Paper to the Warwick Conference on
"Fighting against discrimination today: Policies in prospect"
December 2002
We are addressing an important set of issues at a time when the Convention on the Future of Europe is in full swing. I believe it is important to keep in mind just "whose Europe?" is it we are hoping to create. Who are to be the "citizens" of this Europe? Will they be just the nationals of member states? Will it also include the dual nationals, third country nationals and the sans papiers? Do we really want people to move as freely as goods and services?
The rights we accord to non-EU nationals and the stand taken on anti-discrimination will be very important.
How we answer such questions through the Convention and the Inter-governmental Conference (IGC) to follow will reflect, or possibly determine, how we in Europe see ourselves in relation to the peoples of the rest of the world: are they an economic resource as in the past; potential customers or global citizens in a sustainable future?
As the only practising politician on this platform, what I would like to throw in to this discussion are some of my experiences since being elected to the European Parliament in 1999.
It is extremely interesting to be part of this developing policy area within the EU. This has been gathering pace since the ratification of the Amsterdam Treaty and the Parliament has been learning to deal with these expanding areas of competence, in which we are currently only consulted on proposals from the European Commission or member states (the latter often being of dubious quality as they go through no quality-control process prior to presentation). Parliament generally works very hard on its Reports in these areas, but we can find our work effectively binned, so we have a lot of sympathy with many of you here who find your research left on a lofty shelf, gathering dust.
The first Opinion I did in the Parliament, for the Employment and Social Affairs Committee, was on the Refugee Fund. This is a measure designed to assist so-called "burden-sharing" between member states by parcelling out a certain amount of money between them on a per capita sum per refugee basis. We managed, in both Committee and the Plenary session, to adopt many changes, including references to "responsibility sharing" on the basis that refugees are a responsibility not a burden.
It seemed very important to get the language correct and challenge the mind-set evident in the proposals. A piece of research published at the time by Austrian academics who had analysed Parliamentary debates in a number of member states on matters of asylum and immigration had shown that only 6% of all utterances by politicians had been unequivocally positive. I am sure we shall hear a lot about language and its effect on public attitudes during the course of this conference.
We made other changes to the proposal: for example that in order to receive monies from the Fund there should be a strategy in place for the improvement of services to refugees and asylum seekers and that the money could not be spent on detention centres.
In the debate, Commissioner Vittorino told us that it was too much to ask to ask for a strategy and that how the money was spent was entirely a matter for individual member-state governments.
It was an educational experience. However that, coupled with the outcome of a co-decision dossier on Working Time in which I was involved at the time, was also a very clear lesson on where power actually lies within the EU. It is still very much with national governments, whatever the impression our ministers and newspapers like to give about the power of Brussels. Brussels (i.e. the European Commission) has only the power our governments give it and our governments knowingly bind themselves in both Directives and Regulations.
It is not yet clear what powers the European Parliament will have in the field of Justice and Home Affairs following the Convention and the IGC. The Parliament's view is predominantly in favour of co-decision and qualified majority voting based on proposals from the Commission, not the current mish-mash from member states. However, given the position of the UK Government, whose bottom line is "no more power to the Parliament", Parliament's wishes are unlikely to be granted as any Treaty change requires unanimity.
It is also due to the Amsterdam Treaty that we now have what have become know as the Article 13 Directives which deal with anti-discrimination (the subject of the Treaty's Article 13). I think it is important to remember that when these Directives were introduced the Council had a very different political make-up and included many more left-wing governments (in theory anyway) than at present. We had a new Commission, anxious to prove that it was not an "anti-citizen" sleazy body but that it had high ethical standards. Parliament was also a reasonably new body (52% new intake) and wanted to demonstrate that it could be "close to the citizen". So it was that when the Freedom Party came into government with the OVP in Austria, a strong signal was felt necessary and possible - especially following on the heels of the Tampere Summit and conclusions.
I stress this different climate because I do not think that those Directives would pass as quickly or as positively now.
I also think it is interesting that the answer we were given as to why there are two Directives (the horizontal one dealing with discrimination on grounds of race or ethnic origin and the vertical one dealing with the employment field and discrimination on grounds of disability, age, religion or sexual orientation) was that it was easier to get the Race one agreed on by the Council. It is still felt that it is not possible to develop such a horizontal Directive on disability, even given that 2003 is the European Year of People with Disabilities.
So, these were seen as politically important, symbolic Directives. The only other legislation or regulation that I have seen go through as quickly (or even more so) has dealt with asset-freezing and anti-terrorism measures post September 11th, of which I'll say a bit more later.
We are now at the transposition stage of the Directives, and in many cases the governments which have to integrate these into national law are not the same ones that were in power when the first decisions were made. Do we see the same enthusiasm? Not really. Even at the Council stage, we saw the bodies proposed by the Commission, ending up simply as "bodies for the promotion of equal treatment" which may be part of other government organisations: they have no competence to deal with complaints themselves and while they can take action on an individual's behalf but they don't have a third party right.
Some member states, such as Belgium, have gone further than the Directives demanded and adopted federal anti-discrimination legislation.
Others have been or are consulting on implementation and have brought out proposed legislation, such as Denmark and the UK. France has claimed transposition but certain elements, such as the definitions of direct or indirect discrimination, are not fully covered.
Portugal, Luxembourg, Spain and Greece (the state of the Commissioner responsible) have yet to really get started. Maybe we can ask embarrassing questions during the Greek Presidency…
What is going on in other policy fields, such as those dealing with third-country nationals, immigration and integration?
It seems to me that after the Anti-Discrimination Directives, the natural next step would be to extend the rights of third-country nationals who have been legally resident in the EU for a number of years. This would be in line with the decision made at the 1999 Tampere Summit to bring these rights into line as far as possible with those of EU nationals.
The Commission published proposals for this in 2002 and the Parliament argued for taking the social rights suggested in the proposals even further.
The proposal is now, however, in difficulty, not least because the UK is opting out. This is due to the fact that one of the rights proposed for these legal residents is free movement across borders, effectively using the EU/EEA channel. Britain is extremely jealous of its border controls, partly of course, because we have a different system of immigration control not based on I.D. cards. It resolutely opts out of any measure which might allow any iota of immigration control being decided elsewhere: a position that might also explain part of its more enthusiastic attitude towards certain asylum proposals, those based on deterrence.
The UK has, however, decided to opt in to the extension of the right to be included in the co-ordination of social security systems to third-country nationals, presumably because no border control is involved. This means they will be able to transport their accumulated social security rights across borders, rather than losing them as at present if they move to another EU country.
As Parliament's Rapporteur on the Co-ordination of Social Security Systems Regulation 1408/71 , I have realised that there is another important factor in the issue of third-country nationals and immigration. This is the picture that people have in their head when they think of a third-country national or migrant. In terms of decision-making, this matters, whether we are talking about civil servants, politicians or the general public.
Kylie Minogue is an economic migrant; the heads of many major corporations are third-country nationals. Yet, for a key Danish civil servant, third-country nationals means Turks and their extended families; for the French it is Moroccans and other North Africans; the German civil servant tends to think of Turks and possibly Poles and in the Netherlands, it is increasingly Moslems who come to mind. Generally, it is the visibly different that are perceived as comprising this group and it will be interesting to see how the Article 13 Directives tackle this. It is also worth remembering that it was the British Government which was reported as having insisted on the immigration and asylum services being exempted from the Directive concerning discrimination on grounds of race or ethnic origin.
These collective perceptions and prejudices are dangerous, however, in that they distort policy decisions. Instead of developing a common immigration policy or policy towards third-country nationals which aims to cover the full range of people involved, we risk a policy which will limit opportunities for the many because the aim is to restrict the particular. The very governments which are so supportive of the GATS agreement (and I do not share their general enthusiasm for a wide variety of reasons) risk falling foul of their commitments to movement of workers under this agreement due to their perceptions, not facts. In the UK, for example, it is estimated that the largest group of illegal immigrants are actually people from the Commonwealth countries of New Zealand, Australia and South Africa who overstay their visa entitlement - they are predominantly white and not publicly perceived as immigrants.
There are increasing tensions in the development of immigration policy - whether the common EU policy (which my national Party does not generally support) or even at national levels. Demographics is an increasingly important factor as the EU population ages: Finland faces a situation where some 50% of its workforce is due to retire over the next ten years. We have a falling birth rate as exemplified by Spain and Italy for example; the UK is not in quite such a dramatic situation due in part to earlier waves if immigration and the fact that women in the UK tend to become mothers at a younger age than in Italy, for example. While it is recognised that immigration will not fill the entire gap and pay for future pensions, it is felt to be a possible part of the solution. Yet much of the discussion around immigration still insists on viewing it as a short-term phenomenon, which will do little to help the pensions bill.
There is a perceived need for external labour in many sectors: we have only to look at Germany's (failed) attempts to attract IT workers from India but many countries identify a need for labour in many sectors, both skilled and unskilled. It is not simply a case of putting the currently unemployed in to existing vacancies, as some would like to portray it. There are skills mismatches and an understandable reluctance of people, particularly older workers, to move long distances to take up work.
Business wants to see it made easier to recruit third-country nationals and to have the responsibility for acting as the immigration agent removed, especially from small and medium-sized businesses.
The EU itself is increasingly committed to a more flexible and mobile workforce: this commitment is demonstrated in the current proposals to facilitate the mutual recognition of qualifications within the EU (but not for 3rd countries yet); in the proposed simplification and extension of Regulation 1408/71; in language learning initiatives and so on. I also believe that the Article 13 Directives and certain of the inclusion initiatives in labour market policy in Sweden and to some extent Denmark, are also a tacit recognition of racism and discrimination in the workplace.
It will be interesting to see whether a recognition of the reluctance of EU nationals to move within their own member state, let alone to work in another EU country, will lead to changed attitudes towards many migrants, who are assumed to choose to move almost on a whim, with no recognition of the personal costs often involved. Perhaps we might see a more enlightened attitude towards family reunion , where the original Directive has had to be redrafted with further restrictions. Well, we can live in hope.
We can see these tensions in the votes in the European Parliament around the Directive on the Conditions of Entry of Third Country Nationals for Employment Purposes, for which I wrote an Opinion in the Employment and Social Affairs Committee. Some of the points of conflict cover: whether the migrant should speak or learn the language of the country of residence; family reunion and who constitutes the family; whether residence should only be short-term.
Here again we come across the irony of the Party of business and free trade (the EPP ) arguing for restriction and me, a Green, arguing the business case!
There is also now, a growing emphasis on "integration", which is often accompanied by talk of the need for migrants to accept "democratic values".
Here again we come across an interesting use of language. In many parts of continental Europe, "migrant" effectively means anyone non-white European: many countries have no such concept as "ethnic minority", which I know can be a contested term but does have a political currency in some countries. Concepts equivalent to "black British" or "British Asian" are not commonly used to express the idea of someone whose family background may be non-European but who are EU member state nationals. Thus the idea that anyone from such a background can still be seen as an alien, temporary resident with another country to which they can return or be returned has currency.
The arguments around integration focus on factors which give additional access to society and an opportunity to participate, such as education, training and optional access to language classes as opposed to factors which show you are "one of us" - compulsory language classes, citizenship training and a willingness to accept cultural norms of the country of residence. Again it is interesting that political groups that do not normally show intense interest in the rights of women in their own society, see this issue as a crucial area of acceptance for any third-country national! The "absorption capacity" of the national society is also seen as important in a way that the market absorption capacity for imports is not.
The discussion is also heightened by the development of the politics of the right, and I do not just mean the policy of extreme-right parties but the way in which certain parties have moved to adopt a version of those policies. Part of this development is, of course, due to the failure of the so-called left to challenge the myths and assertions of their opponents. The European Monitoring Centre on Racism and Xenophobia has identified a lack of positive political leadership in the struggle against racism, xenophobia and discrimination.
We shall see whether the implementation of the Article 13 Directives and positive labour market measures, as well as a more positive approach to the adoption of the Directives on the extension of rights to long-term third-country nationals, family reunion and the development of even-handed immigration and asylum policies, will provide political leadership or simply be a begrudging step forward.
Jean Lambert
December 2002