32. IMPLEMENTING PROPOSALS: ACTION
PLAN FOR FREE MOVEMENT OF WORKERS (12122/98)
Letter from Lord Tordoff, Chairman of
the Committee, to The Rt Hon Tessa Jowell MP, Minister for Employment,
Welfare to Work and Equal Opportunities, Department for Education
and Employment
The Committee has considered the above proposals
and is concerned about the Government's response to the proposed
non-discrimination clause (Article 1a). The response is summed
up in Annex A to the Explanatory Memorandum: "This proposal
is unacceptable to the UK because it would cut across current
Government policy relating to the entitlement to Social Security
and other benefits, where unmarried and same sex partners are
not recognised as being equivalent to a spouse". We would
welcome answers to the following questions:
The proposed Article 10.1 of the Regulation
states that only a worker's "spouse or any person corresponding
to a spouse under the legislation of the host Member State"
shall have the right to install themselves with the worker. Article
10.3 would extend only to the persons defined in 10.1 and 10.2
the "financial, tax, social, cultural or other advantages
available to nationals". On what basis, either in the proposals
or in ECJ case-law, do the Government consider that the non-descrimination
clause would cut across current entitlements in the way they suggest?
These proposals were prepared before
the Treaty of Amsterdam came into force. In your response to the
House of Commons European Scrutiny Committee (4th Report, Session
1998-99) you suggest that Article 40 (formerly 49) of the EC Treaty
does not offer a proper legal base for Article 1a of the proposed
Regulation. However, it is clear that in drafting Article 1a the
Commission were echoing the almost identically worded Article
13 of the EC Treaty, which empowers the Council to take action
"to combat discrimination based on sex, racial or ethnic
origin, religion or belief, disability, age or sexual orientation".
Has the Government's objection to Article 1a changed in the light
of the Amsterdam Treaty?
Are the Government opposed in principle
to the application of Article 13 of the EC Treaty to the areas
of social security and the free movement of workers? Do they envisage
any future legislation to be brought forward under Article 13
which might affect their policy on entitlements to social security
or other benefits?
The Commons Scrutiny Committee raised similar
questions in its Report; we note that a reply has recently been
received. However, there are questions of principle which are
not satisfactorily answered in that reply. Although these proposals
have not been taken forward by the German or Finnish Presidencies,
there are now new proposals under Article 13 for Directives on
Racial Discrimination and on Employment Discrimination. We would
therefore welcome a prompt response both to our general questions
of principle and to our specific questions on the content of the
current proposal. In the meantime we are maintaining the scrutiny
reserve on this proposal.
2 December 1999
Letter from The Rt Hon Tessa Jowell MP,
Minister for Employment, Welfare to Work and Equal Opportunities
to Lord Tordoff, Chairman of the Committee
Thank you for your letter dated 2 December.
I am sorry for the delay in responding but the issues you raised
impinge on the responsibilities of other Government Departments
as well as this one and it has been necessary to consult with
the Department of Social Security and the Home Office to co-ordinate
the reply to your letter. My response to the Committee's questions
is set out below.
As regards the interaction of Article 1a with
Article 10, I am advised that Article 10.3 would be unlikely to
confer on a non-spouse partner with the right to install him/herself
along with the worker (under Article 10.1), welfare benefits or
other rights not enjoyed by a non-spouse partner of a national
under domestic legislation. The purpose of Article 10.3 would
appear instead to be to put members of the worker's family on
a par with nationals in the same position. So, for example, if
a social benefit were available under domestic law in certain
circumstances to the same-sex partner of a national, it could
be not be denied to the same-sex partner of a worker where the
same circumstances applied. In essence, this is a provision outlawing
discrimination on the grounds of a person's status as a European
Union (EU) worker.
However, the new Article 1a would go much further
and may override the comparison with nationals required by Article
10. It appears to be designed to have a free-standing existence,
and not simply to complement other substantive provisions of the
Regulation such as Article 10.3. As a provision of a Regulation,
it would be directly applicable—and so automatically form
part of UK law: see (what is now) Article 249 of the EC Treaty.
It is couched in very broad terms without any exceptions or limitations.
Moreover, it is not made clear whether both direct and indirect
discrimination are covered, and there is no definition of ambiguous
terms such as "disability", "belief" and "sexual
orientation".
The effects of the proposed Article on UK law
are therefore wholly unclear. It could well confer a directly
effective, general right on EU workers and members of their family
not to be discriminated against on any of the grounds specified,
irrespective of whether such discrimination was permitted against
nationals under domestic law. Indeed this appears to be the intention
of the Commission: their explanatory note states—
". . . it should be noted that the types
of discrimination envisaged by Article 1a are in themselves obstacles
to free movement and therefore inconsistent with Article 39 of
the Treaty. Freedom of movement is aimed at securing the full
integration of the migrant worker and of members of his family.
Europe's cultural, social, religious and ethnic diversity suggests
that the protection currently offered against nationality-based
discrimination is not enough to allow effective freedom of movement.
Consequently it is important to underline that all forms of discrimination
run counter to the ideal of European integration intended by Article
39 of the Treaty."
One possible effect of Article 1a is that a
same sex partner of an EU worker would have to be given welfare
benefits which, under domestic law, are payable only to a partner
of the opposite sex. I am advised that an argument to this effect
would be far from untenable. This is the basis of the Government's
concern, expressed in Annex A to the Explanatory Memorandum, about
article 1a cutting across current entitlements.
I would also mention in this context that the
meaning of the phrase "person corresponding to a spouse under
the legislation of the host Member State" in the proposed
new Article 10.1(a) lacks clarity. UK law currently only gives
limited recognition to an unmarried partner (eg in areas such
as income-related benefits), housing or succession rights). It
does not currently recognise an unmarried partner as the full
equivalent of a spouse. It is not clear whether this limited recognition
would be sufficient to mean that a partner of an EU worker is
"a person corresponding to a spouse" for the purposes
of Article 10.1(a).
On the question of the legal base for Article
1a the Government remain of the view that Article 40 of the EC
Treaty is not a proper legal base for the proposed Article 1a
of Regulation 1612/68. Article 13 of the Treaty—under which
the unanimous approval of Member States is required (unlike measures
under Article 40 which can be passed by a qualified majority vote)
provides the appropriate legal base for measures designed to combat
discrimination based on race, religion, disability, sexual orientation
etc.
For the reasons set out above, Article 1a is
in any event unacceptable in its present form. The Government
would, however, be prepared to consider revised proposals for
a provision of this nature, brought forward under the proper legal
base in a form that would not be directly applicable, and which
set out clearly what its effects would be.
In relation to the application of Article 13
the Government broadly welcome the Commission's recently published
proposals for measures under Article 13, which include draft Directives
on Employment and Race. They are an important contribution to
combating discrimination and exclusion throughout Member States
and accession countries. The Government are keen to ensure that
the protection enjoyed by citizens in this country applies throughout
the EU, and we will support the Commission in bringing forward
effective action to combat discrimination in Europe as a whole.
We will carefully scrutinise the detail of the proposals to ensure
that they have appropriate effect.
The draft Directives are still at an early stage
and we do not presently know what they will ultimately contain.
Furthermore, once adopted they would have to be transposed into
domestic legislation. It is, therefore, too early to say what
their effect will be on social security and other benefits.
However, I can confirm that the draft Directive
on race covers employment and social security (amongst other things).
The Home Office are in the lead on this; an Explanatory Memorandum
was submitted early in January and officials gave evidence to
your committee on 2 February.
14 March 2000
Letter from Lord Tordoff, Chairman of
the Committee, to The Rt Hon Tessa Jowell MP, Minister for Employment,
Welfare to Work and Equal Opportunities, Department for Education
and Employment
I am writing to thank you for your letter of
14 March on the above proposals. Sub-Committee F has looked again
at the proposals and at your letter at its meeting on 22 March.
The members of the Committee accept the force of your argument
that the effect of the proposed new Article 1a is "wholly
unclear".
The Committee has therefore decided to clear
the proposals from scrutiny. However, we would like to be kept
informed of any further developments in negotiations on the proposals.
23 March 2000
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