§ 12.13 p.m.
§ Lord Wallace of Saltaire rose to move, That this House takes note of the report of the European Union Committee on EU Proposals to combat Discrimination (9th Report, HL Paper 68).1178
§ The noble Lord said: My Lords, when I arrived this morning someone in the Whips' Office said to me, "I hope you have had a good breakfast. Those who speak for too long in the debate will be extremely unpopular with the Doorkeepers who do not like to go home too late on a Friday". It is, however, an indication of the importance of the issue that we are debating that there are so many speakers in the debate. Indeed, we have for a Friday a relatively full Chamber.
The issue before us is a major innovation in EU legislation, more modest in scope than the Charter of Fundamental Rights, but raising some of the same issues as were debated on Friday 16th June, of the regulation of individual and collective rights above the level of the state. Its origins lie in a provision of the Treaty of Rome, as amended by the Amsterdam Treaty, hardly noticed at the time of ratification, but pressed forward by the Irish presidency, resisted by the previous UK government and accepted by our present Government when they came into office in May 1997. Article 13 of the Amsterdam Treaty states:
within the limits of the powers conferred by it [the Treaty] upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation".
For those who may wish to question the use of the phrase "religion or belief" in the proposed framework directive, I note that it is used within the treaty itself.
§ The Commission brought forward proposals under this new article at the end of November 1999. Four documents were forwarded to our committee: a general and introductory "communication"; an "action programme" proposing the exchange of information and of national best practices among member states in combating discrimination; and two directives. The first directive, colloquially known as the "race directive", relates to implementing the principle of equal treatment between persons, irrespective of racial or ethnic origin. The second, colloquially known as the "framework directive", relates to establishing a general framework for equal treatment in employment and occupation.
§ Our report is primarily concerned with the two directives. Your Lordships will be aware of the difference between a regulation and a directive. Community regulations are directly applicable in national law; Community directives leave room for national governments to adapt their national legislation into the appropriate form while still reflecting the diversity of national practices and cultures.
§ The British Government forwarded the directives to the scrutiny committees in the Commons and the Lords in January this year. Your Lordships' committee held its first evidence session on 2nd February and completed an extensive investigation in April. The report was published on 16th May, with a recommendation for early debate. I set out the dates in detail because the first directive, the race directive, was agreed by the Social Affairs Council of Ministers on 6th June, before this House had had 1179 the opportunity of a debate, and indeed before your Lordships' EU committee had lifted its scrutiny. Furthermore, it is anticipated that the framework directive may be adopted at the next Social Affairs Council, on 26th October. In terms of European policy-making, this is fast-track legislation.
§ Before turning to the substance of the report and to the important question of the haste with which the Council of Ministers is moving towards legislation, I should like to thank all those who contributed to the inquiry. It was in some ways the most contentious inquiry that Sub-Committee F has conducted in the two and a half years since I became its chairman. We agreed a unanimous report, but, as will no doubt become evident in the course of the debate, there were diverse opinions in the sub-committee on several aspects of the directives.
§ For me, it was an extended tutorial on a field in which I was not in the least expert, although, thankfully, there were many on the committee far more expert than I. The noble Lord, Lord Rix, knows much more about disability law than most of us know about most subjects. I am extremely glad that he is with us today to say something on that subject. The noble Lord, Lord Dholakia, and the noble Baroness, Lady Whitaker, are experts on racial discrimination. The noble Baroness, Lady Turner of Camden, is an expert on discrimination in employment. We had as our special adviser Professor Evelyn Ellis and as our legal assistant Leigh Gibson, who also continued giving what I regarded as a crash first-year course on anti-discrimination law.
§ I should also like to mention, because it is relevant to the whole question of the expansion of committees in this House and of the recruitment of Clerks, that it was a new Clerk's first report. Christopher Johnson worked extremely well for us. With regard to the role of the Clerks' department and whether the shortage of Clerks holds back the expansion of committees, our experience in the past few months has been that with the help of the department new recruits can come up to speed very fast.
§ Lord Wallace of Saltaire
My Lords, some large issues of principle lie behind the directives: first, the expansion of EU jurisdiction versus the principle of subsidiarity; secondly, acceptable degrees of diversity of national cultures and practices, against the desirability of uniform standards across the single market and the wider European Community; thirdly, the acceptability and legitimacy of Europe-wide rules on such sensitive issues as discrimination, overriding national legislation and different national traditions; and fourthly, acceptable variations in the implementation and enforcement of common rules once agreed. I hope that in future Her Majesty's Government will ensure that the question of how those rules are to be implemented and enforced in all member states will be discussed as much as is the principle of the legislation. The fifth point is the 1180 desirability of sufficient flexibility in defining such very complex concepts as discrimination, disability, social advantage, or genuine occupational qualification, versus the dangers of legal uncertainty and "fuzzy" law which threaten to condemn governments and companies to years of expensive litigation before national and European courts.
We approached the inquiry cautiously and, in some cases, even sceptically. Nevertheless, as a whole the committee welcomed both the race directive and, with a number of further qualifications, the intentions behind the framework directive. For me, the evidence received from the CBI was the most persuasive. The CBI stated in its written evidence:Our members believe that the directives meet the subsidiarity and proportionality tests and deserve support. The directives address genuinely transnational issues and will help complete the single market. Guaranteeing common levels of protection throughout Europe will help tackle unfair competition and make it easier for European citizens to work abroad and move freely between member states".The CBI, which is not exactly a Left-wing organisation, went on to say:The UK has one of the most comprehensive systems of discrimination law in Europe … Significant experience in this area means the UK is well placed to lead the debate in Europe and our priority should be to ensure that the directives create a clear and workable framework".Several of our witnesses made it clear in particular that British citizens of Asian or Afro-Caribbean ancestry cannot at present be assured of equal treatment as they go about their business across the European Union, often working for British-based multinational companies, and that the race directive, therefore, offers real and immediate advantages to British citizens. There is anecdotal evidence of coloured British citizens having difficulty finding housing in some other EU states. There was a particularly troubling case of a British Asian woman being held in gaol in Belgium for some months and then released without charge.
The race directive largely follows British legislation. We have been assured that its implementation will require only minor amendments to British legislation. The number of British citizens who work elsewhere in the EU, or who travel across the EU for study or leisure, continues to rise year by year. The extension of civil liberties protection across the EU is, therefore, clearly in Britain's interests and will ensure that other states bring their domestic law and practice up to the standard already in place in the United Kingdom and in particular in Ireland and the Netherlands.
The committee had many more reservations about the framework directive, as will no doubt become clear in some of the speeches that are to follow. As drafted, it is not entirely consistent with existing EU law on sex discrimination, which is an area of discrimination over which the Communities have had clear competence since the Treaty of Rome. It is not entirely consistent with the race directive, since it also touches on race discrimination. The interim response from the Government, which I read this morning, assures us that that inconsistency will be removed. It is also a 1181 hybrid measure; it falls between two stools in providing a number of detailed commitments as well as an overall framework for future legislation.
Furthermore, the references to "religion or belief" and the treatment of discrimination on the ground of age open up large areas of political debate which require time to build a consensus and clarify their implications. The commitment to end age discrimination, on which I hope that the noble Baroness, Lady Greengross, will speak, is hedged with so many qualifications as to be of doubtful value as it stands. The looseness of the definition of "disability", to which the noble Lord, Lord Rix, may refer, may leave too much space for legal uncertainty.
A number of members of the committee were particularly concerned about the phrase "religion or belief". My understanding of the evidence given to the committee is that the main target is discrimination against non-Christians, formerly Jews and now Muslims. We received some extremely useful evidence from Sir Robert Cooper about experience in Northern Ireland. This is an area in which the British experience is very useful and worth while. We live in secular states with secular societies. Now that throughout the European Union the Muslim population is well over 10 million, discrimination on the ground of religion is something that the EU must take into account.
We touched briefly on the subject of third country nationals and how far this measure is applicable to them, not to mention asylum seekers and refugees. The who le question of the treatment and status of third country nationals in the European Union is one to which I suspect that the committee may wish to return in a future inquiry.
Many witnesses made it clear that they would have preferred a broader framework directive, with the main focus thereafter on sectoral legislation appropriate to each field. There has, for example, been some discussion about bringing forward a more specific directive on disability within the next two to three years which would allow for a more informed discussion on the distinctive aspects of combating discrimination in this field. Some of the witnesses said that they would rather have an imperfect directive now than wait in hope for a better one in three or four years' time. My conclusion is that it is better to get it right rather than rush into badly drafted legislation which may prove difficult to implement and leave large areas of legal uncertainty.
That brings me back to the question of the speed of decision making and the necessary time for parliamentary scrutiny. I refer to the process as opposed to the content, although I take it as a general rule that the process of passing legislation requires greater care when the content is particularly novel or sensitive. The Treaty of Amsterdam strengthened the commitment of the Council of Ministers to allow adequate time for national parliaments to scrutinise and respond to proposals from the Commission. The proposals have been amended since they were first presented. The committee has not yet seen the amended proposals.
1182 I am much less convinced that speed is as necessary on the framework directive as on the race directive. I understand the special circumstances in which the race directive was pressed through and, in principle, that directive is welcomed. However, I am not convinced that Austria-bashing is the best basis for rushing through major advances in Community legislation before those other national parliaments which have to move furthest to amend their national law and practice have had time to absorb the implications. I am certainly not convinced that it is right to follow the same path on the framework directive which clearly requires extensive further discussion.
Gesture politics is no more desirable at European level than at national level. A number of member governments have been playing out their own domestic politics against the difficult political situation within Austria. The Dangerous Dogs Act syndrome is not good in British legislation; it is equally bad in the European context. Rushed law is bad law. A situation in which each six-monthly presidency wants to produce its own trophy without considering questions of implementation and consent is not a good basis on which the EU should act.
Before I sit down I ask for some commitments from Her Majesty's Government. I ask that the revised draft of the framework directive be provided in good time for the committees of both Houses. As the negotiations have progressed, the provision of documents in such a sensitive area has not been adequate. The revised text should be provided for scrutiny. We also ask Her Majesty's Government to resist the adoption of the directive at the October Social Affairs Council unless it has by then been extensively revised and a number of areas of uncertainty clarified.
Further, we ask Her Majesty's Government to pay full attention in the discussion to issues of national implementation, particularly in those countries where practice currently falls well below British standards. We ask the Government to ensure that the contradictions between the framework directive as drafted and existing national and community legislation, for example on the burden of proof, are clarified and the inconsistencies removed; and that the contradictions between the two directives on such matters as the definition of indirect discrimination are sorted out.
These directives represent a major step forward in EU legislation. In principle, we welcome them. This is a field in which British law is ahead of most member states and where the extension of UK practices throughout the EU is a desirable objective. We welcome the intentions of the framework directive and wish to see protection against discrimination at Community level extended to cover disability, religion and the other areas mentioned.
However, there remain many questions for further debate. The framework directive opens up new areas of anti-discrimination law which would extend UK legislation and which require more study. Ministers should ensure that the implications are thought 1183 through before the legislation is put in place rather than waiting to discover those implications through extensive litigation in the years which follow. I beg to move.
Moved, That this House takes note of the report of the European Union Committee on EU Proposals to Combat Discrimination (9th Report, HL Paper 68).—(Lord Wallace of Saltaire.)
§ 12.30 p.m.
§ Baroness Whitaker
My Lords, first, I pay tribute to the noble Lord, Lord Wallace of Saltaire, who, with great skill, if I may respectfully say so, piloted a wide-ranging committee to a common view on the generality of our topic.
We on these Benches were proud that the Government signed up to Article 13 of the Amsterdam Treaty, the base of the directives, knowing that now proper attention could be paid to the serious potential of discrimination, particularly that of race, to undermine political stability and social order, to penalise individuals and to hamper employers in harnessing skill and talent most effectively.
The Portuguese presidency of the EU, to its great credit, succeeded in gaining political agreement, with unanimity, to the race directive and the action programme, as required by Article 13, very soon after their issue as drafts, as part of the culmination of its presidency on 6th June. I understand that they were formally adopted yesterday.
Credit should also be given to the UK negotiators who had to move very fast to ensure that UK interests were accommodated in the final text—so fast that, as the noble Lord, said, they had to jump ahead of scrutiny at some points. Of course I endorse the constitutional weight which must be given to the scrutiny committee, especially since I became a Member of your Lordships' House and of the subcommittee. However, having been on similar negotiating teams in the past, I understand the need for speed and commend their commitment to the success of the negotiation which turned out, I think, broadly as signalled to the scrutiny committee. No doubt the UK negotiators were also in a good position because of UK experience in that kind of legislation.
I turn to the race directive. The fact that a diverse committee like ours reached a common view in support of the directive is testimony not only to the skill of our chairman but also to the acceptance by the whole committee of the importance of the subject. The Portuguese presidency and the member states of the EU obviously felt the same way.
Why is the race directive so important? For us here in the UK the amendments have been rightly described by my honourable friend the Minister, Mike O'Brien, as minor changes. The same will be the case for some other member states; but not for all. The latest report of the Council of Europe's Commission against 1184 Racism and Intolerance, which has studied all the members of the European Union as well as its wider membership, comments on,persistent racial and ethnic discrimination in … employment. housing and the provision of services … closely linked to a lack of effective anti-discrimination provisions".It singles out as particularly disturbing,prejudice against Muslim communities … manifested in violence, harassment, discrimination, general negative attitudes and stereotypes".We speak here of states where the UK sets up businesses, owns interests and sends our people to train and work, in the course of which they need to obtain housing, educate their children, and so on. I recall cases from the European mainland which came to my attention as chair of Camden's Race Equality Council: the British Asian woman who was told not to come back to her training placement if she wore her headscarf; and the British architect who turned down a job because he was told that black people could not get housing. If that kind of case, and worse, becomes a thing of the past and there is equivalent protection across the EU, there will be a clear gain in equity and justice as well as a levelling of the playing field. It is a big step towards building a Europe which we can all be proud to inhabit.
Even more far-reaching, however, is the impact of the race directive on the countries which are applying for EU membership. As regards several of the current applicants there have been reports of behaviour of a racially discriminatory kind, to say the least. Often it may be more the case that a whole culture puts lives at risk and is responsible for murder, arson and brutal harassment—let alone preventing a fair chance of education, housing or work.
Now that the race directive has been adopted, it is part of the acquis communautaire which all candidate nations must implement before they join the Union. If it had slipped into an unnegotiable limbo there would probably not have been another chance for several years to put race discrimination into the acquis communautaire, by which time applications would have been well advanced. This is perhaps one of the most heart-warming consequences of the adoption now of the race directive. Poland, Hungary, the Czech Republic and Slovenia, for instance, will need to prepare national legal frameworks which allow their minorities, including the numerous Roma people who have perhaps suffered the most, redress against discrimination and harassment.
The distressing occurrence of large numbers of Roma people abandoning their homes in peacetime and fleeing from one state to seek refuge in another could also be a thing of the past. I should add that applicant governments are not in the main unwilling to change. They have ratified the European Convention on Human Rights and know that human rights culture has become a dynamic process in Europe. But legislative requirements help to concentrate the mind.
Legal redress is, of course, a backward-looking activity. It is an incentive to the perpetrator to defend past misdeeds before improving practice. Cultural change relies on a stimulus to more forward-looking 1185 thinking. That is provided by the action programme. It is, therefore, particularly constructive that the action programme has also been so quickly adopted. I should like to ask the Minister how the UK is taking part in the action programme to the benefit of those states which want assistance.
I should also like to ask the Minister to explain why nationality is exempt as a ground for discrimination in the directive when that is not so in our own race relations legislation at present. This is particularly a problem for third country nationals, who are covered by the directive.
With regard to the second, framework, directive, it should now be easier to negotiate than it was in its original form because the common ground in approach between it and the race directive has been accepted and overlaps removed. This leaves time to concentrate on the more novel and difficult issues.
Legislating against age discrimination would be new for the UK and one should not underestimate the problems of reaching practical solutions. Yet official projections show that by 2010 the proportion of economically active people over 45 will rise to 39 per cent of the labour force. That is a European pattern. I hope that we will come to think that discrimination, other than on grounds of competence, will be as wrong in respect of age as any other characteristic.
Finally, two grounds of discrimination appear to pose theoretical rather than practical problems in this country: religion and sexual orientation. Most European member states, other than the UK, outlaw religious discrimination and many have constitutional guarantees. But prejudice, notably against Muslims, is widespread.
Apparently insoluble problems of the definition of religion, strangely absent in charity law, are raised. There is much concern about how religious organisations would be affected. However, exemptions can be negotiated and applied. The principle of "reasonable accommodation" by employers, as in disability legislation, could ensure that employers continue to manage their organisations without upheaval. Resistance to making a reality of outlawing religious discrimination may now be on the way out.
Prejudice about sexual orientation, however, is quite unabashed, not least in this country. Opinions are voiced and, more importantly, jobs are denied and services withheld explicitly on grounds of sexual orientation in terms which, I suggest, would be widely held to be unacceptable if similar ones were used about religion, race, age or disability.
A recent TUC survey showed that more than 75 per cent of the workpeople questioned felt that employers were wrong to discriminate on grounds of sexuality. These are people who work with gay colleagues and speak from experience. This matter has yet to be properly resolved in the UK and I hope that the draft directive will soon be adopted and of use.
In conclusion, the Government have still quite a task in negotiating the framework directive. Their interim response to our report suggests as much. A 1186 good pace is important for the same reasons of application to the candidate nations, so that the French presidency Council of Ministers can arrive at political agreement. I urge my noble friend the Minister to give a similar commitment to the successful negotiation of the framework directive as was achieved with the race directive.
§ 12.42 p.m.
My Lords, this is an important and timely debate. My attention was first drawn to the report by my noble friends Lord Pilkington and Lord Griffiths of Fforestfach. As the report says, the proposals in it, if adopted, would have an extensive impact in the UK where our own domestic legislation on employment at present covers only discrimination on grounds of race, gender and disability. I was interested to read and to hear that as regards those issues our employment law is ahead of other countries. The proposals before us will add age, religion and sexual orientation.
Today, I wish to concentrate my remarks on the framework directive on employment, which gives great cause for concern to religious people. Perhaps I may say at the outset that I received the Government's, admittedly interim, response to this very important report only one hour before the debate. I have had no time to study it properly or to give it the consideration it deserves.
I have long recognised the valuable work done by the House's EU Select Committee and its sub-committees—work which is widely recognised. But on this occasion I believe that the committee has glossed over the drastic restrictions on religious freedom which will be imposed by the directive and its effect on literally thousands of people, including children. In terms of employment, the directive will bring to an end the ability of religious bodies to organise their own affairs. Only the posts of ordained ministers or denominational religious education teachers are likely to be protected.
I hope that the Government fully understand that this is an issue about which many people care deeply. It crosses political parties and affects people of all religions, Christians, Jews, Hindus, Muslims and Sikhs. No doubt, many people heard the Sikh broadcast yesterday. I and my noble friends Lord Pilkington and Lord Griffiths have written to the Home Secretary, the Secretary of State for Education and Employment, the Foreign Secretary and the noble Baroness, Lady Scotland, to express our grave concerns. I am grateful for the responses from the Home Secretary and the noble Baroness, Lady Scotland, and I expect to hear from the others soon.
Let me set out my concerns. First, any legislation dealing with rights must deal with a conflict of rights. The directive talks about the right to equality. The human rights legislation gives the right to religious freedom. The directive before us comes down on the side of secular belief of equality—I shall carefully re-read what was said by the noble Lord, Lord Wallace, but I was surprised by his statement that we live in a 1187 secular society—against the right of religious people to organise their own affairs. In this case, an anti-discrimination measure is itself discriminatory. I am reminded of that wonderful passage in Animal Farm when the pigs produce the dictum, "All pigs are equal, and some are more equal than others". In this case, someone has decided that the right of equality is more equal than the right of religious freedom. At the end of the day, judges will be able to determine the employment decisions of religious bodies. They will be able to impose a secular ethos on religious organisations. Churches and other faiths will lose the right to employ staff who share their beliefs.
My second concern is that the directive will override existing protections that have been written into the Human Rights Act and the School Standards and Framework Act 1998. As regards the Human Rights Act, the House was good enough to pass amendments which I moved to protect Church schools and religious bodies from the effects of that legislation. Although the amendments were subsequently overturned in another place, they led the Government to think again and to introduce two key amendments of their own.
The first amendment, now Section 60 of the School Standards and Framework Act, gave a clear and unequivocal right to Church schools to appoint staff on the basis of their faith. As the Select Committee report points out,the directive will lead to problems for Church schools. There will be a direct conflict with Section 60. Church schools will lose the right to appoint Christian teachers in posts other than that of religious education".Perhaps I may remind the House that Church schools are very popular with parents and that some 33 per cent of all maintained schools are Church schools, educating several million children.
The second amendment to legislation to protect religious bodies from the incorporation of the convention on human rights can be found in Section 13 of the Human Rights Act. Where there is a conflict of rights involving Article 9 on the freedom of religion, Section 13 requires a court to have particular regard to the importance of the freedom of religion.
Perhaps I may remind the noble Baroness, Lady Blackstone, what she told the House on 7th April 1998:The debate over spiritual, moral, social and cultural development is not peripheral to educational attainment and achievement but at the heart of it. Church schools, under-girded by a community of faith with a common sense of belonging and a shared belief, are able to focus on education in a wide sense, providing a framework of shared values and pastoral concern in the setting of a belief system. That is perhaps something of the secret of their success".She the went on to remind the House what her noble and learned friend the Lord Chancellor had said on the Human Rights Bill, namely;It was entirely right that a governing body should appoint or dismiss a senior staff member of a school whose beliefs or way of life were not appropriate to the school concerned. An amendment embodying a similar provision was passed in your Lordships' House at Third Reading".1188 That is what we have already achieved. Yet we see before us proposals which appear to contradict what Parliament said only two years ago.
I shall, of course, listen with great care to what the Minister says in her reply this afternoon. However, not only must she look at education and schools, important as they are; she must also look at churches in the whole. Churches—particularly popular ones—have ordained ministers, but most churches with a reasonably sized congregation need to employ administrative staff. My own church employs three or four such people in one way or another. What is their position? What is the position of the employer? The same would apply to synagogues or mosques which obviously employ staff in the same kind of capacity.
Let us take the whole hospice movement. Under the directive, a Christian hospice could be sued for its present employment policy. The directive would mean that atheists could apply for medical posts on the same basis as Christians. The directive would mean that a doctor who was committed, for example, to a campaign for euthanasia could sue the hospice if his application for a job was turned down because of his beliefs. Yet the hospice movement, founded by that great lady, Dame Cicely Saunders—herself a Christian—is built on the fundamental rejection of euthanasia. Hospices are about caring for the dying.
Many other organisations have a religious ethos. I name but a few of them: the Salvation Army, the Church Army, the Catholic Children's Society, the Sue Ryder Foundation, Tearfund International Relief. I could go on. The purpose of those organisations is to help people, irrespective of their faith. All of them prefer to have Christian staff. In the case of the Boys' Brigade and Traid Craft, all those in leadership or management positions are required to be Christians. Some have only Christian staff.
The Church of Scotland's Board of Social Responsibility—one of the biggest charities in the United Kingdom—has 36 homes for the elderly, projects to help the mentally ill or those addicted to drugs or alcohol and day care units and carries out community projects and counselling work. Yet it insists that all its staff are committed Christians. The board believes that its compassion springs from the Christian faith, and the directive will destroy that Christian ethos. There are many such organisations, possibly a Jewish housing association or a home for retired clergy, and others I have not listed.
However, the directive is so intrusive that it reaches right into the home. Let us take a common problem often discussed today—the question of a childminder or a nanny. Surely whoever employs such a person for the care of his or her own children has the right to require that the employee shares the same values. Under this directive, parents will be unable to insist that their childminder is a Christian. One must ask whether most parents would want either a homosexual or a lesbian. All the examples share one thing in common: it is their ethos which makes them strong, yet it is their ethos which is completely undermined by this new employment directive.
1189 There are protections. Article 4(1) excepts jobs where there is a genuine occupational qualification which would otherwise be caught by the directive. That was clearly believed to be inadequate. That is why Article 4(2) was introduced, mainly at the request, I believe, of the German Government. Article 4(2) attempts to make clear that organisations can require staff who have a direct religious teaching role to be practising members of their denomination. As the report makes clear, the problem with that is that Article 4(2) has the side effect of narrowing the jobs which are exempted from the directive only to those involving people with a direct religious teaching role. That is precisely the point made by paragraph 188 of the committee's report. Article 4(2) should be clarified. At the very least, it must be significantly widened. Unless that is done, religious bodies might be in a better position without it.
In conclusion, I am not greatly encouraged by letters I have received either from the Home Secretary or from the noble Baroness, Lady Scotland. The Home Secretary made the point that the directive could probably be brought in after a three-year period. That is a very short time to wait and merely postpones the day when religious groups lose a central aspect of their religious freedom. The noble Baroness, Lady Scotland, said in her letter:We shall seek to ensure during the negotiating process on this directive that religious institutions can continue to discriminate on the basis of religion and belief where it is justifiable to do so".Who will decide that? These are very serious matters which cannot be settled by weasel words.
I say that these are serious matters because I believe profoundly that this part of the directive is another nail in the coffin of the whole Judaeo-Christian basis of our society; indeed, we have heard that this afternoon. That basis has informed our institutions, our culture and our whole way of living for well over 1,000 years. Yet, with this kind of legislation, we are throwing all that over, day after day. This particular aspect is deeply divisive: it will set one individual against another and it will ask judges to make decisions which are not for them and, indeed, should not be for them. It could well bring the courts into disrepute.
I understand that the proposed employment directive requires unanimity in the Council of Ministers. I understand that Mr John Major, when Prime Minister, did not support it. I hope that the Government will reconsider and listen carefully to what the noble Lord, Lord Wallace, said, and that they will resist the adoption of the directive in October. I hope that they will let us see a revised draft in good time. It is an extremely serious matter. I should like them to throw out this section. Our whole history and culture is quite unlike that of continental Europe and I do not see why we should have them telling us how to behave in our own institutions.
§ 12.57 p.m.
§ Lord Lester of Herne Hill
My Lords, the debate on the report of the committee, chaired by my noble friend Lord Wallace of Saltaire, is timely. It is obvious from the report that the committee was divided in its 1190 approach to the EU proposals to combat discrimination. None the less, the report makes a useful contribution to public understanding of the issues.
It is a matter for celebration that the Community is acting at last to introduce new laws to combat the worst forms of unfair discrimination. That is not a nail in the coffin of the Judaeo-Christian society; it is an affirmation of the values of all the great religions of the world, not only the Jewish and Islamic faiths but also the Christian faith upon which the European Convention on Human Rights was founded. As I shall explain briefly in a few moments, I believe that the noble Baroness, Lady Young, for whom I have the greatest respect, is misconceived in the objections that she has raised. I hope that what I say will help to allay her fears, although I doubt that they will.
I begin with a few introductory remarks. Effective anti-discrimination measures are needed urgently within and across the European Union. There is also a need to adopt, within the wider Council of Europe framework, Protocol No. 12 to the European Convention on Human Rights as a general guarantee of the fundamental human right to equal treatment without arbitrary or unfair discrimination, matching the existing obligations in the international covenant.
I am delighted that the Committee of Ministers of the Council of Europe has recently adopted the text of the 12th protocol. It is to be hoped that the UK Government will sign the protocol at the Rome Conference in November and that they will then speedily ratify that protocol.
While we await ratification of the 12th protocol, as the noble Baroness, Lady Whitaker, said, it is excellent that the Council of Ministers has formally adopted the race directive and that a wider framework directive is proposed to tackle not only racial discrimination but also discrimination based on religion or belief, disability, and age or sexual orientation as regards access to employment and occupation. I should point out that those are all grounds now forbidden by law in the Republic of Ireland, not a secular state but a state, like other European states, with a very heavy bias towards Christianity and the Catholic faith.
Those proposals will enhance significantly the rights of everyone within the EU to have effective remedies against those examples of unfair discrimination. In spite of criticisms and reservations made by the committee about some details of the proposals—not all of which criticisms and reservations I agree with—it is encouraging that the committee as a whole believes that law should guarantee the principle of equal treatment on all those grounds. I hope that the Government share that view and that they will introduce reforming measures to remove the serious defects in the present incomplete, inconsistent and weakly enforced piecemeal set of anti-discrimination statutes in this country. The time is over-ripe to extend British law, as well as European law, to eliminate discrimination and promote equality of opportunity regardless not only of sex, race, colour and disability but also age and sexual orientation and other status.
1191 The time has come to make the law readily intelligible and to secure compliance in practice. I welcome the inclusion of sexual orientation within the scope of the framework directive. Existing EC law provides no protection for gay and lesbian people against unfair discrimination in the workplace. The proposals in the framework directive will close that gap.
Equally, the proposed prohibition on religious discrimination, subject to sensible and proportionate exceptions on grounds of genuine occupational qualification and the need to protect religious organisations in Article 4(1) and (2) of the directive, will fully extend the protection of our anti-discrimination law to adherents of all the Christian Churches, Jews, Muslims, Hindus, Sikhs, Buddhists and other religious groups.
I shall not take time in dealing with all the arguments which the noble Baroness made but perhaps I may say briefly that, after marching us up to the top of the hill by indicating that the directive will impose drastic restrictions on religious freedom and will be over-intrusive and threaten religious freedom in a completely abhorrent manner, the noble Baroness recognised at the end of her speech that Articles 4(1) and (2) contain very broad exceptions.
That is dealt with admirably clearly in the report in paragraphs 112 and 188 to 189, at pages 43 to 44. I agree with what the committee states there. It points out that in Northern Ireland we have had anti-discrimination legislation in the religious field since the government of the noble Baroness, Lady Thatcher, strengthened the law in 1989 in the Fair Employment (Northern Ireland) Act. There are exceptions in that legislation, as there are in the recent legislation in the Republic of Ireland, to cater for the needs of religious organisations and their adherents. Article 9 of the European Convention on Human Rights specifically guarantees the right to religious freedom and Article 6(2) of the Treaty of European Union is premised upon Article 9 of the human rights convention and the other guarantees. With respect, it is wholly misconceived to suggest that this directive would violate Article 9 of the human rights convention or threaten religious freedom.
One has to think only of the other countries of the European Union, from Ireland in the West to the Catholic countries, if I may describe them in that way, of mainland Europe to realise that it is, with great respect, quite ludicrous to think that those who have drafted this framework directive could possibly have in mind any threat to religious freedom.
I agree that the exceptions might be clarified but it is quite wrong, as in the Christian Institute reports in The Times today, to raise hysterical and misguided fears.
In the remainder of my remarks, I shall concentrate on the race directive alone. As the noble Baroness, Lady Whitaker, emphasised, there is no country in Europe free from the scourge of racial discrimination and harassment which continues to afflict the inhabitants of every state.
1192 Law is not a panacea; it depends for its success upon a wide range of voluntary measures and a popular will to make it work. But it is a necessary condition for the promotion of racial equality across Europe that there is comprehensive, accessible, user-friendly, and effective anti-discrimination legislation, which provides really effective remedies to the victims of racial discrimination throughout the Union, and in the candidate countries.
I strongly favour close parliamentary scrutiny of proposed EU measures. But because of the pressing need for this directive and the political imperative for its speedy adoption, like the noble Baroness, Lady Whitaker, I believe that the Government were right to take the lead at Council on 6th June in giving support for the race directive, even though it had not cleared scrutiny in both Houses. It would have seriously undermined the UK's position as a leading country in combating race discrimination if the Government had been forced to block progress. The circumstances really were exceptional and justified the speed with which the Government acted.
The committee observed in its report that the directive may prove particularly significant in protecting the rights of British citizens who are from ethnic minorities living or working in other member states. But the benefits of the directive are surely much wider and should be seen from a pan-European perspective.
One may illustrate that with the example of the Roma, referred to by the noble Baroness, Lady Whitaker. I declare an interest as co-chair of the European Roma Rights Center, based in Budapest. The Roma are the most deprived minority in Europe. Almost everywhere, their fundamental human rights are threatened. They are targets of racial harassment and violence. They suffer systematic discrimination in employment, education, healthcare, and the provision of goods and services.
There are some 5.6 million Roma living in central and Eastern Europe, and about 1.5 million in western Europe. Some are settled and are citizens of member states; others seek asylum as refugees because of well-founded fears of persecution. Everywhere across Europe they face acute problems of racial discrimination of a kind that will now have to be tackled by member states taking the necessary measures required by the directive.
The protection provided by those national measures will be even more valuable if they are extended to cover more than activities within the competence of the European Community. The directive may well act as the catalyst for the development across the EU of race discrimination legislation along the lines of the British Race Relations Act 1976.
Nor will the benefits of this directive be confined to Roma living in the existing member states of the EU. The majority of the 5.6 million Roma living in eastern Europe dwell in states such as the Czech Republic that have applied for membership of the EU. As all applicant states are required to align their domestic legislation with that of the EU as part of the accession 1193 process, the Roma and other ethnic minorities will benefit greatly from the adoption of national measures to give effect to the aims of the directive. This EU legislation is a historic break-through in the long battle to achieve racial equality and justice for Europe's ethnic minorities.
We are justly proud in this country of the fact that we were the first to introduce legislation to tackle racial discrimination in the areas covered by our Act, with the Commission for Racial Equality to be the strategic enforcement agency. But in some respects, the directive improves upon our own legislation. It is not a complete carbon copy. The concept of indirect discrimination in Section 1(1)(b) of our Act is expressed in narrowly technical language, more like an algebraic theorem of Euclid or an income tax Act than a human rights measure. In my view, the directive improves upon that with a more generous concept which tackles the real problems of discrimination.
I shall not take the time of your Lordships in going through all of the provisions in the directive. Almost all of them are admirable. The provisions on burden of proof will be consistent with our law but need modification. Another good example of a good British export which is in the directive is the provision relating to independent equality agencies, which will have significant powers. I agree with the committee's comments on that in paragraph 160. There are also important provisions on sanctions. I hope that other member states will take various leaves out of our race relations book in implementing the provisions.
The one regrettable example of a thoroughly bad British export is the hurriedly drafted and recently inserted exemption for the treatment of third party nationals. The committee rightly emphasised in paragraph 104 of its report the need for any exception for immigration control to define the circumstances in which immigration officers should be entitled to discriminate on grounds of racial or ethnic origin or any of the other grounds listed in Article 13. The exception that has subsequently been included in Article 3(2) is unnecessarily broad and threatens to undermine the principle of equal treatment without racial discrimination. I need the Minister's help on this, but as I read the exception, it is not intended to permit racial discrimination except for immigration control. I hope that the Minister is able to confirm that that is the Government's understanding of that potentially loose and dangerous exception. If it were to extend beyond immigration control, as on one reading it might, it would have very bad consequences.
There is a wealth of experience in this country that we can put at the disposal of the public authorities, ethnic minority organisations and human rights NGOs of other European countries. The directive provides a great opportunity and gives us the tools. We should put them quickly to good use here and across Europe. In his recent essay in the Fabian Review, Mr Gurbux Singh, the new chair of the Commission for Racial Equality, wrote: 1194We are faced with a clear choice. Either we can celebrate our diverse society, be at ease with ourselves and benefit from our diversity, or we can become a band of disparate tribes at odds with ourselves and each other. At this point in our history both options confront us".That choice confronts not only this country, but Europe and the wider world. It is our task to ensure that the second option cannot come to pass and that the first option becomes a defining element of 21st century Britain and Europe.
§ 1.12 p.m.
§ Lord Rix
My Lords, I apologise to your Lordships and to the Minister for the fact that I shall probably not be in my place when she responds to the debate. The reason is a double booking. It is particularly appropriate that it is a theatrical charity that has an earlier claim on my time this afternoon. I am making my contribution to this debate on discrimination in the field of disability, as requested by our persuasive chairman of Sub-Committee F, the noble Lord, Lord Wallace of Saltaire. I bow to his wishes and I crave your Lordships' indulgence.
The European flag has 12 yellow stars. It reminds me of the words of the Russian writer Dostoevsky:If this small pebble does not have meaning in the universe, neither does the brightest star".Likewise, if Europe's 37 million disabled citizens do not have full citizenship of the European Union, why do we fly the European flag?
Unfair discrimination remains a reality for disabled people in all member states of the Union. On behalf of Mencap, of which I am president, I welcome the European Commission's proposed nondiscrimination package, brought forward under Article 13 of the Amsterdam Treaty. The proposed directive establishing a general framework for equal treatment in employment and occupation will help to protect disabled people's employment rights.
At present, the picture is very uneven. Some member states have taken only limited action to overcome the many barriers, including discrimination, that disabled people face with regard to employment opportunities. Like the European Union Committee, I believe that a directive that states common minimum standards across the European Union can only be a good thing, especially as the Union welcomes new member states. Countries such as Poland and Hungary will be obliged to start working towards the same goals in enhancing the opportunity for disabled people to access the labour market.
It is good that the proposed directive covers both direct and indirect discrimination and imposes an obligation on employers to make a reasonable accommodation to meet the needs of people with disabilities, but I ask your Lordships to note the committee's response in paragraphs 91 and 93, on page 27, where we say: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 DDA, and drawing upon the interpretation by national courts of the concept of 1195 '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 93 goes further, saying: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".We all say "hear, hear" to that.
I doubt that the non-discrimination proposals go far enough. Disabled people experience discrimination not only in relation to employment, but in numerous other areas that fall under the competence of the community, such as education, access to goods and services, consumer protection, social protection, social security, transport, housing, health and participation in decision-making. The full list is even longer than that. I therefore welcome the commitment made by the Commissioner for Employment and Social Affairs that the Commission will shortly begin work on a disability-specific directive that will protect disabled people's rights in all those other areas. We look forward to that specific directive being brought forward for adoption in 2003, which will be designated the European year of disabled persons—a year when disabled people can begin to become full citizens of Europe.
I confess to some disappointment that, in preparation for those important actions, the European Commission has failed to present a specific non-discrimination programme to focus on the real concerns of disabled people who face discrimination daily. There is a danger that the proposal to bring together the five discriminated groups mentioned in Article 13 of the Amsterdam Treaty in one action programme will lead to competition between the five groups for the funding.
And what a small amount of funding there is to support five groups over six years. As president of Mencap, I am compelled to continue campaigning for additional resources to be made available to ensure the provision of services, equipment and other resources required by disabled people to enable their full and equal participation in the programme.
Much of Mencap's work at EU level is done through a Brussels-based European NGO that brings together our sister organisations in every member state. It is called Inclusion Europe. A Mencap-supported self-advocate is one of its proud vice-presidents. Imagine the loss if such an organisation, which has represented the needs of people with a learning disability across the Union since 1988, were to lose its funding and thus its existence.
That is the situation that we face, as the European Commission proposes to allocate very limited core funding to only one pan-disability umbrella organisation—the European Disability Forum. It has not allocated one euro to the impairment-specific 1196 European NGOs, such as our own, overlooking entirely the great expertise that they provide to EU policy-makers and legislators.
Despite its best efforts, how can the European Disability Forum fully represent the needs of people with learning disability; people with autism and people with rare diseases? Simply, it cannot effectively. It can represent only the wider interests of the European disability movement without the specialised expertise and input of the impairment specific, more specialist NGOs, such as Inclusion Europe, Autism Europe or the European Blind Union. As Mencap's chief executive, Fred Heddell, reported to the committee,The Forum is made up of these individual groups. The strength of the Forum lies in the fact that it is made up of these individual groups, and unless these groups are supported, the strength of the Forum will be severely weakened".Therefore, we believe that funding must be earmarked in the action programme for many of these groups to continue their excellent work.
Without organisations such as Inclusion Europe, full citizenship for people with a learning disability will be only a dream—never a reality. Discrimination against all the different groups mentioned in Article 13 must be eliminated in the UK and across all member states. I believe that the 9th report of the Select Committee on the European Union, Sub-Committee F, and the recommendations contained therein, will speed the ending of discrimination against disabled people. Only then will the European flag fly with meaning for all citizens in the European Union.
§ 1.21 p.m.
§ Lord Tomlinson
My Lords, I welcome the report of the Select Committee and I add my congratulations to the noble Lord, Lord Wallace of Saltaire, and his committee on the excellence of their work which has provided the basis for this timely debate. I also note the interim government response that was available only today. It shows some signs of haste in its preparation. On that basis, I comment on it no further, other than to say that I look forward to the full response by 25th July.
I specifically welcome the fact that the report strongly endorses the choice of directives by the Commission, rather than regulations, thus leaving member states the necessary degree of flexibility in adapting legislation to their own circumstances.
Article 13 of the EC treaty, as amended by the Amsterdam Treaty, gives the European Community a legal base for actions to combat discrimination. I believe that the four proposals that we have seen have used Article 13 effectively and properly. I note that the committee expressed its belief that the proposals are likely to facilitate free movement, to limit unfair competition and to enhance the success of the single market. I largely share that view, but should like to express a concern in relation to racial equality that this package of proposals will not remedy.
The EU treaty created the concept of a citizen of the Union, defined in terms of citizenship of a member state of the Union. One is a citizen of the Union only 1197 if one is a citizen of a member state of the Union. In the United Kingdom, we have possibly 2 million permanent legal residents, with voting rights, with the right to seek election in local and parliamentary elections, who are not citizens of the United Kingdom and, in consequence, do not receive the benefits of citizenship of the European Union.
I know that there are great sensitivities in this area, but there are also serious reasons why this matter must be addressed, as failure to do so will continue to lead to discriminatory practices. Those 2 million permanent, legal residents of the United Kingdom largely originate from the Indian subcontinent. For 15 years I represented possibly 50,000 of those people in the European Parliament. The consequence of having the rights of citizens, but without actually having citizenship, is that inside the European Union, and in the race directive, they will be entitled to the rights available to third country nationals. That means that before they enter Europe to get those rights as third country nationals, they suffer the discriminatory practice of having to apply for a visa to travel from Birmingham to France or from Birmingham to the Netherlands. That matter has to be addressed.
Paragraph 177 of the report states:The Committee understands that the framework Directive, like the race Directive, will give protection to third country nationals".I welcome that. It continues:For the sake of consistency and legal certainty this should be made explicit in the Preamble".I support and welcome that. Equally, I hope that now we can address a problem that has been with us too long in relation to a large number of citizens, a number of legal residents who have all the benefits and rights of citizens, other than the name. They are people who live in the United Kingdom, work in the United Kingdom, pay taxes in the United Kingdom, vote in the United Kingdom, hold public elected office in the United Kingdom, and who contribute substantially to the social, economic, political, religious and cultural fabric of our society.
Having said that, I believe that the report is correct to welcome the establishment, across a wide range of discriminations, of minimum common standards. That will mean much in those member states currently lacking any statutory provision. Those common standards are essential to underpin the fact that we are a European Union based on values—fundamental values, non-negotiable values, values the base of which, however, is now being extended. The Commission's proposals go beyond the well-established provision for the equality of treatment between the sexes, to all those other areas that have been referred to by noble Lords: racial and ethnic origin, religion or belief, sexual orientation, disability and age.
I have concentrated my remarks, quite deliberately, on racial discrimination. I acknowledge that the European Council meeting in Tampere in Finland clearly called not only for the fight against racism and xenophobia to be stepped up, but also specifically 1198 invited the Commission to produce the proposals to so do. That was a clear recognition of a serious tide of racism, both in Europe and within applicant countries. This report is an especially welcome, pragmatic response to those demands.
Not all the Commission's proposals are in perfect form; not all the definitions are perfect; and some currently are unacceptable. But as the text of the proposed Council directive on racial and ethnic origin reminds us, in paragraph 1 of the preamble,the treaty on European Union marks a new stage in the process of creating an ever closer union among the peoples of Europe".We shall endorse that when we endorse the directive in relation to racial discrimination.
That is also precisely what we agreed to in this country when, in 1975, by an overwhelming majority, we maintained in the referendum the determination to continue our membership of the European Community, as it then was, on the basis of it being an ever-closer union of the peoples of Europe. This package of directives seeks to ensure that it is not an exclusive, ever-closer union of some of the peoples, but that it is an ever-closer union of all of the peoples, including those who currently suffer substantial discrimination in our society.
Of course, any package of proposals as radical as these will produce problems and paradoxes. We have a situation in which proposals are unanimously demanded at a European Council meeting, yet many of the people who make that demand are the same people who call upon the European Union to do less and to do it better. There is a demand in the proposals to restate the principles of subsidiarity. But some of the people who make that demand are the same ones who abused the principles of subsidiarity, doing nothing about the problems when we had full and exclusive responsibility for them.
What we have now is a set of circumstances that should create minimum common standards. They should enhance citizens' rights. They should facilitate freedom of movement and limit unfair competition. Applicant countries are particularly welcomed as being included in the action plan, and there will be created by that action plan a clear understanding of the obligations of future membership of the European Union.
As I say, problems abound—problems of definition and of inconsistencies of concept of indirect discrimination, which vary. Omissions occur in draft directives and problems arise over some proposals. I refer particularly to the proposed reversal of the burden of proof.
However, in conclusion, let me say that Article 13 of the treaty on which this is based is clear. The demands of the European Council are clear. The Commission, often maligned when we discuss European politics, has in fact fulfilled its responsibility and obligation to put forward the proposals. The noble Lord, Lord Wallace, and his committee served the House and the process of scrutiny well. The responsibility now lies in the hands of the Government and the Council of Ministers; it lies with the European Parliament adequately to respond 1199 to the proposals so that we can produce directives which provide real European added value to the fight against discrimination in all its varying forms. On that basis, I warmly welcome the committee's report.
§ 1.33 p.m.
§ The Lord Bishop of Southwark
My Lords, let me start by agreeing with the Select Committee's report and giving full support to the race directive. In my diocese last year we requested the Commission for Racial Equality to examine the structures of the diocese, and are debating its helpful report at our Synod next week. I believe that the race directive is very much to be welcomed.
However, I cannot be alone in thinking that, in considering the religious matters before your Lordships' House in the proposed framework directive, we have been here before, several times, particularly in the Human Rights Act 1998 and the Schools Standards and Framework Act 1998. So, bearing in mind the arguments put forward in your Lordships' House when debating both of those Acts, it will not surprise your Lordships to know that there is considerable anxiety in the faith communities concerning Articles 4(1) and 4(2) of the proposed framework directive. The noble Baroness, Lady Young, fully developed some of those anxieties.
As the noble Baroness indicated, they may be well illustrated through what Mr Idarjit Singh, a well-respected British Sikh leader, said yesterday in a "Thought for the Day" broadcast on the "Today" programme. Perhaps I may briefly repeat what he said for the benefit of those noble Lords who missed the broadcast.
Mr Singh posited the case of a born-again Christian determined to share his religious faith, or perhaps a gay man, open and proud about his sexuality and practice, being appointed as a teacher in a voluntary-aided Muslim school. There might be fears, Mr Singh suggested, that such an appointment would so undermine the Muslim ethos of the school that parents might lose confidence in the school and its future might come under threat, to the detriment of the pupils.
There are several elements in that constructed story which may prove helpful to our deliberations today. First, there is no question but that Churches and other faith communities strongly support the pursuit of human rights for all people. The dignity of the individual human being lies at the heart of the belief of all the great world faiths, each individual being precious to the creator God. It is therefore a little embarrassing to be seen to be arguing against any of the proposals of the directives. But as Article 13 of the Human Rights Act 1998 makes clear, the freedom of thought, conscience and religion is a fundamental human right itself and must therefore be set alongside other human rights.
Sometimes, then, a balance must be sought between a number of different human rights. In the case of Mr Singh's illustration, the balance is between the right of 1200 a well-qualified teacher to seek employment in any school, and the right of a voluntary-aided Muslim—or indeed Christian, Jewish or Sikh school—to employ teaching staff who they believe would strengthen rather than weaken the religious ethos of their school.
Your Lordships' House well understood that argument when the School Standards and Framework Act 1998 was being debated. That is why Section 60 of the Act enabled a voluntary-aided school to give preference in employment to those teachers whose religious opinions are in accordance with the tenets of the school. Under the proposed directive, I am advised that that would probably be possible for the small group of teachers who are teaching religious education, or possibly for the head teacher, but not for the more general teaching staff. But whether we are talking about a Christian, Muslim, Jewish or Sikh voluntary-aided school, the religious ethos of the school is set not solely by what is taught in religious education lessons, but by the whole style and belief of the school community, and every teacher helps to strengthen or weaken that, not only by their behaviour, as is acknowledged in the Government's draft response, but also by their belief.
I focused on the possible effect of the proposed directive on voluntary-aided religious schools. But similar arguments might be put forward concerning other institutions sponsored by faith communities such as hospices.
A response to those legitimate anxieties of the faith communities might be, "Well the courts would be sympathetic to such considerations and we should therefore trust the courts to come to a sensible judgment". But to contemplate a number of legal battles, proceeding perhaps over several years, fills me with horror. The faith communities simply do not have sufficient resources to squander them in costly court disputes.
Faith communities quite understand that they cannot push their own concerns for religious rights without reference to the human rights of others; a balance must be agreed and maintained. But the proposed directives are unbalanced. I agree with paragraph 112 of the report of the Select Committee and to add to the paragraph quoted by the noble Baroness, Lady Young, the committee says,This is an extremely sensitive issue, which needs to be examined in much more detail, and the Committee … 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 Directives) for the rights of religious organisations, particularly schools".Paragraphs 23 to 25 of the interim government response that we have just received does not seem to me to be an adequate response to the Select Committee's request. In these days of joined-up thinking, I see no reason why the Government should not press for provisions in the framework directive, which are at least as clear and protective for faith communities as those in Section 60 of the School Standards and Framework Act 1998. I look to the Minister to give that assurance in her response to the debate.
§ 1.40 p.m.
§ Lord Pilkington of Oxenford
My Lords, as the author, with the help of the Clerks, of the oft-quoted paragraph 112 on page 31 of the report, I felt, as I wrote and thought it, that I ought to say a little about it. Basically, I am pleased that in a tentative way the noble Lord, Lord Lester, shares my view. We find Article 4(2) inadequate and quite dangerous in the way described by the right reverend Prelate. I shall, to some extent, underline what my noble friend Lady Young and the right reverend Prelate said.
First, religious groups, faith organisations, are not only schools; they are also hospices, hospitals in some cases, Christian think-tanks, and so much more. Secondly, I underline and endorse that the faith communities want the same protection for their employees in those bodies as is given to teachers in the School Standards and Framework Act. The protections in that legislation are very extensive. You can appoint, promote and dismiss, according to the tenets of the religion. Indeed, the Act says quite specifically that those concerned may terminate employment if the employees are not living according to the tenets of that religion.
I underline that point because when Article 13 was being discussed in the other place the Foreign Secretary gave an assurance to a questioner that religious schools need not worry about directives that might emerge from the implementation of this article; in other words, he gave a promise from the Dispatch Box, as can be seen in House of Commons Hansard of November 12th at cols. 914 and 915.
It is pretty obvious—I expect the Minister to respond to this—that Article 4(2) does not give the protection that religious organisations and these schools enjoy at present. It says that "occupational activities" that are—this is the important point—"directly and essentially" related to religious belief shall be exempt from the directive. Thus it is fairly obvious that priests, leaders of Sikh temples, leaders of mosques, ministers and teachers of religious studies are protected. But I doubt—in fact, I am certain—that it does not give protection to other staff. I have been strengthened in my opinion by an interview broadcast on the "Today" programme this morning. A Mr Fielding from the European Union was asked what would be the position of a secular teacher of mathematics. He said that the Church could only justify applying the religious direction if that teacher was involved in pastoral work. But here we enter into a morass; for example, was he a tutor? There is the opening for the litigation that the right reverend Prelate so fears. I hope that the Minister will insist, or use what influence she has, to get the Government to negotiate a re-wording of Article 4(2).
One does not have to be a great historian to know that the integrity of religious bodies to employ their own staff and fulfil their ideology has been an essential part of European democracy for a century or more. Even when the great Bismarck—the "Iron Chancellor"—tried to disturb that integrity as far as concerns the Catholic Church, he had to give way in 1202 the end. I know that the Government have no intention of doing so. But the inadequate wording of Article 4(2) could allow what I fear to happen. That would certainly result in many expensive legal actions, which, as we can see from the situation in Canada, Churches could not afford.
I note that this committee, the work of whose chairman I admire and upon which comment has been made, was very diverse; its members certainly hold very diverse ideologies. But support for amendment was unanimous. I hope that the Government will take note of that and ensure that an important principle is embodied in the outcome of this matter.
§ 1.44 p.m.
§ Lord Bridges
My Lords, I am a member of the subcommittee chaired by the noble Lord, Lord Wallace of Saltaire. I am grateful to him for the skilful way in which he steered us through an intricate and difficult scrutiny. I subscribe to this report, which also owes much to some of the members of our group who are particularly knowledgeable—indeed, expert—in this area. Their contribution has been quite invaluable to us. I do not have such expertise myself, and I wish to make a few observations about some of the more general issues that arise concerning the significant effects which these proposals may have on the relations between the member states of the European Union and the European institutions.
When we embarked upon this topic, it soon became clear that discrimination may take a different form in each member state and that each society has certainly adopted different measures to deal with it. In one such area—race discrimination—substantial migration into this country made us conscious of the problems at a rather earlier stage than in some other European countries. Consequently, we introduced legislative measures and set up institutions sooner than elsewhere. I do not say that there is any virtue in this, but rather that we have had a longer period to develop our approach. So it is intrinsically difficult to apply the one-size-for-all model that is the norm for European legislation.
However, one might think in terms of common principles and objectives, leaving it to member states to apply them in the manner best suited to their circumstances. When I first studied the framework directive from this standpoint, it seemed to me to follow just this approach. But it is accompanied by the equal treatment directive, designed to combat all forms of discrimination in the context of employment in the workplace by means of 15 articles. Our committee records its opinion that the proposals meet the test of subsidiarity, and we certainly received much authoritative evidence to that effect. But, the longer I brood on this subject, the more uneasy I become.
In an area as delicate and important as this, implementation should surely be left to national governments. That is the whole purpose of the principle of subsidiarity. A state that falls short of the standards set can be subjected to the disciplinary procedures and legal restraints that are in place. In 1203 truth, it would seem that the high hopes we entertained of the value of inserting the principle of subsidiarity into the treaty have not been borne out in practice.
By chance, I read this week in a newspaper a report of a remark of President Chirac's, made, I think, in the course of his very successful recent visit to Germany. He said words to this effect:We have the principle of subsidiarity but none of us knows what it means".That is not a surprising observation from a French politician, because France operates on the contrary principle of centralisation in Paris of all decisions. This has been the case since the founding of the Capetian dynasty in the year 987. But that has not been the preferred course in this country—at least not until quite recently.
Sooner or later we may have to test the principle of subsidiarity in the European Court in a serious way if we wish it to operate as the word itself indicates. For the present, I should just observe that, in this area where it would have been useful to rely on subsidiarity, the opportunity has not been taken by the Commission, although the recital or "preambular" section to each directive refers to Article 5 (the subsidiarity clause in the Treaty on European Union).
As it is, our committee does emphasise in paragraphs 31 and 39 of the report the need to strike a balance between flexibility and certainty—a veiled reference, I believe, to subsidiarity. Noble Lords who are interested in this topic may refer to the reply made to my question by Mme Quintin for the European Commission, which is to be found on page 19 of the evidence section of the report. She would certainly disagree with what I have just said.
I am also concerned at the effect which the adoption of these directives might have—
§ Lord Lester of Herne Hill
My Lords, I am grateful to the noble Lord. Is he aware that the whole point of a directive, unlike a regulation, is that it wills the end but not the means and leaves to each member state the choice of means of giving effect to the directive and, therefore, gives effect to the principle of subsidiarity, as the committee recognised in its report?
§ Lord Bridges
My Lords, the noble Lord is, of course, right as regards Community law, but the discretion left to a member state depends upon the degree of discretion allowed in the directive. My complaint is that I do not think this is sufficient.
I am also concerned at the effect which adoption of these directives might have on the negotiations for enlargement. Some of the candidates have large minority populations and a long history of social tension. It is, I think, possible that these new explicit directives might constitute a barrier to their accession in some cases. We could hardly expect these particular social problems, which have existed for several centuries in some cases, to be expunged in a short period.
1204 Mme Quintin answered my question on this point by stating on page 23 that the potential for discrimination in such places is,one of the reasons why we have made these proposals".In other words, acceptance of this definition of nondiscrimination, as defined in the directives, becomes part of the acquis and must be adopted by all candidates without qualification on entry. The Commission's motives are, of course, impeccable: to make it clear to new entrants that they will be expected to observe the highest standards in relations with their minority communities. But the result is difficult to calculate and perhaps is incalculable.
The final issue which I wish to mention was raised in the House on 16th June, when we debated the Select Committee's report on the charter of fundamental rights, discussed in House of Lords Paper 67. In the course of his speech introducing the report, the noble and learned Lord, Lord Hope of Craighead, in a speech of remarkable power and lucidity, referred to the recommendation in the report that it would be appropriate for the European Union itself to ratify the European Convention on Human Rights. Doing this would avoid the potential for conflict of jurisdiction between the European Court of Justice in Luxembourg and the Human Rights Court at Strasbourg. If these directives proceed, I fear that there is a real danger of such a conflict between the two courts and of "forum shopping" by litigants.
In her reply, the noble Baroness, Lady Scotland, said (at col. 1907 of Hansard) that the European Court of Justice has given an advisory ruling that the European Union does not at present have the competence to accede to the convention since the convention is open only to accession by states and the European Union lacks the legal personality of a state. I am no jurist but I humbly suggest that, if the governments of the European Union decided—say, at a meeting of the European Council—that it would be desirable to accede, they, as Heads of Government, have the plenary, treaty-making power to do so, if necessary adding an article to the Treaty on European Union for the purpose. Surely the Council of Europe would not seek to deny the accession, given the role which the same governments enjoy in its own deliberations. They are key partners in the Council.
If the European Union does not accede to the convention, there could be some awkward situations. Litigants desperate to find a remedy for perceived injustice—in my experience desperation is all too common on human rights matters—will pursue their cause in one forum after another in the pursuit of a remedy. In fact, it would make much sense to have a practical division of labour between the two fora. Infringements of these directives could be pursued at Luxembourg, as can all other infractions of the European Union treaty and obligations, whereas suits regarding the infringement of human rights could be heard at Strasbourg, where such causes have been heard for the past 40 years or more. Surely it should not be beyond the wit of man to arrive at such a solution. Therefore, I support the recommendation of the committee of the noble and learned Lord, 1205 Lord Hope, that the issue be placed on the agenda of the Intergovernmental Conference. I trust that Her Majesty's Government will be able to reconsider this whole issue, which is also extremely relevant to the draft legislation which we are considering this afternoon.
I conclude as I began by reminding noble Lords that these observations are entirely personal and do not represent the view of the sub-committee, nor of the Select Committee. Nevertheless I venture to submit them to noble Lords for their consideration.
§ 1.54 p.m.
§ Baroness Howells of St Davids
My Lords, I should like to add my congratulations to the Select Committee and to its chairman, Lord Wallace, on a readable and balanced report.
Realisation of Article 13 of the Amsterdam Treaty will for the first time give the EU a legal basis on which to take action to combat discrimination on the grounds of gender, race and ethnic origin, religion or belief, disability, age or sexual orientation. I welcome this, as Europeans as a body will be able to use legislation to combat the cancer of discrimination. Since I came to live in Britain, I have been made well aware of those individuals and institutions who have been unable to shed the yoke of discrimination without help from legislation.
I should like to consider some of the changes the UK will need to be aware of as the debate on the Race Relations (Amendment) Bill comes to this Chamber. I wish to concentrate on what I see as the key benefits (and the key deficiencies) of the two legislative directives under the treaty as they now stand: the proposal for a directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; and the proposal for a directive establishing a general framework for equal treatment in employment and occupation.
I refer to the benefits. Both directives set out a clear definition of both direct and indirect discrimination. A broader and more favourable definition of "indirect discrimination" is given, introducing the liability test. This means that consideration could then be given to whether a procedure is liable to be discriminatory. In my opinion, this is more favourable than the present definition in the Race Relations Act 1976, which will surely have to be amended to incorporate this new definition.
Both directives make it clear that harassment should be regarded as a form of discrimination. This is a useful reminder to all the parties. Both also require a shift of the burden of proof to the respondent from the complainant,once the complainant has clearly established facts from which a cowl or tribunal can presume discrimination".This will indeed be helpful. However, it also means that the Race Relations Act 1976 would need to reflect this.
Both directives introduce protection against victimisation; it is intended that this should cover both complainants and those who assist in bringing the 1206 complaint. Both also permit positive action. This, again, will be welcome to those of us who practise in this field. In the race directive only, protection would not be confined to nationals of member states alone, thereby affording safeguards for third country nationals. There is also a proposal to establish an independent body for the promotion of the principle of equal treatment between persons of different racial or ethnic origin, which I welcome.
I now turn to the deficiencies. I am concerned t hat the race directive should address discrimination on the grounds of race, ethnic origin, religion and belief, as does the employment directive, but the race directive does not include or address incitement and pressure to commit racial and religious discrimination. Both directives fail to address discrimination on the ground of nationality.
Nor is there a requirement in either directive for statistical monitoring of any aspect of service provision or employment patterns. In addition, the arrangement made for monitoring the implementation of either directive is weak and, in my opinion, should be reinforced. With specific regard to the race directive, the proposed independent bodies have no monitoring requirement or reporting lines identified to a central agency which could assist in the collation of compliance across the EU.
In both directives there is a failure to include all functions of public authorities—that is, not only the services provided by the public sector but also the powers which public bodies are authorised to exercise. That should apply without discrimination. This omission fails to meet the challenge of the Macpherson report—that is, to tackle institutional racism.
As to further amendment of the 1976 Act, the scope of the race directive in particular covers certain areas of discrimination which are not covered by that Act—for example, conditions for access to self-employment or occupation, membership of employers' or professional organisations, social protection, social advantages and cultural activities. I believe that amendments will be required.
The incorporation of the concept of positive action within the package is welcome. However, although no change in the law is required to facilitate this, the Commission for Racial Equality has argued during the passage of the Race Relations (Amendment) Bill that it should include a wider exception for "special needs and overcoming past disadvantage". I should like this point clarified in relation to the scope envisaged within Article 13.
Other amendments would be required also to ensure compliance with a proposal that, in respect of other legislation, priority should be given to the principle of equal treatment. I understand that in the standing committee in another place an amendment was tabled in the name of Simon Hughes to this effect—that is, that all legislation should provide a compatibility statement from an appropriate Minister as to that piece of legislation's compatibility with race relations legislation; and, failing that, a statement as to why the legislation proposed should be considered.
1207 This practice is nothing new; as the House will know, there is a precedent. Section 19 of the Human Rights Act 1998 obliges a statement of compatibility with the European Convention on Human Rights. I am sorry that the Government decided not to go ahead and accept the amendment, but I hope that during the Bill's final stage in another place and in your Lordships' House, the Government will reflect on this— especially in the light of the obligation in Article 13 of the race directive.
Post Macpherson, everyone is talking about "mainstreaming race equality" in the decision makers' minds. That is quite right. What better way to do this than to put such obligations on decision makers at the highest level? I trust that the Minister will be able to give some assurances that the obligation will be placed on the decision makers. I await a positive response on this as I know that there is still some scope for flexibility.
§ 2.2 p.m.
§ Lord Griffiths of Fforestfach
My Lords, like many other noble Lords who have taken part in the debate, I welcome this opportunity. Again, I am sorry that I was not shown the interim response of the Government until five minutes before the debate started. Although I have glanced at it, I have not had time to study it. It is a serious response.
The reason I welcome the debate is because the second directive—that is, the directive which creates a general framework to combat discrimination in employment—is an extremely serious document which, I believe, could potentially have an enormous impact on our society. Indeed, the report itself chooses the words "profound" and "dynamic" to describe the far-reaching effects of the proposed measures in the directive. They are well chosen words.
The directive deals with extremely sensitive issues and, frankly, is nothing less than breathtaking in its proportions. As an instrument for social engineering, it is almost a clean sheet of paper which yet shows all the potential of a continental European enlightenment of mind in devising a framework which will have an enormous impact on our society. I would go as far as to say that if this directive is implemented as it stands, it will have not only far-reaching consequences for the character of British society but will constitute a direct threat to religious freedom in this country and, at the same time, act as a powerful thrust to advance the process of secularisation.
The directive is an invitation for the expression of new grievances followed, as has been shown by the right reverend Prelate, by costly litigation. Therefore, it provides the potential for a source of conflict between those individuals and institutions which have a religious dimension and those which do not.
First, I congratulate our chairman, the noble Lord, Lord Wallace of Saltaire. He was an excellent chairman, who was always open to listening to different views and always fair minded. He did his very best to seek a report which was unanimous. However, 1208 I had the greatest possible difficulty in signing this report—I was told that a minority report was not the convention of this House—and, I am afraid, there remain areas where I wish to dissociate myself from some of its conclusions, and certainly from parts of the general framework directive we examined.
I think that it is because the European Commission produced a report like this that the previous government were totally justified in opposing what became Article 13 of the Treaty of Amsterdam and which extended the basis of discrimination.
Many aspects of this report could be discussed, but I should like to touch on one. The reasons for my reservations in welcoming the report are concerned with both principle and policy. However, let me make one point absolutely clear at the beginning: I strongly oppose discrimination in employment on the basis of race, sex, disability and age.
The important issue of principle raised by the directive relates to its impact on civil society. I am a great believer in civil society. I believe that a thriving civil society—consisting of a variety of schools, community institutions, voluntary and charitable societies, stable families, partnerships in business and even small businesses—is an important foundation for our freedom in this country and for democracy.
At the same time, individuals, as we have been told, have rights. People who make up our society have human rights, and the directive is an extension of those rights into the field of employment. But—this is the key point I want to make—the extension of these human rights as embodied in the directive has the potential to change the character of the institutions of civil society as we know it today, which themselves do not have comparable rights with which to defend their own spheres of authority and competence.
The obvious example—it has been mentioned a number of times in the debate—is a Church school, in which if the Christian basis on which the school is founded is to be preserved, the governing body itself will require certain rights. It will require, for example, the right to appoint a teacher in religious education who is a practising Christian. But maintaining the ethos of a Christian school requires far more than that. It also requires the right to appoint those who think within a Christian framework, so that in the teaching of subjects such as history, English, the humanities and more generally, civics, the social sciences, and so on, the subject which they teach is presented and understood within a religious world view and not within a secular world view.
In addition, if such a school is concerned with developing the character of its pupils and students, which I hope it would be, the governing body may also feel that all members of staff, and indeed all on the payroll, because they are part of the community which makes up the school, should, if possible, conduct their personal lives so as to express the core beliefs and the values on which the school itself was founded.
Maintaining the ethos of such a school is a difficult and complex business. But certainly it cannot be done without guaranteeing important rights and freedom in 1209 employment to the governing body of the school. I believe that it is precisely these rights which are under threat in this directive.
Article 4(2) of the directive accepts that discrimination in employment is justified in those cases in which religious belief is a, "genuine occupation or vocation". The noble Lord, Lord Lester, said that there were very broad exceptions. He then went on to refer—I shall challenge it later in my speech—to the hysterical and misguided report and the fears of the Christian Institute. I was surprised about that because if one reads that report, particularly if one looks at the appendix, one discovers that the report itself is based on the views of learned counsel as to what he considers the implications of the directive to be. So, far from being some speculative view of members of a think tank, it is actually based on legal opinion.
However, it is clear from the directive that the use of the phrase, "genuine occupation or vocation", will be acceptable only if the occupational activity is "directly" and "essentially" related to the teaching of religion. However convoluted Article 4(2) may be—and it is—I think we all understand the words "directly" and "essentially".
The legal advice which I mentioned a few moments ago states:This will he a very difficult test to satisfy".Indeed, that view was reinforced by the evidence we were given by officials from the Commission. Mme Quintin, the Acting Deputy Director General for Employment and Social Affairs of the European Commission, made it perfectly clear how restrictive the interpretation of the expression, "genuine occupational qualification", was meant to be. Speaking of it, she said:We nevertheless think that as it is a derogation and an exception it has to be interpreted ! very restrictively. It has to relate to the specific occupation".Then, in supplementary evidence with which the officials from the Commission provided us, they stated that the test of a genuine occupational qualification,might he justified in narrowly-defined cases".The example that is given in the appendix to our report is of a teacher of religion in a Catholic school. Therefore, I want to challenge the noble Lord, Lord Lester, when he says that here are very broad exceptions. I would say exactly the opposite: that there are very narrow exceptions and that they are very restrictive. If the directive were to be implemented in this form, in my judgment there would be no question but that the Christian foundation of a Church school would be undermined, the school's attempt to present the Christian world view through the curriculum would be compromised and that the ethos of the school would be placed in jeopardy. I have used as an example a Christian school, but what I have said about a Christian school would apply in exactly the same way to a Jewish school, a Muslim school or a Sikh school.
It is reassuring to know that the Home Secretary and the noble Baroness, Lady Scotland, who kindly replied to a letter sent by my noble friends Lady Young, Lord Pilkington and myself, are concerned 1210 about the issue. While he was in the middle of negotiations to deal with the issue, the Home Secretary noted in particular that,the original form of this proposal is likely to be much changed before political agreement is reached".He also reassured us that religious organisations would be able to discriminate on the ground of religion and belief where such a condition is a "genuine occupational requirement". However, I contend that that is precisely the point at issue. That is the central point which needs clarification.
If this is interpreted as the Commission would like it to be, it is a thoroughly inadequate basis on which to move forward. In schools, decisions as to what constitutes a genuine occupational qualification is, I believe, best left to the individual governing body of each school, which will be far closer to the practical needs of the school than are those issuing directives from Brussels.
I should like to draw the attention of noble Lords to a second feature of the directive. The derogation we are discussing—that permitted for a genuine occupational qualification—applies only to certain organisations; namely, those which pursue what it refers to (in what I think is an ugly and almost offensive phrase) as "ideological guidance". It then lists three kinds of organisations. By confining a possible derogation to institutions dealing with education, information and the expression of opinion, the directive shows itself to hold an extraordinarily narrow view of religion, as if religion was simply the private expression of personal belief. But all the world's great religions see themselves as concerned not only with personal belief, but with the expression of public truth. Hence, it is not only Church schools that would be put at risk through this directive, but any institution in our society that is founded on a religious basis.
I know of small businesses, for example, which were explicitly set up on religious principles. We heard evidence from one such group; that group would be put at risk. I know of legal and medical practices which have a distinctly Christian ethos at their heart and which were set up for that reason. They would be put at risk. I know of religious institutes which carry out research. They would be put at risk. I know of religious publishing houses. They would be put at risk. We have already heard about hospices. Indeed, there are many charitable institutions, of all religions, working in this country and doing an enormous amount of good who think of themselves as being put at risk by this legislation.
The distinctive character of each of those groups, let alone schools, would be placed at risk by this directive. In each case, the threat is to dilute their specifically religious character and to make them more secular institutions. Therefore, far from the issue of including religion or belief being a theoretical rather than a practical problem, as was stated by the noble Baroness, Lady Whitaker, I believe that this is an extremely important practical problem.
1211 The conclusion I draw from all of this for the Minister and the Government is that the derogation offered by the expression "genuine occupational qualification" is much too restrictive. It needs to be changed significantly. If it is changed, it needs, first, to be interpreted in a broad rather than in a restrictive way and, secondly, it needs to be extended to far more institutions than the limited field covered by the directive itself. The derogation must be more precise, otherwise we shall be at the mercy of the courts, whose judgment in this field may be highly uncertain.
Best of all would be for the Government to veto this directive. Only by doing that would we have the necessary absolute assurance and confidence that this directive will not be used, even in an unintended fashion—and certainly not by the Government—to undermine religious liberty and then advance the cause of secularisation in this country.
§ 2.18 p.m.
§ Lord Northbourne
My Lords, this is the second occasion on which the Chief Whip has placed me to follow the noble Lord, Lord Griffiths, in the speakers' list. On both occasions he has brilliantly occupied the territory which I was hoping, more modestly, to explore.
Nonetheless, I shall plough ahead a little. I am concerned about the effect of this directive on education in schools. I wish to examine the problem from a slightly wider perspective than that of noble Lords who are concerned with the effect on specifically religious schools.
In this country, parents are obliged by law to see that their child is educated, but they have the right within the law to choose what kind of education the child receives. Brenda Hoggett, QC, the great legal expert on the subject of parental responsibility, states in her book, Law of Parental Responsibility:Children have the right to education, but parents have the right to choose how to educate them".She quotes Article 2 of the First Protocol of the European Convention on Human Rights, which states:No person shall be denied the right to education !In the exercise of any functions which it assumes in relation to education and to teaching the State shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions".Brenda Hoggett goes on to say:Freedom of religion, like freedom of education, plays an important part in the diversity of lifestyles and beliefs which is the hallmark of a free society".Some parents today want to see their children grow up familiar with the religious traditions and teaching of a faith which has led the parents themselves to happiness and a fulfilling lifestyle. Surely that is a reasonable and sensible wish. But there is a much larger group of parents, many of whom do not practise any religion, who want to send their child to a faith-based school because they are worried about the values that the child will learn and the example that it will be set in the secular schools system.
1212 What both groups of parents are looking for is a school where they can be confident that, as far as possible, all the staff will be motivated by the ethos and values of the school, whatever they may, and that that ethos and those values will shine through the teaching in every subject and where the example set by the teachers will be in accordance. We all know that children learn best by example. No education is value-free. Moral values, social commitment and self-discipline are transmitted by example and contact, and by the context in which every subject is taught.
I do not suggest that all religious schools are good, or that all non-religious schools are bad—merely that parents want choice, that they are entitled to choice, and that effective choice means there must be diversity to choose from.
Many parents today want to choose a school where the ethos and the moral and social values to which their children will be exposed are broadly those with which they agree. I believe that every parent has that right. To deny parents the right to choose a school which fulfils their aspirations for their child is both morally wrong and in conflict with the European Convention on Human Rights.
Yet that is exactly what this directive would do. The directive, or at least, the national legislation which would flow from it, would largely remove parents' right to choice because it would remove the diversity of schools from which they could choose. It would prevent schools from selecting teachers and other staff whose values corresponded to the ethos of their school. It is not enough for Article 4 of the directive to make an exception of specialist staff who teach religion or doctrine. The whole staff of a school needs to be committed to the ethos and values of the school.
It is, of course, right to outlaw unjust discrimination based on prejudice. But if we want diversity and choice in schools, governors and heads must be free—a point made by the noble Lord, Lord Griffiths—to select teachers and staff who will sustain the ethos and values of the school as well as teaching their subject well.
I turn briefly to the directive itself. The Select Committee puts its faith in Article 4. I am less than convinced that Article 4 as drafted will do more than protect the right of schools to a derogation from the provisions of Articles 1 and 2 of the directive in the appointment of RE teachers and teachers of religion. As drafted, it will not protect schools' right to appoint the staff most likely, as well as doing a good teaching job, to promote the moral, spiritual and social values and the ethos of the school.
Furthermore, as I think your Lordships all agree, the meaning of Article 4 is unclear. It needs redrafting. I join the Select Committee in believing that it needs redrafting both to extend and clarify its meaning. First, in my view all staff in schools, whatever they teach, should be covered by the exemption—possibly not cleaning ladies, but certainly matrons and house parents as well as teaching staff. Secondly, schools should be exempted from charges of unjust discrimination for including in their selection criteria questions of whether or not they have reasons to 1213 believe that any candidate will accept and conform to the ethos and values of the school and will set pupils a good example and, where relevant, will act in accordance with the religious beliefs and moral precepts of a particular religious affiliation of the school.
The Government are talking about signing up to the directive in October. I urge them to remember what happened in France when the Government decided a year or two ago to change the arrangements for religious schools. Over a million parents hit the streets in protest, and the proposals were withdrawn. If the Government fail to insist on amendment and clarification of Article 4 before they sign the directive, they will be betraying a large number of children and a large number of parents in this country and the European Union, and will be betraying the tradition of liberal education of which this country can be justly proud.
§ 2.27 p.m
Lord Bruce of Donington
My Lords, the word "discrimination", as used in the title of the report that we are considering and as used in the report itself, had a far different meaning within living memory. There was a time when "discrimination" was a very positive word. It indicated an ability to distinguish between one set of objectives and another. It enabled one to be discriminating in terms of artistic appreciation, appreciation of music and matters of that kind. It is only in more recent years that "discrimination" has been used in the purely negative sense as being in itself, and as experienced and applied over the years, something that we could well do without and that we do not like.
It is the negative aspect of the use of the term "discrimination" that the report deals with and, indeed, Article 13 of the treaty dealt with. It is noteworthy that if one examines the first directive in conformity with Article 13 one finds that a new word has been added: "xenophobia". That insertion was made at the meeting at Tampere, where apparently it was decided that, xenophobia being a state of mind, it was something that we also had to deal with, and by inference that we could deal with it by European legislation or domestic legislation. I do not know whether we should try to pass in this place or permit to be passed in the European Parliament or elsewhere in Europe the concept of trying to control in any way a person's state of mind. Therefore, we might eliminate that aspect of the matter to begin with.
I have read the report very diligently over the past few days. It is a very good report, reflecting great credit on the members of the committee and its chairman.
One matter on which I believe there is agreement is that the report is not in favour of trying to legislate against racial discrimination, sex discrimination and age discrimination and prefers that it should be dealt with by persuasion and by way of a directive, which enables this country to interpret whatever comes from Europe and incorporate it in our legislation, or codes of conduct. I hope that I compliment those concerned 1214 when I say that that indicates typical British scepticism about the desire to set down everything with cast-iron legal clarity. The report has come out firmly against that, and it is right that it should do so.
Even on the basis of subsidiarity, which is applicable in this case—I trust that the House unanimously supports that—and making allowance for our ability to draft legislation that is appropriate to ourselves, we should try to give people legal rights. Ultimately, legal rights must be determined by the courts, and that takes a heck of a time. I speak with due respect to those—of whom there are not a few—who derive a substantial income from being in the law. Let us assume that we pass a Bill of some kind which removes legally the disabilities complained of in the field of sex discrimination, racial discrimination in particular and various other forms of discrimination. Somebody must bring a case to begin with. That case will involve a search for documents, the schooling of witnesses and, among other things, interrogatories and replies thereto. Ultimately, the matter comes before the courts. I use only as a guide the colossal increase in legal salaries throughout the country. It must take a year before the matter comes before the court, and by the time the appeal procedures have been exhausted perhaps two years have elapsed. If the case then goes before the European Court of Justice, which would have jurisdiction in these matters, another long period will elapse.
At the end of it perhaps only one or half a dozen bodies will be affected. If after a time the habit catches on and more and more people sue, whether they are backed by trade unions or other institutions, at most only a few hundred, or a few thousand, will benefit from the legal determination of their entitlements. It may be said immediately that once those entitlements are legally permissible according to our law trade unions and other bodies will press the wider case and, after a time, the principle will become established. I do not believe that that is an altogether satisfactory way to go about it. The desire for codification, which is subject to very wide interpretation and perhaps legal action, quite apart from the bringing of the action itself, directly affects only a comparatively small number of people.
The report is very useful in laying bare the issues. If one reads the evidence of some of the witnesses, those issues are left in some frank intellectual agony. But the report is very important in helping to determine the climate of opinion. We are really down to the nub of it. The only way in which we can get rid of discrimination in the various fields to which we have referred is by the progressive education of public opinion. That can only be accomplished within a society which is free from fear and insecurity. As long as there is poverty and deprivation on the scale that exists at present and unscrupulous propaganda at the hands of the press, that discrimination will endure.
Before we can even begin to succeed in eliminating such discrimination, we need a drive towards the end of poverty, bad housing and the lack of those facilities which enable poorer people to enlarge their 1215 personalities and even to think. Those are the vital things we have to do. In that spirit, I should like to support the report before us.
§ 2.35 p.m.
§ Lord Vinson
My Lords, it is always a great privilege to follow the noble Lord, Lord Bruce of Donington, and to listen to his clarity and wisdom.
I join with other Members of your Lordships' House in thanking the noble Lord, Lord Wallace of Saltaire, for bringing this important debate before the House today. However, unlike him, I do not welcome the directive.
For the average person living in a relatively free and prosperous society for 50 years, the concept of liberty and freedom are little discussed because they are currently taken for granted as our natural way of life. To most people they are of no concern. Few realise that the whole concept of liberty and freedom is enshrined in common law, whereby everything is permitted unless it is expressly forbidden.
The directive, given down to us by a body comprising cultures and backgrounds different from our own, is wholly alien to that concept of liberty, a point well made by the my noble friend Lady Young. It is well said that the price of freedom is eternal vigilance, and we are debating today a subject which lies at the very heart of human freedom—not least freedom of choice and of assembly.
I hope that at the end of the debate we shall not hear anodyne words from the Minister assuring us that there really is no problem; that noble Lords are making mountains out of molehills; that the practical interpretation of the measure will do no more than recognise best practice; and that we can easily live with it.
I find it difficult to understand how any government could begin to defend the directive. Surely, if ever there were a time for Government to stand firm and to defend our deepest freedoms, fought for for over hundreds of years, now is that time. Such liberties have attracted migrants to our shores over the centuries and continue to do so. We are about to turn those freedoms upside down, a point made by the noble Lord, Lord Bruce of Donington.
Sadly, we have been down this legislative route before and have had assurances from a Government who are strong on the rhetoric of liberty, freedom and minimum regulation, but in practice seldom lose an opportunity to sign up to yet another restrictive treaty.
It is also fair to ask: what is the scale of the problem? What massive social injustice calls for a piece of legislation so wholly intrusive into human affairs as this directive? If the Government believe that there is such a problem on any scale which calls for this level of legislation, why have we not heard more about it?
The truth is that a handful of commissioners have a bee in their bonnet about discrimination and so-called prejudice. They are blind to the wider consequences of their actions. The true motive is in the words, 1216This is a milestone in the construction of a Social Europe".We have to ask ourselves: whatever happened to the concept of subsidiarity?
We are facing social engineering on a heroic scale, a point well made by the noble Lord, Lord Griffiths. I recognise that behind this particular directive lies the eternal argument between liberty and equality. The fact remains that liberté and égalité are inherently irreconcilable. We are dealing with a piece of legislation specifically aimed at human behaviour and a restriction in human choice, all done under the name of greater equality and fairness. But, in practice, as in so many pieces of legislation, the unwritten law of unintended consequences will produce hugely damaging side effects.
So much of the legislation from Europe is framed in a manner based on European Roman law. Such a code is primarily aspirational, unlike our own, which is mandatory. As a result, those drafting such legislation do so with an entirely different frame of mind from those who would be interpreting it in our own courts. Others in today's debate have provided striking examples of how the UK courts can be expected to implement this directive in practice.
It is well known that we will enforce where other countries turn a blind eye. Can your Lordships imagine parts of this directive being enforced in the Vatican? Today, much employment legislation is designed by those who have in mind huge organisations with well qualified personnel departments and staff dedicated to employment matters. But, in practice, most firms are small firms; most businesses are small businesses. What we are talking about is bringing the full weight of the law into the employment policies not only of religious and other organisations, but of those businesses—the vast majority of them in this country—which employ only a handful of people. Human relationships on this scale are conducted on a one-to-one basis. That is the reality of so much employment.
In this House, we have seen many damaging examples of the onerous and unrealistic nature of such laws when applied to small businesses. Further legislation of this type will only make it harder and less agreeable to set up and run a business. This, coupled with the reversing of the burden of proof, will enormously increase the gold-mining opportunities of the disgruntled and the litigious. When I hear the noble Lord, Lord Lester, who, sadly, is not in his place, talking about these matters, I often feel that I am listening to an eagle talking about the habits of moles. He knows not of what happens down beneath him.
Far from opening up wider opportunities for those who we are told are being discriminated against, the legislation will in fact, over a period, continue to shrink the opportunities available as fewer firms are set up. The inadequacy of small firm creation in continental Europe is well known.
Here at home, if I ask my local self-employed plumber why he does not employ a mate, he says to me, "Guy, I have done it once; I'm never going to do it again. I can't take the hassle again of getting rid of a 1217 bad bloke". Another job lost; another natural training opportunity foregone; and another person kept in poverty.
Further employment legislation of this kind is not necessary and it would add yet another layer of regulatory bureaucracy. I would remind your Lordships of the cautionary tale of Gulliver in Dean Swift's allegory on the government of his time:No one silken thread held him down but a thousand made him immobile".This legislation, far from being a silken thread, is a restrictive noose. I do not doubt that good intent, misguided as it is, lies behind it, but I have no doubt whatever of its pernicious and damaging effect on our free society.
I hope that on this occasion the Government will turn their rhetoric about freedom into reality and make it quite clear to our EC partners that they will have no truck with this piece of legislation and will veto it accordingly. Let us make our own laws of this type in our own country.
Perhaps I may conclude with a quotation from Edmund Burke:Men have sometimes been led by degrees, sometimes hurried into things, of which if they could have but seen the whole together, they would never have permitted the most remote approach. The people never give up their liberties except under some delusion".It is a delusion to think that one can introduce universal equality without a universal restriction of liberty. We cannot make a perfect world. For that reason, this piece of wholly unnecessary legislation must be resisted. It will do more harm than good. It confuses prejudice with preference and, in attempting to eliminate prejudice it would, in fact, restrict that most basic of all human freedoms: the right to make assembly, religious or otherwise, with those of one's preferred choice.
§ 2.44 p.m.
§ Baroness Stern
My Lords, I joined Sub-Committee F only at the start of this inquiry. It is the first Select Committee report in which I have been involved and I begin by thanking the chairman and my other colleagues. It was a very educational experience, for which I am grateful. I learnt a lot and, in the process, discovered how much more there is to learn. It was indeed a privilege to work with a group of such experts and with such an expert chairman.
I am very pleased to have had the opportunity to participate in a report on the subject of discrimination and racism in Europe. I want to concentrate on the race directive but in principle I very much welcome both directives.
I am glad that our committee supported the directive unanimously. It is good in principle that such a directive is in place. I congratulate the Government on seeing an opportunity to make progress in this area and on supporting the move to agree the directive quickly. Although one can understand the anxiety that there has not been proper scrutiny, on the other hand it was an opportunity that had to be seized.
1218 The European Union is bound by a set of values. The member states are committed to developing as,an area of freedom, security and justice".Racism can have no place in such a Union, and to enshrine that specifically in a directive has practical and declaratory impact. It acts as a reminder to racists and a reassurance to those who are discriminated against. I am sure that no one will claim that there is not racism in Europe. Certainly the image and, unfortunately, the experience of the European Union for many people from ethnic minorities is of a white people's club where black people are unwelcome. There is much evidence of that.
The noble Lord, Lord Wallace, spoke of overriding national traditions and cultures that must be taken into account. Sadly, racism is deeply embedded in some aspects of culture in Europe. Those aspects must be overridden if we are to move towards an area of freedom, security and justice.
I want to give one example. There is a body in Europe called the Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment. Fortunately, it also has a short name: the CPT. It is part of the Council of Europe and has nothing to do with the European Union, except that it visits prisons and other places of detention in the states of the European Union and in applicant countries. Although its reports are restrained and meticulous in looking for solid supporting evidence, they shine a light on the darker corners of that Union which claims to be an area of justice.
Among the committee's reports one will rind evidence of ill-treatment of foreigners by the police in Spain, including assaults at the detention centre in Malaga; police ill-treatment of suspects of North African and African origin in France, such as beatings and kickings; and beatings of foreigners in Belgium by the police during interrogation and while in police vans. In Austria the committee uncovered evidence of very serious ill-treatment in police stations in Vienna, much of it aimed at foreigners.
The UN committee on the elimination of racial discrimination found in Italy acts of racial intolerance by police and prison staff. In applicant countries, too, racism is deep-rooted, especially against Roma people, as the noble Lord, Lord Lester, said.
Racism in Europe is deeply embedded in many institutions. There is racism in the justice system in this country, too. I understand that French reformers greatly admire the process that has taken place here since the death of Stephen Lawrence, with the publication of the Macpherson report and the work that is under way in the police service to introduce reforms.
The noble Baroness, Lady Howells, to whom this country owes so much for her determination to see something done about a great injustice, might well feel that we have not made the progress that she would like, but we are a role model for some of our European partners, although we, too, need a constant reminder. The race directive should remind us that all is not right here, either. There are lessons for this country.
1219 Some 25 years ago, I worked in race relations. At that time, we believed in what we were doing and we were optimistic. We never dreamt that we would reach the year 2000 and still be living in a country where the upper reaches of every walk of life are still overwhelmingly white.
Let me give some examples from a field I know and in which the Government helpfully publish figures under Section 95 of the Criminal Justice Act 1991. In August last year, of 1,191 district judges, two were black. The figures for other positions were: of 403 assistant recorders, five; of 916 recorders, five; circuit judges, zero; High Court judges, zero; Lord Justices, zero. The figures for the proportion of police officers from ethnic minorities in 1999 are: constables, 0.9 per cent; sergeants, 0.6 per cent; inspectors and chief inspectors, 0.4 per cent; superintendents and above, 0.3 per cent. The figures for the Crown Prosecution Service are: level B and below, 5 per cent; level C, which is a lawyer grade, 2.6 per cent; level D and above, 1.2 per cent; level D and above administrators, zero. Finally, the figures for the Prison Service are: prison officer grades, 1.4 per cent; governor grades, 0.3 per cent.
Many things have gone wrong and we need a larger debate. The sub-committee heard impressive evidence from Professor Bob Hepple, who is carrying out an independent review of the enforcement of UK antidiscrimination legislation. The noble Lord, Lord Lester, chairs the advisory committee to that project. Professor Hepple made a striking point about a drawback of the UK approach to race equality. He said that it was too heavily based on fault-finding and on retrospective analysis of decisions. It is centred on the process of individual complaints and defensive measures to ensure that the paperwork is in order, in case someone goes to a tribunal.
My experience as the employer of a large number of people bears that out. The personnel department becomes absorbed with individual cases, technical analysis of why we "won" or "lost" and training for staff on the implications of the latest case. What is really lost is racial equality. An employer can breathe a sigh of relief at the end of the year because no cases have been lost and he may forget the all-white management team, the recruitment from the same pool year in, year out and the stereotyped assumptions.
With the Race Relations (Amendment) Bill, there is a welcome move to combine the protection of law against individual cases of discrimination with a more strategic approach, at least by public authorities. That is a start.
In conclusion, I ask the Minister to respond to a number of points. I assume that the race directive will not impact on the behaviour of the police or affect the justice system. The Council of Europe is doing its best in that field with very scant resources. But I should like to know how far the Minister sees the heading "goods and services", including services by the police, applying, for example, to victims of crime.
1220 Secondly, how does the Minister see the action programme being delivered? Will it include work to improve policing and law enforcement? Thirdly, during the implementation period, will there be opportunity for European-wide discussions at the appropriate level about how to make racial equality a reality rather than just paying lip service? There is much for other states to learn from the British experience, both from our successes and failures. Europe would benefit if we were able to engage in such a discussion.
Finally, I echo the point made so forcefully by the noble Lord, Lord Tomlinson. What can be done to get a better deal for third country nationals who are legally resident? I cannot take a colleague with an Indian passport to a meeting in Paris because it takes two months for him to obtain a visa. That must be wrong. I look forward to the Minister's reply.
§ 2.57 p.m.
§ Lord Laing of Dunphail
My Lords, compared with many of your Lordships, my reading of this directive may have been rather superficial through lack of time. But I say at the outset that of course I understand what lies behind it and I congratulate the noble Lord, Lord Wallace, and his committee on the time which they devoted to it.
Do we really want to become a grey society where moderately expressed, long-held religious beliefs or wishes expressed in an advertisement can land one in court? I cannot believe that the authors of this directive have thought through the possible consequences and its effect on religious freedom, which is important to me and, I am sure, to many of your Lordships.
In this country, we have long-held traditions of religious tolerance, with respect given not just to Christian minorities but also to those of other faiths. That respect needs to work two ways: not just tolerating other people's beliefs but respecting them so that they are able to operate effectively.
Part of that is linked with being able to recruit like-minded people where jobs are closely linked to religious organisations and activities. In many cases, those rights are enshrined in charities' articles. Our charity laws have understood and respected the need for such a link. They have worked well. They should not be cast aside. If they were, our society would be damaged and our vision of tolerance and respect seriously impaired.
I do not propose to take up the time of your Lordships' House to detail the problems which will arise if the Government sign this directive in its present form. Others have done that much more eloquently and effectively than I can. But let us not accede to a directive that neuters those of us who hold strong religious beliefs and wish to stand up for them. I hope that this directive will be extensively revised.
§ 2.58 p.m.
§ Baroness Uddin
My Lords, I welcome the opportunity for the House to discuss this extremely important report. I thank the noble Lord, 1221 Lord Wallace of Saltaire, for introducing this timely debate especially as, due to lack of time, I was forced to withdraw from the committee, so this is a wonderful opportunity for me to say a few words and to add my thanks to the members of the committee who produced this report on European proposals to combat discrimination.
These are complex issues, as was stated so eloquently by the noble Baroness, Lady Stern, the noble Lord, Lord Rix, the right reverend Prelate the Bishop of Southwark, and the noble Baroness, Lady Young. None the less, I am pleased that they have been addressed.
I agree with the noble Lord, Lord Lester, that the United Kingdom has much to teach other European countries. We can be proud of our successes and we must learn from our failures. The possibilities of sharing our anti-racist practices, and the implications of that, are endless.
Article 13 of the Treaty of Amsterdam, which gave the European Community competence to tackle discrimination on a range of grounds, is a huge advancement since I arrived in this country. Despite the fact that this House has not lifted the scrutiny reserved on the race directive, I welcome the urgent action taken on it and the fact that political agreement has been reached. There is no doubt that this Government are committed to combating racism and xenophobia, in this country and through Europe. The historic agreement reached in Luxembourg on 6th June sends the right signal throughout Europe at a time when racism is a stark reality in the European Union and in some of the states that seek to join the Union.
It is most welcome that this directive, when implemented, will give British citizens living and working in Europe protection from racial discrimination. However, there are citizens in this country who do not feel that they are protected from discrimination here. Without that protection of law and that respect for their identity, they cannot truly feel included in British society.
Of course, I speak of members of my own community, which is a Muslim community. My own faith and respect for my faith are one and the same thing—my being, my very existence. If I am discriminated against as a woman, I have redress under the law; if I am discriminated against as an Asian or because of my Bangladeshi origin, again I have redress under the law; but as a Muslim I have no protection afforded me. Members of the Jewish community and the Sikh community have the protection of the Race Relations Act, but Muslims have no such protection. That cannot be just.
Under Article 13, the employment directive is a major opportunity to provide protection against religious discrimination in employment. That is a welcome development and could be a major step forward for the Muslim community. I do not share some of the pessimism raised by a number of noble Lords. Discrimination in employment is one of our 1222 main concerns. I am sure that outlawing it would be widely beneficial to, and welcomed by, members of other minority faith communities.
In this country there are many good examples of good practice. Marks & Spencer has produced good practice guides for its senior managers to facilitate the religious practices of employees, which is a good example, as is the work carried out by Tower Hamlets Council, Bradford City Council and Newnham Council which ensures that the needs of staff are taken on board to facilitate religious practice and observance. That is helpful and sets a good example to others who wish to accommodate the needs of their diverse workforce.
Of course, some employers do not respect and understand the need to be aware of the faith dimension of their workforce and the need to be sensitive to different requirements. On the whole, I believe that, there is widespread ignorance. Therefore, developing good practice in advance of the implementation of I he employment directive would be an important and positive signal. To achieve that I believe that Muslim and other religious leaders, alongside businesses and employer organisations, should work together to develop the necessary understanding and practical solutions, because recourse to the law should not be the first step to raising awareness and taking practical actions to root out discrimination in employment.
I believe that protection against discrimination on the ground of religion is a fundamental human right, not an optional extra which an employer should be able to choose or reject. But, like the committee, I recognise the complexities and difficult issues which must be addressed.
The directive talks of discrimination on the ground of religion or belief. I do not know where belief begins or ends; but, given the current status of Muslims in Britain, I am absolutely clear of the need for protection against religious discrimination in employment. The need is absolute. Will my noble friend the Minister, who is not in her place, take this opportunity to reinforce that message today? Will she also assure the House with regard to the exemptions which it is proposed to keep in place with regard to religion, that organisations may continue to use "genuine occupational qualifications" when required for their own purposes?
In that regard, I add my voice to the concern raised by Mr Singh on the "Today" programme. I believe firmly in social engineering of a kind which would certainly have prevented the holocaust of the last century. With the anticipation that we will take the right course, I look forward to the Government initiating a successful outcome on this aspect of the employment directive, to ensure protection from discrimination for faith communities across Europe.
§ 3.5 p.m.
§ Baroness Greengross
My Lords, I welcome this opportunity to speak on age discrimination in employment. I was interested and pleased by the 1223 comments of the noble Lord, Lord Wallace, and welcome those of the noble Lord, Lord Lester, and the noble Baroness, Lady Whitaker, in particular.
I was pleased also to give evidence to the subcommittee on behalf of Age Concern and of a pan-European non-governmental organisation, Eurolink Age, which I was privileged to establish some 20 years ago. As the noble Lord, Lord Wallace of Saltaire, indicated, age discrimination would be a new area in which legislation through a directive might be introduced, and would be new as legislation in this country. Nevertheless, it is devastating to the individuals who come up against it. In many cases it leads to isolation, poverty, loss of status and poor health, which provokes a great deal of expense.
We know that at the moment one third of the people of this country aged 50 or over are no longer in the labour market. They are therefore dependent on state benefits for most of their income, and most of them are out of work involuntarily. That is a serious situation and can be extremely costly to the economy of the member states of the European Union. It makes it impossible for many redundant or early retired individuals who wish to contribute to the economy of their country to have the opportunity so to do.
The Department for Education and Employment in this country recently carried out some research on 50 to 64 year-olds. It estimated that the cost per annum to this country of those people excluded from the labour market was £16 billion per year. The Employers Forum on Age has already carried out research on people of 50 and over, not stopping at the age of 64. That research demonstrated that the cost to the economy of the people over 50 who wish to contribute through working but are unable to do so was £26 billion per annum. That is an enormous amount. It also represents the loss of the ability of those people to spend, to save and to pay tax, and it does not take into consideration the expenditure and loss to the National Health Service.
I am not suggesting in any way that people of 50 and over should be compelled to work. But age discrimination, which they so often come up against, is pervasive, destructive and often unrecognised by those who practice it. In other words, it is practised unconsciously. It is considered "normal"—sometimes it is even considered to be a kinder way of dealing with older people than informing them that they are incompetent to do a particular job. But kindness is not the answer. Competence testing must be the only criterion that is acceptable in the labour market of today and that of the future.
We know that the differences between people of similar ages are often much greater than those between the generations. The United States has had the experience of anti-age discrimination for a long time. Indeed, it was introduced in the late 1960s and has had mixed results for all sorts of reasons—partly because federal law clashes with state law and partly because there are an awful lot of accepted justifications for exceptions to anti-age discrimination. It is because of those and the huge amount of litigation that takes 1224 place that it is not always obvious how beneficial it has been. Therefore, I agree with the noble Lords, Lord Wallace and Lord Lester, that a good deal of consideration and clarification would be needed before such legislation is accepted and becomes part of the law of this country, or of that across Europe.
The Government have already taken some very welcome action in this respect by issuing a code of practice to combat age discrimination. They have indicated that this will be reviewed next year. But we know that, on the whole, this has been taken up in this country mainly by the most committed and most able employers—that is to say, those who are committed to best practice. Many people have absolutely no recourse to any sort of advice, help or legislation if they are treated unfairly. Perhaps I may give your Lordships a few brief examples.
I could be denied the opportunity to do a particular job because my reactions are slow, my sight is not good enough, my hearing has declined or my wrists are not strong enough to carry out a particular task in a job description. All of those conditions can be tested and it would be quite acceptable as part of a job requirement. If I was incapable of doing them adequately, I should not do the job. But one 60 year-old might have very bad eyesight or hearing, very weak wrists or other joints or, indeed, have very slow reactions, while another might be very strong in each of those aspects and very quick to react. The ability of the person is the key, not the age or the number of birthdays that he or she has celebrated. The person might have had slow reactions or poor eyesight from a very early age.
I agree 100 per cent with the comments made by the committee chaired by the noble Lord, Lord Wallace, on the fact that if the currently unacceptable justifications that have been put forward as exceptions to this are agreed to, it will be the first time that age discrimination will be legalised in the European Union. Age could then be used not only directly but also as a gateway to mask other already illegal forms of discrimination, such as those on the grounds of race, gender or disability.
Perhaps I made conclude by saying that the Government took a very welcome step regarding age discrimination through the code of practice. It seems that the best that we can hope for is that legislation will be introduced fairly shortly. We would all prefer it if the latter were not necessary, but I think that it may prove to be so in this country. The framework directive, minus the unacceptable exclusions in Article 5, is an ideal opportunity for the UK Government to take a lead across the European Union in finally outlawing a pernicious form of discrimination that damages our economy and our people. I very much hope that the Government will take the required lead and that the Minister will assure us to that effect.
§ 3.14 p.m.
§ Lord Dholakia
My Lords, I thank my noble friend Lord Wallace for the able chairmanship under which 1225 this report was produced. He had to use all his diplomatic skills to produce an agreed report. He has done a good, if a little cautious, job.
Those of us who talk about discrimination do not have to continue to identify case after case. One simply has to open the annual report of the Commission for Racial Equality or, for that matter, the report of the probation inspectorate, published only last week, to identify the extent of racial discrimination that exists. Those of us who have worked in the field of race and community relations are aware that there are wide variations between member states in the acceptance of the need for legislative teamwork to deal with discrimination.
We in the United Kingdom have a good record in enacting legislation on discrimination and disadvantage. We have given a lead to the European Union countries and also to other parts of the world. Of course everything is not perfect and what has been achieved does not mean that our legislation cannot be improved. The Race Relations (Amendment) Bill now progressing through Parliament is a case in point. We must also accept that national legislation in member states will need to be amended to bring it up to the standard in the directives. I say that because we in this country have considerable experience not only of legislation but also of the impact of legislation. Yet from time to time we wonder whether it has had any direct effect.
The noble Baroness, Lady Stern, identified what is lacking, particularly in the criminal justice field. The noble Baroness, Lady Whitaker, gave example after example of how discrimination affects minorities. I have been involved in race relations for over 28 years. However, when I hear of such cases I ask myself whether the world has moved on at all.
We in the United Kingdom have accepted the principle of equal treatment. We further accept that there should be no direct or indirect discrimination. There is a lack of definitions in the proposed directives. Further, the grounds of discrimination are also not defined. There is, of course, an exception in that direct and indirect discrimination are clearly defined. For this reason we argue that it is an over-simplification to leave such definitions to member states. The problem we identified is EU-wide definitions which evolve once the due process of law is followed. However, the process can be long, tedious and uncertain. Securing definitions in Article 13 may also prove politically and practically difficult, as is pointed out in paragraph 69 of the Select Committee's report. However, that does not mean that it cannot be done.
There are issues that require further consideration. We are well aware that religious discrimination is outside the scope of the United Kingdom's Race Relations Act. The matter is not assisted because of the interpretation of the Race Relations Act with regard to ethnicity. However, the matter will simply not go away. I believe that the Select Committee is right to adopt a cautious approach and that we should await research that has been commissioned by the Home 1226 Office into the effects of religious discrimination and the extent to which it overlaps with racial discrimination in mainland Britain.
I do not believe that it is beyond the capabilities and capacity of our legal brains to come up with an appropriate formula. Here I look to my noble friend Lord Lester of Herne Hill who, as adviser to the former Home Secretary, my noble friend Lord Jenkins of Hillhead, is the country's leading authority on discrimination legislation.
I do not believe that the committee got to grips with this particular issue. I suspect that there is sensitivity to the question of religious discrimination. That was clearly demonstrated in today's debate. I value and appreciate the views expressed by the noble Baroness, Lady Young; her contribution is a case in point.
I also heard what the noble Lord, Lord Griffiths, said. I disagreed with him in the committee and I continue to disagree with him now. I was present—as was the noble Baroness, Lady Howells—when the 1965 race relations legislation was before the House; when the 1968 legislation was before the House; and when the 1976 legislation was before the House. We have heard the same arguments before—and they are being rehearsed again and again.
But there is an added ingredient this time—I hope I am wrong—and that is Europe and the extent to which Euroscepticism actively filters through. That is something we shall have to face. But I do not think we need to be worried because, at the end of the day, it is right and proper that if we believe in equality we should do everything possible to work towards that end.
There are a number of issues here. Let me refer to one or two on which I think clarification is necessary. Before I do so, perhaps I may ask the Minister what progress has been made in studying the relationship between racial and religious discrimination and in correcting the existing anomalies in the UK race relations legislation.
I turn now to the matter relating to the concept of discrimination. There is no problem with the definition of "direct discrimination"; it is similar to the one in the Race Relations Act and there is a general consensus that that is acceptable. However, the definition of "indirect discrimination" in the directive differs from what we are used to in the United Kingdom. To understand that, we have to understand what indirect discrimination is all about.
Indirect racial discrimination consists of treatment which may be described as equal in a formal sense as between different racial groups, but discriminatory in its effect on one particular racial group. A "racial group" is defined by reference to one or more of colour, race, nationality (including citizenship) or ethnic or national origins. Indirect discrimination arises where a person, in this case the discriminator, applies to another, the victim, who is seeking some benefit from him—for example, a job—a condition or requirement with which he must comply in order to qualify for, or obtain, the benefit, and where the condition or requirment satisfies a number of criteria.
1227 I do not want to go into the legal arguments for fear that I may run foul of the interpretation that my noble friend Lord Lester would place on my contribution. However, questions will arise as to the meaning of indirect discrimination in the sense that the definition proposed in the directive does not require a complainant to demonstrate that a given practice has had a disproportionately adverse effect on the particular group to which he or she belongs. It is sufficient that it is liable to have such an effect. It can also be limited to a single person. I shall not enter into further legal argument, but caution needs to be exercised so that a new definition does not create confusion. The Select Committee is right to press for a definition based on that found in the burden of proof directive. There are complex issues surrounding the agreed text of the race directive.
Perhaps I may cite my concerns. Article 3(2) of the agreed text contains an exemption not only for discrimination between races and nationality but also for,provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons … and to any treatment which arises from the legal status of the third-country national and stateless persons … concerned.The Government told us that they would seek such an exemption. The committee was unconvinced and asked for a fuller justification. Perhaps I may refer the Minister to paragraphs 103 and 104 of the report. In the light of the committee's recommendation, I ask the Minister to clarify the precise significance of this exemption. Perhaps I may refer to his slightly different wording in recital 15 of the preamble. It states that the prohibition of discrimination based on racial or ethnic origin,should also apply to nationals of third countries, but does not cover differences of treatment based on nationality and is without prejudice to provisions governing the entry and residence of third-country nationals and their access to employment and to occupation".I ask the Minister for an explanation of the intended scope of the phrase "of any treatment" arising from the legal status of third-country nationals. What protection will they in fact be given by the directive? How does it fit with the proposed amendments to our domestic race relations legislation? There is also an issue of scope—I refer to paragraphs 100 to 103 of the report. Article 3 now includes "healthcare", "education" and "housing". However, Article 3 specifies that protection is given,within the limits of the powers conferred upon the Community".There is no specific Community competence covering housing or healthcare, and only limited competence covering education; for example, student exchanges. So what does it mean in practice? Our interpretation is that where there is no specific community competence, then the rights granted by the directive will apply only where another Community right is in question. For example, a right to non-discrimination in the provision of housing would be an indirect consequence of the right to free moment. Therefore, a black UK citizen would be protected in, say, France by virtue of the fact 1228 that he was exercising his right to freedom of movement, but he would not be protected by Community law if he stayed within the UK. I ask the Minister to clarify what the effect of these changes will be. In what circumstances will Community law apply and when will UK law continue to apply?
There are dangers when we talk about equality. When we talk about devising equality provision, for many of us it is to suit a particular single dominant culture. Nor can we subscribe to equality as and when it suits us. If equality has any meaning, then it must be at the centre of all our policies. Nothing less will do.
§ 3.28 p.m.
§ Baroness Miller of Hendon
My Lords, this has been an excellent debate with many first-class contributions from all round the House. That does not come as a surprise when one bears in mind the quality of the committee's report and the excellence of the chairman, as we have heard from many noble Lords who served on the committee.
We on these Benches are implacably opposed to all kinds of discrimination. We have some difficulty with the directive on establishing the framework of equal treatment in employment. I shall return to that point later in my speech. On the face of it the directives and the surrounding background sound innocent and contain a good many phrases to which no reasonable person or State would want to object—liberty, democracy, respect of human rights, fundamental freedoms, equality before the law and protection of all persons against discrimination and so on.
However, the practical application of those concepts, as distinct from the theory, is never only black and white—if I am permitted to use such a politically incorrect phrase. It involves shades of grey. Enforcing one person's rights may result in the diminution of another person's fundamental freedoms in some respect. If I prefer to employ an older or younger person because I believe that one is likely to have better judgment or, on the other hand, one might be physically stronger, then that is ageism. We all agree that that is unacceptable. Indeed, I should tell the noble Baroness, Lady Greengross, that I understand exactly what she said. During my very last political interview, when I was looking for a seat, it was put to me whether I did not think that I was far too mature for the job.
In a small business where fewer employees work in close contact with one another, if I decide that one candidate for a job seems to fit in better with the other employees, then of course I run the risk of being guilty of racism, ageism or sex discrimination—as, indeed, would undoubtedly be the case. So here we have traded, on the one hand, an employer's right to employ whom he wishes to avoid the offence of discrimination. As a civilised society, we deploy the right to deprive an employer of his right to employ whomever he chooses for the benefit of protecting someone else from discrimination. A balance has to be struck. Obviously, we wish to settle for the lesser of the two evils.
1229 I invite noble Lords to examine the long catalogue of what I would describe as our own domestic human rights legislation, going back over 30 years: the Equal Pay Act 1970, the Race Relations Act 1976, the Sex Discrimination Act 1975 and the Disability Discrimination Act 1995. Those are only a few Acts which were passed by this British Parliament, aside from prohibitions in various different Acts making racial harassment a criminal offence. I do not offer a comprehensive list here, but I wish to make the point that here in the United Kingdom, we are perfectly capable of protecting our citizens from the wrongs listed by the directive in its preamble. While I accept that we are by no means perfect—I know that we have not met all the aspirations of the noble Baroness, Lady Howells of St Davids—I agree with the noble Baroness, Lady Stern, that nevertheless, we provide a role model for the rest of Europe.
Our view on this side of the House is that the latest proposals contained in the directive are essentially a matter for Britain to decide for itself. I do not mind sounding chauvinistic when I say that Britain does have a longer history of freedom and egalitarianism than some of our European partners. No one should run away with the idea that legislation is the only way to make things better, to change people's attitudes or to reduce their prejudices.
Without a doubt, most—indeed, the overwhelming majority—of our citizens are, I believe, the most tolerant in the world. That is for cultural and historical reasons, not because of coercive legislation and threats of sanctions. Tolerance is about attitude and the strength of character of our people. More and more legislation can interfere with that basic culture and can make otherwise tolerant people turn to resentment. It should not happen, but I know that it does.
The two directives with which we are faced today are to some extent inconsistent and contradictory. According to the committee, both are vague and generalised. The setting of the minimal standards in some respects will not affect this country because of our existing legislation. However, the committee is rightly concerned that if the so-called framework directive is not carefully drafted it will not distinguish between different forms of discrimination. It believes, quite rightly, that racial discrimination—that includes racial discrimination as well as that relating to nationality—is a major problem that needs to be tackled first and foremost.
The committee points to the success in this country in dealing with matters of discrimination on what it calls a sectorial basis, which has meant its easier acceptance by the public. In any case, different forms of discrimination may call for different remedies and sanctions. Furthermore, it will be difficult to define what role "genuine occupational qualifications" will play in any legislation.
It should be noted that, by legislating in the form of directives rather than by prescribing the actual regulations, the EU has given individual member states the scope to interpret the requirements in a way 1230 that suits them individually. The noble Lord, Lord Tomlinson, made that point. I hope that this will mean that the Government will take a sensible attitude to what constitutes compliance with the directive. Although that is my hope, my expectation based on experience is that that may not occur. This Government have a record of gold-plating EU directives, irrespective of the burdens that they place on our industry.
On 2nd December last year, the noble Baroness, Lady Jay, in a long Written Answer, used such phrases as,transform Britain into a society which is inclusive and prosperous … making equality of opportunity a reality … stamp out discrimination, remove barriers",and so on. That is quite right, and entirely commendable. We on these Benches entirely support those objectives. The noble Baroness went on to say,We will avoid unnecessary and burdensome regulation".—[Official Report, 2/12/00; col. WA 49.]I sincerely hope so. However, the CBI, although naturally in favour of the principles of the intended measures, is concerned that the proposals may lead to "fuzzy law", leading to a welter of legislation.
John Cridland, the director of human resources policy at the CBI, told the committee in his evidence:we are seeing the development of … fuzzy law, particularly it the area of equal opportunities. Smaller business desperately needs more certainty in employment law and in equal opportunities law".In the year to 31st March 2000, employees started more than 164,000 actions compared with 124,000 in the year to 31st March 1999. That is an increase of 25 per cent. Of course, there has been an increase as advisers tell employees that starting a discrimination case is like making a bet that you cannot lose. Many employers, especially those with small businesses, will settle the most unjustified and ill-conceived case because of the amount of management time and effort and legal costs it takes to defend it—to say nothing of the lottery of the fanciful figures some tribunals pluck out of the air for compensation. Only a couple of weeks ago we saw a case in which a policewoman received the equivalent of £1 million, and this week a policeman was awarded £750,000. That is far more than either would have received in salary had they remained in the service for the rest of their working life. The point I am trying to make is that one can sometimes go too far with these matters; then, the whole culture is changed, and litigation becomes the norm of the day. The risk is that we shall be adding fuel to the compensation culture that is rapidly developing.
The directive refers to,the Principle of equal treatment between individuals".But where is the equality when a disgruntled employee can launch a claim, however ill-conceived, against an employer who is faced with the cost of fighting it?
We have a principle in this country that the unsuccessful party pays the costs. A large number of these speculative cases would never be launched if the employee had to put down even a nominal deposit. The current "no win, no fee" regime, with its attendant 1231 insurance policies against adverse costs, will ensure that a poor employee with no means is not deterred from bringing a justifiable case—and nor should he be. I have to say that I have no hope that anything will happen in this area, although I should like to think that it will.
I turn to two serious problems that arise from the directive. One is the aspect of what may be described in shorthand as the religious problem. This is caused by the extreme lack of clarity—"fuzziness" in the description of the CBI—in the phrase "genuine occupational requirements", which is open to almost limitless varieties of interpretation. That is particularly the case in relation to the employment of teachers in religious schools where the teacher is of a different religion from that of the school or even of no religion at all.
Other noble Lords, including the right reverend Prelate the Bishop of Southwark and my noble friends Lady Young and Lord Griffiths, have spoken in detail about this matter far more eloquently and adequately than I could. The noble Lord, Lord Northbourne, who is no longer in his place, spoke on the subject on a wider level.
All that I wish to add is that it is no answer to argue that it makes no difference in a religious school if, say, the maths teacher or the geography teacher is of a different religion. I know from experience that often just one teacher will have a particular influence on some pupils outside the subject that he or she teaches. Parents are entitled to expect that their children will be taught, directly or indirectly, what they want and in the way that they want, and that the school should have the ethos that they want. This extends to other things—nursing homes and so on. My noble friend Lord Griffiths of Fforestfach gave a whole list, which I am sure was not exhaustive; there must be more.
The other major objection to the proposals concerns Article 9, which in simple terms reverses the burden of proof. As your Lordships know very well, it is almost impossible to prove a negative. A disgruntled applicant for a job has only to allege facts giving rise to a presumption that there has been direct or indirect discrimination and the employer has to prove that there was none. How does he do that? Two candidates of roughly similar qualifications apply for the same job. Only one can get it. Why should it be presumed that the other was discriminated against on the grounds of race, ethnicity, religion, age, sex or whatever? Will the employer have to make the two potential employees toss for it to avoid being accused of discrimination?
What is indirect discrimination? Shall we become involved in the ridiculous nonsense that applies in the United States, where someone who does not meet required educational qualifications can even complain that he has been indirectly discriminated against because the employer did not make allowance for the deprived circumstances in which he was brought up? That, I believe, is what the directive would introduce.
1232 As the committee points out, a disgruntled employee or unsuccessful job applicant has only to prove that a given practice is merely liable to have an adverse effect. Such as? I shall not go into more details, because many noble Lords have already touched on the matter, and I am aware of the time. I shall move on rapidly and not go into the question of indirect discrimination, except to say that as originally drafted the Government's Race Relations (Amendment) Bill did not cover such discrimination. However, at the Committee stage in the other place the Government introduced amendments including indirect discrimination. The noble Lord, Lord Dholakia, mentioned that, and I heard him say "Hear, hear" just now.
On 3rd December 1999 the Home Secretary said that although the Government were prepared to consider further amendments, nobody had come up with proposals that would not open the door to floods of what he called "mendacious actions". Will the Minister tell us how the present proposals will avoid such actions?
On 11th January this year the noble Lord, Lord Bassam of Brighton, referred tothe unforeseen consequence that the incorporation of indirect discrimination may have for government in the pursuance of certain policies".—[Official Report, 1lth January 2000; col. 572.]He listed a number of circumstances, which I will not take up time by repeating.
I have my doubts over indirect discrimination, but if the concept is to be incorporated into the law there must be absolute certainty as to what it means. It cannot vary from judge to judge, case to case, tribunal to tribunal or indeed from country to country.
Perhaps in her reply the noble Baroness the Minister will tell us what effect on litigation against employers is likely to ensue from the incorporation of these anti-discriminatory proposals into our law—especially with reference to indirect discrimination.
Do the Government agree, if not with me, with the Chief Constable of the South Wales Police, whose evidence to the committee—to be found at page 143 of the report—was that reversing the burden of proof might open up "an avenue of expensive litigation"?
Under Article 13, Britain has the right to veto this legislation, and it should do so unless we can be absolutely certain that it will not be harmful to our country and our economy. No less important, it must not be offensive to our religious communities or, in the name of giving some people the right to demand to work in a place where they may not fit, deprive them of their right to conduct their religious affairs in their own way.
The Government, then, had the right to veto the last racial discrimination directive. They said that they would, but they did not. Will the Government veto these objectionable proposals this time? Can the noble Lord give us an assurance that the Government will exercise the UK's rights, especially those of our religious schools of all denominations and faiths? Article 13 is high on the Commission's hit list to get rid of the national veto. If this occurs, either because we 1233 give it away or lose it through customary disuse, we shall not be able to veto any other objectionable directives. Can the Government give your Lordships a guarantee that they will not support any extension of qualified majority voting in this very sensitive area?
I conclude by repeating that this has been a very good debate. The committee has produced a wonderful report, and I am glad that I have had the opportunity to participate in the debate.
§ 3.45 p.m.
§ The Minister of State, Department for Education and Employment (Baroness Blackstone)
My Lords, we have had an extremely interesting debate. I know that the House will be grateful to the noble Lord, Lord Wallace of Saltaire, for having introduced the debate and for giving your Lordships the opportunity to discuss the issue. I thank the noble Lord and all the members of the committee for their report on European Union proposals to combat discrimination. Both the report and this debate will help the Government to develop their position on the proposed framework employment directive and the action programme.
I agree with the committee in welcoming Community action to combat discrimination. I am somewhat surprised by the contributions to the debate by one or two Members from the Conservative Opposition. These are detailed proposals which deserve the attention given to them by the committee in its report and in this debate. The report focuses on two directives which deal with race and employment. Towards the end of their presidency the Portuguese decided to focus solely on the race directive and, after a flurry of activity, that was agreed unanimously at the meeting on 6th June of the Social Affairs Council.
The principal effect of this unique anti-racism package is to extend to other EU countries and applicant countries a similar level of protection from racial discrimination to that which, I am glad to say, has existed in the UK for many years. While some of our European partners have had such legislation in place for years, I regret that others have had little or no protection. The Government are deeply committed to fighting all forms of racism and—I point out to my noble friend Lord Bruce of Donington—xenophobia. This directive represents an important step forward in the fight against racism both at home and in Europe. It sends a signal that we are serious about tackling racism and achieving equality for all. I am sure that that is something with which every Member of your Lordships' House identifies and wants the Government to achieve.
The Government particularly welcomed the presidency's decision to fast track the race directive because successive European Councils, including the one held in Cardiff and, most recently, the meeting in Tampere in late 1999, pressed, rightly, for urgent action on a broad front against racism. The European Parliament reflected this view by giving an early opinion on the race directive.
1234 Ministers felt that it would not have been acceptable for the UK to withhold agreement even though the Lords had not lifted its scrutiny reserve. Given the history of the proposals, the strong UK support for early action and the unanimous support of the other member states, it was clear that a UK veto—withholding UK support would in effect have amounted to that—was unthinkable. I am most grateful for the support of the noble Lord, Lord Lester, and my noble friend Lady Whitaker on this matter.
We shared the concern highlighted by the Select Committee's report that the race directive as originally drafted was too prescriptive in some areas, and we were able to negotiate successfully to overcome that problem. So, for example, it is now clearly spelt out that the precise functions of the independent bodies set up under Article 13 are a matter for individual member states. Other concerns raised by the committee, including potential overlap between the race and employment directives and the possible inclusion of religion, have been resolved.
The rapidity of events leading up to the agreement of the race directive has led us to prepare against a similarly swift conclusion on the employment directive. While I am sure the House will understand that it would be counter-productive to reveal our negotiating position in full, I have asked my officials to work particularly hard at keeping the scrutiny committees of both Houses informed of developments as events unfold. I hope that that reassures the noble Lord, Lord Wallace of Saltaire.
The noble Lords, Lord Wallace and Lord Dholakia, my noble friend Lady Howells of St Davids, and the noble Baroness, Lady Miller, mentioned one of the most important areas of concern in both directives: the wording of the definition of "indirect discrimination". The definition was agreed in negotiations on both directives, but the one which appears now in the race directive is different from the definition given by my noble friend Lady Howells. It states that,indirect discrimination shall he 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".I spell that out for clarification.
I believe that the committee was of the view that there was no need for a new definition; rather we should stick to the definition that was in the burden of proof directive which closely reflected the definition currently used in the Race Relations Act. Frankly, that was our original view too. However, it soon became apparent that several other member states could not support such a line. In some member states the collection of information about ethnic background is expressly forbidden by law.
The definition of indirect discrimination which appears in the race directive therefore represents a compromise. However, perhaps I may say to the noble Lord, Lord Dholakia, that it is a compromise with which we are pleased. The final definition is much 1235 closer to the burden of proof directive definition than the one contained in the original Commission proposals.
In its report, the Select Committee raised the issue of the lack of definitions in the race and employment directives. 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 should be pointed out 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. I hope that that helps the noble Baroness, Lady Miller. It would not be compatible with the principle of subsidiarity for the directives to set out extensive definitions of every single concept even assuming that member states were able to reach agreement on those definitions in negotiations for the directive.
It will be important to ensure that the legislation enacted to transpose the directives into UK law is as clear as possible so that all parties concerned, in particular employers, will know exactly where they stand. The Government share the concerns of the CBI that "fuzzy" law should be avoided.
With regard to the race directive, I turn to a question asked by the noble Lord, Lord Lester. It is also relevant to a question posed by the noble Lord, Lord Dholakia. We shall be consulting on the directive before deciding on any changes to the exceptions to the Race Relations Act, so we shall not amend the Race Relations (Amendment) Bill to do that. In any case, the scope of the race directive does not extend to the operation of immigration services; nor does it cover any justice and home affairs activities.
The noble Baroness, Lady Stern, and my noble friend Lord Tomlinson asked about third country nationals. They are covered by the directives in so far as discrimination on the ground of race may affect them, but only within the fields covered by Article 13. That is the point that we must remember. The directives do not, and cannot, relate to differences of treatment based on nationality, neither do they extend to the immigration services. However, under the grounds set out in Article 13, the 2 million residents in the UK, referred to by my noble friend, will be protected throughout the EU in the field specified in the directives, particularly where there is discrimination on the ground of their race with regard to employment.
§ Lord Lester of Herne Hill
My Lords, I am grateful to the Minister for giving way. Do the Government accept that the material scope of the race directive being limited to issues within European Community competence gives rise to the need for the 12th Protocol to the European Convention on Human Rights to be signed and ratified so that race discrimination in 1236 education, healthcare and so forth can be covered effectively in all national legislation within the member states?
§ Baroness Blackstone
My Lords, I shall turn to that issue a little later, so perhaps I can answer the question then.
A number of speakers referred to the action programme. The current package of proposals under Article 13 includes a proposal for an action programme. The committee lifted its reserves on that and I thank it for doing so. The Government agree with the committee that the exchange of best practice will be a useful contribution to the development of equal opportunities across the EU. That will be particularly pertinent to the candidate countries.
My noble friend Lady Whitaker, the noble Baroness, Lady Stern, and the noble Lord, Lord Rix, asked about the programme. It is still being negotiated and is not yet adopted. However, funding and its allocation will be discussed in the negotiations. I can tell the noble Baroness, Lady Stern, that the action programme may operate to provide non-discrimination in the police and in the criminal justice area generally.
I turn to the employment directive. The report of the scrutiny committee draws out the Government's primary concerns. It is essential that the proposal is clear and workable, will impose no unnecessary burdens on employers, and will avoid unnecessary and excessive litigation. I agree with what was said about that by the noble Baroness, Lady Miller. Equally, we must ensure that the provisions in the directive lead to real equal opportunities for each target group.
Many of the comments in the report draw out the difficulties, particularly as regards disability and age, and identify the underlying difficulty with the directive with respect to disability. It is hard to find a single approach to equality which is workable for all areas, including this. The committee rightly had concerns that an approach which suits other equality areas will not necessarily work as regards disability. The committee was not convinced, for example, that the directive's concept of indirect discrimination would reinforce the DDA's protection.
We agree that the matter is far from clear. Under the draft directive, indirect discrimination is about the effects of the employer's provisions, criteria or practices. But under the DDA, if issues such as the employer's provisions, criteria or practices place a disabled person at a substantial disadvantage compared with a non-disabled person, the employer already has a duty to make a reasonable adjustment to rectify that.
The committee also questioned the lack of definitions and explanations of terms such as "reasonable accommodation" and "undue hardship". It questioned whether the latter was even necessary. We must explore those issues with the commission, as well as some of the more specific points raised by the noble Lord, Lord Rix.
1237 The DDA is increasingly familiar to employers and it is working. We want to build on it. However, I am prepared to concede that other member states might want to take a rather different approach. I should not wish to impose a similar system on them if they were reluctant to accept it, but we intend to ensure an outcome that will enable us to continue to develop the approach embodied in the DDA. I hope that that will reassure the noble Lord, Lord Rix.
Equally, the "one system to suit all" approach clearly does not work for age, any more than it does for disability. The draft directive attempts to overcome this by setting out a range of justifications that are not all convincing. I am grateful to the noble Baroness, Lady Greengross, for her comments in this area. As she said, we have no corresponding UK legislation. We had decided to explore the voluntary approach before the draft employment directive was issued. We have yet to evaluate that, but I shall ensure that we keep in touch with the noble Baroness on the matter.
We have serious concerns about the practicalities of the proposals. As the committee's report states, it is unclear what ages will be covered. Moreover, in order to judge whether discrimination has occurred, one needs a comparator group. In the case of age, because everyone has an age, it is difficult to envisage what the comparator group would be or how this would work in practice.
I turn to religion—an issue that has exercised some speakers in the debate. The Government support the principle of action under Article 13 to combat discrimination on the ground of religion. They have also listened to the concerns of minority faith communities about issues of religious discrimination, including that within the field of employment. Of course, this raises difficult, sensitive and complex questions and there is no quick and easy solution. The employment directive presents an opportunity to protect individuals from discrimination on the ground of their religion. I am sorry that some speakers on the Conservative Benches have failed to recognise that. However, of course, I accept that we must get it right.
We have commissioned research to assess the current scale and nature of religious discrimination and the extent to which it overlaps with racial discrimination. I believe that the noble Lord, Lord Dholakia, asked about that matter. The results, which are due at the end of the summer, will help to inform our negotiations on the framework.
Concerns have been expressed by the committee and in this debate by the noble Baroness, Lady Young, the right reverend Prelate the Bishop of Southwark and others that the directive may limit the freedom of religious organisations to preserve their own distinctive identity. However, I believe that the noble Baroness, Lady Young, and the noble Lords, Lord Griffiths of Fforestfach and Lord Vinson, rather overplayed the dangers of this directive. It is not a missile aimed at our Judaeo Christian tradition; nor is it attacking our basic freedoms, as the noble Lord, Lord Vinson—I see that he is not in his place—claimed. When the CBI broadly welcomes the 1238 proposals and when the Republic of Ireland already possesses such legislation, it seems alarmist and absurd to take such a line.
§ Baroness Blackstone
My Lords, perhaps I may continue. I shall respond to the specific points made by the noble Lord in just a moment. There is a need to amend the proposals in order to protect the legitimate rights of religious organisations, and we intend to do so. We expect that many other member states will support us and we shall not agree to proposals unless we achieve a satisfactory outcome.
As the noble Lord, Lord Lester, said, the proposals are not an attack on religious freedom. They are designed to protect people from unjustifiable discrimination at work. Therefore, they aim to achieve quite the opposite of what has been implied by some speakers. Moreover, the proposed directive recognises that some jobs have a determining requirement to be undertaken by those of a particular religion.
We agree that it should be acceptable for a Church school to be able to require a teacher to be an active member of the Church in question. We shall press for amendments to the directive to ensure that there is no question of religious organisations being forced to employ people who are not members of the relevant faith, because that would dilute the maintenance of a distinctive religious ethos. This is not a matter of the UK versus the European Commission or the rest of Europe. This was always the intention behind the proposals and I am sure that many other member states have similar views.
The Government are grateful to the committee and to the noble Lord, Lord Pilkington, and others for raising their concerns over the possible limitations of Article 4 of the framework directive. We agree that in its original form it was far from clear, but we believe that it provides a basis for further negotiation to secure sufficient safeguards for religious organisations, including schools.
I point out to the noble Baroness, Lady Young, that this is not a matter of the EU dictating to us what we should do. Negotiations will continue. I should also like to point out to the noble Lord, Lord Vinson—although he is not here—that it is not a matter of fanciful views on the part of a few Commissioners. The elected governments of member states are rightly concerned to combat racism and other forms of unacceptable discrimination.
The Government also abhor unjustified discrimination on the ground of sexual orientation. Our equality statement made clear our approach. We want to avoid unnecessary regulation, adopting non-statutory measures first and resorting to legislation only if there is a clear and proven need. The equality statement referred to our code of practice on discrimination in employment based on age. We proposed, in conjunction with the Equal Opportunities Commission, to prepare a code of practice on discrimination on the ground of sexual orientation. The EOC is taking forward work on that.
1239 I return to the concern that the employment directive might require religious organisations that believe that homosexual activity is wrong to open all jobs to practising homosexuals. The Government accept that difference in treatment in such circumstances may be justifiable. It would be unacceptable, for example, for a teacher in a Catholic school to challenge openly the teachings of the Church on homosexuality. We shall continue negotiating on that point to ensure that the directive is clear. We are also concerned to ensure that the employment directive will permit Section 60 of the School Standards and Framework Act 1998 to be maintained. I hope that that reassures the right reverend Prelate the Bishop of Southwark.
What of the way forward? We have many reasons to be pleased about the race directive. The UK has provided the model for the new directive, and there has been a tacit recognition from our European partners that we have led the way on fighting racial discrimination. When the race directive is implemented—it must be given effect within the next three years—UK firms and citizens will enjoy similar protection from racism across the EU to that which they enjoy at home. I know that that prospect is welcomed by industry and by those representing minority ethnic groups.
The Home Office will soon move forward to the next stage of the process. It intends to undertake extensive consultation exercises about how to implement the provisions. In due course, some consequential amendments will be required to the Race Relations Act. I am glad to say that they will be relatively minor.
My noble friend Lady Whitaker asked about the Government's longer-term intentions on the directive. We are still negotiating and we fully intend to reach agreement with our fellow member states. But I do not believe that I should be giving away state secrets if I said that there is a lot wrong with the original proposals. I know that there is a feeling in some quarters that this matter should be agreed as soon as possible. That is not our view. We are committed to agreement of a directive which works. If that takes time, we must spend the time.
As our policy statement of last November indicated, we want an equality regime which brings real benefits to those whom it is supposed to help. We want clarity. We do not want "fuzzy" law. We do not want to provoke an endless series of legal cases for the courts. We need to consider the impact on business and jobs. In our view, that means that the proposals in the employment directive need to be considerably improved, particularly in respect of age and disability.
I regret that I have run out of time. Therefore, I hope that I may be permitted to answer the other detailed questions, including that raised by the noble Lord, Lord Lester, in writing. Once again, I am extremely grateful to the noble Lord, Lord Wallace, for introducing this debate.
§ Baroness Miller of Hendon
My Lords, before the Minister sits down, perhaps I may apologise to her. I 1240 am absolutely mortified to be told by my noble friend Lady Young that in such a debate on discrimination of all kinds, including on the ground of gender, I described the Minister as "the noble Lord".
§ Baroness Blackstone
My Lords, I am most grateful for that. I noticed the error but I refrained from drawing it to the noble Baroness's attention!
§ 4.12 p.m.
§ Lord Wallace of Saltaire
My Lords, I thank the Minister for those extremely helpful assurances, which meet the committee's concerns very well. This has been a useful and worthwhile debate and I shall not detain the House for more than a few moments.
I wish to reinforce what the Minister said; namely, that this is not a question of the United Kingdom versus the rest of the European Union. There are religious schools elsewhere in the Community and, indeed, Catholic hospitals and universities. As a Protestant, I have lectured in two Catholic universities and I do not recall the roof falling in at either.
As a member of the Church of England, I would wish strong to resist the idea that secular society is a threat to religion. I used the term partly because my sense of religious societies and states is that they have, in the past, been sadly intolerant, and not only in the past. The most religious society in the United Kingdom is, after all, that of Ulster.
The societies of England in the 16th and 17th centuries, France in the 17th and 18th centuries, Iran and Pakistan in the late 20th century are societies which are much more religious than those that we have in Britain but I am not sure that they measure up to the degrees of tolerance and democracy that we wish to have. I remind the noble Baroness, Lady Young, that:In my father's house are many mansions".
My Lords, I hope that I may make my position quite clear about this matter. I was talking about the great Judaeo-Christian tradition which has informed and influenced our society for at least a thousand years. That was what I was comparing with secular society. I do not suggest that every religious organisation throughout history has been perfect.
§ Lord Wallace of Saltaire
My Lords, I understand and accept that. We could debate political philosophy and the liberal tradition for a very long time.
I make two other points. As regards national cultures and traditions, the Minister answered the point raised by the noble Baroness, Lady Howells, that we must accept that national myth and national memory in different countries are an inhibition in moving towards a common approach. There are good reasons why, in some other member states, statistical monitoring of racial, ethnic and religious orientation is resisted. One understands that and we must make way for it.
Some civil liberty lawyers in other member states think Britain extremely odd, in that in this country we accept as a matter of course that we can be televised in 1241 the street every day of our lives, and that that is not seen as an invasion of our civil liberties. In other countries, that would be deeply resented and strongly resisted. On the other hand, we think it odd that in other countries identity cards are accepted easily, whereas in this country that is resisted in its turn.
I underline the point made about third country nationals and visas, which a number of noble Lords made. Indeed, I hope that the committee may be able to return to that. This is part of the problem of the current state of the British opt out from the Schengen convention. As we have not yet opted into the visa conditions of the Schengen convention, I, as a university teacher, find, as do other university teachers, that our students cannot go to conferences in France, Italy or Belgium because it takes months to acquire the permission to go for just a day or two.
I was interested to hear that many noble Lords cited the recruitment of maths teachers as a particular problem in religious schools. The school that my children attended has just lost half of its entire maths department. If it could find a good maths teacher, I do not believe that it would care what religious or sexual orientation he or she had. He or she would be grabbed with open arms and dragged to the school.
As a committee, we shall continue to monitor with active interest the development of EU legislation in this area. We welcome the assurances of the Minister that the Government will co-operate.
§ On Question, Motion agreed to.