9th REPORT, SESSION 1999-2000: EU PROPOSALS
TO COMBAT DISCRIMINATION
Letter from Mike O'Brien MP, Parliamentary
Under Secretary of State, Home Office to Lord Tordoff, Chairman
of the Committee
I wrote to you depositing an explanatory memorandum
of the Race Directive under Article 13 TEC on 11 January and sent
a reply to the Commons Committee further to questions about the
Directive on 20 April. I am aware that Home Office officials gave
evidence to the Lords Committee on 2 February and that the Lords'
report may be imminent.
I am writing to let you know of significant
developments in relation to this Directive. It has been placed
on the agenda for the Council of Social Affairs Ministers on 6
June and the Portuguese Presidency have declared their intention
to seek political agreement on the race proposals alone. Until
very recently indeed the whole of the anti-discrimination package
had been in negotiations.
The switch in focus was sudden and unexpected.
However the Government very much welcome giving priority to the
race Directive at a time when racism and xenophobia are stark
issues for Europe. The Tampere Council urged priority should be
given to action against racism. This Government has given high
priority to promoting race equality. We have one of the most developed
systems of law in Europe for tackling race discrimination and
the Race Relations Amendment Bill now before Parliament will extend
the law and put a positive duty on public authorities to promote
Against this background it is very important
that we remain in the lead on race equality in Europe and be ready
to give our agreement to the Directive on 6 June if we can secure
the right outcome. The brisk pace of negotiation in recent days
continues. I am sorry that the rapid change of pace and the confidential
nature of these discussions have prevented us from giving you
The Race Directive will, for the first time,
provide a comprehensive set of anti-discrimination measures that
will apply across Europe. It will guarantee a minimum standard
of legal protection for individuals against discrimination or
harassment on the grounds of racial or ethnic origin, and ensure
a right of redress to all individuals who have been the victims
of such discrimination.
The draft directive is a framework which sets
out what should be achieved rather than the precise detail of
how to do so. Specifically the directive rules out reduction in
the level of protection against discrimination already prevailing
in each Member State, in the fields covered by the directive.
Obviously it does not prohibit more favourable measures being
Because of the UK's tried and tested legislation
in this area, in contrast with many of the Member States, a large
number of Member States have looked to the UK to take a leading
role in the negotiations. This we have been able to do. Indeed,
many of the proposals within the directive are derived from the
1976 Race Relations Act. The principle effect that the directive
has is to extend the level of protection from discrimination on
the grounds of race currently enjoyed by UK citizens to citizens
of other Member States, and to UK citizens and third country nationals
staying or working in Member States. Many aspects of the directive
are already incorporated in UK law or will be added by the Race
Relations (Amendment) Bill.
I would like to set out the key issues that
remain for us, and the positions we aim to secure before giving
agreement. I understand the House of Commons Committee is meeting
on Wednesday afternoon and I hope they can take account of these
points in their discussion.
Our positions on the outstanding issues are
The draft directive, as currently worded, extends
protection to those persons present on the territory of a Member
State, including third country nationals.
The UK is seeking amendments to the current
text which would give sufficient flexibility for services linked
to immigration status, in line with current UK law. Whilst the
operation of immigration and border control function is not included
in the material scope of the draft directive, it leaves ambiguous
the ability to make decisions about entitlement to social protection
and social security, which is included in its material scope,
for those persons whose immigration status has not yet been decided.
Whilst it allows for discrimination on the basis
of nationality, immigration decisions are not made solely on that
basis. Ethnic origin can be an important consideration, when reaching
decisions. For example, the exceptional leave to remain that was
granted by the UK to Kosovan Albanians was done so on the basis
of their ethnic origin, ie Albanian, not their national origin.
The same provision was not extended to Kosovan Serbs. Under the
Directive as it stands, this would not be lawful.
We are concerned that the agreed definition
of indirect discrimination should maintain as much continuity
as possible with our current approach.
The difficulties experienced in agreeing a definition
stem from the difficulties that a requirement to use a statistical
test would cause for some Member States, due to their national
practices, in particular constitutional positions on the collection
of certain types of demographic data. We may therefore need to
adopt a compromise position, which does not preclude the use of
a statistical test, but overcomes the problems of other Member
The current text appears to require Member States
to impose civil or even criminal penalties on those who are found
to have committed unlawful discrimination. This contrasts with
previous Commission provisions on equal treatment on the grounds
of gender, which only require compensation or other suitable remedies
in favour of the victims.
UK proposes the substitution of the term "sanctions"
for that of penalties, with the emphasis being on the right of
redress for the victim.
Contrary to the misleading reports in the press
last week the proposed shift in the burden of proof is something
which is very close to what already happens in the UK for both
Sex and Race Discrimination Act cases in the employment field.
The Directive would extend this procedure for race discrimination
cases beyond the area of employment, into the provision of goods
and services. A complainant would still have to make a convincing
prima facie case and the court would have to be persuaded before
the provider of the goods was required to prove that he had not
acted in a discriminatory way.
The text of the directive, as it stands, appears
to require a change in UK civil litigation procedures so as to
allow the Commission for Racial Equality and other interested
bodies to bring action on behalf of victims.
The current text would require us to change
our national procedures to allow third parties with a legitimate
interest to bring a civil action on behalf of a complainant.
Our current system which allows comprehensive
support seems to be working satisfactorily, as there is a long
tradition of successful cases that have been sponsored by equality
There is no question of there being a diminution
of the role of the Commission of Racial Equality, or of individuals
being prevented from pursuing cases in their own right.
Of the issues I have set out, we judge the two
most important to be clarification of the positions on immigration
status and achieving a workable definition of indirect discrimination.
If these two issues are resolved satisfactorily
the UK will be prepared to give political agreement to the Directive.
The other points are desirable but are not grounds on which we
would block agreement.
Due to some hard negotiating we have ensured
amendment of the text in a number of areas to more closely reflect
the current legislative position in the UK. Nevertheless, some
changes to legislation will be required. We are convinced that
we shall be able to reach solutions on the issues outstanding.
Ideally the Government would wish that the Race
Directive had cleared scrutiny in both Houses and been debated
on the floor of the House before we reached a point of political
agreement. We considered urgently whether the time could be found
for a debate before Social Affairs Council. But the practicalities
of timing around the Whitsun Recess regrettably make this impossible.
We have therefore concluded that if we can secure
agreement on the outstanding issues the UK's would be best served
by giving political agreement at Council on 6 June. Our judgement
at this stage is that other Member States will be working towards
a positive outcome of political agreement. We understand the special
position of some States eg Denmark on Parliamentary Scrutiny should
not stand in the way of this agreement. It would seriously undermine
the UK's position as leak on race in Europe if we of all people
were forced to block progress.
24 May 2000