Irish gifts - sales benefit the Newshound

Mandelson's folly

(Austen Morgan)

With Peter Mandelson admitting there is a major difficulty over the Patten report on policing's recommendation of 50/50 recruitment (it will be contrary to EU law from 31 December 2002), two questions are being asked: how did the Government get into this mess and will the Secretary of State succeed in getting some sort of opt-out from Brussels?

In advance of the Lisbon European Council of March 2000, the UK and Irish states issued a joint statement. They asked other member states to agree to 'combat all discrimination, and make early progress on the commission's Article 13 [of the 1997 Amsterdam treaty] anti-discrimination proposals.'

Then, on 6 June, during the second reading of the Police Bill, Peter Mandelson suggested that the UK would derogate (sic) from proposed EU directives. By 15 June, he was going to 'persuade our European partners that [policing] is a special case of reverse discrimination'.

There was more in this vein at third reading on 11 July, when Lembit Opik, for the Liberal Democrats, spoke against quotas but for targets. Speaking for the Opposition, Dominic Grieve reiterated that he would have no objections to a majority of Catholics being recruited on merit.

The Bill will be debated in the House of Lords on 27 July, and the Government will find itself under pressure from legal peers to explain how reverse discrimination for the Northern Ireland police could be permitted under directives laying down general anti-discrimination legal principles to be implemented further by member states.

The contribution of the Northern Ireland human rights community has been incoherent. The Committee on the Administration of Justice in Belfast, in its submission to Patten, argued for targets and timetables for under-represented groups. Following Patten, it claimed it had advocated quotas, and jumped on the nationalistbandwagon.

The Northern Ireland Human Rights Commission insisted that reverse discrimination, in favour of Catholics but not women, would be compatible with EC law (advise not accepted by the Government).

The answer to the second question is no: Peter Mandelson will not prevail in the EU; Patten is not able constitutionally, as a commissioner, to help rescue his report.

The new European law stems from Article 13 of the Amsterdam treaty, which empowered the council to 'take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation'.

If the Government had wanted to retain the option of reverse discrimination in 1997, it should have secured a different article or something similar to the earlier Maastricht treaty opt-outs.

Article 13 gave rise to two proposed directives of the European Commission, published on 25 November 1999. This draft legislation permits positive action, but not so-called positive discrimination. The views of officials in the member states had been ascertained. And the commission followed the case law of the European Court of Justice on the equal treatment of men and women since 1976. If Mandelson persists with the discrimination in appointments clause of the Police Bill, then all recruits from 2003 who are admitted to the pool and then not selected may use one or both directives to secure damages for discrimination on the ground of ethnic origin, religion or belief.

That is why Mandelson is talking about a special case. Some in Northern Ireland would welcome London and/or Dublin fighting for a special case, as a precedent for community positive discrimination law. Their opponents would be bureaucrats, politicians and potential beneficiaries with a vested interest in the existing Article 13 expansion of anti-discrimination law.

In 1997, Ronnie Flanagan was told: 'You are right that positive discrimination is counter-productive. People have to be advanced on merit.' The speaker was Ken Livingstone. What he came to regret, Mandelson is now determined to thrust on Northern Ireland. Old Labour lives.

August 1, 2000
Austen Morgan is a London barrister and has written The Belfast Agreement: a practical legal analsis.