Select Committee on European Union Thirteenth Report


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 race equality.

  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 more information.

  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 introduced.

  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 summarised below.


  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 States.


  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 commissions.

  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

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