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Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for giving way. Do the Government accept that the material scope of the race directive being limited to issues within European Community competence gives rise to the need for the 12th Protocol to the European Convention on Human Rights to be signed and ratified so that race discrimination in
A number of speakers referred to the action programme. The current package of proposals under Article 13 includes a proposal for an action programme. The committee lifted its reserves on that and I thank it for doing so. The Government agree with the committee that the exchange of best practice will be a useful contribution to the development of equal opportunities across the EU. That will be particularly pertinent to the candidate countries.
My noble friend Lady Whitaker, the noble Baroness, Lady Stern, and the noble Lord, Lord Rix, asked about the programme. It is still being negotiated and is not yet adopted. However, funding and its allocation will be discussed in the negotiations. I can tell the noble Baroness, Lady Stern, that the action programme may operate to provide non-discrimination in the police and in the criminal justice area generally.
I turn to the employment directive. The report of the scrutiny committee draws out the Government's primary concerns. It is essential that the proposal is clear and workable, will impose no unnecessary burdens on employers, and will avoid unnecessary and excessive litigation. I agree with what was said about that by the noble Baroness, Lady Miller. Equally, we must ensure that the provisions in the directive lead to real equal opportunities for each target group.
Many of the comments in the report draw out the difficulties, particularly as regards disability and age, and identify the underlying difficulty with the directive with respect to disability. It is hard to find a single approach to equality which is workable for all areas, including this. The committee rightly had concerns that an approach which suits other equality areas will not necessarily work as regards disability. The committee was not convinced, for example, that the directive's concept of indirect discrimination would reinforce the DDA's protection.
We agree that the matter is far from clear. Under the draft directive, indirect discrimination is about the effects of the employer's provisions, criteria or practices. But under the DDA, if issues such as the employer's provisions, criteria or practices place a disabled person at a substantial disadvantage compared with a non-disabled person, the employer already has a duty to make a reasonable adjustment to rectify that.
The committee also questioned the lack of definitions and explanations of terms such as "reasonable accommodation" and "undue hardship". It questioned whether the latter was even necessary. We must explore those issues with the commission, as well as some of the more specific points raised by the noble Lord, Lord Rix.
The DDA is increasingly familiar to employers and it is working. We want to build on it. However, I am prepared to concede that other member states might want to take a rather different approach. I should not wish to impose a similar system on them if they were reluctant to accept it, but we intend to ensure an outcome that will enable us to continue to develop the approach embodied in the DDA. I hope that that will reassure the noble Lord, Lord Rix.
Equally, the "one system to suit all" approach clearly does not work for age, any more than it does for disability. The draft directive attempts to overcome this by setting out a range of justifications that are not all convincing. I am grateful to the noble Baroness, Lady Greengross, for her comments in this area. As she said, we have no corresponding UK legislation. We had decided to explore the voluntary approach before the draft employment directive was issued. We have yet to evaluate that, but I shall ensure that we keep in touch with the noble Baroness on the matter.
We have serious concerns about the practicalities of the proposals. As the committee's report states, it is unclear what ages will be covered. Moreover, in order to judge whether discrimination has occurred, one needs a comparator group. In the case of age, because everyone has an age, it is difficult to envisage what the comparator group would be or how this would work in practice.
I turn to religion--an issue that has exercised some speakers in the debate. The Government support the principle of action under Article 13 to combat discrimination on the ground of religion. They have also listened to the concerns of minority faith communities about issues of religious discrimination, including that within the field of employment. Of course, this raises difficult, sensitive and complex questions and there is no quick and easy solution. The employment directive presents an opportunity to protect individuals from discrimination on the ground of their religion. I am sorry that some speakers on the Conservative Benches have failed to recognise that. However, of course, I accept that we must get it right.
We have commissioned research to assess the current scale and nature of religious discrimination and the extent to which it overlaps with racial discrimination. I believe that the noble Lord, Lord Dholakia, asked about that matter. The results, which are due at the end of the summer, will help to inform our negotiations on the framework.
Concerns have been expressed by the committee and in this debate by the noble Baroness, Lady Young, the right reverend Prelate the Bishop of Southwark and others that the directive may limit the freedom of religious organisations to preserve their own distinctive identity. However, I believe that the noble Baroness, Lady Young, and the noble Lords, Lord Griffiths of Fforestfach and Lord Vinson, rather overplayed the dangers of this directive. It is not a missile aimed at our Judaeo Christian tradition; nor is it attacking our basic freedoms, as the noble Lord, Lord Vinson--I see that he is not in his place--claimed. When the CBI broadly welcomes the
Baroness Blackstone: My Lords, perhaps I may continue. I shall respond to the specific points made by the noble Lord in just a moment. There is a need to amend the proposals in order to protect the legitimate rights of religious organisations, and we intend to do so. We expect that many other member states will support us and we shall not agree to proposals unless we achieve a satisfactory outcome.
As the noble Lord, Lord Lester, said, the proposals are not an attack on religious freedom. They are designed to protect people from unjustifiable discrimination at work. Therefore, they aim to achieve quite the opposite of what has been implied by some speakers. Moreover, the proposed directive recognises that some jobs have a determining requirement to be undertaken by those of a particular religion.
We agree that it should be acceptable for a Church school to be able to require a teacher to be an active member of the Church in question. We shall press for amendments to the directive to ensure that there is no question of religious organisations being forced to employ people who are not members of the relevant faith, because that would dilute the maintenance of a distinctive religious ethos. This is not a matter of the UK versus the European Commission or the rest of Europe. This was always the intention behind the proposals and I am sure that many other member states have similar views.
The Government are grateful to the committee and to the noble Lord, Lord Pilkington, and others for raising their concerns over the possible limitations of Article 4 of the framework directive. We agree that in its original form it was far from clear, but we believe that it provides a basis for further negotiation to secure sufficient safeguards for religious organisations, including schools.
I point out to the noble Baroness, Lady Young, that this is not a matter of the EU dictating to us what we should do. Negotiations will continue. I should also like to point out to the noble Lord, Lord Vinson--although he is not here--that it is not a matter of fanciful views on the part of a few Commissioners. The elected governments of member states are rightly concerned to combat racism and other forms of unacceptable discrimination.
The Government also abhor unjustified discrimination on the ground of sexual orientation. Our equality statement made clear our approach. We want to avoid unnecessary regulation, adopting non-statutory measures first and resorting to legislation only if there is a clear and proven need. The equality statement referred to our code of practice on discrimination in employment based on age. We proposed, in conjunction with the Equal Opportunities Commission, to prepare a code of practice on discrimination on the ground of sexual orientation. The EOC is taking forward work on that.
I return to the concern that the employment directive might require religious organisations that believe that homosexual activity is wrong to open all jobs to practising homosexuals. The Government accept that difference in treatment in such circumstances may be justifiable. It would be unacceptable, for example, for a teacher in a Catholic school to challenge openly the teachings of the Church on homosexuality. We shall continue negotiating on that point to ensure that the directive is clear. We are also concerned to ensure that the employment directive will permit Section 60 of the School Standards and Framework Act 1998 to be maintained. I hope that that reassures the right reverend Prelate the Bishop of Southwark.
What of the way forward? We have many reasons to be pleased about the race directive. The UK has provided the model for the new directive, and there has been a tacit recognition from our European partners that we have led the way on fighting racial discrimination. When the race directive is implemented--it must be given effect within the next three years--UK firms and citizens will enjoy similar protection from racism across the EU to that which they enjoy at home. I know that that prospect is welcomed by industry and by those representing minority ethnic groups.
The Home Office will soon move forward to the next stage of the process. It intends to undertake extensive consultation exercises about how to implement the provisions. In due course, some consequential amendments will be required to the Race Relations Act. I am glad to say that they will be relatively minor.
My noble friend Lady Whitaker asked about the Government's longer-term intentions on the directive. We are still negotiating and we fully intend to reach agreement with our fellow member states. But I do not believe that I should be giving away state secrets if I said that there is a lot wrong with the original proposals. I know that there is a feeling in some quarters that this matter should be agreed as soon as possible. That is not our view. We are committed to agreement of a directive which works. If that takes time, we must spend the time.
As our policy statement of last November indicated, we want an equality regime which brings real benefits to those whom it is supposed to help. We want clarity. We do not want "fuzzy" law. We do not want to provoke an endless series of legal cases for the courts. We need to consider the impact on business and jobs. In our view, that means that the proposals in the employment directive need to be considerably improved, particularly in respect of age and disability.
I regret that I have run out of time. Therefore, I hope that I may be permitted to answer the other detailed questions, including that raised by the noble Lord, Lord Lester, in writing. Once again, I am extremely grateful to the noble Lord, Lord Wallace, for introducing this debate.
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