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 13two Directives, an Action Programme and
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
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
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
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
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
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
26. 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).
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
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