Select Committee on European Union Ninth Report


EU PROPOSALS TO COMBAT DISCRIMINATION

BURDEN OF PROOF

137. Articles 8 of the race Directive and 9 of the framework Directive reverse the burden of proof: once the complainant has shown "facts from which it may be presumed that there has been direct or indirect discrimination", then it will be the responsibility of the respondent "to prove that there has been no breach of the principle of equal treatment". This provision is worded identically to Article 4 of the Burden of Proof Directive (97/80), which deals with sex equality and is already binding on the UK. Barbara Cohen of the CRE confirmed that the Government has accepted in principle that for the sake of consistency "the same provision should apply in the Race Relations Act".[43] However, it is not contained in the Race Relations (Amendment) Bill currently before Parliament (Q 113).

138. Mr Burden, Chief Constable of the South Wales Police, while accepting that the burden of proof in sex discrimination cases would be changed from 2001, expressed concern that it might open up "an avenue of expensive litigation". Other witnesses were much more positive. Liberty, for instance, welcomed the change, arguing that once a prima facie case of discrimination had been shown, it was proper for the respondent to have to disprove it, "because of the inherent difficulty faced by an applicant in proving that an act was done on grounds of race, sex, age, etc, whereas it is easier for a respondent to prove that it was not". (pp 5, 68)

139. 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.

VICTIMISATION

140. Articles 9 of the race Directive and 10 of the framework Directive deal with victimisation, requiring Member States to introduce measures to protect individuals against adverse treatment (including dismissal) provoked by their complaint. The two Articles are not identical: Article 9 refers to treatment "motivated … as a reaction to a complaint", whereas Article 10 does not mention motivation.

141. The reason for this difference in wording remains a mystery. Mme Quintin, when asked this question in writing, failed to provide an answer. Those witnesses who commented on the difference also expressed puzzlement, but offered differing advice on the relative impact of the two Articles. Dr Waddington said the reference to motivation was "arguably stronger and should be adopted in both proposals". JUSTICE took the opposite view, arguing that Article 9 "appears to be limited to acts of victimisation which are consciously 'motivated'", and that it was therefore weakened, as "intention can be very difficult to prove"[44]. Professor Hepple described the reference to motivation as "defective" (pp 27, 18, 111-12, 132).

142. 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.

DISSEMINATION OF INFORMATION AND SOCIAL DIALOGUE

143. Articles 10 of the race Directive and 11 of the framework Directive require Member States to ensure that adequate information on the provisions in the Directives is supplied to workplaces, and educational and vocational training bodies. Competent public authorities should also be informed of all national measures taken pursuant to the Directives. Articles 11 and 12 respectively go on to require Member States "to promote social dialogue between the two sides of industry with a view to fostering the principle of equal treatment". Employers and Unions should be encouraged to conclude agreements "laying down anti-discrimination rules" in those areas falling within the scope of collective bargaining.

144. The Government EM questioned these requirements on grounds of subsidiarity. The DfEE argued that the provisions on dissemination of information were "best decided at national or local level", while those on social dialogue were "over prescriptive". Ms Marshall of the Home Office also told the Committee that the Directives "should not prescribe so much detail in terms of how we … go about, for example, negotiation with the social partners which would cut across the well established practices that we have in this country". However, several other witnesses disagreed with the Government's view. Kay Carberry of the TUC expressed puzzlement at the Government's response, arguing that "if there are new legal requirements being placed on employers" it would be essential "for employers to know exactly what they are so they do not fall foul of them". She pointed out that the Government "readily disseminates information about new initiatives". She conceded that the Articles on social dialogue might seem "rather prescriptive", but insisted that they would help unions and employers to build up "arrangements that suit particular workplaces" rather than relying on litigation. Mme Quintin drew attention to the extent to which some other Member States (she cited the Scandinavian countries and Italy) had a "stronger tradition of social partnership" than the United Kingdom. The CRE agreed that the provision on social dialogue recognised "the value of engaging both sides of industry in the promotion and monitoring of equal treatment". JUSTICE argued that adequate dissemination of information was "essential for any effective anti-discrimination legislation", while the provision on social dialogue was "unexceptional" (QQ 3, 74-75, 51, pp 41, 111).

145. Disabled groups went further still, arguing that the requirements on dissemination of information did not go far enough. The RNIB said that the Article 11 of the framework Directive "should specifically refer to the need for dissemination of information in accessible media". Mencap argued that "the Explanatory Memorandum attached to the Directive should be amended to specify that the needs of people with a learning disability should be taken into account when information is provided" (pp 91, 87).

146. 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 emphasise the need for information to be readily accessible to disabled people.

INDEPENDENT BODIES

147. Article 12 of the race Directive has no equivalent in the framework Directive. It requires the establishment of an independent body or bodies for the promotion of the principle of equal treatment between persons of different racial or ethnic origin. The Commission for Racial Equality currently performs this function in Great Britain, but it does not possess all the powers demanded by Article 12(2), in particular that of bringing proceedings on behalf of individuals. Other functions described in Article 12(2) (which the CRE already does) include starting investigations or surveys concerning racial discrimination and publishing reports and recommendations.

148. Two areas of concern were raised by witnesses. First was the fact that Article 12 of the race Directive contains no equivalent in the framework Directive—while there will be a body or bodies to promote equal treatment regardless of race, no bodies (such as the DRC) are required for the promotion of equal treatment for victims of discrimination on the other grounds. Mme Quintin argued that the establishment of independent bodies was better left to Member States, some of which already achieved similar results through social dialogue—"codes of conduct, codes of practice, collective bargaining in some cases". There was a risk that a requirement for an independent body would "overload" these countries. JUSTICE agreed that this would be "quite new amongst most Member States", and might be left to a "later stage". Dr Waddington, however, argued that the framework Directive "would be strengthened" by an article providing for such independent bodies. Dr Bowling described the lack of such a provision as "a significant omission". The Government fully acknowledged "the value of having independent bodies to promote equality such as our own equality commissions". However, they continued by saying that they were "not convinced that a single body covering all the grounds … would be the most effective structure. In any case, we consider that such issues should be a matter for individual Member States". It is unclear from this whether the Government meant that the provision of independent bodies should be left to Member States (so agreeing with Mme Quintin), or simply the question of whether to have several such bodies or a single equality commission. The latter issue was also addressed in the course of the inquiry. Sir Robert Cooper drew attention to the creation of a single Equality Commission in Northern Ireland, which amalgamated four separate organisations. A single organisation helped employers, who could be confident that they were not receiving "four different pieces of advice" from four organisations. There had to be a limit to the number of different Commissions on the UK mainland: "there obviously must come a time when you start saying to yourself, 'Is this sensible?'" Professor Hepple agreed: "we should aim towards a single Equality Commission in order to get consistent enforcement and share experience and give it greater authority". However, there were strong practical reasons against moving in this direction at present, not least the wish to give the DRC time to bed down (QQ 51, 283, pp 18, 4, 11, QQ 297-98, 341).

149. 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.

150. The description in Article 12(2) of the functions of the independent bodies also raised concerns. Article 12(1) describes their purpose as "the promotion of the principle of equal treatment between persons of different racial or ethnic origin". Article 12(2) says that they are to "receive and pursue complaints from individuals about discrimination". In other words, they would have a policing as well as a promotional role. This would, in the CRE's own words, "require a change in the law that could to some extent alter the CRE's ways of working". There would be a similar change in the functions of the Northern Ireland Equality Commission. Witnesses were divided on whether this would be desirable. Chitra Karvé of Liberty cited subsidiarity to argue that the UK's Commissions, which had "operated extremely well", should not be changed. Professor Hepple highlighted the difficulty of combining "the roles of friend and policeman"—employers found it difficult to work with a body which might later bring evidence against them. On the other hand, he accepted that positive action had to be backed up "somewhere in the background" by "a fairly strong sanction". On this point he echoed Sir Robert Cooper, who claimed that the stronger policing powers granted by the 1989 Fair Employment Act greatly increased the effectiveness of the Northern Ireland Commissions: "employers know that they are there. We very rarely even have to threaten to use them because again employers … know that they could be used if need be" (pp 41, 8, QQ 209, 340, 315).

151. The Committee was also alerted to the risk of returning to the situation established by the Race Relations Act 1968, where individuals could not bring cases independently, but were obliged to go through the Commission. This turned out to be an unsatisfactory arrangement, which was overturned by the Race Relations Act 1976. Mme Quintin provided a clear answer to this question: "[The Article] provides that the independent body must have the power to pursue complaints brought to its attention, but does not impose an obligation on the independent body to pursue any such complaints. Equally, the Directive does not prevent individuals from bringing their own actions independent of these bodies". This confirms that the independent bodies, like the organisations described in Article 7, would be entitled, but not compelled, to bring actions on behalf of individuals (p 25).

152. 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.

MISCELLANEOUS

153. The remaining Articles are miscellaneous general provisions. Article 13 of both Directives requires full compliance on the part of Member States. Article 14, already mentioned, requires them to provide for "adequate sanctions" against those who infringe national provisions made in implementation of the Directives. Article 15 allows them two years in which to implement the provisions of the Directives. These Articles did not raise any controversy in our inquiry.

OMISSIONS FROM THE DRAFT DIRECTIVES

154. The principal omission to which witnesses drew the Committee's attention was the failure of the draft Directives to encourage public authorities or employers to promote equality of opportunity. Such measures might include the imposition of a general duty on public authorities to promote equality; the setting of targets for employers accompanied by the monitoring of their achievement of these targets; grant or contract compliance schemes. A duty to promote racial equality will be laid on public authorities in Great Britain by the Race Relations (Amendment) Bill currently before Parliament. Public authorities in Northern Ireland are already under such an obligation by virtue of the Northern Ireland Act 1998.

155. Professor Hepple, drawing on the information gathered in the course of the "Independent Review of the Enforcement of UK Anti-Discrimination Legislation", saw the absence of such provisions from the Directives as indicating a basic failure to appreciate what makes anti-discrimination legislation work. He argued that "legislation and action programmes should adopt an inclusionary approach which stimulates employers and others to take practical steps to achieve fair participation and diversity". Experience in the United States and Canada, as well as in Northern Ireland, demonstrated how "it was the requirements for monitoring, positive action … which had really changed things". In contrast, our current legislation was based on "retrospective … fault finding" which fostered an "adversarial approach rather than one in which [employers] would be positively trying to find solutions, improving and changing the quality and composition of the workforce". He suggested that the proposed Directives were harking back to "the 1970s British model" rather than drawing on more recent experience. They should be proposing "a positive duty on public authorities" and they should at the very least "encourage employers in the private sector to implement employment and pay equity plans … monitoring on its own cannot achieve equality of opportunity but it is integral to employment equity plans or equality schemes because it establishes starting points" (Q 325).

156. Sir Robert Cooper, describing his experience as Chairman of the Northern Ireland Fair Employment Commission (now merged with other Commissions into the Northern Ireland Equality Commission), confirmed that positive action had been most effective in achieving equal opportunities for Protestants and Catholics:

Employers had formerly done "very little", but strict monitoring requirements had had a "dramatic effect". Whereas cases in the courts "are designed to deal with individual discrimination", it was the "employment policies, the employment practices, which adversely affect one community". Monitoring requirements had forced employers to put equality "on the board room agenda". Grant and contract compliance, on the other hand, was "a weapon which you need to use if you have weak legislation"—it affects only the limited number of companies "who are very heavily dependent on public contracts" (QQ 294, 302-03).

157. Liberty agreed that "positive obligations and requirements, such as monitoring", were valuable, and regretted that the proposed Action Programme followed a "voluntaristic approach", which was "unlikely to have a significant effect". Ideally one wanted "positive steps … interacting with the negative prohibitions in attempting to move … potential discriminators … towards behaviour which promotes equality" (p 67, Q 211).

158. Sir Robert Cooper and Professor Hepple agreed that monitoring requirements did not in fact impose a heavy burden on employers. There had been resentment at first in Northern Ireland, but employers now regarded it as "part of normal business … it is not a major imposition". Professor Hepple stated that both in the United States and in Northern Ireland employers had found "initial start up costs", but now agreed that "the benefits out-weigh the costs". Employers tended to be initially resistant, but had been convinced of the business case—"that they are getting a better quality workforce if it is more diverse" (QQ 294, 346).

159. However, Professor Hepple accepted that it would be difficult to convince even British companies of the benefits of setting targets and monitoring, and that it would be still harder to make the case "in other European countries which have not even thought about it". The same point was also made by Kay Carberry of the TUC, who saw monitoring as "essential", but accepted that one needed "something that all 15 Member States are going to be able to sign up to". Adam Tyson, for the Commission, noted the sensitivity of the issue of monitoring in many Member States, in some of which "it is actually unlawful to keep such information". He hoped that through the Action Programme it would be possible "to explore with Member States who have more difficulty with the idea of monitoring how it can be introduced or what forms of monitoring can be developed … we agree with the principle that monitoring is extremely effective to assess the effectiveness of the legislation". It is not clear what form of monitoring Mr Tyson was referring to here—whether at the level of the individual business, or, at the other extreme, at the Europe-wide level of the European Monitoring Centre on Racism and Xenophobia. Ms Marshall of the Home Office took the view that monitoring had to be of "a sensible and practical nature, rather than a mandatory nature in terms of burdens on business". However, the Government would be "bringing forward proposals about the duty to promote [equality] on public authorities" (QQ 346, 101, 51, 29).

160. Effective anti-discrimination legislation must do more than provide individual remedies for the victims of discrimination—it must actively encourage public authorities and employers to promote equality. We welcome the Government's stated intention to bring forward proposals on requiring public authorities to promote equality. We recognise that the inclusion in the draft Directives of provisions on monitoring and the setting of targets for employers might present serious, possibly insuperable, obstacles to securing the agreement of the Member States. However, we believe that the Directives could give greater encouragement to Member States and employers to introduce positive equality policies.

161. Monitoring should not be seen simply as a device for assessing the effectiveness of legislation. It should be seen as a positive and proactive requirement for employers to examine their own practices and policies with a view to creating equal opportunities for all. It is crucial that employers should monitor themselves, rather than that monitoring should be imposed on businesses from outside. We believe therefore that the benefits and costs of monitoring and other initiatives to promote equality should feature prominently in the Action Programme. Experiences within Member States and in other jurisdictions should be shared and evaluated with a view to considering whether there may be scope for EU-wide action in the future.


43  
See the recommendation of the Better Regulation Task Force: Anti-discrimination Legislation Review, May 1999. Back

44   The House of Lords decided in Nagarajan v London Regional Transport [1999] IRLR 572 that victimisation did not require motivation. Back


 
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