Select Committee on European Union Thirteenth Report

Interim Government Response


  1.  The Government welcomes the contribution made by the Select Committee on the European Union's inquiry to the debate on the EU proposals to combat discrimination under Article 13 of the EC Treaty, as amended by the 1997 Amsterdam Treaty, which gave the Community a specific legal basis for action, for the first time.

  2.  The Committee's inquiry was prompted by the publication of four proposals to combat discrimination under Article 13—two Directives, an Action Programme and a Communication.

  3.  The Government is grateful for the Committee's support for the principle of Community action to combat discrimination.

  4.  This response covers the issues raised by the Committee that relate to the race Directive and also to those issues raised that relate to the question of religion in the framework (Employment) Directive only.

  5.  A full response will be made by the deadline of 25 July, at the latest.


  6.   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 and working in other Member States (paragraph 33).

  7.  The Government agrees with and welcomes the Committee's assessment.

  8.   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 racial 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 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 (paragraph 46).

  9.  The Government is grateful for the support of the Committee in its recognition of the particularly urgent need to confront racial prejudice and discrimination, and that is was appropriate and realistic to place the emphasis on the Directive to combat discrimination on the grounds of racial or ethnic origin. The Government shares this view and is committed to the fight against racism and xenophobia. The Government, therefore, welcomes the early agreement of the Directive as an important step forward in the fight against racism both at home and in Europe.

  10.  As a consequence of the agreement of the race Directive references to race in the framework Directive will be deleted, and it is expected that the articles common to both will be read across from the race Directive. This will resolve any overlap or duplication between the race and framework Directive.

  11.   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 (paragraph 75).

  12.  The Government welcomes the Committee's recognition of the complexity of the issue of religious discrimination. The Government recognises that the Race Relations Act has been interpreted by the courts so as to have the effect of offering legal protection from discrimination to some religious groups but not to others.

  13.  The Home Office has commissioned research into the effects of religious discrimination in England and Wales. The Government agrees with the Committee's assessment that it would have been inappropriate to address this complex issue by including "religion and belief" in the race Directive, in advance of the conclusions of this research. The final text of the race Directive does not include the ground of "religion or belief".

  14.  It is expected that it will be left to Member States to define more tightly the phrase "religion or belief" when transposing the Directive. The Government recognises that it would be important to consider the matter of the definition of "religion or belief" when this takes place. This remains the position whether or not protection on these grounds is to be extended beyond the field of employment.

  15.   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 (paragraph 102).

  16.  during the course of negotiations the Commission confirmed that social advantages does have the meaning defined elsewhere in the Treaties. The purpose for which a field was originally defined in the Treaties (in this case that of social advantages when referring to migrant workers) is irrelevant. It still provides a definition in which the anti-discrimination provisions under Article 13 can then apply.

  17.   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 that immigration officers should be entitled to discriminate on the grounds of race or ethnic origin, or on any of the other grounds listed in Article 13 (paragraph 104).

  18.  The Government agrees with the Committee's assessment that immigration functions do not fall within the scope of the Directive. The Government's need to clarify that immigration services were exempt from the scope of the Directive was because there are circumstances where we need, in operating immigration policies, to discriminate both directly and indirectly on the grounds of race or ethnic origin. This is explicitly recognised in the Race Relations (Amendment) Bill which contains specific provisions to allow this.

  19.  In negotiating the race Directive the Government wished to maintain the status quo. These provisions allow the Government to act with sufficient flexibility to provide the appropriate welfare measures for ethnic or national groups facing violence or persecution in their own countries. For example, during the recent conflict in the Balkans the temporary protection measures that were extended to the Kosovans of Albanian ethnic origin (ie exceptional leave to remain, with access to social security and social protection) were not available to Kosovans of Serbian ethnic origin. Unless the ability to treat certain groups differently was retained, taking this type of positive action could leave the Government open to claims that it had unlawfully discriminated against members of other groups not given such provisions. The Government would not wish to be prevented from responding to another emergency such as the Balkans, if the need arises because of a risk of acting unlawfully.

  20.  The Government can anticipate similar circumstances arising on the grounds of religion but not on the other grounds listed in Article 13.

  21.   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 (paragraph 111).

  22.   There might still be problems in subjecting the employment practices of religious or denominational schools to the "genuine occupational qualification" provision. We note that schoolteachers 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 information 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 (paragraph 112).

  23.  The Government notes the concerns of the Committee but believes that Article 4 of the framework Directive in providing for a "genuine occupational qualification" (determined by reference to the "particular occupational activities") provides a basis for further negotiation to ensure that a sufficient safeguard for religious organisations, including schools, is secured.

  24.  The starting point of the Directive is to open up all jobs to all people who can legally work within the European Union, irrespective of religion or belief. But, there is recognition that some jobs have a determining requirement to be undertaken by those of a particular religion. Obviously, a Rabbi would have to be Jewish, or a Catholic priest, Catholic.

  25.  The Directive may also allow for other jobs where conduct needs to be compatible with particular precepts of a religion: a teacher in a Muslim or Catholic college, for example, may be expected to conform to certain behaviour. We intend, as the Committee suggests, to explore this further as negotiations progress.

  26.   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 (paragraph 142).

  27.  Reference to "motivation" has been removed from the race Directive. As a consequence of the agreement of the race Directive, references to race in the framework Directive will be deleted, and it is expected that the articles common to both will be read across from the race Directive. This will resolve any overlap or duplication between the race Directive and framework (Employment) Directive.

  28.   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 (paragraph 152).

  29.  The Government shared the concern highlighted by the Committee that the race Directive as originally drafted was too prescriptive in some areas and we were able to negotiate successfully to overcome this problem. It is now clear that the precise functions of the independent bodies set up under Article 13 is a matter for individual Member States.

  30.   The proposals to implement Article 13 of the EC Treaty raise important questions of policy and principle, to which the attention of the House should be drawn, and the Committee therefore recommends this Report for debate.

  31.  The Government is very pleased that the Report will be debated on the floor of the House of Lords. The Government welcomes the opportunity to hear the views of a wider range of Peers about the package of EU proposals to combat discrimination.

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