Select Committee on European Union Ninth Report


EU PROPOSALS TO COMBAT DISCRIMINATION

CONSISTENCY AND THE RELATIONSHIP OF THE DRAFT DIRECTIVES TO EXISTING LEGISLATION ON SEX DISCRIMINATION

48. Sex is the only one of the grounds of discrimination included in Article 13 not to be covered by the new proposals. In the United Kingdom the SDA and RRA have always been similar in scope and in the remedies they offer, reflecting a general perception that discrimination affects women and members of racial minorities in broadly similar ways. The scope of the present race Directive, on the other hand, is considerably wider than that of existing European sex discrimination legislation, which covers only employment and occupation. The EOC criticised the Directive because it "contains concepts and measures which are not replicated in the Directives on equal treatment between men and women … This could give rise to different standards in European Union law, which would create uncertainty and confusion" (p 52).

49. Sex is excluded from these proposals, according to the Communication, because it "has been covered by important Community legislation going back as far as the 1970s", and because it "has a specific legal basis for action in the employment field", namely, Article 141 of the EC Treaty, which was strengthened at Amsterdam (Article 13 states that action should be "without prejudice to the other provisions of this Treaty", which precludes action in areas where the Treaty gives some other, more specific authority to act). Mme Quintin confirmed that the Commission was "thinking of using the new provisions of the Treaty, Article 141 on sex equality, with a view to adapting the sex equality legislation also in the light of what will be done with Article 13 for the other areas of discrimination".[31] However, Article 141 covers measures on equal treatment between the sexes only in "employment and occupation", and it therefore appears that the Commission does not envisage extending the material scope of sex discrimination legislation beyond that of the framework Directive (Q 50).

50. 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.

51. Another issue concerns consistency. The Government and the CBI both emphasised the fundamental requirement that we should avoid "fuzzy law", that there should be "more certainty in employment law and in equal opportunities law". Professor Hepple also emphasised that "legal standards must be clear, consistent and easily intelligible", and lamented the fact that the Commission has "created different standards in respect of the 'new' (article 13) grounds of discrimination compared with those under the directives relating to equal treatment between men and women". Examples of these different standards include the definition of indirect discrimination (which differs considerably from that found in the Burden of Proof Directive[32]), or the Articles on positive action, which for no clear reason fail to follow exactly the wording found in Article 141(4) of the EC Treaty. There are also unexplained variations between the provisions in the two proposed Directives themselves—for instance in the Articles on victimisation. These and other inconsistencies will be analysed in detail below (QQ 4, 161, p 129).

52. 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 the 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.

THE PROPOSED ACTION PROGRAMME

53. The Committee did not look in great detail at the proposed Action Programme. As stated above (para. 19), the Programme contains three strands. The first aims to improve the understanding of issues related to discrimination through the development of statistical bases, benchmarks, and "indicators to assess the effectiveness of anti-discrimination policies". The second aims to develop the capacity of the "target actors" through the transnational exchange of information and good practice. The third aims at raising public awareness of the fight against discrimination, in particular of its EU dimension. Article 8 of the proposal opens up the Programme to the participation of the candidate countries of central and eastern Europe, Cyprus, Malta and Turkey, along with the EFTA/EEA countries.

54. Mme Quintin for the Commission emphasised that the Action Programme was "an important element in the Commission's overall strategy". It was "intended both to support the implementation of the Directives", and to "promote progress in areas which are not easily susceptible to legislative action, such as participation in decision making or the monitoring of discrimination through development of statistics and benchmarks" (Q 35).

55. Most other witnesses reacted favourably to the Action Programme. Dr Bowling stated that it should be "fully supported", and suggested that its goal of "longer term changes in attitudes … supports the UK government's commitment to change after the Lawrence inquiry". Some groups welcomed the prospect of receiving new funding through the Action Programme. Stonewall commented that "lesbian and gay organisations are usually very poorly funded", and warmly welcomed the commitment to "develop the capacity of target actors". Mencap, on the other hand, argued that along with common actions covering all the groups there should be "specific and separate actions for each of the five target groups, including disabled people. For this, there should be specific, earmarked funding". The RNIB agreed, arguing that the Programme should "ring-fence" funding for each group, and expressing the hope in the longer term for "an action programme dealing specifically with discrimination against disabled people". EurolinkAge reacted to the list of justifications of discrimination on grounds of age in the framework Directive by suggesting that the Programme should "put special emphasis on investigating the feasibility of measures and initiatives in the field of age discrimination". It should "test the political will among Member States" for further measures (pp 3, 14, 85, 91, 78).

56. While welcoming the Programme warmly in principle, the CRE lodged a more substantial objection. The proposal was only descriptive: it was hard to see "exactly how much … will be implemented in practice, where information to be shared amongst member states will be located or how information will be collected, reviewed and then disseminated". There was a need for "precise targets" and "evaluation methods", and for this reason the CRE recommended "the establishment of a central agency to facilitate full implementation of the proposals" (p 38).

57. The CBI expressed the further reservation that the Programme might be "unduly restrictive". The focus on "transnational co-operation through conferences and seminars", for example, "means equal opportunities could remain the preserve of policy makers and practitioners—in essence, preaching to the converted". In his oral evidence Mr Cridland developed the point: "We would have liked to have seen more initiatives at the local level, more promotions of local activity in order to get these messages down to where they can really make a difference" (p 59, Q 173).

58. The Committee welcomes the proposal 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.

THE TEXTS OF THE DRAFT DIRECTIVES

59. It has already been stated (para. 47) that the Committee feels that the structure of the framework Directive should distinguish more clearly between the various forms of discrimination, and our comments should be read with this reservation. However, we received evidence touching on almost every aspect of the content and drafting of the proposed Directives, and our detailed comments on them are set out below.

60. In many respects the same comments apply to both Directives, which are similarly drafted. Therefore this summary of evidence will go through the Directives together, Article by Article, except in the few cases where one Directive contains provisions which are not in the other. Such provisions (for example, Article 5 of the framework Directive on age discrimination) will also be examined in sequence. First, however, a more general issue, concerning the drafting of the proposal, must be considered.

DEFINITIONS

61. The lack of definitions of key concepts is one of the most striking features of the proposed Directives. The grounds of discrimination ('racial or ethnic origin', 'disability', and so on) are not defined; nor are concepts such as 'social advantages', or 'positive action'. Definitions are, however, provided for direct and indirect discrimination, and these will be considered in due course.

62. The Commission's approach was described by Mme Quintin. The draft Directives were "proposals which set objectives without going into too much detail as to how those objectives should be achieved". The lack of detail would leave Member States "a lot of margin for manoeuvre to adapt their legislation in response to their specific cultural diversity". This was the only realistic approach: "we have deliberately chosen not to define the various grounds of discrimination but to leave it for the definition of Member States, in particular in the case of disability, because we know all the differences and all the difficulties which have been encountered … when it has been discussed to come to a common definition". However, the inclusion of Article 13 in the EC Treaty means that any measures to which it gives rise will be justiciable by the European Court of Justice. The Committee suggested to Mme Quintin that any definitions supplied by Member States in their implementing legislation would necessarily be subjected to the scrutiny of the ECJ, with the result that Community definitions would ultimately be necessary. Mme Quintin did not answer this point, but simply repeated her statement that "we believe that it is better to leave this issue to be dealt with in each individual national context" (QQ 35, 37, 43, p 25).

63. Other witnesses advanced widely differing opinions on this question. The Government broadly agreed with the Commission: "In the interests of subsidiarity we feel that it should be left to Member States to work out their own definitions within guidelines provided by the text of the Directive" (however, the draft Directives contain no such guidelines). Bert Massie (DRC) accepted that the Commission's approach was at least realistic: "if you have no definition [of disability], you have the advantage that at least the EU countries could agree on it". Professor Hepple, addressing the question of "religion or belief", echoed this view: "I am not sure that given the great differences among the 15 Member States and the enlarged Union one could really begin to have a definition which would satisfy all Member States. It may therefore be better to leave this … to case law development". It is notable however that Professor Hepple envisaged definitions evolving in the courts: "Ultimately the European Court of Justice has to decide the question". When challenged on the problems faced by those with learning disabilities, he argued that "if you leave [the Directive] fairly open-textured you do give the opportunity for development of the concept to deal with [such] situations". In this respect Professor Hepple echoed those disability groups who were also willing to rely on judges. John Wall (RNIB) suggested that the Commission's approach would allow greater flexibility: "I think that if it is left to judicial interpretation … I have sufficient faith in the judges of [the ECJ] to believe that they would be able to define disability in a way which would be consonant with the ethos of the time. This is one of the great advantages of common law over statute law" (p 11, QQ 246, 328, 333, 332, 245).

64. Thus even those witnesses who supported the Commission's decision not to provide definitions of key concepts, including the grounds of discrimination, did so on the understanding that definitions produced by Member States would be subjected to the scrutiny of the ECJ. The process was summed up by Dr Waddington:

65. Other witnesses argued strongly for the inclusion of definitions in the proposals. Neil Betteridge (RADAR) accepted that a definition of disability would have to be produced by the ECJ. However, he described this process as "immensely burdensome in terms of bureaucracy and time delays, and it is also very burdensome on the individual disabled person". He grounded a further objection in a "sense of justice": "if the purpose of this Directive … is … that across the European Union people have a broadly similar sense of their rights … then anything which enshrines this fragmented approach … undermines that". Indeed, in the course of the inquiry it came to the Committee's attention that in January 2000 the Commission had in fact invited tenders to carry out a comparative analysis of the "policy implications of different definitions of disability", with a view to recommending "possible EU approaches to enhance the comparability of definitions".[33] Mme Quintin argued that "we can make progress on the issue of anti-discrimination on disability grounds without having a common European definition while together continuing to discuss it" (QQ 247, 43).

66. Most witnesses recognised the difficulties in achieving acceptable definitions. Barbara Cohen for the CRE drew attention to the way the UK courts had been obliged to "wrestle" with the term "ethnic origin" (used in the RRA as part of the definition of "racial group"). This definition has led to anomalous effects, in that Jews and Sikhs are held to have a common ethnic origin, and therefore to be racial groups, but Muslims, for example, are not. Sir Robert Cooper, applying the same reasoning, noted that Protestants and Catholics in Northern Ireland could also be held to be "different races". In other words, definitions can lead to unpredictable consequences, which may not emerge until the definitions are subjected to judicial analysis. Ms Cohen emphasised that one had to be sure that the Directives would achieve the intended results: "you want to be absolutely certain that … some groups that consistently experience discrimination across Europe … are not excluded, particularly the Roma." At the same time, she admitted that a "precise definition" would have to be so detailed as to be "oppressive in legislation" (QQ 114, 317).

67. John Cridland of the CBI, developing the point that we needed to avoid "fuzzy law" at all costs, was less receptive to the Commission's approach. He saw the increase in the number of cases going to employment tribunals as a "very considerable burden on small businesses". Therefore, he continued, "our duty to our members is to ensure that … key definitions are … pinned down in statute and not left to case law over the coming decade". He insisted in particular that "belief" (in the context of "religion or belief") had to be defined. He also suggested that in those areas where agreement might be impossible then the Council should "ensure that … the directives clearly and unambiguously leave those subsidiary definitions to national governments" (QQ 161-62).

68. A further issue concerns direct effect. If Directives are sufficiently detailed and precise, they may have direct effect—that is to say, individuals may enforce them in national courts against Member States and "emanations of the state" (such as public authorities and service providers). A number of witnesses considered whether the lack of definitions would deprive the proposed Directives of direct effect. Most felt it would not. Mark Bell for JUSTICE argued that the "basic concepts of what constitutes unlawful discrimination" were sufficiently clear. He also pointed out that even without direct effect national law would still have to be "in compliance". Professor Hepple noted that issues of direct effect would simply have to be left to the ECJ, who would decide on how broadly to interpret key terms in the Directives (QQ 276, 333).

69. 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 comparative 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.

THE PRINCIPLE OF EQUAL TREATMENT

70. Article 1 of each Directive sets out its purpose: "to put into effect … the principle of equal treatment". Whereas the framework Directive specifies the limited application of this principle (to the field of employment) the race Directive contains no such limitation. On the other hand the framework Directive covers more forms of discrimination (all the grounds of discrimination contained in Article 13 other than sex), whereas the race Directive is limited to discrimination on grounds of "racial or ethnic origin".

71. Only one witness objected to the principle of legislation on all the grounds listed in Article 13. Mr J R Anderson, on behalf of the "Brethren", stated that "we fully uphold discrimination on moral grounds as a practice consistent with the Word of God." In particular, the Brethren objected to the inclusion of sexual orientation in the framework Directive, arguing that homosexuals could "corrupt others with whom they associate in employment". However, even the Brethren accepted that "adverse discrimination which emanates from unjustified prejudice" was wrong. In contrast, Stonewall expressed concern at the Commission's Explanatory Memorandum, which asserts that "a clear dividing line should be drawn between sexual orientation, which is covered by this proposal, and sexual behaviour, which is not". Stonewall insisted that this required "considerable clarification … if, for instance, a lesbian or gay employee had a partner would this constitute 'sexual behaviour?'" (pp 1, 13)

72. 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.

73. A further issue concerns religion and belief. Several witness were concerned that the race Directive did not also cover discrimination on grounds of religion or belief. This concern can be in part attributed to the anomalous interpretation of the RRA provided by the courts. There is no explicit prohibition of religious discrimination under United Kingdom law (other than in Northern Ireland), although direct discrimination on religious grounds may in certain circumstances also be indirect discrimination on racial grounds. Moreover, as noted above (para. 66), the RRA defines racial groups in terms of a common "ethnic origin". As Robin Allen of JUSTICE pointed out, on this basis the courts have extended protection to Jews, who "have both a racial and a religious identity", and also to Sikhs, but not to Muslims, who "do not have a racial identity simply because they are Muslims". Mr Allen's view was that "you actually cannot entirely disentangle race and religion"—while acknowledging the enormous problems of defining "religion", he felt that race and religion were "so closely interlinked that it does not make sense not to put them in together and tackle them head on". Several other witnesses agreed, including Sukhvinder Stubbs of ENAR, the Northern Ireland Equality Commission, Dr Bowling and Dr Waddington, who cited the impossibility of distinguishing between racial and religious discrimination in the case of, for example, an Asian Muslim. Several of these witnesses cited the Starting Line Group, who in 1998 put forward a proposal for a Directive covering both these grounds.[34] However, the CRE, despite having contributed to the proposals made by the Starting Line Group, said that "we have no strong views on this" (QQ 288-89, pp 10, 6, 4, 17, 39).

74. A related issue concerns the meaning of the phrase "religion or belief"—as opposed to, say, "religious belief". Potentially this would appear to encompass a wide range of political or ideological views, unconnected to race. However, witnesses who commented on this agreed that in practice the courts tended to supply sensible definitions of such phrases. Bob Purkiss of the CRE said, "How do you define [religious group]? Our best example has been that the courts have defined it quite well and defined the principles by which you identify a racial group". Professor Hepple suggested that "if you leave it to the judges they can work it out". However, if the scope of the protection offered on grounds of "religion or belief" were to be extended beyond employment and occupation, there might be problems: "would a school run by the Moonies qualify … one would have to think very carefully about whether you would need to have a kind of registered religion or a recognised religion or belief" (QQ 115, 327).

75. 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.

76. A further point concerns the extent to which the draft Directives would protect third country nationals. Recital 10 of the race Directive states explicitly that "this prohibition of discrimination should also apply to nationals of third countries", but there is no such clause in the recitals to the framework Directive. Mme Quintin confirmed that this inconsistency was "purely political"—both Directives cover third country nationals, but a political decision was made for the sake of "clarity" to make specific mention of the fact in the race Directive (Q 42).

77. 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.


31   See also the report published by the Commission in March 2000, Equal Opportunities for women and men in the European Union 1999 (COM (2000) 123 final). The Commission promises to use "Articles 141 and 3 (mainstreaming)" to introduce a new Directive to amend the ETD, "as regards access to employment, vocational training and promotion, and working conditions by including new provisions on important issues, such as sexual harassment in the workplace, and by specifying better some of the existing provisions".  Back

32   Council Directive 97/80/EC on the burden of proof in cases of discrimination based on sex (OJ L14, p. 6, 20.01.98). Back

33   See European Information Service, 206 (January 2000), p 33. Back

34   Proposals for Legislative Measures to Combat Racism and to Promote Equal Rights in the European Union, edited by Isabelle Chopin and Jan Niessen (1998). Back


 
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