Select Committee on European Union Ninth Report



5. The concern of the states of Europe with the protection of human rights predates the creation of the European Community. In November 1950 the Member States of the Council of Europe drew up the text of a Convention for the Protection of Human Rights and Fundamental Freedoms. In so doing they endeavoured to secure the recognition and observance of rights which had already been proclaimed in the Universal Declaration of Human Rights by the General Assembly of the United Nations. However, when six of these states drew up the original Treaties establishing the three European Communities during the 1950s[4] they included no specific requirement for either the Member States or the institutions of the Communities to observe human rights. In the 1970s pressure built for the Communities to acknowledge the importance of human rights to their activities[5], and in 1977 the Council, Commission and European Parliament issued a non-binding Joint Declaration affirming "the prime importance they attach to fundamental rights"[6]. Subsequently a new emphasis on the protection of human rights was enshrined in the Treaty on European Union ("TEU"), which was agreed at Maastricht in 1992. Article F.2 (now Article 6) required the Union to "respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms …and as they result from the constitutional traditions common to the Member States, as general principles of Community law".

6. However, neither the Joint Declaration nor Article F of the TEU gave the European Community a specific competence to adopt general measures in the sphere of human rights, or, more particularly, to combat discrimination. The right to protection against unjustified discrimination is generally acknowledged to be a fundamental human right[7]. Widespread concern over discrimination, in particular over the Community's inability to take effective action against racism and xenophobia, was the driving force behind the adoption of Article 13 of the EC Treaty in 1997.

7. The lacuna in the Community's competence to act against racial and most other forms of discrimination contrasts with its history of action in the field of sex discrimination. Article 119 of the EC Treaty (now Article 141 of the consolidated Treaty) provided that Member States should "maintain the application of the principle that men and women should receive equal pay for equal work". In 1975 the European Court of Justice ruled that the principle of equal pay in Article 119 had direct effect[8], and thus gave rise to individual rights which national courts must protect. However, Article 119 extended only to equal pay. The Equal Treatment Directive was adopted in 1976 to combat sex discrimination in three broad employment-related areas: access to employment and promotion, vocational training and working conditions.[9] As the Directive extended beyond the principle of equal pay the Community had to rely on the general enabling provision of Article 235 (now Article 308 of the EC Treaty). This authorises the Community to take "appropriate measures", if such action is necessary, to achieve "one of the objectives of this Treaty", and the Treaty itself "has not provided the necessary powers." The Court of Justice, since the adoption of the Directive, has given a number of important rulings on its meaning and scope. So, for example, it has ruled that the dismissal of a woman just because she had exceeded the female retirement age (when there was a different statutory pensionable age for men and women) contravened the Directive[10]; and that the Directive precludes the dismissal of a transsexual on account of a change of sex[11]. Such judgments have had a profound effect on the scope and application of the United Kingdom's sex equality legislation-the Equal Pay Act (1970), and the Sex Discrimination Act of 1975 ("SDA")—prompting new domestic legislation to ensure consistency with the ECJ's rulings. The Community's competence in the field of sex discrimination has now been extended by the Treaty of Amsterdam, not only by the inclusion of sex in Article 13, but by a revision of what is now Article 141. This includes a requirement that the Council should "ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation"[12].

8. The example of sex discrimination legislation shows the potentially dynamic consequences that may be expected to flow from EC legislation tackling discrimination on other grounds.

9. Hitherto the Community's ability to combat discrimination on grounds other than sex has been restricted by the lack of a specific Treaty base for such action. An important exception is the prohibition of discrimination on grounds of nationality (between citizens of Member States) which has long been regarded as one of the fundamental "general principles" of Community law.[13] However, before May 1999 there was no Community-wide prohibition on the other forms of discrimination which have now been included in Article 13. Within the wider membership of the Council of Europe, Article 14 of the European Convention on Human Rights states: "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." The Human Rights Act 1998 will incorporate the rights and freedoms set out in the Convention into United Kingdom law later this year and impose a duty on public authorities not to act "in a way which is incompatible with a Convention right". The categories of prohibited discrimination listed in Article 14 are not exhaustive and so may be extended by case law to include other grounds. However, Article 14 does not contain an independent, free-standing guarantee of non-discrimination. The prohibition of discrimination in Article 14 may only be invoked in conjunction with one of the other substantive rights protected by the Convention.[14]

10. The lack of a legal base for Community action has been a source of frustration for groups representing the victims of discrimination. The United Kingdom has a relatively long history of anti-discrimination legislation. The Race Relations Act 1976 (henceforth RRA) closely followed the model of the SDA; more recently the Disability Discrimination Act 1995 (DDA) has adopted a different approach. The Race Relations (Amendment) Bill currently before Parliament would extend the RRA, and the Government has promised similar action in relation to the SDA and DDA (see below, para. 21). Further legislation, prohibiting discrimination in employment on the grounds of religious belief or political opinion, and extending a duty to promote equality to public authorities, applies to Northern Ireland[15]. However, the United Kingdom's tradition of legislation is not shared by some other Member States. Annexes V-VI of the Commission's Communication show that all Member States other than the UK have some form of constitutional provision enshrining either a general principle of equality (Belgium, Luxembourg) or a prohibition on specified forms of discrimination—most commonly on the grounds of racial or ethnic origin, religion or belief. However, the enforceability of such provisions varies, and when it comes to more detailed statutory provisions, protection against discrimination is patchy. While some Member States, such as Ireland, the Netherlands and Sweden, have wide-ranging legislation going in some respects beyond that found in the UK, others offer little or no statutory protection against discrimination. There is no uniformity. This means not only that there is little protection in some parts of the Community for the fundamental rights of, for example, the disabled or members of racial minorities, but also that the principle of free movement is likely to be compromised.

11. The Community's actions in the field of equal treatment (other than between men and women) have so far been very limited. In 1986 the European Parliament, Council and Commission issued a "Joint Declaration against Racism and Xenophobia", a measure described by one commentator as "rich in symbolic value, but lacking substance"[16]. This declaration was partly prompted by the success of far-right parties in the 1984 European Parliamentary elections. Support for far-right parties continued to grow throughout the 1990s, accompanied by a rise in racist violence throughout Europe. Successive refugee crises since the fall of the Iron Curtain, most notably in the former Yugoslavia, have led to increased immigration. Such factors have strengthened the awareness of the need to address the questions of racism and racial discrimination at Community level. But Community action has had to build on a slender legal base. Thus the decision to designate 1997 as the European Year against Racism was based on Article 235 (now 308). The Commission argued that "the continued existence of racist and xenophobic attitudes prejudices economic and social cohesion",[17] and the strengthening of economic and social cohesion was one of the Treaty objectives for Community action. Similarly, when the Council in 1997 established the European Monitoring Centre on Racism and Xenophobia[18], it made use both of the general Article 235 and Article 213 (now 284), which empowers the Commission to collect information. While the Community has been able under these Treaty Articles to adopt supportive measures of this kind, it has had no general competence to legislate to combat racial discrimination.

12. The Community has faced similar limitations on its capacity to combat other forms of discrimination. There have been various action programmes directed at disability (notably the Helios programmes), launched under the general Articles 235 and 128 (now 151), but no legislation.

13. The introduction of a specific Treaty provision addressing discrimination was one of the issues considered by the Inter-Governmental Conference ("IGC") of 1996. There was particularly strong pressure for the Community to be given the power to act more effectively than hitherto to combat racism and the linked problem of religious intolerance. As far back as 1994 the Economic and Social Committee had urged on the Commission the "need to enshrine citizens' rights in the Treaty by including a Treaty provision banning discrimination on grounds of sex, colour, race, opinions and beliefs". Around the same time the Committee of the Regions included a further category of discrimination, suggesting that the Treaty should combat "discrimination on the grounds of sex, race, religion and disability"[19].

14. In the run-up to the 1996 IGC the United Kingdom was the only Member State to be openly opposed to the inclusion of a non-discrimination article in the Treaty—despite its own relatively advanced domestic legislation in the field. The Government's White Paper on the IGC argued that "the problems of discrimination (particularly on such sensitive questions as race and religion) are best dealt with … through national legislation. Solutions need to be tailored to the particular circumstances and traditions of each Member State."[20] But while other Member States were more supportive of the idea of a non-discrimination Article, they were far from unanimous on what it should cover. In particular, there seemed to be little desire among the Member States for the amended Treaty to include any reference to discrimination on grounds other than sex, race and religion. Finland proposed a "general prohibition of discrimination, including rejection of racism and xenophobia", and similar suggestions were made by the Foreign Ministers of the Benelux states. But by early 1996 only Ireland and Greece had committed themselves to including disability in a new non-discrimination article, and MEPs observing the IGC noted that "only a minority [of Member States] at present support a reference to non-discrimination on grounds of handicap, age or sexual orientation".[21] However, the influence of the Irish Presidency in the second half of 1996 seems to have been crucial (it is notable that the Irish introduced their own very wide-ranging Employment Equality Act in 1998). In October, Austria and Italy made a joint call for the Union to "ensure non-discrimination on grounds particularly of race, colour, nationality, sex, language, religion, political or other opinion … disability, or sexual preference".[22] Following the change of Government in the United Kingdom in May 1997 a policy change took place, and the UK's opposition was removed in the final stages of negotiation leading up to the agreement of the text of the Amsterdam Treaty in June 1997. The Committee notes that there has been no significant further discussion in Parliament of these matters until this Report.

15. This was the background to the inclusion of Article 13 in the EC Treaty, as amended by the Amsterdam Treaty (see above, para. 1, for the text of Article 13). An obvious feature of the Article is that it treats all the grounds of discrimination equally. However, the summary given above of the negotiations in the IGC which led to its adoption suggests that in practice there are likely to be differences in approach. The Community has well-established legislation on sex discrimination (and sex is therefore excluded from the proposals currently under consideration). The political will to combat racial discrimination is especially strong in most Member States, almost all of whom already possess some constitutional or statutory provisions in this area. It is debatable whether equal determination exists to combat discrimination on some of the other grounds listed in Article 13. Indeed, the selected grounds changed in the course of negotiation: references to sexual orientation disappeared and were then reintroduced, while a draft version of Article 13 prepared by the Irish Presidency in 1996 referred to "religious belief" (rather than "religion or belief") and to "social origin".[23] The list of prohibited grounds is neither comprehensive nor final: it simply represents the political consensus that the Member States managed to achieve in 1997.

4   The European Coal and Steel Community (1951), the European Atomic Energy Community and the European Economic Community (1957). Back

5   This pressure came in part from the ECJ, which in 1970 pledged itself to respect Convention rights in its judgments: see for example Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125. Back

6   See the Committee's report, Human Rights Re-Examined (Session 1992-93, 3rd Report), Appendix 4. Back

7   Relevant international instruments include the Convention on the Elimination of All Forms of Racial Discrimination (1966) and the Convention on the Elimination of All Forms of Discrimination Against Women (1979), both ratified by the United Kingdom (in 1994 and 1986 respectively). Also see below for a discussion of the effect of Article 14 of the European Convention of Human Rights. Back

8   See Case 43/75 Defrenne v SABENA [1976] ECR 455. "Direct effect" means that a provision of Community law is itself enforceable in national courts. The European Court of Justice ruled in Case 26/62 van Gend en Loos ([1963] ECR 1) that Community law "not only imposes obligations on individuals but is also intended to confer upon them rights … These rights arise not only where they are expressly granted by the Treaty but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community". In other words, provisions contained in the EC Treaty or in Community instruments, if they are expressed sufficiently clearly and precisely, confer rights which individuals may enforce in national courts. Whether or not a Directive is directly effective, individuals may still in certain circumstances claim compensation from the State for damages suffered as a result of non-implementation (see Cases C6/90 and C9/90, Francovich and others v Italy [1991] ECR I-5357). Back

9   Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ L39, p. 40, 14.02.76). Back

10   See Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723. Back

11   See Case C-13/94 P v S & Cornwall County Council [1996] ECR I-2143. Back

12   Article 141(3) (formerly 119) TEC. Back

13   The general principle of non-discrimination on grounds of nationality is stated in Article 12 of the EC Treaty. Other relevant Treaty provisions are Articles 39, 43, and 49-50 on the free movement of workers, the right of establishment, and freedom to provide services. Back

14   However, a draft Protocol (No. 12) currently under discussion within the Council of Europe would broaden the scope of the prohibition of discrimination so that it would no longer be limited to rights and freedoms enshrined in the Convention but extend to "any right set forth in law". Back

15   See Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998 and section 75 of the Northern Ireland Act 1998. Back

16   Mark Bell and Lisa Waddington, "The 1996 Intergovernmental Conference and the Prospects of a Non-Discrimination Treaty Article", Industrial Law Journal 25 (1996), 321. Back

17   Communication from the Commission on racism, xenophobia and anti-semitism, and Proposal for a Council Decision designating 1997 as European Year against Racism (COM (1995) 653 final), Preamble. Back

18   Regulation 1035/97, OJ L151, p. 1, 10.06.97. Back

19   Both opinions quoted in Commission Communication on Racism, Xenophobia and Anti-Semitism (COM (1995) 653 final), p. 5. Back

20   A partnership of nations: White Paper on the Intergovernmental Conference (1996), para. 57. The Report of the Select Committee on the 1996 Inter-Governmental Conference (21st Report, 1994-95, HL Paper 105) recommended "a formal treaty commmitment against racial discrimination that should form the legal base for binding Council legislation on racism" (para 286). Back

21   See Bell and Waddington, op. cit., 330-31. Back

22   See Leo Flynn, "The Implications of Article 13 EC-after Amsterdam, will some forms of discrimination be more equal than others?", in Common Market Law Review 36 (1999), 1129-31. Back

23   See Flynn, "The Implications of Article 13", 1131. Back

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