Select Committee on European Union Ninth Report


EU PROPOSALS TO COMBAT DISCRIMINATION

PART 6: SUMMARY OF CONCLUSIONS

THE CASE FOR COMMUNITY ACTION

162. 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 (para. 26).

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

164. 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 (para. 31).

165. 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 (para. 33).

166. 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 (para. 35).

167. 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 (para. 37).

THE STRUCTURE OF THE COMMISSION'S PROPOSALS

168. 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 (para. 45).

169. 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 (para. 46).

170. 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 (para. 47).

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

171. 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 (para. 50).

172. 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 (para. 52).

THE PROPOSED ACTION PROGRAMME

173. 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 (para. 58).

THE TEXTS OF THE DRAFT DIRECTIVES

DEFINITIONS

174. 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 (para. 69).

THE PRINCIPLE OF EQUAL TREATMENT

175. 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 (para. 72).

176. 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 (para. 75).

177. 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 (para. 77).

THE CONCEPT OF DISCRIMINATION

178. 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 in 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 (para. 83).

179. The Committee welcomes the explicit recognition that harassment constitutes direct discrimination (para. 85).

180. 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 concept 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 (para. 91).

181. 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 (para. 93).

182. 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 (para. 95).

MATERIAL SCOPE

183. 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 (para. 99).

184. 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 (para. 102).

185. 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 (para. 104).

GENUINE OCCUPATIONAL QUALIFICATION

186. 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 (para. 106).

187. 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 (para. 108).

188. 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 (para. 111).

189. 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 1998 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 (para. 112).

AGE DISCRIMINATION

190. 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 (para. 114).

191. 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 (para. 118).

POSITIVE ACTION

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

193. 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 (para. 125).

194. 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 (para. 126).

195. 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 (para. 128).

DEFENCE OF RIGHTS

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

197. 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 (para. 134).

198. 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 (para. 136).

BURDEN OF PROOF

199. 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 (para. 139).

VICTIMISATION

200. 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 (para. 142).

DISSEMINATION OF INFORMATION AND SOCIAL DIALOGUE

201. 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 (para. 146).

INDEPENDENT BODIES

202. 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 (para. 149).

203. 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 (para. 152).

OMMISSIONS FROM THE DRAFT DIRECTIVES

204. 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 (para. 160).

205. 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 (para. 161).


 
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