§ 3.2 p.m.
§ Lord Carter
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Race Relations (Amendment) Bill, has consented to place her prerogative and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
§ Lord Bassam of Brighton
My Lords, I beg to move that this Bill be now read a second time. The Bill significantly updates the Race Relations Act 1976 for the first time in almost 25 years. As set out in the Government's equality Statement made in another place on 30th November and repeated by the Lord Privy Seal in response to a written parliamentary Question from my noble friend Lord Haskel on 2nd December, it is a significant part, but only one aspect, of our wider equality agenda. We want to transform Britain into a society that is inclusive and prosperous, eliminating unjustified discrimination wherever it exists. Making equality of opportunity a reality for all is very much at the heart of our agenda. It is not only inherently right but also essential for Britain's economic and social success.
Our aim is to provide the right legislative and administrative framework to achieve just this. We have made it clear that we will bring forward further legislation to meet the legislative commitments that we have made in response to the CRE and other bodies as soon as parliamentary time permits. Not least, we shall place a statutory duty on public authorities to promote equality. Our aim is to ensure that public authorities set the pace in the drive for equality through leading by example. Therefore, this Bill should be seen and welcomed in that context.
The Bill has three main purposes: to extend the Race Relations Act in relation to public authorities; to make chief officers of police vicariously liable for acts of racial discrimination by police officers; and to amend an exemption under the Act for acts done for the purposes of safeguarding national security, thus remedying a provision that we think is incompatible with the European Convention on Human Rights.
The first two proposals implement a government commitment made in response to one of the key recommendations of the report of the inquiry into the death of Stephen Lawrence. The report recommended, among other things, that the Race Relations Act should be extended to the police and that chief officers of police should be made vicariously liable for acts of racial discrimination by police officers.
128 When the report was published, the Government said that they would go further and are now doing so. We are extending provisions of the Act not only to the police but also to the functions of other public authorities—those listed in Schedule 1 to the Bill—that are not currently covered. The Bill therefore tackles gaps in coverage which were left when the 1976 Act was introduced, or which have been found through the case law.
The Commission for Racial Equality, in its third review of the Race Relations Act, also recommended that the Act should be extended in respect of public services, as, indeed, did the Better Regulation Task Force. So I am pleased to say that the Bill also meets a commitment made by the Government in response to both the CRE and the Better Regulation Task Force.
I anticipate that noble Lords will wish to focus their initial deliberations on the first of the three aspects of the Bill. Therefore, it is to this that I turn first. However, before describing what the Bill will do, I should like to describe what the existing legislation—the Race Relations Act 1976—does now. It is difficult to understand the one without the other.
As your Lordships will know, we have in this country a Race Relations Act that is now almost 25 years old. The noble Lord, Lord Lester of Herne Hill, will be particularly familiar with that piece of legislation. Indeed, he was very instrumental in getting it on to the statute book. I pay great tribute to him because the Act has, by and large, stood the test of time and has made a highly significant contribution to improving the quality of race relations in our country. That fact should not be overlooked.
The Act makes it unlawful to discriminate on racial grounds in relation to employment, training and education, the provision of goods, facilities and services, and certain other specified activities. It provides for individuals who have been discriminated against to bring proceedings and claim damages in employment tribunals or designated county courts. It also established the Commission for Racial Equality, giving it independent strategic investigating and enforcement powers.
The Act does not generally apply to functions other than those I have mentioned—namely, employment, training and education and the provision of goods, facilities and services—so there are gaps in the Act's coverage in relation to public authorities. Further, the precise distinction between functions that are covered and those which are not is unclear and is only clarified in particular cases, and in a piecemeal fashion, by decisions of the courts. I shall give your Lordships an example. In relation to goods, facilities and services, it has been found by the courts to apply in respect of public authorities only where the act done is at least similar to an act that could be done by a private person. We also know that the Act does not apply to the functions of immigration control and law enforcement. The case law that I particularly have in mind is Rv. Entry Clearance Officer, Bombay ex parte Amin  and Farah v Commissioner of Police for the Metropolis . This Bill addresses those gaps.
129 Clause 1 of the Bill extends the Race Relations Act by inserting new Sections 19B, 19C and 19D into Part III of the Act. I shall say something about each in turn. New Section 19B will make it unlawful for a public authority to discriminate directly against a person, or to victimise a person, on racial grounds in carrying out any of its functions. This provision applies to all functions that are not already covered by the existing provisions of the Act; in other words, where functions are already covered by another provision of the Act, that coverage will not change.
The new section will have very wide application. For the purposes of the section, "public authorities" will be those bodies, or classes of body, listed in a new schedule to the Act. The schedule lists the main central and local government bodies, including the police. Ministers of the Crown, government officials, law enforcers and other office holders will all be covered.
Your Lordships may notice that there are some exemptions and omissions to the list of public authorities. I should like to assuage any concerns that your Lordships may have on this point. In most cases omissions have been made for one of two reasons.
First, there are some bodies whose functions are clearly already covered by the current Race Relations Act. Educational bodies are an obvious example. Secondly, the schedule does not include those public bodies usually known as non-departmental public bodies or quangos. It is intended that where it is established in consultation with such bodies that they have functions that are not already covered by the Act, they too will be added to the list of public authorities by order.
Generally, victims of discrimination under the new Section 19B will be able to bring proceedings in a designated country court, or, in Scotland, a sheriff court, in the same way as for existing non-employment cases under the Act. The only exception will be for claims which are, relevant to the immigration and asylum cases to be heard under the one-stop procedure established under the Immigration and Asylum Act 1999, about which I shall say more later.
I anticipate that your Lordships will be interested to know why the Government are proposing that the new section should cover direct discrimination and victimisation but not indirect discrimination. The Government did not take this decision lightly. We reached it for many of the reasons that we concluded that it would have been inappropriate to include indirect discrimination in the Northern Ireland Act 1998 when that legislation was before us in the second parliamentary Session.
I feel privileged in explaining what I am about to say in the presence of so many of your Lordships who know and understand this legislation all too well from experience and perhaps better than I. However, I shall persist for the sake of completeness. I am sure your Lordships will agree that direct discrimination is where a person treats a person less favourably than he treats or would treat other people. Indirect discrimination is treatment that may be described as equal in a formal sense but that is discriminatory in its 130 effect on a particular group. It occurs when a requirement or condition is applied equally to all, but the proportion of one group that can comply is considerably smaller than the proportion of another group that can comply.
To outlaw indirect discrimination in all the functions to be newly covered by the Act would have uncertain and potentially far-reaching effects on the Government's ability to make policy. Any policy or practice that had a differential impact on different racial groups because of a requirement or condition could be challenged in the courts. That could potentially include any age-based policy because of the different demographic profiles of different racial groups, and also any regional policy because of the different regional spread of different racial groups. Not least, challenges could be mounted to those policies that are helping individuals from ethnic minority communities the most.
The Government are working to ensure that discriminatory policy-making and practice must stop. But we believe that the most effective way of ensuring this is to retain the flexibility necessary to pursue policies which can benefit ethnic minorities and others without the risk of frequent and counter-productive challenges in the courts while obliging public authorities to tackle unjustifiable discriminatory practices through the promotion of race equality. That means, for example, consulting those affected by policy proposals and monitoring the differential impact of policy on different groups so that unexpected, unjustifiable outcomes can be remedied. As announced in the Government's equality Statement, we are pursuing this administratively and are committed to placing a statutory duty on public authorities to promote equality as soon as parliamentary time permits.
I come to the special provisions relating to immigration, asylum and nationality, at new Section 19C. The extension of the Race Relations Act will cover immigration staff. This includes all Home Office and Foreign and Commonwealth Office staff who operate the UK's immigration control, both in this country and overseas.
The Bill provides a number of consequential measures to secure proper alignment between the various statutory provisions covering race relations and those that govern immigration, asylum and nationality. These are necessary to allow our immigration laws to continue to be administered as Parliament intended, and to support the Government's policy of reforming and accelerating the immigration and asylum appeals system. Your Lordships will of course be familiar with the measures in the Immigration and Asylum Act 1999 to produce a new one-stop procedure for appeals. These measures, when in place, will support the delivery of our target that, by April 2001, the majority of asylum applications will be resolved within an average of two months and appeals against a refusal within a further four months.
131 The operation of an immigration policy necessarily and legitimately entails discrimination between individuals on the basis of their nationality. Differential treatment is unavoidable because, for example, arrangements for the operation of our immigration control at ports must distinguish between our own citizens, who are free from immigration control, and other nationalities who are subject to such control. Furthermore, there are different rules for those who enjoy free movement rights under our international obligations and those who do not. The immigration rules make distinct provisions for those nationals who require visas to come to the UK and those who do not. Some rules and policies apply only to Commonwealth countries or specified nationalities. There are other examples.
The operation of a rational asylum determination process also requires the ability to differentiate between people of different nationalities and ethnic and national origins who are at risk of persecution overseas and those who are not. A recent example of such differential treatment was the special exercise to evacuate and provide protection to Kosovo Albanians during the crisis in the Balkans.
The existing safeguards in the Race Relations Act for covering acts of discrimination done in pursuance to other statutory provisions are insufficient to allow the immigration system to continue to operate as it should. If consequential provisions were not made, Ministers would, for example, be unable to authorise special compassionate exercises where necessary for particular ethnic or national groups and immigration staff would be unable to exercise the operational discretion necessary to carry out their duties in accordance with ministerial instructions. That is why the Bill provides in new Section 19C that acts of discrimination by immigration staff will not be unlawful if such acts are required or authorised by specified immigration and nationality laws, or expressly authorised by Ministers who of course are themselves accountable to Parliament.
Overall, therefore, it will be unlawful for immigration staff to discriminate on the grounds of race or colour, or, in the case of nationality and ethnic and national origins, where they go beyond what is specified in immigration and nationality laws or what is expressly authorised by Ministers. The personal decisions of Ministers in individual immigration and asylum cases will also be exempt, as such decisions may make legitimate distinctions on the grounds of nationality not covered by existing approved arrangements.
The Bill seeks to strike a sensible balance between prohibiting discriminatory behaviour we would all regard as abhorrent on the one hand, and allowing justified and necessary acts of discrimination to maintain the Government's immigration and nationality policies on the other.
New Section 19D seeks to preserve the role of the criminal courts as the sole forum for determining guilt by exempting decisions not to prosecute from the new 132 provisions of the Bill. The importance of this principle was recognised both by the White Paper on freedom of information and also by the Phillips Royal Commission in 1981 which stated,publicly calling into question a decision not to prosecute could amount to a trial of the suspect without the safeguards which criminal proceedings are designed to provide".I now move to Clause 2. The existing Act covers appointments made by Ministers and departments. Certain public appointments, such as Crown appointments, which are made on the recommendation or approval of Ministers will be newly covered by the Act by virtue of new Section 19B. This clause provides that the remedy for unlawful discrimination is by way of an application to the High Court, or in Scotland the Court of Session, for a declaration, or in Scotland a declarator, and damages. This brings these appointments more in line with existing arrangements in the Act in respect of public appointments.
I wish to say a few words about the special provisions being made in relation to the prosecution function. These are covered in Clause 4 of the Bill. The functions of criminal prosecutors and investigators as listed in the schedule will be covered by the extension of the Act. This means that individuals will be able to bring proceedings against prosecutors and investigators who have directly discriminated against them or victimised them. The Government also have important commitments in relation to the criminal justice system as a whole, including the objectives of dealing with cases with appropriate speed; meeting the needs of victims and witnesses; and promoting confidence in the criminal justice system. For this reason a number of safeguards have been built into the Bill to protect the proper investigation and prosecution of cases.
The Government place weight on avoiding unnecessary delay to the criminal process where there are parallel criminal and civil proceedings. So they are seeking to strike a balance between ensuring that proper civil remedies are available and ensuring that those responsible for crimes are properly and effectively prosecuted without delay or prejudice to the prosecution case.
Victims and witnesses are central to the effectiveness of the criminal process. They must have confidence in the criminal justice system and its ability to deliver its stated aims. The system must also be sensitive to their needs. So a balance needs to be struck between the interests of the individual in pursuing a legitimate claim under the Race Relations Act and the interests of justice, including the public interest and the proper interests of victims and witnesses.
Striking the right balance also means that civil proceedings may have to wait until the criminal proceedings have been finalised. Stays to civil proceedings will defer but not prevent the resolution of a claim for discrimination, and the court will consider what effect the civil proceedings are likely to have on the criminal proceedings, the decision to commence those proceedings, or an investigation into criminal 133 offences. The courts will play an important role in maintaining that balance and ensuring that competing interests are taken properly into account.
A further consequential measure is at Clause 5 of the Bill. This provides that claims of unlawful race discrimination from individuals who are subject to immigration control, which relate specifically to a decision in an individual immigration or asylum case concerned with their entitlement to enter or remain in the United Kingdom, will be heard by the independent appellate authority as part of the one-stop procedure on appeals. This is consistent with the Government's policy that in immigration and asylum appeals all outstanding matters should be considered by the appellate authority at one time in the interests of producing a system that is fair, fast and firm.
This will in no way deny individuals the right to a fair hearing. It will allow claims of unlawful race discrimination to be considered alongside human rights issues which themselves may concern issues of discrimination, and other matters relating to the fairness of the decision. A claimant who substantiates his or her claim of discrimination will then be able to apply to a county court or a sheriff court for damages.
Those claimants not subject to immigration control or who allege direct discrimination in other respects and who therefore have no appeal under the immigration Acts—such as British citizens—will be able to take their case direct to the county or sheriff court.
§ Lord Avebury
My Lords, what happens if the litigant is successful in getting his or her claim against an immigration officer for discrimination upheld, but his or her substantive case for remaining in or entering the United Kingdom is turned down? How can he or she then seek damages in the county court if he or she is back in Lusaka or Hyderabad?
§ Lord Bassam of Brighton
My Lords, we will see what kind of accommodation we can make on that. I shall happily pick up on that point later in the debate.
The second main purpose of the Bill is to increase the accountability of chief officers of police in race discrimination cases by making them vicariously liable for the racially discriminatory acts of individual police officers. This is covered by Clause 3 of the Bill.
In the Act as it stands, employers are held vicariously liable for the discriminatory actions of their employees. That means that where an employee racially discriminates against an individual, the individual can bring proceedings against both the discriminator and against the discriminator's employer. The employer has a defence if he took reasonably practicable steps to prevent employees from doing the act or acts of that description.
Police officers are office holders, not employees. Under the Act as it stands, special provision is made to enable them to be regarded as employees in respect of their own treatment, but no provision is made in respect of the exercise of their police functions. Although Section 88 of the Police Act 1996 and 134 Section 39 of the Police (Scotland) Act 1967 make general provision for the vicarious liability of a chief officer of police, the construction of the Race Relations Act means that this does not apply to acts that are unlawful under the Race Relations Act.
So there is a clear anomaly here that needs to be addressed in order to bring the police in line with other organisations and with its own general practice. Both the Stephen Lawrence report and the Commission for Racial Equality have made recommendations to this effect. Clause 3 of the Bill, therefore, provides for chief officers of police to be made vicariously liable for acts of discrimination carried out by officers under their control.
Finally, I should like to say a few words about the third main purpose of the Bill, which remedies certain national security provisions in the Act. These are covered by Clauses 6 and 7.
The Race Relations Act provides that an act of racial discrimination is not unlawful if done for the purposes of safeguarding national security, and that a ministerial certificate is conclusive evidence that an act was done for precisely that purpose. As far as we are aware, the power has been used only once in almost 25 years.
The power to issue such conclusive certificates has been found by the European Court of Human Rights—in relation to equivalent provisions in a different piece of legislation—to be incompatible with Article 6(1) of the ECHR. The Bill removes the power in the Race Relations Act and amends the national security defence so that it will no longer be a complete defence to show that an act was done for the purposes of national security. It will also now need to be shown that the act was justified for that purpose.
The Bill also provides for courts to adopt certain special procedures when dealing with cases under the Act that raise national security issues. These provisions are based on similar provisions for tribunal rules made in Schedule 8 to the Employment Relations Act 1999.
I am sure that your Lordships' House will agree that it is absolutely essential that we get race relations issues right. I know that this will be reflected in the comments of noble Lords during the debate today. I very much look forward to listening—and responding constructively—to the points which will be raised. In particular, I look forward to the maiden speech of the noble Baroness, Lady Howells of St Davids.
I hope that we shall be able to maintain a constructive approach throughout the passage of the Bill. If any points which would benefit from further consideration arise during the debate, I am happy to invite your Lordships to enter into correspondence with me or with my officials. I am also happy to invite noble Lords to attend meetings and to have further discussions on points of particular difficulty.
It has been a rare privilege for me, as Minister, to lead off the debate. It is not often that new Ministers have the opportunity that I have had today of playing a fundamental part in leading off legislation to which they feel so committed. I know that many of your 135 Lordships are very experienced in this field. I look forward to listening to the fruits and benefits of that experience. I trust that we shall make progress with a piece of legislation which satisfies our commitment—particularly in the wake of the Lawrence inquiry—to improving at all times the quality of race relations in our country. I commend the Bill to the House.
§ Moved, That the Bill be now read a second time.—(Lord Bassam of Brighton.)
§ 3.27 p.m.
§ Lord Cope of Berkeley
My Lords, I am grateful to the Minister for introducing the Bill in such detail. I look forward to further debates. In particular I look forward today to the maiden speech of the noble Baroness, Lady Howells of St Davids. I am sure that her specialist knowledge and experience will inform our debates a great deal, not only today but in the future.
I have read the Bill carefully and studied quite a lot of what has been said and written about it. My view at the moment is that it is a sham. The Bill achieves a little, but it does not achieve what Ministers said they intended to achieve. It does not respond in full, as they said, to the Lawrence case, and it does not fulfil the expectations of the Commission for Racial Equality, even in the limited areas that it covers.
If the Minister had said that the Government had decided that it was unwise for the law to be extended very much, we could have respected that view and discussed it. But this Bill pretends to do things that it does not achieve. We are not going to oppose it today because we remain resolutely opposed to racial discrimination wherever it occurs. It is wrong in principle and appalling in practice. I am sure that everyone agrees with that.
The law has an important part to play in combating racial discrimination. It sets the climate and provides remedies for proven cases. It also gives power and authority to the Commission for Racial Equality so that problems can be identified and appropriate action taken, whether that is court action, education or persuasion. So the Bill should have a Second Reading, but it will also receive a thorough Committee stage to see exactly what it achieves, and how and why. We shall also need to look at what the Bill does not achieve, and why not.
I shall start with policing. The Minister's speech made it clear that this part does not by any means comprise the whole of the Bill, but it is an important element. Furthermore, as has already been said, it forms an important part of the origins of the Bill, flowing from the shocking Lawrence report. Of course, I recognise at once the dilemma of the right honourable gentleman the Home Secretary. Like us, he is thoroughly against racial discrimination. However, he also needs to recognise that, as Home Secretary, he has a duty to support the forces of law and order which are in themselves essential to a fair society. In particular, like us, no doubt he attaches great importance to the operational independence of 136 chief constables. In this country we pride ourselves on the insulation of our police forces and the criminal justice system in general from political interference.
However, so far as the Bill is concerned, the issue is how to make these different propositions compatible with one another. Should we subject the police, during their everyday work of enforcing the law, to scrutiny of their actions from the point of view of race and ethnic origin? It is not that the police are insulated from outside examination. On the contrary, they are some of the most elaborately supervised and scrutinised people in the whole of our public service. Each force is subject to its police authority, comprising councillors, magistrates and so forth. Forces are regularly inspected by Her Majesty's Inspectors of Constabulary. The police receive Home Office instructions and guidance on all kinds of detail in their work. The Audit Commission does not only study and report on the accuracy and probity of the finances of the police, as would the auditors for a company, but it also scrutinises the effectiveness of their general operations. The independent Police Complaints Authority takes up individual complaints over and above the internal disciplinary code. Above all, the police are subject to the law itself, and the most obvious and essential part of their work concerns presenting the results of their efforts to the Crown Prosecution Service and to the courts to try to bring offenders to justice. Furthermore, their day-to-day work is also subject to detailed particular laws directed at them, such as the Police and Criminal Evidence Act.
On top of all that, their efforts are also the subject of constant scrutiny and interest from Members of both Houses of Parliament, from councillors, the press and numerous voluntary bodies, and of course television portrays policemen, both real and fictional, more than any other profession in our society. When I thought of making that point I took the trouble of looking through the television listings to see whether they stood up to my perception. Doctors run the police fairly close, but nevertheless, in my judgment, the police win. God and His priests come quite high up on the list in one way or another, and that group has some reserve slots. However, even then, the police are some way ahead. Politicians fill a good deal of the news and current affairs programmes, and occasionally are to be seen on the fictional side as well. But once again, it is clear that policemen, both real and fictional, are the subjects of more television coverage than any other group.
Given all this statutory and non-statutory interest and supervision of the work of the police, Parliament should be cautious about adding to their overhead burdens in responding to scrutiny. Perhaps that is partly what held back the right honourable gentleman the Home Secretary. We do not want our police to get into the habit of deciding their actions in a defensive manner. We do not want them unnecessarily restricted by a wish to avoid even more time and energy-consuming explanations of their detailed actions to outside bodies.
137 That is not to say that the police should not be examined. However, it is the pattern that matters most. The most damaging charge made in the Macpherson report was that of institutional racism, however defined. Of course, investigation into the pattern of policing decisions cannot be done without considering individual decisions—second-guessing with hindsight the minutiae of daily operating decisions. However, the pattern that emerges is what matters most.
Such decisions are to be examined from only one primary aspect; namely, that of racial discrimination. At the time decisions are taken, they involve all kinds of other considerations, including the priorities of different events taking place at the same time, different investigations that are continuing, the resources available and the legal complexities of bringing cases to court. A policeman of almost any rank starting his shift of duty has less idea of what he will have to do before his shift ends that day than almost any other person I can think of. The police have to react to events as they occur, as anyone who has spent time with the police knows very well.
The right honourable gentleman the Home Secretary could have said that, given all these considerations, we should not subject the police to further oversight of their actions; or, as does the Bill, we should at least very much limit that oversight. Conversely, others can—indeed they do—ask how it was that, given all this scrutiny, such a tragedy as reported by the Macpherson inquiry into the Lawrence case could still happen. If the Home Secretary had said that, given the circumstances, he would propose only a partial extension of the Race Relations Act, we could have considered that proposition with sympathy for the dilemma. However, the Government pretend that the Bill will apply the law so as to make unlawful the discrimination pointed out by the Macpherson report. I believe that to be a pretence.
Criticism of the way the Bill is framed has been forthright and very widespread, and we shall want to explore that criticism in Committee. It is a Bill of considerable complex detail, as was made clear by the speech of the Minister when he introduced it. Nevertheless, I shall today outline some of the areas that we shall want to explore.
The first, and much the most significant, is the limitation of a large part of the Bill to direct discrimination and victimisation; in other words, the omission of indirect discrimination. The Macpherson report indicated that what went wrong was primarily connected to indirect discrimination rather than direct discrimination and victimisation. However, it is also arguable how far what went wrong was due to sheer incompetence. In any case, as a supposed reaction to the report, it seems to me that the Bill fails, or certainly it falls short.
In practice, these days, most racial discrimination is indirect. Employers do not say, "I am not employing you because you are black". They know better than that. It is all much more subtle and indirect. Similarly, 138 no constable is going to say, "I'm stopping and searching you because you are black". It is the overall pattern of stop and search which matters in this respect. That is what we need to look at.
Clearly, the pattern of stopping and searching should mirror the likelihood of offences and the chances of success in preventing them or of bringing offenders to justice. It is those considerations which should make a policeman stop and search a particular suspect, not a fear of later arguments based on other factors.
The Home Office very helpfully published last week some statistics on race and the criminal justice system, including the use of stop and search powers. The statistics covered up to the year 1998–99. Among other things the statistics allow us to see the effect in terms of arrests of the stopping and searching of white people by comparison with black people or those of Asian or other ethnic minority groups. That is not the whole picture, but the statistics help us to understand the reality. There is considerable variation across the country between the different forces, but in England and Wales as a whole, there were just over 1 million stops in 1998–99. Of those, roughly 865,000 were white people. Of those whites, 11 per cent were arrested and followed up. Of the 95,000 black people who were stopped, 13 per cent were arrested. Of the 51,000 Asians who were stopped, 12 per cent were arrested. Of the 10,000 other ethnic minority groups, 14 per cent were arrested. In the Metropolitan Police the number of arrests of white and black people who were stopped was the same for both categories, at 13 per cent. In the West Midlands a slightly higher percentage of whites who were stopped were arrested—13 per cent, compared with 12 per cent for black people.
I find those figures, as far as they go, somewhat reassuring by comparison with some of the points that are made on this subject. But my point today is that I cannot see the Bill improving the situation, or the appreciation of the situation by the people involved.
The next point that we shall wish to probe is the definition of "public authorities". It is clearly, and quite rightly, much wider than the police. They should not be singled out. But the definition in the Bill is differently worded from the definition in the Human Rights Act. I am not clear why that is. We shall also wish to probe the effect of the difference in the definitions.
I am interested to know why private prisons are left out of the Bill. The Explanatory Notes tell us that it is the Minister's intention to extend the provisions to private prisons, among other institutions, in a similar position. So why not put them in the Bill straightaway, instead of leaving it to yet more secondary legislation? I am among those who think that the Government's obsession with ministerial orders and regulations is not a desirable way to legislate if it can be avoided, although it is necessary sometimes. It is much better to put provisions before Parliament in Bills. In this case that could evidently be done.
139 National Health Service trusts seem to have been left out in England and Wales but included in Scotland. Perhaps there is some deeper devolutionary reason for that. Certainly it looks odd on the face of it, if I have read the Bill correctly.
In the part of the Bill dealing with immigration, which is to be Section 19C of the principal Act, it is proposed to be lawful to discriminate by reference to someone's ethnic origin as well as their nationality and national origin. It is suggested that this will increase lawful discrimination in this particular. That requires an explanation.
Under what will be Section 19D, acts leading to a decision not to prosecute are to be exempt. That means that a failure properly to investigate some available information, which failure led to a decision that no prosecution could succeed, would be exempt. That, too, sits oddly alongside the Macpherson report and what happened in the Lawrence case, and requires further explanation.
Another puzzling subsection is the proposed new subsection (4A) to Section 57 of the 1976 Act. The idea seems to be that an award of damages during a criminal investigation could not prejudice later criminal proceedings, but another remedy, such as, presumably, an injunction, might prejudice proceedings. That seems to me to be a very odd contrast. We shall certainly need to find out what is the reasoning behind that.
As some of your Lordships may know, I pay particular attention on these occasions to what is said about the anticipated costs of the proposed legislation. That is probably because of my background as an accountant. But the expected costs of legislation are a guide to the Government's view of just how effective it is likely to be. In this case, the extension of the Race Relations Act is said to be likely—not certain—to lead to increased costs. Changed procedures, we are told, "may" give rise to costs: in other words, they may not. There may be no change in procedures as a result of the Bill which costs anything at all. In any case, all the costs, whatever they are, will be contained within existing expenditure limits. If I may put it this way, they will not register on the Treasury's scale of values as additional expenditure. Similarly, there are to be no significant effects on public sector manpower. All this gives me the impression that the Government expect that the Bill will have little, if any, effect on public authorities and the way in which they behave.
No doubt it will have an effect on the courts. Additional court and legal aid costs are expected, but again comparatively small ones. A peak of £600,000 for legal aid costs in five years' time does not sound likely to buy much legal advice when spread over all the cases involved. The Macpherson inquiry into a single case—it was admittedly a complicated and detailed inquiry—cost more than £3 million, which is nearly four times the anticipated expenditure in a whole year for all the cases under this Bill in five years' time when it is fully in operation.
140 All in all, this is an unsatisfactory Bill. It does not satisfy those who want to see a remedy for the tragic events of the Lawrence case, and it does not satisfy the aims of the Bill as originally indicated by the right honourable gentleman the Home Secretary. We, on these Benches, want to play our part in practical, effective measures to combat racial discrimination wherever it occurs, but so far this Bill does not seem to achieve that. It is a sham.
§ 3.49 p.m.
§ Lord Lester of Herne Hill
My Lords, I am grateful to the Minister for his generous remarks about my role 25 years ago when I was at the Home Office serving a Labour Government with the noble Lord, Lord Jenkins of Hillhead, as Home Secretary. Like other Members of the House, I much look forward to the maiden speech of the noble Baroness, Lady Howells of St Davids.
We on these Benches welcome the Government's decision to introduce this Bill to extend the Race Relations Act 1976 to all listed public authorities, and to make chief officers of police liable for racially discriminatory conduct by police officers. We also welcome the decision to forbid direct and indirect racial discrimination in making recommendations and giving approval for appointments to public office or posts outside the employment field. That presumably includes appointments as Queen's Counsel and judicial appointments. I ask the Minister to confirm that that is so.
Like the Commission for Racial Equality, the Society of Black Lawyers and representatives of other ethnic minority organisations, and like the Conservative Front Bench, we are dismayed that the Bill is marred by serious flaws. We hope that the Government will agree to remove those defects. We hope that the Government will also give urgent attention—I emphasise "urgent"—to the much needed wider reforms of the hotchpotch of anti-discrimination legislation to produce a comprehensive, coherent, user friendly equality law, with more efficient equality compliance and enforcement machinery.
I shall explain some of the main defects in the Bill from the perspective of an architect of the Race Relations Act 1976 with long practical experience as a discrimination lawyer. In winding up, my noble friend Lord Dholakia will view the Bill from the perspective of potential victims of racial discrimination and will deal with the Bill's provisions relating to policing, prosecutions and criminal investigations.
The Stephen Lawrence inquiry recommended that the full force of the race relations legislation should apply to all police officers. In his action plan, the Home Secretary stated that the Government had accepted that recommendation, and went further, saying:All public services are to be brought within the scope of race discrimination legislation".What Mr Straw did not say was that public services were to be brought within the scope of only half of the concept of unlawful racial discrimination: only direct, and not indirect discrimination.
141 By creating an exception for indirect racial discrimination by public authorities, including the police service, the Bill discriminates between the public sector and the private sector. Indirect racial discrimination is, as the Minister has explained, unfair treatment resulting from a rule or practice applied equally to everyone, in a formal sense, but which has a disproportionate and unjustified adverse impact upon a particular racial group. Instead of having a greater responsibility because of the public nature of its vital functions, under the Bill much of the public service is to be less legally responsible. It is to he immunised from the statutory duty to justify indirectly discriminatory practices to individuals affected, the cowls and the CRE. A building society, a bank, a professional organisation, a security firm, a local authority or, in some circumstances, a government agency has, under Section 20, read with Section (1)(1)(b) of the 1976 Act, to justify indirectly discriminatory practices where they are concerned with providing services or facilities to the public or a section of the public.
But under the Bill it will not be unlawful for Ministers, their officials, the police and immigration services, Her Majesty's Customs and Excise, the Inland Revenue, the Benefits Agency and other public authorities to operate practices and procedures which have a disproportionate adverse impact on ethnic minorities and which cannot be justified.
The victims of indirect discrimination by the public sector will remain unprotected. For example, British Muslims, who cannot obtain a remedy for religious discrimination, will not be protected against indirect racial discrimination by public authorities in providing services stemming from hostility to Islam.
The CRE will be unable to use its strategic law enforcement powers to tackle indirectly discriminatory practices and procedures in key public sector functions, because, unless such discrimination is direct, it will be outside the scope of the Bill. That is a particularly serious defect. The CRE has conducted several important formal investigations into unlawful indirect discrimination covered by the 1976 Act. Its practical experience demonstrates the value of the CRE's power to issue non-discrimination notices; for example, in the allocation of local authority housing in Tower Hamlets and in my own borough of Southwark, or in threatening to issue a non-discrimination notice unless an unlawful discriminatory practice is eliminated. The CRE has no such power unless a practice is unlawful. Under the Bill, indirect discriminatory practices by public authorities are not made unlawful, so the CRE will continue to lack a crucial investigative power in that area.
Because of the immunity to be given to indirect discrimination by public authorities, there will also be much legal uncertainty and unnecessary litigation about opaque distinctions between what is direct and what is indirect discrimination by public authorities, about what discrimination (direct or indirect) by public authorities is already forbidden by Section 20 of the 1976 Act; and about the effects of the Bill on the 142 recently recognised common law principle that public authorities must provide equal treatment to the public without discrimination (Matadeen v Pointu  3 WLR 18 (PC)).
Both the Race Relations Act and the Sex Discrimination Act already apply the concept of indirect as well as direct discrimination, not only to the employment field but also to public authorities and private bodies, in education and housing, and in the provision of goods, facilities and services to the public or a section of the public. We are not aware of any complaint that has ever been made that the operation of the concept of indirect discrimination in any of these areas is unworkable or unfair. I should be grateful if the Minister would tell the House whether he and his department have any evidence that it has operated in a harmful way.
Section 20 outlaws direct or indirect discrimination in the provision of certain services by public authorities. If a service falls within Section 20, it must be provided without direct or indirect discrimination. If it falls outside Section 20 but within the proposed new Section 19B, it must be provided without direct discrimination but it will not be unlawful if it is indirectly and unfairly discriminatory in its impact on ethnic minorities.
Unless the Bill is amended, much needless confusion and costly uncertainty will arise, both because of the inevitable overlap in many cases between direct and indirect discrimination and because, by not applying the law to indirect discrimination by public authorities, it will remain necessary to revisit complex case law based on obscure and elusive distinctions as to whether a public authority is or is not providing services to the public within the meaning of Section 20 of the 1976 Act.
Perhaps I may give some examples. In the case of Savjani [1981 QB 458], the Court of Appeal ruled that the Inland Revenue was providing services within the scope of Section 20 when deciding whether to enable taxpayers to obtain tax relief. It is unclear what other revenue functions fall within Section 20.
In Re Amin [1983 2 AC 818], the Law Lords decided by a 3:2 majority that the goods, facilities and services provisions of the anti-discrimination legislation apply only to acts done by the Crown if they are of a kind similar to acts that might be done by a private person, and did not apply to the Immigration Service. I respectfully disagree with the majority and agree with the dissenting judgment of the noble and learned Lords, Lord Scarman, and Lord Brandon. I believe that if Re Amin were reconsidered today by the Law Lords, it would be overruled. It is a precedent of doubtful authority, especially since the Law Lords were not referred to the relevant body of international human rights law.
143 In Alexander v Home Office [1988 1 WLR 968], it was accepted by the Home Office that the allocation of work to prisoners is within the scope of Section 20. But prison disciplinary practices and procedures probably fall outside.
In Farah [1997 2 WLR 824], the Court of Appeal decided that Section 20 applies to the police in giving assistance to the public and protecting the public, as distinct from pursuing and arresting or charging alleged criminals. The borderline is vague and uncertain.
It is entirely fortuitous whether a function of a public body falls within or outside Section 20. It is quite ridiculous—I understate my indignation—for the concept of unlawful discrimination to depend upon making such an artificial distinction based upon an uncertain legal test in circumstances where the factual issues about purpose and effect will often be tangled together.
It is difficult to imagine how vulnerable people—the alleged victims of institutional racism by the police, prison, immigration or social services—could reasonably be expected to untangle the legal and factual knots. Disentangling those knots will simply add to the legal costs of employing counsel like myself.
By clothing themselves and their departments with the immunity from liability for indirect racial discrimination, Ministers are judges in their own cause. They seek to be immune, not for reasons of principle but for administrative convenience. The problems suggested by the Minister about policy-making are, with respect, fanciful and unreal. There is no reason whatever why regional policies and policies related to a person's age cannot be objectively justified. If, under the Bill, decisions about national security need to be justified, why on earth should other less serious policy decisions not also need to be justified?
I submit that the police service, the Government and other public authorities should be brought fully under the Race Relations Act, as the Macpherson inquiry envisaged.
As the CRE points out, another serious defect in the Bill is the absence of a clear and legally enforceable positive duty upon public authorities to secure that their functions are carried out without racial discrimination. In his press statement on 3rd December, the Home Secretary,promised to place a statutory duty on public authorities to promote equality. This will be taken forward as soon as legislative time permits".There is no good reason why there should be further delay. A new clause should be added to the Bill containing a clear and enforceable positive duty. There is parliamentary time now and the time will come in Committee.
I turn to Section 19C, which creates a blanket exemption for any directly discriminatory act, in relation to any of the wide range of immigration or nationality functions, done against another person on grounds of nationality or ethnic or national origins by 144 a Minister or by officials acting in accordance with a relevant authorisation. That section empowers Ministers to authorise officials to act because, in the words of the Explanatory Notes,the way officials actually carry out their duties is necessarily detailed in operational staff instructions approved by Ministers. It would be impracticable to set out in statutory or subordinate legislation every set of circumstances where discrimination would be required".In other words, again for reasons of administrative convenience, the Government seek to bypass the need for parliamentary approval of racially discriminatory practices and procedures operated by their officials. I have expressed my concern about this and other provisions to the Delegated Powers Scrutiny Committee, whose report will inform subsequent discussion of the Bill.
If an exemption is needed for discriminatory treatment based on nationality or residence, a wide exemption is already provided in Section 41(2) of the Race Relations Act 1976 to cover such treatment. No further provision is needed for this. What is novel and objectionable is the blanket exemption for discrimination on grounds of ethnic or national origins.
Unlike discrimination on grounds of nationality or place of residence, discrimination based on ethnic or national origins is as much racial discrimination as is discrimination based on colour or race, as the definition of racial discrimination in Article 1 of the United Nations Convention on the Elimination of All Forms of Discrimination 1966 makes crystal clear. Such discrimination involves treating one individual less favourably than another for what is not chosen by them but for what is innate in them at birth—their genetic inheritance—whether as ethnic Jews, Roma gypsies or Hong Kong Indians. It is as invidious and unfair as is discrimination based on the colour of a person's skin. That is why the Race Relations Act 1976 forbids direct discrimination on any of those racial grounds, apart from a range of clearly defined exceptions.
The sweepingly broad exception in Section 19C is incompatible with the very principle of non-discrimination which the legislation is intended to secure. If the Home Office wishes to make special arrangements aimed at providing protection to particular groups seeking shelter in the United Kingdom, such as the Bosnians and Kosovars who were granted exceptional leave to remain during the recent crisis in the Balkans, it is difficult to understand how that would require an exception. The reason for affording favourable treatment to some of those groups is surely not their ethnic or national origins but their well-founded fear of persecution, the urgency of their humanitarian needs and the need to comply with the UK's obligations under the refugee convention. The policy is not based upon or caused by their ethnicity. It does not involve discriminating against anyone on the grounds of their ethnic or national origins.
145 As the Government have correctly stated in the UK report to the CERD Committee, which is the UN committee (CER D/C/299/Add.9, 2nd December 1966, paragraph 58),There is nothing racist about designating countries which produce large numbers of unfounded asylum applications".The same is true of refugee situations, if humanitarian provision is made, not on the basis of nationality or ethnic or national origin, but on the basis of an objective assessment of the conditions in the country concerned. The Section 19C exception is therefore not only unsightly, but unnecessary.
I go further. Even if it were appropriate, for the avoidance of doubt, to include an exception to cover situations of that kind, the exception to the fundamental right to equal treatment without discrimination would need to be prescribed in legislation in a way carefully tailored to what is necessary to give effect to the Government's legitimate aims, with adequate judicial safeguards against the abuse of this extraordinary power, to ensure that the doing of a discriminatory act is justified by its purpose, as with national security.
The functions covered by Section 19C include decisions to deport, exclusion directions, leave to enter or remain, the grant of asylum, exceptional leave to remain, and even naturalisation as a British citizen. Section 44 of the British Nationality Act 1981 provides that any discretion vested by that Act in the Secretary of State, a governor or lieutenant governor, must be exercised,without regard to the race, colour or religion of any person who may be affected by its exercise".Yet Section 19C would allow the discretion to be exercised on the basis of ethnic or national origins which are part of the international legal definition of what constitutes "racial discrimination".
As it stands, Section 19C authorises breaches by a future populist illiberal Home Secretary, or by a prejudiced administration, of the various international human rights conventions by which the UK is bound: notably, Articles 2, 5 and 6 of the Convention on the Elimination of Racial Discrimination and Articles 2 and 26 of the International Covenant on Civil and Political Rights.
Article 3 of the Convention Relating to the Status of Refugees 1951 obliges contracting states to apply the convention's provisions to refugees,without discrimination as to race, religion or country of origin".That covers discrimination on grounds of a refugee's ethnic or national origins. The UNHCR executive committee, of which the UK is an original member, has emphasised that decisions on asylum must be made without discrimination as to race, religion, political opinion. nationality or country of origin (Executive Committee Conclusion No. 15(XXX) 1979; also Conclusion No. 22 (XXXII) 1981). Section 19C authorises practices and procedures in relation to immigration and nationality which would be incompatible with the refugee convention too.
146 We hope that the Government will agree to remove or to narrow Section 19C by limiting the exception, if they must, to special treatment on humanitarian grounds.
In 1975 the previous Labour government's White Paper, Racial Discrimination, observed that legislation was the essential pre-condition for an effective policy to combat discrimination and promote equality of opportunity and treatment. I quote that White Paper:Where unfair discrimination is involved, the necessity of a legal remedy is universally accepted. To fail to provide a remedy against an injustice strikes at the rule of law. To abandon a whole group of people in society without legal redress against unfair discrimination is to leave them with no option but to find their own redress. It is no longer necessary to recite the immense damage, material as well as moral, which ensues when a minority loses faith in the capacity of social institutions to be impartial and fair".Those words are as relevant today as they were a quarter of a century ago. We support the Bill even though it is an inadequate half-measure. We hope that the Home Secretary and his colleagues will act constructively, as we have been promised, to amend the Bill on the basis of coherent principles as a modest first step towards the comprehensive overhaul of anti-discrimination legislation. Labour's election manifesto promised that,We will seek to end unjustifiable discrimination wherever it exists".We shall hold the Government to that promise, and await a reforming equal opportunities Bill before the next general election.
§ 4.1 p.m.
§ Lord Patel
My Lords, I shall be brief for I, too, look forward with great anticipation to hearing the next speaker, the noble Baroness, Lady Howells of St Davids.
I speak to two issues that apply to the NHS. I seek the Minister's assurance that the Race Relations (Amendment) Bill will be used to remedy the discrepancy in the treatment of small partnerships under the Race Relations Act 1976 and the sex discrimination legislation. The Sex Discrimination Act 1986 amended the 1975 Act to remove the previous exception which allowed discrimination in partnership arrangements where there were fewer than six partners (Section 11 of the 1975 Act, as amended). However, the Race Relations Act continues to make discrimination in partnership arrangements unlawful only in respect of firms consisting of six or more partners (Section 10 of the 1976 Act).
Representation was made by the British Medical Association, which has briefed me, to the Home Office to change that. The association is committed to giving high priority to combating racism in the NHS and to bringing about the necessary changes. At a conference in February 1997 attended by representatives of all the major health organisations in the country, a number of themes emerged on which action should be focused. They included: monitoring data; ensuring compliance with racial equality policies; and amendment of the 147 Race Relations Act 1976, especially the removal of the exceptions which allow discrimination in partnership arrangements as they apply to general practice.
There are still some practices in the selection of medical staff which do not promote equal opportunities. Trusts, health authorities, health boards and general practices need to improve recruitment and selection practices. Thousands of citizens from ethnic minorities work in the NHS. The NHS would collapse without them. The biggest numbers are in nursing and medicine; for example, in medicine 24 per cent of the workforce—nearly 27,000 doctors—come from non-EU countries. Often they feel that they are discriminated against because they get mostly junior posts; promotion is difficult; recognition of their work is low and the vast majority work as locum doctors in many specialties where there are vacancies in permanent posts.
This discrimination, including that relating to admission to medical schools of even second-generation young student doctors, is not direct discrimination. The discrimination lies in their inability to get on to short lists for appointments. They are appointed to junior posts below their ability and are rarely given senior positions. They gain less recognition, for example in merit awards. This results from indirect discrimination—hence my concern about the omission of this form of discrimination from the Bill.
Policies of employment and promotion operate within the NHS which cannot be justified on non-racial grounds. The omission of provisions to deal with indirect racism seriously inhibits the ability to challenge institutional racism. What I have described is a daily occurrence for many individuals. I hope that the Minister will consider a plea to include indirect racism in the Bill. I have heard about the problems that this may create in the legislation, but indirect racism, including institutional racism, exists and good words may not get rid of it.
§ 4.16 p.m.
§ Baroness Howells of St Davids
My Lords, it is a great honour to be a Member of the House and to address your Lordships in this my maiden speech. I express my sincere thanks to the many friends and Members on both sides of the House for their support, encouragement and kindness during my first few months. I pay a special tribute to the staff. This House is very fortunate to have very many hard-working and helpful staff. They have provided me with the right information at the right time and have pointed me in the right direction. They have led me out of cupboards posing as rooms, ejected me from the Benches opposite and spared my blushes. I thank them for their generosity and courtesy.
Today we debate a Bill that tackles prejudices. I admit to your Lordships that before I came here I too held prejudices about this House and some of its Members. However, like all prejudices these were proved wrong following first-hand experience of the individuals concerned.
148 I hope that noble Lords will forgive me if I share with them some of the prejudices that I held about this House. I felt that it was out of touch and out of date. I also feared that I would feel a little out of place. After only two months I can say that your Lordships' House is not as out of touch as I had once thought. I have been very impressed by the many conscientious Members who work tirelessly on behalf of numerous causes and use this House to speak up for people who cannot speak for themselves. I am pleased that this House is beginning to become more reflective of the people of this country whose interests, I trust, we come to this House to serve.
Nor do I believe that this House is as out of date as I once thought. Obviously, your Lordships' ancient ceremonies take some time for a newcomer to understand. I enjoy learning the traditions and procedures of this place. But I have to admit to times when I have been unsure about what is or is not the procedure of this House. For example, on my very first day in the Chamber, I saw a person jumping up and down on the Woolsack waving and shouting loudly. He was then escorted away by men in buckles and braces. I hope that your Lordships will sympathise with me for mistaking that as just another part of your Lordships' most ancient of proceedings.
I am pleased that this House is evolving, albeit slowly, to get in touch with the concerns and hopes of all the people of Britain. I am also pleased that it is showing signs of becoming more representative of our multicultural and multiracial society.
I am honoured to take my place among your Lordships on the journey towards a society, reflected in this House, which truly values diversity and promotes equality. As I speak, the new millennium is only 17 days away. I should like to pause for a moment to reflect on the millennium that is about to pass. During those 1,000 years there have been many achievements of which the human race can be proud. There are also many things of which the human race should be ashamed but from which we must learn if we are not to repeat the mistakes of the past.
The history of racism is something of which we should be ashamed but from which we must learn. I distinguish racism from prejudice. I have always maintained that prejudice in an individual can be dealt with fairly easily, either through experience or education; or it can be ignored. But prejudice in an institution cannot be ignored. Racism in an institution is more pernicious than mere prejudice. Racism is the application of prejudice with power. Prejudice plus power is a dangerous combination. It was that combination of prejudice plus power that helped to capture, transport and sell my African ancestors into slavery in the new world.
Last week, the noble Baroness, Lady Prashar, made her maiden speech during the universities debate. She remarked that she had never expected to become a Member of this House and wondered what her parents would have made of their daughter being in the Chamber. I am the descendant of a slave. I also wonder 149 what my slave ancestors would have made of one of their women descendants being a Member of this Chamber 300 or so years after the abolition of slavery.
Some former Members of this House, like Lord Wilberforce, were instrumental in ridding this country and its empire of the trade in human beings. Slavery became an integral part of the economy of the British empire. The slaw, trade was institutionalised. We may have abolished slavery but we are still affected by the structures within our institutions which allowed such an abhorrence to flourish for so long.
I have said or other occasions that I am not sure why I have had the privilege of joining this House. It may be because of many years' experience of working with members of the different communities of south-east London and. in particular my time at Greenwich Council for Racial Equality. It was in that capacity that I first met Neville and Doreen Lawrence. The murder of their son, Stephen, the failure of the police and the CPS to bring the perpetrators to justice and their long campaign for redress shook the foundations of this country. Things can never be the same again.
That is why the black community rank Neville and Doreen Lawrence with the likes of Mahatma Gandhi and Nelson Mandela. They all share the ability to communicate their suffering to the world. Every mother and father, every brother and sister, black or white, all felt their pain and their anger. I would say that the murder of their son may become as significant historically as the murder of Martin Luther King.
The inquiry into Stephen's murder introduced institutional racism into the wider domain. The media have brought it to our attention. Some have argued that the concept of institutional racism was plucked out of the air by Sir William Macpherson earlier this year. But the concept of institutional racism is nothing new. As the Lawrence inquiry report pointed out, the noble and learned Lord, Lord Scarman, in his presentation to Parliament of his report into the Brixton disorders addressed that issue in 1981. In that important report, the noble and learned Lord responded to the suggestion that Britain is an institutionally racist society by saying:If by [institutionally racist] it is meant that [Britain] is a society which knowingly, as a matter of policy, discriminates against black people, I reject that allegation. If, however, the suggestion being made is that practices may be adopted by public bodies as well as private individuals which are unwittingly discriminatory against black people, then this is an allegation which deserves serious consideration, and where proved, swift remedy".The failure of the police and the CPS to assist the Lawrence family proved beyond all doubt that unwitting institutional racism has not been given serious consideration or swift remedy. Sadly, it has taken 18 years since the report of the noble and learned Lord, Lord Scarman, for this House to consider the issue seriously.
The Bill is the Government's promised legislative response to the report of the Stephen Lawrence inquiry. Much credit is due to the Government for setting up the inquiry in the first place and to the Home Secretary for putting a comprehensive action plan in place to take forward its recommendations. There has 150 been real progress in the 25 years since the Race Relations Act was passed, but the murder of Stephen Lawrence has given us the impetus to update the Act and give it more teeth. The Stephen Lawrence inquiry called for the,full force of race relations legislationto apply to all police officers. I am delighted that the Government have agreed to extend the Race Relations Act to all functions of all public bodies and I am very pleased that the Bill makes chief constables liable for discrimination by their officers.
However, many organisations working with and representing ethnic minorities have raised concern that the Bill falls short of the inquiry recommendation since, for activities brought within the Act for the first time, the Bill makes only direct discrimination unlawful and leaves out indirect discrimination. I know that other noble Lords have raised similar concerns.
The Commission for Racial Equality argues that by omitting indirect discrimination in critical functions of public authorities the Bill inhibits the ability to challenge institutional racism. Indeed, Dr Richard Stone, one of the three advisory members of the Macpherson inquiry, is concerned that the Bill fails to address the causes of the police failure properly to investigate the murder of Stephen Lawrence. He says that the inquiry found,no evidence of direct racism—what we did find was indirect racial discrimination".However, I am very pleased that the Government have indicated their willingness to consider ways of strengthening the Bill. The Government must and will do more. The Home Secretary is on record as saying:We have not yet found a workable solution, but that is not to say we have decided it is unworkable".The noble Lord, Lord Lester of Herne Hill, is a distinguished human rights lawyer who spent several years of his life drafting the original Race Relations Act. He has said that he may be suggesting amendments to the Bill. I was pleased to hear him do so today. I invite all noble Lords to support workable amendments which may strengthen the Bill so that this vital opportunity to put in place the legislative basis for tackling institutional racism is not lost.
We must tackle institutional racism in our public services. We still have far to go. This week, there may be a verdict in the case of the murder of the young musician, Michael Menson. Michael was found burning in north London. He had been set on fire and died of his injuries. The police took the view that Michael had committed suicide by dousing himself with lighter fuel. Michael was black. It took a sustained campaign by members of Michael's family to re-examine the circumstances of his death before the police made any arrests for his murder.
I have heard it said many times by many people in different parts of society that one cannot legislate against attitudes. That may or may not be so. If the perpetrators of prejudicial attitudes were to take the 151 life of my son, I would expect that there would be legislation in place to ensure that their attitudes and their actions would not go unchallenged.
Legislation provides the vital infrastructure for a society which is free from racism, which values diversity and which provides fairness and justice for all its citizens. That is the society I believe we all want for our children and grandchildren as we enter the next millennium.
§ 4.31 p.m.
§ The Lord Bishop of Oxford
My Lords, on behalf of the whole House, I congratulate the noble Baroness, Lady Howells of St Davids, on her distinctive and valued contribution to the debate. She is already known to some Members of your Lordships' House through her close friendship with the late Lord Pitt of Hampstead. She is widely respected as a community activist and campaigner and is held in great esteem and affection by the many volunteer organisations to which she has given long and dedicated service. As we might expect from her maiden speech, the noble Baroness is particularly respected for her commitment to social justice and equality.
More recently, as the noble Baroness mentioned, she has been supporting Doreen and Neville Lawrence in setting up the Stephen Lawrence Trust. I know that she has been an important role model for many young black people, including some Members of your Lordships' House. We greatly look forward to further contributions on a wide range of subjects with what clearly will be a distinguished combination of thoughtfulness, humour, strength and "winningness".
As the noble Baroness, Lady Howells, mentioned, the murder of Stephen Lawrence and what the Macpherson inquiry revealed about the failure to bring his killers to justice was a turning point—and will be seen as such by future historians—in the history of policing in this country. The Macpherson inquiry revealed something terribly wrong not just with the police but with society as a whole, including the Church.
The right reverend Prelate the Bishop of Birmingham, speaking in your Lordships' House on 15th April, said:It is about far more than the terrible death of Stephen Lawrence and all that ensued; about far more than the Metropolitan Police, or policing in general in this country. It is about an issue that affects all of us, because it affects the whole of British society: the cancer of racism. The basic moral question before us is this: are we ready to own up to that cancer, not as someone else's responsibility, but as ours?".—[Official Report, 15/4/99; col. 868.]He went on to say at col. 869:I do not exempt the Churches.".In the light of that inquiry, the Churches are being challenged and we are hoping to set our own house in order.
I believe that as a result of that inquiry, everyone of good will is resolved to rectify the situation. Therefore, it is good that the Government have responded with 152 this Bill, which contains many significant and valued features. Above all, of course, it makes the Race Relations Act 1976 applicable to public authorities. Bringing public authorities, including the Police and Immigration Services, within the scope of the Act is the crucial element and it is much to be welcomed. The Lawrence inquiry recommended that the "full force" of the race relations legislation should apply to all police officers. Particularly to be welcomed, therefore, is Clause 3 and the new Section 76A(3), which makes chief police officers vicariously liable for acts of racial discrimination committed by police officers. That brings the police into line with the position of other employers.
So the Bill will certainly go a long way to eliminating direct discrimination in the police and other public authorities. However, what the Macpherson inquiry was concerned with was institutional racism. The noble Lord, Lord Cope of Berkeley, referred to that phrase and qualified it with the words "however defined". The noble Baroness, Lady Howells of St Davids, rightly drew attention to the important quotation from the noble and learned Lord, Lord Scarman, in his 1981 report on the Brixton disorders. That definition was taken up by the Macpherson inquiry, which defined institutional racism in these terms:The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.".Institutional racism has been a controversial term. But the truth behind it is, I believe, inescapable. The truth is that the whole culture of an institution can, unconsciously—the word "unwitting" appeared in both the Scarman and Macpherson definitions—reflect racist assumptions; assumptions that reveal themselves in stereo-typical views of minority ethnic groups and patterns of behaviour that are asymmetrical in comparison to the majority population. The question is whether this Bill will help to eradicate institutional racism.
As many noble Lords have said, institutional racism reveals itself not so much in direct but in indirect discrimination. We heard the substantial contribution of the noble Lord, Lord Lester of Herne Hill. It arises when a particular condition or requirement is imposed—not necessarily formally adopted, but operating within an organisation—that is not in itself discriminatory but in its application operates to the disadvantage of particular racial groups where, for example, members of that group are proportionately less able to comply with the condition or requirement.
In the context of the police, for example, police stop and search operations in neighbourhoods where there is a disproportionately high black and Asian population could be indirectly discriminatory. If such targeting were in response to a recent major spate of thefts in that neighbourhood, it is likely that it could be justified on good policing grounds. On the other hand, if the practice were followed by police officers as 153 an unofficial operational rule based on shared attitudes and stereotypes, it is unlikely to be justifiable on non-racial grounds.
The Minister, in presenting the Bill, said that the Government had seriously considered the possibility of including indirect racism, but had decided not to do so because of the uncertain and far-reaching effect on government policy. He gave the example of age-related or regional policies which might advantage or disadvantage certain groups and, although not on racial grounds, might lend themselves open to challenge on such grounds. Is that really the case? As the example that I have just given from policing reveals, if it can be shown that policing in a particular area is necessary, then of course no challenge can be brought against that policy on the grounds that it is racially discriminatory. If it can he shown that a particular policy in relation to regions which contain a high proportion of a particular ethnic group or a particular age group is carried out for perfectly appropriate reasons then there can, of course, be no challenge on the grounds that it is racially discriminatory.
I do not believe that that is a good enough reason for not including such a provision in the Bill. The reason why the issue is SO crucial is that Richard Stone, who was a member of the Macpherson inquiry, said,We found no evidence of direct racism. What we did find was indirect racial discrimination".If that is so and the Bill does not include discrimination by public authorities within its scope, a serious question arises. Would the Bill, had it been enacted before the murder of Stephen Lawrence, have been able to bring to book those who were in fact responsible for the failure of the investigation of the murder of Stephen Lawrence?
The noble Lord, Lord Lester, referred to the fact that the 1976 Act introduced indirect discrimination into the law. As the 1975 White Paper stated at paragraph 35:It is insufficient for the law to deal only with overt discrimination. It should also prohibit practices which are fair in a formal sense but discriminatory in their operation and effect".It is that failure to deal with indirect racial discrimination in relation to public authorities that has caused so much distress among many members of minority ethnic groups. I shall therefore listen with great care to what more the Minister may have to say about that particular aspect of the Bill.
§ 4.41 p.m.
§ Lord Sheppard of Liverpool
My Lords, it is a delight to add my congratulations to my noble friend Lady Howells of St Davids. She spoke with rare authority, a touch of humour and much shrewd comment. Along with all Members of your Lordships' House, I wish her skill in avoiding cupboards in the House and express our hope that she will speak to us on many occasions.
It is my hope that the police will welcome the Bill and indeed will want to see it strengthened. They have a tough, sensitive and dangerous task to maintain the rule of law that we ask them to undertake on behalf of 154 us all. But maintaining the rule of law calls for the police themselves not to be above the law or apart from it. I understand well that we all like to deal with matters of discipline within an organisation and to keep them there, because we feel that no one else will thoroughly understand the problems of our organisation. Why should that not be accepted within the police service? We need to ask how such matters seem to those who often feel that they do not have access to where decisions are made.
In 1969 I moved from Newham in east London—Canning Town, which was then an entirely white area—to be Bishop of Woolwich in south London, where there were already large black and Asian communities. I asked my friend Wilfred Wood, who is now Bishop of Croydon, to educate me. One day he took me to Shepherd's Bush where he was then working. At the end of a day of visiting black people in Shepherd's Bush, I met with a group of black community leaders. I wanted to learn what their experience of life in London was.
Before they would talk about anything else, they insisted that I listen for an hour to their experiences of the police and of police activities. I have never forgotten the comment that the only other white person present made afterwards. He said, "It is like you going to a big house to see the man who lives in the big house. He sends the butler to get rid of you and you are angry with the butler". We are talking about large groups of people in our country who often do not have the right address on their notepaper; they do not have the ability to get to meet those in authority. The police are like the butler in that story.
That visit and that discussion were an important moment of education for me. I am afraid that that feeling about the police has continued in black and Asian communities. In Liverpool, black people have repeatedly told me that they made complaints about the police but never knew what happened to the complaints. They said that no police officer had ever been dismissed there for racist actions.
The noble Lord, Lord Cope of Berkeley, said that the police were the most scrutinised service. That is because they have the crucial role of upholding the rule of law; and how much that matters. I spoke today to a Liverpool lawyer who practises a good deal of litigation in that area. He said that it still feels very much the same; that complaints are made and disappear within the organisation. Perhaps police officers were disciplined within the organisation, but no one outside ever knew. There needs to be a much greater confidence that complaints will be actively pursued. I believe that the police service should welcome the Bill and should be seen to be subject to the Race Relations Act. I welcome, as other noble Lords have done, the clarity that Clause 3 will bring to the law: that chief police officers are liable and are the sole employer of police officers.
We have rightly heard a good deal about the report which eventually followed the murder of Stephen Lawrence and talk of "institutional racism". I regret that I have heard a number of debates on television 155 and on the radio in which people have tried to rubbish the idea of institutional racism, as though it were merely a sort of trick of words. But institutional racism is a reality. It is not, as some have tried to brush it aside, simply a matter of a few rotten apples in the barrel. A culture has been allowed to develop, not only in the police and in the canteen, which tolerates remarks about black and Asian people and about other minority groups; for example, gypsies.
Such remarks, if unchallenged, allow attitudes to develop which prevent even-handed treatment. Sometimes we can do more than we believe about those things as individuals. An old friend and colleague of mine whom I knew in south London when she was in her 70s, said to me, "Three of us have promised each other that we shall never allow a racist remark to pass unchallenged". That is what we can do as individuals, but the law must require that institutions and authorities publicly take steps to ensure that such remarks are tackled and challenged.
I hope that amendments will be brought forward that will impose a positive legal duty on public authorities to oblige them to act to prevent discrimination. I hope that other statutory and voluntary bodies will take such positive steps. I was delighted that the right reverend Prelate the Bishop of Southwark—who I know was here earlier and would have wanted greatly still to be here—told me yesterday that the Anglican Diocese of Southwark, having approached the CRE, is being examined by the CRE over a period of time to see how it handles relevant matters.
The Home Secretary Jack Straw publicly acknowledged that the report of the Stephen Lawrence inquiry showed how far we have to go before Britain becomes the beacon of equality that we are determined it should be. The Government must and will do more. I hope that during the course of the Bill my noble friend on the Front Bench, on behalf of the Government, will bring forward amendments that will strengthen it.
I believe that, importantly, the debate has already challenged the anxiety which exists about including indirect discrimination in the law. We all listened with great respect to the speech of the noble Lord, Lord Lester of Herne Hill. That certainly encouraged me to press my noble friend to tell us how indirect discrimination might be included in the law.
The remarks made by Richard Stone, which have been quoted by the noble Baroness, Lady Howells of St Davids, and by the right reverend Prelate the Bishop of Oxford, are important. I believe that all Members of your Lordships' House and, indeed, the whole nation were genuinely shocked by the murder of Stephen Lawrence and by what was revealed of the failure to pursue vigorously the case and to bring people to court.
I know that it is difficult to enshrine in law offences that one may, in our old language, describe as leaving undone those things that ought to have been done and not simply doing those things that we ought not to 156 have done. However, I very much hope that my noble friend and his colleagues will bring amendments before your Lordships' House which will tackle indirect racism and that they will look sympathetically at such amendments as other noble Lords may table. We need provisions that will tackle policies and practices which may not constitute explicit discrimination but which, in effect, disadvantage particular groups.
I hope that the Bill goes forward, but that it does so in a strengthened form.
§ 4.51 p.m.
§ Lord Desai
My Lords, I follow one maiden and two bishops and that is a difficult position in which to find oneself. I congratulate my noble friend Lady Howells of St Davids on a brilliant maiden speech. She gave us the full benefit of her long experience and wisdom and I look forward to hearing many of her contributions in the future.
I am not an expert on race relations, nor have I worked in race relations practice. Therefore, I shall be brief. Of course, I welcome the Bill but I feel that a chance has been missed. Over the past 23 years, and especially over the past three or four years, people's awareness of still persistent racism has deepened. We must remember that the re-igniting of the Stephen Lawrence case was carried out by the Daily Mail, a newspaper normally thought to be right wing. Tabloids in this country no longer condone any form of racism; they are clearly anti-racist.
As has been said by many noble Lords, we have all been shocked by the Stephen Lawrence case. However, my shock stems from the fact that no one seems to have been punished as a consequence of what we found out about the Stephen Lawrence case. At the time that the Macpherson report came out, I remember that a parallel and insignificant event occurred. Glenn Hoddle had to resign for making certain odd remarks. Even my right honourable friend the Prime Minister said that Glenn Hoddle should resign. No one said anything about Sir Paul Condon resigning. At least, he certainly did not resign. I mentioned the contrast between those two events when I spoke in the Macpherson report debate, and I believe that it is shocking. It may be justified but it is shocking.
It is also shocking that murders of black or Asian teenagers must be dragged over many years into newspapers, petitions and so on in order to attain redress for grievances. Perhaps I may refer to the Ricky Reel case and the Satpal Ram case—his was not a murder case but he is in gaol. I believe that we shall not rid ourselves of racism in this country until parents of black and Asian teenagers and black and Asian teenagers themselves feel that they can achieve justice without the need to undergo the long haul of petitions, meetings, newspaper articles and so on. Far too many people who die in police custody are black or Asian, and I believe that that has not been properly investigated.
I do not own a car but I am told that if you own a fancy car and if you are black, there is a high probability that you will be stopped by the police. Why 157 should that be? If you are travelling late at night, look out of your car window. If a car has been stopped by the kerb, there is a 98 per cent chance that the driver will be black.
At the end of this process, I should like to see established not simply a legal structure but a climate of equality so that the first, second and third generations of black and Asian people feel at home in this country. That is the challenge which we all face. I hope that my noble friend will table amendments about indirect discrimination. Otherwise, we may have to wait another 25 years and I believe that the second generation who are now growing up will lose patience.
I make one more point concerning immigration and naturalisation. Although I have not experienced it myself, people tell me that non-UK citizens, black or Asian, who arrive in London or pass through London face a very bad time at the hands of immigration officers. I have spoken to many people who tell me that that is true. Black Americans or Indians travelling from India on their way to Canada or the United States are harassed. I do not know whether this Bill will do anything to reverse that grievance but I believe that this situation is giving the UK a bad name and that we should net tolerate such attitudes.
Whatever the Bill's provisions, I hope that at some stage the Government will encourage the positive task of promoting equality of all citizens. Eventually, this issue should become one not of racism but of equality.
§ 4.57 p.m.
§ Lord Haskel
My Lords, I thank the Minister for explaining the Bill. My reaction to my noble friend's speech can be summed up in five words: "I should think so, too!".
Like my noble friend Lord Desai, I am not an expert in the field of race relations. In my ignorance, believed that the Race Relations Act 1976 covered the work of public bodies. What a pity that it needed the tragedy of the Stephen Lawrence affair to make me aware that it did not. I believed that the 1976 Act applied to all public bodies when exercising their functions. Those that did not do so properly would appear to the public to be outside the law. What sort of democracy is that?
We have all seen what happens in countries where public bodies are outside the law. Too often we have seen the terrible things that happen if administrative decisions discriminate against or victimise people on grounds of race. That is the institutional prejudice to which my noble friend Lady Howells referred in her excellent maiden speech. We have seen it in Eastern Europe, in the old Soviet Union and in Nazi Germany. Like other noble Lords, I, too, believe it is unfortunate that the Bill does not include indirect discrimination by public bodies.
I hear what the Minister says about problems relating to officials in public bodies dealing with age differences, regional differences or indirect actions which they did not create or which are outside their control. But my earlier concerns about the dangers of 158 public bodies being perceived as being outside the law apply just as strongly. I share the concerns of my noble friend Lord Sheppard about perceptions.
Indeed, I believe that there is a duty on the public sector to lead by example. I am pleased to note that my noble friends the Minister and the Leader of the House agree with me. On 2nd December, I asked the Government what was their approach to equality issues. In her reply, my noble friend the Leader of the House wrote that the public sector will lead by example. Earlier, in the same Written Answer, she said that the Government are working to eliminate unjustified discrimination wherever it exists. Bravo to that. But it exists in the area of indirect discrimination by public bodies and I hope that the Government will take a good look at that.
I have heard it said that now there is too much regulation and legislation in the field of race. Opponents to the Bill claim that it merely adds to the excess of red tape. In response, I make the point that there seems to be some confusion in people's minds about regulation. There are two kinds of regulation and people must distinguish between them: on the one hand, there is lifting bureaucracy and cutting red tape; and on the other, there is regulation laying down basic standards and minimum entitlements for our society. Of course we want to cut red tape, but we also want to live in a decent society. This legislation deals with decent standards and I am in favour of that.
The other observation I make about the complaint of too much legislation in the race relations field concerns experience in the United States. Certainly a more tolerant attitude to race relations would have emerged there eventually, but it has been demonstrated time and time again that legislation has speeded up the process considerably. Of course you cannot change attitudes by passing laws. I agree with the noble Lord, Lord Lester, about that. But passing laws sets an example and it is an important element in achieving change.
Too little regulation can have the opposite effect, and gaps left by government regulations will be filled by litigation. Litigation on social issues is certainly good for the lawyers, as the noble Lord, Lord Lester, demonstrated, but I wonder whether it is good for society. And so I ask the Minister to make sure that this Bill does not leave too many gaps for social litigation.
I have heard it said also that race relations legislation is counterproductive to assimilation. I know a little bit about assimilation. I was brought to this country as a child by parents who were escaping from racial intolerance. My parents did everything they could to help me to assimilate. That is how they thought I would get on. Fifty years ago, they were probably right. But today we live in a more tolerant country. Most people have grown to accept the differences and diversity of people who make up British society. In turn, that has made it possible for minorities to feel more comfortable in their differences. My noble friend Lady Howells explained that to us. Indeed, younger people in minority 159 communities have been able to be more self-assertive about their differences. That is much healthier because you do not become so distant from your own race that you are unable to develop a sense of common feeling for other minority groups. You remember your roots; you are not ashamed of them; you celebrate them.
Therefore, instead of making assimilation more difficult, the legislation that we are considering today helps people to maintain their identities in a changing, multicultural landscape and yet they are assimilated in a way which enables them to participate fully and equally in British society. That is my personal and private reason for supporting this Bill. My public reason is that I hope that the Bill will lead to less discrimination because I agree with my noble friend Lord Desai that it is good for society and it is good for the economy.
§ 5.4 p.m.
§ Lord Avebury
My Lords, on behalf of these Benches, I congratulate the noble Baroness, Lady Howells, on her brilliant maiden speech. I appreciated everything she said and we certainly look forward to hearing from her many times in the future, not only on this but on the many other subjects on which she has so much to contribute.
My noble friend Lord Lester, whose immense expertise and involvement with this subject goes back to the White Paper of 1975 and beyond, set out clearly why we on these Benches can give only a qualified welcome to the Bill. We are therefore associated with all noble Lords who have spoken so far except the Minister. We do not agree that in extending the scope of the original Race Relations Act to cover all the functions of public authorities and not just the provision of services to the public, which is dealt with already in Section 20 of that Act, the Bill should cover only direct discrimination. That leaves authorities free to impose conditions or requirements in the exercise of any of their other responsibilities which can operate to the disadvantage of particular racial groups. And they do, as we know from bitter experience.
The public authorities concerned are defined in the proposed Schedule A1. As the Commission for Racial Equality observes, it is not clear why the Government have chosen a different specification to the much simpler formula in the Human Rights Act that,any person certain of whose functions are functions of a public nature",except Parliament. For example, the Human Rights Act formula would have included the management of the privately-run prisons, referred to by the noble Lord, Lord Cope, Immigration Act detention centres and the other places to which asylum seekers can now be sent, NHS trusts, which have also been mentioned, and regional development agencies. I ask also what will happen in relation to the Underground, if it is privatised, or air traffic control? Dozens of other examples may spring to the minds of noble Lords. It seems to be a passion of this Government to privatise everything in sight, and the Minister said the other day that there is no such thing as good management 160 outside the private sector. So what will happen? When each prison is privatised or each detention centre is put out to contract, must there be a special instrument to extend the provisions of the Bill to cover its functions?
The harm done by indirect discrimination can be imagined when it is recalled that last year the Home Office itself was found to harbour deeply entrenched racist attitudes in a survey commissioned by the department itself. Managers, including, I am sorry to say, some from the immigration and nationality department, made extremely racist remarks in the focus groups which were part of that study. Yet there is to be an exemption from the Bill for immigration officers and Ministers exercising the discretion conferred on them by the immigration Acts, allowing them to discriminate on grounds of nationality or ethnic or national origin. Since Ministers have an unfettered discretion in, for example, the 1971 Act, that appears to give them an open-ended power to discriminate, even outside the immigration rules.
But I wish to spend a few moments examining the possible impact of the Bill on another section of the community which has not been discussed so far but only mentioned en passant by the noble Lord, Lord Sheppard; that is, gypsies. I begin by reminding your Lordships of an interview given by the Home Secretary to Annie Oathen on Radio West Midlands on 22nd July which was widely reported in the national press at the time. The question under discussion was ostensibly the deployment of 100 armed police officers at a traveller wedding in Coventry. We should remember that we are not talking now about locker-room banter; this is the Home Secretary speaking to a large audience on West Midlands radio. He said that,people have got to stop being sentimental about so-called Travellers … there are a lot more people who masquerade as Travellers or Gypsies … who seem to think because they label themselves as Travellers that they've got a licence to commit crimes … Many of these so-called Travellers seem to think it's perfectly OK for them to cause mayhem in an area, to go burgling, thieving, breaking into vehicles, causing all kinds of other trouble including defecating in the doorways of firms … if the West Midlands police are taking a tough stance with people like this then I'm very pleased they're acting tough in this way and I'm glad for the community because we've got to get the message across to Travellers that they are going to be treated the same way as anybody else".As it turned out, there had been no violence at all at the wedding. The message transmitted by that incident to the travellers and to the settled community is that the Secretary of State and the police see travellers as being dangerous and lawless enough to warrant the deployment of a substantial force—often armed—when they have large social events.
I telephoned Annie Oathen, who interviewed the Home Secretary, and a reporter from the Birmingham Post to ask whether they could recall any case within their area of a person defecating in doorways of firms, whether gypsy or not. Both told me that no such report had ever been made.
I wrote to the Home Secretary suggesting that for him to regurgitate an urban myth of that sort was to encourage the prejudice against gypsies and travelers 161 which has been prevalent throughout the whole of my political life. Apparently it is all right to be derogatory about travellers although—thank goodness—in the last 30 years it has become totally unacceptable to be derogatory about other ethnic groups.
No one suggests that gypsies and travellers never commit offences or annoy their neighbours. It is natural that people who are socially excluded—travellers are excluded far more than any other section of the community—may be likely to fall into crime and are more likely to do so than people who have had a reasonable education and come from good homes. If that is the case, surely the remedy is a far more vigorous approach to social exclusion of all kinds rather than for the police to target the victims. I suggested that to Mr. Straw in my letter, to which he failed to reply.
A rather similar event to the Coventry wedding led to a case under the existing Race Relations Act to which I draw your Lordships' attention. Mrs Smith, whose daughter was getting married, hired the Pittville Pump Rooms from the Cheltenham Borough Council for the reception in August 1997 at which she expected 150 guests. The previous March police had experienced trouble at another gypsy wedding and had received information about two further weddings, one of which was to be attended by 1,500 guests. The police falsely informed the Cheltenham Borough Council that Mrs Smith, who had hired the room for 150 people, was hoping to have 10 times that number at the function. The council summoned Mrs Smith and imposed extra conditions on the hire of the room, including a £750 deposit, admission by ticket only and the full costs to he paid 15 days before the event. The family had no choice but to comply with those arrangements.
However, Mrs Smith brought an action against the borough council for breach of contract and for breaches of Sections 20 and 21 of the 1976 Act, which make it unlawful to discriminate in the provision of goods and services or on the terms upon which premises are offered. The action against the police was under Section 33(1) of the Act which provides that a person who knowingly aids another person to do an act made unlawful by the legislation is himself doing an unlawful act of a like description.
Last week, unfortunately, the Court of Appeal threw out the case against the police although the council had clearly behaved in a discriminatory manner solely because of the information given to it by the police. That decision of the court gives the police carte blanche to pass on false information about members of any ethnic group. That is important in the context of the crime prevention partnerships that are being set up all around the country between local authorities and the police. Can the Minister tell the House whether the Bill will have any effect, directly or indirectly, on the application of Section 33 of the parent Act?
The two examples I have given illustrate the more general problem faced by gypsies and travellers: that because the police consider them to be more prone to 162 criminal behaviour of certain kinds on a large scale they use oppressive and intensive policing methods which are disproportionate to the objectives sought and to the actual level of offences committed.
When I have tried to raise this matter in the House I have been told that the policing of each event is entirely a matter for the chief constable in whose area it occurs. There is never an opportunity to consider the whole picture throughout the country. On 7th October 1997 an incident occurred in north Oxfordshire when 200 armed police officers raided a gypsy site. They kept the residents imprisoned on the site for 11 hours, preventing children from attending school and patients from visiting doctors. The noble and learned Lord, Lord Williams of Mostyn, when I raised the matter on the Floor of the House, contented himself with advising me to make a complaint to the Police Complaints Authority if I had any evidence of police malpractice. It is not my job to make complaints about something of which I did not have personal knowledge and it begs the question that that is not the only incident of its kind.
My submission is that police forces quite often go over the top in policing any event or in dealing with any suspicions in connection with gypsies. I do not understand how the present Bill will deal with institutionalised police bias against gypsies and travellers because every individual allegation of discrimination still has to be dealt with by means of a complaint and there cannot be a general investigation of the kind needed to redress matters.
Moreover, in England and Wales the only people identified as gypsies and who are definitely entitled to the racial equality legislation are those who are officially classified as gypsies. I do not know whether Irish travellers are so covered. Perhaps the noble Lord can tell the House. It is possible that an anomalous situation could arise in which Irish travellers are dealt with under the discrimination legislation in Northern Ireland but not on the mainland of Great Britain.
The Lawrence inquiry was effective only because it went beyond the actions that were taken by the police in relation to the tragic murder of a single victim. It dealt with the wider question of police attitudes on racial equality. We also need that kind of approach for travellers or the Bill will be of no help to a community that suffers more deprivation and discrimination than any other in the land.
§ 5.17 p.m.
§ Baroness Whitaker
My Lords, the Bill is a welcome extension to the Race Relations Act 1976. The first provision of the Bill touches on a central concern in the development of a fair society; namely, the conduct of public authorities. To bring all public authorities under the scope of the legislation will help to make a reality of the Government's intention and, in the words of my right honourable friend the Home Secretary, to "tackle institutional racism". However, the Bill does not provide for that completely because, as we have heard from all sides of your Lordships' House, it deals only with direct discrimination committed by a public authority.
163 Direct discrimination by a public authority fortunately is now rare in our society, although it is still, rightly, held to be illegal. To use another of the Home Secretary's phrases, it is not direct discrimination that holds up the "building of an anti-racist society", but part of our culture that is often unacknowledged—unconscious attitudes flowing, no doubt, from a series of historical events, as my noble friend Baroness Howells of St Davids said in her thoughtful maiden speech. Those attitudes are the main underlying reason why people from visible ethnic minorities are treated unfairly and have unequal opportunities. It shows in the employment figures where those with higher qualifications are still two or three times more likely to be unemployed if they are black. And the position is getting worse according to the latest TUC figures. It shows in school attainment figures, so closely linked to teacher expectations. It shows in different and more custodial mental health treatment for black patients. And it shows in the criminal justice system in different patterns of sentencing.
Those are the symptoms of institutional racism—specific groups of people defined by their race getting a worse deal from public services, and the cause is indirect discrimination. The Bill can do something about it, taking on board the reservations of my noble friend the Minister. We can work on that in Committee and it would be a milestone to achieve full coverage.
I support one other point in relation to public authorities. It is, in fact, not precisely public authorities but what public authorities do that needs to be covered. In this time of contracting out, outsourcing, public-private partnerships even, there are many private organisations which carry out public functions. Group Four was mentioned by the noble Lord, Lord Avebury, in relation to its detention facilities for asylum seekers. Local authority functions are also contracted out.
I also agree with the noble Lord, Lord Avebury, that some adjustments to the drafting of the Bill would be helpful and that to replicate the phrasing of the Human Rights Act would be more economical with words (which I recall is favoured by parliamentary draftsmen) as well as with parliamentary and administrative time than having to list out each body by order from time to time.
The Bill is also an important step forward in providing for chief officers of police to have the same sort of responsibility as employers in respect of liability under the legislation, and in making Crown appointments subject to the Act.
A more faltering first step deals with the questionnaire which may be served on employers in civil race discrimination cases. The Bill says that if there is a possibility of criminal proceedings, no adverse inference may be drawn from a refusal to answer the questionnaire. Surely there is a provision missing which ought to balance this; that is, if there is no question of criminal proceedings, the tribunal must 164 draw an inference from a refusal—a refusal which could prevent institutional racism ever coming to light. That too would be worth looking at in Committee.
Finally, I echo the observation of the noble Lord, Lord Lester, that the Long Title of the Bill would easily encompass the undertaking made earlier by my noble friend the Minister—the duty on public bodies to promote equal opportunities. That would bring this country in line with other successful democracies and would give an incentive to thinking positively and imaginatively about diversity rather than only defensively.
Other noble Lords commented further on those points and on other important aspects of the Bill. I shall not repeat any more of that. But I should like to repeat that this Bill does take us some way forward in "building an anti-racist society". I am sure that it could end up as much a source of pride as was the first Race Relations Act.
§ 5.24 p.m.
§ Lord Ahmed
My Lords, the Race Relations (Amendment) Bill is the most significant development in race relations for almost a quarter of a century. I congratulate the Government on providing an opportunity to extend the 1976 Act to all public bodies, including the police and immigration authorities. It was a Labour government that introduced the Race Relations Act 1976. It took another Labour government to call for the Stephen Lawrence inquiry report and produce a Bill that goes beyond the report's recommendations in that it applies the Act to all public authorities and not merely the police.
I welcome the Government's willingness to consider ways of strengthening the Bill. There is an overwhelming case for the Government to introduce amendments to the Bill to cover religious discrimination and reinstate the indirect discrimination clauses. There is a further opportunity for the Government to establish the duty on public authorities to promote racial equality so that the Government's commitment to racial equality becoming a reality is not just a slogan.
The Race Relations (Amendment) Bill will make it unlawful for a public authority to discriminate directly in carrying out any of its functions, as we heard earlier from many noble Lords. However, although direct discrimination by public bodies will be unlawful, indirect discrimination will not. That omission will make it impossible to challenge many of the most problematic aspects of policing; for example, the disproportionate use of stop and search powers against black people which was mentioned earlier. It will also limit the powers of the CRE to carry out formal investigations in those areas.
There is a further anomaly in that, in the absence of religious discrimination laws, the only protection Muslims, Hindus and Christians enjoyed was under the indirect discrimination provisions of the Race Relations Act. For example, employment cases established that a dress code prohibiting women from 165 wearing any headscarf that directly affects Muslim women can constitute indirect racial discrimination against persons of Pakistani origin. In the past there have been instances in which Muslims, Rastafarians or Hindus believed that they were receiving less favourable treatment by, say, prison officers on the grounds of their religion. Under the Bill as drafted they would have no recourse to redress.
I understand that the Government consider that simply adding a reference to religion in existing anti-discrimination legislation would generate more problems than it would solve. One problem is that members of sects, as distinct from members of religions, could claim protection under the new legislation, and that the practices and beliefs of such sects are normally objectionable. I am sure that the noble Lord, Lore Lester of Herne Hill, will agree that it was the courts that defined "racial groups" in the Race Relations Act; similarly, the definition of religion can surely be left to the courts.
My second point relates to the omission of indirect discrimination in critical functions of public authorities. The Bill seriously inhibits the ability to challenge institutional racism, which brings me to my final point. The police, the Prison Service and the Civil Service are not the only institutions riddled with institutional racism.
The Macpherson inquiry found institutional racism in the National Health Service. I recently received many complaints regarding the medical colleges. I understand that the medical Royal Colleges are the real power behind the National Health Service and that they do not simply set standards for training and education in medicine. I understand that they have a strong say and a powerful influence, via their advisers, in all the NHS job appointments and in the employment of doctors. There are allegations of discrimination against ethnic minority doctors in career progress arid training.
A few years ago the CRE found evidence of racial discrimination in senior registrar and consultant appointments. To date, there have been more than 50 cases of racial discrimination brought by ethnic minority doctors against the Royal Colleges in respect of appointments directly influenced by their regional advisers. The proportion of locum doctors from the ethnic minorities is extremely high because they are unable to get permanent jobs.
Therefore, like many noble Lords, I, too, hope that the Government will use this opportunity to ensure the introduction of such amendments as will cover all these anomalies.
§ 5.30 p.m.
§ Lord Davies of Oldham
My Lords, I join other speakers in congratulating the noble Baroness, Lady Howells, on her maiden speech, which was quite exceptional. As regards her contention that this House, which has long been acknowledged as a defender of ancient privileges, should now be transformed into a righter of ancient wrongs, I can assure her that she will have an increasing number of allies on these Benches for precisely that purpose.
166 When we make a contribution to a debate, especially one which revolves around the issue of policing—a matter on which I intend to concentrate—we should recognise that most of us are drawn from those sections of society in which our brushes with the police are likely to have been minimal and generally in a fairly helpful capacity. Therefore, we may have some difficulty in fully understanding the perspective of those who feel very vulnerable.
I recall one occasion when I felt excessively vulnerable when faced with the police. I am not referring to the police in this country who, in any case, have much higher standards. I have in mind the time I went to Poland—that is, Gomulka'a Poland, the old Communist-state regime—and committed the very minor infringement of failing to register successfully with the local police when transferring from one town to another. I was confined to the cells because the police were under the distinct impression that I was German. That was in Cracow. Noble Lords will recognise that there was not a great deal of love lost between the Poles and the Germans at that time. My feeling of excessive vulnerability in circumstances where power was being exploited and used in a very naked way is something which, as noble Lords can clearly see, has marked my perspective to this day.
There are occasions when some of our fellow citizens find themselves in exactly the same circumstances. That is why we must have regard to advancing the standards of policing in this country. I do not underestimate the difficulties involved. Policing is often difficult, and we have always prided ourselves on the fact that policing relates to consent. That is much more easy to achieve in a society which is less varied than the one we have at present. Today, consent means that the police have to be able to win the hearts and minds not only of the majority of the population, from whom most policemen are drawn, but also those of the minority communities.
I speak with direct experience of the town from which I take my title; namely, Oldham. Policing in Oldham is very difficult and has to take place in circumstances where, from time to time, there are tensions between communities. Indeed, very strong anxieties exist among groups of ethnic minorities about the way in which—I state this quite clearly—the white police act at times.
Let us take, for example, quite a neutral measure in which the police may be involved. Who could possibly be against a police drive to ensure that the standards of mini-cabs, which provide so much of the transport in the town, should be high? Who could criticise the police when, as a result of that drive, a whole series of cabs was taken immediately off the road, thus rendering many livelihoods vulnerable, because there was good objective evidence to show that the vehicles did not meet public safety standards? Indeed, no one could say that the police were doing anything else except serving the public interest. But it affected a certain group of people whose livelihoods were placed very much at risk.
167 We are talking about a very poor section of the community who, even with their very limited resources, send quite a large proportion back to their native land to families for whom they feel some responsibility. All I am saying in this context is that such an onslaught is somewhat different from pulling in lorry drivers on the M.62 to check out the safety of their vehicles. That is not to say that both are not a proper police concern as regards the safety of our roads. I should declare an interest at this point as I am president of the Royal Society for the Prevention of Accidents. I am certainly not going to be against police measures to ensure that vehicles are safe. I merely seek to emphasise how much more sensitive one form of activity is than the other.
I do not always feel that the way in which the police relate to the community is sufficiently sensitive in such circumstances. We need to have due regard to the problems which the Lawrence inquiry identified and which—dare I say it?—the Scarman inquiry identified 18 long years ago. I heard what the chief Opposition spokesman said about the Bill being a "sham". I find that slightly inflated language. It is more of a shame perhaps that we have had to wait for 18 years for action to be taken about a previously defined problem regarding the relationships involved in the policing of our society. That problem was identified in the early 1980s but is only now being examined thoroughly and properly with legislative action being taken.
We should not underestimate the problems we face. It means that the training and the recruitment of the police must be approached with great thoroughness. There is no way in which the police will be able to establish effective relationships with the community unless we ensure that they are more representative of the people whom they seek to serve. They must be more understanding, and police training must involve an appreciation of the nature of the problems faced by ethnic minorities in particular.
Similarly, we should not underestimate the degree of the problem. It has been rightly pointed out in this debate that the legislation of 1976 put an end to overt racism. But indirect racism has been alluded to. Indeed, it has been mentioned in regard to the NHS, which is a very important dimension of our public services. We know just how many members of the ethnic minorities contribute to the running of the health service. But how much more important—dare I say it—is the issue of fairness in the enforcement of law and order. How anxious should we be that the CPS is being subject to challenge by the CRE at present? The Lawrence inquiry and, before it, Scarman, are measures of just how much progress we need to make to ensure that we have a society in which relationships between the police and the community they seek to serve are based on the concept that racism is a thing of the past.
§ 5.38 p.m.
§ Lord Dholakia
My Lords, I welcome the Government's decision to introduce the Race 168 Relations (Amendment) Bill. However, when the Home Secretary reads Hansard tomorrow he will feel not at all comfortable. What a delight it is to note that there is almost a consensus that what is dressed up as a radical reform falls fall short of its objective.
First, I endorse what has already been said about the maiden speech of the noble Baroness, Lady Howells. The noble Baroness and I have been involved in race relations since the early days in the early 1960s and even before any legislation was contemplated. She has worked tirelessly to ensure justice and fairness for all. It was not in the least bit surprising that she alone among many stood by the Lawrence family for over five years to ensure that they received justice. Those of us who saw Mr and Mrs Lawrence on our television screens could not have failed to notice that the noble Baroness, Lady Howells, was always in the background. We are all delighted with her elevation to your Lordships' House. More importantly, we should listen with great care to what she has to say on the important subject with which we are dealing today.
At the very outset it is important to be clear about the Bill's main purpose; namely, to extend the Race Relations Act 1976 in relation to public authorities. My noble friend Lord Lester of Herne Hill has already explained that the present Race Relations Act does not generally apply to functions of public authorities that do not constitute employment, training and education, or the provision of goods, facilities or services.
It is not difficult to understand what direct discrimination is all about. It arises where a person treats another person less favourably on racial grounds. Racial grounds are defined as colour, race, nationality and ethnic or national origins. I have often argued that no one in his or her right mind could ever have imagined in the early 1960s that this country would in almost 10 years promote three separate pieces of race relations legislation. I am delighted that the contribution of my noble friend Lord Lester of Herne Hill has been recognised and I endorse the tribute paid by the Minister.
However, we must never forget that it took the courage and leadership of my noble friend, Lord Jenkins of Hillhead, to promote such legislation when he was Home Secretary in the then Labour government. I say deliberately that it took the courage of my noble friend Lord Jenkins, because somehow I suspect—I hope that I am proved wrong—that this courage is lacking in the present Government. I shall explain why.
If legislation against direct discrimination were to resolve all our ills, there would have been no need for changes in the race relations legislation. Unfortunately this has not been the case. In the 1960s, despite the legislation to tackle direct discrimination, employers still imposed conditions or requirements which had to be complied with in order for someone to qualify for or to obtain a job. We should remember the large number of case studies in those days which were well reported in the media. For example, the transport authorities would not employ Sikhs on Wolverhampton buses because they failed to meet the 169 requirement of wearing a uniform, which included the wearing of a cap. No turbaned Sikh could ever have complied with that condition.
It was therefore important to establish the provision in the Race Relations Act 1976 of indirect discrimination. As my noble friend Lord Lester has pointed out, indirect discrimination consists of treatment which may be described as equal in a formal sense as between different racial groups but is discriminatory in its effect on one particular racial group.
Although I welcome the Bill, I am disappointed that after almost 25 years of the Race Relations Act we are still missing the golden opportunity to introduce legislation more appropriate to the present day situation confronted by people in this country. It is important to stress that race relations legislation is not simply about discrimination against blacks and Asians but applies to all our citizens. We should never forget that white people have also secured remedies under race relations legislation.
Parliament set up the Commission for Racial Equality and gave it powers which are the envy of many of our neighbouring countries in Europe. One of the tasks that the CRE was asked to undertake was to keep under review the working of the Race Relations Act and, when required by the Secretary of State, or when it otherwise thinks it necessary, draw up proposals for amending it.
The CRE conducted reviews in 1985 and in 1992. The first yielded no response from the then government. The second was considered but most of the recommendations were not proceeded with. In April 1998, after undertaking the third review, the CRE submitted its proposals to the Home Secretary.
No one disputes that there has been measurable progress in tackling discrimination and prejudice in Britain since the Race Relations Act 1976 became law. The value of legislation has been well established and it has received support from all fair-minded people in the three main political parties.
Rather than the bottling up of hurt feelings, the legislation has given individuals the opportunity to tackle their grievances in tribunals and county courts. It has allowed reasonable people to ensure that they are not pressurised into promoting discriminatory practices. However, the most important aspect is that race relations legislation has become an unequivocal statement of our public policy. It must therefore be a matter of serious concern that the CRE, the body established by Parliament, finds the present Bill, in the words of its chairman, "hamstrung from the start".
The Home Secretary gave the pledge that he would amend the Race Relations Act 1976 in response to the publication of the inquiry report in February this year on the Stephen Lawrence murder. I have revisited the recommendations of the Macpherson report and fully endorse what my noble friend Lord Lester and the noble Baroness, Lady Howells, have said. It is worth repeating the words of the report which states,that the full force of the Race Relations Act should be fully implemented".170 The present Bill fails completely the challenge of institutional racism highlighted in the report.
I am afraid that the opportunity presented by the report for radical thinking and root and branch action has been totally missed. Significantly, the Bill does not accompany the extension of the Act with an enforceable legal duty on all public bodies to combat racial discrimination and promote racial equality. Can the Minister explain why this is excluded if the intention is to introduce this measure at a later stage? What are the reasons for not introducing it now?
The Government's approach to equality is not in dispute. Mo Mowlam, in a Written Answer in another place stated,The Government are working to transform Britain into a society which is inclusive and prosperous. Eliminating unjustified discrimination wherever it exists and making equality of opportunity a reality for all is at the heart of the Government's agenda. Equality of opportunity is not only inherently right, it is also essential for Britain's future economic and social success. Much has been achieved in the last two years. But we are not complacent. A lot remains to be done. We will continue to stamp out discrimination, remove barriers and improve the position of groups facing disadvantage and discrimination in employment, public life and public service delivery. We will ensure that the right legislative framework and institutional arrangements are in place and that information, guidance and other support is available to challenge discrimination and deliver fair treatment to allow everyone to develop and contribute to their full potential. That is to the benefit of all … in a healthy, modern, diverse society".She further stated:We will avoid unnecessary and burdensome regulation and will promote, encourage and support progress through non-legislative means. However, we will legislate where necessary or desirable when legislative time permits. In doing so, we will be governed by the principles of improving consistency between the protection afforded to different groups by different legislation, modernising enforcement powers, and by the need for the public sector to lead by example".—[Official Report, Commons, 30/11/99; col. 175W.]Almost every speaker—it must be a record in any debate—has expressed concern about the omission of indirect discrimination. What further evidence do the Government require?
We welcome the Government's sentiments, but I wonder what consultation took place with the Commission for Racial Equality when Mo Mowlam's reply to a Question was drafted in the other House. The chairman of the commission, Sir Herman Ouseley, who is shortly to retire from his post, has this to say:By leaving out indirect discrimination, what the Lawrence enquiry termed unwitting racism, we fear that it will increasingly weaken the ability of the CRE to help in tackling the very issue that the report highlighted".By concentrating on direct discrimination, the commission would be unable to launch investigations into areas such as the disproportionate number of black people who are stopped and searched by the police.
My noble friend Lord Lester has adequately dealt with the legal and technical aspects of the Bill. He suggested that I should deal with matters related to the criminal justice system. I shall do precisely that.
The policing and criminal justice issues are very important. They are at the heart of our democratic society. If one is discriminated against in employment 171 or in the provision of housing or services, one has a remedy to go to an employment tribunal or to a county court. Police have wide powers which, if they are misused, affect the lives of ordinary people. By excluding indirect discrimination, we are giving a message that it is perfectly lawful for the police to convert ways of using their powers to the disadvantage of people—in particular ethnic minorities—as long as they do not make their racism explicit.
I do not believe that the Government intended such a message to be conveyed for the simple reason that they have a fairly good track record on race relations. Unfortunately, it is not the intent that I question but the effects of the Bill, about which we are all concerned. Call it "sham" or call it "shame", either word clearly describes the inadequacy of the legislation before us.
On the day of the Queen's Speech, Paul Wilson, chair of the National Black Police Officers Association, said at his conference that in his experience most police officers are now very careful not to discriminate directly. If that is correct, then black and Asian people will be left with no redress when they believe that police policies—formal or informal—have resulted in them receiving unfair treatment. It is important to recognise that this perception exists—and the present Bill will reinforce that feeling.
To the credit of the Conservative Party, when we debated the Criminal Justice (Mode of Trial) Bill a number of speakers from its side of the House talked about the perception of black people, particularly in relation to the courts, and of the need to retain jury trials in either way offences. Similar perceptions exist about the police and other parts of the criminal justice system. We look forward to Conservative support when we move appropriate amendments at Committee stage.
The position of the CPS is probably more complicated in terms of the whole of the prosecution process. Your Lordships will see in the exemptions in the Bill that it probably lobbied quite hard to make it particularly difficult to pursue complaints, even of direct discrimination, where these involved criminal investigations, prosecutions or criminal proceedings.
A decision not to institute criminal proceedings, or any acts leading to such a decision, is excluded; Clause 1 replacing Section 19D. In other words, the Lawrence family would have no redress through this Bill against the acts leading to the decision not to prosecute, or against the decision not to prosecute itself. This is a blanket ban on direct and indirect discrimination.
What recourse is there against the police or the CPS for a black or Asian victim, or the family of such a victim? The Government's answer will obviously be a judicial review or a private prosecution. But look what happened when the Lawrence family tried that. They discovered to their cost that neither proved sufficient or satisfactory.
172 Consider a black prisoner who believes that prison officers are treating him and other prisoners, on a wing where there is a disproportionately high number of black prisoners, more harshly than they treat other prisoners. While on these simple facts it would seem right that the prisoner could bring proceedings under the Race Relations Act, that may not be the case as there are a number of variables that need to be considered. If this treatment occurs in the context of the Prison Service providing "services" to prisoners—that is, meeting daily living requirements, seeing to medical needs, providing education or recreational opportunities—under the existing provisions in Section 20, the prisoner could challenge his treatment as either direct discrimination, because he is black, or as indirect discrimination, because he is on a wing that is predominantly black. If this treatment occurs as part of the Prison Service's functions to maintain prison discipline and to inflict punishment, then the prisoner would need to rely on the new Clause 19B in the Bill, but he would be able to bring proceedings only if his claim was one of direct discrimination. It is hard to envisage how the prisoner would be able to make these fairly sophisticated assessments of his circumstances, which he will continue to read as racism directed against him.
If the prisoner were a Muslim who considered that he or she was being unfairly treated because of his or her religion or a wish to comply with certain observances that are part of the Muslim faith, the Bill would exclude any prospect of challenge or redress since, under the law at present, it is only in reliance on the indirect discrimination provisions of the Race Relations Act that religious discrimination can be challenged. In other words, Muslims are excluded substantially from certain provisions of the Act.
Let us consider a scenario very like that presented to the Stephen Lawrence inquiry as it heard evidence from ethnic minority communities across the country. Mr and Mrs A are an Asian family living on a housing estate where there is a high proportion of black and Asian households. Mr A reports to the police that he and his wife have been victims of a racist incident involving verbal abuse and assault. He identifies the perpetrators as two white youths who live on a different estate on the other side of the main road. When taking down his address, the police officer makes a comment about Mr A's estate as one that is causing the police too much bother; people always complaining for no reason. After a few days the police come to Mr and Mrs A's house, push their way in, roughly grab Mr A and arrest him for assault on one of the youths he had named as his attacker. One of the police officers says, "You on this estate may look innocent but you are always causing trouble. This estate always breeds troublemakers".
After the CPS decline to prosecute Mr A, he is determined to complain under the Race Relations Act about his treatment by the police. Under existing law, the Farah case could enable him to complain under the Race Relations Act about his treatment as a victim of crime. He would need an amendment to the Bill to complain about his arrest. Was his treatment on the 173 grounds of being Asian or because he lived on that estate? If it was the latter, he could not challenge what he was convinced was racially discriminatory treatment.
The Home office this week published statistics under Section 95 of the Criminal Justice Act that again show disproportionate rates of stop and search. Many speakers have dealt with that issue.
In conclusion, after 23 years of race relations legislation we are still compelled to challenge discriminatory practices through confrontation in courts and tribunals. The Commission for Racial Equality, which is well experienced in discrimination matters, has produced three reviews. If its recommendations are taken on board, it would place responsibility for initiating action for racial equality where it should be—not with the CRE, but with our institutions, large and small, public and private. It would be tragic if we were to miss this opportunity for ensuring that our institutions—in this case public institutions—are protected because we have failed to deal with the crucial omission of indirect discrimination.
§ 6 p.m.
§ Viscount Astor
My Lords, this is the second Home Office Bill to come before the House in recent weeks. Rather like the last one, this legislation has raised a certain amount of controversy among noble Lords. I remember the Race Relations Act going through this House in 1976. It was then claimed that the Act would outlaw racial discrimination. Discrimination would disappear by enforcement of the law and it would change the views of our society. So perhaps we should consider what has happened over the past 23 years.
Has the Act worked? I would maintain that by and large it has. Society has changed and now Britain is a modern, multi-cultural society. Furthermore, precisely where has the Act worked and where has it not worked? As I have said, I believe that it has worked in society as a whole and in the private sector, and largely in the public sector.
Wearing my City hat, perhaps I may tell the House that our offices represent a multi-cultural society with no discrimination. I am proud of that, and believe that to be the case in most of the City. However, many claim that there is institutional racism and so we must ask: does it exist, and where? Personally, I believe that the word "institutional" is a misleading term, and I do not believe that it ought to mean that.
§ Lord Haskel
My Lords, I am grateful to the noble Viscount for giving way. I was interested to hear what he said about his company in the City. Can he tell the House how many members of racial minorities serve on the board of that company?
§ Viscount Astor
My Lords, I would have to think about that. What I can tell the noble Lord is that there are many working in the company, and that I believe 174 is the best judgment of what is happening in the City. However, different institutions operate in different ways.
I shall return to the subject of institutional racism. I have been concerned about the word "institutional" because I believe it implies that racism is enforced by official rules. Clearly that is not so, for example, in the police. I believe that the Scarman definition is better, although I suspect that the Macpherson definition, if one may so call it, will be the one that is going to be used and accepted. However, whatever one's view of the definition of the word, it is clear that there is certainly an unofficial culture of racism in some parts of society, and it most certainly was prevalent in a small section of the police. However, I want to stress that the vast majority of those working in the police forces of this country are not racist, and it is quite wrong for anyone to suggest that they are.
In a charming and excellent maiden speech, the noble Baroness, Lady Howells of St Davids, tackled the issue of institutional racism and the various ways in which it has been defined over recent years. The noble Baroness showed clearly the difficulties that surround this area. Interestingly, several noble Lords expressed concern about the public sector. If one casts one's mind back to 1976, I find that situation to be extraordinary. We thought then that the public sector would lead the private sector in abolishing racial discrimination and then the rest of society would follow that lead. However, this evening we have heard from various noble Lords that even the National Health Service has recently been criticised for either direct or indirect racism.
In 1997 the Home Secretary established the public inquiry chaired by Sir William Macpherson into the investigation of the death of Stephen Lawrence and the issue of race and the police service. The report of the inquiry, published in February 1999, and debated in your Lordships' House, made 70 recommendations. These covered the employment and internal practices of the police service, but also included a recommendation that the Race Relations Act 1976 should be extended. The report stated:the full force of the Race Relations legislation should apply to all police officers, and that Chief Officers of Police should be made vicariously liable for the acts and omissions of their officers relevant to that legislation".The Government pledged to introduce legislation, and indeed the Minister has done so today. The Bill will make chief officers liable for the acts of constables and will also cover appointments made on the recommendation of Ministers. In principle, we support those proposals.
The main provisions will extend the scope of the Act to public authorities, including the police service. However, it will apply only to direct discrimination and victimisation and not to indirect discrimination. That point has concerned all noble Lords who have contributed to today's debate.
The Conservative Party believes that racial discrimination has no place in our society. We want to see racism rooted out of society in general and the police service in particular. We shall not oppose the 175 legislation and, during its passage through this House, we will raise issues that require closer consideration. Those issues will include the implications of the Bill for the way in which our streets will be policed in the future, and the implications of the Bill for the immigration and asylum system. In future the provisions could lead to a large number of appeals on the grounds of racial discrimination, causing yet more delays.
Furthermore, the Government have not calculated how much the Bill will cost public authorities, stating at paragraph 84 in the Explanatory Notes that this is impossible. We believe that there are likely to be increased costs, both to the public authorities themselves and to the legal aid budget. The Government have described these costs as significant but have said that they will be met from agreed departmental expenditure limits. I do not believe that it is good enough for the Government merely to say that. They must be much clearer about what those costs are going to be. It is no good saying that they will be met out of a departmental budget because the simple response to that statement is, "What is the noble Lord going to cut?"
The subject of racial discrimination within the police force has been at the forefront of the service's planning and assessment since the tragic case of Stephen Lawrence. The Macpherson inquiry highlighted two main ways to improve the situation: first, to improve recruitment from the ethnic minorities; and, secondly, to foster a better public perception of the police by the ethnic minority groups. We certainly support those recommendations. The Home Secretary said in his response to the report and its recommendations that there would be encouragement for applicants from the ethnic minorities, targets for the recruitment of officers and a review of the promotion system within the police service. In July of this year the Home Office published targets which applied to several public services, including the fire service, the Prison Service and the police service. I understand that consultation is still taking place as to the timescale for implementation in the police service. When the Minister sums up the debate, can he give the House a little more information on that timescale?
An important point to consider is the possibility of rising crime if law enforcement is made subject to the Race Relations Act. For example, in the Metropolitan Police the number of stop and searches halved in the period of January to April this year. In January there were over 25,000 stop and searches, but by April there were only 14,000. Those figures fuel the fear that the 16 per cent rise in overall crime in London is related to the unwillingness of police officers, in the aftermath of the Lawrence case, to carry out stop and search.
The police must place law enforcement and public safety at the top of their priorities and they must be able, without the threat of reprisal, to stop and question anyone whom they believe may be involved in criminal activity. We do not believe that the police should be restricted in this way. It appears to make 176 more sense to maintain the overriding good service that the police provide but to enhance the complaints procedure and make it more effective. That would weed out some of the discriminators and improve public confidence in the police service but still allow the vast majority of officers to continue to provide the fair and excellent service which they currently provide.
There could be a problem of double jeopardy for the police with regard to the CRE and the Police Complaints Authority. But at least they will have to work together. Perhaps the PCA should carry out the detailed investigations for the CRE in some or all of its cases. Will the Minister consider that point?
§ Lord Lester of Herne Hill
My Lords, I am grateful to the noble Viscount for giving way. It must be my fault but I was confused when listening to his speech and comparing it with the speech made by the noble Lord, Lord Cope of Berkeley. Is it the position of the Conservative Front Bench that the Bill should extend the Race Relations Act 1976 to cover indirect discrimination in the public service? In answering that question, the noble Viscount may be helped by the memory that it was Quintin Hogg, as he then was, in the other place who helped to persuade Home Secretary Callaghan that the original Race Relations Act 1968 should apply to the Crown, including enforcement against the Crown. It was done on an all-party basis. We should be grateful to know whether the Conservative Party supports extending the Bill in a similar way to indirect discrimination in the public service.
§ Viscount Astor
My Lords, if I may, I shall deal in a moment with the point raised by the noble Lord. Perhaps I may conclude my remarks on the complaints procedure. We believe that it should be improved. Furthermore, there seems to be no definition in the Bill of what constitutes a public authority. The Minister said that quangos could be added by order. That seems to be a rather cumbersome process. I wonder whether a definition could be borrowed from the Human Rights Act to make the process easier. It seems that we shall have a long list. When the Minister says "quangos", I am not sure what he means. Will it be the strict interpretation of quasi-autonomous nongovernmental organisations or will it be wider?
Perhaps I may deal with the question asked by the noble Lord, Lord Lester of Herne Hill. During the passage of the Bill, we shall be able to debate the merits of whether indirect discrimination should be part of it. We will want to consider very carefully any amendments. We will listen to the arguments both from the Liberal Democrats and from the Government. One must note that almost everyone is in favour of including indirect discrimination. The Law Society is in favour, most noble Lords are in favour and most of those outside the House are also in favour. There is concern, as was stated by my noble friend Lord Cope of Berkeley, that the Bill does not do what the Government claim it will do. We will listen carefully to the Government's case for not including indirect discrimination in the Bill. We are not satisfied 177 with the Government's proposals so far but we will certainly approach the issue with an open mind and examine the arguments carefully.
§ 6.14 p.m.
§ Lord Bassam of Brighton
My Lords, I am most grateful to noble Lords for all the constructive contributions that have been made in the Second Reading debate on this important Bill. It would be remiss of me if al. the opening stage of my concluding comments I did not join other noble Lords in offering my warmest congratulations to the noble Baroness, Lady Howells of St Davids, on her contribution to the debate. What shy said was moving and wise. I trust that we will all take careful account of one point which she very tellingly made. She reminded us just how far we have come in the field of race relations; but, importantly, she reminded us just how far we have to go in tackling racism in our society. That is a very important point indeed.
I found the debate constructive and instructive. While the Lord, Lord Dholakia, pointed out some of the Bill's inadequacies, as he sees them, I think that there are many important parts of the Bill. I think, too, that there is a consensus within your Lordships' House on the value of the steps being taken by the Government in bringing forward the Bill. I have listened carefully to what has been said. Undoubtedly, my colleagues and I will have to reflect further on some of the important points made in the debate. In answering the many points and questions that have arisen perhaps I may say that if, for whatever reason, I miss a point or a question, I shall be more than happy to pursue the matter in correspondence and make available in the Library copies of that correspondence.
Before I deal with specific points, I want to repeat something I said earlier. This important and significant Bill does not pretend to be everything. The Government acknowledge that. We have made promises of further legislation as soon as parliamentary time permits. The Bill fulfils a prior commitment to early legislation made by the Government in response to the report of the inquiry into the death of Stephen Lawrence. The conclusions of that inquiry have very much overshadowed the debate today, and rightly so. We believe that that report will lead in the longer term to a significant improvement in terms of individual members of the public being able to hold to account public authorities acting in a racially discriminatory manner. That is the purpose of the Bill. We believe that it will make a real and fundamental difference.
Many noble Lords, including the noble Lords, Lord Cope, Lord Lester and Lord Patel, the noble Baroness, Lady Howells, they right reverend Prelate the Bishop of Oxford, the noble Lords, Lord Sheppard, Lord Desai, Lord Haskel, Lord Ahmed and Lord Dholakia, and, somewhat grudgingly, the noble Viscount, Lord Astor, referred to the issue of indirect discrimination and its omission from the Bill. Many noble Lords raised the issue in terms of unwitting discrimination or 178 institutionalised racism. I wish to be clear on behalf of the Government. We abhor all forms of discrimination. We believe this issue to be paramount.
The indirect discrimination provisions in the original Act were designed to deal with indirect discrimination in very specific fields covered by the Act, such as employment and the provision of goods, facilities and services. In those fields, an unjustifiable requirement or condition, such as an address in a particular locality, could easily and unjustifiably exclude ethnic minorities from jobs and access to services. An unjustifiable height requirement for joining the police force is a good example. The noble Lord, Lord Dholakia, reminded us just how far that can be taken in some of the service conditions which, in the past, discriminated against Sikhs. The noble Lord was right to remind us of that important issue.
As I explained in my opening remarks, indirect discrimination occurs when there is a requirement or condition which, although applied equally to people of different racial groups, has the effect that the proportion of a racial group that can comply is considerably smaller than that of another racial group that can comply. Such a requirement or condition is unlawful only if it cannot be justified irrespective of colour, race, nationality or ethnic or national origin, and if it is detrimental to the applicant who cannot comply. These provisions were designed to deal with indirect discrimination in the fields currently covered by the Act: employment, goods, facilities and services. In those fields an unjustifiable requirement or condition, for example, an address in a particular locality, could unjustifiably exclude ethnic minorities from access to jobs and services.
This approach, however, does not fit well with law enforcement where there is no requirement or condition with which an individual must comply. We believe that the widely acknowledged element of discrimination in the stop and search figures is due to the cumulative effects of direct discrimination, whether witting or unwitting, rather than indirect discrimination. That point began to emerge during the course of our deliberations.
I return to the issue of indirect discrimination. We argue that to prohibit indirect discrimination in relation to the functions that will be caught by the new provisions of the Act would have uncertain and potentially far-reaching effects. It is a challenge I o all of us to see how we can work round those difficulties—a challenge on which noble Lords will no doubt wish to test the Government. Any policy or practice that has a different impact on different racial groups because of a requirement or condition would be open to challenge in the courts. As I said, that could include age-based policies; for example, the new deal for young people and special benefits for the elderly; and in addition, any regional policies which balanced the needs of those living in urban areas as against those living in the countryside. Policies that are benefiting ethnic minority communities most could be open to challenge. We believe that to be a significant problem in attempting to wrestle with this crucial issue.
179 The Government believe that a better way of addressing the potential for unjustifiable indirect discrimination is through the promotion of equality. This we are pursuing through administrative action, which will be underpinned by a duty on public authorities—
§ Lord Lester of Herne Hill
My Lords, I am grateful to the Minister for giving way. He is essentially repeating the argument he made in opening the debate. I wonder whether he can help me on two matters. First, if it is the case that a public authority is imposing a requirement or condition which hits disproportionately at members of a particular ethnic group, is to the detriment of an individual member of that group and is unjustifiable, what is the policy reason why government Ministers and public authorities should not be under exactly the same duty to justify as the Bar Council, my chambers, the City, local authorities, education bodies, housing authorities, or any other institution? I do not understand the policy reason for shielding the Minister and his colleagues from scrutiny by the independent authority of the courts and the CRE.
Secondly, the Minister has certified under Section 19 of the Human Rights Act 1998 his view, which is no doubt based on legal advice, that the Bill's provisions comply with the human rights convention. Will the Minister inform the House, either now or in writing, as to whether the concept of discrimination contained in the European Convention on Human Rights covers indirect as well as direct discrimination? If it does, as I believe is indicated in case law, how can the Minister possibly make a statement under Section 19 that the legislation complies with the convention if it will authorise breaches of Article 14 of the convention, read with Article 5 in relation to police powers and Article 6 in relation to access to justice? Will the Minister be kind enough to consider the second question and let me have a view in writing? So far as concerns the question of policy justification, I should be grateful if he would illustrate that now.
§ Lord Bassam of Brighton
My Lords, I am grateful to the noble Lord for his telling intervention. I shall be happy to write to him on his second point. Perhaps I may also reply to him in writing on the first matter that he raised, which bears close inspection. I should like to study his remarks. I should like to give the question careful consideration. It would be wrong to make a comment that subsequently proved unhelpful. We want to be as helpful as we possibly can. Therefore, perhaps I may continue with my general theme. That would be wisest and would take us further forward.
I referred to the issue of stop and search. I want to point in particular to Recommendations 61 to 63 of the Lawrence inquiry and many of the other actions that were recommended. These are being overseen by the Lawrence Steering Group. The administrative actions that will flow from that work and the Government's general commitment to the promotion of equality will 180 be very important in this policy field. When parliamentary time permits and when we have given more detailed and careful consideration to the best way to promote equality, we shall place a proposal before Parliament. That is an important way forward.
Perhaps I may move on from the issue of indirect discrimination and turn to some of the important points raised during the course of the debate. The noble Lord, Lord Cope, was a fraction unfair in his attempt to claim that this piece of legislation is a sham. If the noble Lord thinks further about the matter, he may wish to reconsider that comment. This is the first piece of race relations legislation to come before the Houses of Parliament since 1976. Many problems and issues have emerged in the field of race relations during that period of our political history. Members of the party opposite had the opportunity when they were in government but completely failed to grapple with those important issues. Is it not the case that when the whole appalling business of the murder of Stephen Lawrence occurred, the government of the day had ample opportunity to organise and set up a serious public inquiry into the important issues that have now begun to work their way into our legislative programme and our administrative actions on a daily basis? The party opposite missed that opportunity. To say to the Government that our proposed legislation is a complete sham when it addresses some of the fundamental issues that were raised as a direct consequence of the Lawrence inquiry is hypocritical. I say that in all honesty and integrity.
§ Viscount Astor
My Lords, does the noble Lord recognise that having spent 18 years in opposition and two years in government the party opposite has had plenty of time to get these matters right? That has been the complaint during this debate.
§ Lord Bassam of Brighton
My Lords, we contend that we are getting it right. We believe that this legislation is an important instalment in putting matters right after, sadly, many years of neglect. We want to tackle the issues.
The noble Lord, Lord Cope, is an accountant. I suspect that he is something of a forensic accountant; he always pays great attention to detail. The noble Lord raised some important questions as well as making generalised comments on our approach. He raised a question on the proposed new Section 19D, which exempts decisions not to prosecute, and claimed that it was possibly too widely drawn. We, too, are concerned about the point and will look closely at ways of ensuring that the exemption is no wider than it needs to be to preserve the role of the criminal courts as the sole forum for determining guilt.
The noble Lord also raised the definition of public authorities. He asked whether private prisons would be left out and what was the position of NHS trusts vis-à-vis England and Wales and Scotland. The Human Rights Act applies an important definition of "public authority", and it started from scratch. The Race Relations Act already applies to certain functions of all public authorities, but where it does not do so, the 181 authorities concerned are listed in the schedule. An exercise is in hand to establish which additional public authorities can be added by order.
§ Lord Lester of Herne Hill
My Lords, I am grateful to the Minister for giving way. Perhaps he may be able to reflect on this in the light of what he has just said. The Human Rights Act definition of "public authority" is designed to ensure that every public authority, widely defined, complies with convention rights. One of those rights is the right not to be discriminated against in the enjoyment of other convention rights. That includes the right to liberty, no arbitrary arrest by police, the right to fair trial, the right to education, to property and so on. Will the Minister reflect on whether it makes sense to have a different definition in the Race Relations Act in view of the need to comply with the European Convention on Human Rights?
§ Lord Bassam of Brighton
My Lords, as ever, the noble Lord makes a helpful intervention on which I wish to reflect. He raises an important point about discordant definitions and we shall need to look more closely at it and address the matter.
The issue was raised of quangos and their definition. The way in which we attempted to phrase the legislation provides us with flexibility. If there are new bodies which are public bodies, they can be included within the remit of the legislation.
As regards private prisons, they will be covered. NHS trusts in Scotland are different and have slightly different functions from those in England and Wales which justifies their inclusion in the schedule. Trusts in England and Wales are already fully covered by the Act.
The noble Lord, Lord Cope of Berkeley, and the noble Viscount, Lord Astor, raised the question of the costs of the Bill. They related it in part to our commitment. As with many matters, the costs are difficult to predict. The Explanatory Notes refer to the costs being met from agreed departmental expenditure limits which are currently fixed under the existing CSR round. The closeness of our estimates will emerge over time, but I reject the argument that it should be taken as symbolising a lack of political commitment on our part that the costs of implementing the Bill are not greater. We believe that they can be met with existing resources and budgets which have been set aside.
In one of the most intellectually telling contributions, the noble Lord, Lord Lester, raised important questions. I have already agreed in part to cover them in writing, but he raised other issues with which I may be able to deal this evening.
The race, sex and disability legislation which exists covers indirect discrimination in the non-public sector. The noble Lord asked whether there are any examples of it having harmful effects. I can confirm that I am not aware of any. Provisions against indirect discrimination remain a key part of the Race Relations Act. To outlaw indirect discrimination in the new areas covered by the Bill would have uncertain and 182 potentially far-reaching effects on the Government's ability to make policy. We need to clarify and examine that as time goes on.
The noble Lord also asked about judicial appointments and the appointment of QCs. in which he was interested. He wanted a response. I can confirm that judicial appointments and the appointments of QCs are covered. I am sure that that is helpful to him.
The noble Lord asked about the powers of the Commission for Racial Equality. My understanding is that Section 48 of the Act allows it to undertake,a formal investigation for any purpose connected with the carrying out of its duties".Its duties are to work towards the elimination of discrimination, to promote equality of opportunity and good relations and to keep the Act under review. The commission already has the powers to investigate discrimination by the police, whether direct or indirect, if it so wishes. In those aspects, the Act catches the police.
§ Lord Dholakia
My Lords, the Minister mentioned the powers of the Commission for Racial Equality. Does he accept that there are no enforcement powers under that section? That is why the commission is concerned. Nor can it subpoena witnesses. If a discrimination notice comes in, it cannot issue nondiscrimination notices on an investigation of that type.
§ Lord Bassam of Brighton
My Lords, I believe that what the noble Lord said is correct and I shall try to check the point. Once the Act is extended, in our view the commission will be able to go further in respect of direct discrimination. Direct discrimination in the case of law enforcement, whether or not intentional, is more likely to fall within the definition of "direct discrimination."
The noble Lords, Lord Lester and Lord Avebury, asked about the exemption of immigration, nationality and asylum and whether the provision had been too widely drawn. We believe that the existing safeguards provided by Section 41 of the Race Relations Act for acts done by a statutory authority are insufficient to allow the immigration system to continue to operate as Parliament intended. Section 41 protects discriminatory acts which are carried out in pursuance of statutory provisions for ministerial arrangements. That was explained earlier. The courts have adopted a narrow interpretation, as required by law. The operation of an immigration system necessarily requires the exercise of some discrimination by Ministers and appropriately authorised officials. The authorisations are necessarily detailed in operational staff instructions approved by Ministers. It would therefore be impractical to set out in legislation every set of circumstances where discrimination would be required. I trust that that answers the question.
There are other examples such as those covering entry clearance officers overseas who need to be able to treat people differently because of their nationality or ethnic or national origin. That includes countries 183 associated with state-sponsored terrorism or where the country has a track record of hostile intelligence activity. Alternatively, it may be where the country is known to issue passports to non-nationals or where there is a need to provide special treatment or protection to those at risk.
§ Lord Lester of Herne Hill
My Lords, I apologise for being like a jack-in-the-box this evening, but I hope it is helpful to probe a little and give the Minister time for reflection. Does he agree that it is in no sense the policy of the immigration and nationality department of the Home Office ever to discriminate against anyone on the basis of their ethnic or national origins? The example he gave was not about discriminating against someone because of their ethnic or national origins. It is an example of making special treatment or a difference in treatment an objective reason that has nothing to do with ethnic or national origins. It would be a disaster if the immigration and nationality department were regarded as having a policy of discriminating on the basis of ethnic or national origin in naturalisation, immigration or anything else.
§ Lord Bassam of Brighton
Yes, my Lords, in a sense the noble Lord adds to my explanation and I find the intervention helpful. However, the general point I am trying to make is that there are occasions when there will be forms of lawful discrimination. There is a difficulty in drafting legislation to take account of that in relation to indirect discrimination. It is a matter for further debate and we can probe the issues more as we progress. I should like to make progress in answering points other noble Lords made in the debate.
The noble Lord, Lord Patel, asked whether the Bill would be used to remedy the different treatment of small partnerships under the Race Relations and Sex Discrimination Acts. Partnerships are governed by the employment provisions in the legislation and this Bill addresses public functions that are not currently covered by it. The Government have promised to bring forward further legislation in relation to proposals made by the CRE and others as soon as parliamentary time permits.
The noble Lord, Lord Avebury, asked a number of important questions. He asked about Clause 5 which provides for certain cases to be heard by the immigration appellate authority. How could an individual pursue his or her claim for damages in the county court, assuming it is upheld by the immigration appellate authority, if the substantive appeal was not upheld and the person concerned was no longer in the UK? The answer is that anyone from abroad who wishes to bring a claim before the county court will be given leave to enter the UK precisely for that purpose if his or her presence is necessary for the resolution of the damages claim. That position is perhaps not as unusual as it sounds. It happens now in a number of circumstances, for example, in custody cases. Noble Lords will note that the Bill provides that in the case now being considered the county court will presume 184 that there is unlawful discrimination unless the contrary is proved. I hope that that reply assists the noble Lord.
The noble Lord, Lord Avebury, also commented on the Home Secretary's observations on travellers. It is widely recognised that the Home Secretary is committed to the elimination of racial discrimination and hatred wherever it occurs. He has an excellent track record in that respect. My right honourable friend's comments referred primarily to itinerant individuals regardless of race who engage in criminal activity. He sought to say that in that respect no one should be above the law. I am sure that that is something which broadly we all support. The noble Lord also asked whether the Bill would have any effect on Section 33 of the Race Relations Act. I cannot comment on the details of the particular case that the noble Lord mentioned, but the Bill will not have any effect on Section 33 of the existing legislation.
The noble Lord, Lord Avebury, also asked whether private sector companies would have to be listed separately in the schedule each time they started to carry out public functions. Under Section 19(b)(i) bodies can be added to the schedule by order. That order can refer to bodies individually or by description. In the case of private sector bodies which run prisons, it is our intention to list by description. It will therefore be unnecessary to amend the schedule each time a new or different private sector body contracts with the Prison Service.
The noble Lord, Lord Ahmed, asked why the Bill did not cover religious discrimination. I am aware that that is a matter that particularly exercises the noble Lord, and it is one in which many of us take a keen interest. The Government are alive to the concerns about religious discrimination and the case put forward that it should be subject to law. This issue raises difficult, sensitive and complex questions. We do not believe that there is a ready answer or quick fix solution to it. We have commissioned research to assess the current scale and nature of religious discrimination and the extent to which it overlaps with racial discrimination in England and Wales.
The noble Lord, Lord Dholakia, asked why a duty to promote equality was not included in the Bill. I answered the point earlier but I shall reinforce it. The Government's Statement on equality published on 3rd November explained that they wished to bring forward legislation to introduce a duty to promote equality in a coherent, constructive and thought-through manner. We believe that this suggestion goes far beyond the remit of this Bill and covers other important issues of equality. We want to try to deal with the matter in those terms.
The noble Viscount, Lord Astor, asked whether there was a timetable for the Stephen Lawrence action plan. The action plan is being progressed as quickly as possible. We made a commitment to bring forward legislation on those points, and this Bill is an important instalment in that process. We shall meet and match all of the commitments that we made following publication of the Lawrence public inquiry report.
185 This has been a long and interesting debate, which I have enjoyed. I hope that I have answered many of the points and questions that have been raised tonight. The Government will continue to listen. At the outset of the debate I invited people to meet us and discuss some of the issues that they wished to see resolved in the Bill. As ever, our door remains open. In this Bill we believe that we have a pragmatic and workable measure to match an important commitment. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.