LETTER FROM LORD TORDOFF TO TESSA JOWELL, MP, DATED 5 OCTOBER 2000

  My attention has been drawn to the annotated agenda for the Employment and Social Policy Council on 17 October 2000, which states that the Council may reach political agreement on the proposed Council Directive setting up a general framework supporting equal treatment in employment and occupation. According to the annotations the matter has "cleared scrutiny", following the debates in both Houses. It is also stated that no revised proposal will be issued "until after the Employment and Social Policy Council meeting".

  Although it is true that the debates in the House of Lords and in the House of Commons standing committee, and the Government's response to our Report EU Proposals to Combat Discrimination, cleared the original draft proposal, I remind you that a further round of scrutiny is required when a proposal undergoes substantial amendment. It was clear from the comments made by Baroness Blackstone in the House of Lords debate that the Government agreed with the Committee's view that substantial amendment would indeed be required before agreement was possible. Thus the revised proposal, whenever it is made available, will be a depositable document and will be subject to a scrutiny reserve in both Houses. In the circumstances I believe it would not be appropriate for the Government to reach political agreement on such an important and controversial proposal without giving Parliament a full opportunity to express its views.

LETTER FROM TESSA JOWELL, MP, TO LORD TORDOFF, DATED 12 OCTOBER 2000

  Thank you for your letter of 5 October on the agenda for the Employment and Social Policy Council on 17 October and Parliamentary scrutiny of the proposed Council Directive setting a framework for equal treatment in employment and occupation.

  Let me say at once that I accept the key points you make. A further round of scrutiny is triggered when a proposals undergoes significant amendment. I also agree that the proposal in question will need significant amendment before we are likely to agree it.

  It may help if I outline the position at present. Although it is late in the day, negotiations on the proposed Directive are not concluded. A number of members states, including the UK, are still trying to achieve changes to satisfy their requirements. I understand that a new official version of the text is about to be made public by the European Commission. It will consist of the original Commission text amended, by them, in the light of proposals made by the European Parliament. In some ways this new text (we have just received an informal version which we will make available to the clerks to the relevant scrutiny committees) is, in our view, potentially misleading as it takes no account of the progress made in negotiations to date. I am not sure when a fully accurate, formal text will be produced but I am told it is unlikely to appear before the Council on Tuesday. We will of course deposit the final text with an EM when it becomes available.

  From the UK point of view negotiations have been productive on a number of our key points. We have made real progress towards a resolution of most of our concerns regarding, for example, religious organisations, the DDA, Northern Ireland and age. That said, we are not completely satisfied on all points. The age proposals in particular are proving difficult to resolve to our complete satisfaction.

  It is difficult to say at this point what the Government will do at the Council. It seems likely that most, if not all, other member states will be prepared to give political assent on the 17^th, and frankly I would be reluctant - if we have negotiated a satisfactory outcome on all of our remaining key points - to be isolated on a key concern of this Government and to risk losing some of the hard-won advances we have made through negotiation. That said, the UK may not be able to agree on Tuesday and will not if we have not achieved the key improvements we need.

  I will write to you again after the Council to give you a more detailed account of events and, of course, I will be giving evidence to the Committee on the 15^th November.

LETTER FROM LORD TORDOFF TO TESSA JOWELL, MP, DATED 18 OCTOBER 2000

  Thank you for your letter of 12 October on the scrutiny of the above proposal. I have now learnt that on 17 October the Employment and Social Policy Council reached political agreement. In agreeing this proposal the Government has over-ridden the Scrutiny Reserve, and I look forward to receiving a full explanation of your reason for so doing. You will be aware that considerable disquiet has been expressed within the House of Lords over this Directive, in particular over the position of religious schools. I expect the agreed text to be supplied as a matter of urgency to the Committees of both Houses so that the issues can be fully explored by Parliament.

  The Clerk of Sub-Committee F has shown me an email sent from your department, explaining that the United Kingdom has secured its "bottom lines". These include the following: an exemption for police and teachers in Northern Ireland from religious discrimination provisions; total exemption for the armed forces from provisions on disability and age; an exemption for occupational pensions and for differential minimum wage levels from provisions on age; a potential extension of the implementation period to 6 years. I note that the European Voice for 12-18 October stated that the UK and Ireland would be seeking an exemption for the military from provisions on age and disability. Your official's email was the first that I had heard of the Government's concerns on several of these issues. Why was Parliament not kept informed of the Government's negotiating position? I find it extraordinary that such information should have been available to the media before it was communicated to Parliament.

  I must also mention that at the COSAC meeting on 16-17 October I had the opportunity to discuss this matter with my Danish opposite number, who confirmed that the Danish Parliament were able to discuss the proposed Directive with Ministers last Friday, and so complete their scrutiny process. I find this hard to reconcile with Baroness Blackstone's comment, in replying to an oral question on 12 October, that "no revised text is available", and would welcome further explanation of why it was not thought possible to keep the United Kingdom Parliament similarly informed.

LETTER FROM TESSA JOWELL, MP, TO LORD TORDOFF, DATED 25 OCTOBER 2000

  When I wrote to you on 12 October outlining progress in negotiating the above mentioned Directive I promised to write to you following the 17 October Employment and Social Policy Council. You have also since written (on 18 October) making a number of points about scrutiny.

  I am very pleased to be able to inform you that we were able to agree the Directive at the 17 October Council having secured all our negotiating objectives:

• Disability provisions which are in line with the successful model of our existing Disability Discrimination Act;
• Exemption for police and teachers in Northern Ireland from the religious discrimination provisions;
• Provision to make clear that the Directive will not prevent member states acting to protect those at risk from e.g. harmful religious cults or paedophiles;
• Total exemption for armed forces from provisions on disability and age;
• Exemption for occupational pensions from the age provisions;
• Improved clarity of age provisions which will allow greater flexibility for domestic implementation;
• Provisions on religious organisations which give discretion to such organisations to have personnel policies based on the principles of their faith (these will allow us to maintain the 1998 Schools Standards and Framework Act's provisions on church schools);
• Implementation period of 3 years extendible to 6 for the age and disability provisions should a member state need more time to implement. This is particularly helpful in view of the complexity of provisions on age and the need to ensure small firms are well prepared when disability discrimination legislation is extended to them (not before 2004).

  I will, of course, be able to give more details of the final provisions of the Directive when I give evidence to the Lords Scrutiny Committee on 15 November.

  Turning to the points you raise about scrutiny. As I said in my last letter, I do sympathise with Parliament's frustration at not being able to see updated versions of the proposals in a timely fashion. The negotiations on this Directive were conducted to an unexpectedly rapid timetable imposed by the French Presidency and the final stages were conducted largely during a period of Parliamentary recess. The only publicly available version of the proposal in question - and the only depositable document - remains the original Commission proposal of November 1999. The speed of the negotiations meant that the Council Secretariat was not always able to update the confidential Presidency working papers in time to accurately reflect the progress of negotiations and translations of the French were rarely available. Indeed, I only received my copy of the text to be discussed at Council late on the day before the Council itself.

  That is why Baroness Blackstone replied that a revised text of the proposal was not available when she was answering oral questions on 12 October. On that day the only existing working papers (confidential Presidency working papers) were already out of date and the French versions were undergoing fairly constant change as the Council Secretariat incorporated revisions agreed in the days leading up to Council. In view of this limited availability of up to date texts, I cannot tell what the Danish Parliament's discussions on 13 October were based on but it certainly could not have been an up to date English language version of the text.

  You also mention the "bottom lines" for our negotiations. The fundamental principles guiding the Government's position were made very clear by me and by Tessa Blackstone when we appeared before the Commons and Lords committees before the summer recess. Before that the Government had submitted very full answers to the detailed questions posed by the respective committees and officials had also given evidence to the Lords' committee. As you will appreciate, there were "bottom lines" which emerged as negotiations progressed. The necessity for an exemption for the armed forces only finally became clear during the very last days of discussions. At the time of the article in the European Voice, for example, this exemption was still under discussion.

  I understand your concern about the unsatisfactory nature of the scrutiny process in negotiations which move at the pace of this one. I expect the text as finally agreed to be available next week and this will be deposited in Parliament as soon as it is issued.