Select Committee on European Union Thirteenth Report

Government Response


  1.  The Government welcomes this report.

  2.  The Committee's inquiry was prompted by the publication of four proposals to combat discrimination under Article 13—two Directives, an Action Programme and a Communication.

  3.  The Government notes and welcomes the Committee's support for the principle of Community action to combat discrimination.


  (The Committee's conclusions and recommendations are reproduced below in italic format, with the Government's reponse in plain text.)

  4.   The Committee welcomes Community action to combat discrimination. Article 13 commits the European Union to action in this field. We have reservations on the drafting of the present proposals, and the balance between encouragement and enforcement in the package as a whole. These are set out in detail below. We also emphasise that thought ought always to be given to the profound and dynamic effects of these measures, given the wide diversity within the Community (paragraph 26).

  5.  The Government welcomes these remarks and entirely agrees that, in view of their significance, careful thought needs to be given to the proposed measures.

  6.   The Committee believes that in principle the proposed measures meet the test of subsidiarity (paragraph 28).

  7.  The Government agrees with the Committee's assessment. Action at European Community level in this area is appropriate and desirable. It will yield greater and more far reaching benefits for the Community as a whole than if the only action taken was by Member States acting individually.

  8.   The Committee welcomes the Commission's decision to implement Article 13 by means of Directives, rather than Regulations. This allows the Member States limited freedom to adapt the legislation to their specific cultural circumstances, and is in accord with the Protocol on subsidiarity and proportionality, which requires the Community to "leave as much scope for national decision as possible, consistent and securing the aim of the measure". However, a balance must be struck between flexibility and legal certainty. The wish to leave Member States some discretion in choosing how to implement the broad objectives of the Directives must be balanced against the need to be specific and unambiguous enough to make it clear to them what is required. The Committee believes that the Directives, as drafted, do not achieve this balance (paragraph 31).

  9.  The Government also believes that the Commission's decision to implement Article 13 by means of Directives rather than Regulations is appropriate in both instances. We agree that the level of detail contained in the Directives must be appropriate to their purpose and must strike a balance between the need for clarity and allowing Member States broad enough margins for implementation so as to allow national circumstances to be taken fully into account. This is a framework Directive and therefore in the interest of member states discretion and subsidiarity should reflect this in its provisions. We consider that the text finally agreed for the race Directive reflects such a balance and are working to ensure a similarly positive result for the employment Directive.

  10.   The present proposals will significantly enhance the rights in many parts of the Community of those groups mentioned in Article 13. The Committee believes that the proposals are likely to facilitate free movement, to limit unfair competition, and to enhance the success of the single market. They may prove particularly significant in protecting the rights of British citizens from ethnic minorities living or working in other Member States (paragraph 33).

  11.  The Government agrees with and welcomes the Committee's assessment.

  12.   The Committee supports the Commission's realism in setting minimum common standards. These will establish the principle of legislation in those Member States where there is at present no statutory protection, while allowing Member States to go much further. However, we have grave reservations concerning the way these standards have been applied across the board, without adapting them sufficiently to the various grounds of discrimination. These reservations are set out in detail below (paragraph 35).

  13.  The Government shares the Committee's concerns about the appropriateness of applying a blanket approach to the five different grounds for discrimination. We are seeking to ensure, through negotiation, that the proposals are better tailored to reflect, where appropriate, the specific characteristics of the individual grounds.

  14.   While these proposals are addressed to the existing Member States, they could also have a profound impact on the candidate countries, and on prospects for enlargement. The Committee welcomes the involvement of candidate countries in the Action Programme, and believes that this element of the programme should be given a high priority, in order to help ensure that candidate countries are prepared to fulfil the obligations of full membership (paragraph 37).

  15.  The Government also welcomes the involvement of the candidate countries in the Action Programme. It should prove a useful tool in helping candidate countries meet the conditions for entering the EU in this area.

  16.   Article 13 of the EC Treaty empowers the Community to combat specific forms of discrimination and the Committee believes that any proposed legislation should reflect both the breadth of Article 13 and the specific ways discrimination manifests itself in the different areas. If legislation is to provide the victims of discrimination with effective protection and remedies, it must respond to the many forms discrimination takes, and to the differing characteristics of the group who are its victims. The sectoral approach adopted in the United Kingdom has considerable advantages, and the Committee would like to see some of the lessons of the United Kingdom's approach reflected in the current proposals. The present framework Directive falls between two stools. It does not follow the sectoral approach. Nor can it truly be described as a "framework" or "umbrella" Directive, as it excludes discrimination on the grounds of sex and, if the Race Directive is adopted first, on the grounds of racial or ethnic origin. There are good reasons for this exclusion. However, the existence of specific measures on sex and (potentially) on race makes it all the more important that any "framework" legislation on other grounds should not be too generalised—to be effective its provisions must take account of the differences between the specific grounds of discrimination (paragraph 45).

  17.  The Government notes the Committee's views. We agree that the differences between the specific grounds of discrimination need to be considered carefully to ensure that the proposals are effective and that a proper balance is struck between general and specific provisions.

  18.   There is a particularly urgent need to confront racial prejudice and discrimination. We therefore welcome the emphasis laid in the current proposals on discrimination on grounds of race or ethnic origin. The proposed race Directive would contribute to the fight against racism and xenophobia throughout Europe. The Council is at present more likely to accept far-reaching legislation in the area of racial discrimination than in any other area covered by Article 13. The Commission's approach is therefore in this respect appropriate and realistic. However, we emphasise that it is essential to ensure consistency between the various instruments on discrimination, and that any overlap or duplication between race and framework Directives must be clearly resolved (paragraph 46).

  19.  The Government is grateful for the support of the Committee in its recognition of the particularly urgent need to confront racial prejudice and discrimination, and that it was appropriate and realistic to place the emphasis on the Directive to combat discrimation on the grounds of racial or ethnic origin. The Government shares this view and is committed to the fight against racism and xenophobia. The Government therefore, welcomes the early agreement of the Directive as an important step forward in the fight against racism both at home and in Europe.

  20.  As a consequence of the agreement of the race Directive, references to race in the employment Directive will be deleted, and it is expected that the articles common to both will be read across from the race and employment Directive.

  21.   Article 13 signifies a clear commitment by the Member States to combating discrimination on all the specified grounds. The Committee welcomes the decision to act on this commitment by means of a broad framework Directive. Moreover, there is considerable force in the pragmatic argument that some form of comprehensive framework legislation may be all that is possible at the moment for some grounds included in Article 13. But there is a danger that if a framework Directive is rushed through which fails to take account of the differences between the various types of discrimination then Member States and the Community will rest on their laurels, assuming that enough has been done once it is in place. Any framework Directive should more clearly differentiate between the various forms of discrimination than does the current proposal. A framework Directive compromising several sections, each given over to the protection to be afforded to a specific group, and giving equal weight to each of these groups, could incorporate a common definition of material scope, as well as of direct and indirect discrimination. However, the different ways in which these and other concepts (such as "reasonable accommodation" and "genuine occupational qualification") would apply to the different grounds of discrimination could be specified in each section. The current proposed framework Directive would bring benefits, but we believe that as it is drafted, and with its present structure, it would fall short of fully protecting the principle of equal treatment on all various grounds. It is essential that whatever legislation is adopted should be effective and workable and we hope that every effort will be made to achieve this goal. It is better to take more time to ensure well-prepared measures than to rush through the framework Directive in its current form (paragraph 47).

  22.  The Government shares the Committee's view that the employment Directive should receive due and proper consideration. Our domestic experience has convinced us of the need for equality legislation to be framed clearly, to be workable and to take proper account of the many different factors which come into play. In this area, poorly constructed legislation is likely to be counter productive. We want the principle of equal treatment to be effective and will negotiate to achieve this.

  23.   The race Directive, in contrast to the framework Directive, explicitly goes beyond the sphere of "employment and occupation", to include areas such as "access to and supply of goods and services". Article 141 of the EC Treaty, which covers measures on equal treatment between the sexes only in "employment and occupation", does not provide a sufficient legal basis for bringing the scope of sex equality legislation into line with the race Directive. The United Kingdom's experience shows the benefits of keeping sex and race discrimination legislation in step. We therefore urge the Government to explore with the Commission the possibility of bringing forward proposals on sex discrimination under Article 13, with a view to achieving as close an approximation as possible of the scope of legislation on sex and race discrimination (paragraph 50).

  24.  We are aware that the provisions of the race Directive are wider in scope than current provisions of Community law in relation to the equal treatment of men and woman. The Commission has just published proposals, aimed at ensuring that EU sex and race discrimination legislation remain broadly in line in the field of employment, using Article 141 as the legal base. We would consider this as the most appropriate base because Article 141 is a lex specialis, ie a specific legal base for dealing with equal treatment between men and women in employment cases as opposed to the more general provisions in Article 13. Article 13, however, could be used as the legal base for any further proposals on sex discrimination which went outside the area of employment eg into goods and services. The Government believes that consistency between sex and race equality legislation is important and draws the Committee's attention to the fact that the areas of "access to and supply of goods" is already covered by our own Sex Discrimation Act.

  25.   Inconsistencies between the individual provisions of the various anti-discrimination instruments are likely to create confusion and uncertainty for employers and for victims of discrimination. In turn this is likely to increase the workload of the courts. Legal standards must be clear, consistent and easily intelligible. Consistency (for example, in the definitions of victimisation) is entirely compatible with the existence of sectoral legislation (such as Equal Treatment Directive, or the proposed race Directive). The Government should therefore urge the Commission to ensure consistency between provisions in the various instruments offering protection against discrimination (paragraph 52).

  26.  Whilst the Government recognises that, in principle, consistency between the Directives is important, we believe that it is important to strike a balance between this and the need to take account of the differences between the separagraphte grounds of discrimination. Where appropriate, we seek to harmonise the provisions in the Directives, but we are aware that certain areas, for example disability, require a more tailored approach.

  27.   The Committee welcomes the propsal for an Action Programme. The exchange of best practice and the development of reliable statistics are vital to combating discrimination across the EU. We wish to emphasise the importance of the participation of the candidate countries. We urge the Government to ensure that rigorous evaluation methods are in place so that the resources available through the Action Programme can be targeted and used to best effect (paragraph 58).

  28.  The Government agrees that the exchange of best practice will be a useful contribution to the development of equal opportunities across the EU and welcomes the participation of candidate countries. We recognise the importance of running this programme in such a way as to provide best value for money. Rigorous evaluation methods are one way to ensure this and we are working with the Commission and other Member States to secure the implementation of appropriate systems.

  29.   The Commission's view that definitions of key concepts can simply be "left to Member States" is an over-simplification. EU-wide definitions will evolve as cases reach the Court of Justice. This will be a long process, and there will inevitably be a period of uncertainty as cases are taken through the courts. Defining key concepts (notably "disability") might enhance legal certainty. The Commission's proposal to carry out a comparagraphtive analysis of definitions of disability in the Member States is welcome, if somewhat belated. But there is also some advantage in allowing enough flexibility to take account of societal changes and evolving attitudes. Moreover, the Committee recognises that securing the unanimous agreement of the Member States on definitions of at least some of the grounds of discrimination in Article 13 might prove politically and practically difficult. The Committee therefore suggests that the Government should explore with the Commission the possibility of including within the framework Directive examples illustrating (non-exhaustively) the categories of person who are intended to be protected. So, for example, people with learning disabilities or those above a certain minimum age could be stated as being within the scope of the Directive (paragraph 69).

  30.  While the Government agree that it is an over-simplification to say that the definition of key concepts can be left entirely to Member States, it must be recognised that these are framework directives, which leave a considerable margin of discretion to Member States as to precisely how they should be transposed into national law. It would not be compatible with the principle of subsidiarity for the directives to set out extensive definitions of every single concept—even assuming Member States were able to reach agreement on those definitions in negotiations for the Directive.

  31.  It will, however, be very important to ensure that the legislation enacted to transpose the Directives into UK law be as clear as possible, so that all parties concerned, in particular employers, will know exactly where they stand. The Government share the concern of the CBI that "fuzzy law" should be avoided.

  32.  The Government do recognise that aspects of the transposing legislation—including in particular definitions of terms such as "disability" or "belief"—are likely to be tested in due course before the European Court of Justice. We would still intend to introduce implementing legislation containing clear and workable definitions which we believe to be compatible with the spirit of the directives. The Government intend to press for the necessary amendments to the framework (employment) Directive with a view to clarifying some of the more ambiguous concepts.

  33.   Article 13 expresses the unanimous desire of the Member States to combat discrimination on all the grounds listed. While the Committee has many reservations concerning the Commission's current proposals, we believe that the law should guarantee the "principle of equal treatment" on all these grounds, including sexual orientation. Our concerns about the inclusion of "racial or ethnic origin" in both instruments, and about the exclusion of sex, have been outlined above (paragraph 72).

  34.  The Government agrees with the Committee that discrimination on all the grounds listed should be opposed. Like the Committee, we have concerns about the practicability of the original proposals. We are working to address these concerns in the negotiations.

  35.  The Committee accepts that it is often difficult to distinguish between racial and religious discrimination. There are also anomalies in the interpretation of the Race Relations Act. However, we note that the Government has commissioned research into the effects of religious discrimination and the extent to which it overlaps with racial discrimination, in mainland Britain. It would be inappropriate to prejudge the conclusions of this research by recommending the inclusion of "religion or belief"in the race Directive. We are also concerned at the vagueness of the phrase "religion or belief", and believe that if protection on these grounds is to be extended beyond the employment field, a clearer definition, or a list of examples, will be required (paragraph 75).

  36.  The Government welcomes the Committee's recognition of the complexity of the issue of religious discrimination. We recognise that the Race Relations Act has been interpreted by the courts so as to have the effect of offering legal protection from discrimination to some religious groups (ie Jews and Sikhs) but not to others.

  37.  The Home Office has commissioned research into the effects of religious discrimination in England and Wales. The Government agrees with the Committee's assessment that it would have been inappropriate to address this complex issue by including "religion and belief" in the race Directive, in advance of the conclusions of this research. The final text on the race Directive does not include the ground of "religion or belief".

  38.  It is expected that it will be left to Member States to define more tightly the phrase "religion or belief" when transposing the Directive. The Government recognises that it will be important to consider the matter of the definition of "religion or belief" when this takes place. This remains the position whether or not protection on these grounds is to be extended beyond the field of employment.

  39.   The Committee understands that the framework Directive, like the race Directive, will give protection to third country nationals. For the sake of consistency and legal certainty this should be made explicit in the Preamble (paragraph 77).

  40.  The Government understand that the next version of the proposed framework directive will contain a recital confirming that the principle of non-discrimination set out in the directive will apply to nationals of third countries.

  41.   While the definition of direct discrimination in the proposed Directives is unexceptionable, the definition of indirect discrimination is as it stands unacceptable. There is no need at this point to diverge from the definition which already applies to sex discrimination by virtue of the Burden of Proof Directive. The courts have already shown themselves ready to interpret purposively the concept of indirect discrimination, so as to limit the reliance on statistics. A new definition at this stage can only create confusion and increase the burden of litigation on the courts and on employers. Furthermore, the Commission has misunderstood the definition of O'Flynn: indirect discrimination relies on comparison between definable groups. A definition which omits such comparison is all but meaningless. We urge the Government to press for a definition based on that found in the Burden of Proof Directive (paragraph 83).

  42.  The Government shared the Committee's view that the definition of indirect discrimination should be based on the definition appearing in the Burden of Proof Directive. However, several other Member States did not support this. In some States the collection of information about ethnic background is expressly forbidden by law, and they were adamantly opposed to a definition, such as the one contained in the Burden of Proof Directive, which relied heavily on the concept of proportionality—and statistical evidence about ethnic background.

  43.  The definition of indirect discrimination which now appears in the race Directive therefore represents a compromise. But it is a compromise with which we are pleased. The final definition reads as follows:

    "indirect discrimination should be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary".

  This is much closer to the burden of proof directive definition than that contained in the original Commission proposals. In particular, the new definition includes the important concepts of comparison and disadvantage.

  44.  The main difference is that the new definition would make it possible to prove indirect discrimination without the need to produce statistical evidence. The evidence of experts might be used instead. But the Government's view is that the new definition leaves a test which is broadly equivalent in terms of severity to the current definition. A practice which is not indirectly discriminatory under the Burden of Proof definition should not become indirectly discriminatory under the new test. A very similar definition is now likely to be agreed for the employment directive.

  45.   The Committee welcomes the explicit recognition that harassment constitutes direct discrimination (paragraph 85).

  46.  Like the Committee, the Government welcome the explicit recognition in the directives that harassment can constitute direct discrimination. In fact this is not a new development as far as the UK is concerned, as the Courts here have long recognised that harassment can amount to less favourable treatment for the purposes of the Sex Discrimination and Race Relations Acts.

  47.   The terms "reasonable accommodation" and "undue hardship" in the framework Directive require at the very least clarification by a list of examples, along the lines of the examples of "reasonable adjustment" supplied in section 6(3) of the Disability Discrimination Act, and drawing upon the interpretation by national courts of the concepts of "reasonableness", where this appears in national legislation. In addition, it should be made clear that the duty to make an "accommodation" falls on the employer (paragraph 91).

  48.   The Committee cannot accept the Commission's defence of Article 2(4) of the framework Directive. The way it is drafted, it is impossible to escape the logical implication that an "accommodation" could be "reasonable", at the same time as it involved "undue hardship". Therefore the introduction of "undue hardship" creates an unnecessary second line of defence, which should be removed (paragraph 93).

  49.  As the Committee says, the terms "reasonable accommodation" and "undue hardship" are not explained in the Directive as drafted. Some clarification might well help. The Government agree that the latter term would afford an unnecessary and confusing second defence, and it would be better to remove it. We also agree that the duty to make an accommodation must fall on the employer and this too should be clear.

  50.   The Committee is not convinced that applying the concept of "indirect discrimination" to the disabled will reinforce the protection already afforded by the DDA's imposition of a duty to provide "reasonable adjustment". This area requires further research. However, it is clear that the drafting of the proposed Directive is at present unsatisfactory. The Government should attempt to ensure that if the two concepts are to be combined, then the relationship between them is clarified (paragraph 95).

  51.  The Government agree that the relationship between "indirect discrimination" and "reasonable accommodation" is unclear in the draft directive and needs to be clarified. However, as the Committee has also noted, in the Disability Discrimination Act 1995 (DDA), the concept of "reasonable adjustment" already provides protection for disabled people in circumstances where the concept of "indirect discrimination" might otherwise be expected to help. Where an employer's arrangements or the physical features of his/her premises place a disabled employee or job applicant at a substantial disadvantage, the DDA requires the employer to consider making reasonable adjustments to these in order to prevent these arrangements or features from having that effect. In our view, an employer making such adjustments will effectively remove the source of any disadvantage which might be viewed as being an instance of indirect discrimination against a disabled person, and so we do not believe that there is a need for an additional provision making it unlawful in general. We will therefore be seeking to explore whether "indirect discrimination" adds any significant protection for disabled people, and whether this aspect of the Directive needs to be modified.

  52.   We have already emphasised the vital importance of preserving consistency between Community legislation on the various forms of discrimination. The Government should press the Commission for a commitment to ensuring consistency between the equal pay rights of men and women and those of the other groups included in Article 13 (paragraph 99).

  53.  The Government shares the Committee's desire to preserve consistency between Directives where appropriate. We note the Committee's comment about pressing for equal pay rights for the groups in the employment Directive as there are rights between men and women. We agree that pay must be fair. The Race Relations Act allows someone who has suffered the detriment of unequal pay to bring a claim to Tribunal. The Disability Discrimination Act gives guidance on how to avoid paying a disabled worker unfairly. However, the Government judged that there was no prospect of many, let alone all, Member States agreeing that provisions corresponding to the Equal Pay Act 1970 should be in the employment Directive. However "pay" as such is included in the material scope of the Directive: see Article 3(c).

  54.   The Committee remains uncertain of the scope of the draft race Directive. Its uncertainty is in part attributable to the Commission's Explanatory Memorandum, the intention of which is unclear. We are not convinced that a definition applied in the context of the free movement of workers will necessarily apply in another field, where the only limitation to the scope is that it must be "within the limits of the powers conferred upon the Community". We urge the Government to press the Commission for clarification of the Directive's scope (paragraph 102).

  55.  During the course of negotiations the Commission confirmed that the term "social advantages" is intended to have meaning for the purposes of the race Directive as it has for the purposes of Article 7(2) of Regulation 1612/68/EEC (which specifies that EU migrant workers shall enjoy, in the territory of the host Member State, "the same social . . . advantages as national workers"). The Government share this view.

  56.   The public functions of immigration officers are in our view unlikely to fall within the material scope of the race Directive. We note the Government's wish to secure a specific exemption in relation to immigration functions. However, the right to non-discrimination is a fundamental human right, and any limitation to this right must be clearly justified. We note that Title IV of the EC Treaty does not empower the Community to combat discrimination of any sort in the field of immigration. The Government should explain their position more fully, and in particular define the circumstances in which they believe immigration officers should be entitled to discriminate on grounds of race or ethnic origin, or on any of the other grounds listed in Article 13 (paragraph 104).

  57.  The Government agrees with the Committee's assessment that immigration functions do not fall within the scope of the Directive. The Government's need to clarify that immigration services were exempt from the scope of the Directive was because there are circumstances where we need, in operating immigration policies, to discriminate both directly and indirectly on the grounds of race or ethnic origin. This is explicitly recognised in the Race Relations (Amendment) Bill which contains specific provisions to allow this.

  58.  In negotiating the race Directive, the Government wished to maintain the status quo. These provisions allow the Government to act with sufficient flexibility to provide the appropriate welfare measures for ethnic or national groups facing violence or persecution in their own countries. For example, during the recent conflict in the Balkans, the temporary protection measures that were extended to the Kosovans of Albanian ethnic origin (ie exceptional leave to remain, with access to social security and social protection) were not available to Kosovans of Serbian ethnic origin. Unless the ability to treat certain groups differently was retained, taking this type of positive action could leave the Government open to claims that it had unlawfully discriminated against members of other groups not given such provisions. The Government would not wish to be prevented from responding to another emergency such as the Balkans, if the need arises because of a risk of acting unlawfully.

  59.   The suggestion in Article 4 of the proposed Directives that differences of treatment where there is a genuine occupational qualification "shall not constitute discrimination" is puzzling: in reality it would seem that they do indeed constitute discrimination, albeit they are permissible (paragraph 106).

  60.  The Government agree with the Committee's comments at paragraph 106 of the report. The drafting of Article 4 might indeed seem puzzling in that what it in fact amounts to is a justification of direct discrimination in certain specific cases. We think this follows from the scheme which the drafters of the directive have followed. The phrase "shall not constitute discrimination" has been included in Article 4 to make clear how it links with Article 2 which provides that "there shall be no . . . discrimination whatsoever on any of the grounds".

  61.   The Committee agrees with the Government's view that as the framework Directive is drafted the relationship between "genuine occupational qualifications" and "reasonable accommodation" for the disabled is unclear and could be counter-productive. The Commission needs to think further about how "genuine occupational qualifications" will impact on the disabled, including those with learning disabilities (paragraph 108).

  62.  It has now emerged that the defence of GOQ is intended to have a very limited application vis-a-vis discrimination on the grounds of disability. It would arise only where the essential functions of a job could not be fulfilled except by a person having a particular type of disability. For example having a missing limb might be a GOQ for a job which entailed testing artificial legs. It is likely that some amendments will be made to the employment directive in order to make this clear. Assuming this happens, there should be no conflict with the duty to provide reasonable accommodation for persons with a disability.

  63.   Article 4(1) of the framework Directive provides that where there is a "genuine occupational qualification", determined by reference to the "particular occupational activities", a difference of treatment shall not constitute discrimination. The Committee believes (subject to the reservation set out below) that this Article should provide, as it stands, a sufficient safeguard for religious organisations. The narrow and convoluted wording of Article 4(2), as drafted, would seem to add nothing to this safeguard. In fact we believe that it is likely to limit the ability of religious organisations to apply the "genuine occupational qualification" principle. We doubt that this can have been the Commission's intention. If Article 4(2) is to be retained, its meaning and scope should be clarified (paragraph 111).

  64.   There might still be problems in subjecting the employment practices of religious or denominational schools to the "genuine occupational qualification" provision. We note that school teachers in Northern Ireland are exempted from Fair Employment legislation. Furthermore, section 60 of the School Standards and Framework Act 1988 provides that voluntary schools in England and Wales which have a "religious character" are permitted to give preference in employment, remuneration or promotion to teachers "whose religious opinions are in accordance with the tenets" of that religion. Such schools may also terminate the employment of teachers whose conduct is "incompatible with the precepts" of that religion. This is an extremely sensitive issue, which needs to be examined in much more detail, and the Committee has not received enough evidence on it to reach a firm conclusion. We urge the Government to explore with the Commission ways to provide effective protection (possibly by means of an express exemption from the provisions of the Directive) for the rights of religious organisations, particularly schools (paragraph 112).

  65.  The Government agree with the Committee's comments about Article 4.2 of the employment Directive. We intend to press for it to be simplified to ensure that it will not prejudice the general principle set out in paragraph 1 of the Article. We would also wish to see paragraph 2 broadened to ensure that the legitimate interests of religious organisations are safeguarded. In particular, we would be strongly disinclined to accept any provision which would make it necessary to amend section 60 of the School Standards and Framework Act 1998—vis-a-vis schools with religious character. This will not constitute an excuse for religious organisations to discriminate unfairly but will ensure that the status quo will be maintained.

  66.  The starting point of the Directive is to open up all jobs to all people who can legally work within the European Union, irrespective of religion or belief. But there is recognition that some jobs have a determining requirement to be undertaken by those of a particular religion. Obviously, a rabbi would have to be Jewish, or a Catholic priest, Catholic.

  67.  The Directive may also allow for other jobs where conduct needs to be compatible with particular precepts of a religion: a teacher in a Muslim or Catholic college, for example, may be expected to conform to certain behaviour. We intend, as the Committee suggests, to explore this further as negotiations progress.

  68.   It is inappropriate for "justifications" for direct discrimination on grounds of age to be put forward: the Government should press the Commission to make it clear that these are specific exceptions to the principle of equal treatment, not justifications for unequal treatment (paragraph 114).

  69.   Article 5 of the framework Directive entirely fails to achieve the Commission's goals of providing clear limits and certainty in the field of age discrimination. As drafted, there is a strong possibility that it would do more harm than good, effectively legalising age discrimination throughout the Community. There appears to be no coherent pattern in the list of justifications. Equally, it is unclear what ages will be covered, and what comparisons will apply in judging indirect discrimination. The draft framework Directive will give no protection to the growing proportion of the population who are over the age of retirement. It appears that the determination to tackle age discrimination is not uniformly strong. It is therefore vital that the Action Programme and similar measures should place particular emphasis on building up awareness of the issue. At the same time the Government should seek to ensure that any exceptions to the principle of equal treatment irrespective of age are clearly defined and justified (paragraph 118).

  70.  The Government broadly shares the Committee's reservations that as drafted, it is unclear what ages will be covered in the employment Directive. We are also concerned with the range of justifications proposed. We believe that provisions relating to age require considerable modification and improvement, and agree that as drafted they could legitimise age discrimination.

  71.   The Committee endorses the Commission's permissive approach to positive action: given the differences between Member States, it is proper that positive actions should be permitted, not required (paragraph 121).

  72.   The issues surrounding positive action are among the most difficult and controversial in the discrimination field. Current European case-law is far from clear on how far positive action can lawfully go. The proposed Directives, by failing to give any guidance, do not help to clarify the situation. The Committee's understanding is that quotas are currently unlawful. We believe that as a general rule they should remain so, although there may be circumstances in which some degree of flexibility is required (paragraph 125).

  73.   Given the different traditions and experiences of positive action among the Member States, we believe that it would be helpful for the Directives to include illustrative examples of the forms of action, not amounting to positive or reverse discrimination, which would help to combat discrimination (paragraph 126).

  74.  The Government agree with the Committee that positive action should be permitted, not required, and that in general quotas should remain unlawful. However, we think it would be difficult to formulate a list of examples of the type suggested in paragraph 126 of the report. When deciding whether a particular measure constitutes "positive action" or "positive discrimination", the ECJ are likely to adopt a similar approach to that followed in the context of sex discrimination. The Committee may wish to look in particular at the recent judgement in Case C-158/97 Badeck where the Court held that: measures to promote equal opportunities can include targets, so long as an individual candidate's sex is never decisive for selection; targets for employment based on the proportions of men and women qualified in the general population are lawful, as are measures to allocate to women one half of the available training places in schemes where other training opportunities are available for men; and it is lawful to have a rule under which all women candidates who are qualified for the post are called for interview in a sector where women are under-represented.

  75.   The Committee agrees with the Government that positive action can actively promote fairness as well as merely compensating for disadvantage. We regret that at present the Directives seem to be reactive rather than proactive. It is particularly regrettable that the explanatory memorandum to the framework Directive describes positive action measures as "a derogation from the principle of equality", which should be "interpreted strictly". On the surface this appears to imply that "positive action" and "positive discrimination" are synonymous. It is unlikely to encourage positive action measures such as the targeting of training or job advertisements at under-represented groups, which are designed to establish a "level playing field", not distort it. While positive action should not be required of Member States, it should be encouraged, and we urge the Government to press for the Directives to be amended accordingly (paragraph 128).

  76.  The Government disagrees with the Committee's recommendation on the need to press for the encouragement of positive action. We do not think that it is appropriate for the Community to force the point, It is entirely a matter for member States to consider. This would not be consistent with the principle of subsidiarity. The precise nature positive action provisions is far more appropriately considered at Member State level. In such matters account needs to be taken of particular national contexts such as the situation of the domestic labour market.

  77.   The Commission's summary of what is envisaged by the reference to "judicial and/or administrative" procedures is more accurately described by the paragraphllel Article in the Equal Treatment Directive. It is unwise to invite confusion by diverging from the existing provision (paragraph 132).

  78.   The drafting of Articles 7(1) of the race Directive and 8(1) of the framework Directive is unsatisfactory as it stands. The Articles should be amended in order to clarify whether or not they are intended to cover discrimination after the termination of employment, for example in the provision of references (paragraph 134).

  79.  The Government note the concerns expressed by the Committee in paragraphs 130 to 132 of the report, but they consider that Article 7.1 of the race directive and Article 8.1 of the employment Directive would impose a clear implication on Member States to ensure that an individual victim of any type of unlawful discrimination contrary to the Directive could secure effective recourse through judicial or other process. The ECJ would be likely to require that remedies be effective (particularly in view of the provisions of Article 14 of each Directive) and also equivalent to remedies available under comparagraphble domestic laws.

  80.  The Government also consider Article 7.1/8.1 would require that an appropriate remedy be available in a situation where (as in the Coote case) an employer refused to give a reference to a former employee on the grounds that he/she had brought proceedings aimed at enforcing the principle of equal treatment. The last sentence of Article 7.1 of the race Directive, when read with Article 9, appears to be designed specifically to deal with the Coote-type situation. The same applies to Articles 8.1 and 10 of the employment directive.

  81.   The Committee welcomes the introduction of representative actions: by permitting organisations to take cases on behalf of individuals the strain on victims will be eased, the ability to bring test cases enhanced, and the burden on the public purse potentially reduced. The Directives, however, should make it more explicit that representative actions will be permitted on behalf of groups of named individuals, while prohibiting "class actions". The same protection should be extended to victims in sex discrimination legislation (paragraph 136).

  82.  The Government agree entirely with the Committee's comments about representative actions. However, Article 8.2 of the race Directive has been changed to clarify that Member States do not need to provide for "class actions". The final version says—

    "Member States shall ensure that . . . organisations . . . which have, in accordance with criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf of or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive.".

  We intend to press for a similar change to be made to Article 8.2 of the employment Directive.

  83.   The Committee supports attempts to bring consistency to anti-discrimination legislation. We therefore welcome the proposed reversal of the burden of proof, which will bring legislation on all the grounds in Article 13 into line with sex discrimination legislation (paragraph 139).

  84.  The Government welcomes the Committee's support for this proposal. The Committee is, of course, right to say that the proposals on the burden of proof do not imply a major change to the way UK law operates at present. The term "reversal of the burden of proof" is perhaps misleading. Under the terms of the race Directive, an individual must first establish facts which suggest that racial discrimination has taken place. Only then would the burden shift to the respondent, requiring him or her to demonstrate that there was an innocent explanation. Contrary to some recent misleading press reports, Courts and tribunals in the UK already adopt a similar approach: faced with facts which suggest discrimination has occurred, it is common practice for them to infer that discrimination has occurred in the absence of cogent evidence from an employer which displaces this inference.

  85.   The provisions on victimisation differ for no apparent reason—they are prime examples of what witnesses have called "fuzzy law". The Committee's view is that any reference to "motivation" is inconsistent with the concept of discrimination as a tort, as well as being likely to make it harder to prove victimisation. The reference to motivation in Article 9 of the race Directive should be removed and consistency between the provisions ensured (paragraph 142).

  86.  Reference to "motivation" has been removed from the race Directive. As a consequence of the agreement of the race Directive, references to race in the employment Directive will be deleted, and it is expected that the common articles will be read across from the race Directive. This will resolve any overlap or duplication between the race Directive and the employment Directive.

  87.   It is essential that new legislative requirements be adequately publicised in workplaces and elsewhere. The Government already freely disseminates information on new initiatives. Furthermore, social dialogue can make a vital contribution to developing equal opportunities within businesses. However, the Committee believes that such arrangements are best left to Member States: it is inconsistent with the principle of subsidiarity that the Directives, as well as setting out legislative requirements, should prescribe to Member States methods of publicising that legislation. Such methods should be encouraged as best practice through the Action Programme, where it may also be appropriate to allude to the need for information to be readily accessible to disabled people (paragraph 146).

  88.  The Government agrees with the Committee that involvement of social and other partners and adequate provision of information in this area is very important but considers that the means of ensuring this is best decided at national level. The agreed text of the race Directive makes it clear that it is for Member States to decide on the "appropriate means" for dissemination of information and that any steps taken to promote the social dialogue in the context of this Directive should be "in accordance with" and "consistent with national traditions and practices". We expect the employment Directive to contain identical provisions.

  89.   Only the race Directive provides for the creation of an independent body or bodies. Mme Quintin's explanation of the reasons for not including an Article on independent bodies in the framework Directive applies equally to the race Directive. There seems to be no convincing justification for this inconsistency. The United Kingdom's Equality Commissions offer invaluable help to women and members of racial minorities, and we expect the DRC to provide an equally useful service to disabled persons. We do not wish to express a view on the virtues of a single body to promote equality on all the grounds in Article 13 rather than several bodies: this is a matter best left to Member States. However, we urge the Government to press for the inclusion of a reference to an independent body or bodies in the framework Directive (paragraph 149).

  90.  The Government is not inclined to press for the inclusion of an Article on independent bodies in the framework Directive. The decision whether to set up such a body and how it should operate is one best made at the level of Member State.

  91.   The Committee welcomes the wide powers granted to the independent body or bodies set up under Article 12 of the race Directive. However, we also believe that the Directive should not be too prescriptive, but should leave the precise functioning of these bodies to Member States. We welcome Mme Quintin's assurance that they would not be obliged to pursue complaints on behalf of individuals, but suggest that this discretion could be more clearly spelt out in the text of the Directive (paragraph 152).

  92.  The Government shared the concern highlighted by the Committee that the race Directive, as originally drafted, was too prescriptive in some areas. We were able to negotiate successfully to overcome this problem. It is now clear that the precise functions of the independent bodies set up under Article 13 is a matter for individual Member States.

  93.   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 (paragraph 160).

  94.   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 (paragraph 161).

  95.  The Government agrees with the Committee that active promotion of equality is an essential support for any legislative measures to combat discrimination. Futhermore, we consider that monitoring and setting targets can, where appropriate, provide useful data and markers for measuring the success of policies and systems to promote equality. However, the traditions and cultures in other Member States are very different from our own on these points and it would therefore not have been practical for inclusion in the Directives. The Action Progamme will, of course, provide useful opportunities to exchange best practice on such matters and to further the promotion of equality generally.

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