OMISSIONS FROM THE DRAFT DIRECTIVES
154. The principal omission to which witnesses drew
the Committee's attention was the failure of the draft Directives
to encourage public authorities or employers to promote equality
of opportunity. Such measures might include the imposition of
a general duty on public authorities to promote equality; the
setting of targets for employers accompanied by the monitoring
of their achievement of these targets; grant or contract compliance
schemes. A duty to promote racial equality will be laid on public
authorities in Great Britain by the Race Relations (Amendment)
Bill currently before Parliament. Public authorities in Northern
Ireland are already under such an obligation by virtue of the
Northern Ireland Act 1998.
155. Professor Hepple, drawing on the information
gathered in the course of the "Independent Review of the
Enforcement of UK Anti-Discrimination Legislation", saw the
absence of such provisions from the Directives as indicating a
basic failure to appreciate what makes anti-discrimination legislation
work. He argued that "legislation and action programmes should
adopt an inclusionary approach which stimulates employers and
others to take practical steps to achieve fair participation and
diversity". Experience in the United States and Canada, as
well as in Northern Ireland, demonstrated how "it was the
requirements for monitoring, positive action … which had
really changed things". In contrast, our current legislation
was based on "retrospective … fault finding" which
fostered an "adversarial approach rather than one in which
[employers] would be positively trying to find solutions, improving
and changing the quality and composition of the workforce".
He suggested that the proposed Directives were harking back to
"the 1970s British model" rather than drawing on more
recent experience. They should be proposing "a positive duty
on public authorities" and they should at the very least
"encourage employers in the private sector to implement employment
and pay equity plans … monitoring on its own cannot achieve
equality of opportunity but it is integral to employment equity
plans or equality schemes because it establishes starting points"
(Q 325).
156. Sir Robert Cooper, describing his experience
as Chairman of the Northern Ireland Fair Employment Commission
(now merged with other Commissions into the Northern Ireland Equality
Commission), confirmed that positive action had been most effective
in achieving equal opportunities for Protestants and Catholics:
I think the most important
single feature … has been the requirement under the 1989
Act for all employers with more than 10 employees to monitor the
composition of their labour force and to report to the Fair Employment
Commission annually what that composition is, and to report on
a three-yearly basis what steps they were taking to find out whether
they were promoting equality of opportunity and fairness of participation.
Employers had formerly done "very little",
but strict monitoring requirements had had a "dramatic effect".
Whereas cases in the courts "are designed to deal with individual
discrimination", it was the "employment policies, the
employment practices, which adversely affect one community".
Monitoring requirements had forced employers to put equality "on
the board room agenda". Grant and contract compliance, on
the other hand, was "a weapon which you need to use if you
have weak legislation"—it affects only the limited
number of companies "who are very heavily dependent on public
contracts" (QQ 294, 302-03).
157. Liberty agreed that "positive obligations
and requirements, such as monitoring", were valuable, and
regretted that the proposed Action Programme followed a "voluntaristic
approach", which was "unlikely to have a significant
effect". Ideally one wanted "positive steps … interacting
with the negative prohibitions in attempting to move … potential
discriminators … towards behaviour which promotes equality"
(p 67, Q 211).
158. Sir Robert Cooper and Professor Hepple agreed
that monitoring requirements did not in fact impose a heavy burden
on employers. There had been resentment at first in Northern Ireland,
but employers now regarded it as "part of normal business
… it is not a major imposition". Professor Hepple stated
that both in the United States and in Northern Ireland employers
had found "initial start up costs", but now agreed that
"the benefits out-weigh the costs". Employers tended
to be initially resistant, but had been convinced of the business
case—"that they are getting a better quality workforce
if it is more diverse" (QQ 294, 346).
159. However, Professor Hepple accepted that it would
be difficult to convince even British companies of the benefits
of setting targets and monitoring, and that it would be still
harder to make the case "in other European countries which
have not even thought about it". The same point was also
made by Kay Carberry of the TUC, who saw monitoring as "essential",
but accepted that one needed "something that all 15 Member
States are going to be able to sign up to". Adam Tyson, for
the Commission, noted the sensitivity of the issue of monitoring
in many Member States, in some of which "it is actually unlawful
to keep such information". He hoped that through the Action
Programme it would be possible "to explore with Member States
who have more difficulty with the idea of monitoring how it can
be introduced or what forms of monitoring can be developed …
we agree with the principle that monitoring is extremely effective
to assess the effectiveness of the legislation". It is not
clear what form of monitoring Mr Tyson was referring to here—whether
at the level of the individual business, or, at the other extreme,
at the Europe-wide level of the European Monitoring Centre on
Racism and Xenophobia. Ms Marshall of the Home Office took the
view that monitoring had to be of "a sensible and practical
nature, rather than a mandatory nature in terms of burdens on
business". However, the Government would be "bringing
forward proposals about the duty to promote [equality] on public
authorities" (QQ 346, 101, 51, 29).
160. Effective anti-discrimination legislation
must do more than provide individual remedies for the victims
of discrimination—it must actively encourage public authorities
and employers to promote equality. We welcome the Government's
stated intention to bring forward proposals on requiring public
authorities to promote equality. We recognise that the inclusion
in the draft Directives of provisions on monitoring and the setting
of targets for employers might present serious, possibly insuperable,
obstacles to securing the agreement of the Member States. However,
we believe that the Directives could give greater encouragement
to Member States and employers to introduce positive equality
policies.
161. Monitoring should not be seen simply as a
device for assessing the effectiveness of legislation. It should
be seen as a positive and proactive requirement for employers
to examine their own practices and policies with a view to creating
equal opportunities for all. It is crucial that employers should
monitor themselves, rather than that monitoring should be imposed
on businesses from outside. We believe therefore that the benefits
and costs of monitoring and other initiatives to promote equality
should feature prominently in the Action Programme. Experiences
within Member States and in other jurisdictions should be shared
and evaluated with a view to considering whether there may be
scope for EU-wide action in the future.
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