Select Committee on European Union Ninth Report




23. All witnesses welcomed the fact that the Community was acting to combat discrimination. There was broad support for the view put forward by Mme Quintin for the Commission that "When you come to fundamental human rights and it is a case of anti-discrimination, legal action … is required". The Government confirmed that they are "firmly committed to the principles in Article 13 of Amsterdam and … welcome the Commission's proposals as an important contribution to combating discrimination and exclusion both in Member States and applicant countries". They also reminded the Committee that "All governments signed up to Article 13 … and successive European Councils have supported action." This wholehearted tone was echoed by a number of witnesses. Elizabeth Hodder said that the Equal Opportunities Commission ("EOC") "supports the principles enshrined in Article 13 and welcomes the European Commission's proposals as a step forward in combating discrimination and exclusion". Dr Benjamin Bowling and colleagues from Kings College London concluded their written submission by saying that "The … initiatives should be given full support. The proposals play an important symbolic function by making a clear declaration that discrimination is unacceptable and unlawful and that there are minimum standards that apply across the European Community". The race Directive would "ensure that a glaring lacuna in EC anti-discrimination law is remedied". Dr Lisa Waddington wrote that "The right to protection against discrimination is a human right recognised in most regional and international human rights texts … it is difficult to escape the conclusion that a Community Directive will result in benefits to the (potential) victims of discrimination" (QQ 47, 1, 2, 136, pp 5, 19).

24. Other witnesses qualified their support in varying ways. The CBI wrote that "the Directives deserve support in principle, as they address unacceptable forms of discrimination which are inconsistent with the free movement of labour within the single market". EurolinkAge also welcomed the Commission's initiative "in principle". The TUC wrote that it "broadly" welcomed the proposals, while Liberty "warmly" welcomed them, but expressed reservations about the approach adopted (pp 57, 28, 65).

25. A number of witnesses drew attention to the achievements of EC sex legislation, and expressed the hope that the effect of the present Directives might be equally dynamic. Elizabeth Hodder of the EOC said, "By reliance on European Union law the Equal Opportunities Commission has overcome barriers to the equal treatment of men and women, which in many cases have been beyond the reach of domestic statutes". Barbara Cohen of the Commission for Racial Equality ("CRE") said that "if you look across all of the Member States of the European Union you will see fantastic strides that have been made in relation to equal treatment between men and women". She argued that "the law often leads and is often able to bring about quite significant changes in behaviour". (QQ 136, 122).

26. 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 on 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.


27. There was universal agreement among witnesses that in principle EU action met the test of subsidiarity. The Government (despite the reservations noted above) accepted that "European Union action is necessary". The TUC argued that it was "unlikely in the extreme" that the potential benefits of the proposals "would be achieved by relying on unilateral action by member states or on informal means … The TUC's partner federations … have little confidence in progress without the EU providing a catalyst". The CBI said that the Directives addressed "genuinely transnational issues", and agreed that "the Directives meet the subsidiarity and proportionality tests and deserve support". Dr Bowling also agreed that "action at EU level will produce clear and immediate benefits that are unlikely to be achieved by Member States acting alone" (QQ 2, pp 28, 57, 2).

28. The Committee believes that in principle the proposed measures meet the test of subsidiarity.


29. Unlike the prohibition of discrimination on grounds of nationality in Article 12 of the EC Treaty, or the principle of equal pay for equal work in Article 141, Article 13 merely empowers the Council to act, and is unlikely to be directly effective. It lays down general principles, but for these to be implemented, Community legislation (agreed unanimously by the Member States) is required.

30. The Commission could have proposed legislation in the form of Regulations or Directives. While Regulations are directly applicable in the Member States,[28] Directives have to be implemented by means of national legislation-in this case two years from adoption is proposed. Directives are generally less detailed and prescriptive than Regulations. They set out guiding principles and objectives, leaving Member States some discretion on how to implement these principles in ways appropriate to their diverse legal traditions. The Commission's choice of Directives to implement Article 13 was explained by Mme Quintin in her oral evidence: "in respect of both the principle of subsidiarity and proportionality it is better to address the issue on a very broad, objective basis while leaving for Member States a lot of margin of manoeuvre to adapt their legislation in response to their specific cultural diversity" (Q 37).

31. 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 with 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. Our reasons for this conclusion are given in detail below.


32. A number of witnesses noted that the impact of the proposals would be less marked in the United Kingdom than some other Member States, where there was relatively limited anti-discrimination legislation. Bob Purkiss of the CRE, speaking also as the UK's representative at the European Monitoring Centre on Racism and Xenophobia, confirmed that UK legislation was particularly developed: "Holland has caught up a little bit and there are some other areas where people are looking but nowhere in as much depth as we have, not just on the application of the legislation but the enforcement factor". Several witnesses pointed to the potential economic benefits, particularly to UK businesses, of bringing greater consistency to anti-discrimination legislation throughout the Community. Gay Moon of JUSTICE argued that unjustified discrimination would no longer "be used by Member States to obtain an unfair economic advantage". John Cridland of the CBI also said that "competition between companies on the grounds of unacceptable discrimination is inappropriate". He alluded to anecdotal evidence from member companies of "the difficulties of moving employees around Europe because of some forms of discrimination in certain other Member States". He agreed that such difficulties particularly affected "British citizens of ethnic minority origins". Kay Carberry of the TUC similarly referred to "anecdotal evidence": unions had "recorded people who have found it difficult both to get social provisions, such as housing, and also simply to get into employment" in certain other Member States (QQ 104, 268, 159-60, 66).

33. 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.


34. In the light of the variations between Member States most witnesses agreed that the Commission was right to try to set "minimum common standards". Mme Quintin confessed that the level of protection offered by the framework Directive was fairly low, but argued that this was the only possible approach: "We have to be realistic in what we can achieve at European level". In her written submission she was more positive:

The CRE agreed that the Directives set "the maximum level of 'minimum common standards' on which there is some prospect of securing unanimous support by the Council of Ministers". The European Network Against Racism ('ENAR') would have liked to see "maximum solutions", but conceded that the approach adopted was "appropriate under the circumstances." The Northern Ireland Equality Commission believed that this approach was "the only one likely to succeed in terms of securing the necessary support of the Council of Ministers". JUSTICE went further, saying not only that the "minimum standards approach … is the right and appropriate one", but that these standards would set a "base line" and so "create an expectation that there will be a non-discriminatory approach to decision making". Dr Waddington emphasised that the Commission's approach "allows for the establishment of basic common standards whilst providing scope for Member States to maintain and establish higher levels of protection". Liberty, on the other hand, argued that while the Directives contained much that was "worthy of support", the minimum common standards approach was "necessarily a limited one which is not, and will never be, sufficient to secure equality" (Q 38, pp 14, 39, 10, 6, Q 268, pp 19, 68).

35. 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 other 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.


36. A related issue concerns the impact of these proposals on enlargement and on the candidate countries. The problems of discrimination (against the Roma, for instance, or those with learning disabilities) are particularly acute in parts of eastern Europe. While the candidate countries may be able to enact laws in this area, it will be harder to change the deep-seated prejudices and cultural traditions which lead to discrimination. The Commission's view was that the proposals were "a clear message for the candidate countries that the acquis of the Community is also an acquis about the respect of fundamental rights". The Commission is keen for the Directives to form part of that acquis (which candidate countries would be obliged to implement upon entry) before the number of Member States grows, especially as measures under Article 13 must be agreed unanimously by the Council. Furthermore, in accordance with the Commission's Communication on countering racism, xenophobia and anti-Semitism in the candidate countries[29], the Action Programme will be opened up to their participation. The CRE agreed in their written evidence that the Action Programme could have "a very significant effect" on the approach adopted towards all forms of discrimination, and suggested that "this will be particularly felt by the candidate countries." In his oral evidence Mr Purkiss addressed this issue in more detail. He accepted that "you do not change cultures overnight", but argued that it was still necessary to regulate practices "that are against the standards that we accept in what we call our civilised society". He continued, "you use legislation to win people over to the concept of doing something which is right". He also suggested that the candidate countries "actually want to leapfrog … They do not want to say they have to play catch-up". A result of this eagerness in Slovakia has been discussion between the European Monitoring Centre on Racism and Xenophobia and the Slovakian police on how to "change cultures" (Q 53, p 43, Q 120).

37. 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.


38. One of the proposals is for a "framework" Directive, which provides for equal treatment in employment on all the grounds included in Article 13 (with the exception of sex). The other is for a Directive "implementing the principle of equal treatment" in a wider range of areas, but only on the grounds of racial or ethnic origin. However, the Directives do not fall into the conventional relationship between "framework" and "implementing" or "daughter" Directives. Mme Quintin confirmed that they "should not be seen as a framework Directive and its daughter" (Q 35). In other words, the race Directive can stand alone, and is not intended to provide for detailed implementation of general principles set out in the framework Directive.

39. A consequence of the wish for both Directives to be able to stand alone is an apparent duplication between them, in that they both deal with race discrimination in employment. To deal with the duplication the Commission has explained that if one proposal were to be adopted before the other then the remaining proposal would be amended to remove any overlap. So if, for example, the race Directive were adopted first the term "racial or ethnic origin" could simply be deleted from Article 1 of the framework Directive; if the framework Directive were adopted first then presumably Articles 3(a)-3(d) would be deleted from the race Directive. This approach has created confusion: Mr Lakin of the EOC described the Commission's approach as "anomalous … it … provides a duplication, the reason for which is not really clear" (QQ 35, 138).

40. The peculiar relationship between the Directives can be explained in part by the Commission's determination to address all the grounds of discrimination listed in Article 13 (including race but excluding sex) in a single instrument. As Article 13 does not differentiate between the various grounds, the Commission's view seems to be that it would be invidious to create differences by legislating on some of the grounds but not all. By covering all the grounds in the framework Directive the Commission seems to be trying to establish parity between them. Mme Quintin argued that "the Intergovernmental Conference agreed to an article which authorises the Community to combat discrimination across the board, rather than tackling each ground of discrimination separately". It may indeed be that in certain Member States there is little desire to combat discrimination on some of these grounds—for instance, age or sexual orientation. However, as Mme Quintin pointed out, "the heads of state and governments have … put sexual orientation in the context of Article 13". In other words, an initial commitment to combating discrimination on all the grounds included in Article 13 has already been made by all the Member States, and is embodied in the EC Treaty. Mme Quintin asked, "would it have been wise … for the Commission to decide not to cover one ground which had been agreed by the heads of state and governments to put in Article 13?" The Commission clearly believes this is the most opportune moment to capitalise on the Council's commitment by adopting an instrument granting some form of protection, however limited, to all the groups. In Mme Quintin's words, "we needed to cover all the grounds of discrimination in Article 13 and to go as far as politically possible in each" (QQ 35, 39, p 24).

41. The Commission would seem therefore to interpret Article 13 as mandating or indeed requiring simultaneous "framework" legislation on all the grounds of discrimination. Several witnesses, on the other hand, argued that as drafted the framework Directive was not sensitive enough to the differences between the various forms of discrimination. The Disability Rights Commission ("DRC") advocated a single Directive comprising several sections, "each section being given over to the protection to be afforded to a specific group". This would affirm the general principle of non-discrimination, while allowing the legislation to respond to the different ways discrimination affects different categories of people. However, the DRC questioned the wisdom of "attempting to legislate to uphold the rights of very different groups using the draft Directive's present structure". Other witnesses, particularly those representing disabled groups, went further, arguing that a single framework Directive could not be sensitive to the differences between the various forms of discrimination. Instead they advocated a "sectoral" approach, akin to that adopted in the United Kingdom, and urged the Commission to come forward with separate Directives on each of the grounds listed in Article 13. Mencap said that "we do not think that the proposals will combat discrimination against disabled people effectively until the European Commission proposes a disability specific directive". The Royal Association for Disability and Rehabilitation ("RADAR") expressed disappointment that such a "disability specific" Directive had not been put forward, as did the Royal National Institute for the Blind ("RNIB"), who also hoped that such a Directive would be proposed "in 2003". On the other hand, the same witnesses, in oral evidence, admitted that pragmatically there might at present be no better alternative to the framework Directive. In John Wall's words, "it is a great shame that the Commission did decide to have a horizontal Directive covering everything, except gender, but one sometimes feels that one is left with the pianist and one does not want to shoot him" (pp 89, 85, 91, Q 237).

42. The representatives of EurolinkAge expressed a different view. Age is another area which does not easily fit into the model of sex or race discrimination laws. In their written submission EurolinkAge summed up the advice they had given to the Commission before the publication of the proposals:

EurolinkAge considered that the proposed framework Directive in fact contained so many justifications for discrimination on grounds of age that it would "not produce any clear benefits for older workers in Europe who currently suffer from age discriminatory practices … [it] may in fact have the effect of helping to legalise age discrimination in Europe" (pp 77, 76).

43. In the areas of age and disability discrimination, witnesses were agreed that the "one size fits all" approach of the framework Directive, as presently drafted, was seriously flawed. However, most witnesses agreed with the disability groups that some form of legislation was better than none, and would help to establish the principle of equal treatment and to prepare the ground for future, more far-reaching sectoral legislation. Robin Allen of JUSTICE argued that "by putting [age] in the framework Directive, if the Council passes it in due course, it is firmly on the agenda for every Member State". He went further, suggesting that new legislation would create a "learning curve" for courts, allowing its scope to be extended over time: legislation, he said, "unquestionably takes the debate forward". Dr Waddington pointed out further that although the draft framework Directive covered the various grounds in a single instrument, Member States would be free "to maintain or adopt individual national instruments addressing discrimination on specific grounds" (Q 282, p 16).

44. Arguably the benefits of a sectoral approach are illustrated by the present package's emphasis on race, which was welcomed by most witnesses. Mme Quintin drew attention to "recent events" (notably in Austria) which demonstrated the importance of being "reasonably ambitious in combating race discrimination"; she also noted that "the political will existed to go further in the field of race discrimination than in some of the 'newer' grounds". The Government placed the emphasis on race in context, stating that it

Of the other witnesses, JUSTICE were particularly insistent that "a specific focus on race is absolutely vital at this stage of development in the community". Dr Bowling, on the other hand, took the view that "the Commission should be asked to explain why it is creating a hierarchy of protection in relation to the material scope of EC anti-discrimination law" (QQ 38, 35, pp 9, 107, 3).

45. 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 groups 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 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 the other grounds should not be too generalised—to be effective its provisions must take account of the differences between the specific grounds of discrimination.

46. 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 the other areas 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 the race and framework Directives must be clearly resolved.

47. 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 of the 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 comprising 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 the 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.

28   That is to say, they apply in each Member State without the need for national implementing measures. Back

29   COM (1999) 256 final. Back

30   See the Presidency Conclusions to the Tampere European Council (15/16 June 1999), para. 19. Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2000