Select Committee on European Communities Second Report


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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