives.

For me, it was an extended tutorial on a field in which I was not in the least expert, although, thankfully, there were many on the committee far more expert than I. The noble Lord, Lord Rix, knows much more about disability law than most of us know about most subjects. I am extremely glad that he is with us today to say something on that subject. The noble Lord, Lord Dholakia, and the noble Baroness, Lady Whitaker, are experts on racial discrimination. The noble Baroness, Lady Turner of Camden, is an expert on discrimination in employment. We had as our special adviser Professor Evelyn Ellis and as our legal assistant Leigh Gibson, who also continued giving what I regarded as a crash first-year course on anti-discrimination law.

I should also like to mention, because it is relevant to the whole question of the expansion of committees in this House and of the recruitment of Clerks, that it was a new Clerk's first report. Christopher Johnson worked extremely well for us. With regard to the role of the Clerks' department and whether the shortage of Clerks holds back the expansion of committees, our experience in the past few months has been that with the help of the department new recruits can come up to speed very fast.

Noble Lords: Hear, hear!

Lord Wallace of Saltaire: My Lords, some large issues of principle lie behind the directives: first, the expansion of EU jurisdiction versus the principle of subsidiarity; secondly, acceptable degrees of diversity of national cultures and practices, against the desirability of uniform standards across the single market and the wider European Community; thirdly, the acceptability and legitimacy of Europe-wide rules on such sensitive issues as discrimination, overriding national legislation and different national traditions; and fourthly, acceptable variations in the implementation and enforcement of common rules once agreed. I hope that in future Her Majesty's Government will ensure that the question of how those rules are to be implemented and enforced in all member states will be discussed as much as is the principle of the legislation. The fifth point is the

30 Jun 2000 : Column 1180

desirability of sufficient flexibility in defining such very complex concepts as discrimination, disability, social advantage, or genuine occupational qualification, versus the dangers of legal uncertainty and "fuzzy" law which threaten to condemn governments and companies to years of expensive litigation before national and European courts.

We approached the inquiry cautiously and, in some cases, even sceptically. Nevertheless, as a whole the committee welcomed both the race directive and, with a number of further qualifications, the intentions behind the framework directive. For me, the evidence received from the CBI was the most persuasive. The CBI stated in its written evidence:

    "Our members believe that the directives meet the subsidiarity and proportionality tests and deserve support. The directives address genuinely transnational issues and will help complete the single market. Guaranteeing common levels of protection throughout Europe will help tackle unfair competition and make it easier for European citizens to work abroad and move freely between member states".

The CBI, which is not exactly a Left-wing organisation, went on to say:

    "The UK has one of the most comprehensive systems of discrimination law in Europe ... Significant experience in this area means the UK is well placed to lead the debate in Europe and our priority should be to ensure that the directives create a clear and workable framework".

Several of our witnesses made it clear in particular that British citizens of Asian or Afro-Caribbean ancestry cannot at present be assured of equal treatment as they go about their business across the European Union, often working for British-based multinational companies, and that the race directive, therefore, offers real and immediate advantages to British citizens. There is anecdotal evidence of coloured British citizens having difficulty finding housing in some other EU states. There was a particularly troubling case of a British Asian woman being held in gaol in Belgium for some months and then released without charge.

The race directive largely follows British legislation. We have been assured that its implementation will require only minor amendments to British legislation. The number of British citizens who work elsewhere in the EU, or who travel across the EU for study or leisure, continues to rise year by year. The extension of civil liberties protection across the EU is, therefore, clearly in Britain's interests and will ensure that other states bring their domestic law and practice up to the standard already in place in the United Kingdom and in particular in Ireland and the Netherlands.

The committee had many more reservations about the framework directive, as will no doubt become clear in some of the speeches that are to follow. As drafted, it is not entirely consistent with existing EU law on sex discrimination, which is an area of discrimination over which the Communities have had clear competence since the Treaty of Rome. It is not entirely consistent with the race directive, since it also touches on race discrimination. The interim response from the Government, which I read this morning, assures us that that inconsistency will be removed. It is also a

30 Jun 2000 : Column 1181

hybrid measure; it falls between two stools in providing a number of detailed commitments as well as an overall framework for future legislation.

Furthermore, the references to "religion or belief" and the treatment of discrimination on the ground of age open up large areas of political debate which require time to build a consensus and clarify their implications. The commitment to end age discrimination, on which I hope that the noble Baroness, Lady Greengross, will speak, is hedged with so many qualifications as to be of doubtful value as it stands. The looseness of the definition of "disability", to which the noble Lord, Lord Rix, may refer, may leave too much space for legal uncertainty.

A number of members of the committee were particularly concerned about the phrase "religion or belief". My understanding of the evidence given to the committee is that the main target is discrimination against non-Christians, formerly Jews and now Muslims. We received some extremely useful evidence from Sir Robert Cooper about experience in Northern Ireland. This is an area in which the British experience is very useful and worth while. We live in secular states with secular societies. Now that throughout the European Union the Muslim population is well over 10 million, discrimination on the ground of religion is something that the EU must take into account.

We touched briefly on the subject of third country nationals and how far this measure is applicable to them, not to mention asylum seekers and refugees. The whole question of the treatment and status of third country nationals in the European Union is one to which I suspect that the committee may wish to return in a future inquiry.

Many witnesses made it clear that they would have preferred a broader framework directive, with the main focus thereafter on sectoral legislation appropriate to each field. There has, for example, been some discussion about bringing forward a more specific directive on disability within the next two to three years which would allow for a more informed discussion on the distinctive aspects of combating discrimination in this field. Some of the witnesses said that they would rather have an imperfect directive now than wait in hope for a better one in three or four years' time. My conclusion is that it is better to get it right rather than rush into badly drafted legislation which may prove difficult to implement and leave large areas of legal uncertainty.

That brings me back to the question of the speed of decision making and the necessary time for parliamentary scrutiny. I refer to the process as opposed to the content, although I take it as a general rule that the process of passing legislation requires greater care when the content is particularly novel or sensitive. The Treaty of Amsterdam strengthened the commitment of the Council of Ministers to allow adequate time for national parliaments to scrutinise and respond to proposals from the Commission. The proposals have been amended since they were first presented. The committee has not yet seen the amended proposals.

30 Jun 2000 : Column 1182

I am much less convinced that speed is as necessary on the framework directive as on the race directive. I understand the special circumstances in which the race directive was pressed through and, in principle, that directive is welcomed. However, I am not convinced that Austria-bashing is the best basis for rushing through major advances in Community legislation before those other national parliaments which have to move furthest to amend their national law and practice have had time to absorb the implications. I am certainly not convinced that it is right to follow the same path on the framework directive which clearly requires extensive further discussion.

Gesture politics is no more desirable at European level than at national level. A number of member governments have been playing out their own domestic politics against the difficult political situation within Austria. The Dangerous Dogs Act syndrome is not good in British legislation; it is equally bad in the European context. Rushed law is bad law. A situation in which each six-monthly presidency wants to produce its own trophy without considering questions of implementation and consent is not a good basis on which the EU should act.

Before I sit down I ask for some commitments from Her Majesty's Government. I ask that the revised draft of the framework directive be provided in good time for the committees of both Houses. As the negotiations have progressed, the provision of documents in such a sensitive area has not been adequate. The revised text should be provided for scrutiny. We also ask Her Majesty's Government to resist the adoption of the directive at the October Social Affairs Council unless it has by then been extensively revised and a number of areas of uncertainty clarified.

Further, we ask Her Majesty's Government to pay full attention in the discussion to issues of national implementation, particularly in those countries where practice currently falls well below British standards. We ask the Government to ensure that the contradictions between the framework directive as drafted and existing national and community legislation, for example on the burden of proof, are clarified and the inconsistencies removed; and that the contradictions between the two directives on such matters as the definition of indirect discrimination are sorted out.

These directives represent a major step forward in EU legislation. In principle, we welcome them. This is a field in which British law is ahead of most member states and where the extension of UK practices throughout the EU is a desirable objective. We welcome the intentions of the framework directive and wish to see protection against discrimination at Community level extended to cover disability, religion and the other areas mentioned.

However, there remain many questions for further debate. The framework directive opens up new areas of anti-discrimination law which would extend UK legislation and which require more study. Ministers should ensure that the implications are thought

30 Jun 2000 : Column 1183

through before the legislation is put in place rather than waiting to discover those implications through extensive litigation in the years which follow. I beg to move.

Moved, That this House takes note of the report of the European Union Committee on EU Proposals to Combat Discrimination (9th Report, HL Paper 68).--(Lord Wallace of Saltaire.)

12.30 p.m.

Baroness Whitaker: My Lords, first, I pay tribute to the noble Lord, Lord Wallace of Saltaire, who, with great skill, if I may respectfully say so, piloted a wide-ranging committee to a common view on the generality of our topic.

We on these Benches were proud that the Government signed up to Article 13 of the Amsterdam Treaty, the base of the directives, knowing that now proper attention could be paid to the serious potential of discrimination, particularly that of race, to undermine political stability and social order, to penalise individuals and to hamper employers in harnessing skill and talent most effectively.

The Portuguese presidency of the EU, to its great credit, succeeded in gaining political agreement, with unanimity, to the race directive and the action programme, as required by Article 13, very soon after their issue as drafts, as part of the culmination of its presidency on 6th June. I understand that they were formally adopted yesterday.

Credit should also be given to the UK negotiators who had to move very fast to ensure that UK interests were accommodated in the final text--so fast that, as the noble Lord, said, they had to jump ahead of scrutiny at some points. Of course I endorse the constitutional weight which must be given to the scrutiny committee, especially since I became a Member of your Lordships' House and of the sub-committee. However, having been on similar negotiating teams in the past, I understand the need for speed and commend their commitment to the success of the negotiation which turned out, I think, broadly as signalled to the scrutiny committee. No doubt the UK negotiators were also in a good position because of UK experience in that kind of legislation.

I turn to the race directive. The fact that a diverse committee like ours reached a common view in support of the directive is testimony not only to the skill of our chairman but also to the acceptance by the whole committee of the importance of the subject. The Portuguese presidency and the member states of the EU obviously felt the same way.

Why is the race directive so important? For us here in the UK the amendments have been rightly described by my honourable friend the Minister, Mike O'Brien, as minor changes. The same will be the case for some other member states; but not for all. The latest report of the Council of Europe's Commission against

30 Jun 2000 : Column 1184

Racism and Intolerance, which has studied all the members of the European Union as well as its wider membership, comments on,

    "persistent racial and ethnic discrimination in ... employment, housing and the provision of services ... closely linked to a lack of effective anti-discrimination provisions".

It singles out as particularly disturbing,

    "prejudice against Muslim communities ... manifested in violence, harassment, discrimination, general negative attitudes and stereotypes".

We speak here of states where the UK sets up businesses, owns interests and sends our people to train and work, in the course of which they need to obtain housing, educate their children, and so on. I recall cases from the European mainland which came to my attention as chair of Camden's Race Equality Council: the British Asian woman who was told not to come back to her training placement if she wore her headscarf; and the British architect who turned down a job because he was told that black people could not get housing. If that kind of case, and worse, becomes a thing of the past and there is equivalent protection across the EU, there will be a clear gain in equity and justice as well as a levelling of the playing field. It is a big step towards building a Europe which we can all be proud to inhabit.

Even more far-reaching, however, is the impact of the race directive on the countries which are applying for EU membership. As regards several of the current applicants there have been reports of behaviour of a racially discriminatory kind, to say the least. Often it may be more the case that a whole culture puts lives at risk and is responsible for murder, arson and brutal harassment--let alone preventing a fair chance of education, housing or work.

Now that the race directive has been adopted, it is part of the acquis communautaire which all candidate nations must implement before they join the Union. If it had slipped into an unnegotiable limbo there would probably not have been another chance for several years to put race discrimination into the acquis communautaire, by which time applications would have been well advanced. This is perhaps one of the most heart-warming consequences of the adoption now of the race directive. Poland, Hungary, the Czech Republic and Slovenia, for instance, will need to prepare national legal frameworks which allow their minorities, including the numerous Roma people who have perhaps suffered the most, redress against discrimination and harassment.

The distressing occurrence of large numbers of Roma people abandoning their homes in peacetime and fleeing from one state to seek refuge in another could also be a thing of the past. I should add that applicant governments are not in the main unwilling to change. They have ratified the European Convention on Human Rights and know that human rights culture has become a dynamic process in Europe. But legislative requirements help to concentrate the mind.

Legal redress is, of course, a backward-looking activity. It is an incentive to the perpetrator to defend past misdeeds before improving practice. Cultural change relies on a stimulus to more forward-looking

30 Jun 2000 : Column 1185

thinking. That is provided by the action programme. It is, therefore, particularly constructive that the action programme has also been so quickly adopted. I should like to ask the Minister how the UK is taking part in the action programme to the benefit of those states which want assistance.

I should also like to ask the Minister to explain why nationality is exempt as a ground for discrimination in the directive when that is not so in our own race relations legislation at present. This is particularly a problem for third country nationals, who are covered by the directive.

With regard to the second, framework, directive, it should now be easier to negotiate than it was in its original form because the common ground in approach between it and the race directive has been accepted and overlaps removed. This leaves time to concentrate on the more novel and difficult issues.

Legislating against age discrimination would be new for the UK and one should not underestimate the problems of reaching practical solutions. Yet official projections show that by 2010 the proportion of economically active people over 45 will rise to 39 per cent of the labour force. That is a European pattern. I hope that we will come to think that discrimination, other than on grounds of competence, will be as wrong in respect of age as any other characteristic.

Finally, two grounds of discrimination appear to pose theoretical rather than practical problems in this country: religion and sexual orientation. Most European member states, other than the UK, outlaw religious discrimination and many have constitutional guarantees. But prejudice, notably against Muslims, is widespread.

Apparently insoluble problems of the definition of religion, strangely absent in charity law, are raised. There is much concern about how religious organisations would be affected. However, exemptions can be negotiated and applied. The principle of "reasonable accommodation" by employers, as in disability legislation, could ensure that employers continue to manage their organisations without upheaval. Resistance to making a reality of outlawing religious discrimination may now be on the way out.

Prejudice about sexual orientation, however, is quite unabashed, not least in this country. Opinions are voiced and, more importantly, jobs are denied and services withheld explicitly on grounds of sexual orientation in terms which, I suggest, would be widely held to be unacceptable if similar ones were used about religion, race, age or disability.

A recent TUC survey showed that more than 75 per cent of the workpeople questioned felt that employers were wrong to discriminate on grounds of sexuality. These are people who work with gay colleagues and speak from experience. This matter has yet to be properly resolved in the UK and I hope that the draft directive will soon be adopted and of use.

In conclusion, the Government have still quite a task in negotiating the framework directive. Their interim response to our report suggests as much. A

30 Jun 2000 : Column 1186

good pace is important for the same reasons of application to the candidate nations, so that the French presidency Council of Ministers can arrive at political agreement. I urge my noble friend the Minister to give a similar commitment to the successful negotiation of the framework directive as was achieved with the race directive.

12.42 p.m.

Baroness Young: My Lords, this is an important and timely debate. My attention was first drawn to the report by my noble friends Lord Pilkington and Lord Griffiths of Fforestfach. As the report says, the proposals in it, if adopted, would have an extensive impact in the UK where our own domestic legislation on employment at present covers only discrimination on grounds of race, gender and disability. I was interested to read and to hear that as regards those issues our employment law is ahead of other countries. The proposals before us will add age, religion and sexual orientation.

Today, I wish to concentrate my remarks on the framework directive on employment, which gives great cause for concern to religious people. Perhaps I may say at the outset that I received the Government's, admittedly interim, response to this very important report only one hour before the debate. I have had no time to study it properly or to give it the consideration it deserves.

I have long recognised the valuable work done by the House's EU Select Committee and its sub-committees--work which is widely recognised. But on this occasion I believe that the committee has glossed over the drastic restrictions on religious freedom which will be imposed by the directive and its effect on literally thousands of people, including children. In terms of employment, the directive will bring to an end the ability of religious bodies to organise their own affairs. Only the posts of ordained ministers or denominational religious education teachers are likely to be protected.

I hope that the Government fully understand that this is an issue about which many people care deeply. It crosses political parties and affects people of all religions, Christians, Jews, Hindus, Muslims and Sikhs. No doubt, many people heard the Sikh broadcast yesterday. I and my noble friends Lord Pilkington and Lord Griffiths have written to the Home Secretary, the Secretary of State for Education and Employment, the Foreign Secretary and the noble Baroness, Lady Scotland, to express our grave concerns. I am grateful for the responses from the Home Secretary and the noble Baroness, Lady Scotland, and I expect to hear from the others soon.

Let me set out my concerns. First, any legislation dealing with rights must deal with a conflict of rights. The directive talks about the right to equality. The human rights legislation gives the right to religious freedom. The directive before us comes down on the side of secular belief of equality--I shall carefully re-read what was said by the noble Lord, Lord Wallace, but I was surprised by his statement that we live in a

30 Jun 2000 : Column 1187

secular society--against the right of religious people to organise their own affairs. In this case, an anti-discrimination measure is itself discriminatory. I am reminded of that wonderful passage in Animal Farm when the pigs produce the dictum, "All pigs are equal, and some are more equal than others". In this case, someone has decided that the right of equality is more equal than the right of religious freedom. At the end of the day, judges will be able to determine the employment decisions of religious bodies. They will be able to impose a secular ethos on religious organisations. Churches and other faiths will lose the right to employ staff who share their beliefs.

My second concern is that the directive will override existing protections that have been written into the Human Rights Act and the School Standards and Framework Act 1998. As regards the Human Rights Act, the House was good enough to pass amendments which I moved to protect Church schools and religious bodies from the effects of that legislation. Although the amendments were subsequently overturned in another place, they led the Government to think again and to introduce two key amendments of their own.

The first amendment, now Section 60 of the School Standards and Framework Act, gave a clear and unequivocal right to Church schools to appoint staff on the basis of their faith. As the Select Committee report points out,

    "the directive will lead to problems for Church schools. There will be a direct conflict with Section 60. Church schools will lose the right to appoint Christian teachers in posts other than that of religious education".

Perhaps I may remind the House that Church schools are very popular with parents and that some 33 per cent of all maintained schools are Church schools, educating several million children.

The second amendment to legislation to protect religious bodies from the incorporation of the convention on human rights can be found in Section 13 of the Human Rights Act. Where there is a conflict of rights involving Article 9 on the freedom of religion, Section 13 requires a court to have particular regard to the importance of the freedom of religion.

Perhaps I may remind the noble Baroness, Lady Blackstone, what she told the House on 7th April 1998:

    "The debate over spiritual, moral, social and cultural development is not peripheral to educational attainment and achievement but at the heart of it. Church schools, under-girded by a community of faith with a common sense of belonging and a shared belief, are able to focus on education in a wide sense, providing a framework of shared values and pastoral concern in the setting of a belief system. That is perhaps something of the secret of their success".

She the went on to remind the House what her noble and learned friend the Lord Chancellor had said on the Human Rights Bill, namely;

    "It was entirely right that a governing body should appoint or dismiss a senior staff member of a school whose beliefs or way of life were not appropriate to the school concerned. An amendment embodying a similar provision was passed in your Lordships' House at Third Reading".

30 Jun 2000 : Column 1188

That is what we have already achieved. Yet we see before us proposals which appear to contradict what Parliament said only two years ago.

I shall, of course, listen with great care to what the Minister says in her reply this afternoon. However, not only must she look at education and schools, important as they are; she must also look at churches in the whole. Churches--particularly popular ones--have ordained ministers, but most churches with a reasonably sized congregation need to employ administrative staff. My own church employs three or four such people in one way or another. What is their position? What is the position of the employer? The same would apply to synagogues or mosques which obviously employ staff in the same kind of capacity.

Let us take the whole hospice movement. Under the directive, a Christian hospice could be sued for its present employment policy. The directive would mean that atheists could apply for medical posts on the same basis as Christians. The directive would mean that a doctor who was committed, for example, to a campaign for euthanasia could sue the hospice if his application for a job was turned down because of his beliefs. Yet the hospice movement, founded by that great lady, Dame Cicely Saunders--herself a Christian--is built on the fundamental rejection of euthanasia. Hospices are about caring for the dying.

Many other organisations have a religious ethos. I name but a few of them: the Salvation Army, the Church Army, the Catholic Children's Society, the Sue Ryder Foundation, Tearfund International Relief. I could go on. The purpose of those organisations is to help people, irrespective of their faith. All of them prefer to have Christian staff. In the case of the Boys' Brigade and Traid Craft, all those in leadership or management positions are required to be Christians. Some have only Christian staff.

The Church of Scotland's Board of Social Responsibility--one of the biggest charities in the United Kingdom--has 36 homes for the elderly, projects to help the mentally ill or those addicted to drugs or alcohol and day care units and carries out community projects and counselling work. Yet it insists that all its staff are committed Christians. The board believes that its compassion springs from the Christian faith, and the directive will destroy that Christian ethos. There are many such organisations, possibly a Jewish housing association or a home for retired clergy, and others I have not listed.

However, the directive is so intrusive that it reaches right into the home. Let us take a common problem often discussed today--the question of a childminder or a nanny. Surely whoever employs such a person for the care of his or her own children has the right to require that the employee shares the same values. Under this directive, parents will be unable to insist that their childminder is a Christian. One must ask whether most parents would want either a homosexual or a lesbian. All the examples share one thing in common: it is their ethos which makes them strong, yet it is their ethos which is completely undermined by this new employment directive.

30 Jun 2000 : Column 1189

There are protections. Article 4(1) excepts jobs where there is a genuine occupational qualification which would otherwise be caught by the directive. That was clearly believed to be inadequate. That is why Article 4(2) was introduced, mainly at the request, I believe, of the German Government. Article 4(2) attempts to make clear that organisations can require staff who have a direct religious teaching role to be practising members of their denomination. As the report makes clear, the problem with that is that Article 4(2) has the side effect of narrowing the jobs which are exempted from the directive only to those involving people with a direct religious teaching role. That is precisely the point made by paragraph 188 of the committee's report. Article 4(2) should be clarified. At the very least, it must be significantly widened. Unless that is done, religious bodies might be in a better position without it.

In conclusion, I am not greatly encouraged by letters I have received either from the Home Secretary or from the noble Baroness, Lady Scotland. The Home Secretary made the point that the directive could probably be brought in after a three-year period. That is a very short time to wait and merely postpones the day when religious groups lose a central aspect of their religious freedom. The noble Baroness, Lady Scotland, said in her letter:

    "We shall seek to ensure during the negotiating process on this directive that religious institutions can continue to discriminate on the basis of religion and belief where it is justifiable to do so".

Who will decide that? These are very serious matters which cannot be settled by weasel words.

I say that these are serious matters because I believe profoundly that this part of the directive is another nail in the coffin of the whole Judaeo-Christian basis of our society; indeed, we have heard that this afternoon. That basis has informed our institutions, our culture and our whole way of living for well over 1,000 years. Yet, with this kind of legislation, we are throwing all that over, day after day. This particular aspect is deeply divisive: it will set one individual against another and it will ask judges to make decisions which are not for them and, indeed, should not be for them. It could well bring the courts into disrepute.

I understand that the proposed employment directive requires unanimity in the Council of Ministers. I understand that Mr John Major, when Prime Minister, did not support it. I hope that the Government will reconsider and listen carefully to what the noble Lord, Lord Wallace, said, and that they will resist the adoption of the directive in October. I hope that they will let us see a revised draft in good time. It is an extremely serious matter. I should like them to throw out this section. Our whole history and culture is quite unlike that of continental Europe and I do not see why we should have them telling us how to behave in our own institutions.

12.57 p.m.

Lord Lester of Herne Hill: My Lords, the debate on the report of the committee, chaired by my noble friend Lord Wallace of Saltaire, is timely. It is obvious from the report that the committee was divided in its

30 Jun 2000 : Column 1190

approach to the EU proposals to combat discrimination. None the less, the report makes a useful contribution to public understanding of the issues.

It is a matter for celebration that the Community is acting at last to introduce new laws to combat the worst forms of unfair discrimination. That is not a nail in the coffin of the Judaeo-Christian society; it is an affirmation of the values of all the great religions of the world, not only the Jewish and Islamic faiths but also the Christian faith upon which the European Convention on Human Rights was founded. As I shall explain briefly in a few moments, I believe that the noble Baroness, Lady Young, for whom I have the greatest respect, is misconceived in the objections that she has raised. I hope that what I say will help to allay her fears, although I doubt that they will.

I begin with a few introductory remarks. Effective anti-discrimination measures are needed urgently within and across the European Union. There is also a need to adopt, within the wider Council of Europe framework, Protocol No. 12 to the European Convention on Human Rights as a general guarantee of the fundamental human right to equal treatment without arbitrary or unfair discrimination, matching the existing obligations in the international covenant.

I am delighted that the Committee of Ministers of the Council of Europe has recently adopted the text of the 12th protocol. It is to be hoped that the UK Government will sign the protocol at the Rome Conference in November and that they will then speedily ratify that protocol.

While we await ratification of the 12th protocol, as the noble Baroness, Lady Whitaker, said, it is excellent that the Council of Ministers has formally adopted the race directive and that a wider framework directive is proposed to tackle not only racial discrimination but also discrimination based on religion or belief, disability, and age or sexual orientation as regards access to employment and occupation. I should point out that those are all grounds now forbidden by law in the Republic of Ireland, not a secular state but a state, like other European states, with a very heavy bias towards Christianity and the Catholic faith.

Those proposals will enhance significantly the rights of everyone within the EU to have effective remedies against those examples of unfair discrimination. In spite of criticisms and reservations made by the committee about some details of the proposals--not all of which criticisms and reservations I agree with--it is encouraging that the committee as a whole believes that law should guarantee the principle of equal treatment on all those grounds. I hope that the Government share that view and that they will introduce reforming measures to remove the serious defects in the present incomplete, inconsistent and weakly enforced piecemeal set of anti-discrimination statutes in this country. The time is over-ripe to extend British law, as well as European law, to eliminate discrimination and promote equality of opportunity regardless not only of sex, race, colour and disability but also age and sexual orientation and other status.

30 Jun 2000 : Column 1191

The time has come to make the law readily intelligible and to secure compliance in practice. I welcome the inclusion of sexual orientation within the scope of the framework directive. Existing EC law provides no protection for gay and lesbian people against unfair discrimination in the workplace. The proposals in the framework directive will close that gap.

Equally, the proposed prohibition on religious discrimination, subject to sensible and proportionate exceptions on grounds of genuine occupational qualification and the need to protect religious organisations in Article 4(1) and (2) of the directive, will fully extend the protection of our anti-discrimination law to adherents of all the Christian Churches, Jews, Muslims, Hindus, Sikhs, Buddhists and other religious groups.

I shall not take time in dealing with all the arguments which the noble Baroness made but perhaps I may say briefly that, after marching us up to the top of the hill by indicating that the directive will impose drastic restrictions on religious freedom and will be over-intrusive and threaten religious freedom in a completely abhorrent manner, the noble Baroness recognised at the end of her speech that Articles 4(1) and (2) contain very broad exceptions.

That is dealt with admirably clearly in the report in paragraphs 112 and 188 to 189, at pages 43 to 44. I agree with what the committee states there. It points out that in Northern Ireland we have had anti-discrimination legislation in the religious field since the government of the noble Baroness, Lady Thatcher, strengthened the law in 1989 in the Fair Employment (Northern Ireland) Act. There are exceptions in that legislation, as there are in the recent legislation in the Republic of Ireland, to cater for the needs of religious organisations and their adherents. Article 9 of the European Convention on Human Rights specifically guarantees the right to religious freedom and Article 6(2) of the Treaty of European Union is premised upon Article 9 of the human rights convention and the other guarantees. With respect, it is wholly misconceived to suggest that this directive would violate Article 9 of the human rights convention or threaten religious freedom.

One has to think only of the other countries of the European Union, from Ireland in the West to the Catholic countries, if I may describe them in that way, of mainland Europe to realise that it is, with great respect, quite ludicrous to think that those who have drafted this framework directive could possibly have in mind any threat to religious freedom.

I agree that the exceptions might be clarified but it is quite wrong, as in the Christian Institute reports in The Times today, to raise hysterical and misguided fears.

In the remainder of my remarks, I shall concentrate on the race directive alone. As the noble Baroness, Lady Whitaker, emphasised, there is no country in Europe free from the scourge of racial discrimination and harassment which continues to afflict the inhabitants of every state.

30 Jun 2000 : Column 1192

Law is not a panacea; it depends for its success upon a wide range of voluntary measures and a popular will to make it work. But it is a necessary condition for the promotion of racial equality across Europe that there is comprehensive, accessible, user-friendly, and effective anti-discrimination legislation, which provides really effective remedies to the victims of racial discrimination throughout the Union, and in the candidate countries.

I strongly favour close parliamentary scrutiny of proposed EU measures. But because of the pressing need for this directive and the political imperative for its speedy adoption, like the noble Baroness, Lady Whitaker, I believe that the Government were right to take the lead at Council on 6th June in giving support for the race directive, even though it had not cleared scrutiny in both Houses. It would have seriously undermined the UK's position as a leading country in combating race discrimination if the Government had been forced to block progress. The circumstances really were exceptional and justified the speed with which the Government acted.

The committee observed in its report that the directive may prove particularly significant in protecting the rights of British citizens who are from ethnic minorities living or working in other member states. But the benefits of the directive are surely much wider and should be seen from a pan-European perspective.

One may illustrate that with the example of the Roma, referred to by the noble Baroness, Lady Whitaker. I declare an interest as co-chair of the European Roma Rights Center, based in Budapest. The Roma are the most deprived minority in Europe. Almost everywhere, their fundamental human rights are threatened. They are targets of racial harassment and violence. They suffer systematic discrimination in employment, education, healthcare, and the provision of goods and services.

There are some 5.6 million Roma living in central and Eastern Europe, and about 1.5 million in western Europe. Some are settled and are citizens of member states; others seek asylum as refugees because of well-founded fears of persecution. Everywhere across Europe they face acute problems of racial discrimination of a kind that will now have to be tackled by member states taking the necessary measures required by the directive.

The protection provided by those national measures will be even more valuable if they are extended to cover more than activities within the competence of the European Community. The directive may well act as the catalyst for the development across the EU of race discrimination legislation along the lines of the British Race Relations Act 1976.

Nor will the benefits of this directive be confined to Roma living in the existing member states of the EU. The majority of the 5.6 million Roma living in eastern Europe dwell in states such as the Czech Republic that have applied for membership of the EU. As all applicant states are required to align their domestic legislation with that of the EU as part of the accession

30 Jun 2000 : Column 1193

process, the Roma and other ethnic minorities will benefit greatly from the adoption of national measures to give effect to the aims of the directive. This EU legislation is a historic break-through in the long battle to achieve racial equality and justice for Europe's ethnic minorities.

We are justly proud in this country of the fact that we were the first to introduce legislation to tackle racial discrimination in the areas covered by our Act, with the Commission for Racial Equality to be the strategic enforcement agency. But in some respects, the directive improves upon our own legislation. It is not a complete carbon copy. The concept of indirect discrimination in Section 1(1)(b) of our Act is expressed in narrowly technical language, more like an algebraic theorem of Euclid or an income tax Act than a human rights measure. In my view, the directive improves upon that with a more generous concept which tackles the real problems of discrimination.

I shall not take the time of your Lordships in going through all of the provisions in the directive. Almost all of them are admirable. The provisions on burden of proof will be consistent with our law but need modification. Another good example of a good British export which is in the directive is the provision relating to independent equality agencies, which will have significant powers. I agree with the committee's comments on that in paragraph 160. There are also important provisions on sanctions. I hope that other member states will take various leaves out of our race relations book in implementing the provisions.

The one regrettable example of a thoroughly bad British export is the hurriedly drafted and recently inserted exemption for the treatment of third party nationals. The committee rightly emphasised in paragraph 104 of its report the need for any exception for immigration control to define the circumstances in which immigration officers should be entitled to discriminate on grounds of racial or ethnic origin or any of the other grounds listed in Article 13. The exception that has subsequently been included in Article 3(2) is unnecessarily broad and threatens to undermine the principle of equal treatment without racial discrimination. I need the Minister's help on this, but as I read the exception, it is not intended to permit racial discrimination except for immigration control. I hope that the Minister is able to confirm that that is the Government's understanding of that potentially loose and dangerous exception. If it were to extend beyond immigration control, as on one reading it might, it would have very bad consequences.

There is a wealth of experience in this country that we can put at the disposal of the public authorities, ethnic minority organisations and human rights NGOs of other European countries. The directive provides a great opportunity and gives us the tools. We should put them quickly to good use here and across Europe. In his recent essay in the Fabian Review, Mr Gurbux Singh, the new chair of the Commission for Racial Equality, wrote:

30 Jun 2000 : Column 1194

    "We are faced with a clear choice. Either we can celebrate our diverse society, be at ease with ourselves and benefit from our diversity, or we can become a band of disparate tribes at odds with ourselves and each other. At this point in our history both options confront us".

That choice confronts not only this country, but Europe and the wider world. It is our task to ensure that the second option cannot come to pass and that the first option becomes a defining element of 21st century Britain and Europe.

1.12 p.m.

Lord Rix: My Lords, I apologise to your Lordships and to the Minister for the fact that I shall probably not be in my place when she responds to the debate. The reason is a double booking. It is particularly appropriate that it is a theatrical charity that has an earlier claim on my time this afternoon. I am making my contribution to this debate on discrimination in the field of disability, as requested by our persuasive chairman of Sub-Committee F, the noble Lord, Lord Wallace of Saltaire. I bow to his wishes and I crave your Lordships' indulgence.

The European flag has 12 yellow stars. It reminds me of the words of the Russian writer Dostoevsky:

    "If this small pebble does not have meaning in the universe, neither does the brightest star".

Likewise, if Europe's 37 million disabled citizens do not have full citizenship of the European Union, why do we fly the European flag?

Unfair discrimination remains a reality for disabled people in all member states of the Union. On behalf of Mencap, of which I am president, I welcome the European Commission's proposed non-discrimination package, brought forward under Article 13 of the Amsterdam Treaty. The proposed directive establishing a general framework for equal treatment in employment and occupation will help to protect disabled people's employment rights.

At present, the picture is very uneven. Some member states have taken only limited action to overcome the many barriers, including discrimination, that disabled people face with regard to employment opportunities. Like the European Union Committee, I believe that a directive that states common minimum standards across the European Union can only be a good thing, especially as the Union welcomes new member states. Countries such as Poland and Hungary will be obliged to start working towards the same goals in enhancing the opportunity for disabled people to access the labour market.

It is good that the proposed directive covers both direct and indirect discrimination and imposes an obligation on employers to make a reasonable accommodation to meet the needs of people with disabilities, but I ask your Lordships to note the committee's response in paragraphs 91 and 93, on page 27, where we say:

    "The terms 'reasonable accommodation' and 'undue hardship' in the framework Directive require at the very least clarification by a list of examples, along the lines of the examples of 'reasonable adjustment' supplied in section 6(3) of the DDA, and drawing upon the interpretation by national courts of the concept of

30 Jun 2000 : Column 1195

    'reasonableness', where this appears in national legislation. In addition, it should be made clear that the duty to make an 'accommodation' falls on the employer."

Paragraph 93 goes further, saying:

    "The Committee cannot accept the Commission's defence of Article 2(4) of the framework Directive. The way it is drafted, it is impossible to escape the logical implication that an 'accommodation' could be 'reasonable', at the same time as it involved 'undue hardship'. Therefore the introduction of 'undue hardship' creates an unnecessary second line of defence, which should be removed".

We all say "hear, hear" to that.

I doubt that the non-discrimination proposals go far enough. Disabled people experience discrimination not only in relation to employment, but in numerous other areas that fall under the competence of the community, such as education, access to goods and services, consumer protection, social protection, social security, transport, housing, health and participation in decision-making. The full list is even longer than that. I therefore welcome the commitment made by the Commissioner for Employment and Social Affairs that the Commission will shortly begin work on a disability-specific directive that will protect disabled people's rights in all those other areas. We look forward to that specific directive being brought forward for adoption in 2003, which will be designated the European year of disabled persons--a year when disabled people can begin to become full citizens of Europe.

I confess to some disappointment that, in preparation for those important actions, the European Commission has failed to present a specific non-discrimination programme to focus on the real concerns of disabled people who face discrimination daily. There is a danger that the proposal to bring together the five discriminated groups mentioned in Article 13 of the Amsterdam Treaty in one action programme will lead to competition between the five groups for the funding.

And what a small amount of funding there is to support five groups over six years. As president of Mencap, I am compelled to continue campaigning for additional resources to be made available to ensure the provision of services, equipment and other resources required by disabled people to enable their full and equal participation in the programme.

Much of Mencap's work at EU level is done through a Brussels-based European NGO that brings together our sister organisations in every member state. It is called Inclusion Europe. A Mencap-supported self-advocate is one of its proud vice-presidents. Imagine the loss if such an organisation, which has represented the needs of people with a learning disability across the Union since 1988, were to lose its funding and thus its existence.

That is the situation that we face, as the European Commission proposes to allocate very limited core funding to only one pan-disability umbrella organisation--the European Disability Forum. It has not allocated one euro to the impairment-specific

30 Jun 2000 : Column 1196

European NGOs, such as our own, overlooking entirely the great expertise that they provide to EU policy-makers and legislators.

Despite its best efforts, how can the European Disability Forum fully represent the needs of people with learning disability; people with autism and people with rare diseases? Simply, it cannot effectively. It can represent only the wider interests of the European disability movement without the specialised expertise and input of the impairment specific, more specialist NGOs, such as Inclusion Europe, Autism Europe or the European Blind Union. As Mencap's chief executive, Fred Heddell, reported to the committee,

    "The Forum is made up of these individual groups. The strength of the Forum lies in the fact that it is made up of these individual groups, and unless these groups are supported, the strength of the Forum will be severely weakened".

Therefore, we believe that funding must be earmarked in the action programme for many of these groups to continue their excellent work.

Without organisations such as Inclusion Europe, full citizenship for people with a learning disability will be only a dream--never a reality. Discrimination against all the different groups mentioned in Article 13 must be eliminated in the UK and across all member states. I believe that the 9th report of the Select Committee on the European Union, Sub-Committee F, and the recommendations contained therein, will speed the ending of discrimination against disabled people. Only then will the European flag fly with meaning for all citizens in the European Union.

1.21 p.m.

Lord Tomlinson: My Lords, I welcome the report of the Select Committee and I add my congratulations to the noble Lord, Lord Wallace of Saltaire, and his committee on the excellence of their work which has provided the basis for this timely debate. I also note the interim government response that was available only today. It shows some signs of haste in its preparation. On that basis, I comment on it no further, other than to say that I look forward to the full response by 25th July.

I specifically welcome the fact that the report strongly endorses the choice of directives by the Commission, rather than regulations, thus leaving member states the necessary degree of flexibility in adapting legislation to their own circumstances.

Article 13 of the EC treaty, as amended by the Amsterdam Treaty, gives the European Community a legal base for actions to combat discrimination. I believe that the four proposals that we have seen have used Article 13 effectively and properly. I note that the committee expressed its belief that the proposals are likely to facilitate free movement, to limit unfair competition and to enhance the success of the single market. I largely share that view, but should like to express a concern in relation to racial equality that this package of proposals will not remedy.

The EU treaty created the concept of a citizen of the Union, defined in terms of citizenship of a member state of the Union. One is a citizen of the Union only

30 Jun 2000 : Column 1197

if one is a citizen of a member state of the Union. In the United Kingdom, we have possibly 2 million permanent legal residents, with voting rights, with the right to seek election in local and parliamentary elections, who are not citizens of the United Kingdom and, in consequence, do not receive the benefits of citizenship of the European Union.

I know that there are great sensitivities in this area, but there are also serious reasons why this matter must be addressed, as failure to do so will continue to lead to discriminatory practices. Those 2 million permanent, legal residents of the United Kingdom largely originate from the Indian subcontinent. For 15 years I represented possibly 50,000 of those people in the European Parliament. The consequence of having the rights of citizens, but without actually having citizenship, is that inside the European Union, and in the race directive, they will be entitled to the rights available to third country nationals. That means that before they enter Europe to get those rights as third country nationals, they suffer the discriminatory practice of having to apply for a visa to travel from Birmingham to France or from Birmingham to the Netherlands. That matter has to be addressed.

Paragraph 177 of the report states:

    "The Committee understands that the framework Directive, like the race Directive, will give protection to third country nationals".

I welcome that. It continues:

    "For the sake of consistency and legal certainty this should be made explicit in the Preamble".

I support and welcome that. Equally, I hope that now we can address a problem that has been with us too long in relation to a large number of citizens, a number of legal residents who have all the benefits and rights of citizens, other than the name. They are people who live in the United Kingdom, work in the United Kingdom, pay taxes in the United Kingdom, vote in the United Kingdom, hold public elected office in the United Kingdom, and who contribute substantially to the social, economic, political, religious and cultural fabric of our society.

Having said that, I believe that the report is correct to welcome the establishment, across a wide range of discriminations, of minimum common standards. That will mean much in those member states currently lacking any statutory provision. Those common standards are essential to underpin the fact that we are a European Union based on values--fundamental values, non-negotiable values, values the base of which, however, is now being extended. The Commission's proposals go beyond the well-established provision for the equality of treatment between the sexes, to all those other areas that have been referred to by noble Lords: racial and ethnic origin, religion or belief, sexual orientation, disability and age.

I have concentrated my remarks, quite deliberately, on racial discrimination. I acknowledge that the European Council meeting in Tampere in Finland clearly called not only for the fight against racism and xenophobia to be stepped up, but also specifically

30 Jun 2000 : Column 1198

invited the Commission to produce the proposals to so do. That was a clear recognition of a serious tide of racism, both in Europe and within applicant countries. This report is an especially welcome, pragmatic response to those demands.

Not all the Commission's proposals are in perfect form; not all the definitions are perfect; and some currently are unacceptable. But as the text of the proposed Council directive on racial and ethnic origin reminds us, in paragraph 1 of the preamble,

    "the treaty on European Union marks a new stage in the process of creating an ever closer union among the peoples of Europe".

We shall endorse that when we endorse the directive in relation to racial discrimination.

That is also precisely what we agreed to in this country when, in 1975, by an overwhelming majority, we maintained in the referendum the determination to continue our membership of the European Community, as it then was, on the basis of it being an ever-closer union of the peoples of Europe. This package of directives seeks to ensure that it is not an exclusive, ever-closer union of some of the peoples, but that it is an ever-closer union of all of the peoples, including those who currently suffer substantial discrimination in our society.

Of course, any package of proposals as radical as these will produce problems and paradoxes. We have a situation in which proposals are unanimously demanded at a European Council meeting, yet many of the people who make that demand are the same people who call upon the European Union to do less and to do it better. There is a demand in the proposals to restate the principles of subsidiarity. But some of the people who make that demand are the same ones who abused the principles of subsidiarity, doing nothing about the problems when we had full and exclusive responsibility for them.

What we have now is a set of circumstances that should create minimum common standards. They should enhance citizens' rights. They should facilitate freedom of movement and limit unfair competition. Applicant countries are particularly welcomed as being included in the action plan, and there will be created by that action plan a clear understanding of the obligations of future membership of the European Union.

As I say, problems abound--problems of definition and of inconsistencies of concept of indirect discrimination, which vary. Omissions occur in draft directives and problems arise over some proposals. I refer particularly to the proposed reversal of the burden of proof.

However, in conclusion, let me say that Article 13 of the treaty on which this is based is clear. The demands of the European Council are clear. The Commission, often maligned when we discuss European politics, has in fact fulfilled its responsibility and obligation to put forward the proposals. The noble Lord, Lord Wallace, and his committee served the House and the process of scrutiny well. The responsibility now lies in the hands of the Government and the Council of Ministers; it lies with the European Parliament adequately to respond

30 Jun 2000 : Column 1199

to the proposals so that we can produce directives which provide real European added value to the fight against discrimination in all its varying forms. On that basis, I warmly welcome the committee's report.

1.33 p.m.

The Lord Bishop of Southwark: My Lords, let me start by agreeing with the Select Committee's report and giving full support to the race directive. In my diocese last year we requested the Commission for Racial Equality to examine the structures of the diocese, and are debating its helpful report at our Synod next week. I believe that the race directive is very much to be welcomed.

However, I cannot be alone in thinking that, in considering the religious matters before your Lordships' House in the proposed framework directive, we have been here before, several times, particularly in the Human Rights Act 1998 and the Schools Standards and Framework Act 1998. So, bearing in mind the arguments put forward in your Lordships' House when debating both of those Acts, it will not surprise your Lordships to know that there is considerable anxiety in the faith communities concerning Articles 4(1) and 4(2) of the proposed framework directive. The noble Baroness, Lady Young, fully developed some of those anxieties.

As the noble Baroness indicated, they may be well illustrated through what Mr Idarjit Singh, a well-respected British Sikh leader, said yesterday in a "Thought for the Day" broadcast on the "Today" programme. Perhaps I may briefly repeat what he said for the benefit of those noble Lords who missed the broadcast.

Mr Singh posited the case of a born-again Christian determined to share his religious faith, or perhaps a gay man, open and proud about his sexuality and practice, being appointed as a teacher in a voluntary-aided Muslim school. There might be fears, Mr Singh suggested, that such an appointment would so undermine the Muslim ethos of the school that parents might lose confidence in the school and its future might come under threat, to the detriment of the pupils.

There are several elements in that constructed story which may prove helpful to our deliberations today. First, there is no question but that Churches and other faith communities strongly support the pursuit of human rights for all people. The dignity of the individual human being lies at the heart of the belief of all the great world faiths, each individual being precious to the creator God. It is therefore a little embarrassing to be seen to be arguing against any of the proposals of the directives. But as Article 13 of the Human Rights Act 1998 makes clear, the freedom of thought, conscience and religion is a fundamental human right itself and must therefore be set alongside other human rights.

Sometimes, then, a balance must be sought between a number of different human rights. In the case of Mr Singh's illustration, the balance is between the right of

30 Jun 2000 : Column 1200

a well-qualified teacher to seek employment in any school, and the right of a voluntary-aided Muslim--or indeed Christian, Jewish or Sikh school--to employ teaching staff who they believe would strengthen rather than weaken the religious ethos of their school.

Your Lordships' House well understood that argument when the School Standards and Framework Act 1998 was being debated. That is why Section 60 of the Act enabled a voluntary-aided school to give preference in employment to those teachers whose religious opinions are in accordance with the tenets of the school. Under the proposed directive, I am advised that that would probably be possible for the small group of teachers who are teaching religious education, or possibly for the head teacher, but not for the more general teaching staff. But whether we are talking about a Christian, Muslim, Jewish or Sikh voluntary-aided school, the religious ethos of the school is set not solely by what is taught in religious education lessons, but by the whole style and belief of the school community, and every teacher helps to strengthen or weaken that, not only by their behaviour, as is acknowledged in the Government's draft response, but also by their belief.

I focused on the possible effect of the proposed directive on voluntary-aided religious schools. But similar arguments might be put forward concerning other institutions sponsored by faith communities such as hospices.

A response to those legitimate anxieties of the faith communities might be, "Well the courts would be sympathetic to such considerations and we should therefore trust the courts to come to a sensible judgment". But to contemplate a number of legal battles, proceeding perhaps over several years, fills me with horror. The faith communities simply do not have sufficient resources to squander them in costly court disputes.

Faith communities quite understand that they cannot push their own concerns for religious rights without reference to the human rights of others; a balance must be agreed and maintained. But the proposed directives are unbalanced. I agree with paragraph 112 of the report of the Select Committee and to add to the paragraph quoted by the noble Baroness, Lady Young, the committee says,

    "This is an extremely sensitive issue, which needs to be examined in much more detail, and the Committee ... urge the Government to explore with the Commission ways to provide effective protection (possibly by means of an express exemption from the provisions of the Directives) for the rights of religious organisations, particularly schools".

Paragraphs 23 to 25 of the interim government response that we have just received does not seem to me to be an adequate response to the Select Committee's request. In these days of joined-up thinking, I see no reason why the Government should not press for provisions in the framework directive, which are at least as clear and protective for faith communities as those in Section 60 of the School Standards and Framework Act 1998. I look to the Minister to give that assurance in her response to the debate.

30 Jun 2000 : Column 1201

1.40 p.m.

Lord Pilkington of Oxenford: My Lords, as the author, with the help of the Clerks, of the oft-quoted paragraph 112 on page 31 of the report, I felt, as I wrote and thought it, that I ought to say a little about it. Basically, I am pleased that in a tentative way the noble Lord, Lord Lester, shares my view. We find Article 4(2) inadequate and quite dangerous in the way described by the right reverend Prelate. I shall, to some extent, underline what my noble friend Lady Young and the right reverend Prelate said.

First, religious groups, faith organisations, are not only schools; they are also hospices, hospitals in some cases, Christian think-tanks, and so much more. Secondly, I underline and endorse that the faith communities want the same protection for their employees in those bodies as is given to teachers in the School Standards and Framework Act. The protections in that legislation are very extensive. You can appoint, promote and dismiss, according to the tenets of the religion. Indeed, the Act says quite specifically that those concerned may terminate employment if the employees are not living according to the tenets of that religion.

I underline that point because when Article 13 was being discussed in the other place the Foreign Secretary gave an assurance to a questioner that religious schools need not worry about directives that might emerge from the implementation of this article; in other words, he gave a promise from the Dispatch Box, as can be seen in House of Commons Hansard of November 12th at cols. 914 and 915.

It is pretty obvious--I expect the Minister to respond to this--that Article 4(2) does not give the protection that religious organisations and these schools enjoy at present. It says that "occupational activities" that are--this is the important point--"directly and essentially" related to religious belief shall be exempt from the directive. Thus it is fairly obvious that priests, leaders of Sikh temples, leaders of mosques, ministers and teachers of religious studies are protected. But I doubt--in fact, I am certain--that it does not give protection to other staff. I have been strengthened in my opinion by an interview broadcast on the "Today" programme this morning. A Mr Fielding from the European Union was asked what would be the position of a secular teacher of mathematics. He said that the Church could only justify applying the religious direction if that teacher was involved in pastoral work. But here we enter into a morass; for example, was he a tutor? There is the opening for the litigation that the right reverend Prelate so fears. I hope that the Minister will insist, or use what influence she has, to get the Government to negotiate a re-wording of Article 4(2).

One does not have to be a great historian to know that the integrity of religious bodies to employ their own staff and fulfil their ideology has been an essential part of European democracy for a century or more. Even when the great Bismarck--the "Iron Chancellor"--tried to disturb that integrity as far as concerns the Catholic Church, he had to give way in

30 Jun 2000 : Column 1202

the end. I know that the Government have no intention of doing so. But the inadequate wording of Article 4(2) could allow what I fear to happen. That would certainly result in many expensive legal actions, which, as we can see from the situation in Canada, Churches could not afford.

I note that this committee, the work of whose chairman I admire and upon which comment has been made, was very diverse; its members certainly hold very diverse ideologies. But support for amendment was unanimous. I hope that the Government will take note of that and ensure that an important principle is embodied in the outcome of this matter.

1.44 p.m.

Lord Bridges: My Lords, I am a member of the sub-committee chaired by the noble Lord, Lord Wallace of Saltaire. I am grateful to him for the skilful way in which he steered us through an intricate and difficult scrutiny. I subscribe to this report, which also owes much to some of the members of our group who are particularly knowledgeable--indeed, expert--in this area. Their contribution has been quite invaluable to us. I do not have such expertise myself, and I wish to make a few observations about some of the more general issues that arise concerning the significant effects which these proposals may have on the relations between the member states of the European Union and the European institutions.

When we embarked upon this topic, it soon became clear that discrimination may take a different form in each member state and that each society has certainly adopted different measures to deal with it. In one such area--race discrimination--substantial migration into this country made us conscious of the problems at a rather earlier stage than in some other European countries. Consequently, we introduced legislative measures and set up institutions sooner than elsewhere. I do not say that there is any virtue in this, but rather that we have had a longer period to develop our approach. So it is intrinsically difficult to apply the one-size-for-all model that is the norm for European legislation.

However, one might think in terms of common principles and objectives, leaving it to member states to apply them in the manner best suited to their circumstances. When I first studied the framework directive from this standpoint, it seemed to me to follow just this approach. But it is accompanied by the equal treatment directive, designed to combat all forms of discrimination in the context of employment in the workplace by means of 15 articles. Our committee records its opinion that the proposals meet the test of subsidiarity, and we certainly received much authoritative evidence to that effect. But, the longer I brood on this subject, the more uneasy I become.

In an area as delicate and important as this, implementation should surely be left to national governments. That is the whole purpose of the principle of subsidiarity. A state that falls short of the standards set can be subjected to the disciplinary procedures and legal restraints that are in place. In

30 Jun 2000 : Column 1203

truth, it would seem that the high hopes we entertained of the value of inserting the principle of subsidiarity into the treaty have not been borne out in practice.

By chance, I read this week in a newspaper a report of a remark of President Chirac's, made, I think, in the course of his very successful recent visit to Germany. He said words to this effect:

    "We have the principle of subsidiarity but none of us knows what it means".

That is not a surprising observation from a French politician, because France operates on the contrary principle of centralisation in Paris of all decisions. This has been the case since the founding of the Capetian dynasty in the year 987. But that has not been the preferred course in this country--at least not until quite recently.

Sooner or later we may have to test the principle of subsidiarity in the European Court in a serious way if we wish it to operate as the word itself indicates. For the present, I should just observe that, in this area where it would have been useful to rely on subsidiarity, the opportunity has not been taken by the Commission, although the recital or "preambular" section to each directive refers to Article 5 (the subsidiarity clause in the Treaty on European Union).

As it is, our committee does emphasise in paragraphs 31 and 39 of the report the need to strike a balance between flexibility and certainty--a veiled reference, I believe, to subsidiarity. Noble Lords who are interested in this topic may refer to the reply made to my question by Mme Quintin for the European Commission, which is to be found on page 19 of the evidence section of the report. She would certainly disagree with what I have just said.

I am also concerned at the effect which the adoption of these directives might have--

Next Section Back to Table of Contents Lords Hansard Home Page