Government Response |
1. The Government welcomes this report.
2. The Committee's inquiry was prompted
by the publication of four proposals to combat discrimination
under Article 13two Directives, an Action Programme and
3. The Government notes and welcomes the
Committee's support for the principle of Community action to combat
(The Committee's conclusions and recommendations
are reproduced below in italic format, with the Government's reponse
in plain text.)
4. 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 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 (paragraph 26).
5. The Government welcomes these remarks
and entirely agrees that, in view of their significance, careful
thought needs to be given to the proposed measures.
6. The Committee believes that in principle
the proposed measures meet the test of subsidiarity (paragraph
7. The Government agrees with the Committee's
assessment. Action at European Community level in this area is
appropriate and desirable. It will yield greater and more far
reaching benefits for the Community as a whole than if the only
action taken was by Member States acting individually.
8. 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 and 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 (paragraph 31).
9. The Government also believes that the
Commission's decision to implement Article 13 by means of Directives
rather than Regulations is appropriate in both instances. We agree
that the level of detail contained in the Directives must be appropriate
to their purpose and must strike a balance between the need for
clarity and allowing Member States broad enough margins for implementation
so as to allow national circumstances to be taken fully into account.
This is a framework Directive and therefore in the interest of
member states discretion and subsidiarity should reflect this
in its provisions. We consider that the text finally agreed for
the race Directive reflects such a balance and are working to
ensure a similarly positive result for the employment Directive.
10. 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
11. The Government agrees with and welcomes
the Committee's assessment.
12. 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 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 (paragraph 35).
13. The Government shares the Committee's
concerns about the appropriateness of applying a blanket approach
to the five different grounds for discrimination. We are seeking
to ensure, through negotiation, that the proposals are better
tailored to reflect, where appropriate, the specific characteristics
of the individual grounds.
14. 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 (paragraph 37).
15. The Government also welcomes the involvement
of the candidate countries in the Action Programme. It should
prove a useful tool in helping candidate countries meet the conditions
for entering the EU in this area.
16. 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 group 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 the 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 other grounds should not be too generalisedto
be effective its provisions must take account of the differences
between the specific grounds of discrimination (paragraph 45).
17. The Government notes the Committee's
views. We agree that the differences between the specific grounds
of discrimination need to be considered carefully to ensure that
the proposals are effective and that a proper balance is struck
between general and specific provisions.
18. 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 any other
area 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 race and framework Directives must be clearly resolved
19. 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
it was appropriate and realistic to place the emphasis on the
Directive to combat discrimation 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.
20. As a consequence of the agreement of
the race Directive, references to race in the employment Directive
will be deleted, and it is expected that the articles common to
both will be read across from the race and employment Directive.
21. 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 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 compromising 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 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 (paragraph
22. The Government shares the Committee's
view that the employment Directive should receive due and proper
consideration. Our domestic experience has convinced us of the
need for equality legislation to be framed clearly, to be workable
and to take proper account of the many different factors which
come into play. In this area, poorly constructed legislation is
likely to be counter productive. We want the principle of equal
treatment to be effective and will negotiate to achieve this.
23. 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 (paragraph
24. We are aware that the provisions of
the race Directive are wider in scope than current provisions
of Community law in relation to the equal treatment of men and
woman. The Commission has just published proposals, aimed at ensuring
that EU sex and race discrimination legislation remain broadly
in line in the field of employment, using Article 141 as the legal
base. We would consider this as the most appropriate base because
Article 141 is a lex specialis, ie a specific legal base for dealing
with equal treatment between men and women in employment cases
as opposed to the more general provisions in Article 13. Article
13, however, could be used as the legal base for any further proposals
on sex discrimination which went outside the area of employment
eg into goods and services. The Government believes that consistency
between sex and race equality legislation is important and draws
the Committee's attention to the fact that the areas of "access
to and supply of goods" is already covered by our own Sex
25. 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 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
26. Whilst the Government recognises that,
in principle, consistency between the Directives is important,
we believe that it is important to strike a balance between this
and the need to take account of the differences between the separagraphte
grounds of discrimination. Where appropriate, we seek to harmonise
the provisions in the Directives, but we are aware that certain
areas, for example disability, require a more tailored approach.
27. The Committee welcomes the propsal
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 (paragraph 58).
28. The Government agrees that the exchange
of best practice will be a useful contribution to the development
of equal opportunities across the EU and welcomes the participation
of candidate countries. We recognise the importance of running
this programme in such a way as to provide best value for money.
Rigorous evaluation methods are one way to ensure this and we
are working with the Commission and other Member States to secure
the implementation of appropriate systems.
29. 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 comparagraphtive 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 (paragraph
30. While the Government agree that it is
an over-simplification to say that the definition of key concepts
can be left entirely to Member States, it must be recognised that
these are framework directives, which leave a considerable margin
of discretion to Member States as to precisely how they should
be transposed into national law. It would not be compatible with
the principle of subsidiarity for the directives to set out extensive
definitions of every single concepteven assuming Member
States were able to reach agreement on those definitions in negotiations
for the Directive.
31. It will, however, be very important
to ensure that the legislation enacted to transpose the Directives
into UK law be as clear as possible, so that all parties concerned,
in particular employers, will know exactly where they stand. The
Government share the concern of the CBI that "fuzzy law"
should be avoided.
32. The Government do recognise that aspects
of the transposing legislationincluding in particular definitions
of terms such as "disability" or "belief"are
likely to be tested in due course before the European Court of
Justice. We would still intend to introduce implementing legislation
containing clear and workable definitions which we believe to
be compatible with the spirit of the directives. The Government
intend to press for the necessary amendments to the framework
(employment) Directive with a view to clarifying some of the more
33. 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 (paragraph
34. The Government agrees with the Committee
that discrimination on all the grounds listed should be opposed.
Like the Committee, we have concerns about the practicability
of the original proposals. We are working to address these concerns
in the negotiations.
35. 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
36. The Government welcomes the Committee's
recognition of the complexity of the issue of religious discrimination.
We recognise 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 (ie Jews and Sikhs)
but not to others.
37. 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
on the race Directive does not include the ground of "religion
38. 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 will 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.
39. 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 (paragraph
40. The Government understand that the next
version of the proposed framework directive will contain a recital
confirming that the principle of non-discrimination set out in
the directive will apply to nationals of third countries.
41. 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 of 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 (paragraph 83).
42. The Government shared the Committee's
view that the definition of indirect discrimination should be
based on the definition appearing in the Burden of Proof Directive.
However, several other Member States did not support this. In
some States the collection of information about ethnic background
is expressly forbidden by law, and they were adamantly opposed
to a definition, such as the one contained in the Burden of Proof
Directive, which relied heavily on the concept of proportionalityand
statistical evidence about ethnic background.
43. The definition of indirect discrimination
which now appears in the race Directive therefore represents a
compromise. But it is a compromise with which we are pleased.
The final definition reads as follows:
"indirect discrimination should be taken
to occur where an apparently neutral provision, criterion or practice
would put persons of a racial or ethnic origin at a particular
disadvantage compared with other persons, unless that provision,
criterion or practice is objectively justified by a legitimate
aim and the means of achieving that aim are appropriate and necessary".
This is much closer to the burden of proof directive
definition than that contained in the original Commission proposals.
In particular, the new definition includes the important concepts
of comparison and disadvantage.
44. The main difference is that the new
definition would make it possible to prove indirect discrimination
without the need to produce statistical evidence. The evidence
of experts might be used instead. But the Government's view is
that the new definition leaves a test which is broadly equivalent
in terms of severity to the current definition. A practice which
is not indirectly discriminatory under the Burden of Proof definition
should not become indirectly discriminatory under the new test.
A very similar definition is now likely to be agreed for the employment
45. The Committee welcomes the explicit
recognition that harassment constitutes direct discrimination
46. Like the Committee, the Government welcome
the explicit recognition in the directives that harassment can
constitute direct discrimination. In fact this is not a new development
as far as the UK is concerned, as the Courts here have long recognised
that harassment can amount to less favourable treatment for the
purposes of the Sex Discrimination and Race Relations Acts.
47. 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 concepts 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 (paragraph 91).
48. 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 (paragraph 93).
49. As the Committee says, the terms "reasonable
accommodation" and "undue hardship" are not explained
in the Directive as drafted. Some clarification might well help.
The Government agree that the latter term would afford an unnecessary
and confusing second defence, and it would be better to remove
it. We also agree that the duty to make an accommodation must
fall on the employer and this too should be clear.
50. 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
51. The Government agree that the relationship
between "indirect discrimination" and "reasonable
accommodation" is unclear in the draft directive and needs
to be clarified. However, as the Committee has also noted, in
the Disability Discrimination Act 1995 (DDA), the concept of "reasonable
adjustment" already provides protection for disabled people
in circumstances where the concept of "indirect discrimination"
might otherwise be expected to help. Where an employer's arrangements
or the physical features of his/her premises place a disabled
employee or job applicant at a substantial disadvantage, the DDA
requires the employer to consider making reasonable adjustments
to these in order to prevent these arrangements or features from
having that effect. In our view, an employer making such adjustments
will effectively remove the source of any disadvantage which might
be viewed as being an instance of indirect discrimination against
a disabled person, and so we do not believe that there is a need
for an additional provision making it unlawful in general. We
will therefore be seeking to explore whether "indirect discrimination"
adds any significant protection for disabled people, and whether
this aspect of the Directive needs to be modified.
52. 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 (paragraph 99).
53. The Government shares the Committee's
desire to preserve consistency between Directives where appropriate.
We note the Committee's comment about pressing for equal pay rights
for the groups in the employment Directive as there are rights
between men and women. We agree that pay must be fair. The Race
Relations Act allows someone who has suffered the detriment of
unequal pay to bring a claim to Tribunal. The Disability Discrimination
Act gives guidance on how to avoid paying a disabled worker unfairly.
However, the Government judged that there was no prospect of many,
let alone all, Member States agreeing that provisions corresponding
to the Equal Pay Act 1970 should be in the employment Directive.
However "pay" as such is included in the material scope
of the Directive: see Article 3(c).
54. 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
55. During the course of negotiations the
Commission confirmed that the term "social advantages"
is intended to have meaning for the purposes of the race Directive
as it has for the purposes of Article 7(2) of Regulation 1612/68/EEC
(which specifies that EU migrant workers shall enjoy, in the territory
of the host Member State, "the same social . . . advantages
as national workers"). The Government share this view.
56. 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 (paragraph 104).
57. 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.
58. 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.
59. 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
60. The Government agree with the Committee's
comments at paragraph 106 of the report. The drafting of Article
4 might indeed seem puzzling in that what it in fact amounts to
is a justification of direct discrimination in certain specific
cases. We think this follows from the scheme which the drafters
of the directive have followed. The phrase "shall not constitute
discrimination" has been included in Article 4 to make clear
how it links with Article 2 which provides that "there shall
be no . . . discrimination whatsoever on any of the grounds".
61. 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 (paragraph 108).
62. It has now emerged that the defence
of GOQ is intended to have a very limited application vis-a-vis
discrimination on the grounds of disability. It would arise only
where the essential functions of a job could not be fulfilled
except by a person having a particular type of disability. For
example having a missing limb might be a GOQ for a job which entailed
testing artificial legs. It is likely that some amendments will
be made to the employment directive in order to make this clear.
Assuming this happens, there should be no conflict with the duty
to provide reasonable accommodation for persons with a disability.
63. 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).
64. 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 1988 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 (paragraph 112).
65. The Government agree with the Committee's
comments about Article 4.2 of the employment Directive. We intend
to press for it to be simplified to ensure that it will not prejudice
the general principle set out in paragraph 1 of the Article. We
would also wish to see paragraph 2 broadened to ensure that the
legitimate interests of religious organisations are safeguarded.
In particular, we would be strongly disinclined to accept any
provision which would make it necessary to amend section 60 of
the School Standards and Framework Act 1998vis-a-vis schools
with religious character. This will not constitute an excuse for
religious organisations to discriminate unfairly but will ensure
that the status quo will be maintained.
66. 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.
67. 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
68. 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 (paragraph 114).
69. 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 (paragraph 118).
70. The Government broadly shares the Committee's
reservations that as drafted, it is unclear what ages will be
covered in the employment Directive. We are also concerned with
the range of justifications proposed. We believe that provisions
relating to age require considerable modification and improvement,
and agree that as drafted they could legitimise age discrimination.
71. The Committee endorses the Commission's
permissive approach to positive action: given the differences
between Member States, it is proper that positive actions should
be permitted, not required (paragraph 121).
72. 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 (paragraph 125).
73. 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
74. The Government agree with the Committee
that positive action should be permitted, not required, and that
in general quotas should remain unlawful. However, we think it
would be difficult to formulate a list of examples of the type
suggested in paragraph 126 of the report. When deciding whether
a particular measure constitutes "positive action" or
"positive discrimination", the ECJ are likely to adopt
a similar approach to that followed in the context of sex discrimination.
The Committee may wish to look in particular at the recent judgement
in Case C-158/97 Badeck where the Court held that: measures
to promote equal opportunities can include targets, so long as
an individual candidate's sex is never decisive for selection;
targets for employment based on the proportions of men and women
qualified in the general population are lawful, as are measures
to allocate to women one half of the available training places
in schemes where other training opportunities are available for
men; and it is lawful to have a rule under which all women candidates
who are qualified for the post are called for interview in a sector
where women are under-represented.
75. 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 (paragraph 128).
76. The Government disagrees with the Committee's
recommendation on the need to press for the encouragement of positive
action. We do not think that it is appropriate for the Community
to force the point, It is entirely a matter for member States
to consider. This would not be consistent with the principle of
subsidiarity. The precise nature positive action provisions is
far more appropriately considered at Member State level. In such
matters account needs to be taken of particular national contexts
such as the situation of the domestic labour market.
77. The Commission's summary of what
is envisaged by the reference to "judicial and/or administrative"
procedures is more accurately described by the paragraphllel Article
in the Equal Treatment Directive. It is unwise to invite confusion
by diverging from the existing provision (paragraph 132).
78. 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 (paragraph 134).
79. The Government note the concerns expressed
by the Committee in paragraphs 130 to 132 of the report, but they
consider that Article 7.1 of the race directive and Article 8.1
of the employment Directive would impose a clear implication on
Member States to ensure that an individual victim of any type
of unlawful discrimination contrary to the Directive could secure
effective recourse through judicial or other process. The ECJ
would be likely to require that remedies be effective (particularly
in view of the provisions of Article 14 of each Directive) and
also equivalent to remedies available under comparagraphble domestic
80. The Government also consider Article
7.1/8.1 would require that an appropriate remedy be available
in a situation where (as in the Coote case) an employer
refused to give a reference to a former employee on the grounds
that he/she had brought proceedings aimed at enforcing the principle
of equal treatment. The last sentence of Article 7.1 of the race
Directive, when read with Article 9, appears to be designed specifically
to deal with the Coote-type situation. The same applies
to Articles 8.1 and 10 of the employment directive.
81. 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 (paragraph 136).
82. The Government agree entirely with the
Committee's comments about representative actions. However, Article
8.2 of the race Directive has been changed to clarify that Member
States do not need to provide for "class actions". The
final version says
"Member States shall ensure that . . . organisations
. . . which have, in accordance with criteria laid down by their
national law, a legitimate interest in ensuring that the provisions
of this Directive are complied with, may engage, either on behalf
of or in support of the complainant, with his or her approval,
in any judicial and/or administrative procedure provided for the
enforcement of obligations under this Directive.".
We intend to press for a similar change to be
made to Article 8.2 of the employment Directive.
83. 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 (paragraph 139).
84. The Government welcomes the Committee's
support for this proposal. The Committee is, of course, right
to say that the proposals on the burden of proof do not imply
a major change to the way UK law operates at present. The term
"reversal of the burden of proof" is perhaps misleading.
Under the terms of the race Directive, an individual must first
establish facts which suggest that racial discrimination has taken
place. Only then would the burden shift to the respondent, requiring
him or her to demonstrate that there was an innocent explanation.
Contrary to some recent misleading press reports, Courts and tribunals
in the UK already adopt a similar approach: faced with facts which
suggest discrimination has occurred, it is common practice for
them to infer that discrimination has occurred in the absence
of cogent evidence from an employer which displaces this inference.
85. The provisions on victimisation
differ for no apparent reasonthey 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).
86. 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
employment Directive will be deleted, and it is expected that
the common articles will be read across from the race Directive.
This will resolve any overlap or duplication between the race
Directive and the employment Directive.
87. 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 (paragraph 146).
88. The Government agrees with the Committee
that involvement of social and other partners and adequate provision
of information in this area is very important but considers that
the means of ensuring this is best decided at national level.
The agreed text of the race Directive makes it clear that it is
for Member States to decide on the "appropriate means"
for dissemination of information and that any steps taken to promote
the social dialogue in the context of this Directive should be
"in accordance with" and "consistent with national
traditions and practices". We expect the employment Directive
to contain identical provisions.
89. 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 (paragraph 149).
90. The Government is not inclined to press
for the inclusion of an Article on independent bodies in the framework
Directive. The decision whether to set up such a body and how
it should operate is one best made at the level of Member State.
91. 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
92. The Government shared the concern highlighted
by the Committee that the race Directive, as originally drafted,
was too prescriptive in some areas. 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.
93. Effective anti-discrimination legislation
must do more than provide individual remedies for the victims
of discriminationit 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 (paragraph 160).
94. 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 (paragraph 161).
95. The Government agrees with the Committee
that active promotion of equality is an essential support for
any legislative measures to combat discrimination. Futhermore,
we consider that monitoring and setting targets can, where appropriate,
provide useful data and markers for measuring the success of policies
and systems to promote equality. However, the traditions and cultures
in other Member States are very different from our own on these
points and it would therefore not have been practical for inclusion
in the Directives. The Action Progamme will, of course, provide
useful opportunities to exchange best practice on such matters
and to further the promotion of equality generally.